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TITLE 31 >
SUBTITLE III > CHAPTER 35 > SUBCHAPTER V
SUBCHAPTER
V—PROCUREMENT PROTEST SYSTEM
§ 3551. Definitions
§ 3552. Protests by
interested parties concerning procurement actions
§ 3553. Review of
protests; effect on contracts pending decision
§ 3554. Decisions on
protests
§ 3555. Regulations;
authority of Comptroller General to verify assertions
§ 3556. Nonexclusivity of remedies; matters included in agency
record
§
3557. Expedited action in protests for public-private competitions
§ 3551. Definitions
In this subchapter:
(1) The term “protest” means a written objection by an interested party to any of the following:
(A) A solicitation or other request by a Federal agency for offers for a contract for the procurement of property or services.
(B) The cancellation of such a solicitation or other request.
(C) An award or proposed award of such a contract.
(D) A termination or cancellation of an award of such a contract, if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract.
(2) The term `interested party'--
(A) with respect to a
contract or a solicitation or other request for offers described in paragraph
(1), means an actual or prospective bidder or offeror
whose direct economic interest would be affected by the award of the contract
or by failure to award the contract; and
(B) with
respect to a public-private competition conducted under Office of Management
and Budget Circular A-76 regarding performance of an activity or function of a
Federal agency, includes--
(i)
any official who submitted the agency tender in such
competition; and
(ii) any one person who, for
the purpose of representing them in a protest under this subchapter that
relates to such competition, has been designated as their agent by a majority
of the employees of such Federal agency who are engaged in the performance of
such activity or function.
(3) The term “Federal agency” has the meaning given such term by section 3 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 472).
§ 3552. Protests by
interested parties concerning procurement actions
(a) A protest concerning an alleged violation of a procurement statute or regulation shall be decided by the Comptroller General if filed in accordance with this subchapter.
§ 3553. Review of
protests; effect on contracts pending decision
(a) Under procedures prescribed under section 3555 of this title, the Comptroller General shall decide a protest submitted to the Comptroller General by an interested party.
(b)
(1) Within one day after the receipt of a protest, the Comptroller General shall notify the Federal agency involved of the protest.
(2) Except as provided in paragraph (3) of this subsection, a Federal agency receiving a notice of a protested procurement under paragraph (1) of this subsection shall submit to the Comptroller General a complete report (including all relevant documents) on the protested procurement—
(A) within 30 days after the date of the agency’s receipt of that notice;
(B) if the Comptroller General, upon a showing by the Federal agency, determines (and states the reasons in writing) that the specific circumstances of the protest require a longer period, within the longer period determined by the Comptroller General; or
(C) in a case determined by the Comptroller General to be suitable for the express option under section 3554 (a)(2) of this title, within 20 days after the date of the Federal agency’s receipt of that determination.
(3) A Federal agency need not submit a report to the Comptroller General pursuant to paragraph (2) of this subsection if the agency is sooner notified by the Comptroller General that the protest concerned has been dismissed under section 3554 (a)(4) of this title.
(c)
(1) Except as provided in paragraph (2) of this subsection, a contract may not be awarded in any procurement after the Federal agency has received notice of a protest with respect to such procurement from the Comptroller General and while the protest is pending.
(2) The head of the procuring activity responsible for award of a contract may authorize the award of the contract (notwithstanding a protest of which the Federal agency has notice under this section)—
(A) upon a written finding that urgent and compelling circumstances which significantly affect interests of the United States will not permit waiting for the decision of the Comptroller General under this subchapter; and
(B) after the Comptroller General is advised of that finding.
(3) A finding may not be made under paragraph (2)(A) of this subsection unless the award of the contract is otherwise likely to occur within 30 days after the making of such finding.
(d)
(1) A contractor awarded a Federal agency contract may, during the period described in paragraph (4), begin performance of the contract and engage in any related activities that result in obligations being incurred by the United States under the contract unless the contracting officer responsible for the award of the contract withholds authorization to proceed with performance of the contract.
(2) The contracting officer may withhold an authorization to proceed with performance of the contract during the period described in paragraph (4) if the contracting officer determines in writing that—
(A) a protest is likely to be filed; and
(B) the
immediate performance of the contract is not in the best interests of the
(3)
(A) If the Federal agency awarding the contract receives notice of a protest in accordance with this section during the period described in paragraph (4)—
(i) the contracting officer may not authorize performance of the contract to begin while the protest is pending; or
(ii) if
authorization for contract performance to proceed was not withheld in
accordance with paragraph (2) before receipt of the notice, the contracting
officer shall immediately direct the contractor to cease performance under the
contract and to suspend any related activities that may result in additional
obligations being incurred by the
(B) Performance and related activities suspended pursuant to subparagraph (A)(ii) by reason of a protest may not be resumed while the protest is pending.
(C) The head of the procuring activity may authorize the performance of the contract (notwithstanding a protest of which the Federal agency has notice under this section)—
(i) upon a written finding that—
(I) performance of the contract is
in the best interests of the
(II) urgent
and compelling circumstances that significantly affect interests of the
(ii) after the Comptroller General is notified of that finding.
(4) The period referred to in paragraphs (2) and (3)(A), with respect to a contract, is the period beginning on the date of the contract award and ending on the later of—
(A) the date that is 10 days after the date of the contract award; or
(B) the date that is 5 days after the debriefing date offered to an unsuccessful offeror for any debriefing that is requested and, when requested, is required.
(e) The authority of the head of the procuring activity to make findings and to authorize the award and performance of contracts under subsections (c) and (d) of this section may not be delegated.
(f)
(1) Within such deadlines as the Comptroller General prescribes, upon request each Federal agency shall provide to an interested party any document relevant to a protested procurement action (including the report required by subsection (b)(2) of this section) that would not give that party a competitive advantage and that the party is otherwise authorized by law to receive.
(2)
(A) The Comptroller General may issue protective orders which establish terms, conditions, and restrictions for the provision of any document to a party under paragraph (1), that prohibit or restrict the disclosure by the party of information described in subparagraph (B) that is contained in such a document.
(B) Information referred to in subparagraph (A) is procurement sensitive information, trade secrets, or other proprietary or confidential research, development, or commercial information.
(C) A protective order under this paragraph shall not be considered to authorize the withholding of any document or information from Congress or an executive agency.
§ 3554. Decisions on
protests
(a)
(1) To the maximum extent practicable, the Comptroller General shall provide for the inexpensive and expeditious resolution of protests under this subchapter. Except as provided under paragraph (2) of this subsection, the Comptroller General shall issue a final decision concerning a protest within 100 days after the date the protest is submitted to the Comptroller General.
(2) The Comptroller General shall, by regulation prescribed pursuant to section 3555 of this title, establish an express option for deciding those protests which the Comptroller General determines suitable for resolution within 65 days after the date the protest is submitted.
(3) An amendment to a protest that adds a new ground of protest, if timely made, should be resolved, to the maximum extent practicable, within the time limit established under paragraph (1) of this subsection for final decision of the initial protest. If an amended protest cannot be resolved within such time limit, the Comptroller General may resolve the amended protest through the express option under paragraph (2) of this subsection.
(4) The Comptroller General may dismiss a protest that the Comptroller General determines is frivolous or which, on its face, does not state a valid basis for protest.
(b)
(1) With respect to a solicitation for a contract, or a proposed award or the award of a contract, protested under this subchapter, the Comptroller General may determine whether the solicitation, proposed award, or award complies with statute and regulation. If the Comptroller General determines that the solicitation, proposed award, or award does not comply with a statute or regulation, the Comptroller General shall recommend that the Federal agency—
(A) refrain from exercising any of its options under the contract;
(B) recompete the contract immediately;
(C) issue a new solicitation;
(D) terminate the contract;
(E) award a contract consistent with the requirements of such statute and regulation;
(F) implement any combination of recommendations under clauses (A), (B), (C), (D), and (E); or
(G) implement such other recommendations as the Comptroller General determines to be necessary in order to promote compliance with procurement statutes and regulations.
(2) If the head of the procuring activity responsible for a contract makes a finding under section 3553 (d)(3)(C)(i)(I) of this title, the Comptroller General shall make recommendations under this subsection without regard to any cost or disruption from terminating, recompeting, or reawarding the contract.
(3) If the Federal agency fails to implement fully the recommendations of the Comptroller General under this subsection with respect to a solicitation for a contract or an award or proposed award of a contract within 60 days after receiving the recommendations, the head of the procuring activity responsible for that contract shall report such failure to the Comptroller General not later than 5 days after the end of such 60-day period.
(c)
(1) If the Comptroller General determines that a solicitation for a contract or a proposed award or the award of a contract does not comply with a statute or regulation, the Comptroller General may recommend that the Federal agency conducting the procurement pay to an appropriate interested party the costs of—
(A) filing and pursuing the protest, including reasonable attorneys’ fees and consultant and expert witness fees; and
(B) bid and proposal preparation.
(2) No party (other than a small business concern (within the meaning of section 3(a) of the Small Business Act)) may be paid, pursuant to a recommendation made under the authority of paragraph (1)—
(A) costs for consultant and expert witness fees that exceed the highest rate of compensation for expert witnesses paid by the Federal Government; or
(B) costs for attorneys’ 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.
(3) If the Comptroller General recommends under paragraph (1) that a Federal agency pay costs to an interested party, the Federal agency shall—
(A) pay the costs promptly; or
(B) if the Federal agency does not make such payment, promptly report to the Comptroller General the reasons for the failure to follow the Comptroller General’s recommendation.
(4) If the Comptroller General recommends under paragraph (1) that a Federal agency pay costs to an interested party, the Federal agency and the interested party shall attempt to reach an agreement on the amount of the costs to be paid. If the Federal agency and the interested party are unable to agree on the amount to be paid, the Comptroller General may, upon the request of the interested party, recommend to the Federal agency the amount of the costs that the Federal agency should pay.
(d) Each decision of the Comptroller General under this subchapter shall be signed by the Comptroller General or a designee for that purpose. A copy of the decision shall be made available to the interested parties, the head of the procuring activity responsible for the solicitation, proposed award, or award of the contract, and the senior procurement executive of the Federal agency involved.
(e)
(1) The Comptroller General shall report promptly to the Committee on Governmental Affairs and the Committee on Appropriations of the Senate and to the Committee on Government Reform and Oversight and the Committee on Appropriations of the House of Representatives any case in which a Federal agency fails to implement fully a recommendation of the Comptroller General under subsection (b) or (c). The report shall include—
(A) a comprehensive review of the pertinent procurement, including the circumstances of the failure of the Federal agency to implement a recommendation of the Comptroller General; and
(B) a recommendation regarding whether, in order to correct an inequity or to preserve the integrity of the procurement process, the Congress should consider—
(i) private relief legislation;
(ii) legislative rescission or cancellation of funds;
(iii) further investigation by Congress; or
(iv) other action.
(2) Not later than January 31 of each year, the Comptroller General shall transmit to the Congress a report containing a summary of each instance in which a Federal agency did not fully implement a recommendation of the Comptroller General under subsection (b) or (c) during the preceding year. The report shall also describe each instance in which a final decision in a protest was not rendered within 100 days after the date the protest is submitted to the Comptroller General.
§ 3555. Regulations;
authority of Comptroller General to verify assertions
(a) The Comptroller General shall prescribe such procedures as may be necessary to the expeditious decision of protests under this subchapter, including procedures for accelerated resolution of protests under the express option authorized by section 3554 (a)(2) of this title. Such procedures shall provide that the protest process may not be delayed by the failure of a party to make a filing within the time provided for the filing.
(b) The procedures shall provide that, in the computation of any period described in this subchapter—
(1) the day of the act, event, or default from which the designated period of time begins to run not be included; and
(2) the last day after such act, event, or default be included, unless—
(A) such last day is a Saturday, a Sunday, or a legal holiday; or
(B) in the case of a filing of a paper at the General Accounting Office or a Federal agency, such last day is a day on which weather or other conditions cause the closing of the General Accounting Office or Federal agency, in which event the next day that is not a Saturday, Sunday, or legal holiday shall be included.
(c) The Comptroller General may prescribe procedures for the electronic filing and dissemination of documents and information required under this subchapter. In prescribing such procedures, the Comptroller General shall consider the ability of all parties to achieve electronic access to such documents and records.
(d) The Comptroller General may use any authority available under chapter 7 of this title and this chapter to verify assertions made by parties in protests under this subchapter.
§ 3556. Nonexclusivity of remedies; matters included in agency
record
This subchapter does not give the Comptroller General exclusive jurisdiction over protests, and nothing contained in this subchapter shall affect the right of any interested party to file a protest with the contracting agency or to file an action in the United States Court of Federal Claims. In any such action based on a procurement or proposed procurement with respect to which a protest has been filed under this subchapter, the reports required by sections 3553 (b)(2) and 3554 (e)(1) of this title with respect to such procurement or proposed procurement and any decision or recommendation of the Comptroller General under this subchapter with respect to such procurement or proposed procurement shall be considered to be part of the agency record subject to review.
For protests in cases of public-private competitions conducted under Office of Management and Budget Circular A-76 regarding performance of an activity or function of Federal agencies, the Comptroller General shall administer the provisions of this subchapter in a manner best suited for expediting final resolution of such protests and final action in such competitions.'.
TITLE 28 > PART IV
> CHAPTER 91
CHAPTER 91—UNITED
STATES COURT OF FEDERAL CLAIMS
§ 1491. Claims against United States generally; actions involving Tennessee Valley Authority
(b)
(1) Both the Unites [1] States
Court of Federal Claims and the district courts of the United States shall have
jurisdiction to render judgment on an action by an interested party objecting
to a solicitation by a Federal agency for bids or proposals for a proposed
contract or to a proposed award or the award of a contract or any alleged
violation of statute or regulation in connection with a procurement or a
proposed procurement. Both the United States Court of Federal Claims and the
district courts of the
(2) To afford relief in such an action, the courts may award any relief that the court considers proper, including declaratory and injunctive relief except that any monetary relief shall be limited to bid preparation and proposal costs.
(3) In exercising jurisdiction under this subsection, the courts shall give due regard to the interests of national defense and national security and the need for expeditious resolution of the action.
(4) In any action under this subsection, the courts shall review the agency’s decision pursuant to the standards set forth in section 706 of title 5.
(5) If a private sector
interested party commences an action described in paragraph (1) in the case of
a public-private competition conducted under Office of Management and Budget
Circular A-76 regarding performance of an activity or function of a Federal
agency, then an official or person described in section 3551(2)(B) of title 31 shall be entitled to intervene in that
action.
(c) APPLICABILITY- Subparagraph (B) of section 3551(2) of title 31,
United States Code (as added by subsection (a)), and paragraph (5) of section
1491(b) of title 28,
(1) protests and civil
actions that challenge final selections of sources of performance of an
activity or function of a Federal agency that are made pursuant to studies
initiated under Office of Management and Budget Circular A-76 on or after
January 1, 2004; and
(2) any
other protests and civil actions that relate to public-private competitions
initiated under Office of Management and Budget Circular A-76 on or after the
date of the enactment of this Act.