B-225850, FEB 9, 1987, OFFICE OF GENERAL COUNSEL

B-225850, FEB 9, 1987, OFFICE OF GENERAL COUNSEL

PROCUREMENT - BID PROTEST - FEDERAL PROCUREMENT REGULATIONS/LAWS - REVISION - ADDITIONAL CRITERIA DIGEST: GENERAL ACCOUNTING OFFICE (GAO) OBJECTS TO PROPOSED AMENDMENT OF THE SERVICE OF PROTEST CLAUSE SET FORTH AT FEDERAL ACQUISITION REGULATION SEC. 52.233-2 BECAUSE THE PROPOSED AMENDMENT WOULD IMPOSE ADDITIONAL REQUIREMENTS ON THOSE WHO PROTEST TO GAO NOT CONTEMPLATED BY GAO'S BID PROTEST REGULATIONS.

MS. MARGARET A. WILLIS:

THIS RESPONDS TO YOUR LETTER OF DECEMBER 2, 1986, REQUESTING OUR COMMENTS ON A PROPOSAL TO AMEND THE SERVICE OF PROTEST CLAUSE SET FORTH AT FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 52.233-2 (1985). THE PROPOSED AMENDMENT IS INTENDED TO CLARIFY REQUIREMENTS REGARDING SERVICE ON THE CONTRACTING OFFICER OF PROTESTS FILED WITH THE CONTRACTING AGENCY AND OF COPIES OF PROTESTS FILED WITH THIS OFFICE OR THE GENERAL SERVICES ADMINISTRATION BOARD OF CONTRACT APPEALS. THE PROPOSED AMENDMENT ALSO WOULD PERMIT THE CONTRACTING OFFICER TO DESIGNATE AN OFFICIAL TO WHOM OR THE LOCATION WHERE AN INFORMATION COPY OF A PROTEST MUST BE DELIVERED. THIS IS FAR CASE NO. 86-58.

UNDER THE COMPETITION IN CONTRACTING ACT OF 1984, OUR OFFICE IS RESPONSIBLE FOR PRESCRIBING SUCH PROCEDURES AS MAY BE NECESSARY FOR THE EXPEDITIOUS DECISION OF PROTESTS FILED WITH IT. 31 U.S.C. SEC. 3555(A) (SUPP. III 1985). PURSUANT TO THAT AUTHORITY, WE HAVE PRESCRIBED BID PROTEST REGULATIONS WHICH ARE CODIFIED AT 4 C.F.R. PART 21 (1986). THESE REGULATIONS PROVIDE THAT WITHIN 1 DAY OF FILING A PROTEST WITH THIS OFFICE A PROTESTER MUST "FURNISH" A COPY OF THE PROTEST TO THE INDIVIDUAL OR LOCATION DESIGNATED BY THE CONTRACTING AGENCY IN THE SOLICITATION. C.F.R. SEC. 21.1(D). THERE ARE NO REQUIREMENTS THAT A COPY OF THE PROTEST BE "SERVED" /1/ ON THE CONTRACTING OFFICER, OR THAT AN ADDITIONAL, INFORMATION COPY OF THE PROTEST BE DELIVERED TO ANOTHER LOCATION.

THE PROPOSED AMENDMENT TO THE FAR'S SERVICE OF PROTEST CLAUSE WOULD PURPORT TO IMPOSE ADDITIONAL REQUIREMENTS ON THOSE WHO PROTEST TO THIS OFFICE NOT CONTEMPLATED BY OUR REGULATIONS. FOR THIS REASON, WE OBJECT TO THE PROPOSED AMENDMENT AS IT PERTAINS TO PROTESTS FILED WITH THIS OFFICE.

MOREOVER, WHEN WE DRAFTED OUR REGULATIONS, WE CONSIDERED INCLUDING A REQUIREMENT THAT COPIES OF PROTESTS FILED HERE BE SERVED ON THE CONTRACTING AGENCY. OUR PROPOSED REGULATIONS CONTAINED SUCH A REQUIREMENT AND PROVIDED FOR THE PROTESTER TO CERTIFY THAT THE REQUIREMENT HAD BEEN MET. 49 FED.REG. 36386 (1984). AS A RESULT OF THE PUBLIC COMMENTS RECEIVED, HOWEVER, MANY OF WHICH COMPLAINED THAT OUR PROPOSED SERVICE REQUIREMENT WAS OVERLY "LEGALISTIC" AND WOULD BE TROUBLESOME TO SMALL BUSINESSES, WE DELETED THIS REQUIREMENT IN THE FINAL PUBLICATION OF OUR REGULATIONS. 49 FED.REG. 49417. EXPERIENCE UNDER OUR REGULATIONS HAS SHOWN THAT, BY AND LARGE, THE REQUIREMENT TO "FURNISH" THE CONTRACTING AGENCY WITH A COPY OF THE PROTEST WITHIN 1 DAY OF FILING HERE HAS FULFILLED THE PURPOSE OF PROVIDING THE AGENCY WITH THE COMPLETE PROTEST AS FILED IN OUR OFFICE AS PROMPTLY AS POSSIBLE. FURTHER, WE ARE NOT AWARE OF ANY SPECIFIC NEED OF THE AGENCIES THAT WOULD REQUIRE PROTESTERS TO FILE COPIES OF PROTESTS AT DIFFERENT AGENCY LOCATIONS.

WE CONTINUE TO REVIEW ALL THE PROVISIONS OF OUR PROTEST REGULATIONS, AND WE WILL PROPOSE APPROPRIATE REVISIONS WHENEVER WE DETERMINE THAT CHANGES ARE IN ORDER.

/1/ AS WE UNDERSTAND THE TERM AS USED IN THE PROPOSED AMENDMENT, A COPY OF A PROTEST IS "SERVED" WHEN A COPY IS DELIVERED TO THE AGENCY AND A WRITTEN AND DATED ACKNOWLEDGMENT OF ITS RECEIPT IS SUPPLIED BY THE AGENCY.