B-232204, Sep 26, 1988, Office of General Counsel

B-232204: Sep 26, 1988

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Which were designed to bring the procurement practices of other signatory countries more into line with those existing here. The FAR will continue to require agencies to provide such notice "promptly."). We are concerned that when an agency delays this notice. We understand that the FAR requirement to notify unsuccessful bidders or offerors within 7 working days of an award in a Trade Agreements Act procurement is based on a similar requirement contained in the Agreement on Government Procurement. The Agreement could be implemented in the FAR in a manner that would carry less potential for diminishing the effectiveness of the protest provisions of CICA if the FAR were to require agencies to provide the notice "promptly.

B-232204, Sep 26, 1988, Office of General Counsel

PROCUREMENT - Competitive Negotiation - Federal procurement regulations/laws - Revision - Contract award notification - Contractors PROCUREMENT - Sealed Bidding - Federal procurement regulations/laws Revision - Contract award notification - Contractors DIGEST: In comments on Item II of Federal Acquisition Circular 84-38, an interim rule revising Parts 5, 14, 15, 17 and 25 of the Federal Acquisition Regulation (FAR) to implement changes to the Agreement on Government Procurement, the General Accounting Office recommends that the FAR require agencies to provide unsuccessful bidders or offerors with notice of award of contract "promptly, but in no event later than 7 working days after award."

Ms. Margaret A. Willis

FAR Secretariat

General Services Administration:

This responds to your letter of July 26, 1988, requesting our commenting on Item II of the Federal Acquisition Circular (FAC) 84-38, an interim rule revising Parts 5, 14, 15, 17 and 25 of the Federal Acquisition Regulation (FAR). The revisions implement recent changes to the Agreement on Government Procurement, which were designed to bring the procurement practices of other signatory countries more into line with those existing here.

Among the changes effected by Item II of FAC 84-38, FAR sections 14.408- 1(a)(2) and 15.1001(c)(2) now provide that with respect to a procurement subject to the Trade Agreements Act of 1979, 19 U.S.C. Sec. 2511 et seq. (1982), an agency must provide unsuccessful bidders or offerors with notice of a contract award within 7 working days of the award. (For procurements not subject to the Act, the FAR will continue to require agencies to provide such notice "promptly.") We are concerned that when an agency delays this notice-- for example, until the 5th, 6th, or 7th working day after award-- an unsuccessful bidder or offeror wishing to file a protest of the award with the General Accounting Office most likely would lose the benefit of having contract performance suspended under the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. Sec. 3553(d)(1) (Supp. IV 1986), which requires an agency receiving notice of a protest within 10 calendar days of an award to direct the contractor to cease performance of the contract.

We understand that the FAR requirement to notify unsuccessful bidders or offerors within 7 working days of an award in a Trade Agreements Act procurement is based on a similar requirement contained in the Agreement on Government Procurement. In our view, however, the Agreement could be implemented in the FAR in a manner that would carry less potential for diminishing the effectiveness of the protest provisions of CICA if the FAR were to require agencies to provide the notice "promptly, but in no event later than 7 working days after award."

The remaining changes contained in Item II of FAC 84-38 concern: (1) the extension of the Trade Agreements Act to leases, (2) the basis for determining the applicability of the Act, (3) synopsis requirements, and (4) the inclusion of option prices in estimating the value of acquisitions. We have no comment on these other changes.