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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: October 1, 2002

SUBJECT: General Accounting Office (GAO); Review and Revision of Protest Regulations

SOURCE: Federal Register, October 1, 2002, Vol. 67, No. 190, page 61542

AGENCIES: General Accounting Office

ACTION: Proposed Rule

SYNOPSIS: GAO is proposing to revise its bid protest regulations, which has not been revised since 1996, to conform to current practice and to improve their overall efficiency and effectiveness.

EDITOR'S NOTE: GAO's protest regulations, which are in Title 4 of the Code of Federal Regulations (CFR), Part 21, govern offeror protests filed with the GAO against alleged improprieties in the government's conduct of acquisitions (GAO's protest regulations are available at http://www.gao.gov/special.pubs/og96024.htm). Federal Acquisition Regulation (FAR) 33.104, Protests to the GAO, provides an overview of the protest process and procedures. However, if there is a conflict between GAO's regulations and the FAR, GAO's regulations govern.

For more on the advance notice of proposed rulemaking (ANPR), see the February 25, 2002, FEDERAL CONTRACTS DISPATCH "General Accounting Office; Review and Revision of Protest Regulations."

DATES: Comments must be submitted on or before November 12, 2002.

ADDRESSES: Comments should be addressed to John M. Melody, Assistant General Counsel, General Accounting Office, by e-mail: BidProtestRegs@gao.gov, or by fax: 202-512-9749.

FOR FURTHER INFORMATION CONTACT: John M. Melody (Assistant General Counsel) or David A. Ashen (Deputy Assistant General Counsel), at 202-512-9732.

SUPPLEMENTAL INFORMATION: GAO last revised its protest regulations in 1996. Since then, there have been legal developments and changes in practice: alternative dispute resolution (ADR) has grown in use, electronic filing has become a reality, and the Court of Appeals for the Federal Circuit and the Court of Federal Claims have issued significant decisions regarding review of affirmative responsibility determinations. On February 25, 2002, GAO published an ANPR requesting comments on these topics and suggestions for changes to other areas of the regulations. GAO received comments from four federal agencies, one industry association, one nonprofit institute, and two individual attorneys, and all their comments were considered in the preparation of this proposed rule.

The following are the significant changes being proposed:

EDITOR'S NOTE: The ANPR stated that GAO was considering revising the timeliness rule under paragraph (a)(2) of Section 21.2, Time for Filing. Paragraph (a)(2) provides that, where a debriefing is requested and required, "any protest basis which is known or should have been known either before or as a result of the debriefing...shall not be filed prior to the debriefing date offered to the protester..." GAO was considering changing this rule because the rule leads some protesters to delay, until after a debriefing, filing a protest involving a matter that arose during the procurement prior to award (for example, an alleged Procurement Integrity Act violation). "Delays in filing protests are inconsistent with GAO's general view that prompt resolution of protests is beneficial to the procurement system...However, because many alleged improprieties that may occur during a procurement ultimately may have no effect on the award decision, revising the rule to promote earlier protests could result in an increased number of unnecessary protests." Therefore, GAO has decided to leave Section 21.2(a)(2) unchanged.

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

Copyright 2002 by Panoptic Enterprises. All Rights Reserved.

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