Federal Register / Vol. 62, No. 236 / Tuesday, December 9, 1997 / Rules and Regulations 64933

Authority: 40 U.S.C. 486(c); 10 U.S.C.

chapter 137; and 42 U.S.C. 2473(c).

2. Section 31.205–46 is amended by

revising paragraph (a)(3)(iv) to read as

follows:

31.205–46 Travel costs.

(a) * * *

(3) * * *

(iv) Documentation to support actual

costs incurred shall be in accordance

with the contractor’s established

practices, subject to paragraph (a)(7) of

this subsection, and provided that a

receipt is required for each expenditure

of $75.00 or more. The approved

justification required by paragraph

(a)(3)(ii) and, if applicable, paragraph

(a)(3)(iii) of this subsection must be

retained.

* * * * *

[FR Doc. 97–31822 Filed 12–8–97; 8:45 am]

BILLING CODE 6820–EP–P

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Part 33

[FAC 97–03; FAR Case 97–009; Item X]

RIN 9000–AH81

Federal Acquisition Regulation;

Protests to GAO

AGENCIES: Department of Defense (DoD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Final rule.

SUMMARY: The Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council have

agreed on a final rule amending the

Federal Acquisition Regulation (FAR) to

conform with revisions to the General

Accounting Office (GAO) Bid Protest

Regulations. This regulatory action was

not subject to Office of Management and

Budget review under Executive Order

12866, dated September 30, 1993, and is

not a major rule under 5 U.S.C. 804.

EFFECTIVE DATE: February 9, 1998.

FOR FURTHER INFORMATION CONTACT: The

FAR Secretariat, Room 4035, GS

Building, Washington, DC 20405, (202)

501–4755, for information pertaining to

status or publication schedules. For

clarification of content, contact Mr. Jack

O’Neill, Procurement Analyst, at (202)

501–3856. Please cite FAC 97–03, FAR

case 97–009.

SUPPLEMENTARY INFORMATION:

A. Background

The GAO published a final rule

amending its Bid Protest Regulations in

the Federal Register on July 26, 1996

(61 FR 39039). Several conforming

amendments to FAR Part 33 are

necessary to reflect the current GAO Bid

Protest Regulations. The definition of

‘‘day’’ in FAR 33.101 is amended to

exclude Saturdays, Sundays, and

Federal holidays from being counted if

such day is the last day of the period

after the act, event, or default. FAR

33.104 is amended to require agencies to

include a best estimate of the contract

value in an agency report of a protest;

and to require agencies to provide to all

parties, at least 5 days prior to the filing

of a report, a list of documents the

agency intends to release or withhold,

and reasons for proposed withholding.

The time within which agencies are

required to provide additional

documents requested by a protester is

reduced from 5 to 2 days. The time

within which protesters or other

interested parties are required to furnish

comments on an agency report is

reduced from 14 to 10 days, or from 7

to 5 days if an express option is used;

or, if a hearing is held, from 7 to 5 days.

Language is added to require a protester

to file its claim for costs with the

contracting agency within 60 days after

receipt of GAO’s recommendation that

the agency pay the protester its costs.

B. Regulatory Flexibility Act

The final rule does not constitute a

significant FAR revision within the

meaning of FAR 1.501 and Public Law

98–577, and publication for public

comments is not required. However,

comments from small entities

concerning the affected FAR subpart

will be considered in accordance with 5

U.S.C. 610. Such comments must be

submitted separately and should cite 5

U.S.C. 601, et seq. (FAC 97–03, FAR

case 97–009), in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because the changes to the

FAR do not impose recordkeeping or

information collection requirements, or

collections of information from offerors,

contractors, or members of the public

which require the approval of the Office

of Management and Budget under 44

U.S.C. 3501, et seq.

List of Subjects in 48 CFR Part 33

Government procurement.

Dated: December 1, 1997.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Therefore, 48 CFR part 33 is amended

as set forth below:

PART 33—PROTESTS, DISPUTES,

AND APPEALS

1. The authority citation for 48 CFR

part 33 continues to read as follows:

Authority: 40 U.S.C. 486(c); 10 U.S.C.

chapter 137; and 42 U.S.C. 2473(c).

33.101 [Amended]

2. Section 33.101 is amended in

paragraph (b)(1) under the definition of

‘‘Day’’ by removing the word ‘‘legal’’

and inserting ‘‘Federal’’ in its place; and

by removing paragraph (c).

3. Section 33.104 is amended by—

a. Redesignating (a)(3)(iii) as (a)(3)(iv),

and adding a new (a)(3)(iii);

b. Revising newly designated

(a)(3)(iv)(B); removing (a)(3)(iv)(C);

redesignating (a)(3)(iv)(D) as

(a)(3)(iv)(C);

c. Replacing ‘‘5’’ with ‘‘2’’ in

paragraphs (a)(4)(ii)(A) and (a)(4)(ii)(B);

d. Replacing ‘‘14’’ with ‘‘10’’ and ‘‘7’’

with ‘‘5’’ each time it appears in

paragraph (a)(6);

e. Adding ‘‘the agency’’ before the

word ‘‘report’’ in the third sentence of

paragraph (e);

f. Revising paragraph (h) to read as

follows:

33.104 Protests to GAO.

* * * * *

(a) * * *

(3) * * *

(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) * * *

(A) * * *

(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
64934 Federal Register / Vol. 62, No. 236 / Tuesday, December 9, 1997 / Rules and Regulations

file that may be necessary to determine

the merits of the protest; and

* * * * *

(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 19.001, ‘‘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 attorney’s 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 attorney’s 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.

[FR Doc. 97–31823 Filed 12–8–97; 8:45 am]

BILLING CODE 6820–EP–P

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 42 and 53

[FAC 97–03; FAR Case 95–034; Item XI]

RIN 9000–AH18

Federal Acquisition Regulation;

Novation and Related Agreements

AGENCIES: Department of Defense (DoD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Final rule.

SUMMARY: The Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council have

agreed on a final rule amending the

Federal Acquisition Regulation (FAR) to

facilitate the processing of novation and

related agreements. This regulatory

action was not subject to Office of

Management and Budget review under

Executive Order 12866, dated

September 30, 1993, and is not a major

rule under 5 U.S.C. 804.

EFFECTIVE DATE: February 9, 1998.

FOR FURTHER INFORMATION CONTACT: The

FAR Secretariat, Room 4035, GS

Building, Washington, DC 20405, (202)

501–4755, for information pertaining to

status or publication schedules. For

clarification of content, contact Ms.

Linda Klein, Procurement Analyst, at

(202) 501–3775. Please cite FAC 97–03,

FAR case 95–034.

SUPPLEMENTARY INFORMATION:

A. Background

The purpose of this rule is to facilitate

the process of novating contracts and to

provide guidelines for contracting

officers, while preserving the

Government’s interests in business

combinations affecting its contracts. A

proposed rule was published in the

Federal Register on August 21, 1996 (61

FR 43294). Eighteen comments were

received from six respondents. All

comments were considered in the

development of the final rule.

B. Regulatory Flexibility Act

The Department of Defense, the

General Services Administration, and

the National Aeronautics and Space

Administration certify that this final

rule will not have a significant

economic impact on a substantial

number of small entities within the

meaning of the Regulatory Flexibility

Act, 5 U.S.C. 601, et seq., because

novation agreements generally affect

only a relatively small number of large

and small business entities.

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because the changes to the

FAR do not impose recordkeeping or

information collection requirements, or

collections of information from offerors,

contractors, or members of the public

which require the approval of the Office

of Management and Budget under 44

U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 42 and

53

Government procurement.

Dated: December 1, 1997.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Therefore, 48 CFR parts 42 and 53 are

amended as set forth below:

1. The authority citation for 48 CFR

parts 42 and 53 continues to read as

follows:

Authority: 40 U.S.C. 486(c); 10 U.S.C.

chapter 137; and 42 U.S.C. 2473(c).

PART 42—CONTRACT

ADMINISTRATION

2. Section 42.1203 is amended by

revising paragraphs (b) and (c);

redesignating paragraphs (d) through (f)

as (f) through (h), respectively; and

adding new paragraphs (d) and (e) to

read as follows:

42.1203 Processing agreements.

* * * * *

(b) The responsible contracting officer

shall—