B-155479, OCT. 5, 1965

B-155479: Oct 5, 1965

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ATTORNEY AT LAW: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 28. WE HAVE NOT ISSUED REGULATIONS SETTING FORTH OUR PROCEDURES FOR HANDLING BID PROTEST CASES AND NO SPECIAL PROCEDURES OR FORMS HAVE BEEN PRESCRIBED FOR USE IN THIS AREA. REFERRING TO THE PARTICULAR PROCUREMENT IN QUESTION AND STATING THE NATURE OF HIS PROTEST AND THE REASONS WHY HE BELIEVES THE PROTEST IS VALID. WHERE WE ARE NOT ENTIRELY SATISFIED WITH THE FINDINGS ADMINISTRATIVELY REPORTED AND IN CASES WHERE THE PROTESTING BIDDER REQUESTS AND OPPORTUNITY TO CONSIDER AND REBUT SUCH FINDINGS. WHILE PROTEST CASES ARE ULTIMATELY DECIDED ON THE BASIS OF THE WRITTEN RECORD. INFORMATION AND ARGUMENTS ADVANCED IN SUCH CONFERENCES ARE GENERALLY REQUIRED TO BE REDUCED TO WRITING AND SUBMITTED AS PART OF THE RECORD.

B-155479, OCT. 5, 1965

TO MR. WALTER R. MOYNIHAN, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 28, 1965, REQUESTING TO BE INFORMED WHETHER THE U.S. GENERAL ACCOUNTING OFFICE HAS ISSUED WRITTEN PROCEDURES CONCERNING THE METHOD OF PROCESSING AND EVALUATING BID PROTEST CASES.

WE HAVE NOT ISSUED REGULATIONS SETTING FORTH OUR PROCEDURES FOR HANDLING BID PROTEST CASES AND NO SPECIAL PROCEDURES OR FORMS HAVE BEEN PRESCRIBED FOR USE IN THIS AREA. IN GENERAL, AN AGGRIEVED BIDDER MAY FILE HIS PROTEST WITH OUR OFFICE SIMPLY BY ADDRESSING A TELEGRAM OR LETTER TO THE COMPTROLLER GENERAL OF THE UNITED STATES, U.S. GENERAL ACCOUNTING OFFICE, WASHINGTON, D. C. 20548, REFERRING TO THE PARTICULAR PROCUREMENT IN QUESTION AND STATING THE NATURE OF HIS PROTEST AND THE REASONS WHY HE BELIEVES THE PROTEST IS VALID.

IMMEDIATELY UPON RECEIPT OF A PROTEST WE ANALYZE IT AND, IF THE CIRCUMSTANCES APPEAR TO WARRANT, CONTACT THE CONTRACTING AGENCY BY TELEPHONE, ADVISE THE AGENCY OF THE PROTEST, AND INFORM IT OF THE POSSIBLE CONSEQUENCES OF MAKING AN AWARD, OR PERMITTING PERFORMANCE IF THE AWARD HAS BEEN MADE, PENDING FINAL CONSIDERATION OF THE PROTEST. AT THE SAME TIME, WE ADDRESS A LETTER TO THE HEAD OF THE CONTRACTING AGENCY FORMALLY REQUESTING A REPORT, INCLUDING A FULL STATEMENT OF FACTS AND THE PERTINENT CONTRACT DOCUMENTS.

IN CERTAIN INSTANCES, IN ADDITION TO REQUESTING AN ADMINISTRATIVE REPORT, WE MAKE AN INDEPENDENT INVESTIGATION OF THE FACTS ALLEGED BY THE PROTESTING BIDDER OR REPORTED BY THE CONTRACTING AGENCY. ALSO, WHERE WE ARE NOT ENTIRELY SATISFIED WITH THE FINDINGS ADMINISTRATIVELY REPORTED AND IN CASES WHERE THE PROTESTING BIDDER REQUESTS AND OPPORTUNITY TO CONSIDER AND REBUT SUCH FINDINGS, WE MAKE A COPY OF THE ADMINISTRATIVE REPORT AVAILABLE TO THE PROTESTANT FOR THAT PURPOSE. AND WHILE PROTEST CASES ARE ULTIMATELY DECIDED ON THE BASIS OF THE WRITTEN RECORD, PROTESTANTS OR THEIR AUTHORIZED REPRESENTATIVES MAY AND FREQUENTLY DO ARRANGE CONFERENCES WITH THE APPROPRIATE ATTORNEYS OF OUR OFFICE TO DISCUSS THE ISSUES INVOLVED. INFORMATION AND ARGUMENTS ADVANCED IN SUCH CONFERENCES ARE GENERALLY REQUIRED TO BE REDUCED TO WRITING AND SUBMITTED AS PART OF THE RECORD. IT SHOULD BE POINTED OUT THAT IN NO CASE DO WE DIRECT CANCELLATION OF A CONTRACT WITHOUT FIRST GIVING THE CONTRACTOR AN OPPORTUNITY TO COMMENT ON THE PROTEST EITHER ORALLY OR IN WRITING OR BOTH.

IF OUR DECISION IS ONE DENYING THE PROTEST WE ADDRESS IT TO THE PROTESTANT EXPLAINING FULLY THE REASONS FOR THE CONCLUSION REACHED. IF WE CONCLUDE THAT THE PROTEST IS VALID WE ADDRESS OUR DECISION TO THE CONTRACTING AGENCY DIRECTING THAT CORRECTIVE ACTION BE TAKEN. IN EITHER SITUATION THE OTHER PARTY IS FURNISHED A COPY OF THE DECISION.

THE PERTINENT PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION DO NOT, AS INDICATED IN YOUR LETTER, FLATLY REQUIRE THE MILITARY DEPARTMENTS TO OBTAIN THE VIEWS OF THE COMPTROLLER GENERAL IN PROTEST CASES BEFORE THE AWARD IS MADE. UNDER ASPR 2-407.9/B) (2) THAT PROCEDURE IS REQUIRED IN THE CASE OF PROTESTS BEFORE AWARD "WHENEVER SUCH ACTION IS CONSIDERED TO BE SIRABLE.' THE SAME SUBSECTION PROVIDES FURTHER THAT "WHILE AWARD NEED NOT BE WITHHELD PENDING FINAL DISPOSITION BY THE COMPTROLLER GENERAL OF A PROTEST, A NOTICE OF INTENT TO MAKE AWARD IN SUCH CIRCUMSTANCES SHALL BE FURNISHED THE COMPTROLLER GENERAL, AND FORMAL OR INFORMAL ADVICE SHOULD BE OBTAINED CONCERNING THE CURRENT STATUS OF THE CASE PRIOR TO MAKING THE AWARD.' UNDER ASPR 3-509 PROTESTS AGAINST AWARDS OF NEGOTIATED PROCUREMENTS ARE REQUIRED TO BE TREATED SUBSTANTIALLY IN ACCORDANCE WITH ASPR 2 407.9.