II 

108TH CONGRESS 

2D SESSION S. 2438

To amend title 31, United States Code, to provide Federal Government 

employees with bid protest rights in actions under Office of Management 

and Budget Circular A–76, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 19, 2004

Ms. COLLINS (for herself, Mr. LEVIN, Mr. CHAFEE, Mr. LIEBERMAN, Mr. 

AKAKA, Mr. SARBANES, and Ms. MIKULSKI) introduced the following bill; 

which was read twice and referred to the Committee on Governmental Affairs 

A BILL

To amend title 31, United States Code, to provide Federal 

Government employees with bid protest rights in actions 

under Office of Management and Budget Circular

A–76, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 
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1 SECTION 1. BID PROTESTS BY FEDERAL EMPLOYEES IN AC2 TIONS UNDER OFFICE OF MANAGEMENT AND 

3 BUDGET CIRCULAR A–76. 

4 (a) ELIGIBILITY TO PROTEST.—(1) Section 3551(2) 

5 of title 31, United States Code, is amended to read as 

6 follows: 

7 ‘‘(2) The term ‘interested party’—

8 ‘‘(A) with respect to a contract or a solici9 tation or other request for offers described in 

10 paragraph (1), means an actual or prospective 

11 bidder or offeror whose direct economic interest 

12 would be affected by the award of the contract 

13 or by failure to award the contract; and 

14 ‘‘(B) with respect to a public-private com15 petition conducted under Office of Management 

16 and Budget Circular A–76 regarding perform17 ance of an activity or function of a Federal 

18 agency, includes—

19 ‘‘(i) any official who submitted the 

20 agency tender in such competition; and 

21 ‘‘(ii) any one person who, for the pur22 pose of representing them in a protest 

23 under this subchapter that relates to such 

24 competition, has been designated as their 

25 agent by a majority of the employees of 

26 such Federal agency who are engaged in 
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1 the performance of such activity or func2 tion.’’. 

3 (2)(A) Subchapter V of chapter 35 of such title is 

4 amended by adding at the end the following new section: 

5 ‘‘§ 3557. Expedited action in protests for public-pri6 vate competitions 

7 ‘‘For protests in cases of public-private competitions 

8 conducted under Office of Management and Budget Cir9 cular A–76 regarding performance of an activity or func10 tion of Federal agencies, the Comptroller General shall ad11 minister the provisions of this subchapter in a manner 

12 best suited for expediting final resolution of such protests 

13 and final action in such competitions.’’. 

14 (B) The chapter analysis at the beginning of such 

15 chapter is amended by inserting after the item relating 

16 to section 3556 the following new item:

‘‘3557. Expedited action in protests for public-private competitions.’’.

17 (b) RIGHT TO INTERVENE IN CIVIL ACTION.—Sec18 tion 1491(b) of title 28, United States Code, is amended 

19 by adding at the end the following new paragraph: 

20 ‘‘(5) If a private sector interested party commences 

21 an action described in paragraph (1) in the case of a pub22 lic-private competition conducted under Office of Manage23 ment and Budget Circular A–76 regarding performance 

24 of an activity or function of a Federal agency, then an 
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1 official or person described in section 3551(2)(B) of title 

2 31 shall be entitled to intervene in that action.’’. 

3 (c) APPLICABILITY.—Subparagraph (B) of section 

4 3551(2) of title 31, United States Code (as added by sub5 section (a)), and paragraph (5) of section 1491(b) of title 

6 28, United States Code (as added by subsection (b)), shall 

7 apply to—

8 (1) protests and civil actions that challenge 

9 final selections of sources of performance of an ac10 tivity or function of a Federal agency that are made 

11 pursuant to studies initiated under Office of Man12 agement and Budget Circular A–76 on or after Jan13 uary 1, 2004; and 

14 (2) any other protests and civil actions that re15 late to public-private competitions initiated under 

16 Office of Management and Budget Circular A–76 on 

17 or after the date of the enactment of this Act.

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