B-238443, Mar 13, 1990, 90-1 CPD ***
Highlights
PROCUREMENT - Bid Protests - Agency-level protests - Procedures - Federal procurement regulations/laws - Revision DIGEST: General Accounting Office supports objective of establishing more effective agency protest procedures but GAO recommends that the regulations warn protester that they are not entitled in an agency level protest to either the stay of award or the suspension of performance granted by the Competition in Contracting Act of 1984 to protesters before the GAO. We believe the regulations should warn protesters that they are not entitled in an agency-level protest to either the stay of the award or the suspension of performance granted by the Competition in Contracting Act of 1984 (CICA) to protesters before our Office.
B-238443, Mar 13, 1990, 90-1 CPD ***
PROCUREMENT - Bid Protests - Agency-level protests - Procedures - Federal procurement regulations/laws - Revision DIGEST: General Accounting Office supports objective of establishing more effective agency protest procedures but GAO recommends that the regulations warn protester that they are not entitled in an agency level protest to either the stay of award or the suspension of performance granted by the Competition in Contracting Act of 1984 to protesters before the GAO.
Margaret A. Willis
FAR Secretariat
General Services Administration:
This responds to the notice in the Federal Register of January 10, 1990 (FAR case 89-38), requesting comments on a proposed rule to amend Federal Acquisition Regulation Secs. 33.103 and 33.104, concerning procedures governing agency protests.
While we support the objective of establishing more effective agency protest procedures, we believe the regulations should warn protesters that they are not entitled in an agency-level protest to either the stay of the award or the suspension of performance granted by the Competition in Contracting Act of 1984 (CICA) to protesters before our Office. See 31 U.S.C. Secs. 3553(c) and (d) (Supp. V 1987). While the proposed regulations at Secs. 33.103(a)(2) and 33.103(a)(4) also provide for a stay or suspension in the case of an agency protest, the standards for agency waiver of either the stay or the suspension are much less stringent than the CICA waiver standards. See 31 U.S.C. Secs. 3553(c)(2) and (3), 3553(d)(2).
Further, the mere passage of time while a post-award protest is pending before the agency will result in the loss of the CICA suspension should the protest be subsequently filed with our Office since the statute provides for suspensions in only those cases where the agency receives notice of the protest from our Office within 10 days of contract award. See 31 U.S.C. Sec. 3553(d)(1).
Therefore, in order to prevent protesters from inadvertently losing the benefits of the CICA stay and suspension provisions in a subsequent protest to our Office, we recommend that the regulations notify protesters of the existence of these provisions.