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GAO-03-539SP

Bid Protests at GAO:
A Descriptive Guide (Seventh Edition, 2003)

Introduction

_________________________________________________

The laws and regulations that govern contracting with the federal
government are designed to ensure that federal procurements are conducted
fairly. On occasion, bidders or others interested in government
procurements may have reason to believe that a contract has been or is
about to be awarded improperly or illegally, or that they have been
unfairly denied a contract or an opportunity to compete for a contract. A
major avenue of relief for those concerned about the propriety of an award
has been the General Accounting Office, which for more than 75 years has
provided an objective, independent, and impartial forum for the resolution
of disputes concerning the awards of federal contracts.

Over the years, GAO has developed a substantial body of law and standard
procedures for considering bid protests. This is the seventh edition of
Bid Protests at GAO: A Descriptive Guide, prepared by the Office of the
General Counsel to aid those interested in GAO's bid protest process. We
issued the first edition of this booklet in 1975 to facilitate greater
public familiarity with the bid protest process at GAO and we have revised
it over the years to reflect changes in our bid protest procedures. This
edition incorporates changes made to our Bid Protest Regulations,
effective January 1, 2003, to conform the Regulations to current practice
and otherwise to improve the overall efficiency and effectiveness of the
bid protest process at GAO.

We have improved this edition of the booklet by providing additional and
updated practice tips to assist parties participating in a bid protest at
GAO. We also have updated the appendixes, which contain a revised sample
protective order and revised sample applications for access to material
under a protective order.

Anthony H. Gamboa General Counsel

_________________________________________________

Contents

_________________________________________________
Introduction 1
_________________________________________________

The Bid Protest
Process

Background

Overview of the Bid Protest Process
Filing a Protest
After a Protest is Filed
Ex Parte Communications
Hearings
Decision Timetable
Protest Disposition
Judicial Proceedings
Requests for Reconsideration

__________________________________________________________________________
Bid Protest 25
Regulations

_________________________________________________

Appendixes

Appendix I: Sample Protective Order 42
Appendix II: Sample Applications for Access to 46
Material Under a Protective Order

THE BID PROTEST PROCESS

BACKGROUND

For more than 75 years, GAO has provided an objective, independent, and
impartial forum for the resolution of disputes concerning the awards of
federal contracts. Over the years, the decisions of the Comptroller
General of the United States, the head of GAO, in bid protest cases have
resulted in a uniform body of law applicable to the procurement process
upon which the Congress, the courts, contracting agencies, and the public
rely. Although protesters may be represented by counsel, filing a bid
protest with GAO is easy and inexpensive and does not require the services
of an attorney. In addition, matters can usually be resolved more quickly
by protests filed with GAO than by court litigation.

This booklet is an informal, practical guide to the bid protest process at
GAO; however, it is not the law. The legal rules governing this process
are set forth in GAO's Bid Protest Regulations. Since 1985, GAO has had
detailed regulations to inform protesters of the rules concerning where
and how to file a protest, what to expect in the way of subsequent
actions, and the time frames established for completion of those actions.

These regulations were promulgated to implement the Competition in
Contracting Act of 1984. The regulations have been revised over time to
implement statutory and other changes. Most recently, the regulations were
revised, effective January 1, 2003, to conform the regulations to current
practice and otherwise improve the efficiency and efficacy of the bid
protest process at GAO. The revised regulations will appear in Title 4 of
the Code of Federal Regulations (C.F.R.), Part 21, and are reproduced in
this booklet for ease of reference.

GAO changes its regulations from time to time because of changes in
applicable statutes, a binding court decision, or when experience dictates
that a modification is appropriate. These changes are published in the
Federal Register, and then incorporated into the Code of Federal
Regulations, which is published annually and reflects the revisions or
additions to the regulations that were published in the Federal Register
during the preceding year. Because the regulations are published in the
Federal Register, protesters and other parties are deemed to have
"constructive knowledge" of them, meaning that they are expected to comply
with the regulations, even if they have never actually read the
regulations.

In deciding bid protests, GAO considers whether federal agencies have
complied with statutes and regulations controlling government
procurements. The main statutes controlling federal procurements are the
Armed Services Procurement Act of 1947 and the Federal Property and
Administrative Services Act of 1949, as amended, particularly by the
Competition in Contracting Act of 1984, the Federal

Acquisition Streamlining Act of 1994, and the Federal Acquisition Reform
Act of 1996 and the Information Technology Management Reform Act of 1996,
as included in the National Defense Authorization Act for Fiscal Year
1996. These statutes are found in the United States Code, titles 10 and
41, respectively, and are implemented by the Federal Acquisition
Regulation (FAR) and individual agency regulations. GAO's Bid Protest
Regulations govern GAO's handling of protests and impose certain
requirements on contracting agencies, protesters, and others who
participate in the bid protest process at GAO.

OVERVIEW OF THE BID PROTEST PROCESS

The bid protest process at GAO begins with the filing of a written
protest. Unless the protest is dismissed because it is procedurally or
substantively defective (for example, the protest is untimely or the
protest fails to clearly state legally sufficient grounds of protest), the
contracting agency is required to file with GAO a report responding to the
protest and to provide a copy of that report to the protester. The
protester then has an opportunity to file written comments on the report.
Other parties may be permitted to intervene, which means that they will
also receive a copy of the report and will be allowed to file written
comments on it.

During the course of a protest, GAO may schedule, as appropriate, status
or other informal types of conferences to resolve procedural matters and
to obtain information material to the disposition of the protest. GAO also
may find that a hearing is necessary to resolve factual and legal issues
raised in the protest. If it decides to hold a hearing, GAO will usually
conduct a pre-hearing conference to decide the issues that will be
considered at the hearing, to identify the witnesses who will testify at
the hearing, and to settle procedural questions. After the hearing, all
parties will be allowed to submit written comments on the hearing.

After the record is complete, GAO will consider the facts and legal issues
raised and will issue a decision, a copy of which will be sent to all
parties participating in the protest. GAO may sustain the protest (that
is, find that the agency violated a procurement statute or regulation and
that the violation prejudiced the protester), in which case GAO will
recommend appropriate corrective action. Alternatively, GAO may deny the
protest or may dismiss the protest without reviewing the matter. GAO will
issue its decision not later than 100 days from the date the protest was
filed. The exact date on which GAO issues the decision depends on the
urgency of the procurement, the complexity of the factual and legal issues
raised in the protest, and GAO's work load.

At any time during the process of developing the record, GAO, at the
request of one or more of the parties or on its own initiative, may
determine that the protest is suitable for alternative dispute resolution
(ADR). This may take the form of either negotiation assistance, where the
GAO attorney offers to assist the parties in reaching agreement on
resolution of the matter, or outcome prediction, where the GAO attorney
advises the parties of the attorney's view of the likely outcome based

on the record, so that the likely unsuccessful party may take appropriate
action to resolve the protest.

FILING A PROTEST

WHO MAY PROTEST

By law, a GAO protest must be filed by an "interested party," which means
an actual or prospective bidder or offeror with a direct economic interest
in the procurement. 4 C.F.R. S: 21.0(a). In challenges of the evaluation
of proposals and the award of contracts, this generally means an offeror
that would potentially be in line for award if the protest were sustained.

Although many parties retain an attorney in order to benefit from the
attorney's familiarity with GAO's bid protest process and with procurement
statutes and regulations, an attorney is not required for purposes of
filing a protest. However, where the record includes another company's
proprietary information or the agency's source-selection-sensitive
information, only attorneys will be allowed to see that information (and
then only if the attorneys are admitted under a protective order, as
discussed below).

WHAT TO PROTEST

Although most protests challenge the acceptance or rejection of a bid or
proposal and the award or proposed award of a contract, GAO considers
protests of defective solicitations (e.g., allegedly restrictive
specifications, omission of a required provision, and ambiguous or
indefinite evaluation factors), as well as certain other procurement
actions (e.g., the cancellation of a solicitation). The termination of a
contract may be protested if the protest alleges that the termination was
based on improprieties in the award of the contract. 4 C.F.R. S: 21.1(a).
Where the agency involved has agreed in writing, GAO will consider
protests concerning (1) awards of subcontracts by or for a federal agency,
(2) sales by a federal agency, and (3) procurement actions by government
entities that do not fall within the strict definition of federal agencies
in 4 C.F.R. S: 21.0(c). 4 C.F.R. S: 21.13(a).

There are some matters that cannot be protested to GAO. The most common
grounds for dismissal of a protest in whole or in part are set forth in 4
C.F.R. S: 21.5.

PREPARATION OF A PROTEST

There is no prescribed form for filing a protest, except that the protest
must be in writing. 4 C.F.R. S: 21.1(b). Protests may be filed by hand
delivery, mail, commercial carrier, facsimile transmission, or e-mail. 4
C.F.R. S: 21.0(g). For protesters who decide to file by e-mail, we point
out that GAO uses Microsoft Office (including Microsoft Word) as its
office application software. Protests of different procurements must be
separately filed. 4 C.F.R. S: 21.1(f).

GAO does not require formal briefs or other technical forms of pleadings.
However, at a minimum, a protest must:

(1) Include the name, street address, e-mail address, and telephone and
facsimile (fax) numbers of the protester (or its representative, if any);

(2) Be signed by the protester or its representative;

(3) Identify the contracting agency and the solicitation and/or contract
number;

(4) Set forth a detailed statement of the legal and factual grounds of
protest, including copies of relevant documents;

(5) Set forth all information establishing that the protester is an
interested party for the purpose of filing a protest;

(6) Set forth all information establishing the timeliness of the protest;

(7) Specifically request a ruling by the Comptroller General of the United
States; and

(8) State the form of relief requested. 4 C.F.R. S: 21.1(c).

In addition, a protest may include a request for a protective order,
specific documents relevant to the protest, and/or a hearing. 4 C.F.R. S:
21.1(d). In this regard, protesters must explain the relevance of
requested documents to their protest grounds and the reason a hearing is
necessary to resolve the protest. Id.

The protest document must be clearly labeled if it contains information
that the protester believes is proprietary, confidential, or otherwise not
releasable to the public. In those cases, within 1 day after the filing of
the protest with GAO, the protester must provide to GAO and the
contracting agency a redacted version of the protest that omits such
information. 4 C.F.R. S: 21.1(g).

A party may request that GAO decide a protest using an express option
schedule or other flexible alternative procedures, including establishing
an accelerated schedule, issuing a summary decision, or using ADR
procedures. 4 C.F.R. S: 21.10(a), (e). GAO also may invoke alternative
procedures, including ADR, on its own initiative.

Practice tip: Redacted Protests

A protester must file a redacted protest with GAO and the contracting
agency within 1 day after the filing of the unredacted protest with GAO in
order to facilitate the agency's notice of the protest to potential
intervenors.

WHEN TO PROTEST

The regulations set forth the timeliness requirements for filing protests
at GAO. 4 C.F.R. S: 21.2. Because bid protests may delay the procurement
of needed goods and services, GAO, except under limited circumstances,
strictly enforces these timeliness requirements.

Protests alleging improprieties in a solicitation must be filed before bid
opening or the time set for receipt of initial proposals if the
improprieties were apparent prior to that time. 4 C.F.R. S: 21.2(a)(1). A
solicitation defect that was not apparent before that time must be
protested not later than 10 days after the defect became apparent. In
negotiated procurements, if an alleged impropriety did not exist in the
initial solicitation but was later incorporated into the solicitation by
an amendment, a protest based on that impropriety must be filed before the
next closing time established for submitting proposals. Id.

In all other cases, protests must be filed not later than 10 days after
the protester knew or should have known the basis of protest (whichever is
earlier), with the exception of protests challenging a procurement
conducted on the basis of competitive proposals under which a debriefing
is "requested and, when requested, is required" (that is, a debriefing
that is required by law). In these cases, with respect to any protest
basis that was known or should have been known before the statutorily
required debriefing, the protester should not file its initial protest
before the debriefing date offered to the protester, but must file its
initial protest not later than 10 days after the date on which the
debriefing was held. 4 C.F.R. S: 21.2(a)(2).

The purpose of the exception to the timeliness rules for negotiated
procurements where debriefings are required by law is to encourage vendors
to seek, and contracting agencies to give, early and meaningful
debriefings prior to the vendor's deciding whether or not to file a
protest. A protester therefore will always have up to 10 days after the
required debriefing to file its initial protest.

Special timeliness rules govern protests initially filed with the
contracting agency. In those cases, the protest to GAO must be filed not
later than 10 days after the protester learned of "initial adverse agency
action." 4 C.F.R. S: 21.2(a)(3). Deciding when adverse agency action
occurs is straightforward when the protester receives oral or written
notice that the agency is denying the agency-level protest. Protesters
should keep in mind, however, that GAO views as adverse agency action any
action

that makes clear that the agency is denying the agency-level protest.
Examples of adverse agency action include the agency's proceeding with bid
opening or the receipt of proposals, the rejection of a bid or proposal,
or the award of a contract despite the agency-level protest. Firms that
have filed an agency-level protest and are considering filing a subsequent
protest with GAO should be alert to any possible agency action that could
be viewed as indicating that the agency is denying the agency-level
protest.

Agency-level protests must be filed in accordance with GAO's timeliness
rules at 4 C.F.R. S: 21.2(a)(1) and (a)(2), unless the agency imposes a
more stringent time for filing, in which case the agency's time for filing
will control. Thus, even if a firm files a protest with GAO within 10 days
of initial adverse agency action, GAO will consider the protest untimely
if the agency-level protest was not timely filed under GAO's timeliness
rules or under an agency's rules if those rules are stricter. 4 C.F.R. S:
21.2(a)(3). For example, if a firm waits until after bid opening to file
an agency-level protest of an apparent solicitation impropriety, GAO will
not consider a protest of that impropriety even if it is filed within 10
days of the firm's learning that the agency has denied the agency-level
protest, since the agency-level protest was not filed prior to bid
opening.

GAO may consider an untimely protest where exceptional circumstances
beyond the protester's control caused the delay in filing the protest, or
where the protest presents novel or significant issues of interest to the
procurement community. 4 C.F.R. S: 21.2(c). Protesters should be aware,
however, that GAO will invoke these exceptions sparingly.

Finally, GAO recognizes that the North American Free Trade Agreement
(NAFTA) contains a 10-working-day timeliness requirement, which is
inconsistent with GAO's timeliness rules. However, because of the
flexibility of GAO's timeliness rules, GAO will afford a NAFTA protester
all treaty rights for purposes of the timely filing of a protest.

Practice tip: Protests Filed Prior to a Debriefing Required by Law.

In administering the timeliness rule at 4 C.F.R. S: 21.2(a)(2), GAO may
close a file without prejudice on any protest that has been filed before a
statutorily required debriefing, upon appropriate notice by an agency to
GAO that a debriefing date has been offered. Appropriate notice would
include the agency's furnishing a copy of its letter or other notice to
the protester scheduling the debriefing. GAO anticipates that the
debriefing will normally occur on the first date offered by the agency. In
the event, however, that the agency subsequently agrees to another date,
the debriefing held on that date will be used as the basis for determining
the timeliness of the protest.

Practice tip: Debriefing Procedures

The rules governing the timing and contents of a statutorily required
debriefing are contained in Part 15 of the Federal Acquisition Regulation.

Practice tip: Diligent Pursuit

In all cases, protesters must diligently pursue the information that may
provide a basis for protest, including requesting a prompt debriefing.

Practice tip: Supplemental/Amended Protests

Protesters should keep in mind that each new ground of protest must
independently satisfy GAO's timeliness requirements. For example, if GAO
grants an extension of time for filing comments on an agency report, the
comment extension does not extend the 10-day time frame for filing a
timely supplemental/amended protest. As a result, if a protester waits
until the extended due date for filing comments to raise new or amended
protest grounds, those grounds may be dismissed as untimely if they were
raised more than 10 days after the protester learned or should have
learned of them.

WHERE TO SEND A PROTEST

Protests must be addressed to the General Counsel, General Accounting
Office, 441 G St., N.W., Washington, DC 20548, Attention: Procurement Law
Control Group. 4 C.F.R. S: 21.1(b). GAO's office hours are from 8:30 a.m.
to 5:30 p.m., eastern time, Monday through Friday.

Protests may be filed by hand delivery, mail, commercial carrier, fax, or
e-mail. 4 C.F.R. S: 21.0(g). Protests filed by hand delivery or commercial
carrier must be delivered to the window located in the G Street lobby in
GAO's main building at the above-referenced address.

Practice Tip: Filing Protests By Hand Delivery

Hand delivery to the window may not be possible during certain periods due
to security or other concerns. When this is the case, protesters must
avail themselves of one of the alternative filing methods.

Protesters filing their protests by fax should verify GAO's fax number
prior to transmission. GAO's current official bid protest fax number is
(202) 512-9749. Fax users should take into account the risk that GAO's
receiving fax machine might be

busy, particularly near the end of a business day. GAO will time/date
stamp a fax transmission as of the time the last page is received, which
may affect the timeliness of the entire submission. Additional recorded
information concerning the filing of protests at GAO may be obtained by
calling GAO's Procurement Law Control Group at (202) 512-5282.

Practice Tip: Filing Protests By E-Mail

Protests filed by e-mail should be addressed to Protests@gao.gov. Upon our
receipt of an e-mailed protest, the protester will be sent an automatic
confirming e-mail reply. This reply also will advise that assignment and
status information is available on our on-line Bid Protest Docket,
accessible via the Legal Products link on GAO's Internet home page
(www.gao.gov), or by calling our protest status line at 202-512-5436.
Where protests filed by e-mail include attachments containing multiple
documents, the attachments should include an index identifying the
documents and their location in the attachment.

A copy of the protest, including all attachments, must be filed with the
individual or location identified for that purpose in a solicitation, or
with the contracting officer, within 1 day after the protest is filed with
GAO. 4 C.F.R. S: 21.1(e).

Practice tip: Risk of Timely Receipt

Protesters should be aware that, whatever method of transmission they
choose, they bear the risk that their protest will not be received at GAO
in a timely manner.

AFTER A PROTEST IS FILED

ACKNOWLEDGMENT OF A PROTEST

Upon receipt of a protest, GAO generally sends the protester a written
notice acknowledging receipt of the protest. 4 C.F.R. S: 21.3(a). In
appropriate cases, GAO may issue a protective order package, a hearing
schedule, and/or a status conference notice simultaneously with the
acknowledgment notice. The only instance in which an acknowledgment notice
is not sent is where the protest is summarily dismissed, in which case a
notice of dismissal will be furnished.

The acknowledgment notice includes important information. First, it
provides the file number by which GAO identifies the protest. That number
consists of a letter followed by six digits (e.g., B-123456). Second, the
notice contains the date on which the contracting agency's response to the
protest, the agency report, is due. The notice warns that GAO will assume
that the protester receives the report on that date and may dismiss the
protest if GAO does not receive the protester's written

comments in response to the report within 10 days of that date. Third, the
notice contains the date by which a written decision will be issued by
GAO.

Finally, the acknowledgment notice identifies the GAO attorney or the GAO
contact person handling the protest and that individual's telephone
number. That individual is the GAO employee who should generally be
contacted with any procedural questions about the protest. Inquiries about
the status of the case may be directed to GAO's bid protest status line at
(202) 512-5436. This telephone number and the previously referenced
official fax number also appear on the notice.

Practice Tip: GAO Web Site Information

GAO's Bid Protest Docket, including information on the status of a
particular protest, can be found on GAO's Internet web home page
(www.gao.gov) under the Legal Products heading. Other useful information
is available at that site, including a copy of this Descriptive Guide, the
Guide to GAO Protective Orders, and GAO's Bid Protest Regulations.

CONFIRMATION OF REPORT REQUIREMENT

Within 1 day of receipt of the protest, GAO will telephone the contracting
agency to advise it that a protest has been filed. 4 C.F.R. S: 21.3(a).
That telephone call is important because it is the official notice that
may trigger a statutory stay of the award or performance of a contract
pending GAO's decision. The call also triggers the agency report
requirement. For this reason, protesters should file their protests
sufficiently in advance of the expiration of the statutory period after
award or after a statutorily required debriefing to allow GAO time to
notify the agency that a protest has been filed for purposes of triggering
the statutory stay. GAO follows up the telephone notice with a written
confirmation of the report requirement that includes essentially the same
information provided to the protester in the acknowledgment notice.

Practice tip: Statutory Stay

If a protest is being filed shortly before the deadline for the triggering
of an automatic stay of award or performance, the protester should bring
this to GAO's attention at the time of filing; this will enable GAO to
attempt to provide expedited notice of the protest to the contracting
agency.

Although the telephone notice from GAO to the contracting agency may
trigger a statutory stay, GAO does not review agency decisions in this
regard, and will not consider a protest challenging an agency's decision
not to delay a procurement, that is, to override a stay.

INTERVENORS

Immediately after receiving notice of the protest from GAO, the
contracting agency must give notice of the protest to the contractor if an
award has been made; if no award has been made, the agency must notify all
bidders or offerors that have a substantial chance of receiving an award.
GAO may permit other firms to participate in the protest as "intervenors."
4 C.F.R. S: 21.0(b). If the award has been made, GAO permits only the
awardee to intervene. If the award has not been made, firms wishing to
intervene should so advise GAO and the other parties, and then contact GAO
to learn whether they will be permitted to intervene. The notice of
intervention can be a brief letter that includes the name, address, and
telephone and fax numbers of the intervenor or its representative, if any,
and advises GAO and all other parties of the intervenor's status.

Practice tip: Notice of Appearance

It is helpful for the attorney who will represent the contracting agency
in the protest to send a written notice to GAO and the protester (or its
representative) advising of his or her name, address, telephone and fax
numbers, and e-mail address. An intervenor (or its representative) should
also provide the same information to GAO, the protester or its
representative, and the agency attorney. Providing such information early
in the bid protest process will help to ensure that communications between
the parties are not delayed.

SUMMARY DISMISSAL

If GAO determines that it is appropriate to dismiss the protest on
jurisdictional or procedural grounds, GAO will not review the merits of
the protest, and thus will not request an agency report. 4 C.F.R. S: 21.5.
For example, if the protest is untimely on its face or if it raises issues
that GAO does not consider (such as the awardee's business size status),
GAO will dismiss it without requiring the contracting agency to submit a
report. GAO may also summarily dismiss individual grounds of protest. Id.
For example, if a protest alleges that a solicitation uses overly
restrictive technical specifications and uses the incorrect definition of
a small business, GAO will dismiss the latter ground (which is for
consideration by the Small Business Administration, not GAO), but may
request an agency report on the remaining ground.

As a general rule, GAO will dismiss a protest that fails to set forth a
detailed statement of the legal and factual grounds of protest or that
fails to state legally sufficient grounds of protest. 4 C.F.R. S: 21.5(f),
citing 4 C.F.R. S: 21.1(c)(4) and 4 C.F.R. S: 21.1(f), respectively.

Once the protest is received, the contracting agency and/or an intervenor
may request that GAO summarily dismiss the protest or some of its grounds.
4 C.F.R. S: 21.3(b). Where summary dismissal may be appropriate, the
request for dismissal should be made as soon as practicable after the
protest is filed. Id. The request should be in writing and sent to all
parties. Unless it is clear that dismissal is appropriate, GAO will
generally permit the protester to file a written response to the dismissal
request. GAO will promptly address the dismissal request. If GAO grants
the request, either in whole or in part, GAO will not require the agency
to prepare a report in response to the protest or in response to those
grounds of protest that were dismissed.

PROTECTIVE ORDERS

If the record in a protest contains "protected" information, that is, a
company's proprietary or confidential data or the agency's
source-selection-sensitive information, that information cannot be made
public. In order to allow limited access to protected information relevant
to a protest, GAO may issue a protective order. 4 C.F.R. S: 21.4. The
protective order strictly controls who has access to protected material
and how that material is labeled, distributed, stored, and disposed of at
the conclusion of the protest. A protective order package, which includes
the protective order and the application(s) for access to material under a
protective order, generally will be issued soon after a protest is filed
but, in appropriate cases, may be issued simultaneously with the
acknowledgment notice. Where a protective order is in place for a protest,
parties may file documents by e-mail only if authorized by, and only in
accordance with procedures specifically established by, GAO with regard to
that protest. 4 C.F.R. S: 21.4(b).

Only individuals who apply to GAO, and whose applications are approved by
GAO, will be permitted access to protected information. Those individuals
must be attorneys or consultants retained by attorneys; the attorneys may
be outside counsel or in-house counsel. The applicants need to show that
they are not involved in competitive decision making for any company that
could gain a competitive advantage from access to protected information
and that there will be no significant risk of inadvertent disclosure of
such information. 4 C.F.R. S: 21.4(c). GAO has issued a number of
decisions that address matters related to the admission of applicants
under a protective order. Individuals permitted access to protected
information are not allowed to disclose that information to others. This
means, for example, that a protester's attorney permitted access to
protected information under a protective order is prohibited from
revealing such information to the client. GAO may impose sanctions on any
individual who violates the terms of a protective order, 4 C.F.R. S:
21.4(d), or on individuals not admitted to the protective order who
actively seek and obtain information that they know is covered by the
protective order.

Because the information released under a protective order is not GAO's
but, rather, the contracting agency's or a private party's, GAO relies on
the parties to carefully review applications for access to material under
a protective order (and to call to

GAO's attention any possible violation of a protective order). If no party
objects to an individual's application, GAO will generally admit the applicant under
the protective order. It is important that any objections to an individual's
application be promptly raised. By the end of the second day after receiving the
application, the objecting party must advise GAO and the other parties that there is an
objection to the applicant's admission. 4 C.F.R. S: 21.4(c). The GAO attorney will
generally permit the objecting party to submit the specific objection, in writing,
the next day. GAO will promptly address any objections. Even after the period for filing
an objection has passed, GAO may withhold its ruling on an application (or
may revoke an admission) if information comes to light indicating that the applicant
does not meet the criteria for admission.

Note that, under paragraph 1 of the protective order, a protective order
issued for an initial protest is automatically extended by the terms of the order to
cover all proceedings associated with the initial protest, including
supplemental/amended protests, requests for reconsideration, and claims for costs. Under
paragraph 7 of the protective order, GAO expressly authorizes a party admitted under a
protective order to retain a single copy of a protected decision or letter issued by
GAO, subject indefinitely to the terms of the order (except those terms regarding the
return or destruction of protected material). Finally, in paragraph 7 of the
application for both outside counsel and in-house counsel, GAO requires applicants to disclose
those instances within the last 5 years when they have been denied admission to
a protective order, or had admission revoked, or been found to have violated
a protective order issued by GAO or by an administrative or judicial
tribunal.

Further explanation of the protective order process at GAO may be found in
The Guide To GAO Protective Orders, which may be viewed on GAO's Internet
web site (www.gao.gov) by selecting the Bid Protests line under the Legal
Products heading. A sample protective order and sample applications for access to
material under a protective order for outside counsel, in-house counsel, and
consultants retained by counsel are reproduced in the appendixes to the Guide.

Any violation of the terms of a protective order may result in the
imposition of such sanctions as GAO deems appropriate, including but not
limited to referral of the violation to appropriate bar associations or
other disciplinary bodies, and restricting the individual's practice
before GAO. 4 C.F.R. S: 21.4(d).

Practice tip: Protective Orders

Since only attorneys, or consultants they retain, may be admitted under a
protective order, GAO generally will not issue a protective order in a
protest, even if the record will include protected information, if the
protester is proceeding without an attorney. Although GAO may issue a
protective order on its own initiative, because a protective order is
meant to help the protester, through counsel, learn the relevant facts,
GAO views it as the responsibility of the protester's counsel in the first
instance to request a protective order and to submit timely applications
for admission. 4 C.F.R. S: 21.4(a). If protester's counsel delays
submitting applications for admission under a protective order (for
example, until after receipt of the agency report), GAO generally will not
consider this delay as a reason to extend the period of time for
protester's counsel to file comments on the report.

Practice tip: Violations of Protective Orders--Admonishment and Sanctions

GAO has admonished attorneys for violating the terms of a protective order
when they have used protected material in court or in another
administrative forum prior to receiving permission from GAO to do so. GAO
has admonished attorneys permitted access to protected material under a
protective order when they themselves, or clerical or other support staff
under their supervision, have inadvertently or improperly released such
material.

GAO has sanctioned attorneys permitted access to protected material under
a protective order when they have unilaterally redacted documents
containing protected information and released these redacted versions of
the documents to individuals not admitted under the protective order prior
to the expiration of the 2-day "cooling off" period; GAO denied these
attorneys access to protected material under any protective order for 3
months. GAO has sanctioned an attorney permitted access to protected
material under a protective order when she furnished the agency report to
a representative of the protester, her client, who was not admitted under
the protective order, an action characterized by GAO as a "gross violation
of the clear terms of the order"; GAO denied this attorney access to
protected material under any protective order for 2 years and referred the
matter to the appropriate bar association.

Practice Tip: Abuse of the Protest Process

GAO considers the protective order process essential to the proper
functioning of the bid protest process as a whole. While the protective
order applies primarily to the attorneys and consultants admitted under
it, where anyone's purposeful actions (such as those of a company
official) subvert that process, GAO may impose appropriate sanctions,
including dismissal of the protest, to protect the integrity of the bid
protest system. For a discussion of GAO's position, see Network Sec.
Tech., Inc., B-290741.2, Nov. 13, 2002, 2002 CPD P: __.

AGENCY REPORT

Within 30 days after an agency receives telephonic notice of a protest
from GAO, the agency is required to provide GAO, the protester, and any
intervenors a complete written report responding to the protest, including
all relevant documents, or portions of documents, and an explanation of
the agency's position. 4 C.F.R. S: 21.3(c). The report generally includes
a statement of the relevant facts (and an estimate of the contract value)
signed by the contracting officer, a memorandum of law explaining the
agency's position in terms of procurement law, and a list and copies of
all relevant documents, or portions of documents, not previously
furnished. 4 C.F.R. S: 21.3(d).

GAO encourages agencies to voluntarily release to the parties documents
that are relevant to the protest prior to the filing of the agency report.
Documents provided to the parties before the agency report is filed, or
documents that are otherwise made available to the parties by, for
example, allowing them to review documents on site at the agency before
the report is filed, need not be produced in the copy of the report
provided to the parties. 4 C.F.R. S: 21.3(c).

Practice Tip: Early Document Production

GAO has found that protests can be more promptly resolved where an agency
releases relevant documents before the agency report is filed, since this
ensures that any supplemental protest grounds will be raised and developed
early in the protest process. This is especially true in the case of
negotiated procurements, where disclosure of core documents such as
evaluation materials and the awardee's proposal often leads to
supplemental protest arguments.

In addition, so that GAO may resolve any document disputes prior to the
filing of the agency report, GAO requires that at least 5 days prior to
the filing of the report, in cases in which the protester has requested in
its protest, or shortly thereafter, specific documents material to the
disposition of the protest, the agency prepare a list of those documents,
or portions of documents, that it has previously released or

intends to produce in its report, and of the documents it intends to
withhold and the reasons for the proposed withholding. Id. The list must
be provided to all parties and to GAO. Objections to the scope of the
agency's proposed disclosure or nondisclosure of documents must be filed
with GAO and all other parties within 2 days of receiving the list. Id.

Practice Tip: Document Disputes

GAO expects parties initially to attempt to resolve document disputes
themselves, without the involvement of the GAO attorney. Where agreement
cannot be reached, GAO will resolve the matter.

The agency may omit documents, or portions of documents, from the copy of
the report provided to the parties if the omitted information is protected
and a party receiving the report is not represented by counsel admitted
under a protective order. 4 C.F.R. S: 21.3(e). Where the protester is
proceeding without counsel admitted under a protective order and documents
are withheld, it is important that the agency provide the protester with
information sufficient to clearly inform the protester of the agency's
position, so that the protester may comment intelligently on the report.

Occasionally, the agency may be aware of the existence of relevant
documents that only the protester possesses. In appropriate cases, the
agency may request that the protester produce those documents. 4 C.F.R. S:
21.3(d). If GAO agrees that the documents are relevant, it may ask the
protester to provide a copy of the documents to GAO and the other parties,
subject to the terms of any protective order.

ADDITIONAL DOCUMENT REQUESTS

If a protester learns of the existence or relevance of additional
documents that it believes GAO needs to consider in deciding the protest,
it may request the production of those documents by filing a supplemental
document request. 4 C.F.R. S: 21.3(g). Typically, this arises where the
protester, in reading the agency report, sees references to documents that
the agency relies on in support of its position, but has not produced. A
protester seeking the production of additional documents should submit a
written request for those documents to GAO and the other parties within 2
days after the existence or relevance of the documents is known or should
have been known, whichever is earlier. Id. The agency should respond to
the request not later than 2 days after receiving the request by either
producing the documents, or portions of documents, or explaining why the
documents are not being produced. Id.

COMMENTS ON THE AGENCY REPORT

The protester and any intervenors may file written comments on the agency
report. Comments generally are due at GAO within 10 days after receipt of
the report.

4 C.F.R. S: 21.3(i). Unless otherwise advised by the protester, GAO will
assume that the protester received the report not later than the due date
specified in the acknowledgment notice furnished by GAO. Id. A copy of the
comments should be furnished to each of the other parties not later than
the day after the comments are received at GAO.

Even if the contracting agency produces withheld documents at the
direction of GAO after the report has been submitted, comments will be due
within the original 10-day comment filing period, unless GAO extends this
period. 4 C.F.R. S: 21.3(h).

Failure of the protester to file comments within the 10-day period, within
a longer period established by an extension granted by GAO, or within a
shorter period established by GAO in accordance with 4 C.F.R. S: 21.10(e),
will result in dismissal of the protest. 4 C.F.R. S: 21.3(i).

Practice Tip: Comments

Protesters should be aware that comments consisting solely of general
statements requesting that GAO review the protest on the existing record
generally are not sufficient to rebut the agency report. As a result,
protests are rarely sustained where the protester does not file
substantive comments on the report.

Practice tip: Additional Submissions

Generally, after comments on the agency report are filed, and unless a
hearing is held, the record is considered closed. However, as may be
appropriate to ensure the fair resolution of the protest, GAO may request
or permit the submission of additional statements by the parties and by
other parties not participating in the protest. 4 C.F.R. S: 21.3(j).
Additional statements may not be submitted unless specifically requested
by GAO or permission has been granted by GAO. Id. In other words, when GAO
believes that further input is necessary from an agency or other parties,
GAO will not foreclose the submission of additional information and will
apprise all parties in this regard.

EX PARTE COMMUNICATIONS

Parties should not attempt to engage in ex parte communications with the
GAO attorney assigned to the protest, or with any other GAO employee. An
ex parte communication refers to any oral or written communication between
a party and a GAO official that excludes one or more of the parties to the
protest, and concerns the merits of the protest or significant issues that
might affect the outcome of the protest. Although it may be necessary
during the proceedings to clarify a fact in the record or to explain in
greater detail a party's position in the case, GAO will not

entertain, and no one may submit to GAO, on an ex parte basis, any
evidence, explanation, analysis, or advice, whether written or oral,
regarding any substantive matter affecting the disposition of the protest.
Where it is necessary to discuss any substantive issue with GAO, a
telephone conference should be requested. A copy of all written
submissions to GAO, redacted where necessary, should be provided to all
parties to the protest.

HEARINGS

At the request of a party, or on its own initiative, GAO may conduct a
hearing in person or by telephone where it concludes that the protest
cannot be resolved on the written record alone. 4 C.F.R. S: 21.7(a), (c).

Because hearings increase the costs and burdens of protests, GAO holds
hearings only when necessary. A request for a hearing should explain why a
hearing is necessary to resolve the protest, and point out, for example,
factual and legal questions that GAO must consider in order to decide the
protest. 4 C.F.R. S:S: 21.1(d)(3), 21.7(a). GAO has issued a number of
decisions that discuss reasons for holding hearings. While the regulations
do not establish a deadline for requesting a hearing, such a request
should be submitted as early as possible in the protest process in order
to avoid unnecessary delays and disruptions. Parties should also be aware
that GAO may determine shortly after a protest is filed whether the case
is one in which a hearing appears likely to be appropriate. On the other
hand, the appropriateness of a hearing often is not clear until after the
contracting agency has filed its report and, in many cases, is not clear
until after the protester has submitted its comments on the report. GAO
may decide at these later times that a hearing is necessary to resolve the
protest.

In cases where GAO decides to hold a hearing, it will generally conduct a
pre-hearing conference with all parties. 4 C.F.R. S: 21.7(b). The purpose
of that conference is to review the scope of the hearing, identify the
appropriate witnesses and their availability, establish the date and
location of the hearing, and discuss other logistical matters. In cases
where GAO determines that only some of the protest issues require a
hearing, it will generally limit the hearing to those issues. The GAO
attorney handling the protest will conduct both the pre-hearing conference
and the hearing. The format of hearings varies from formal (direct- and
cross-examination of witnesses conducted by counsel for the parties) to
informal (a discussion of the issues by counsel and others). For this
reason, the pre-hearing conference is usually the best opportunity to
clarify how the GAO attorney expects to conduct the hearing, as well as to
raise any other questions about the hearing.

A GAO hearing is, in principle, open to the public. In practice, however,
protest hearings often involve protected information. As a result, most
hearings are closed, except to agency personnel and those individuals
admitted under the protective order. 4 C.F.R. S: 21.7(d).

At least 1 day prior to the hearing, parties must advise GAO of those
individuals expected to attend the hearing so that these individuals may
gain access to the GAO building where the hearing room is located.

The GAO hearing room is equipped with video cameras and microphones, which
automatically record the proceedings. That system produces a video or
electronic transcript, a copy of which is provided to the parties at no
charge at the conclusion of the hearing. In addition, parties may wish to
have a court reporter attend the hearing to prepare a written transcript.
A request to that effect should be presented before the day of the hearing
to the GAO attorney handling the protest. Such a request will usually be
granted as long as all parties have access to a written transcript. Where
a hearing is held by electronic means, such as by telephone or video
teleconferencing, the parties and GAO will determine beforehand the manner
in which the hearing will be recorded.

If a hearing is held, all parties, including the agency, will be permitted
to file written comments on the hearing. 4 C.F.R. S: 21.7(g). Those
comments are due 5 days after the hearing ends, unless GAO sets a
different date. Id. Hearings generally are held after receipt of comments
on the agency report.

DECISION TIMETABLE

Once the record is complete, GAO will consider the protest and decide the
case through a written decision issued by the Comptroller General. At the
latest, the decision will be issued 100 days after the protest is filed,
unless GAO decides the case under the 65-day express option schedule. 4
C.F.R. S: 21.9(a), (b). If a protester has filed a timely supplemental or
a timely amended protest, GAO will endeavor to resolve the
supplemental/amended protest within the 100-day time frame for a decision
on the initial protest. 4 C.F.R. S: 21.9(c). If that is not feasible, GAO
may consider using the express option schedule or other accelerated
schedule for the resolution of the supplemental/amended protest. Id.; 4
C.F.R. S: 21.10(e). Parties may check the status of a protest on GAO's Bid
Protest Docket, found on GAO's Internet web home page (www.gao.gov).

EXPRESS OPTIONS

GAO may decide at the request of a party or on its own initiative that a
protest can be resolved under an expedited schedule, referred to as the
"express option." 4 C.F.R. S: 21.10(a). A party requesting that GAO decide
the case on this basis should submit a written request to that effect not
later than 5 days after the protest is filed. 4 C.F.R. S: 21.10(c).

Under the express option schedule, the agency report is due within 20 days
after the contracting agency receives notice from GAO that the express
option will be used. 4 C.F.R. S: 21.10(d)(1). Comments on the report
generally are due within 5 days after

receipt of the report. 4 C.F.R. S: 21.10(d)(2). If a hearing is needed,
comments on the hearing (and on the report if not already filed) must be
filed within 5 days after the hearing ends, unless GAO sets a different
date. 4 C.F.R. S: 21.10(d)(3). Under the express option schedule, GAO's
decision will be issued not later than 65 days after the protest was
filed. 4 C.F.R. S:S: 21.9(b), 21.10(b). GAO may decide at any time that
the express option schedule is no longer appropriate, and may set a
different schedule for the protest, which will not exceed the time frame
(100 days) for deciding a non-express option case.

Where a case is not appropriate for resolution under the express option,
but there may be a justifiable basis for expediting the decision, the
parties should discuss with the GAO attorney whether an expedited schedule
is appropriate.

FLEXIBLE ALTERNATIVE PROCEDURES AND ALTERNATIVE DISPUTE RESOLUTION

Notwithstanding any other provision in these regulations, at the request
of a party or on its own initiative, GAO may use flexible alternative
procedures, including, for example, establishing an accelerated schedule
and/or issuing a summary decision, to resolve any protest. 4 C.F.R. S:
21.10(e). This provision is intended to provide a flexible, accelerated
protest resolution procedure at GAO that will minimize disruptions to the
procurement cycle. In addition, GAO may use alternative dispute resolution
(ADR) procedures at the request of one or more of the parties, or where
GAO deems appropriate. This may take the form of negotiation assistance
either before or after a protest is filed, or outcome prediction, where
GAO will advise the parties of the likely outcome of the protest in order
to allow the party likely to be unsuccessful to take appropriate action to
resolve the protest without a written decision.

Practice Tip: ADR

A GAO attorney generally will not conduct ADR in the form of outcome
prediction unless the parties indicate in advance a willingness, if
identified as the likely unsuccessful party, to take appropriate action to
resolve the protest--typically, corrective action by the agency, or
withdrawal of the protest by the protester. The GAO attorney will discuss
these and other matters with the parties in determining whether a case is
appropriate for ADR.

STATUS AND OTHER TYPES OF INFORMAL CONFERENCES

To facilitate the expeditious development and resolution of a protest, GAO
will conduct status and other types of informal conferences, by telephone
or in person, with all parties participating in a protest. 4 C.F.R. S:
21.10(f). Such conferences may

be held at any time during the bid protest process and will be tailored to
the circumstances of a particular case. For example, status and other
types of informal conferences are beneficial for resolving protective
order admission objections, document disputes, and summary dismissal
requests; for discussing issues related to hearings; and for obtaining
answers to questions that are relevant and material to the disposition of
a protest.

PROTEST DISPOSITION

GAO will either dismiss, deny, or sustain a protest. GAO generally
sustains protests where it determines that the contracting agency violated
procurement statutes or regulations, unless it concludes that the
violation did not prejudice the protester. Where a protest is sustained,
GAO will recommend appropriate corrective action. In fashioning its
recommendation, GAO will take into consideration the circumstances of the
procurement, such as the agency's stated need for the goods or services at
issue, the extent to which performance has been completed (in post-award
protests where performance has not been stayed), and similar factors. In
appropriate circumstances, GAO will recommend that the agency terminate an
improper award or, where this is not feasible, that the agency not
exercise any renewal options in the improperly awarded contract. 4 C.F.R.
S: 21.8(a), (b).

If the protest is sustained, GAO generally will recommend that the
protester be reimbursed the costs of filing and pursuing the protest,
including attorneys' fees and consultant and expert witness fees.
Occasionally, where there is no other relief available, GAO will recommend
that the protester also be reimbursed the costs of preparing its bid or
proposal. 4 C.F.R. S: 21.8(d).

Practice Tip: Agency Corrective Action--Costs

Where the contracting agency takes corrective action in the face of a
clearly meritorious protest, but fails to do so promptly, GAO may
recommend that the agency pay the protester its reasonable protest costs.
In general, if an agency advises GAO of its intent to take corrective
action by the due date of its protest report, GAO will consider that
action to be prompt and will not recommend reimbursement of protest costs.

Where GAO has recommended reimbursement of costs, the protester must
submit a detailed claim for costs, certifying the time expended and costs
incurred in pursuing the protest, directly to the contracting agency
within 60 days after receipt of GAO's recommendation that the agency pay
these costs. 4 C.F.R. S: 21.8(f)(1). A claim must be supported by adequate
documentation. GAO expects the protester and the agency to determine the
exact amount to be paid. If the protester and agency cannot agree, GAO
may, at the protester's request, decide the matter. 4 C.F.R. S:
21.8(f)(2).

Protesters should keep in mind that, except in very limited circumstances,
the costs for attorneys' fees may not exceed $150 per hour. GAO never
recommends that agencies pay lost profits or other common-law damages.

When GAO recommends corrective action, the Competition in Contracting Act
of 1984 requires the agencies affected to report to the Comptroller
General whenever they have not fully implemented the recommendation within
60 days. The Comptroller General, in turn, reports to the Congress each
instance where recommendations were not fully implemented.

Practice tip: Distributing GAO's Decision

Protesters may check on the status of a protest by reviewing the Bid
Protest Docket on GAO's web site (www.gao.gov), under the Legal Products
heading, or by calling GAO's bid protest status line at (202) 512-5436.
Once signed, a copy of a decision is generally available on GAO's web site
within 24 hours of the case being closed. Decisions also will be provided
to the parties by mail, facsimile or e-mail. 4 C.F.R. S: 21.12(b).

Practice Tip: Public Versions of Decisions

Where a decision contains protected information, it will not be accessible
from GAO's web site or otherwise made available to the public. Instead, a
redacted version of the decision, omitting the protected information, will
be prepared as soon as possible for release to the public, and the
redacted version will be accessible from GAO's web site. 4 C.F.R. S:
21.12. GAO typically will issue a redacted public version of the decision
within 2 to 3 weeks after the protected decision is issued. GAO will seek
the views of the parties before determining which information, if any,
should be redacted from the public version of the decision. Parties should
provide their views in this regard expeditiously.

Even if covered by a protective order during the protest process,
information will be redacted only where it is determined to be proprietary
or source selection sensitive. For example, evaluation scores and
unfavorable past performance information generally will not be redacted.

JUDICIAL PROCEEDINGS

A party must immediately advise GAO of any court proceeding that involves
a pending matter and must file with GAO copies of all relevant court
documents. 4 C.F.R. S: 21.11(a). GAO will not consider a protest or other
matter where it is the

subject of litigation in, or has been decided on the merits by, a court. 4
C.F.R. S: 21.11(b). For example, if a party files a protest with GAO
concerning the award of a contract, and thereafter files a complaint in
court also challenging the award, GAO will dismiss the protest. However,
at the request of the court, GAO may review the protest and issue an
advisory opinion or a decision for the court's consideration. Id. In such
a case, the time frames for filing the agency report, filing comments on
the report, conducting a hearing and filing hearing comments, and issuing
a decision may be modified to respond promptly to the court's request. Id.

REQUESTS FOR RECONSIDERATION

Any party who participated in the protest, including the protester, any
intervenor, and the contracting agency, may request that GAO reconsider
its decision in the protest. 4 C.F.R. S: 21.14(a). A request for
reconsideration does not result in the withholding of award or the
suspension of contract performance. 4 C.F.R. S: 21.14(c).

GAO must receive the request for reconsideration within 10 days after the
basis of reconsideration is known or should have been known, whichever is
earlier. 4 C.F.R. S: 21.14(b). The request must identify the alleged
factual and/or legal errors in the decision. 4 C.F.R. S: 21.14(a). GAO
will not consider a request that merely repeats the party's views already
expressed in the protest; a request that simply expresses disagreement
with the decision; or a request that provides information or raises an
argument that could have been, but was not, provided or raised during the
protest.

BID PROTEST REGULATIONS

The regulations governing the bid protest process appear in Part 21 of
Title 4 of the Code of Federal Regulations. Those regulations, as revised
January 1, 2003, are applicable to protests filed after that date. They
are reprinted below.

S: 21.0 Definitions.

(a) Interestedpartymeans an actual or prospective bidder or offeror whose
direct economic interest would be affected by the award of a contract or
by the failure to award a contract.

(b) Intervenormeans an awardee if the award has been made or, if no award
has been made, all bidders or offerors who appear to have a substantial
prospect of receiving an award if the protest is denied.

(c) Federal agencymeans any executive department or independent
establishment in the executive branch, including any wholly owned
government corporation, and any establishment in the legislative or
judicial branch, except the Senate, the House of Representatives, and the
Architect of the Capitol and any activities under his direction.

(d) Contracting agencymeans a Federal agency which has awarded or proposes
to award a contract under a protested procurement.

(e) Daysare calendar days. In computing any period of time described in
Subchapter V, Chapter 35 of Title 31, United States Code, including those
described in this part, the day from which the period begins to run is not
counted, and when the last day of the period is a Saturday, Sunday, or
Federal holiday, the period extends to the next day that is not a
Saturday, Sunday, or Federal holiday. Similarly, when the General
Accounting Office (GAO), or another Federal agency where a submission is
due, is closed for all or part of the last day, the period extends to the
next day on which the agency is open.

(f) Adverse agency actionis any action or inaction by a contracting agency
which is prejudicial to the position taken in a protest filed with the
agency, including a decision on the

merits of a protest; the opening of bids or receipt of proposals, the
award of a contract, or the rejection of a bid or proposal despite a
pending protest; or contracting agency acquiescence in continued and
substantial contract performance.

(g) A document is filedon a particular day when it is received by GAO by
5:30 p.m., eastern time, on that day. Protests and other documents may be
filed by hand delivery, mail, commercial carrier, facsimile transmission,
or other electronic means (but see S: 21.4(b) for restrictions on
electronic filing where a protective order has been issued). Hand delivery
and other means of delivery may not be practicable during certain periods
due, for example, to security concerns or equipment failures. The filing
party bears the risk that the delivery method chosen will not result in
timely receipt at GAO.

(h) Alternative disputeresolutionencompasses various means of resolving
cases expeditiously, without a written decision, including techniques such
as outcome prediction and negotiation assistance.

S: 21.1 Filing a protest.

(a) An interested party may protest a solicitation or other request by a
Federal agency for offers for a contract for the procurement of property
or services; the cancellation of such a solicitation or other request; an
award or proposed award of such a contract; and a termination of such a
contract, if the protest alleges that the termination was based on
improprieties in the award of the contract.

(b) Protests must be in writing and addressed as follows: General Counsel,
General Accounting Office, 441 G Street, NW., Washington, DC 20548,
Attention: Procurement Law Control Group.

(c) A protest filed with GAO shall:

(1) Include the name, street address, electronic mail address, and
telephone and facsimile numbers of the protester,

(2) Be signed by the protester or its representative,

(3) Identify the contracting agency and the solicitation and/or contract
number,

(4) Set forth a detailed statement of the legal and factual grounds of
protest including copies of relevant documents,

(5) Set forth all information establishing that the protester is an
interested party for the purpose of filing a protest,

(6) Set forth all information establishing the timeliness of the protest,

(7) Specifically request a ruling by the Comptroller General of the United
States, and

(8) State the form of relief requested.

(d) In addition, a protest filed with GAO may:

(1) Request a protective order,

(2) Request specific documents, explaining the relevancy of the documents
to the protest grounds, and

(3) Request a hearing, explaining the reasons that a hearing is needed to
resolve the protest.

(e) The protester shall furnish a complete copy of the protest, including
all attachments, to the individual or location designated by the
contracting agency in the solicitation for receipt of protests, or if
there is no designation, to the contracting officer. The designated
individual or location (or, if applicable, the contracting officer) must
receive a complete copy of the protest and all attachments not later than
1 day after the protest is filed with GAO. The protest document must
indicate that a complete copy of the protest and all attachments are being
furnished within 1 day to the appropriate individual or location.

(f) No formal briefs or other technical forms of pleading or motion are
required. Protest submissions should be concise and logically arranged,
and should clearly state legally sufficient grounds of protest. Protests
of different procurements should be separately filed.

(g) Unless precluded by law, GAO will not withhold material submitted by a
protester from any party outside the government. If the protester believes
that the protest contains

information which should be withheld, a statement advising of this fact
must be on the front page of the submission. This information must be
identified wherever it appears, and the protester must file a redacted
copy of the protest which omits the information with GAO and the agency
within 1 day after the filing of its protest with GAO.

(h) Parties who intend to file documents containing classified information
should notify GAO in advance to obtain advice regarding procedures for
filing and handling the information.

(i) A protest may be dismissed for failure to comply with any of the
requirements of this section, except for the items in paragraph (d) of
this section. In addition, a protest shall not be dismissed for failure to
comply with paragraph (e) of this section where the contracting officer
has actual knowledge of the basis of protest, or the agency, in the
preparation of its report, was not prejudiced by the protester's
noncompliance.

S: 21.2 Time for filing.

(a)(1) Protests based upon alleged improprieties in a solicitation which
are apparent prior to bid opening or the time set for receipt of initial
proposals shall be filed prior to bid opening or the time set for receipt
of initial proposals. In procurements where proposals are requested,
alleged improprieties which do not exist in the initial solicitation but
which are subsequently incorporated into the solicitation must be
protested not later than the next closing time for receipt of proposals
following the incorporation.

(2) Protests other than those covered by paragraph (a)(1) of this section
shall be filed not later than 10 days after the basis of protest is known
or should have been known (whichever is earlier), with the exception of
protests challenging a procurement conducted on the basis of competitive
proposals under which a debriefing is requested and, when requested, is
required. In such cases, with respect to any protest basis which is known
or should have been known either before or as a result of the debriefing,
the initial protest shall not be filed before the debriefing date offered
to the protester, but shall be filed not later than 10 days after the date
on which the debriefing is held.

(3) If a timely agency-level protest was previously filed, any subsequent
protest to GAO filed within 10 days of actual or

constructive knowledge of initial adverse agency action will be
considered, provided the agency-level protest was filed in accordance with
paragraphs (a)(1) and (a)(2) of this section, unless the contracting
agency imposes a more stringent time for filing, in which case the
agency's time for filing will control. In cases where an alleged
impropriety in a solicitation is timely protested to a contracting agency,
any subsequent protest to GAO will be considered timely if filed within
the 10-day period provided by this paragraph, even if filed after bid
opening or the closing time for receipt of proposals.

(b) Protests untimely on their face may be dismissed. A protester shall
include in its protest all information establishing the timeliness of the
protest; a protester will not be permitted to introduce for the first time
in a request for reconsideration information necessary to establish that
the protest was timely.

(c) GAO, for good cause shown, or where it determines that a protest
raises issues significant to the procurement system, may consider an
untimely protest.

S: 21.3 Notice of protest, submission of agency report, and time for
filing of comments on report.

(a) GAO shall notify the contracting agency by telephone within 1 day
after the filing of a protest, and, unless the protest is dismissed under
this part, shall promptly send a written confirmation to the contracting
agency and an acknowledgment to the protester. The contracting agency
shall immediately give notice of the protest to the contractor if award
has been made or, if no award has been made, to all bidders or offerors
who appear to have a substantial prospect of receiving an award. The
contracting agency shall furnish copies of the protest submissions to
those parties, except where disclosure of the information is prohibited by
law, with instructions to communicate further directly with GAO. All
parties shall furnish copies of all protest communications to the
contracting agency and to other participating parties. All protest
communications shall be sent by means reasonably calculated to effect
expeditious delivery.

(b) A contracting agency or intervenor which believes that the protest or
specific protest allegations should be dismissed

before submission of an agency report should file a request for dismissal
as soon as practicable.

(c) The contracting agency shall file a report on the protest with GAO
within 30 days after the telephone notice of the protest from GAO. The
report provided to the parties need not contain documents which the agency
has previously furnished or otherwise made available to the parties in
response to the protest. At least 5 days prior to the filing of the
report, in cases in which the protester has filed a request for specific
documents, the agency shall provide to all parties and GAO a list of those
documents, or portions of documents, which the agency has released to the
protester or intends to produce in its report, and of the documents which
the agency intends to withhold from the protester and the reasons for the
proposed withholding. Any objection to the scope of the agency's proposed
disclosure or nondisclosure of documents must be filed with GAO and the
other parties within 2 days of receipt of this list.

(d) The report shall include the contracting officer's statement of the
relevant facts, including a best estimate of the contract value, a
memorandum of law, and a list and a copy of all relevant documents, or
portions of documents, not previously produced, including, as appropriate:
the protest; the bid or proposal submitted by the protester; the bid or
proposal of the firm which is being considered for award, or whose bid or
proposal is being protested; all evaluation documents; the solicitation,
including the specifications; the abstract of bids or offers; and any
other relevant documents. In appropriate cases, the contracting agency may
request that the protester produce relevant documents, or portions of
documents, that are not in the agency's possession.

(e) Subject to any protective order issued in the protest pursuant to S:
21.4, the contracting agency shall simultaneously furnish a copy of the
report to the protester and any intervenors. The copy of the report filed
with GAO shall list the parties who have been furnished copies of the
report. Where a protester does not have counsel admitted to a protective
order and documents are withheld from the protester in accordance with
this part, the agency shall provide documents adequate to inform the
protester of the basis of the agency's position.

(f) The contracting agency may request an extension of time for the
submission of the list of documents to be provided by the

agency pursuant to S: 21.3(c) or for the submission of the agency report.
Extensions will be granted on a case-by-case basis.

(g) The protester may request additional documents after receipt of the
agency report when their existence or relevance first becomes evident.
Except when authorized by GAO, any request for additional documents must
be filed with GAO and the contracting agency not later than 2 days after
their existence or relevance is known or should have been known, whichever
is earlier. The contracting agency shall provide the requested documents,
or portions of documents, and a list to GAO and the other parties within 2
days or explain why it is not required to produce the documents.

(h) Upon the request of a party, GAO will decide whether the contracting
agency must provide any withheld documents, or portions of documents, and
whether this should be done under a protective order. When withheld
documents are provided, the protester's comments on the agency report
shall be filed within the original comment filing period unless GAO
determines that an extension is appropriate.

(i) Comments on the agency report shall be filed with GAO within 10 days
after receipt of the report, with a copy provided to the contracting
agency and other participating parties. The protest shall be dismissed
unless the protester files comments within the 10-day period, except where
GAO has granted an extension or has established a shorter period in
accordance with S: 21.10(e). Extensions will be granted on a case-by-case
basis. Unless otherwise advised by the protester, GAO will assume the
protester received the agency report by the due date specified in the
acknowledgment of protest furnished by GAO.

(j) GAO may request or permit the submission of additional statements by
the parties and by other parties not participating in the protest as may
be necessary for the fair resolution of the protest. The agency and other
parties shall not submit any additional statements unless the statements
are specifically requested by GAO or submitted after permission has been
granted by GAO.

S: 21.4 Protective orders.

(a) At the request of a party or on its own initiative, GAO may issue a
protective order controlling the treatment of protected information. Such
information may include proprietary,

confidential, or source-selection-sensitive material, as well as other
information the release of which could result in a competitive advantage
to one or more firms. The protective order shall establish procedures for
application for access to protected information, identification and
safeguarding of that information, and submission of redacted copies of
documents omitting protected information. Because a protective order
serves to facilitate the pursuit of a protest by a protester through
counsel, it is the responsibility of protester's counsel to request that a
protective order be issued and to submit timely applications for admission
under that order.

(b) If no protective order has been issued, the agency may withhold from
the parties those portions of its report that would ordinarily be subject
to a protective order. GAO will review in camera all information not
released to the parties. Where a protective order has been issued,
documents may be filed by electronic means (other than facsimile
transmission) only when specifically authorized by GAO.

(c) After a protective order has been issued, counsel or consultants
retained by counsel appearing on behalf of a party may apply for admission
under the order by submitting an application to GAO, with copies furnished
simultaneously to all parties. The application shall establish that the
applicant is not involved in competitive decision-making for any firm that
could gain a competitive advantage from access to the protected
information and that there will be no significant risk of inadvertent
disclosure of protected information. Objections to an applicant's
admission shall be raised within 2 days after receipt of the application,
although GAO may consider objections raised after that time.

(d) Any violation of the terms of a protective order may result in the
imposition of such sanctions as GAO deems appropriate, including referral
to appropriate bar associations or other disciplinary bodies and
restricting the individual's practice before GAO.

S: 21.5 Protest issues not for consideration.

A protest or specific protest allegations may be dismissed any time
sufficient information is obtained by GAO warranting dismissal. Where an
entire protest is dismissed, no agency report need be filed; where
specific protest allegations are

dismissed, an agency report shall be filed on the remaining allegations.
Among the protest bases that shall be dismissed are the following:

(a) Contract administration. The administration of an existing contract is
within the discretion of the contracting agency. Disputes between a
contractor and the agency are resolved pursuant to the disputes clause of
the contract and the Contract Disputes Act of 1978. 41 U.S.C. 601-613.

(b) SmallBusiness Administrationissues. (1) Small business size standards
and standard industrial classification. Challenges of established size
standards or the size status of particular firms, and challenges of the
selected standard industrial classification may be reviewed solely by the
Small Business Administration. 15 U.S.C. 637(b)(6).

(2) Small Business Certificate of Competency Program. Referrals made to
the Small Business Administration (SBA) pursuant to sec. 8(b)(7) of the
Small Business Act, or the issuance of, or refusal to issue, a certificate
of competency under that section will generally not be reviewed by GAO.
The exceptions, which GAO will interpret narrowly out of deference to the
role of the SBA in this area, are protests that show possible bad faith on
the part of government officials, or that present allegations that the SBA
failed to follow its own published regulations or failed to consider vital
information bearing on the firm's responsibility due to the manner in
which the information was presented to or withheld from the SBA by the
procuring agency. 15 U.S.C. 637(b)(7).

(3) Procurements under sec. 8(a) of the SmallBusiness Act. Under that
section, since contracts are entered into with the Small Business
Administration at the contracting officer's discretion and on such terms
as are agreed upon by the procuring agency and the Small Business
Administration, the decision to place or not to place a procurement under
the 8(a) program is not subject to review absent a showing of possible bad
faith on the part of government officials or that regulations may have
been violated. 15 U.S.C. 637(a).

(c) Afirmative determination ofresponsibilityby the contracting officer.
Because the determination that a bidder or offeror is capable of
performing a contract is largely committed to the contracting officer's
discretion, GAO will generally not consider a protest challenging such a
determination. The

exceptions are protests that allege that definitive responsibility
criteria in the solicitation were not met and those that identify evidence
raising serious concerns that, in reaching a particular responsibility
determination, the contracting officer unreasonably failed to consider
available relevant information or otherwise violated statute or
regulation.

(d) Procurement integrity. For any Federal procurement, GAO will not
review an alleged violation of subsections (a), (b), (c), or (d) of sec.
27 of the Office of Federal Procurement Policy Act, 41 U.S.C. 423, as
amended by sec. 4304 of the National Defense Authorization Act for Fiscal
Year 1996, Public Law 104-106, 110 Stat. 186, February 10, 1996, where the
protester failed to report the information it believed constituted
evidence of the offense to the Federal agency responsible for the
procurement within 14 days after the protester first discovered the
possible violation.

(e) Protests not filed either in GAO or the contracting agency within the
time limits set forth in S: 21.2.

(f) Protests which lack a detailed statement of the legal and factual
grounds of protest as required by S: 21.1(c)(4), or which fail to clearly
state legally sufficient grounds of protest as required by S: 21.1(f).

(g) Procurements by agencies other than Federal agencies as defined by
sec. 3 of theFederal Property andAdministrative Services Act of 1949, 40
U.S.C. 472. Protests of procurements or proposed procurements by agencies
such as the U.S. Postal Service, the Federal Deposit Insurance
Corporation, and nonappropriated fund activities are beyond GAO's bid
protest jurisdiction as established in 31 U.S.C. 3551-3556.

(h) Subcontractprotests. GAO will not consider a protest of the award or
proposed award of a subcontract except where the agency awarding the prime
contract has requested in writing that subcontract protests be decided
pursuant to S: 21.13.

(i) Suspensionsand debarments. Challenges to the suspension or debarment
of contractors will not be reviewed by GAO. Such matters are for review by
the contracting agency in accordance with the applicable provisions of the
Federal Acquisition Regulation.

(j) Competitive range. GAO will not consider protests asserting that the
protester's proposal should not have been included or kept in the
competitive range.

S: 21.6 Withholding of award and suspension of contract performance.

Where a protest is filed with GAO, the contracting agency may be required
to withhold award and to suspend contract performance. The requirements
for the withholding of award and the suspension of contract performance
are set forth in 31 U.S.C. 3553(c) and (d).

S: 21.7 Hearings.

(a) At the request of a party or on its own initiative, GAO may conduct a
hearing in connection with a protest. The request shall set forth the
reasons why a hearing is needed to resolve the protest.

(b) Prior to the hearing, GAO may hold a pre-hearing conference to discuss
and resolve matters such as the procedures to be followed, the issues to
be considered, and the witnesses who will testify.

(c) Hearings generally will be conducted as soon as practicable after
receipt by the parties of the agency report and relevant documents.
Although hearings ordinarily will be conducted at GAO in Washington, DC,
hearings may, at the discretion of GAO, be conducted at other locations,
or by telephone or other electronic means.

(d) All parties participating in the protest shall be invited to attend
the hearing. Others may be permitted to attend as observers and may
participate as allowed by GAO's hearing official. In order to prevent the
improper disclosure of protected information at the hearing, GAO's hearing
official may restrict attendance during all or part of the proceeding.

(e) Hearings shall normally be recorded and/or transcribed. If a recording
and/or transcript is made, any party may obtain copies at its own expense.

(f) If a witness whose attendance has been requested by GAO fails to
attend the hearing or fails to answer a relevant question, GAO may draw an
inference unfavorable to the party for whom the witness would have
testified.

(g) If a hearing is held, each party shall file comments with GAO within 5
days after the hearing was held or as specified by GAO. If the protester
has not filed comments by the due date, GAO shall dismiss the protest.

(h) In post-hearing comments, the parties should reference all testimony
and admissions in the hearing record that they consider relevant,
providing specific citations to the testimony and admissions referenced.

S: 21.8 Remedies.

(a) If GAO determines that a solicitation, cancellation of a
solicitation, termination of a contract, proposed award, or
award does not comply with statute or regulation, it shall
recommend that
the contracting agency implement any combination of the
following remedies:

(1) Refrain from exercising options under the contract;

(2) Terminate the contract;

(3) Recompete the contract;

(4) Issue a new solicitation;

(5) Award a contract consistent with statute and regulation; or

(6) Such other recommendation(s) as GAO determines
necessary to promote compliance.

(b) In determining the appropriate recommendation(s), GAO
shall, except as specified in paragraph (c) of this section,
consider all circumstances surrounding the procurement or
proposed procurement including the seriousness of the
procurement deficiency, the degree of prejudice to other parties
or to the integrity of the competitive procurement system, the
good faith of the parties, the extent of performance, the cost to
the government, the urgency of the procurement, and the impact
of the recommendation(s) on the contracting agency's mission.

(c) If the head of the procuring activity determines that performance of
the contract notwithstanding a pending protest is in the government's best
interest, GAO shall make its recommendation(s) under paragraph (a) of this
section without regard to any cost or disruption from terminating,
recompeting, or reawarding the contract.

(d) If GAO determines that a solicitation, proposed award, or award does
not comply with statute or regulation, it may recommend that the
contracting agency pay the protester the costs of:

(1) Filing and pursuing the protest, including attorneys' fees and
consultant and expert witness fees; and

(2) Bid and proposal preparation.

(e) If the contracting agency decides to take corrective action in
response to a protest, GAO may recommend that the agency pay the protester
the reasonable costs of filing and pursuing the protest, including
attorneys' fees and consultant and expert witness fees. The protester
shall file any request that GAO recommend that costs be paid within 15
days of the date on which the protester learned (or should have learned,
if that is earlier) that GAO had closed the protest based on the agency's
decision to take corrective action. The protester shall furnish a copy of
its request to the contracting agency, which may file a response within 15
days after receipt of the request, with a copy furnished to the protester.

(f)(1) If GAO recommends that the contracting agency pay the protester the
costs of filing and pursuing the protest and/or of bid or proposal
preparation, the protester and the agency shall attempt to reach agreement
on the amount of costs. The protester shall file its claim for costs,
detailing and certifying the time expended and costs incurred, with the
contracting agency within 60 days after receipt of GAO's recommendation
that the agency pay the protester its costs. Failure to file the claim
within that time may result in forfeiture of the protester's right to
recover its costs.

(2) The contracting agency shall issue a decision on the claim for costs
as soon as practicable after the claim is filed. If the protester and the
contracting agency cannot reach agreement within a reasonable time, GAO
may, upon request of the

protester, recommend the amount of costs the agency should pay in
accordance with 31 U.S.C. 3554(c). In such cases, GAO may also recommend
that the contracting agency pay the protester the costs of pursuing the
claim for costs before GAO.

(3) The contracting agency shall notify GAO within 60 days after GAO
recommends the amount of costs the agency should pay the protester of the
action taken by the agency in response to the recommendation.

S: 21.9 Time for decision by GAO.

(a) GAO shall issue a decision on a protest within 100 days after it is
filed.

(b) In protests where GAO uses the express option procedures in S: 21.10,
GAO shall issue a decision on a protest within 65 days after it is filed.

(c) GAO, to the maximum extent practicable, shall resolve a timely
supplemental protest adding one or more new grounds to an existing
protest, or a timely amended protest, within the time limit established in
paragraph (a) of this section for decision on the initial protest. If a
supplemental or an amended protest cannot be resolved within that time
limit, GAO may resolve the supplemental or amended protest using the
express option procedures in S: 21.10.

S: 21.10 Express options, flexible alternative procedures, accelerated
schedules, summary decisions, and status and other conferences.

(a) At the request of a party or on its own initiative, GAO may decide a
protest using an express option.

(b) The express option will be adopted at the discretion of GAO and only
in those cases suitable for resolution within 65 days.

(c) Requests for the express option shall be in writing and received in
GAO not later than 5 days after the protest or supplemental/amended
protest is filed. GAO will promptly

notify the parties whether the case will be handled using the express
option.

(d) When the express option is used, the following schedule applies
instead of those deadlines in S:S: 21.3 and 21.7:

(1) The contracting agency shall file a complete report with GAO and the
parties within 20 days after it receives notice from GAO that the express
option will be used.

(2) Comments on the agency report shall be filed with GAO and the other
parties within 5 days after receipt of the report.

(3) Where circumstances demonstrate that a case is no longer suitable for
resolution using the express option, GAO shall establish a new schedule
for submissions by the parties.

(e) GAO, on its own initiative or upon request by the parties, may use
flexible alternative procedures to promptly and fairly resolve a protest,
including alternative dispute resolution, establishing an accelerated
schedule, and/or issuing a summary decision.

(f) GAO may conduct status and other conferences by telephone or in person
with all parties participating in a protest to promote the expeditious
development and resolution of the protest.

S: 21.11 Effect of judicial proceedings.

(a) A protester must immediately advise GAO of any court proceeding which
involves the subject matter of a pending protest and must file with GAO
copies of all relevant court documents.

(b) GAO will dismiss any case where the matter involved is the subject of
litigation before, or has been decided on the merits by, a court of
competent jurisdiction. GAO may, at the request of a court, issue an
advisory opinion on a bid protest issue that is before the court. In these
cases, unless a different schedule is established, the times provided in
this part for filing the agency report (S: 21.3(c)), filing comments on
the report (S: 21.3(i)), holding a hearing and filing comments (S: 21.7),
and issuing a decision (S: 21.9) shall apply.

S: 21.12 Distribution of decisions.

(a) Unless it contains protected information, a copy of a decision shall
be provided to the protester, any intervenors, the head of the contracting
activity responsible for the protested procurement, and the senior
procurement executive of each Federal agency involved; a copy shall also
be made available to the public. A copy of a decision containing protected
information shall be provided only to the contracting agency and to
individuals admitted to any protective order issued in the protest. A
public version omitting the protected information shall be prepared
wherever possible.

(b) Decisions may be distributed to the parties, and are available from
GAO, by electronic means.

S: 21.13 Nonstatutory protests.

(a) GAO will consider protests concerning awards of subcontracts by or for
a Federal agency, sales by a Federal agency, or procurements by agencies
of the government other than Federal agencies as defined in S: 21.0(c) if
the agency involved has agreed in writing to have protests decided by GAO.

(b) The provisions of this part shall apply to nonstatutory protests
except for the provision of S: 21.8(d) pertaining to recommendations for
the payment of costs. The provision for the withholding of award and the
suspension of contract performance, 31 U.S.C. 3553(c) and (d), also does
not apply to nonstatutory protests.

S: 21.14 Request for reconsideration.

(a) The protester, any intervenor, and any Federal agency involved in the
protest may request reconsideration of a bid protest decision. GAO will
not consider a request for reconsideration that does not contain a
detailed statement of the factual and legal grounds upon which reversal or
modification is deemed warranted, specifying any errors of law made or
information not previously considered.

(b) A request for reconsideration of a bid protest decision shall be
filed, with copies to the parties who participated in the

protest, not later than 10 days after the basis for reconsideration
is known or should have been known, whichever is earlier.

(c) GAO will summarily dismiss any request for reconsideration
that fails to state a valid basis for reconsideration or is untimely.
The filing of a request for reconsideration does not require the
withholding of award and the suspension of contract
performance under 31 U.S.C. 3553(c) and (d).
filing of a request for reconsideration does not require the
withholding of award and the suspension of contract
performance under 31 U.S.C. 3553(c) and (d).

United States General Accounting Office Office of the General Counsel
Washington, DC 20548

File: B-Protester: Agency:

NOTIFICATION OF PROTECTIVE ORDER

Attached is a copy of the protective order issued in connection with this
matter. Counsel seeking admission must complete and submit the attached
application to our Office within 3 days of receipt of this protective
order, with a copy provided simultaneously to all parties; applications
for consultants are available upon request. A party objecting to any
individual's application must so advise our Office by the second day
following receipt of the application. While applications may be filed by
facsimile transmission, a hard copy with original signature must also be
submitted. Failure to complete the application accurately may result in
denial of admission and/or sanction.

Individuals covered under a protective order are required to take all
precautions necessary to prevent disclosure of protected material. In
addition to physically and electronically securing, safeguarding, and
restricting access to the protected material in one's possession, these
precautions include, but are not limited to, sending and receiving
protected material using physical and electronic methods that are within
the control of individuals authorized by this protective order or that
otherwise restrict access to protected material to individuals authorized
by this protective order. Examples of transmission methods that may
require additional precautions include facsimile machines shared with
individuals not admitted under this protective order and
facsimile-to-electronic mail systems or services. Protected material shall
not be sent using electronic mail without the express consent of this
Office.

--For the Associate General Counsel

FOR FURTHER INFORMATION:

GAO Attorney: ; 202-512-
Case Status Calls: 202-512-5436; Fax Number 202-512-9749
GAO's Guide to GAO Protective Orders is available at www.gao.gov.

Attachments

GAO-03-539SP

                                   Appendix I

                            Sample Protective Order

     UNITED STATES GENERAL ACCOUNTING OFFICE OFFICE OF THE GENERAL COUNSEL
                PROCUREMENT LAW DIVISION Washington, D.C. 20548


                                PROTECTIVE ORDER

This protective order limits disclosure of certain material and
information submitted in the above-captioned protest, so that no party
obtaining access to protected material under this order will gain a
competitive advantage as a result of the disclosure. Material to which
parties gain access under this protective order is to be used only for the
subject protest proceedings, absent express prior authorization from the
General Accounting Office (GAO). Such authorization must be requested in
writing, with notice to all parties.

1. This protective order applies to all material that is identified by any
party as protected, unless GAO specifically provides otherwise. Protected
material includes information whether on paper or in any electronic
format. This protective order applies to all proceedings associated with
the protest, e.g., supplemental/amended protests, requests for
reconsideration, and claims for costs.

2. Protected material of any kind may be provided only to GAO and to
individuals authorized by this protective order. The first page of each
document containing protected material is to be clearly marked as follows:

 PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH GENERAL ACCOUNTING
                            OFFICE PROTECTIVE ORDER

The party claiming protection must clearly identify the specific portion
of the material for which it is claiming protection. Wherever such
protection is claimed for a protest pleading, the party filing the
pleading shall submit a proposed redacted version for public release when
the protected version is filed.

3. Only individuals who are admitted under this protective order by GAO,
and support staff (paralegal, clerical, and administrative personnel) who
are employed or supervised by individuals admitted under this order, and
who are not involved in

                                   Appendix I

                            Sample Protective Order

competitive decisionmaking for a party to the protest or for any firm that
might gain a competitive advantage from access to the protected material
disclosed under this order, shall have access to information covered by
this order. Individuals admitted under this protective order shall advise
such support staff, prior to providing them access to protected material,
of their obligations under this order.

4. Each party included under this protective order shall receive a single
copy of the protected material and shall not duplicate that material,
except as incidental to its incorporation into a submission to GAO or as
otherwise agreed to by the parties with GAO's concurrence. However, each
party that receives protected material in an electronic format may print a
single copy of that protected material.

5. When any party sends or receives documents in connection with this
protest that are not designated as protected, including proposed redacted
versions of protected documents, the party shall refrain from releasing
the documents to anyone not admitted under this protective order,
including clients, until the end of the second working day following
receipt of the documents by all parties. This practice permits parties to
identify documents that should have been marked protected before the
documents are disclosed to individuals not admitted under this protective
order.

6. Each individual covered under this protective order shall take all
precautions necessary to prevent disclosure of protected material. In
addition to physically and electronically securing, safeguarding, and
restricting access to the protected material in one's possession, these
precautions include, but are not limited to, sending and receiving
protected material using physical and electronic methods that are within
the control of individuals authorized by this protective order or that
otherwise restrict access to protected material to individuals authorized
by this protective order. Protected material shall not be sent using
electronic mail without the express consent of GAO. The confidentiality of
protected material shall be maintained in perpetuity.

7. Within 60 days after the disposition of the protest(s) (or if a request
for reconsideration or a claim for costs is filed, 60 days after the
disposition of those matters), all protected material furnished to
individuals admitted under this protective order, including all copies of
such material, with the exception of a single copy of a protected decision
or letter issued by our Office, shall be: (1) returned to the party that
produced them; or (2) with the prior written agreement of the party that
produced the protected material, destroyed and certified as destroyed to
the party that produced them; or (3) with the prior written agreement of
the party that produced the protected material, retained under the terms
of this order for such period as may be agreed. Within the same 60-day
period, protected pleadings (including copies in archival files and
computer backup files) and written and electronic transcripts of protest
conferences and hearings shall be destroyed, and the destruction certified
to GAO and the other parties, unless the parties agree otherwise. In the
absence of such agreement and for good cause shown, the period for
retention of the protected material under this paragraph may be extended
by

                                   Appendix I

                            Sample Protective Order

order of GAO. Any individual retaining material received under this
protective order (except for the single copy of a protected decision or
letter issued by our Office) beyond the 60-day period without the
authorization of GAO or the prior written agreement of the party that
produced the material is in violation of this order. The terms of this
protective order (except those terms regarding the return or destruction
of protected material) shall apply indefinitely to the single copy of the
protected decision or letter issued by our Office that is retained by a
party admitted under this order.

8. Any violation of the terms of this protective order may result in the
imposition of such sanctions as GAO deems appropriate, including but not
limited to referral of the violation to appropriate bar associations or
other disciplinary bodies and restricting the practice of counsel before
GAO. A party whose protected information is improperly disclosed shall be
entitled to all remedies under law or equity, including breach of
contract.

__ ______________

[GAO Attorney] Date

                                  Appendix II

      Sample Applications for Access to Material Under a Protective Order

     UNITED STATES GENERAL ACCOUNTING OFFICE OFFICE OF THE GENERAL COUNSEL
                PROCUREMENT LAW DIVISION Washington, D.C. 20548


                       APPLICATION FOR ACCESS TO MATERIAL
                            UNDER A PROTECTIVE ORDER
                              FOR OUTSIDE COUNSEL

1. I, , hereby apply for access to protected material covered by the
protective order issued in connection with this protest.

2. I am an attorney with the law firm of_ and have been retained to
represent , a party to this protest.

3. I am a member of the bar(s) of ; my bar membership number(s) is/are .

4. My professional relationship with the party I represent in this protest
and its personnel is strictly one of legal counsel. I am not involved in
competitive decisionmaking as discussed in U.S. Steel Corp. v. United
States, 730 F.2d 1465 (Fed. Cir. 1984), for or on behalf of the party I
represent, any entity that is an interested party to this protest, or any
other firm that might gain a competitive advantage from access to the
material disclosed under the protective order. I do not provide advice or
participate in any decisions of such parties in matters involving similar
or corresponding information about a competitor. This means that I do not,
for example, provide advice concerning or participate in decisions about
marketing or advertising strategies, product research and development,
product design or competitive structuring and composition of bids, offers,
or proposals with respect to which the use of protected material could
provide a competitive advantage.

                                  Appendix II

      Sample Applications for Access to Material Under a Protective Order

5. I identify here (by writing "none" or listing names and relevant
circumstances) those attorneys in my firm who, to the best of my
knowledge, cannot make the representations set forth in the preceding
paragraph:

(Attach additional pages for this and the following questions, if needed.)

6. I identify here (by writing "none" or listing names, position, and
responsibilities) any member of my immediate family who is an officer or
holds a management position with an interested party in the protest or
with any other firm that might gain a competitive advantage from access to
the material disclosed under the protective order:

7. I identify here (by writing "none" or identifying the name of the
forum, case number, date, and circumstances) instances within the last 5
years in which I have been denied admission to a protective order, or had
admission revoked, or been found to have violated a protective order
issued by GAO or by an administrative or judicial tribunal:

8. I identify here (by writing "none" or listing the protest name and file
number) any pending application for admission to a protective order issued
by GAO:

                                  Appendix II

      Sample Applications for Access to Material Under a Protective Order

9. I have read the protective order issued by GAO in this protest, and I
will comply in all respects with that order and will abide by its terms
and conditions in handling any protected material filed or produced in
connection with the protest.

10. I acknowledge that any violation of the terms of the protective order
may result in the imposition of such sanctions as GAO deems appropriate,
including but not limited to referral of the violation to appropriate bar
associations or other disciplinary bodies, and restricting my practice
before GAO. I further acknowledge that a party whose protected information
is improperly disclosed shall be entitled to all remedies under law or
equity, including breach of contract.

CERTIFICATION

By my signature, I certify that, to the best of my knowledge, the
representations set forth above (including any attached statements) are
true and correct. I recognize that knowingly making a false statement on
this application could render me liable to a $10,000 fine or 5 years
imprisonment, or both, pursuant to 18 U.S.C. S: 1001. I identify below the
mailing address and facsimile number at which I may receive protected
material in accordance with the terms of the protective order.

_______________________ Signature Date Executed

________________________________________

                              Typed Name and Title

                    ________________________________________

                                Mailing Address

                    ________________________________________

                                Facsimile Number

                                  Appendix II

      Sample Applications for Access to Material Under a Protective Order

     UNITED STATES GENERAL ACCOUNTING OFFICE OFFICE OF THE GENERAL COUNSEL
                PROCUREMENT LAW DIVISION Washington, D.C. 20548



                       APPLICATION FOR ACCESS TO MATERIAL
                            UNDER A PROTECTIVE ORDER
                                 FOR CONSULTANT

1. I, , am a consultant employed by , and hereby apply for access to
protected material covered by the protective order issued in connection
with this protest.

2. I have been retained by and will, under the direction and control of
that attorney, assist in the representation of in this protest.

3. I hereby certify that I am not involved in competitive decisionmaking
for or on behalf of any party to this protest or any other firm that might
gain a competitive advantage from access to the material disclosed under
the protective order. Neither I nor my employer provides advice or
participates in any decisions of such parties in matters involving similar
or corresponding information about a competitor. This means, for example,
that neither I nor my employer provides advice concerning or participates
in decisions about marketing or advertising strategies, product research
and development, product design or competitive structuring and composition
of bids, offers, or proposals with respect to which the use of protected
material could provide a competitive advantage.

4. My professional relationship with the party for whom I am retained in
this protest and its personnel is strictly as a consultant on issues
relevant to the protest. Neither I, my spouse, nor any member of my
immediate family holds office or a management position in any company that
is a party in this protest, or in any competitor or potential competitor
of a party.

5. I have attached the following information:

(a) a current resume describing my education and employment experience to
date;


      Sample Applications for Access to Material Under a Protective Order

(b) a list of all clients for whom I have performed work within the 2
years prior to the date of this application, and a brief description of
the work performed;

(c) a list of all clients for whom my employer has performed work within
the 2 years prior to the date of this application and for whom the use of
protected material could provide a competitive advantage, and a brief
description of the work performed;

(d) a statement of the services I am expected to perform in connection
with this protest;

(e) a description of the financial interests that I, my spouse, and/or my
family has in any entity that is an interested party in this protest or
whose protected material will be reviewed; if none, I have so stated;

(f) a list identifying by name of forum, case number, date, and
circumstances all instances in which I have been granted admission or been
denied admission to a protective order, or had a protective order
admission revoked, or been found to have violated a protective order
issued by GAO or by an administrative or judicial tribunal; if none, I
have so stated; and

(g) a statement of the professional associations to which I belong,
including membership numbers.

6. I have read a copy of the protective order issued by GAO in this
protest, and I will comply in all respects with all terms and conditions
of that order in handling any protected material filed or produced in
connection with the protest. I will not disclose any protected material to
any individual other than those individuals admitted under the protective
order by GAO.

7. For a period of 2 years from the date this application is granted, I
will not engage or assist in the preparation of a proposal to be submitted
to any agency of the United States government for * where I know or have
reason to know that any party to the protest, or any successor entity,
will be a competitor, subcontractor, or teaming member. *Describe subject
of procurement at issue in the protest

8. For a period of 2 years from the date this application is granted, I
will not engage or

assist in the preparation of a proposal for submission to * for **

nor will I have any personal involvement in any such activity. *Name of
contracting agency **Describe procurement at issue in the protest


      Sample Applications for Access to Material Under a Protective Order

9. I acknowledge that any violation of the terms of the protective order
may result in the
imposition of such sanctions as GAO deems appropriate, including but not
limited to
referral of the violation to appropriate disciplinary bodies or
professional
associations, and restricting my practice before GAO. I further
acknowledge that a party
whose protected information is improperly disclosed shall be entitled to
all remedies
under law or equity, including breach of contract.

CERTIFICATION

By my signature, I certify that, to the best of my knowledge, the
representations set forth above (including attached statements) are true
and correct. I recognize that knowingly making a false statement on this
application could render me liable to a $10,000 fine or 5 years
imprisonment, or both, pursuant to 18 U.S.C. S: 1001. I identify below the
mailing address and facsimile number at which I may receive protected
material in accordance with the terms of the protective order.

_______________________ Signature

_______________________ Typed Name and Title

_______________________ Mailing Address

ATTORNEY'S CERTIFICATION

_____________________ Date Executed

_____________________ Facsimile Number

The consultant named above has been retained by me to assist in the
representation of in this protest and will perform his/her duties in
connection with this protest under my direction and control.

_____________________ ___ Signature Date Executed

_____________________ Typed Name and Title

                        Page 51 GAO-03-539SP Appendix II

      Sample Applications for Access to Material Under a Protective Order

     UNITED STATES GENERAL ACCOUNTING OFFICE OFFICE OF THE GENERAL COUNSEL
                PROCUREMENT LAW DIVISION Washington, D.C. 20548



                       APPLICATION FOR ACCESS TO MATERIAL
                            UNDER A PROTECTIVE ORDER
                              FOR IN-HOUSE COUNSEL

1. I, , hereby apply for access to protected material covered by the
protective order issued in connection with this protest.

2. I am in-house counsel for
_______________________________________________, a
party to this protest.

3. I am a member of the bar(s) of ; my bar membership number(s)
is/are
_________________ .

4. My professional relationship with the party I represent in this protest
and its personnel is strictly one of legal counsel. I am not involved in
competitive decisionmaking as discussed in U.S. Steel Corp. v. United States, 730 F.2d
1465 (Fed. Cir. 1984), for or on behalf of the party I represent, any entity that is an
interested party to this protest, or any other firm that might gain a competitive advantage
from access to the material disclosed under the protective order. I do not provide advice or
participate in any decisions of such parties in matters involving similar or
corresponding information about a competitor. This means that I do not, for example, provide advice
concerning or participate in decisions about marketing or advertising strategies,
product research and development, product design or competitive structuring and composition of
bids, offers, or proposals with respect to which the use of protected material could
provide a competitive advantage.

          

      Sample Applications for Access to Material Under a Protective Order

5. I have attached a detailed narrative providing the following
information:
(a) my position and responsibilities as in-house counsel, including my
role in providing advice in procurement-related matters;
(b) the person(s) to whom I report, and their position(s) and
responsibilities;
(c) the number of in-house counsel at the office in which I work, and
their involvement, if any, in competitive decisionmaking and in providing advice in
procurement-related matters;
(d) my relationship to the nearest person involved in competitive
decisionmaking (both in terms of physical proximity and corporate structure); and
(e) measures taken to isolate me from competitive decisionmaking and to protect against
the inadvertent disclosure of protected material to persons not admitted under the
protective order.

6. I identify here (by writing "none" or listing names, position, and
responsibilities) any member of my immediate family who is an officer or holds a management
position with an interested party in the protest or with any other firm that might gain
a competitive advantage from access to the material disclosed under the protective
order:

(Attach additional pages for this and the following questions, if needed.)

7. I identify here (by writing "none" or identifying the name of the
forum, case number, date, and circumstances) instances within the last 5
years in which I have been denied admission to a protective order, or had
admission revoked, or been found to have violated a protective order
issued by GAO or by an administrative or judicial tribunal:

8. I identify here (by writing "none" or listing the protest name and file
number) any pending application for admission to a protective order issued
by GAO:

      Sample Applications for Access to Material Under a Protective Order

9. I have read the protective order issued by GAO in this protest, and I
will comply in all respects with that order and will abide by its terms and conditions in
handling any protected material filed or produced in connection with the protest.

10. I acknowledge that any violation of the terms of the protective order
may result in the imposition of such sanctions as GAO deems appropriate, including but
not limited to referral of the violation to appropriate bar associations or other
disciplinary bodies, and restricting my practice before GAO. I further
acknowledge that a party whose protected information is improperly disclosed shall be
entitled to all remedies under law or equity, including breach of contract.

CERTIFICATION

By my signature, I certify that, to the best of my knowledge, the
representations set forth above (including any attached statements) are
true and correct. I recognize that knowingly making a false statement on
this application could render me liable to a $10,000 fine or 5 years
imprisonment, or both, pursuant to 18 U.S.C. S: 1001. I identify below the
mailing address and facsimile number at which I may receive protected
material in accordance with the terms of the protective order.

_______________________ Signature

________________________________________ Typed Name and Title

________________________________________ Mailing Address

________________________________________ Facsimile Number

                       Date Executed Page 54 GAO-03-539SP
*** End of document. ***