TITLE 31 > SUBTITLE III > CHAPTER
35 > SUBCHAPTER V
[Note: Language inserted by PL 108-375 is in red]
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
§ 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)
(A) The term “interested party”,
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.
(B) The
term includes the official responsible for submitting the Federal agency tender
in a public-private competition conducted under Office of Management and Budget
Circular A-76 regarding an activity or function of a Federal agency performed
by more than 65 full-time equivalent employees of the Federal agency.
(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.
(b)
(1) In the
case of an agency tender official who is an interested party under section
3551(2)(B) of this title, the official may file a
protest in connection with the public-private competition for which the
official is an interested party. At the request of a majority of the employees
of the Federal agency who are engaged in the performance of the activity or
function subject to such public-private competition, the official shall file a
protest in connection with such public-private competition unless the official
determines that there is no reasonable basis for the protest.
(2) The
determination of an agency tender official under paragraph (1) whether or not
to file a protest is not subject to administrative or judicial review. An
agency tender official shall provide written notification to Congress whenever
the official makes a determination under paragraph (1) that there is no
reasonable basis for a protest.
§ 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.
(g) If an interested party files a
protest in connection with a public-private competition described in section
3551(2)(B) of this title, a person representing a majority of the employees of
the Federal agency who are engaged in the performance of the activity or
function subject to the public-private competition may intervene in protest.