B-200266 L/M, OCT 19, 1981
Highlights
THE POLICY LETTER STATES THAT "AGENCIES ARE RESPONSIBLE FOR DECIDING OR OTHERWISE RESOLVING BID PROTESTS" AND ESTABLISHES PROCEDURES FOR AGENCIES TO FOLLOW WHEN PROTESTS ARE FILED WITH THEM. WE AGREE THAT THERE IS A NEED FOR ESTABLISHING GOVERNMENT-WIDE PROCEDURES FOR HANDLING BID PROTESTS. ALTHOUGH OUR EXPERIENCE IS THAT MANY CONTRACTORS DO NOT FILE PROTESTS DIRECTLY WITH AGENCIES. WE HOPE THE ESTABLISHMENT OF UNIFORM AGENCY PROTEST PROCEDURES WILL STRENGTHEN THIS ASPECT OF THE PROTEST PROCESS. WE HAVE TWO SUGGESTIONS WHICH WE THINK WILL IMPROVE THE PROPOSED POLICY LETTER. ON SEVERAL OCCASIONS WE HAVE BEEN TOLD BY PROTESTERS WHO DID NOT MEET OUR TIMELINESS REQUIREMENTS THAT THEY HAD BEEN UNAWARE OF THE OPPORTUNITY TO PROTEST TO GAO EARLIER AND THEY EXPRESSED CONCERN THAT THE PROCURING AGENCY HAD NOT PROVIDED THAT INFORMATION TO THEM.
B-200266 L/M, OCT 19, 1981
DIGEST: GAO GENERALLY FAVORS MAJOR ROLE ESTABLISHED BY OFPP POLICY LETTER 81 4 FOR PROCURING AGENCIES IN CONSIDERING BID PROTESTS. GAO SUGGESTS, HOWEVER, THAT AGENCIES SHOULD INCLUDE A NOTICE OF OUR PROTEST PROCEDURES IN THEIR SOLICITATIONS AND THAT AGENCIES BE INSTRUCTED TO ADVISE GAO OF ACTION TAKEN IN RESPONSE TO A GAO RECOMMENDATION FOR CORRECTIVE ACTION.
DONALD E. SOWLE, ADMINISTRATOR FOR FEDERAL PROCUREMENT POLICY:
YOU INVITED COMMENTS ON PROPOSED POLICY LETTER 81-4, WHICH PROVIDES GUIDANCE CONCERNING GOVERNMENT-WIDE BID PROTEST PROCEDURES. THE POLICY LETTER STATES THAT "AGENCIES ARE RESPONSIBLE FOR DECIDING OR OTHERWISE RESOLVING BID PROTESTS" AND ESTABLISHES PROCEDURES FOR AGENCIES TO FOLLOW WHEN PROTESTS ARE FILED WITH THEM. THE POLICY LETTER ALSO RECOGNIZES THAT BID PROTESTS MAY BE FILED WITH OUR OFFICE IN ACCORDANCE WITH OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 21 (1981), AND SETS FORTH PROCEDURES FOR AGENCIES TO FOLLOW WHEN A PROTEST HAS BEEN FILED WITH OUR OFFICE.
WE AGREE THAT THERE IS A NEED FOR ESTABLISHING GOVERNMENT-WIDE PROCEDURES FOR HANDLING BID PROTESTS. WE ALSO GENERALLY FAVOR THE MAJOR ROLE ESTABLISHED FOR PROCURING AGENCIES IN CONSIDERING BID PROTESTS. IN FACT, OUR BID PROTEST PROCEDURES URGE PROTESTERS TO SEEK INITIAL RESOLUTION OF THEIR COMPLAINTS WITH THE PROCURING AGENCY. SEE 4 C.F.R. SEC. 21.1(A). ALTHOUGH OUR EXPERIENCE IS THAT MANY CONTRACTORS DO NOT FILE PROTESTS DIRECTLY WITH AGENCIES, WE HOPE THE ESTABLISHMENT OF UNIFORM AGENCY PROTEST PROCEDURES WILL STRENGTHEN THIS ASPECT OF THE PROTEST PROCESS.
WE HAVE TWO SUGGESTIONS WHICH WE THINK WILL IMPROVE THE PROPOSED POLICY LETTER. FIRST, ON SEVERAL OCCASIONS WE HAVE BEEN TOLD BY PROTESTERS WHO DID NOT MEET OUR TIMELINESS REQUIREMENTS THAT THEY HAD BEEN UNAWARE OF THE OPPORTUNITY TO PROTEST TO GAO EARLIER AND THEY EXPRESSED CONCERN THAT THE PROCURING AGENCY HAD NOT PROVIDED THAT INFORMATION TO THEM. WE THINK IT WOULD BE A SIMPLE MATTER FOR AGENCIES TO SO INFORM ALL POTENTIAL BIDDERS THROUGH A NOTICE TO THAT EFFECT IN THE SOLICITATION. THEREFORE, WE SUGGEST THAT THE POLICY LETTER INCLUDE LANGUAGE REQUIRING AGENCIES TO INCLUDE SUCH A NOTICE IN THEIR SOLICITATIONS. SECOND, IN RECOGNITION OF EXISTING PRACTICE, WE BELIEVE THAT AGENCIES SHOULD BE INSTRUCTED TO ADVISE US OF THE ACTION THEY TAKE IN RESPONSE TO A RECOMMENDATION FOR CORRECTIVE ACTION MADE BY THIS OFFICE IN RESPONSE TO A PROTEST.
WE APPRECIATE THE OPPORTUNITY TO COMMENT.