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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: February 25, 2002

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

SOURCE: Federal Register, February 25, 2002, Vol. 67, No. 37, page 8485

AGENCIES: GAO

ACTION: Advance Notice of Proposed Rulemaking (ANPM)

SYNOPSIS: GAO is announcing that it is reviewing and will be revising its protest procedures because developments since 1996, when those regulations were last revised, "warrant updating the regulations to reflect current practice."

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. 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.

DATES: Comments must be submitted on or before April 1, 2002.

ADDRESSES: Address comments to John M. Melody, Assistant General Counsel, General Accounting Office, 441 G Street, NW, Washington, DC 20548; by e-mail to BidProtestRegs@gao.gov; or by fax at 202-512-9749.

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

SUPPLEMENTAL INFORMATION: Revisions to GAO's protest procedures are being considered in several areas to reflect current practice and to take into account legal developments that have occurred since 1996, the last time the regulations were extensively revision. Among the changes being considered are the following:

• Alternate dispute resolution (ADR) is utilized regularly by GAO as a means of resolving bid protests in an efficient, expeditious manner, but there is no language in the regulations addressing it. GAO is considering adding language to address ADR.
  
  
• Paragraph (g) of Section 21.0, Definitions, states that a document may be filed by hand delivery, mail, or commercial carrier. It goes on to state that "parties wishing to file by facsimile transmission or other electronic means must ensure that the necessary equipment is operational at GAO's Procurement Law Group." GAO believes this paragraph should clarify that filing by facsimile transmission is permitted (and is, in fact, commonplace), and that electronic filing (that is, e-mailing) of protest documents is permitted under certain circumstances.
  
  
• Paragraph (a)(2) of Section 21.2, Time for Filing, states, "with respect to any protest basis which is known or should have been known either before or as a result of the debriefing, the initial protest shall not be filed prior to the debriefing date offered to the protester." This rule has had the unintended result of leading some protesters to delay, until after a debriefing, filing a protest involving a matter that arose during the procurement prior to award (for example, an alleged Procurement Integrity Act violation). "As it has long been GAO's view that it is beneficial to the procurement system to have alleged procurement deficiencies resolved, where possible, at the time the alleged deficiency arises, GAO is considering revising Section 21.2(a)(2) to provide guidance in this area."
  
  
• Paragraph (c) of Section 21.5, Protest Issues Not For Consideration, states that GAO will consider affirmative determinations of responsibility only upon "a showing of bad faith on the part of government officials or that definitive responsibility criteria in the solicitation were not met." In January 2001, in the Court of Appeals for the Federal Circuit decision in Impresa Construzioni Geom. Domenico Garufi v. United States (238 F.3d 1324), the court held that affirmative determinations of responsibility by contracting officers are reviewable by the Court of Federal Claims under the "arbitrary and capricious" standard applicable under the Administrative Procedures Act. In light of the court's decision, GAO is considering whether to revise its regulations in this area.

GAO welcomes comments on these considerations, as well as suggestions for changes to other areas of the regulations that may enhance the efficiency and overall effectiveness of the bid protest process.

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

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