B-219293, JUL 19, 1982

B-219293: Jul 19, 1982

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SECTIONS 33.104(C)(2)(I) AND (II) SHOULD BE CHANGED TO INFORM CONTRACTING OFFICIALS THAT USE OF THE "BEST INTERESTS OF GOVERNMENT" STANDARD FOR PROCEEDING WITH PERFORMANCE IN THE FACE OF A POST-AWARD PROTEST WILL RESULT IN GAO IGNORING THE IMPACT OF COST OR PROGRAM DISRUPTION IN MAKING A RECOMMENDATION. SECTION 33.104 OF THE INTERIM RULE PROVIDES THAT WHEN AN AGENCY IS NOTIFIED BY OUR OFFICE OF A PROTEST WITHIN 10 CALENDAR DAYS AFTER AWARD THE CONTRACTING AGENCY MUST. WE RECOMMEND THAT FAR SPELL OUT WHEN AN AWARD IS CONSIDERED TO HAVE BEEN MADE. SECTIONS 33.104(C)(2)(I) AND (II) OF THE INTERIM RULE PROVIDE THAT THE HEAD OF THE CONTRACTING ACTIVITY MAY AUTHORIZE CONTRACT PERFORMANCE NOTWITHSTANDING A PENDING PROTEST UPON A WRITTEN FINDING THAT CONTRACT PERFORMANCE WILL BE IN THE BEST INTERESTS OF THE UNITED STATES OR THAT URGENT AND COMPELLING CIRCUMSTANCES THAT SIGNIFICANTLY AFFECT THE INTERESTS OF THE UNITED STATES WILL NOT PERMIT WAITING FOR THE DECISION.

B-219293, JUL 19, 1982

DIGEST: 1. GAO RECOMMENDS THAT A SECTION BE ADDED TO THE INTERIM RULE AMENDING THE FAR TO COMPLY WITH THE "STAY" AND "DAMAGES" PROVISIONS OF THE COMPETITION IN CONTRACTING ACT BE AMENDED DEFINING THE DATE OF AWARD AND REQUIRING THAT CONTRACTING OFFICERS PROMPTLY NOTIFY OFFERORS THAT AWARD HAS BEEN MADE. 2. SECTIONS 33.104(C)(2)(I) AND (II) SHOULD BE CHANGED TO INFORM CONTRACTING OFFICIALS THAT USE OF THE "BEST INTERESTS OF GOVERNMENT" STANDARD FOR PROCEEDING WITH PERFORMANCE IN THE FACE OF A POST-AWARD PROTEST WILL RESULT IN GAO IGNORING THE IMPACT OF COST OR PROGRAM DISRUPTION IN MAKING A RECOMMENDATION.

MR. ROGER M. SCHWARTZ: DIRECTOR, FAR SECRETARIAT GENERAL SERVICES ADMINISTRATION WASHINGTON, D.C. 20405

WE REFER TO A LETTER DATED JUNE 28, 1985 REQUESTING OUR COMMENTS ON AN INTERIM RULE (FAC 84-9) AMENDING THE FEDERAL ACQUISITION REGULATION (FAR) TO COMPLY WITH THE "STAY" AND "DAMAGES" PROVISIONS OF THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), P.L. 98-369.

SECTION 33.104 OF THE INTERIM RULE PROVIDES THAT WHEN AN AGENCY IS NOTIFIED BY OUR OFFICE OF A PROTEST WITHIN 10 CALENDAR DAYS AFTER AWARD THE CONTRACTING AGENCY MUST, EXCEPT IN SPECIFIED CIRCUMSTANCES, SUSPEND PERFORMANCE OR TERMINATE THE CONTRACT. TO ENSURE THAT AGENCIES INTERPRET THE DATE OF AWARD UNIFORMLY, WE RECOMMEND THAT FAR SPELL OUT WHEN AN AWARD IS CONSIDERED TO HAVE BEEN MADE. IN ADDITION, WE RECOMMEND THAT FAR PROVIDE THAT CONTRACTING OFFICERS MUST PROMPTLY NOTIFY ALL OFFERORS THAT AN AWARD HAS BEEN MADE AND THAT THE 10-DAY PERIOD FOR PROTESTING HAS BEGUN ON THE AWARD DATE.

SECTIONS 33.104(C)(2)(I) AND (II) OF THE INTERIM RULE PROVIDE THAT THE HEAD OF THE CONTRACTING ACTIVITY MAY AUTHORIZE CONTRACT PERFORMANCE NOTWITHSTANDING A PENDING PROTEST UPON A WRITTEN FINDING THAT CONTRACT PERFORMANCE WILL BE IN THE BEST INTERESTS OF THE UNITED STATES OR THAT URGENT AND COMPELLING CIRCUMSTANCES THAT SIGNIFICANTLY AFFECT THE INTERESTS OF THE UNITED STATES WILL NOT PERMIT WAITING FOR THE DECISION. THIS SECTION DOES NOT STATE THAT CICA REQUIRES OUR OFFICE TO IGNORE THE IMPACT OF COST OR PROGRAM DISRUPTION IN MAKING RECOMMENDATIONS ON POST- AWARD PROTESTS IN WHICH THE AGENCY HAS CONTINUED PERFORMANCE UNDER THE BEST INTERESTS OF THE GOVERNMENT STANDARD IN SECTION 33.104(C)(2)(I). SEE BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.6(C) 1985. WE THINK IT WOULD BE HELPFUL TO PROCUREMENT PERSONNEL IF THAT POINT IS MADE IN THE FINAL REGULATION.