[Federal Register Volume 67, Number 37 (Monday, February 25, 2002)]
[Proposed Rules]
[Page 8485]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4337]
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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 67, No. 37 / Monday, February 25, 2002 /
Proposed Rules
[[Page 8485]]
GENERAL ACCOUNTING OFFICE
4 CFR Part 21
General Accounting Office, Administrative Practice and Procedure,
Bid Protest Regulations, Government Contracts
AGENCY: General Accounting Office.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The General Accounting Office (GAO) is reviewing, and will be
revising, its Bid Protest Regulations, promulgated in accordance with
the Competition in Contracting Act of 1984. GAO last revised Part 21 in
1996, and believes that developments since that time warrant updating
the Regulations to reflect current practice. In connection with this
effort, GAO also is soliciting comments on how its Regulations should
be revised to improve the overall efficiency and effectiveness of the
bid protest process at GAO.
DATES: Comments must be submitted on or before April 1, 2002.
ADDRESSES: Comments should be addressed to: John M. Melody, Assistant
General Counsel, General Accounting Office, 441 G Street, NW.,
Washington, DC 20548.
FOR FURTHER INFORMATION CONTACT: John M. Melody (Assistant General
Counsel) or David A. Ashen (Deputy Assistant General Counsel), 202-512-
9732.
SUPPLEMENTARY INFORMATION: GAO is considering revising its Bid Protest
Regulations, in accordance with the Competition in Contracting Act of
1984, 31 U.S.C. 3555(a). Revisions are being considered in several
areas to take into account legal developments and changes in practice
that have occurred since the 1996 revision. Among the changes being
considered are the following:
Section 21.0(g) currently states that a document may be filed by
hand delivery, mail, or commercial carrier, and then goes on to state
that parties wishing to file by facsimile transmission or other
electronic means must ensure that the necessary equipment at GAO's
Procurement Law Group is operational. GAO is not aware that there has
been any significant confusion regarding acceptable means of filing
protests and other documents. However, in light of our experience that
documents commonly are filed by facsimile transmission, and our recent
initiative to permit electronic filing, we believe this paragraph
should clarify that filing by facsimile transmission is permitted (and,
in fact, is commonplace), and that electronic filing (E-mail) of
protest documents is permitted under certain circumstances.
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 Bid Protest Regulations identifying it
as such. Since a substantial number of cases have been found to be
suitable for resolution using ADR, and it is anticipated that this will
remain the case, GAO is considering adding language to reflect this
practice.
Under the timeliness provisions of Sec. 21.2(a)(2), where a
debriefing is requested and required, any protest basis that is known
or should have been known, either before or as a result of the
debriefing, shall not be filed prior to the debriefing date offered to
the protester. This rule has had the unintended result, in a very few
cases, of leading protesters to delay--until after a debriefing--
protesting a matter that arose during the procurement (for example, an
alleged Procurement Integrity Act violation), prior to award. 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
Sec. 21.2(a)(2) to provide guidance in this area.
Section 21.5(c) provides that GAO will consider affirmative
determinations of responsibility only under very limited circumstances,
reflecting GAO's long held view that such determinations are so
subjective that they do not lend themselves to reasoned review. In
January 2001, the Court of Appeals for the Federal Circuit, in its
decision Impresa Construzioni Geom. Domenico Garufi v. United States,
238 F.3d 1324 (Fed. Cir. 2001) 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
Federal Circuit'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.
Comments may be submitted by hand delivery or mail to the address
in the address line, by e-mail at BidProtestRegs.gao.gov, or by
facsimile at 202-512-9749.
Anthony H. Gamboa,
General Counsel.
[FR Doc. 02-4337 Filed 2-22-02; 8:45 am]
BILLING CODE 1610-02-P