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GENERAL SERVICES ADMINISTRATION ACQUISITION MANUAL (GSAM)
“Associate General Counsel” means the Associate General Counsel of the General Law Division, Personal Property Division, or Real Property Division.
“Agency Protest Official for GSA” means the official in the Office of Acquisition Policy designated to review and decide procurement protests filed with GSA.
“Deciding official” means the person chosen by the protester to decide the agency protest; it may be either you or the Agency Protest Official for GSA.
(a) The Office of General Counsel (OGC) normally contacts anyone outside of GSA involved in protests of GSA contract actions filed with the Comptroller General or in a Federal Court.
(b) OGC, or GSA directives, may authorize other GSA officials to contact those involved in protests of GSA contract actions.
(a) Use your best efforts to resolve concerns through frank and open discussions, as required by FAR 33.103(b).
(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, when a protester contends that it has been prejudiced by alleged violations of statute or regulation.
(a) The filing time frames 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 8:00 a.m. to 4:30 p.m. Protests delivered after 4:30 p.m. will be considered received and filed the following business day.
(b) An interested party filing an agency protest has the choice of requesting either that you or the Agency Protest Official for GSA decide the protest.
(c) If the protester requests that the Agency Protest Official for GSA decide the protest, you must ensure that the Protest Official and assigned legal counsel receive a copy of the materials served on you within one business day after the filing date.
(d) In addition to the information required by FAR 33.103(d)(2), the protest must meet all the following conditions:
(1) Indicate that it is a protest to the agency.
(2) Be filed in writing with you, the Contracting Officer.
(3) State whether the protester chooses to have you or the Agency Protest Official for GSA decide the protest. If the protest is silent on this matter, you will decide the protest.
(4) Indicate whether the protester prefers to make an oral presentation, a written presentation, or an oral presentation confirmed in writing, of arguments in support of the protest to the deciding official.
(e) The decision by the Agency Protest Official for GSA is an alternative to a decision by you on a protest. The Agency Protest Official for GSA will not consider appeals to your decision on an agency protest.
(f) The deciding official must obtain legal review as required by GSA Order, Legal Services (ADM 5000.4A).
(g) The deciding official must conduct a scheduling conference with the protester within three (3) days after the protest is filed (see 533.103-71(a)). The scheduling conference will establish deadlines for oral or written arguments in support of the agency protest and for agency officials to present information in response to the protest issues. The deciding official may hear oral arguments in support of the agency protest at the same time as the scheduling conference, depending on availability of the necessary parties.
(h) Oral conferences may take place either by telephone or in person. Other parties (e.g., representatives of the program office) may attend at the discretion of the deciding official.
(i) The following procedures apply to information submitted in support of or in response to an agency protest:
(1) The protester and the agency have only one opportunity to support or explain the substance of the protest (either orally, in writing, or orally confirmed in writing).
(2) GSA procedures do not provide for any discovery.
(3) The deciding official has discretion to request additional information from either the agency or the protester. However, the deciding official will normally decide protests on the basis of information provided by the protester and the agency.
(4) Except as provided in paragraph (5)(ii) below, the parties are encouraged, but not required, to exchange information submitted to the Agency Protest Official for GSA.
(5) If the agency makes a written response to the protest, the following filing requirements apply:
(i) The agency must file its response to the protest with the deciding official within five (5) days after the filing of the protest.
(ii) The agency must also provide the protester with a copy of the response on the same day it files the response with the deciding official. If the agency believes it needs to redact or withhold any information in the response from the protester, it must obtain the approval of the deciding official.
(j) Preferred practice in GSA is to resolve protests through informal oral discussions.
(k) An interested party may represent itself or be represented by legal counsel. GSA will not reimburse the protester for any legal fees related to the agency protest.
(l) If GSA receives an agency protest before contract award, do not make award unless the HCA makes a determination to proceed under FAR 33.103(f)(1). Similarly, if GSA receives an agency protest within ten (10) days after award or within five (5) days after a debriefing date offered to the protester under a timely debriefing request under FAR 15.505 or 15.506, whichever is later, you must stay contract performance unless the HCA makes a determination to proceed under FAR 33.103(f)(3). Any stay of award or suspension of performance remains in effect until the protest is decided, dismissed, or withdrawn.
(m) The deciding official must make a best effort to issue a decision on the protest within twenty-eight (28) days after the filing date. The decision may be oral or written. If oral, the deciding official must send a confirming letter within three (3) days after the decision using a means that provides receipt (e.g., facsimile or return-receipt). The confirming letter must include the following information:
(1) State whether the protest was denied, sustained, or dismissed.
(2) Indicate the date the decision was provided.
(n) If the deciding official sustains the protest, relief may consist of any of the following recommendations:
(1) Terminating the contract.
(2) Recompeting the requirement.
(3) Amending the solicitation.
(4) Refraining from exercising contract options.
(5) Reevaluating the offers or bids and awarding a contract consistent with statute, regulation, and the terms of the solicitation.
(6) Other action that the deciding official determines is appropriate.
(o) If the Agency Protest Official for GSA sustains a protest, within thirty (30) days after receiving the Official’s recommendations for relief, you must either:
(1) Fully implement the recommended relief.
(2) Notify the Agency Protest Official for GSA in writing if any recommendations have not been implemented and explain why.
(p) 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 Solicitation provisions.Include the provision at 552.233-70, Protests Filed Directly With the General Services Administration, in each solicitation for either: (a) Supplies, services, construction, or architect-engineer services expected to exceed the simplified acquisition threshold. (b) Acquisition of leasehold interests in real property expected to exceed the simplified lease acquisition threshold. |
(a) General procedures.
(1) OGC furnishes GAO with the name, title, and telephone number of one or more officials whom GAO may contact regarding protests. OGC promptly advises GAO of any change in the designated officials.
(2) GAO protests are handled on a priority basis. The Associate General Counsel (AGC) prepares a report responding to a protest. The report is based on a statement of fact and position you prepare and your contracting director approves.
(3) All reports. In addition to the requirements of FAR 33.104(a)(3), the GSA report contains all the following:
(i) GAO protest number (GAO case file number).
(ii) Solicitation or contract number.
(iii) Full corporate name of the protesting organization and other firms involved.
(iv) Statement indicating if the protest was filed before or after award.
(4) Report for protest after award. If the protest is filed after award, the report also includes:
(i) Identity of the awardee.
(ii) Date of award.
(iii) Contract number.
(iv) Date and time of bid opening (including a statement if the date of bid opening was extended by amendments).
(v) Total number of offerors.
(vi) Complete chronological statement of all relevant events and administrative actions taken (including reasons and authority for the actions taken).
(vii) Other relevant documents believed helpful in determining the validity of the protest. This evidence should be referenced and identified within the text of the position statement, alphabetically or numerically, e.g., Tab A, Exhibit 1, etc.
(5) When GSA receives the protest, the AGC telephonically notifies you through your Central Office contracting activity or Regional Counsel. The contracting activity or Regional Counsel must immediately notify the AGC if they receive a copy of a protest before the AGC notifies them.
(6) After receiving the formal protest filed with GAO, the AGC formally requests a statement of fact and position from you through your Central Office contracting activity or Regional Counsel. You must immediately notify the affected bidders or offerors that you received a protest using the following format (see FAR 33.104(a)(2)):
(7) You must also immediately notify assigned counsel and begin preparing a documented statement of fact and position.
(8) The contracting director concurs on the statement of fact and position (the Office of Regional Counsel concurs on a Regional procurement). The AGC may request the Regional Counsel to prepare a legal position analyzing the merits of a protest against a Regional procurement. In these cases, your statement of fact and position is included as a referenced attachment.
(9) The Regional Counsel’s legal position, if requested, and your statement of fact and position, are sent in triplicate to the AGC. The AGC may request additional copies if other interested parties are involved. The statement is due to the AGC no later than 10 workdays after the date you originally receive the protest. GAO may reduce this time by invoking the express option.
(10) If you cannot prepare a statement of fact and position within 10 work days, promptly telephone the AGC with the reason for the delay. The AGC may grant additional time if the report cannot be prepared because of:
(i) Complicated facts or legal issues affecting protest resolution.
(ii) The need to coordinate the report with other agencies, or with offices in distant locations.
(iii) Other compelling circumstances.
(11) At the AGC’s request, you must confirm in writing any oral requests for extensions. The contracting director concurs in the request and sends a copy to the HCA. GAO grants a request that will delay submission of GSA’s report to GAO beyond 30 days from the date GSA originally received the protest. The AGC notifies your Central Office contracting activity or Regional Counsel of GAO’s decision.
(12) After submitting the statement to the AGC, you or Regional Counsel must advise the AGC of all later developments that may affect the case.
(13) All documents must be sent by the fastest means possible.
(14) In addition to the requirements of FAR 33.104(a)(5)(ii), send a copy of any comments to the AGC.
(b) Protests before award. If the HCA determines that urgent and compelling circumstances do not permit waiting for GAO’s decision as allowed by FAR 33.104(b):
(1) Prepare the written determinations and findings (D&F) in the format shown at 501.704-70(e)(1) for the HCA’s signature.
(2) The AGC and the Regional Counsel (on Regional acquisitions) concur on the D&F.
(3) The AGC notifies GAO of the findings and intended action approved by the HCA before award is made.
(c) Protests after award. If GSA receives a protest from GAO within the time periods specified in FAR 33.104(c)(1), GSA must suspend contract performance unless the HCA provides written justification to continue.
(1) Prepare the written D&F for the HCA‘s signature.
(2) The AGC and Regional Counsel (on Regional procurements) concur on the D&F.
(3) The AGC notifies GAO of the findings and intended action the HCA approved before contract performance is authorized.
(d) Notice to GAO. OGC concurs on the HCA’s report to the Comptroller General if GSA has decided not to comply with GAO’s recommendation.
GSA Order, Using Alternative Dispute Resolution Techniques (CSL P 5050.1), contains information about implementing ADR procedures.
533.215 Contract clause.Insert the clause at 552.233-71, Disputes (Utility Contracts), in solicitations and contracts for utility services subject to the jurisdiction and regulation of a utility rate commission. |
(a) Record. Upon receipt of the notice of appeal, the contracting activity must establish a record to ensure the timely preparation and submission of appeal cases. The record should show, at a minimum:
(1) The name of the appellant.
(2) The date of your final decision.
(3) The date the appeal was filed.
(4) Contract number.
(5) Docket number.
(6) Your name.
(b) Untimely notices. If a contractor submits an untimely notice of appeal, the contracting director must send a separate letter to the AGC, requesting that a motion for dismissal of the appeal be submitted to the Board. The letter and transmittal package must include all the following:
(1) The name of the appellant, contract number, and date of your final decision.
(2) The certified mail receipt showing the date on which the appellant received your final decision.
(3) The envelope which contained the notice of appeal or other evidence of late submission of the notice of appeal.
(a) Submission time. Prepare the appeal file in accordance with this section. Obtain the concurrence of assigned counsel and forward the file to the AGC within 20 calendar days after receipt of a notice of appeal or advice that an appeal has been filed. The AGC will advise you if the Board requires a shorter period under its small claims procedures.
(b) Late submission. If you cannot meet the submission time for the appeal file, submit in writing to the AGC, before expiration of the designated time, a full explanation and a request for additional time.
(a) General.
(1) Prepare appeal files in quadruplicate. Ensure that all copies are identical in content and position of items.
(2) If more than one appeal is filed under the same contract, you may request, through the AGC, that the Board waive the requirement to duplicate the documents included in the first appeal file. Appeal files for the second and subsequent appeals must include all the following:
(i) Refer to the original appeal file and include the docket and item numbers.
(ii) Identify and include any changes to documents occurring after preparation of the original file.
(iii) Include any documents pertinent to the later appeal not previously furnished.
(b) Content of appeal file. You must prepare the appeal file following the requirements in the Rules of Procedure of the General Services Administration Board of Contract Appeals. The Rules of Procedure are available at http://www.gsbca.gsa.gov/currules.htm. In addition:
(1) Put a gummed label (NSN 75l0-00-264-5460) on top of the file that identifies the case by appellant, contract number, and docket number.
(2) Use multiple binders for large files. Individual binders must not be more than l inch thick. Use the same exterior labels on subsequent binders that appear on the original binder.
(3) Assigned counsel will assist in determining which documents to include in the file.
(4) Use division sheets to separate the documents listed in the “Index of Exhibits”
(5) Index of Exhibits. Place the index as the first (top) document.
(6) Other pertinent exhibits. In addition to the basic documents described in Rule 104 of the Rules of Procedures, additional pertinent exhibits may include:
(i) Copy of the repurchase contract, including referenced terms and conditions.
(ii) Copy of the abstract of offers and list of all offerors solicited for the repurchase contract.
(iii) Copy of letter of assessment, including worksheet showing calculation of excess costs and other damages including administrative costs.
(iv) Copies of orders issued under the repurchase contract.
(v) Proof of payment and a detailed disbursement listing, annotated and certified. (NOTE: Obtain these from your finance office. Finance will provide a detailed disbursement listing, annotated with the payment number and date, and the amount applicable to the repurchase order if different from the payment amount. A finance division official will certify the disbursement listing. His or her title and date of signature will also be shown.)
(vi) Evidence of certification of the claim or claims, as applicable.
(a) The contracting director is responsible for all the following:
(1) Forwarding the original and two copies of the appeal file to the AGC by a transmittal letter.
(2) Including your detailed statement of facts in a memorandum of position as a separate document.
(3) Preparing a list of recommended witnesses and the Government’s estimate (when appropriate) of the amount of any claim in the event of an adverse decision.
(4) Giving the AGC a point of contact: name of individual, position, title, and telephone number.
(b) Assigned counsel concurs on your memorandum and attaches a statement of legal position.
(c) You must retain one copy of the appeal file.
(d) The trial attorney in OGC is responsible for all the following:
(1) Reviewing the appeal file for adequacy.
(2) Transmitting the file to the Board.
(3) Serving a copy of the file upon appellant.
(a) The memorandum of position is a chronological summary for the trial attorney of the actions leading to the dispute and an explanation of your actions. Include all the following in the memorandum:
(1) Identify the contract.
(2) State the nature of the contractor’s claim.
(3) Cite pertinent portions of the contract.
(4) State your decision with citations to pertinent contract provisions and a supporting explanation.
(5) Set out any new facts which developed since the decision was made.
(b) You must sign the memorandum of position.
(c) Submit the memorandum of position to the AGC simultaneously with the appeal file, but as a separate document. The memorandum is not a part of the appeal file. Do not reference it in the index.
(a) Implementation. Board decisions are promptly implemented, but may be postponed if further appeal or a motion for reconsideration is considered. If the issue is over quantum, you should consider paying the undisputed amount to minimize later interest payments to the contractor. Either party may:
(1) Appeal a Board decision in the United States Court of Appeals for the Federal Circuit.
(2) File a motion for reconsideration by the Board within 30 calendar days from the receipt date of the Board decision.
(b) Cost recovery. You need not take any further action (other than administrative) if the Board affirms your original decision, unless you must recover costs from the contractor. If a recovery is due, initiate collection by one of the following:
(1) Contract amendment adjusting the contract price.
(2) Written demand for immediate payment. (In excess cost cases, Office of Finance will normally pursue the necessary collection.) A written demand must instruct the contractor to pay the General Services Administration and send the payment to the appropriate GSA finance office. Provide a copy of the written demand to the finance office for information and follow-up.
(3) Set off against other contracts. You may use this alternative to facilitate collection if the contractor is receiving revenue from other contracts.
(c) Appeals brought under the contract’s disputes clause. If the Board does not uphold your original decision and provides for payment in favor of the contractor, prepare a supplemental agreement and obtain AGC’s concurrence. The supplemental agreement will ensure against further litigation of the same dispute. Forward a recommendation for payment to the appropriate finance office with the original of the supplemental agreement and a copy of the Board’s decision.
(d) Appeals brought under the Contract Disputes Act of 1978. If the Board does not uphold your original decision and awards the contractor money, and the AGC informs you that the Government will not appeal or move for reconsideration, complete the Certificate of Finality attached to the Board’s decision and return it to assigned legal counsel. Counsel will forward the Board Decision, Certificate of Finality, and FMS Forms 195, 196, and 197 (or 197A, as appropriate) to the U.S. Department of Treasury, Financial Management Service, for payment of monetary awards.
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