This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

19205

Vol. 61, No. 85

Wednesday, May 1, 1996

GENERAL ACCOUNTING OFFICE

4 CFR Part 21

General Accounting Office,

Administrative Practice and Procedure,

Bid Protest Regulations, Government

Contracts

AGENCY: General Accounting Office.

ACTION: Proposed rule.

SUMMARY: The General Accounting

Office (GAO) is proposing to revise its

Bid Protest Regulations to implement

the requirement in the National Defense

Authorization Act for Fiscal Year 1996

that GAO, for new protests filed on or

after August 8, 1996, issue bid protest

decisions within 100 calendar days from

the time a protest is filed at GAO. The

proposed revision will facilitate GAO’s

meeting the new statutory deadline for

issuing bid protest decisions and will

improve the overall effectiveness of the

bid protest process at GAO.

DATES: Comments must be submitted on

or before July 1, 1996.

ADDRESSES: Comments should be

addressed to: Michael R. Golden,

Assistant General Counsel, General

Accounting Office, 441 G Street, NW.,

Washington, DC 20548.

FOR FURTHER INFORMATION CONTACT:

Michael R. Golden (Assistant General

Counsel) or Linda S. Lebowitz (Senior

Attorney), 202–512–9732.

SUPPLEMENTARY INFORMATION: On

February 21, 1996, the General

Accounting Office (GAO) published an

advance notice of proposed rulemaking

(61 FR 6579) soliciting comments on

how its bid protest procedures could be

revised in order to facilitate GAO’s

meeting a new statutory deadline for

issuing bid protest decisions, while also

improving the overall effectiveness of

the bid protest process at GAO. In this

regard, the National Defense

Authorization Act for Fiscal Year 1996,

Pub. L. 104–106, 110 Stat. 186, which

was enacted on February 10, 1996,

requires GAO, effective August 8, 1996,

to issue bid protest decisions within 100

calendar days from the time a protest is

filed at GAO, shortening the current

125-calendar-day requirement. (Any

further reference to ‘‘days’’ means

‘‘calendar days.’’) In the advance notice,

GAO specifically invited comments on

changing its longstanding timeliness

rule to permit the filing of a protest 5

days after a statutorily required

debriefing, and on the feasibility of

promoting early document production

in appropriate cases to facilitate the

expeditious resolution of bid protests.

GAO also invited the submission of

ideas regarding the appropriate length of

regulatorily imposed deadlines, as well

as suggestions concerning the use of

accelerated or alternative procedures to

more expeditiously resolve bid protests.

Interested persons were invited to

submit comments on GAO’s advance

notice by March 22, 1996. We received

written comments from 10 Federal

agencies, 2 bar associations, 2 law firms,

1 industry association, and 2 vendors. In

preparing this proposed rule, we have

carefully considered all comments

received. The commenters generally

recognized the effectiveness of our

previous efforts to streamline the bid

protest process at GAO and to provide

meaningful relief to vendors wrongfully

excluded from procurements, as

reflected in the final rule published on

August 10, 1995 (60 FR 40737) and

effective October 1, 1995. The

commenters made suggestions on how

GAO could improve the internal

management of the bid protest process.

While we are adopting many of the

suggested management practices and we

expect to implement others in the near

future, we believe that regulatory

implementation of such improvements

is unnecessary. For example, we are

focusing on promptly resolving early

requests for partial or complete

dismissals of protests. We are also

establishing procedures to routinely

issue protective orders, where

warranted, shortly after a protest is

filed.

Significant proposed revisions to

GAO’s Bid Protest Regulations are set

forth below.

Statutorily Imposed Deadlines

In accordance with sec. 5501 of the

National Defense Authorization Act for

Fiscal Year 1996, GAO proposes to

revise paragraph (c) of § 21.3 to require

a contracting agency to file its report in

response to a protest with GAO within

30 days, as opposed to 35 days, after

receiving telephone notice of the protest

from GAO. GAO also proposes to revise

paragraph (a) of § 21.9 to require our

Office to issue a decision on a bid

protest within 100 days after the protest

is filed with our Office.

Timeliness Rules

Consistent with the suggestion of

several commenters, GAO’s proposed

regulation at § 21.2(a)(2) requires that

protests, except those alleging a

solicitation impropriety, filed under a

procurement in which a debriefing is

required by law be filed not later than

5 days after the debriefing; in all other

cases, the protest is required to be filed

within 10 days after the basis of protest

is known or should have been known,

whichever is earlier. (Wherever possible

throughout this proposed rule in the

interests of simplification and userfriendliness, GAO proposes to establish

filing times using multiples of ‘‘five’’

days. For example, GAO has reduced

the ‘‘knew/should have known’’

timeliness rule from 14 days to 10 days.)

GAO believes that this proposed change

to the timeliness rule will help to ensure

the prompt and fair resolution of bid

protests.

Consistent with the suggestion of

several commenters, GAO proposed to

add a new paragraph (a)(4) to § 21.2

which reduces the time for filing

supplemental or amended protests from

14 days (pursuant to the current ‘‘knew/

should have known’’ timeliness rule) to

5 days after the basis of protest is known

or should have been known, whichever

is earlier. GAO believes that this

shortening of time will permit GAO to

issue a consolidated decision resolving

the supplemental or amended protests,

usually based on information provided

with the agency report, within the

original 100-day period, thus avoiding

rollover situations or the issuance of

separate decisions.

In paragraph (a)(3) of § 21.2, GAO

proposes to shorten the time for filing a

protest based on initial adverse agency

action on an agency-level protest from

14 days to 5 days. GAO agrees with

those commenters who suggested this

proposed revision, recognizing that in

cases where there has been an agencylevel protest, the protest issues are

usually already developed.
19206 Federal Register / Vol. 61, No. 85 / Wednesday, May 1, 1996 / Proposed Rules

Early Document Production

In paragraph (d)(2) of § 21.1, GAO

proposes to add language requiring a

protester to explain the relevancy of

specifically requested documents to its

protest grounds.

GAO received numerous comments

concerning early document production

as a means of facilitating the prompt

resolution of bid protests. As previously

addressed in the final rule at 60 FR

40737, 40738, while GAO believes that

early document production will

promote the expeditious resolution of

appropriate bid protests and will result

in other system efficiencies, GAO also

believes that early document production

should be accomplished on a voluntary

basis, with an agency assessing the

value of such a procedure in a particular

case. In this regard, in paragraph (c) of

§ 21.3, GAO proposes to explicitly

recognize that documents may be

provided prior to the filing of the agency

report or may otherwise be made

available to the parties, such as by

allowing parties to review documents

on site at the agency prior to the filing

of the report.

GAO also proposes to add to

paragraph (c) of § 21.3 a requirement

that 5 days prior to the filing of the

agency report, in cases in which the

protester has filed a request for specific

documents, that the agency provide to

all parties and GAO a list of those

documents, or portions of documents,

which the agency has released to the

protester or intends to produce in its

report, and those documents which the

agency intends to withhold from the

protester and the reasons for the

proposed withholding. GAO further

proposes to require that any objection to

the scope of an agency’s proposed

disclosure or nondisclosure of

documents be filed with GAO and the

other parties within 1 day of receipt of

this list.

Throughout § 21.3, GAO proposes to

clarify the language to reflect the current

longstanding practice that parties need

not provide entire documents if only

certain portions of these documents are

relevant to the protest.

Several commenters expressed

concern that in light of the shortened

timeframe for resolving bid protests,

unsolicited submissions after the filing

of comments on the agency report or

hearing are particularly inappropriate.

GAO proposes to address this concern

by adding a sentence to the proposed

§ 21.3(j), currently at § 21.3(i), which

states that the agency and other

participating parties shall not submit

any additional statements unless the

statements are specifically requested by

GAO or submitted after permission has

been granted by GAO.

Other Regulatorily Imposed Deadlines

To facilitate meeting the shortened

statutory deadline for issuing bid protest

decisions, GAO also proposes to reduce

the following filing periods: in the

proposed § 21.3(g), currently at § 21.3(f),

the agency must respond to

supplemental document requests within

2 days, as opposed to 5 days; in the

proposed § 21.3(h), currently at

§ 21.3(g), when withheld documents are

furnished, the protester’s comments on

the agency report are due within the

original comment filing period, not 10

days after its receipt of the additional

documents, unless GAO specifically

grants an extension; and in the proposed

§ 21.3(i), currently at § 21.3(h),

comments on the agency report are due

within 10 days, as opposed to 14 days,

after receipt of the report unless GAO

specifically grants an extension. In

paragraph (b) of § 21.14, GAO proposes

to shorten the time for filing requests for

reconsideration (the resolution of such

requests are not subject to statutory

deadlines) from 14 days to 10 days.

Accelerated or Alternative Procedures

Many commenters suggested that

GAO promote the use of flexible

alternative procedures to expedite the

resolution of bid protests. Paragraph (e)

of § 21.10 already contains language

allowing for the establishment of

accelerated schedules and the issuance

of summary decisions. In paragraph (e)

of § 21.10, GAO proposes to add

language specifically acknowledging

that flexible alternative procedures may

be used to promptly and fairly resolve

bid protests. In response to numerous

comments, GAO also proposes to add a

new paragraph (f) to § 21.10, providing

that GAO may conduct status

conferences, by telephone or in person,

with all parties participating in the

protest to promote the expeditious

development and resolution of the

protest.

Miscellaneous Matters

GAO proposes to revise paragraph (e)

of § 21.0 in accordance with the

statutory requirement under 31 U.S.C.

3555(b) that GAO prescribe procedures

for the computation of days for all

periods described in Subchapter V,

Chapter 35 of Title 31, United States

Code.

In paragraph (a) of § 21.3, and in

response to one commenter’s

suggestion, GAO proposes that all

protest communications be sent by

means reasonably calculated to effect

‘‘expeditious’’ delivery, clarifying what

was intended by our previous use of

‘‘timely’’ delivery.

For annual reporting purposes, GAO

proposes to add language to the

proposed § 21.3(d), currently at

§ 21.3(c), requiring agencies to include a

‘‘best estimate’’ of the value of goods

and services being procured.

GAO proposes to remove the

substantive content of paragraph (d) of

§ 21.5 addressing procurements

protested to the General Services

Administration Board of Contract

Appeals, see sec. 5101 of the National

Defense Authorization Act for Fiscal

Year 1996, and proposes to replace the

substantive content with a new

dismissal ground regarding the violation

of sec. 27 of the Office of Federal

Procurement Policy (OFPP) Act, 41

U.S.C. 423. Specifically, as proposed,

§ 21.5(d) provides that for any Federal

procurement, GAO will not review an

alleged violation of subsections (a), (b),

(c), and (d) of sec. 27 of the OFPP Act,

as amended by sec. 4304 of the National

Defense Authorization Act for Fiscal

Year 1996, if the protester failed to

report to the Federal agency responsible

for the procurement the information the

protester believes constitutes evidence

of the offense within 14 days after the

protester first discovered the possible

violation.

Comments

Comments concerning the proposed

rule should reference file number B–

259187.2. Comments may be filed by

hand delivery or mail at the address in

the address line, or by facsimile

transmission at 202–512–9749.

List of Subjects in 4 CFR Part 21

Administrative practice and

procedure, Bid protest regulations,

Government contracts.

For the reasons set out in the

preamble, Title 4, Chapter I, Subchapter

B, of the Code of Federal Regulations is

proposed to be amended to read as

follows:

1. Part 21 is revised to read as follows:

PART 21—BID PROTEST

REGULATIONS

Sec.

21.0 Definitions.

21.1 Filing a protest.

21.2 Time for filing.

21.3 Notice of protest, submission of agency

report, and time for filing of comments

on report.

21.4 Protective orders.

21.5 Protest issues not for consideration.

21.6 Withholding of award and suspension

of contract performance.

21.7 Hearings.

21.8 Remedies.
Federal Register / Vol. 61, No. 85 / Wednesday, May 1, 1996 / Proposed Rules 19207

21.9 Time for decision by GAO.

21.10 Express options, flexible alternative

procedures, accelerated schedules,

summary decisions, and status

conferences.

21.11 Effect of judicial proceedings.

21.12 Distribution of decisions.

21.13 Nonstatutory protests.

21.14 Request for reconsideration.

Authority: 31 U.S.C. 3551–3556.

§ 21.0 Definitions.

(a) Interested party means an actual or

prospective bidder or offeror whose

direct economic interest would be

affected by the award of a contract or by

the failure to award a contract.

(b) Intervenor means an awardee if the

award has been made or, if no award

has been made, all bidders or offerors

who appear to have a substantial

prospect of receiving an award if the

protest is denied.

(c) Federal agency means any

executive department or independent

establishment in the executive branch,

including any wholly owned

government corporation, and any

establishment in the legislative or

judicial branch, except the Senate, the

House of Representatives, and the

Architect of the Capitol and any

activities under his direction.

(d) Contracting agency means a

Federal agency which has awarded or

proposes to award a contract under a

protested procurement.

(e) Days are calendar days. In

computing any period of time described

in Subchapter V, Chapter 35 of Title 31,

United States Code, including those

described in this part, the day from

which the period begins to run is not

counted, and when the last day of the

period is a Saturday, Sunday, or Federal

holiday, the period extends to the next

day that is not a Saturday, Sunday, or

Federal holiday. Similarly, when the

General Accounting Office (GAO), or

another Federal agency where a

submission is due, is closed for all or

part of the last day, the period extends

to the next day on which the agency is

open.

(f) Adverse agency action is any

action or inaction by a contracting

agency which is prejudicial to the

position taken in a protest filed with the

agency, including a decision on the

merits of a protest; the opening of bids

or receipt of proposals, the award of a

contract, or the rejection of a bid despite

a pending protest; or contracting agency

acquiescence in continued and

substantial contract performance.

(g) A document is filed on a particular

day when it is received by GAO by 5:30

p.m., eastern time, on that day. A

document may be filed by hand

delivery, mail, or commercial carrier;

parties wishing to file a document by

facsimile transmission or other

electronic means must ensure that the

necessary equipment is operational at

GAO’s Procurement Law Control Group.

§ 21.1 Filing a protest.

(a) An interested party may protest a

solicitation or other request by a Federal

agency for offers for a contract for the

procurement of property or services; the

cancellation of such a solicitation or

other request; an award or proposed

award of such a contract; and a

termination of such a contract, if the

protest alleges that the termination was

based on improprieties in the award of

the contract.

(b) Protests must be in writing and

addressed as follows: General Counsel,

General Accounting Office, 441 G Street,

NW., Washington, DC 20548, Attention:

Procurement Law Control Group.

(c) A protest filed with GAO shall:

(1) Include the name, address, and

telephone and facsimile numbers of the

protester,

(2) Be signed by the protester or its

representative,

(3) Identify the contracting agency

and the solicitation and/or contract

number,

(4) Set forth a detailed statement of

the legal and factual grounds of protest

including copies of relevant documents,

(5) Set forth all information

establishing that the protester is an

interested party for the purpose of filing

a protest,

(6) Set forth all information

establishing the timeliness of the

protest,

(7) Specifically request a ruling by the

Comptroller General of the United

States, and

(8) State the form of relief requested.

(d) In addition, a protest filed with

GAO may:

(1) Request a protective order,

(2) Request specific documents,

explaining the relevancy of the

documents to the protest grounds, and

(3) Request a hearing, explaining the

reason that a hearing is needed to

resolve the protest.

(e) The protester shall furnish a

complete copy of the protest, including

all attachments, to the individual or

location designated by the contracting

agency in the solicitation for receipt of

protests, or if there is no designation, to

the contracting officer. The designated

individual or location (or, if applicable,

the contracting officer) must receive a

complete copy of the protest and all

attachments no later than 1 day after the

protest is filed with GAO. The protest

document must indicate that a complete

copy of the protest and all attachments

are being furnished within 1 day to the

appropriate individual or location.

(f) No formal briefs or other technical

forms of pleading or motion are

required. Protest submissions should be

concise and logically arranged, and

should clearly state legally sufficient

grounds of protest. Protests of different

procurements should be separately

filed.

(g) Unless precluded by law, GAO

will not withhold material submitted by

a protester from any party outside the

government. If the protester believes

that the protest contains information

which should be withheld, a statement

advising of this fact must be on the front

page of the submission. This

information must be identified wherever

it appears, and the protester must file,

within 1 day after the filing of its protest

with GAO, a redacted copy of the

protest which omits the information.

(h) Parties who intend to file

documents containing classified

information should notify GAO in

advance to obtain advice regarding

procedures for filing and handling the

information.

(i) A protest may be dismissed for

failure to comply with any of the

requirements of this section, except for

the items in paragraph (d) of this

section. In addition, a protest shall not

be dismissed for failure to comply with

paragraph (e) of this section where the

contracting officer has actual knowledge

of the basis of protest, or the agency, in

the preparation of its report, was not

prejudiced by the protester’s

noncompliance.

§ 21.2 Time for filing.

(a)(1) Protests based upon alleged

improprieties in a solicitation which are

apparent prior to bid opening or the

time set for receipt of initial proposals

shall be filed prior to bid opening or the

time set for receipt of initial proposals.

In procurements where proposals are

requested, alleged improprieties which

do not exist in the initial solicitation but

which are subsequently incorporated

into the solicitation must be protested

not later than the next closing time for

receipt of proposals following the

incorporation.

(2) Except for protests covered by

paragraph (a)(1) of this section, protests

filed by a party that has received a

debriefing required by law shall be filed

not later than 5 days after the debriefing,

and in all other cases, not later than 10

days after the basis of protest is known

or should have been known, whichever

is earlier.

(3) If a timely agency-level protest was

previously filed, any subsequent protest

to GAO filed within 5 days of actual or
19208 Federal Register / Vol. 61, No. 85 / Wednesday, May 1, 1996 / Proposed Rules

constructive knowledge of initial

adverse agency action will be

considered, provided the agency-level

protest was filed in accordance with

paragraphs (a)(1) and (a)(2) of this

section, unless the contracting agency

imposes a more stringent time for filing,

in which case the agency’s time for

filing will control. In cases where an

alleged impropriety in a solicitation is

timely protested to a contracting agency,

any subsequent protest to GAO will be

considered timely if filed within the 5-

day period provided by this paragraph,

even if filed after bid opening or the

closing time for receipt of proposals.

(4) Protests which supplement or

amend a previously filed protest shall

be filed not later than 5 days after the

basis of protest is known or should have

been known, whichever is earlier.

(b) Protests untimely on their face

may be dismissed. A protester shall

include in its protest all information

establishing the timeliness of the

protest; a protester will not be permitted

to introduce for the first time in a

request for reconsideration information

necessary to establish that the protest

was timely.

(c) GAO, for good cause shown, or

where it determines that a protest raises

issues significant to the procurement

system, may consider an untimely

protest.

§ 21.3 Notice of protest, submission of

agency report, and time for filing of

comments on report.

(a) GAO shall notify the contracting

agency by telephone within 1 day after

the filing of a protest, and, unless the

protest is dismissed under this part,

shall promptly send a written

confirmation to the contracting agency

and an acknowledgment to the

protester. The contracting agency shall

immediately give notice of the protest to

the contractor if award has been made

or, if no award has been made, to all

bidders or offerors who appear to have

a reasonable prospect of receiving an

award. The contracting agency shall

furnish copies of the protest

submissions to those parties, except

where disclosure of the information is

prohibited by law, with instructions to

communicate further directly with

GAO. All parties shall furnish copies of

all protest communications to the

contracting agency and to other

participating parties. All protest

communications shall be sent by means

reasonably calculated to effect

expeditious delivery.

(b) A contracting agency or intervenor

which believes that the protest or

specific protest allegations should be

dismissed before submission of an

agency report should file a request for

dismissal as soon as practicable.

(c) The contracting agency shall file a

report on the protest with GAO within

30 days after the telephone notice of the

protest from GAO. The report provided

to the parties need not contain

documents which the agency has

previously furnished or otherwise made

available to the parties in response to

the protest. Five 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 GAO a list of those

documents, or portions of documents,

which the agency has released to the

protester or intends to produce in its

report, and the documents which the

agency intends to withhold from the

protester and the reason for the

proposed withholding. Any objection to

the scope of the agency’s proposed

disclosure or nondisclosure of

documents must be filed with GAO and

the other parties within 1 day of receipt

of this list.

(d) The report shall include the

contracting officer’s statement of the

relevant facts, including a best estimate

of the acquisition’s value, a

memorandum of law, and a list and a

copy of all relevant documents, or

portions of documents, not previously

produced, including, as appropriate: the

protest; the bid or proposal submitted

by the protester; the bid or proposal of

the firm which is being considered for

award, or whose bid or proposal is being

protested; all evaluation documents; the

solicitation, including the

specifications; the abstract of bids or

offers; and any other relevant

documents. In appropriate cases, the

contracting agency may request that the

protester produce relevant documents,

or portions of documents, that are not in

the agency’s possession.

(e) Subject to any protective order

issued in the protest pursuant to § 21.4,

the contracting agency shall

simultaneously furnish a copy of the

report to the protester and any

intervenors. The copy of the report filed

with GAO shall list the parties who

have been furnished copies of the

report. Where a protester does not have

counsel admitted to a protective order

and documents are withheld from the

protester in accordance with this part,

the agency shall provide documents

adequate to inform the protester of the

basis of the agency’s position.

(f) The contracting agency may

request an extension of time for the

submission of the agency report.

Extensions will be granted on a case-bycase basis.

(g) The protester may request

additional documents when their

existence or relevance first becomes

evident. Except when authorized by

GAO, any request for additional

documents must be filed with GAO and

the contracting agency not later than 2

days after their existence or relevance is

known or should have been known,

whichever is earlier. The contracting

agency shall provide the requested

documents, or portions of documents,

and a list to GAO and the other parties

within 2 days or explain why it is not

required to produce the documents.

(h) Upon the request of a party, GAO

will decide whether the contracting

agency must provide any withheld

documents, or portions of documents,

and whether this should be done under

a protective order. When withheld

documents are provided, the protester’s

comments on the agency report shall be

filed within the original comment filing

period unless GAO determines that an

extension is appropriate.

(i) Comments on the agency report

shall be filed with GAO within 10 days

after receipt of the report, with a copy

provided to the contracting agency and

other participating parties. The protest

shall be dismissed unless the protester

files comments or a written statement

requesting that the case be decided on

the existing record, or requests an

extension of time within the 10-day

period. Unless otherwise advised by the

protester, GAO will assume the

protester received the agency report by

the due date specified in the

acknowledgment of protest furnished by

GAO. Upon a showing that the specific

circumstances of a protest require a

period longer than 10 days for the

submission of comments, GAO will set

a new date for the submission of

comments. Extensions will be granted

on a case-by-case basis.

(j) GAO may request or permit the

submission of additional statements by

the parties and by other parties not

participating in the protest as may be

necessary for the fair resolution of the

protest. The agency and other

participating parties shall not submit

any additional statements unless the

statements are specifically requested by

GAO or submitted after permission has

been granted by GAO.

§ 21.4 Protective orders.

(a) At the request of a party or on its

own initiative, GAO may issue a

protective order controlling the

treatment of protected information.

Such information may include

proprietary, confidential, or sourceselection-sensitive material, as well as

other information the release of which
Federal Register / Vol. 61, No. 85 / Wednesday, May 1, 1996 / Proposed Rules 19209

could result in a competitive advantage

to one or more firms. The protective

order shall establish procedures for

application for access to protected

information, identification and

safeguarding of that information, and

submission of redacted copies of

documents omitting protected

information. Because a protective order

serves to facilitate the pursuit of a

protest by a protester through counsel,

it is the responsibility of protester’s

counsel to request that a protective

order be issued and to submit timely

applications for admission under that

order.

(b) If no protective order has been

issued, the agency may withhold from

the parties those portions of its report

which would ordinarily be subject to a

protective order. GAO will review in

camera all information not released to

the parties.

(c) After a protective order has been

issued, counsel or consultants retained

by counsel appearing on behalf of a

party may apply for admission under

the order by submitting an application

to GAO, with copies furnished

simultaneously to all parties. The

application shall establish that the

applicant is not involved in competitive

decision-making for any firm that could

gain a competitive advantage from

access to the protected information and

that there will be no significant risk of

inadvertent disclosure of protected

information. Objections to an

applicant’s admission shall be raised

within 2 days after receipt of the

application, although GAO may

consider objections raised after that

time.

(d) Any violation of the terms of a

protective order may result in the

imposition of such sanctions as GAO

deems appropriate, including referral to

appropriate bar associations or other

disciplinary bodies and restricting the

individual’s practice before GAO.

§ 21.5 Protest issues not for

consideration.

GAO shall summarily dismiss a

protest or specific protest allegations

that do not state a valid basis for protest,

are untimely (unless considered

pursuant to § 21.2(c)), or are not

properly before GAO. A protest or

specific protest allegations may be

dismissed any time sufficient

information is obtained by GAO

warranting dismissal. Where an entire

protest is dismissed, no agency report

shall be filed; where specific protest

allegations are dismissed, an agency

report shall be filed on the remaining

allegations. Among the protest bases

which shall be dismissed are the

following:

(a) Contract administration. The

administration of an existing contract is

within the discretion of the contracting

agency. Disputes between a contractor

and the agency are resolved pursuant to

the disputes clause of the contract and

the Contract Disputes Act of 1978. 41

U.S.C. 601–613.

(b) Small Business Administration

issues.—(1) Small business size

standards and standard industrial

classification. Challenges of established

size standards or the size status of

particular firms, and challenges of the

selected standard industrial

classification may be reviewed solely by

the Small Business Administration. 15

U.S.C. 637(b)(6).

(2) Small Business Certificate of

Competency Program. Any referral

made to the Small Business

Administration pursuant to sec. 8(b)(7)

of the Small Business Act, or any

issuance of, or refusal to issue, a

certificate of competency under that

section will not be reviewed by GAO

absent a showing of possible bad faith

on the part of government officials or a

failure to consider vital information

bearing on the firm’s responsibility. 15

U.S.C. 637(b)(7).

(3) Procurements under sec. 8(a) of

the Small Business Act. Under that

section, since contracts are entered into

with the Small Business Administration

at the contracting officer’s discretion

and on such terms as are agreed upon

by the procuring agency and the Small

Business Administration, the decision

to place or not to place a procurement

under the 8(a) program is not subject to

review absent a showing of possible bad

faith on the part of government officials

or that regulations may have been

violated. 15 U.S.C. 637(a).

(c) Affirmative determination of

responsibility by the contracting officer.

Because the determination that a bidder

or offeror is capable of performing a

contract is based in large measure on

subjective judgments which generally

are not readily susceptible of reasoned

review, an affirmative determination of

responsibility will not be reviewed

absent a showing of possible bad faith

on the part of government officials or

that definitive responsibility criteria in

the solicitation were not met.

(d) Procurement integrity. For any

Federal procurement, GAO will not

review an alleged violation of

subsections (a), (b), (c), or (d) of sec. 27

of the Office of Federal Procurement

Policy Act, 41 U.S.C. 423, as amended

by sec. 4304 of the National Defense

Authorization Act for Fiscal Year 1996,

Pub. L. 104–106, 110 Stat. 186, February

10, 1996, where the protester failed to

report the information it believed

constituted evidence of the offense to

the Federal agency responsible for the

procurement within 14 days after the

protester first discovered the possible

violation.

(e) Protests not filed either in GAO or

the contracting agency within the time

limits set forth in § 21.2.

(f) Protests which lack a detailed

statement of the legal and factual

grounds of protest as required by

§ 21.1(c)(4), or which fail to clearly state

legally sufficient grounds of protest as

required by § 21.1(f).

(g) Procurements by agencies other

than Federal agencies as defined by sec.

3 of the Federal Property and

Administrative Services Act of 1949, 40

U.S.C. 472. Protests of procurements or

proposed procurements by agencies

such as the U.S. Postal Service, the

Federal Deposit Insurance Corporation,

and nonappropriated fund activities are

beyond GAO’s bid protest jurisdiction

as established in 31 U.S.C. 3551–3556.

(h) Subcontract protests. GAO will

not consider a protest of the award or

proposed award of a subcontract except

where the agency awarding the prime

contract has requested in writing that

subcontract protests be decided

pursuant to § 21.13.

§ 21.6 Withholding of award and

suspension of contract performance.

Where a protest is filed with GAO, the

contracting agency may be required to

withhold award and to suspend contract

performance. The requirements for the

withholding of award and the

suspension of contract performance are

set forth in 31 U.S.C. 3553 (c) and (d).

§ 21.7 Hearings.

(a) At the request of a party or on its

own initiative, GAO may conduct a

hearing in connection with a protest.

The request shall set forth the reasons

why a hearing is needed.

(b) Prior to the hearing, GAO may

hold a pre-hearing conference to discuss

and resolve matters such as the

procedures to be followed, the issues to

be considered, and the witnesses who

will testify.

(c) Hearings generally will be

conducted as soon as practicable after

receipt by the parties of the agency

report and relevant documents.

Although hearings ordinarily will be

conducted at GAO in Washington, DC,

hearings may, at the discretion of GAO,

be conducted at other locations, or by

telephone.

(d) All parties participating in the

protest shall be invited to attend the

hearing. Others may be permitted to
19210 Federal Register / Vol. 61, No. 85 / Wednesday, May 1, 1996 / Proposed Rules

attend as observers and may participate

as allowed by GAO’s hearing official. In

order to prevent the improper disclosure

of protected information at the hearing,

GAO’s hearing official may restrict

attendance during all or part of the

proceeding.

(e) Hearings shall normally be

recorded and/or transcribed. If a

recording and/or transcript is made, any

party may obtain copies at its own

expense.

(f) If a witness whose attendance has

been requested by GAO fails to attend

the hearing or fails to answer a relevant

question, GAO may draw an inference

unfavorable to the party for whom the

witness would have testified.

(g) If a hearing is held, no separate

comments on the agency report should

be submitted unless specifically

requested by GAO. Each party shall file

with GAO, within 5 days after the

hearing was held or as specified by

GAO, a single document expressing any

comments on both the hearing and

agency report, with copies furnished to

the other parties. By the due date, if the

protester has not filed comments or a

written statement requesting that the

case be decided on the existing record,

GAO shall dismiss the protest.

(h) In post-hearing comments, the

parties should reference all testimony

and admissions in the hearing record

that they consider relevant, providing

specific citations to the testimony and

admissions referenced.

§ 21.8 Remedies.

(a) If GAO determines that a

solicitation, cancellation of a

solicitation, termination of a contract,

proposed award, or award does not

comply with statute or regulation, it

shall recommend that the contracting

agency implement any combination of

the following remedies:

(1) Refrain from exercising options

under the contract;

(2) Terminate the contract;

(3) Recompete the contract;

(4) Issue a new solicitation;

(5) Award a contract consistent with

statute and regulation; or

(6) Such other recommendation(s) as

GAO determines necessary to promote

compliance.

(b) In determining the appropriate

recommendation(s), GAO shall, except

as specified in paragraph (c) of this

section, consider all circumstances

surrounding the procurement or

proposed procurement including the

seriousness of the procurement

deficiency, the degree of prejudice to

other parties or to the integrity of the

competitive procurement system, the

good faith of the parties, the extent of

performance, the cost to the

government, the urgency of the

procurement, and the impact of the

recommendation(s) on the contracting

agency’s mission.

(c) If the head of the procuring

activity determines that performance of

the contract notwithstanding a pending

protest is in the government’s best

interest, GAO shall make its

recommendation(s) under paragraph (a)

of this section without regard to any

cost or disruption from terminating,

recompeting, or reawarding the contract.

(d) If GAO determines that a

solicitation, proposed award, or award

does not comply with statute or

regulation, it may recommend that the

contracting agency pay the protester the

costs of:

(1) Filing and pursuing the protest,

including attorneys’ fees and consultant

and expert witness fees; and

(2) Bid and proposal preparation.

(e) If the contracting agency decides to

take corrective action in response to a

protest, GAO may recommend that the

agency pay the protester the costs of

filing and pursuing the protest,

including attorneys’ fees and consultant

and expert witness fees. The protester

shall file any request that GAO

recommend that costs be paid within 15

days after being advised that the

contracting agency has decided to take

corrective action. The protester shall

furnish a copy of its request to the

contracting agency, which may file a

response within 15 days after receipt of

the request, with a copy furnished to the

protester.

(f)(1) If GAO recommends that the

contracting agency pay the protester the

costs of filing and pursuing the protest

and/or of bid or proposal preparation,

the protester and the agency shall

attempt to reach agreement on the

amount of costs. The protester shall file

its claim for costs, detailing and

certifying the time expended and costs

incurred, with the contracting agency

within 90 days after receipt of 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.

(2) The contracting agency shall issue

a decision on the claim for costs as soon

as practicable after the claim is filed. If

the protester and the contracting agency

cannot reach agreement within a

reasonable time, GAO may, upon

request of the protester, recommend the

amount of costs the agency should pay

in accordance with 31 U.S.C. 3554(c). In

such cases, GAO may also recommend

that the contracting agency pay the

protester the costs of pursuing the claim

for costs before GAO.

(3) The contracting agency shall notify

GAO within 60 days after GAO

recommends the amount of costs the

agency should pay the protester of the

action taken by the agency in response

to the recommendation.

§ 21.9 Time for decision by GAO.

(a) GAO shall issue a decision on a

protest within 100 days after it is filed.

(b) In protests where GAO uses the

express option procedures in § 21.10,

GAO shall issue a decision on a protest

within 65 days after it is filed.

(c) GAO, to the maximum extent

practicable, shall resolve a timely

supplemental protest adding one or

more new grounds to an existing

protest, or an amended protest, within

the time limit established in paragraph

(a) of this section for decision on the

initial protest. If a supplemental or an

amended protest cannot be resolved

within that time limit, GAO may resolve

the supplemental or amended protest

using the express option procedures in

§ 21.10.

§ 21.10 Express options, flexible

alternative procedures, accelerated

schedules, summary decisions, and status

conferences.

(a) At the request of a party or on its

own initiative, GAO may decide a

protest using an express option.

(b) The express option will be

adopted at the discretion of GAO and

only in those cases suitable for

resolution within 65 days.

(c) Requests for the express option

shall be in writing and received in GAO

no later than 5 days after the protest or

supplemental protest is filed. GAO will

promptly notify the parties whether the

case will be handled using the express

option.

(d) When the express option is used,

the following schedule applies instead

of those deadlines in § 21.3 and § 21.7:

(1) The contracting agency shall file a

complete report with GAO and the

parties within 20 days after it receives

notice from GAO that the express option

will be used.

(2) Comments on the agency report

shall be filed with GAO and the other

parties within 5 days after receipt of the

report.

(3) If a hearing is held, no separate

comments on the agency report under

paragraph (d)(2) of this section should

be submitted unless specifically

requested by GAO. Consolidated

comments on the agency report and

hearing shall be filed within 5 days after

the hearing was held or as specified by

GAO.
Federal Register / Vol. 61, No. 85 / Wednesday, May 1, 1996 / Proposed Rules 19211

(4) Where circumstances demonstrate

that a case is no longer suitable for

resolution using the express option,

GAO shall establish a new schedule for

submissions by the parties.

(e) GAO may use flexible alternative

procedures to promptly and fairly

resolve a protest, including establishing

an accelerated schedule and/or issuing

a summary decision.

(f) GAO may conduct status

conferences by telephone or in person

with all parties participating in a protest

to promote the expeditious development

and resolution of the protest.

§ 21.11 Effect of judicial proceedings.

(a) A protester must immediately

advise GAO of any court proceeding

which involves the subject matter of a

pending protest and must file with GAO

copies of all relevant court documents.

(b) GAO will dismiss any protest

where the matter involved is the subject

of litigation before a court of competent

jurisdiction, or where the matter

involved has been decided on the merits

by a court of competent jurisdiction.

GAO may, at the request of a court,

issue an advisory opinion on a bid

protest issue that is before the court. In

these cases, unless a different schedule

is established, the times provided in this

part for filing the agency report

(§ 21.3(c)), filing comments on the

report (§ 21.3(i)), holding a hearing and

filing comments (§ 21.7), and issuing a

decision (§ 21.9) shall apply.

§ 21.12 Distribution of decisions.

(a) Unless it contains protected

information, a copy of a decision shall

be provided to the protester, any

intervenors, the head of the contracting

activity responsible for the protested

procurement, and the senior

procurement executive of each Federal

agency involved; a copy shall also be

made available to the public. A copy of

a decision containing protected

information shall be provided only to

the contracting agency and to

individuals admitted to any protective

order issued in the protest. A public

version omitting the protected

information shall be prepared wherever

possible.

(b) Decisions are available from GAO

by electronic means.

§ 21.13 Nonstatutory protests.

(a) GAO will consider protests

concerning awards of subcontracts by or

for a Federal agency, sales by a Federal

agency, or procurements by agencies of

the government other than Federal

agencies as defined in § 21.0(c) if the

agency involved has agreed in writing to

have protests decided by GAO.

(b) The provisions of this part shall

apply to nonstatutory protests except for

the provision of § 21.8(d) pertaining to

recommendations for the payment of

costs. The provision for the withholding

of award and the suspension of contract

performance, 31 U.S.C. 3553 (c) and (d),

also does not apply to nonstatutory

protests.

§ 21.14 Request for reconsideration.

(a) The protester, any intervenor, and

any Federal agency involved in the

protest may request reconsideration of a

bid protest decision. GAO will not

consider a request for reconsideration

that does not contain a detailed

statement of the factual and legal

grounds upon which reversal or

modification is deemed warranted,

specifying any errors of law made or

information not previously considered.

(b) A request for reconsideration of a

bid protest decision shall be filed, with

copies to the parties who participated in

the protest, not later than 10 days after

the basis for reconsideration is known

or should have been known, whichever

is earlier.

(c) GAO will summarily dismiss any

request for reconsideration that fails to

state a valid basis for reconsideration or

is untimely. The filing of a request for

reconsideration does not require the

withholding of award and the

suspension of contract performance

under 31 U.S.C. 3553 (c) and (d).

Robert P. Murphy,

General Counsel.

[FR Doc. 96–10831 Filed 4–30–96; 8:45 am]

BILLING CODE 1610–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory

Commission

18 CFR Parts 161, 250 and 284

[Docket No. RM96–1–000]

Standards For Business Practices Of

Interstate Natural Gas Pipelines

April 24, 1996.

AGENCY: Federal Energy Regulatory

Commission, Energy.

ACTION: Notice of Proposed Rulemaking

and Request for Office of Management

and Budget Emergency Processing of

Submission of Collection of

Information.

SUMMARY: The Federal Energy

Regulatory Commission is issuing a

notice of proposed rulemaking to revise

the Commission’s regulations to require

interstate natural gas pipelines to follow

standardized procedures for critical

business practices—nominations;

allocations, balancing, and

measurement; invoicing; and capacity

release—and standardized mechanisms

for electronic communication between

the pipelines and those with whom they

do business. The proposed regulations

incorporate by reference the proposed

standards submitted by the Gas Industry

Standards Board (GISB) in response to

the Commission’s October 25, 1995

Advanced Notice of Proposed

Rulemaking (ANOPR). 60 FR 55504

(Nov. 1, 1995).

GISB and others in the natural gas

industry have requested expedited

processing of this proposed rule.

Accordingly, pursuant to 5 CFR

1320.13, the Commission is providing

notice of its request to the Office of

Management and Budget (OMB) for

emergency processing of this proposed

collection of information by May 24,

1996.

DATES: Comments on the proposed rule

are due May 24, 1996. Comments

should be filed with the Office of the

Secretary and should refer to Docket No.

RM96–1–000.

Because the Commission has

requested OMB to process the proposed

collection of information on an

emergency basis, comments on the

proposed collection of information

should be filed with OMB, attention

Desk Officer FERC, as soon as possible.

ADDRESSES:

Federal Energy Regulatory Commission,

888 First Street, NE., Washington DC,

20426

Office of Management and Budget,

Room 3019 NEOB, Washington, D.C.

20503, or via the Internet at

hillierlt@a1.eop.gov.

FOR FURTHER INFORMATION CONTACT:

Michael Goldenberg, Office of the

General Counsel, Federal Energy

Regulatory Commission, 888 First

Street, NE., Washington, DC

20426,(202) 208–2294

Marvin Rosenberg, Office of Economic

Policy, Federal Energy Regulatory

Commission, 888 First Street, NE.,

Washington, DC 20426. (202) 208–

1283

SUPPLEMENTARY INFORMATION: In

addition to publishing the full text of

this document in the Federal Register,

the Commission provides all interested

persons an opportunity to inspect or

copy the contents of this document

during normal business hours in Room

2A, 888 First Street, N.E., Washington

D.C. 20426.

The Commission Issuance Posting

System (CIPS), an electronic bulletin