Acquisition Regulation: Protests, Disputes, and Appeals

Federal Register: December 9, 2008 (Volume 73, Number 237)

Rules and Regulations

Page 74613-74615

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr09de08-5

GENERAL SERVICES ADMINISTRATION 48 CFR Parts 533 and 552

GSAR Amendment 2008-03; GSAR Case 2007-G501;Docket 2008-0007; Sequence 1 (Change 24)

RIN 3090-AI49

General Services Administration Acquisition Regulation; GSAR Case 2007-G501, Protests, Disputes, and Appeals

AGENCIES: General Services Administration (GSA), Office of the Chief

Acquisition Officer.

ACTION: Final rule.

SUMMARY: The General Services Administration (GSA) is amending the

General Services Administration Acquisition Regulation (GSAR) by updating language pertaining to protests, disputes, and appeals.

DATES: Effective Date: January 8, 2009.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact

Ms. Meredith Murphy at (202) 208-6925, or by e-mail at meredith.murphy@gsa.gov. For information pertaining to the status or publication schedules, contact the Regulatory Secretariat (VPR), Room 4041, GS Building, Washington, DC 20405, (202) 501-4755. Please cite

Amendment 2005-03, GSAR case 2007-G501 (Change 24).

SUPPLEMENTARY INFORMATION:

1. Background

   The General Services Administration (GSA) is amending the General

   Services Administration Acquisition Regulation (GSAR) to update the text addressing protests, disputes, and appeals. This rule is a result of the General Services Administration Acquisition Manual (GSAM) rewrite initiative undertaken by GSA to revise the GSAM to maintain consistency with the FAR and implement streamlined and innovative acquisition procedures that contractors, offerors, and GSA contracting personnel can utilize when entering into and administering contractual relationships. The GSAM incorporates the GSAR as well as internal agency acquisition policy.

   GSA will rewrite each part of the GSAR and GSAM, and as each GSAR part is rewritten, will publish it in the Federal Register.

   This rule covers the rewrite of GSAR Part 533, Protests, Disputes, and Appeals. A proposed rule was published in the Federal Register at 73 FR 32514 on June 9, 2008. No comments were received in response to the

   Page 74614

   proposed rule. Subsequent to the close of the comment period, the GSA

   Office of General Counsel proposed to reinstate some material from the clause at 552.233-70, Protests Filed Directly with the General Services

   Administration, as text coverage at a new subsection, 533.103-1. The language was added at the recommendation of the Office of General

   Counsel to clarify GSA's rules in the context of the FAR process. This is the only change in the final version of GSAR Part 533 from the proposed rule.

   The revised GSAR no longer includes the two clauses and associated prescriptions for Part 533. The GSA-unique utilities disputes clause and prescription were deleted at the request of the Public Buildings

   Service (PBS). The GSA-unique clause, 552.233-70, Protests Filed

   Directly with the General Services Administration, and its prescription, were also deleted, because the clause merely repeated much of the associated FAR clause.

   Editorial changes were made to GSAR section 533.211, Contracting officer's decision, so as not to repeat the information that must be included, as prescribed in FAR 33.211, to clarify the GSA-unique requirements, and to recognize that the GSBCA's duties are now vested in the Civilian Board of Contract Appeals (CSBA). Material from Subpart 533.70, Processing Contract Appeals, was determined to be implementing, not supplementing, the FAR, and it was moved into Subpart 533.2.

   This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866,

   Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

2. Regulatory Flexibility Act

   The General Services Administration does not expect this final rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because this rule will only affect an offeror that is submitting a protest or has a dispute with GSA. Further, GSA is making only minor changes in the regulations and procedures for pursuing either action. For these reasons, it is expected that the number of entities impacted by this rule will be minimal. Therefore, a Regulatory

   Flexibility Analysis was not performed.

3. Paperwork Reduction Act

   The Paperwork Reduction Act does not apply because the changes to the GSAR do not impose recordkeeping or information collection requirements that require approval ofthe Office of Management and

   Budget under 44 U.S.C. 3501, et seq.

   List of Subjects in 48 CFR Parts 533 and 552

   Government procurement.

   Dated: October 30, 2008

   David A. Drabkin,

   Senior Procurement Executive,Office of the Chief Acquisition Officer,

   General Services Administration. 0

   Therefore, GSA amends 48 CFR parts 533 and 552 as set forth below:

   PART 533--PROTESTS, DISPUTES, AND APPEALS 0 1. The authority citation for 48 CFR part 533 is revised to read as follows:

   Authority: 40 U.S.C. 121(c). 0 2. Add section 533.103-1 to read as follows: 533.103-1 Filing a protest.

   (a) Any protester filing an agency protest has the choice of requesting either that the contracting officer or the Agency Protest

   Official decide the protest. If the protest is silent on this matter, the contracting officer will decide the protest. If a party requests a review at a level above the contracting officer, the Agency Protest

   Official will decide the protest. The decision by the Agency Protest

   Official for GSA is an alternative to a decision by the contracting officer on a protest. The Agency Protest Official for GSA will not consider an appeal of the contracting officer's decision on an agency protest.

   (b) If an agency protest is filed, the deciding official uses the procedures in FAR 33.103 and this section to resolve the protest. The deciding official will provide a fair and quick review of any protest filed with the agency.

   (c) The filing timeframes in FAR 33.103(e) apply. An agency protest is filed when the complete protest is received at the location the solicitation designates for serving protests. GSA's hours of operation are 8 a.m. to 4:30 p.m. Protests delivered after 4:30 p.m. will be considered received and filed the following business day.

   (d) The protest must meet all the following conditions:

   (1) Include the information required by FAR 33.103(d)(2).

   (2) Indicate that it is a protest to the agency.

   (3) Be filed in writing with the contracting officer.

   (4) State whether the protester chooses to have the contracting officer or the Agency Protest Official decide the protest. If the protest does not include the protester's choice, then the contracting officer will decide the protest (see paragraph (a) of this subsection).

   (e) The following procedures apply to information submitted in support of or in response to an agency protest:

   (1) GSA procedures do not provide for any discovery.

   (2) The deciding official has discretion to request additional information from either the agency or the protester, orally or in writing, as may be necessary to render a timely decision on the protest. However, protests are normally decided on the basis of information initially provided by the protester and the agency.

   (3) To the extent permitted by law and regulations, the parties may exchange relevant information.

   (4) The agency must make a written response to the protest within ten days unless another date is set by the deciding official.

   (5) The agency must also provide the protester with a copy of the response on the same day it files the protest response with the deciding official. If the agency believes it needs to redact or withhold any information in the response from the protester, it should identify and provide the information to the deciding official for in camera review.

   (f) A protester may represent itself or be represented by legal counsel. GSA will not reimburse the protester for any legal fees related to the agency protest.

   (g) GSA may dismiss or stay proceedings on an agency protest if a protest on the same or similar basis is filed with a protest forum outside of GSA. 533.103-72 [Removed] 0 3. Remove section 533.103-72. 533.209 [Added] 0 4. Add section 533.209 to read as follows: 533.209 Suspected fraudulent claims.

   In GSA, the agency official responsible for investigating fraud is the Office of Inspector General. 0 5. Revise section 533.211 to read as follows: 533.211 Contracting officer's decision.

   The contracting officer's written decision must include the paragraph at FAR 33.211(a)(4)(v). The contracting officer shall state in the decision that a contractor's notice of appeal to the Civilian

   Board of Contract Appeals (CBCA) should include a copy of the contracting officer's decision.

   Page 74615

   533.215 [Removed] 0 6. Remove section 533.215.

   PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 7. The authority citation for 48 CFR part 552 continues to read as follows:

   Authority: 40 U.S.C. 121(c). 552.233-70 and 552.233-71 [Removed] 0 8. Remove sections 552.233-70 and 552.233-71.

   FR Doc. E8-29061 Filed 12-8-08; 8:45 am

   BILLING CODE 6820-61-S