MP5333.104 Protests to the GAO

MP5333.104
Protests to the GAO

(a) General

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(2) SAF/AQC serves as the notification point with the GAO for all protests.

Phone: (571) 256-7077, DSN 260-7077
Fax: (571) 256-2430
E-mail: safaqc.workflow@pentagon.af.mil

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(4) The contracting officer shall send any communication to the GAO through AFLOA/JAQ with a courtesy copy to SAF/AQC, safaqc.workflow@pentagon.af.mil. Forward any inquiry received from an attorney representing a protestor or interested party to AFLOA/JAQ.

(5) The focal point is the designated individual at each MAJCOM, DRU, AFMC Center, or AFISRA who receives communication from SAF/AQC concerning protests against Air Force solicitations or awards.

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(b) Initial Actions Upon Receipt of Protest

(1) SAF/AQC will notify the focal point when a protest has been filed with the GAO. The focal point shall immediately notify its supporting legal office and the contracting activity.

(2) The contracting officer shall, within one business day of receiving the protest:

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(iii) Advise AFLOA/JAQ and SAF/AQC as to all actions being taken regarding a stay of performance or an override of the stay to include:

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(2) Contents

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(iii) Other Documents

(A) The contracting officer must consider the following guidelines when preparing the agency report:

(1) The following types of documents are expected to be in any agency report to the GAO: 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; the solicitation, including amendments; the source selection decision document; the proposal analysis report; abstracts of bids or offers; final briefing slides; letters and communications opening and closing Final Proposal Revision (FPR) requests; evaluation notices; final ratings; and any other documents the SSA relied upon in making his or her award decision.

(2) The following types of documents would be included in an agency report if they are relevant to proving the Air Force's position on protest issues: evaluation documents, including individual evaluator ratings, scores, analyses, worksheets, and interim ratings); source selection and technical plans; memoranda for record when a competitive range determination is being challenged; proposal audits; the Performance Confidence Assessment Group (PCAG) report; past performance submittals (surveys and notes from oral questionnaires); minutes or other record of oral discussions, if held; the script for oral discussions, if held; minutes of briefings to the SSA and any notes taken by the SSA during those briefings; other final memoranda signed by the SSA and/or contracting officer; and any other relevant documents that would tend to explain the award decision or the adverse action taken with respect to the offeror's proposal.

(3) The following types of documents would not be in an agency report unless ordered by a court:

(i) The agency report record shall not include documents created outside of the source selection process. For example, the administrative record should not include internal Government emails; internal Government notes; background papers; talking papers; bullet papers; congressional inquiries and responses; independent cost estimates (i.e., cost estimates not used in the source selection process), or any other pre-decisional documents.

(ii) The agency report shall not include privileged attorney-client communications, attorney work products, legal opinions, or legal reviews supporting business clearance, MIRT or DoD peer reviews, regardless of when the documents are created. The legal office supporting the procurement shall review the agency report prior to its release for documents subject to attorney-client privilege. Documents withheld on the basis of attorney-client privilege shall be identified in the agency report as being withheld.

(B) The contracting officer shall forward the agency report to AFLOA/JAQ, unless AFLOA/JAQ instructs otherwise.

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(e) Process After Agency Report is Filed

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(iii) Based on the agency report and comments from the protester, the GAO may require additional submissions from the Air Force. When requested, the contracting officer shall provide responses directly to AFLOA/JAQ in order to ensure a timely response to the GAO. The focal point shall be copied on any response provided to AFLOA/JAQ. The focal point makes comments or suggestions on supplemental responses directly to AFLOA/JAQ or SAF/AQC.

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(f) Resolving the Protest

(1) GAO Decision. If the protest goes to a written decision, the GAO will usually issue the decision within 100 days of the filing of the original protest. A protest decision involving protected information will be released to the parties under the protective order. A protected decision may be viewed within the government, but may not be released to, or discussed with, non-government personnel unless those personnel have been explicitly admitted to access of protected material under the protective order. Generally, those admitted to access under the protective order will be legal counsel for the protester and interveners. The GAO will issue a public redacted version of the decision at a later date.

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(ii) Sustain. If the GAO sustains a protest, the GAO will also recommend corrective action and may recommend payment of reasonable protest costs, to include reasonable attorney fees. In some cases the GAO may also recommend payment of proposal preparation costs.

(A) Corrective action should be accomplished pursuant to paragraph (g) below. A decision not to comply with a GAO recommendation for corrective action may only be made by SAF/AQC. Any recommendation not to comply with GAO's corrective action recommendation must be coordinated with the focal point and forwarded to SAF/AQC, safaqc.workflow@pentagon.af.mil, and AFLOA/JAQ within 15 days of the date of the decision.

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(2) Alternative Dispute Resolution (ADR). It is Air Force policy to use ADR to the maximum extent practicable and appropriate to resolve disputes at the earliest stage feasible, by the fastest and least expensive method possible, and at the lowest possible organizational level. Outcome prediction is a form of ADR commonly used in bid protests in which the GAO advises the parties of its likely position if the protest were resolved in a written decision. The viability of outcome prediction depends on the nature of the protest (usually a few discrete issues for which there is clearly established precedent) and the GAO attorney assigned to the case. Outcome prediction is not binding on the parties, but Air Force policy is to follow the outcome prediction recommendations. Other nonbinding ADR procedures (including but not limited to mediation) are available and should be considered for use in appropriate cases.

(3) Consultation. When considering the use of ADR proceedings (other than GAO outcome prediction) to resolve a bid protest, and before initiating an ADR proceeding, the contracting officer and AFLOA/JAQ shall notify SAF/GCD and SAF/GCQ and work with those offices to identify an ADR procedure appropriate to the individual case.

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(g) Corrective Action

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(4) Reporting. Within five days of a decision to take corrective action (either voluntary or as recommended by the GAO), the contracting officer shall provide a corrective action plan to SAF/AQC, safaqc.workflow@pentagon.af.mil and AFLOA/JAQ. The contracting officer shall notify SAF/AQC and AFLOA/JAQ if there are any significant changes to the corrective action plan, if the corrective action will not be completed within 60 days, and when the corrective action is complete. The focal point should be copied on these messages.

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(h) Mandatory Stay of Award or Performance

(1) Statutory Requirements (31 USC 3551-3556)

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(iii) HCA Override

(A) A request to override a stay of award or performance must be signed by a general officer/member of the senior executive service or, if not available, by the installation commander or deputy. The request shall include the findings required by FAR 33.104(b) or (c) and the information listed in paragraph (h)(4)(i) below. The request shall be forwarded through the SCO to SAF/AQC, safaqc.workflow@pentagon.af.mil within seven days of the protest notification by SAF/AQC.

(B) The HCA shall make a decision with respect to authorizing award or continued performance within ten days of the protest notification by SAF/AQC. If circumstances change after suspension of contract performance, the contracting officer may initiate a request to continue performance.

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(4) Procedural Requirements

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(iii) The mandatory notice to the GAO shall comply with FAR 33.104(b)(2) or (c)(3) and should include the protester's name and the B-number assigned to the protest. The notice should be faxed to the GAO at (202) 512-9749. The finding itself should not be sent to the GAO. Copies of the signed notice and finding shall be sent to SAF/AQC, safaqc.workflow@pentagon.af.mil. A copy of the override notice shall be sent to the protester and interested parties, as required by FAR 33.104(d).

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