Government Accountability Office, Administrative Practice and Procedure, Bid Protest Regulations, Government Contracts, 13817-13826 [2018-06413]

Agencies

• Government Accountability Office

[Federal Register Volume 83, Number 63 (Monday, April 2, 2018)]
[Rules and Regulations]
[Pages 13817-13826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-06413]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 83, No. 63 / Monday, April 2, 2018 / Rules 
and Regulations

[[Page 13817]]



GOVERNMENT ACCOUNTABILITY OFFICE

4 CFR Part 21


Government Accountability Office, Administrative Practice and 
Procedure, Bid Protest Regulations, Government Contracts

AGENCY: Government Accountability Office.

ACTION: Final rule.

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SUMMARY: This document amends the Government Accountability Office's 
(GAO) Bid Protest Regulations, promulgated in accordance with the 
Competition in Contracting Act of 1984 (CICA), to implement the 
requirements in sec. 1501 of the Consolidated Appropriations Act for 
Fiscal Year 2014, which was enacted on January 14, 2014. These 
amendments implement the legislation's direction to establish and 
operate an electronic filing and document dissemination system for the 
filing of bid protests with GAO. The amendments also include 
administrative changes to reflect current practice, to streamline the 
bid protest process, and to make clerical corrections.

DATES: This rule is effective: May 1, 2018.

FOR FURTHER INFORMATION CONTACT: Ralph O. White (Managing Associate 
General Counsel, [email protected]), Kenneth E. Patton (Managing 
Associate General Counsel, [email protected]) or Jonathan L. Kang (Senior 
Attorney, [email protected]).

SUPPLEMENTARY INFORMATION:

Background

    On April 16, 2016, GAO published a proposed rule (81 FR 22197) to 
amend its Bid Protest Regulations. The supplementary information 
included with the proposed rule explained that the proposed revisions 
to GAO's Bid Protest Regulations were promulgated in accordance with 
CICA, as the result of a statutory requirement imposed by the 
Consolidated Appropriations Act for 2014, Public Law 113-76, 128 Stat. 
5 (Jan. 14, 2014). Section 1501 of this act directs GAO to establish 
and operate an electronic filing and document dissemination system, 
``under which, in accordance with procedures prescribed by the 
Comptroller General--(A) a person filing a protest under this 
subchapter may file the protest through electronic means; and (B) all 
documents and information required with respect to the protest may be 
disseminated and made available to the parties to the protest through 
electronic means.'' Public Law 113-76, div. I, title I, sec. 1501, 128 
Stat. 5, 433-34 (Jan. 17, 2014). The proposed rule advised that GAO was 
developing the system, which is called the Electronic Protest Docketing 
System (EPDS). As of the effective date of this final rule, EPDS will 
be the sole means for filing a bid protest at GAO (with the exception 
of protests containing classified information) and will enable parties 
to a bid protest and GAO to file and receive documents. Additional 
guidance for the use of EPDS is provided by GAO in the EPDS 
Instructions, which are available at https://epds.gao.gov/login.
    In addition to directing GAO to establish and operate an electronic 
filing and document dissemination system, sec. 1501 of the Consolidated 
Appropriations Act for 2014 authorizes GAO to ``require each person who 
files a protest under this subchapter to pay a fee to support the 
establishment and operation of the electronic system under this 
subsection.'' Public Law 113-76, div. I, title I, sec. 1501, 128 Stat. 
5, 434 (Jan. 17, 2014). The proposed rule advised that GAO will require 
persons filing a protest to pay a fee to file a protest through EPDS, 
and that GAO anticipates that the fee will be $350. Additional guidance 
regarding procedures for payment of the fee is available in the EPDS 
Instructions.
    Finally, the proposed rule addressed other administrative changes 
to reflect current practice and to streamline the bid protest process.

Summary of Comments

    GAO received a total of 34 timely comments by the closing date of 
May 16, 2016. GAO received 6 comments from federal agencies; 11 
comments from businesses (including 2 comments from the same business 
on different dates), all of which were identified as small businesses; 
2 comments from professional associations; 3 comments from law firms 
and consulting firms; and 12 comments from individuals or anonymous 
commentators. In adopting this final rule, GAO has carefully considered 
all comments received.

Electronic Protest Docketing System (EPDS)

Request for More Details

    Seven commentators requested additional information as to how EPDS 
will function. For example, the commentators asked for information 
concerning how the implementation of EPDS will occur, how to pay the 
fee, how documents will be uploaded and distributed through EPDS, how 
agencies will be notified by GAO of the filing of a protest, and the 
security provisions for EPDS.
    GAO response: The purpose of the proposed revisions to our 
regulations is to implement sec. 1501 of the Consolidated 
Appropriations Act for Fiscal Year 2014 and to make certain 
administrative changes to reflect current practice and to streamline 
the bid protest process. GAO has issued guidance regarding EPDS, 
including the transition to EPDS, at https://epds.gao.gov/login. 
Additional information regarding the procedures for using EPDS is 
available in the EPDS Instructions.

Classified Documents

    GAO proposed to revise redesignated paragraph (g) of 4 CFR 21.1 to 
clarify how a document is ``filed'' under GAO's Bid Protest Regulations 
by specifying that EPDS will be the sole method for filing a document 
with GAO for a bid protest--with the exception of protests containing 
classified material, as explained in a sentence added to the revised 
paragraph (h) of 4 CFR 21.1. The revisions throughout this final rule 
reflect that all filings are presumed to be made through EPDS (with the 
exception of protests containing classified material), which will 
enable the parties and GAO to file and receive documents.
    Two commentators suggested that the proposed rule at paragraph (h) 
of 4 CFR 21.1, which states that classified documents ``may not'' be 
filed through EPDS, should be revised to use more expressly prohibitive 
language.

[[Page 13818]]

    GAO response: GAO agrees with the suggestion and will revise our 
regulations to state that documents with classified material ``shall 
not'' be filed through EPDS.
    One commentator requested that GAO clarify that the prohibition on 
filing documents containing ``classified'' material does not refer to 
proprietary or source-selection sensitive information.
    GAO response: GAO does not believe that the rule requires 
clarification, but affirms here that the term ``classified'' refers to 
information deemed classified by a United States government agency for 
national security reasons, and not to information that is proprietary 
or source-selection sensitive.
    One commentator requested that we revise the rules to provide for 
alternative filing procedures for documents that contain classified 
material.
    GAO response: As discussed above, the EPDS Instructions provide 
guidance regarding the use of EPDS. Consistent with current practice, 
the EPDS Instructions direct parties to contact GAO for guidance in 
filing documents that contain classified material.

Exclusive Use of EPDS

    One commentator opposed the proposed rule in redesignated paragraph 
(g) of 4 CFR 21.1 that EPDS will be the sole means for filing documents 
in a bid protest. The commentator expressed concern that some documents 
may be unsuitable due to size or other formatting issues for electronic 
submission.
    GAO response: GAO confirms that EPDS will be the sole means for 
filing documents in connection with a protest, with two exceptions: (1) 
Documents containing classified material, and (2) documents that, for 
reasons of size or format, are not suitable for filing through EPDS. 
The EPDS Instructions address the process for filing these two 
categories of documents.

Additional Corrections

    The final rule makes additional minor corrections to paragraphs 
(c), (f), and (h) of 4 CFR 21.3 to reflect that documents must be filed 
through EPDS.

Filing Fee for Bid Protests

    The proposed rule advised that GAO anticipates requiring persons 
filing a protest to pay a fee to file a protest through EPDS, which, as 
discussed above, will be the sole means for filing a bid protest at 
GAO. GAO advised that the anticipated fee will be $350. The EPDS 
Instructions address how persons filing a protest must pay the fee, and 
the circumstances under which the fee will apply. A fee will be 
required for filing a protest. At this time, additional fees will not 
be required for supplemental protests, requests for reconsideration, 
requests for recommendation for reimbursement of costs, or requests for 
recommendation on the amount of costs.

Support and Opposition to the Fee

    GAO received six comments in favor of the proposed fee.
    Five commentators advocated for a higher fee. One commentator 
proposed requiring an additional, potentially higher fee for each 
supplemental protest, because, in the commentator's view, protesters 
routinely supplement their protests with more arguments in an attempt 
to circumvent timeliness or engage in ``gamesmanship.'' One commentator 
proposed requiring protesters to file fees based on a graduated scale 
to discourage what the commentator viewed as ``serial'' or frequent 
protesters. Under the proposed graduated scale, a protester would be 
required to file higher fees if it files multiple protests during the 
course of a year, e.g., a base fee for the first five protests, twice 
the base fee for more than five but less than eight protests, and four 
times the base fee for more than eight protests.
    One commentator suggested that a fee of up to $1,000 would be 
appropriate, and that the overall goal of the fee should be the 
reduction of GAO's caseload, which would in turn permit GAO to issue 
decisions in fewer days. The same commentator suggested that a fee that 
was based on a percentage of the value of the procurement could be 
appropriate.
    One commentator supported the fee and expressed the view that a fee 
could discourage ``frivolous'' protests.
    Fifteen commentators opposed the proposed fee. All of the 
commentators opposed to the fee recommended that GAO either establish a 
lower fee for small businesses or waive the fee for small businesses.
    Fourteen commentators opposed the fee on the basis that the fee 
creates a barrier to filing protests for small businesses, some of 
which stated that they lack the resources to pay the fee. In 
particular, one commentator argued that a $350 fee would make a protest 
economically infeasible for small businesses seeking the award of very 
small contracts.
    Two commentators argued that because GAO is funded through 
appropriated funds a separate fee for bid protests is not warranted.
    One commentator argued that a fee is not justified because GAO's 
bid protest forum is not staffed by judges, and that a fee should not 
be imposed in a manner similar to that imposed by a court. Another 
commentator argued that a fee is not justified because GAO does not 
have the same authority to enforce its decisions as a court.
    One commentator argued that the fee is an attempt by GAO to 
discourage bid protests and thereby limit oversight over improper 
contracting actions by agencies. The commentator opposed the fee based 
on what the commentator views as GAO's failure to be an effective forum 
for the resolution of protests concerning small businesses, veteran-
owned small businesses, and service-disabled veteran-owned small 
businesses. The commentator also opposed the fee on the basis that GAO 
failed to conduct adequate outreach to service-disabled veteran-owned 
small businesses--in particular, the commentator.
    One commentator, while not expressly opposed to the fee, proposed a 
periodic reassessment of the fee to consider its impact on small 
business.
    GAO response: GAO has considered all of the comments submitted 
regarding the proposed fee for filing a protest through EPDS. 
Additionally, GAO solicited views concerning the proposed fee from a 
number of business groups and associations that represent small 
businesses, including veteran-owned businesses, women-owned businesses, 
and minority-owned businesses. Further, although GAO is not subject to 
the Administrative Procedures Act, GAO voluntarily issued the proposed 
rule (81 FR 22197, Apr. 16, 2016) and invited comments.
    As discussed in the proposed rule, sec. 1501 of the Consolidated 
Appropriations Act for 2014 directs GAO to establish and operate an 
electronic filing and document dissemination system, and authorizes GAO 
to ``require each person who files a protest under this subchapter to 
pay a fee to support the establishment and operation of the electronic 
system under this subsection.'' Public Law 113-76, div. I, title I, 
sec. 1501, 128 Stat. 5, 434 (Jan. 17, 2014). GAO derived the $350 fee 
using a methodology that took into account development costs for EPDS, 
estimates of hosting and maintenance costs, estimates of future bid 
protest filings, and a recovery period for development costs of 
approximately seven years.
    GAO does not intend for the fee to discourage or reduce the number 
of protests. Rather, the proposed fee will cover the costs of 
establishing and operating EPDS. GAO does not agree with the proposals 
to charge a fee that

[[Page 13819]]

is higher than necessary to address the costs of EPDS or for the 
purpose of discouraging protests. With regard to a lower fee or fee 
waiver for small businesses, GAO has concluded that the anticipated fee 
of $350 is appropriate given the costs of the system. Additionally, GAO 
has concluded that the interest of administrative efficiency supports 
imposition of a uniform fee for all protests.
    GAO will monitor the fee to ensure that it is properly calibrated 
to recover the costs of establishing and maintaining the system. Any 
adjustment to the fee based on the review will reflect changes in the 
costs of EPDS, as is consistent with the statutory direction.

Other Comments on the Fee

    In addition to the comments regarding the requirement for a fee and 
the amount of the fee, GAO received six additional comments.
    One commentator proposed that the requirement to pay a fee be 
expressly incorporated into 4 CFR 21.1, and that the regulation specify 
that failure to pay the fee will result in dismissal of a protest.
    GAO response: GAO believes that the proposed rule makes clear that 
filing protests through EPDS is mandatory, other than classified 
protests, and GAO has advised that filing a protest through EPDS will 
require a fee. The EPDS Instructions provide additional guidance for 
the use of EPDS. GAO confirms that EPDS will not permit the filing of a 
protest without confirmation of payment. GAO also confirms that the 
filing of classified protests will also require payment of a fee.
    Three commentators recommended that protesters be automatically 
refunded or reimbursed the fee if GAO sustains a protest.
    GAO response: GAO does not agree that the fee should be 
automatically reimbursed by GAO if a protest is sustained. Instead, 
paragraph (d) of 4 CFR 21.8 provides that, if GAO sustains a protest, 
GAO may recommend that the agency reimburse the protester's costs of 
pursuing its protest. Additionally, paragraph (e) of 4 CFR 21.8 
provides that, where an agency takes corrective action in response to a 
protest, the protester may request that GAO recommend that the agency 
reimburse the protester's costs of pursuing its protest. Fees will be 
reimbursable costs of pursuing a protest in the event GAO recommends 
that the agency reimburse protest costs.
    Two commentators proposed that protesters be automatically refunded 
or reimbursed the fee if an agency takes corrective action in response 
to a protest.
    GAO response: GAO does not agree that the fee should be 
automatically reimbursed by GAO if an agency takes corrective action in 
response to a protest. Instead, paragraph (e) of 4 CFR 21.8 provides 
that, if an agency decides to take corrective action in response to a 
protest, the protester may request that GAO recommend that the agency 
reimburse the protester's costs of pursuing the protest. Fees will be 
reimbursable costs of pursuing a protest in the event GAO recommends 
that the agency reimburse protest costs.

Filing a Protest

    One commentator asked whether, in light of the requirement to file 
all documents with GAO through EPDS, protesters will continue to be 
required to provide a copy of the protest to the contracting officer, 
as required by paragraph (e) of 4 CFR 21.1.
    GAO response: GAO did not revise the requirement to provide a copy 
of the protest to the contracting officer, as required by paragraph (e) 
of 4 CFR 21.1. GAO believes that this requirement, which is separate 
from the requirement to file documents with GAO through EPDS, remains 
an important requirement so that contracting officers are provided 
prompt notice of protests, which enables them to meet their obligations 
to notify interested parties, as required by Federal Acquisition 
Regulation section 33.104(a)(2) and paragraph (a) of 4 CFR 21.3.
    One commentator requested that redacted versions of protests should 
be posted in EPDS in a manner that is available to the public.
    GAO response: EPDS does not allow access to documents, redacted or 
otherwise, to non-parties.

Time for Filing

    GAO proposed to revise paragraph (a) of 4 CFR 21.2 to clarify that 
where a basis for challenging a solicitation becomes known after the 
solicitation's closing date, but the solicitation does not establish a 
new closing date, the protest must be filed within 10 days of when the 
protester knew or should have known of that basis--regardless of 
whether the time period for filing other protest claims was ``tolled'' 
because a required debriefing had been requested. The revision was 
proposed to address a conflict as to which of our timeliness rules--
21.2(a)(1) or 21.2(a)(2)--takes precedence where a solicitation 
impropriety becomes apparent after proposals have been submitted, but 
there is no opportunity to submit revised proposals. Our Office 
addressed this issue in two decisions: Protect the Force, Inc.--
Reconsideration, B-411897.3, Sept. 30, 2015, 2015 CPD ] 306, and 
Armorworks Enterprises, LLC, B-400394, B-400394.2, Sept. 23, 2008, 2008 
CPD ] 176. The revision as proposed makes 4 CFR 21.2(a)(2) consistent 
with the policy outlined in those decisions.
    One commentator opposed the proposed revision to paragraph (a)(2) 
of 4 CFR 21.2 and argued that the policy established in the two 
decisions should be reversed. The commentator argued that allowing 
protests concerning this type of solicitation impropriety to be 
``tolled'' until after a required and requested debriefing has been 
provided would avoid the possibility of a protester with ``mixed'' 
protest claims (i.e., claims of an alleged solicitation impropriety as 
well as claims concerning the source selection) from being required to 
file two separate protests.
    GAO response: GAO believes the revision is necessary to reflect our 
decisions and to avoid the conflict in the current rules. As an initial 
matter, the circumstance described by the commentator arises in 
exceedingly few protests. In any event, and as discussed in the two 
decisions that address this issue, there is sound policy underlying the 
proposed revision. Namely, the revision advances the principle that 
allegations of solicitation improprieties should be resolved as early 
as possible in the procurement process in order to promote fairness and 
efficiency. Further, adopting the policy advocated by the commentator 
could result in protesters and agencies unnecessarily expending time 
and resources on actions--such as preparing a protest concerning a 
source selection decision, in the protester's case, and preparing and 
providing debriefings, in the agency's case--in instances where there 
is merit in the allegation regarding the solicitation impropriety. For 
these reasons, we decline to eliminate the revision as requested by the 
commentator.

Communication Among Parties

    GAO proposed to revise paragraph (a) of 4 CFR 21.3 to require that 
parties to a protest provide copies of all protest communications ``to 
the agency and to other participating parties'' either through EPDS or 
email.
    Three commentators expressed concern that the proposed revision 
would require parties to copy all other parties on all exchanges 
concerning the protest, including strategy or settlement 
communications.

[[Page 13820]]

    GAO response: The proposed revision to paragraph (a) of 4 CFR 21.3 
was not intended to prohibit the parties from engaging in 
communications that do not involve GAO, or communications between some, 
but not all parties. Rather, the rule was intended to update the 
current rule to include EPDS. The current rule requires all parties to 
be copied on all protest communications, which, in practice, means that 
when a party communicates with GAO, it must copy the other parties. To 
avoid confusion, GAO will revise the final rule to provide that parties 
must copy all other parties on communications with GAO.
    Two commentators requested clarification as to how GAO will 
communicate with parties after the implementation of EPDS.
    GAO response: As discussed above, the EPDS Instructions provide 
guidance regarding the use of EPDS. EPDS will provide email 
notification to parties of communications by GAO to the parties 
transmitted through EPDS. GAO also anticipates that some communications 
to the parties will continue to be made through email and telephone, as 
appropriate.

Additional Documents

    GAO proposed to revise paragraph (c) of 4 CFR 21.3 to clarify that 
if the fifth day for filing the agency's required response to a 
protester's request for documents falls on a weekend or federal 
holiday, the response shall be filed on the last business day that 
precedes the weekend or federal holiday.

Calculating the Due Date

    One commentator expressed support for the revision to paragraph (c) 
because it avoids a potential ambiguity as to the due date for the 
agency's response.
    One commentator objected to the revision to paragraph (c) because 
it results in less time for agencies to prepare their responses to 
document requests and allows protesters more time to object to an 
agency's list of documents to be filed.
    GAO response: GAO believes that a revision to the date for the 
agency's response is required due to a potential ambiguity when the due 
date falls on a weekend or federal holiday. The resolution of the 
ambiguity necessarily results in either a longer or shorter time for 
agencies to respond. GAO concludes that a potentially shorter time for 
the agency's response, and potentially longer time for the protester to 
identify concerns or objections regarding the agency's response, is 
consistent with our statutory obligation to resolve protests within 100 
days.

Filing Before the Due Date

    One commentator suggested that the requirement to file an agency's 
response ``on the last business day . . .'', should be revised to 
require filing ``by the last business day . . .'', to reflect an agency 
may file its response earlier.
    GAO response: GAO agrees that the use of the term ``by,'' rather 
than ``on'' is appropriate and will revise paragraph (c) of 4 CFR 21.3 
in the final rule to reflect this change.

Submission of the Agency Report

    One commentator expressed the view that paragraph (d) of 4 CFR 
21.3, which requires the agency report to ``include'' a contracting 
officer's statement, inadvertently suggests that the memorandum of law 
is part of the contracting officer's statement.
    GAO response: Although this language was not proposed for revision, 
and does not appear to have caused confusion for agencies in the 
preparation of their agency reports, GAO agrees that placing the phrase 
``including a best estimate of the contract value'' in parentheses 
avoids any implication that the contracting officer is responsible for 
preparing a memorandum of law. This revision is reflected in the final 
rule.
    One commentator objected to the revision to paragraph (d) of 4 CFR 
21.3, which currently requires the agency report to include a copy of 
the protest. The commentator argued that the protest is a relevant 
document that should be included in the report.
    GAO response: We believe that inclusion of a copy of the protest is 
no longer required because this document will already have been filed 
through EPDS. This revision is reflected in the final rule.

Protective Orders

Filing Redactions

    GAO proposed to redesignate paragraph (b) of 4 CFR 21.4 as 
paragraph (c), redesignate paragraph (c) as paragraph (d), redesignate 
paragraph (d) as paragraph (e), and add a new paragraph (b). New 
paragraph (b) provides that when parties file documents that are 
covered by a protective order, the parties must provide copies of 
proposed redacted versions of the document to the other parties within 
1 day after the protected version is filed. Proposed redacted versions 
of documents should not be filed through EPDS; rather, the party 
responsible for preparing the proposed redacted version of the document 
should provide the document to the other parties by email or facsimile. 
New paragraph (b) provides that, where appropriate, the exhibits to the 
agency report or other documents may be proposed for redaction in their 
entirety. Additionally, new paragraph (b) provides that the party that 
files the protected document must file through EPDS within 5 days a 
final, agreed-to redacted version of the document. New paragraph (b) 
also directs the parties to seek GAO's resolution of any disputes 
concerning redacted documents.
    Five commentators expressed concern that requirements to prepare 
and review proposed and final redacted versions of documents will place 
a burden on parties because of the resources required to prepare and 
approve the redactions. One commentator argued that a requirement to 
prepare redacted versions of all documents filed under a protective 
order would be inconsistent with GAO's statutory mandate under CICA to 
provide for the inexpensive resolution of bid protests.
    Two commentators expressed the view that the ``current practice'' 
for parties filing protected documents is for the parties to negotiate 
among themselves as to which documents should remain under the 
protective order in their entirety and which documents should be 
redacted for release outside the protective order. These commentators 
suggested that the proposed rule in new paragraph (b) be revised to 
allow the parties ``flexibility'' in deciding which documents to 
redact. One commentator expressed concern that the requirement that the 
agency prepare redacted versions that inform pro se parties will be 
burdensome. Another commentator expressed specific concern with regard 
to pro se intervenors where there is a protester represented by counsel 
admitted to a protective order.
    GAO response: Paragraph 2 of GAO's standard protective order 
requires parties to file proposed redacted versions of every document 
marked protected. GAO recognizes, however, that the practice among 
parties in many protests is to agree not to prepare redacted versions 
of all documents. GAO also recognizes that preparation of redacted 
versions of documents requires resources on the part of the parties 
that prepare them and on the part of the other parties who must review 
them. GAO will revise new paragraph (b) of 4 CFR 21.4 to provide that 
when a party files a document in EPDS that is marked protected, that 
party must, at the request of another party, provide a proposed 
redacted version of the document to the requesting party within 2 days. 
This revision is intended to balance the legitimate interest in 
providing public

[[Page 13821]]

versions of documents against the parties' costs of preparing and 
reviewing such documents.
    One commentator requested that new paragraph (b) of 4 CFR 21.4 
expressly permit party-specific redactions, for example, redactions 
that may be released only to either the protester or intervenor.
    GAO response: GAO has not opposed the preparation and approval of 
party-specific redactions. Neither 4 CFR 21.4 nor the protective order 
prohibit this practice, and GAO does not see a need to address this 
matter in the rule.
    One commentator noted that the proposed rule stated that ``Proposed 
redacted versions of documents should not be filed through EPDS; 
rather, the party responsible for preparing the proposed redacted 
version of the document should provide the document to the other 
parties by email or facsimile.'' The commentator suggested that there 
is no reason to limit the non-EPDS exchanges between the parties to 
email or facsimile.
    GAO response: Although this instruction was not included in the 
text of the revised regulation, GAO agrees with the commentator that 
there is no reason to limit the non-EPDS exchanges between the parties 
to email or facsimile.

Issues Not for Consideration

Protests of Orders Issued Under Task or Delivery Order Contracts

    GAO proposed to add paragraph (l) of 4 CFR 21.5 to reference the 
provisions of 10 U.S.C. 2304c(e)(1) and 41 U.S.C. 4106(f)(1), which 
limit GAO's jurisdiction to hear protests in connection with the 
issuance or proposed issuance of a task or delivery order issued under 
indefinite-delivery, indefinite-quantity contracts where the order is 
valued at dollar thresholds established by the statutory provisions, 
unless it is alleged that the order increases the scope, period, or 
maximum value of the contract under which the order was issued.
    One commentator proposed that paragraph (l) of 4 CFR 21.5 be 
revised to clarify that GAO has jurisdiction to hear protests 
concerning orders issued under the Federal Supply Schedule (FSS).
    GAO response: The proposed rule states that GAO's jurisdiction to 
review protests of orders issued under task or delivery order contracts 
is limited by the provisions of 10 U.S.C. 2304c(e)(1) and 41 U.S.C. 
4106(f)(1), which were enacted as part of the Federal Acquisition 
Streamlining Act of 1994 (FASA), as amended. As GAO has explained in 
numerous bid protest decisions, the statutory authority under FASA for 
agencies to award multiple-award task and delivery order contracts and 
issue orders under those contracts is separate from the statutory 
authority to award multiple-award FSS contracts and for agencies to 
issue orders under those contracts. E.g., Severn Cos., Inc., B-
275717.2, Apr. 28, 1997, 97-1 CPD ] 181. For this reason, we have 
concluded that the jurisdictional limitations on GAO's review of orders 
issued under task or delivery order contracts pursuant to FASA does not 
affect our Office's jurisdiction to hear protests concerning orders 
issued under the FSS. Because the proposed revision addresses only the 
jurisdictional limits under FASA, we see no reason to add additional 
provisions addressing the FSS.

Protests of Awards, or Solicitations for Awards, of Agreements Other 
Than Procurement Contracts

    GAO proposed to add paragraph (m) to 4 CFR 21.5 to clarify that GAO 
has the authority to review protests that an agency is improperly using 
a non-procurement instrument.
    One commentator proposed that we clarify that our review of 
protests alleging that an agency is improperly using a non-procurement 
instrument is limited to whether an agency is improperly using the non-
procurement instrument to procure goods or services.
    GAO response: We agree that the proposed clarification reflects the 
longstanding practice by our Office to review such protests and will 
revise paragraph (m) of 4 CFR 21.5 in the final rule to reflect that 
GAO will review protests that an agency is improperly using a non-
procurement instrument to procure goods or services.

Withholding of Award and Suspension of Contract Performance

    GAO proposed to revise 4 CFR 21.6 to require agencies to file a 
notification in instances where it overrides a requirement to withhold 
award or suspend contract performance, and to file a copy of any issued 
determination and finding.
    One commentator questioned why GAO proposed to require this 
information, in light of the statement in the same paragraph that ``GAO 
does not administer the requirements to stay award or suspend contract 
performance under CICA at 31 U.S.C. 3553(c) and (d).''
    GAO response: GAO's proposed rule noted that 31 U.S.C. 3554(b)(2) 
requires our Office to consider the basis for an agency's override in 
determining the remedy to recommend in the event we sustain a protest. 
To further clarify, 31 U.S.C. 3554(b)(2) states that if an agency 
issues an override based on the ``best interests of the United 
States,'' then GAO shall make a recommendation upon sustaining a 
protest ``without regard to any cost or disruption from terminating, 
recompeting, or reawarding the contract.'' Since this statutory 
provision requires GAO to consider the basis for any agency's override 
decision, GAO proposed to revise 4 CFR 21.6.
    One commentator objected to the requirement to file the override 
decision, and proposed that agencies be required to advise GAO whether 
an override decision was based on the ``best interests of the United 
States,'' or ``urgent and compelling circumstances.''
    GAO response: GAO agrees that the statutory requirement for our 
Office to issue recommendations that take into consideration the basis 
for an override can also be met if the agency advises GAO of that 
basis, without providing the decision itself. GAO is therefore issuing 
this final rule to state that, when an agency issues a determination 
and finding to override a requirement to withhold award or suspend 
contract performance, the agency must file either the determination and 
finding itself or a statement by the official who approved the 
determination and finding that specifies the statutory basis for the 
override.
    One commentator proposed revising the proposed rule to state that 
the decision must be filed ``unless classified.''
    GAO response: GAO does not believe that a revision is required 
here, as the proposed revision to paragraph (h) of 4 CFR 21.1 states 
that documents containing classified material cannot be filed through 
EPDS. As explained above, this proposed revision is further revised in 
the final rule to make clear that documents containing classified 
material ``shall not'' be filed through EPDS.

Remedies

Recommendation for Reimbursement of Costs

    GAO proposed revising paragraph (e) of 4 CFR 21.8 to provide that a 
protester must file comments on an agency's response to a request for a 
recommendation for reimbursement of costs within 10 days and to further 
provide that GAO will dismiss the request if the protester fails to 
file comments within 10 days.
    One commentator opposed this proposed revision, arguing that GAO 
should consider requests even where the protester does not file 
comments on

[[Page 13822]]

the agency's response. The commentator suggested that the agency's 
response to the request should be sufficient for GAO to rule on the 
request.
    GAO response: A protester's comments on an agency's response to a 
request for a recommendation for reimbursement of protest costs are 
necessary to provide an adequate record for GAO to review in issuing 
its decision. GAO believes that where a protester fails to respond 
within 10 days--the same period of time permitted for filing comments 
on an agency report--it is appropriate to deem the protester as having 
abandoned its request. GAO does not believe that resolution of an 
abandoned request is an appropriate use of our Office's resources.
    One commentator expressed concern that the requirement in paragraph 
(e) of 4 CFR 21.8 that agencies respond to a request for a 
recommendation for reimbursement of costs within 15 days will require 
agencies to address requests for costs that are contained in the 
initial protest--thus requiring the agency to address requests for 
costs within 15 days of a protest's initial filing, that is, before the 
due date for filing the agency report as required by paragraph (c) of 4 
CFR 21.3.
    GAO response: We do not agree with the commentator's interpretation 
of the requirements of paragraph (e) of 4 CFR 21.8. The plain language 
of paragraph (e) refers to requests filed by protesters for 
recommendation of reimbursement of costs after GAO dismisses a protest 
based on an agency's decision to take corrective action. For this 
reason, we see no basis to conclude that paragraph (e) requires an 
agency to file a response to a request that is made outside the 
procedures set forth in that paragraph.
    One commentator proposed that we revise paragraph (e) to state that 
GAO will not recommend reimbursement of costs where an agency takes 
corrective action in response to a protest prior to providing the 
agency report. Another commentator proposed that we revise paragraph 
(e) to state that GAO will not recommend reimbursement of costs unless 
the agency has unreasonably delayed taking corrective action.
    GAO response: Paragraph (e) of 4 CFR 21.8 provides that GAO ``may 
recommend'' reimbursement of protest costs where an agency has taken 
corrective action in response to a protest. The two commentators' 
suggestions relate to the legal standard applied by our Office in 
determining when a recommendation for reimbursement is appropriate. The 
proposed rule is meant to establish the procedure for filing requests 
for recommendation of reimbursement of costs and does not attempt to 
set forth the full legal standard that has been applied by our Office. 
Because it would be impractical to incorporate all circumstances 
encompassed within our decisions in this rule, we conclude that a 
revision is not necessary.

Recommendation on the Amount of Costs

    One commentator requested that we incorporate a reference to the 
legislative history concerning the statutory provision at 31 U.S.C. 
3554(c), which provides that although reimbursement for a protester's 
legal fees shall be capped at $150 per hour, small businesses are not 
subject to this limitation. The commentator noted that the conference 
committee's report on FASA, which imposed the $150 per hour cap, stated 
as follows: ``The conferees expect the Comptroller General to be 
vigilant in reviewing attorneys' fees to ensure that they are 
reasonable. The cap placed on attorneys' fees for businesses other than 
small business constitutes a benchmark as to what constitutes a 
`reasonable' level for attorneys' fees for small businesses.'' H. Rept. 
103-712, section 1403 (Aug. 21, 1994), as reprinted in 1994 
U.S.C.C.A.N. 2607, 2621-22.
    GAO response: Our Office previously addressed this provision in a 
decision recommending the amount of attorneys' fees to be reimbursed 
for a small business whose protest had been sustained. See Public 
Communications Services, Inc.--Costs, B-400058.4, June 25, 2009, 2009 
CPD ] 131. In that decision, GAO stated that ``we recognize that the 
FASA conference committee reiterated our Office's responsibility, 
imposed in 1984 by CICA, to ensure that attorneys' fees sought for 
reimbursement are reasonable.'' Id. at 8. Nonetheless, we concluded 
``we do not view the benchmark language as imposing an additional 
limitation (i.e., a cap) on attorneys' fees that are otherwise 
reasonable,'' because ``[s]uch an interpretation would be inconsistent 
with the plain statutory language of FASA which exempts small 
businesses from the specific cap imposed on large businesses--and we 
see no evidence that the Congress intended such a result.'' Id. Because 
this matter was fully addressed in Public Communications Services, 
Inc.--Costs, we see no reason to add the benchmark language to the 
final regulation.

Express Options, Flexible Alternative Procedures, Accelerated 
Schedules, Summary Decisions, and Status And Other Conferences

    GAO proposed to revise 4 CFR 21.10 to reflect the requirement to 
file documents through EPDS.
    One commentator proposed that we revise the flexible schedule 
procedures in 4 CFR 21.10 to provide that GAO will seek the 
``concurrence'' of the parties before using an alternate schedule. The 
commentator notes that the flexible schedule procedures, in particular 
the express option schedule, may change the parties' filing dates and 
reduce the amount of time for filings.
    GAO response: As a matter of practice, GAO considers the views of 
the parties when using the flexible schedule procedures in 4 CFR 21.10. 
However, GAO reserves the right to use these procedures even where the 
parties do not concur. GAO believes that the use of flexible schedule 
procedures aids our Office's ability to meet our statutory obligations 
to provide an inexpensive and expeditious forum for the resolution of 
protests.

Nonstatutory Protests

    Although not addressed in our proposed rule, GAO will revise 4 CFR 
21.13(b) to clarify that certain provisions of 4 CFR do not apply to 
nonstatutory protests. The rule currently states that GAO will not 
issue recommendations for the payment of costs associated with 
nonstatutory protests, as otherwise provided for in 4 CFR 21.8(d). The 
revised rule clarifies that GAO will also not issue recommendations for 
the payment of costs when an agency takes corrective action in response 
to a nonstatutory protest, as otherwise provided for in 4 CFR 21.8(e). 
The revised rule also clarifies that 4 CFR 21.6, which pertains to the 
withholding of award and the suspension of contract performance 
pursuant to 31 U.S.C. 3553(c) and (d), does not apply to nonstatutory 
protests.

List of Subjects in 4 CFR Part 21

    Administrative practice and procedure, Appeals, Bid protest 
regulations, Government contracts.

    For the reasons set out in the preamble, title 4, chapter I, 
subchapter B, part 21 of the Code of Federal Regulations is amended as 
follows:

PART 21--BID PROTEST REGULATIONS

0
1. The authority citation for part 21 continues to read as follows:

     Authority:  31 U.S.C. 3551-3557.

[[Page 13823]]


0
2. In Sec.  21.0:
0
a. Amend paragraph (a)(2) introductory text by adding the abbreviation 
``(OMB)'' between the words Budget and Circular;
0
b. Redesignate paragraphs (a)(2)(A) and (B) as paragraphs (a)(2)(i) and 
(ii), respectively;
0
c. Amend paragraph (b)(2) by removing ``(a)(2)(B)'' and adding in its 
place (a)(2)(ii)'';
0
d. Amend paragraph (c) by removing the word ``his'' and adding in its 
place the words ``the Architect's'';
0
e. Redesignate paragraphs (f) and (g) as paragraphs (g) and (h), 
respectively, and add a new paragraph (f);
0
f. Revise newly redesignated paragraph (g).
    The addition and revision read as follows:


Sec.  21.0   Definitions.

* * * * *
    (f) Electronic Protest Docketing System (EPDS) is GAO's web-based 
electronic docketing system. GAO's website [https://epds.gao.gov/login] 
includes instructions and guidance on the use of EPDS.
    (g) A document is filed on a particular day when it is received in 
EPDS by 5:30 p.m., Eastern Time. Delivery of a protest or other 
document by means other than those set forth in the online EPDS 
instructions does not constitute a filing. Filing a document in EPDS 
constitutes notice to all parties of that filing.
* * * * *

0
3. Amend Sec.  21.1 by revising paragraphs (b) and (c)(1), the third 
sentence of paragraph (g), and by adding a new first sentence to 
paragraph (h) to read as follows:


Sec.  21.1   Filing a protest.

* * * * *
    (b) Protests must be filed through the EPDS.
    (c) * * *
    (1) Include the name, street address, email address, and telephone 
and facsimile numbers of the protester,
* * * * *
    (g) * * * This information must be identified wherever it appears, 
and within 1 day after the filing of its protest, the protester must 
file a final redacted copy of the protest which omits the information.
    (h) Protests and other documents containing classified information 
shall not be filed through the EPDS. * * *
* * * * *

0
4. Amend Sec.  21.2 by adding a third sentence to paragraph (a)(1); by 
revising the second sentence of paragraph (a)(2) and the first sentence 
of paragraph (a)(3) to read as follows:


Sec.  21.2  Time for filing.

    (a)(1) * * * If no closing time has been established, or if no 
further submissions are anticipated, any alleged solicitation 
improprieties must be protested within 10 days of when the alleged 
impropriety was known or should have been known.
    (2) * * * 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, and which does not involve an alleged solicitation 
impropriety covered by paragraph (a)(1) of this section, 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 must be filed within 10 days of actual or 
constructive knowledge of initial adverse agency action, provided the 
agency-level protest was filed in accordance with paragraphs (a)(1) and 
(2) of this section, unless the agency imposes a more stringent time 
for filing, in which case the agency's time for filing will control. * 
* *

0
5. Amend Sec.  21.3 by revising the section heading, paragraphs (a), 
(c), (d), (e), the first sentence of paragraph (f), paragraph (g), the 
first sentence of paragraph (h), and paragraph (i) to read as follows:


Sec.  21.3  Notice of protest, communications among parties, submission 
of agency report, and time for filing of comments on report.

    (a) GAO shall notify the agency within 1 day after the filing of a 
protest, and, unless the protest is dismissed under this part, shall 
promptly provide a written confirmation to the agency and an 
acknowledgment to the protester. The agency shall immediately give 
notice of the protest to the awardee 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 agency shall provide 
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 provide 
copies of all communications with GAO to the agency and to other 
participating parties either through EPDS or by email. GAO's website 
[https://epds.gao.gov/login] includes guidance regarding when to file 
through EPDS versus communicating by email or other means.
* * * * *
    (c) The agency shall file a report on the protest within 30 days 
after receiving notice of the protest from GAO. The report need not 
contain documents which the agency has previously provided 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 file a 
response to the request for documents. If the fifth day prior to the 
filing of the report falls on a weekend or Federal holiday, the 
response shall be filed by the last business day that precedes the 
weekend or holiday. The agency's response shall, at a minimum, identify 
whether the requested documents exist, which of the requested documents 
or portions thereof the agency intends to produce, which of the 
requested documents or portions thereof the agency intends to withhold, 
and the basis for not producing any of the requested documents or 
portions thereof. Any objection to the scope of the agency's proposed 
disclosure or nondisclosure of documents must be filed within 2 days of 
receipt of this response.
    (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 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, a party 
may file a request that another party produce relevant documents, or 
portions of documents, that are not in the agency's possession.
    (e) Where a protester or intervenor does not have counsel admitted 
to a protective order and documents are withheld from the protester or 
intervenor on that basis, the agency shall file redacted documents that 
adequately inform the protester and/or intervenor of the basis of the 
agency's arguments in response to the protest. GAO's website [https://epds.gao.gov/login] provides guidance regarding filing documents where 
no protective order is issued or where a protester or intervenor does 
not have counsel admitted to a protective order.
    (f) The agency may file a request for an extension of time for the 
submission of the response to be filed by the agency

[[Page 13824]]

pursuant to Sec.  21.3(c) or for the submission of the agency report. * 
* *
    (g) The protester may file a request for 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 not later than 2 days after their 
existence or relevance is known or should have been known, whichever is 
earlier. The agency shall file the requested documents, or portions of 
documents, within 2 days or explain why it is not required to produce 
the documents.
    (h) Upon a request filed by a party, GAO will decide whether the 
agency must file any withheld documents, or portions of documents, and 
whether this should be done under a protective order. * * *
    (i)(1) Comments on the agency report shall be filed within 10 days 
after the agency has filed the report, except where GAO has granted an 
extension of time, or where GAO has established a shorter period for 
filing of comments. Extensions will be granted on a case-by-case basis.
    (2) The protest shall be dismissed unless the protester files 
comments within the period of time established in Sec.  21.3(i)(1).
    (3) GAO will dismiss any protest allegation or argument where the 
agency's report responds to the allegation or argument, but the 
protester's comments fail to address that response.
* * * * *

0
6. In Sec.  21.4:
0
a. Amend paragraph (a) by removing the word ``under'' in the fourth 
sentence and adding in its place the word ``to''; and adding a fifth 
sentence;
0
b. Redesignate paragraphs (b), (c), and (d) as paragraphs (c), (d), and 
(e), respectively, and add a new paragraph (b);
0
c. Revise the first sentence of newly redesignated paragraph (c); and 
revise the first and third sentences of newly designated paragraph (d).
    The addition and revisions read as follows:


Sec.  21.4   Protective orders.

    (a) * * * GAO generally does not issue a protective order where an 
intervenor retains counsel, but the protester does not.
    (b) Any agency or party filing a document that the agency or party 
believes to contain protected material shall, if requested by another 
party, provide to the other parties (unless they are not admitted to 
the protective order) an initial proposed redacted version of the 
document within 2 days of the request. Where appropriate, the exhibits 
to the agency report or other documents may be proposed for redaction 
in their entirety. The party that authored the document shall file the 
final redacted version of the document that has been agreed to by all 
of the parties. Only the final agreed-to version of a redacted document 
must be filed. If the parties are unable to reach an agreement 
regarding redactions, the objecting party may submit the matter to GAO 
for resolution. Until GAO resolves the matter, the disputed information 
must be treated as protected.
    (c) If no protective order has been issued, or a protester or 
intervenor does not have counsel admitted to a protective order, the 
agency may withhold from the parties those portions of its report that 
would ordinarily be subject to a protective order, provided that the 
requirements of Sec.  21.3(e) are met. * * *
    (d) 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 filing an application. * * * 
Objections to an applicant's admission shall be filed within 2 days 
after the application is filed, although GAO may consider objections 
filed after that time.
* * * * *

0
7. In Sec.  21.5:
0
a. Amend paragraph (a) by removing ``601-613'' and adding in its place 
``7101-7109'';
0
b. Revise paragraph (b) subject heading, paragraph (b)(1), the first 
sentence of paragraph (b)(2), and paragraph (b)(3);
0
c. Amend paragraph (d) by removing ``423'' and adding in its place 
``2101-2107'';
0
d. Amend paragraph (e) by removing the words ``in GAO'' and adding in 
their place the words ``with GAO'';
0
e. Amend paragraph (f) by removing the word ``which'' in two places and 
adding in its place the word ``that'';
0
f. Amend paragraph (g) by removing ``472'' and adding in its place 
``102'';
0
g. Revise paragraph (h); and
0
h. Add paragraphs (l) and (m).
    The revisions and additions read as follows:


Sec.  21.5  Protest issues not for consideration.

* * * * *
    (b) Small Business Administration (SBA) issues. (1) Small business 
size standards and North American Industry Classification System 
(NAICS) standards. Challenges of established size standards or the size 
status of particular firms, and challenges of the selected NAICS code 
may be reviewed solely by the SBA. 15 U.S.C. 637(b)(6).
    (2) Small Business Certificate of Competency Program. Referrals 
made to the 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. * * *
    (3) Procurements under sec. 8(a) of the Small Business Act. Under 
that section, since contracts are entered into with the SBA at the 
contracting officer's discretion and on such terms as are agreed upon 
by the procuring agency and the SBA, 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).
* * * * *
    (h) Subcontract protests. GAO will not consider a protest of the 
award or proposed award of a subcontract except where the agency 
awarding the prime contract has filed a request that subcontract 
protests be decided pursuant to Sec.  21.13.
* * * * *
    (l) Protests of orders issued under task or delivery order 
contracts. As established in 10 U.S.C. 2304c(e) and 41 U.S.C. 4106(f), 
GAO does not have jurisdiction to review protests in connection with 
the issuance or proposed issuance of a task or delivery order except 
for the circumstances set forth in those statutory provisions.
    (m) Protests of awards, or solicitations for awards, of agreements 
other than procurement contracts. GAO generally does not review 
protests of awards, or solicitations for awards, of agreements other 
than procurement contracts, with the exception of awards or agreements 
as described in Sec.  21.13; GAO does, however, review protests 
alleging that an agency is improperly using a non-procurement 
instrument to procure goods or services.

0
8. Revise Sec.  21.6 to read as follows:


Sec.  21.6  Withholding of award and suspension of contract 
performance.

    When a protest is filed, the 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); GAO does not administer the 
requirements to withhold award or suspend contract performance. An 
agency shall file a notification in

[[Page 13825]]

instances where it overrides a requirement to withhold award or suspend 
contract performance, and it shall file either a copy of any issued 
determination and finding, or a statement by the individual who 
approved the determination and finding that explains the statutory 
basis for the override.

0
9. Amend Sec.  21.7 by revising the first sentence of paragraph (a) and 
revising paragraph (e) to read as follows:


Sec.  21.7   Hearings.

    (a) Upon a request filed by a party or on its own initiative, GAO 
may conduct a hearing in connection with a protest. * * *
* * * * *
    (e) GAO does not provide for hearing transcripts. If the parties 
wish to have a hearing transcribed, they may do so at their own 
expense, so long as a copy of the transcript is provided to GAO at the 
parties' expense.
* * * * *

0
10. Amend Sec.  21.8 by revising paragraph (e), adding a paragraph (f) 
subject heading, revising paragraphs (f)(2) and (3), and adding 
paragraphs (f)(4) through (6) to read as follows:


Sec.  21.8   Remedies.

* * * * *
    (e) Recommendation for reimbursement of costs. If the 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 not later than 15 days 
after 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 agency shall file a 
response within 15 days after the request is filed. The protester shall 
file comments on the agency response within 10 days of receipt of the 
response. GAO shall dismiss the request unless the protester files 
comments within the 10-day period, except where GAO has granted an 
extension or established a shorter period.
    (f) Recommendation on the amount of costs.
* * * * *
    (2) The agency shall issue a decision on the claim for costs as 
soon as practicable after the claim is filed.
    (3) If the protester and the agency cannot reach agreement 
regarding the amount of costs within a reasonable time, the protester 
may file a request that GAO recommend the amount of costs to be paid, 
but such request shall be filed within 10 days of when the agency 
advises the protester that the agency will not participate in further 
discussions regarding the amount of costs.
    (4) Within 15 days after receipt of the request that GAO recommend 
the amount of costs to be paid, the agency shall file a response. The 
protester shall file comments on the agency response within 10 days of 
receipt of the response. GAO shall dismiss the request unless the 
protester files comments within the 10-day period, except where GAO has 
granted an extension or established a shorter period.
    (5) In accordance with 31 U.S.C. 3554(c), GAO may recommend the 
amount of costs the agency should pay. In such cases, GAO may also 
recommend that the agency pay the protester the costs of pursuing the 
claim for costs before GAO.
    (6) Within 60 days after GAO recommends the amount of costs the 
agency should pay the protester, the agency shall file a notification 
of the action the agency took in response to the recommendation.

0
11. Amend Sec.  21.9 by revising paragraph (a) to read as follows:


Sec.  21.9   Time for decision by GAO.

    (a) GAO shall issue a decision on a protest within 100 days after 
it is filed. GAO will attempt to resolve a request for recommendation 
for reimbursement of protest costs under Sec.  21.8(e), a request for 
recommendation on the amount of protest costs under Sec.  21.8(f), or a 
request for reconsideration under Sec.  21.14 within 100 days after the 
request is filed.
* * * * *

0
12. Amend Sec.  21.10 by revising paragraph (a), the first sentence of 
paragraph (c), and paragraphs (d)(1) and (2) and (e) to read as 
follows:


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

    (a) Upon a request filed by a party or on its own initiative, GAO 
may decide a protest using an express option.
* * * * *
    (c) Requests for the express option shall be filed not later than 5 
days after the protest or supplemental/amended protest is filed. * * *
    (d) * * *
    (1) The agency shall file a complete report 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 within 5 days 
after receipt of the report.
* * * * *
    (e) GAO, on its own initiative or upon a request filed 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.
* * * * *

0
13. Amend Sec.  21.11 by revising paragraph (a) to read as follows:


Sec.  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 
copies of all relevant court documents.
* * * * *

0
14. Amend Sec.  21.12 by revising paragraph (b) to read as follows:


Sec.  21.12   Distribution of decisions.

* * * * *
    (b) Decisions will be distributed to the parties through the EPDS.

0
15. Amend Sec.  21.13 by revising paragraph (b) to read as follows:


Sec.  21.13   Nonstatutory protests.

* * * * *
    (b) The provisions of this part shall apply to nonstatutory 
protests except for:
    (1) Section 21.8(d) and (e) pertaining to recommendations for the 
payment of costs; and
    (2) Section 21.6 pertaining to the withholding of award and the 
suspension of contract performance pursuant to 31 U.S.C. 3553(c) and 
(d).

0
16. Amend Sec.  21.14 by revising paragraph (b) and the second sentence 
of paragraph (c) to read as follows:


Sec.  21.14  Request for reconsideration.

* * * * *
    (b) A request for reconsideration of a bid protest decision shall 
be filed not later than 10 days after the basis for reconsideration is 
known or should have been known, whichever is earlier.
    (c) * * * To obtain reconsideration, the requesting party must show 
that GAO's prior decision contains errors of either fact or law, or 
must present information not previously considered that warrants 
reversal or modification of the decision; GAO will not consider a 
request for reconsideration based on

[[Page 13826]]

repetition of arguments previously raised.

Thomas H. Armstrong,
General Counsel, United States Government Accountability Office.
[FR Doc. 2018-06413 Filed 3-30-18; 8:45 am]
 BILLING CODE 1610-02-P