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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: December 31, 2002

SUBJECT: General Accounting Office (GAO); Revision of Protest Regulations

SOURCE: Federal Register, December 31, 2002, Vol. 67, No. 251, page 79833

AGENCIES: General Accounting Office (GAO)

ACTION: Final Rule

SYNOPSIS: GAO is adopting as final, with changes, the October 1, 2002, proposed revisions to its bid protest regulations to conform to current practice and to improve their overall efficiency and effectiveness.

EDITOR'S NOTE: GAO's protest regulations, which are in Title 4 of the Code of Federal Regulations (CFR), Part 21, govern offeror protests filed with the GAO against alleged improprieties in the government's conduct of acquisitions (GAO's 1996 protest regulations are available at http://www.gao.gov/special.pubs/og96024.htm). Federal Acquisition Regulation (FAR) 33.104, Protests to the GAO, provides an overview of the protest process and procedures. However, if there is a conflict between GAO's regulations and the FAR, GAO's regulations govern.

For more on the proposed rule, see the October 1, 2002, FEDERAL CONTRACTS DISPATCH "General Accounting Office; Review and Revision of Protest Regulations."

For more on the advance notice of proposed rulemaking (ANPR), see the February 25, 2002, FEDERAL CONTRACTS DISPATCH "General Accounting Office; Review and Revision of Protest Regulations."

EFFECTIVE DATE: This final rule applies to protests on or after January 1, 2003.

FOR FURTHER INFORMATION CONTACT: John M. Melody (Assistant General Counsel) or David A. Ashen (Deputy Assistant General Counsel), at 202-512-9732.

SUPPLEMENTAL INFORMATION: GAO last revised its protest regulations in 1996. Since then, there have been legal developments and changes in practice: alternative dispute resolution has grown in use, electronic filing has become a reality, and the Court of Appeals for the Federal Circuit and the Court of Federal Claims have issued significant decisions regarding review of affirmative responsibility determinations. On February 25, 2002, GAO published an ANPR requesting comments on these topics and suggestions for changes to other areas of the regulations. Based on comments submitted in response to the ANPR, GAO published a proposed rule on October 1, 2002. The most significant changes proposed were:

• To revise paragraph (g) of Section 21.0, Definitions, to clarify that protests and other documents may be filed by facsimile or by electronic means (such as e-mail, subject to restrictions when a protective order is in effect), and that "in all cases, the filing party is responsible for ensuring timely receipt at GAO."
  
  
• To revise paragraph (b)(2) of Section 21.5, Protest Issues Not for Consideration, which addresses protests pertaining to the Small Business Administration's (SBA) Certificate of Competency program, to add that GAO will review protests "that present allegations that the SBA failed to follow its own published regulations or failed to consider vital information bearing on the firm's responsibility due to the manner in which the information was presented to or withheld from the SBA by the procuring agency."
  
  
• To revise paragraph (c) of Section 21.5, which addresses protests regarding a contracting officer's affirmative determination of responsibility, to expand its review to include protests "that identify evidence raising serious concerns that, in reaching a particular responsibility determination, the contracting officer unreasonably failed to consider available relevant information or otherwise violated statute or regulation." This proposed change was in response to the Court of Appeals for the Federal Circuit decision in Impresa Construzioni Geom. Domenico Garufi v. United States (238 F.3d 1324), in which the court decided that affirmative determinations of responsibility are subject to review by the Court of Federal Claims under the "arbitrary and capricious" standard applicable under the Administrative Procedure Act.

GAO received comments from three federal agencies, two law firms, and a bar association. In response to several of the comments, GAO will include clarification or elaboration in "Bid Protests at GAO: A Descriptive Guide." Other comments convinced GAO to make two changes to the final version of the regulations:

• A new paragraph (j) is added to Section 21.5: "Competitive Range. GAO will not consider protests asserting that the protester's proposal should not have been included or kept in the competitive range." This conforms the regulations to GAO's decision in Champion Business Services, Inc., B-290556, June 25, 2002, in which GAO stated that protests challenging the inclusion of the protester's own proposal in the competitive range fall outside its protest jurisdiction.
  
  
• Paragraph (e) of Section 21.10, Express Options, Flexible Alternative Procedures, Accelerated Schedules, Summary Decisions, and Status Conferences, is revised to add "on its own initiative or upon request by the parties" to "GAO, on its own initiative or upon request by the parties, may use flexible alternative procedures to promptly and fairly resolve a protest, including alternative dispute resolution, establishing an accelerated schedule, and/or issuing a summary decision." (EDITOR'S NOTE: The proposed rule added "alternative dispute resolution" to the paragraph. "Alternative dispute resolution" remains in the final rule.)

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

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