33.104 Protests to GAO.

Procedures for protests to GAO are found at 4 CFR Part 21 (GAO Bid Protest Regulations). In the

event guidance concerning GAO procedure in this section conflicts with 4 CFR Part 21, 4 CFR Part

21 governs.

(a) General procedure.

(1) A protester is required to furnish a copy of its complete protest to the official and location

designated in the solicitation or, in the absence of such a designation, to the contracting officer, so it

is received no later than 1 day after the protest is filed with the GAO. The GAO may dismiss the

protest if the protester fails to furnish a complete copy of the protest within 1 day.

(2) Immediately after receipt of the GAO’s written notice that a protest has been filed, the agency

shall give notice of the protest to the contractor if the award has been made, or, if no award has

been made, to all parties who appear to have a reasonable prospect of receiving award if the protest

is denied. The agency shall furnish copies of the protest submissions to such parties with

instructions to (i) communicate directly with the GAO, and (ii) provide copies of any such

communication to the agency and to other participating parties when they become known. However,

if the protester has identified sensitive information and requests a protective order, then the

contracting officer shall obtain a redacted version from the protester to furnish to other interested

parties, if one has not already been provided.

(3)

(i) Upon notice that a protest has been filed with the GAO, the contracting officer shall immediately

begin compiling the information necessary for a report to the GAO. The agency shall submit a

complete report to the GAO within 30 days after the GAO notifies the agency by telephone that a

protest has been filed, or within 20 days after receipt from the GAO of a determination to use the

express option, unless the GAO-

(A) Advises the agency that the protest has been dismissed; or

(B) Authorizes a longer period in response to an agency’s request for an extension. Any new date is

documented in the agency’s file.

(ii) When a protest is filed with the GAO, and an actual or prospective offeror so requests, the

procuring agency shall, in accordance with any applicable protective orders, provide actual or

prospective offerors reasonable access to the protest file. However, if the GAO dismisses the protest

before the documents are submitted to the GAO, then no protest file need be made available.

Information exempt from disclosure under 5 U.S.C.552 may be redacted from the protest file. The

protest file shall be made available to non-intervening actual or prospective offerors within a

reasonable time after submittal of an agency report to the GAO. The protest file shall include an

index and as appropriate-

(A) The protest;

(B) The offer submitted by the protester;
(C) The offer being considered for award or being protested;

(D) All relevant evaluation documents;

(E) The solicitation, including the specifications or portions relevant to the protest;

(F) The abstract of offers or relevant portions; and

(G) Any other documents that the agency determines are relevant to the protest, including

documents specifically requested by the protester.

(iii) At least 5 days prior to the filing of the report, in cases in which the protester has filed a request

for specific documents, the agency shall provide to all parties and the GAO a list of those documents,

or portions of documents, that the agency has released to the protester or intends to produce in its

report, and those documents that the agency intends to withhold from the protester and the reasons

for the proposed withholding. Any objection to the scope of the agency’s proposed disclosure or

nondisclosure of the documents must be filed with the GAO and the other parties within 2 days after

receipt of this list.

(iv) The agency report to the GAO shall include-

(A) A copy of the documents described in 33.104(a)(3)(ii);

(B) The contracting officer’s signed statement of relevant facts, including a best estimate of the

contract value, and a memorandum of law. The contracting officer’s statement shall set forth

findings, actions, and recommendations, and any additional evidence or information not provided in

the protest file that may be necessary to determine the merits of the protest; and

(C) A list of parties being provided the documents.

(4)

(i) At the same time the agency submits its report to the GAO, the agency shall furnish copies of its

report to the protester and any intervenors. A party shall receive all relevant documents, except-

(A) Those that the agency has decided to withhold from that party for any reason, including those

covered by a protective order issued by the GAO. Documents covered by a protective order shall be

released only in accordance with the terms of the order. Examples of documents the agency may

decide to exclude from a copy of the report include documents previously furnished to or prepared

by a party; classified information; and information that would give the party a competitive

advantage; and

(B) Protester’s documents which the agency determines, pursuant to law or regulation, to withhold

from any interested party.

(i) If the protester requests additional documents within 2 days after the protester knew the

existence or relevance of additional documents, or should have known, the agency shall provide the

requested documents to the GAO within 2 days of receipt of the request.

(A) The additional documents shall also be provided to the protester and other interested parties

within this 2-day period unless the agency has decided to withhold them for any reason (see

subdivision (a)(4)(i) of this section). This includes any documents covered by a protective order
issued by the GAO. Documents covered by a protective order shall be provided only in accordance

with the terms of the order.

(B) The agency shall notify the GAO of any documents withheld from the protester and other

interested parties and shall state the reasons for withholding them.

(5) The GAO may issue protective orders which establish terms, conditions, and restrictions for the

provision of any document to an interested party. Protective orders prohibit or restrict the disclosure

by the party of procurement sensitive information, trade secrets or other proprietary or confidential

research, development or commercial information that is contained in such document. Protective

orders do not authorize withholding any documents or information from the United States Congress

or an executive agency.

(i) Requests for protective orders. Any party seeking issuance of a protective order shall file its

request with the GAO as soon as practicable after the protest is filed, with copies furnished

simultaneously to all parties.

(ii) Exclusions and rebuttals. Within 2 days after receipt of a copy of the protective order request,

any party may file with the GAO a request that particular documents be excluded from the coverage

of the protective order, or that particular parties or individuals be included in or excluded from the

protective order. Copies of the request shall be furnished simultaneously to all parties.

(iii) Additional documents. If the existence or relevance of additional documents first becomes

evident after a protective order has been issued, any party may request that these additional

documents be covered by the protective order. Any party to the protective order also may request

that individuals not already covered by the protective order be included in the order. Requests shall

be filed with the GAO, with copies furnished simultaneously to all parties.

(iv) Sanctions and remedies. The GAO may impose appropriate sanctions for any violation of the

terms of the protective order. Improper disclosure of protected information will entitle the aggrieved

party to all appropriate remedies under law or equity. The GAO may also take appropriate action

against an agency which fails to provide documents designated in a protective order.

(6) The protester and other interested parties are required to furnish a copy of any comments on the

agency report directly to the GAO within 10 days, or 5 days if express option is used, after receipt of

the report, with copies provided to the contracting officer and to other participating interested

parties. If a hearing is held, these comments are due within 5 days after the hearing.

(7) Agencies shall furnish the GAO with the name, title, and telephone number of one or more

officials (in both field and headquarters offices, if desired) whom the GAO may contact who are

knowledgeable about the subject matter of the protest. Each agency shall be responsible for

promptly advising the GAO of any change in the designated officials.

(b) Protests before award.

(1) When the agency has received notice from the GAO of a protest filed directly with the GAO, a

contract may not be awarded unless authorized, in accordance with agency procedures, by the head

of the contracting activity, on a nondelegable basis, upon a written finding that-

(i) Urgent and compelling circumstances which significantly affect the interest of the United States

will not permit awaiting the decision of the GAO; and
(ii) Award is likely to occur within 30 days of the written finding.

(2) A contract award shall not be authorized until the agency has notified the GAO of the finding in

paragraph (b)(1) of this section.

(3) When a protest against the making of an award is received and award will be withheld pending

disposition of the protest, the contracting officer should inform the offerors whose offers might

become eligible for award of the protest. If appropriate, those offerors should be requested, before

expiration of the time for acceptance of their offer, to extend the time for acceptance to avoid the

need for resolicitation. In the event of failure to obtain such extensions of offers, consideration

should be given to proceeding under paragraph (b)(1) of this section.

(c) Protests after award.

(1) When the agency receives notice of a protest from the GAO within 10 days after contract award

or within 5 days after a debriefing date offered to the protester for any debriefing that is required by

15.505 or 15.506, whichever is later, the contracting officer shall immediately suspend performance

or terminate the awarded contract, except as provided in paragraphs (c)(2) and (3) of this section.

(2) In accordance with agency procedures, the head of the contracting activity may, on a

nondelegable basis, authorize contract performance, notwithstanding the protest, upon a written

finding that-

(i) Contract performance will be in the best interests of the United States; or

(ii) Urgent and compelling circumstances that significantly affect the interests of the United States

will not permit waiting for the GAO’s decision.

(3) Contract performance shall not be authorized until the agency has notified the GAO of the finding

in paragraph (c)(2) of this section.

(4) When it is decided to suspend performance or terminate the awarded contract, the contracting

officer should attempt to negotiate a mutual agreement on a no-cost basis.

(5) When the agency receives notice of a protest filed with the GAO after the dates contained in

paragraph (c)(1), the contracting officer need not suspend contract performance or terminate the

awarded contract unless the contracting officer believes that an award may be invalidated and a

delay in receiving the supplies or services is not prejudicial to the Government’s interest.

(d) Findings and notice. If the decision is to proceed with contract award, or continue contract

performance under paragraphs (b) or (c) of this section, the contracting officer shall include the

written findings or other required documentation in the file. The contracting officer also shall give

written notice of the decision to the protester and other interested parties.

(e) Hearings. The GAO may hold a hearing at the request of the agency, a protester, or other

interested party who has responded to the notice in paragraph (a)(2) of this section. A recording or

transcription of the hearing will normally be made, and copies may be obtained from the GAO. All

parties may file comments on the hearing and the agency report within 5 days of the hearing.

(f) GAO decision time. GAO issues its recommendation on a protest within 100 days from the date of

filing of the protest with the GAO, or within 65 days under the express option. The GAO attempts to

issue its recommendation on an amended protest that adds a new ground of protest within the time
limit of the initial protest. If an amended protest cannot be resolved within the initial time limit, the

GAO may resolve the amended protest through an express option.

(g) Notice to GAO. If the agency has not fully implemented the GAO recommendations with respect

to a solicitation for a contract or an award or a proposed award of a contract within 60 days of

receiving the GAO recommendations, the head of the contracting activity responsible for that

contract shall report the failure to the GAO not later than 5 days after the expiration of the 60-day

period. The report shall explain the reasons why the GAO’s recommendation, exclusive of costs, has

not been followed by the agency.

(h) Award of costs.

(1) If the GAO determines that a solicitation for a contract, a proposed award, or an award of a

contract does not comply with a statute or regulation, the GAO may recommend that the agency pay

to an appropriate protester the cost, exclusive of profit, of filing and pursuing the protest, including

reasonable attorney, consultant, and expert witness fees, and bid and proposal preparation costs.

The agency shall use funds available for the procurement to pay the costs awarded.

(2) The protester shall file its claim for costs with the contracting agency within 60 days after receipt

of the GAO’s recommendation that the agency pay the protester its costs. Failure to file the claim

within that time may result in forfeiture of the protester’s right to recover its costs.

(3) The agency shall attempt to reach an agreement on the amount of costs to be paid. If the agency

and the protester are unable to agree on the amount to be paid, the GAO may, upon request of the

protester, recommend to the agency the amount of costs that the agency should pay.

(4) Within 60 days after the GAO recommends the amount of costs the agency should pay the

protester, the agency shall notify the GAO of the action taken by the agency in response to the

recommendation.

(5) No agency shall pay a party, other than a small business concern within the meaning of section

3(a) of the Small Business Act (see 2.101, "Small business concern"), costs under paragraph (h)(2) of

this section-

(i) For consultant and expert witness fees that exceed the highest rate of compensation for expert

witnesses paid by the Government pursuant to 5 U.S.C.3109 and 5 CFR 304.105; or

(ii) For attorneys’ fees that exceed $150 per hour, unless the agency determines, based on the

recommendation of the Comptroller General on a case-by-case basis, that an increase in the cost of

living or a special factor, such as the limited availability of qualified attorneys for the proceedings

involved, justifies a higher fee. The cap placed on attorneys’ fees for businesses, other than small

businesses, constitutes a benchmark as to a "reasonable" level for attorneys’ fees for small

businesses.

(6) Before paying a recommended award of costs, agency personnel should consult legal counsel.

Section 33.104(h) applies to all recommended awards of costs that have not yet been paid.

(7) Any costs the contractor receives under this section shall not be the subject of subsequent

proposals, billings, or claims against the Government, and those exclusions should be reflected in

the cost agreement.

(8) If the Government pays costs, as provided in paragraph (h)(1) of this section, where a postaward
protest is sustained as the result of an awardee’s intentional or negligent misstatement,

misrepresentation, or miscertification, the Government may require the awardee to reimburse the

Government the amount of such costs. In addition to any other remedy available, and pursuant to the

requirements of subpart 32.6, the Government may collect this debt by offsetting the amount

against any payment due the awardee under any contract between the awardee and the

Government.

Parent topic: Subpart 33.1 - Protests