31 U.S.C. § 3553 — Review of protests; effect on contracts

Page 293 TITLE 31—MONEY AND FINANCE § 3553 ated under Office of Management and Budget Circular A–76 on or after Jan. 1, 2004; and to any other protests and civil actions that relate to public-private competi- tions initiated under Office of Management and Budget Circular A–76, or a decision to convert a function per- formed by Federal employees to private sector perform- ance without a competition under Office of Manage- ment and Budget Circular A–76, on or after Dec. 26, 2007, see section 739(c)(3) of Pub. L. 110–161, set out as a note under section 501 of this title. Amendment by Pub. L. 110–161 applicable with re- spect to fiscal year 2008 and each succeeding fiscal year, see section 739(e) of Pub. L. 110–161, set out as a note under section 501 of this title. EFFECTIVE DATE OF 2004 AMENDMENT Pub. L. 108–375, div. A, title III, § 326(d), Oct. 28, 2004, 118 Stat. 1848, provided that: ‘‘The amendments made by this section [amending this section and sections 3552 and 3553 of this title] shall apply to protests filed under subchapter V of chapter 35 of title 31, United States Code, that relate to studies initiated under Office of Management and Budget Circular A–76 on or after the end of the 90-day period beginning on the date of the enactment of this Act [Oct. 28, 2004].’’ EFFECTIVE DATE OF 1996 AMENDMENT For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2220 of Title 10, Armed Forces. EFFECTIVE DATE OF 1994 AMENDMENT For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 8752 of Title 10, Armed Forces. EFFECTIVE DATE Section applicable with respect to any protest filed after Jan. 14, 1985, see section 2751(b) of Pub. L. 98–369, set out as a note under section 2302 of Title 10, Armed Forces. CONSTRUCTION OF 2004 AMENDMENT Pub. L. 108–375, div. A, title III, § 326(e), Oct. 28, 2004, 118 Stat. 1849, provided that: ‘‘The amendments made by this section [amending this section and sections 3552 and 3553 of this title] shall not be construed to author- ize the use of a protest under subchapter V of chapter 35 of title 31, United States Code, with regard to a deci- sion made by an agency tender official.’’ § 3552. Protests by interested parties concerning procurement actions (a) A protest concerning an alleged violation of a procurement statute or regulation shall be decided by the Comptroller General if filed in accordance with this subchapter. (b)(1) In the case of an agency tender official who is an interested party under section 3551(2)(B) of this title, the official may file a protest in connection with the public-private competition for which the official is an inter- ested party. At the request of a majority of the employees of the Federal agency who are en- gaged in the performance of the activity or func- tion subject to such public-private competition, the official shall file a protest in connection with such public-private competition unless the official determines that there is no reasonable basis for the protest. (2) The determination of an agency tender offi- cial under paragraph (1) whether or not to file a protest is not subject to administrative or judi- cial review. An agency tender official shall pro- vide written notification to Congress whenever the official makes a determination under para- graph (1) that there is no reasonable basis for a protest. (Added Pub. L. 98–369, div. B, title VII, § 2741(a), July 18, 1984, 98 Stat. 1199; amended Pub. L. 103–272, § 4(f)(1)(L), July 5, 1994, 108 Stat. 1362; Pub. L. 103–355, title X, § 10005(d), Oct. 13, 1994, 108 Stat. 3408; Pub. L. 104–106, div. E, title LVI, § 5603, Feb. 10, 1996, 110 Stat. 700; Pub. L. 108–375, div. A, title III, § 326(b), Oct. 28, 2004, 118 Stat. 1848.) Editorial Notes AMENDMENTS 2004—Pub. L. 108–375 designated existing provisions as subsec. (a) and added subsec. (b). 1996—Pub. L. 104–106 struck out at end ‘‘An interested party who has filed a protest under section 111(f) of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 759(f)) with respect to a procurement or proposed procurement may not file a protest with re- spect to that procurement under this subchapter.’’ 1994—Pub. L. 103–272 and Pub. L. 103–355 amended sec- tion identically, substituting ‘‘section 111(f)’’ for ‘‘sec- tion 111(h)’’ and ‘‘759(f)’’ for ‘‘759(h)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2004 AMENDMENT Amendment by Pub. L. 108–375 applicable to protests filed under this subchapter that relate to studies initi- ated under Office of Management and Budget Circular A–76 on or after the end of the 90-day period beginning on Oct. 28, 2004, see section 326(d) of Pub. L. 108–375, set out as a note under section 3551 of this title. EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–106 effective 180 days after Feb. 10, 1996, see section 5701 of Pub. L. 104–106, div. E, title LVII, Feb. 10, 1996, 110 Stat. 702. EFFECTIVE DATE OF 1994 AMENDMENT For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 8752 of Title 10, Armed Forces. EFFECTIVE DATE Section applicable with respect to any protest filed after Jan. 14, 1985, see section 2751(b) of Pub. L. 98–369, set out as a note under section 4751 of Title 10, Armed Forces. CONSTRUCTION OF 2004 AMENDMENT Amendment by Pub. L. 108–375 not to be construed to authorize the use of a protest under this subchapter with regard to a decision made by an agency tender of- ficial, see section 326(e) of Pub. L. 108–375, set out as a note under section 3551 of this title. § 3553. Review of protests; effect on contracts pending decision (a) Under procedures prescribed under section 3555 of this title, the Comptroller General shall decide a protest submitted to the Comptroller General by an interested party. (b)(1) Within one day after the receipt of a pro- test, the Comptroller General shall notify the Federal agency involved of the protest. (2) Except as provided in paragraph (3) of this subsection, a Federal agency receiving a notice Page 294 TITLE 31—MONEY AND FINANCE § 3553 of a protested procurement under paragraph (1) of this subsection shall submit to the Comp- troller General a complete report (including all relevant documents) on the protested procure- ment— (A) within 30 days after the date of the agen- cy’s receipt of that notice; (B) if the Comptroller General, upon a show- ing by the Federal agency, determines (and states the reasons in writing) that the specific circumstances of the protest require a longer period, within the longer period determined by the Comptroller General; or (C) in a case determined by the Comptroller General to be suitable for the express option under section 3554(a)(2) of this title, within 20 days after the date of the Federal agency’s re- ceipt of that determination. (3) A Federal agency need not submit a report to the Comptroller General pursuant to para- graph (2) of this subsection if the agency is soon- er notified by the Comptroller General that the protest concerned has been dismissed under sec- tion 3554(a)(4) of this title. (c)(1) Except as provided in paragraph (2) of this subsection, a contract may not be awarded in any procurement after the Federal agency has received notice of a protest with respect to such procurement from the Comptroller General and while the protest is pending. (2) The head of the procuring activity respon- sible for award of a contract may authorize the award of the contract (notwithstanding a pro- test of which the Federal agency has notice under this section)— (A) upon a written finding that urgent and compelling circumstances which significantly affect interests of the United States will not permit waiting for the decision of the Comp- troller General under this subchapter; and (B) after the Comptroller General is advised of that finding. (3) A finding may not be made under para- graph (2)(A) of this subsection unless the award of the contract is otherwise likely to occur within 30 days after the making of such finding. (d)(1) A contractor awarded a Federal agency contract may, during the period described in paragraph (4), begin performance of the contract and engage in any related activities that result in obligations being incurred by the United States under the contract unless the contracting officer responsible for the award of the contract withholds authorization to proceed with per- formance of the contract. (2) The contracting officer may withhold an authorization to proceed with performance of the contract during the period described in para- graph (4) if the contracting officer determines in writing that— (A) a protest is likely to be filed; and (B) the immediate performance of the con- tract is not in the best interests of the United States. (3)(A) If the Federal agency awarding the con- tract receives notice of a protest in accordance with this section during the period described in paragraph (4)— (i) the contracting officer may not authorize performance of the contract to begin while the protest is pending; or (ii) if authorization for contract perform- ance to proceed was not withheld in accord- ance with paragraph (2) before receipt of the notice, the contracting officer shall imme- diately direct the contractor to cease perform- ance under the contract and to suspend any re- lated activities that may result in additional obligations being incurred by the United States under that contract. (B) Performance and related activities sus- pended pursuant to subparagraph (A)(ii) by rea- son of a protest may not be resumed while the protest is pending. (C) The head of the procuring activity may au- thorize the performance of the contract (not- withstanding a protest of which the Federal agency has notice under this section)— (i) upon a written finding that— (I) performance of the contract is in the best interests of the United States; or (II) urgent and compelling circumstances that significantly affect interests of the United States will not permit waiting for the decision of the Comptroller General con- cerning the protest; and (ii) after the Comptroller General is notified of that finding. (4)(A) The period referred to in paragraphs (2) and (3)(A), with respect to a contract, is the pe- riod beginning on the date of the contract award and ending on the later of— (i) the date that is 10 days after the date of the contract award; or (ii) the date that is 5 days after the debrief- ing date offered to an unsuccessful offeror for any debriefing that is requested and, when re- quested, is required. (B) For procurements conducted by any com- ponent of the Department of Defense, the 5-day period described in subparagraph (A)(ii) does not commence until the day the Government deliv- ers to a disappointed offeror the written re- sponses to any questions submitted pursuant to section 3304(c)(1)(G) of title 10. (e) The authority of the head of the procuring activity to make findings and to authorize the award and performance of contracts under sub- sections (c) and (d) of this section may not be delegated. (f)(1) Within such deadlines as the Comptroller General prescribes, upon request each Federal agency shall provide to an interested party any document relevant to a protested procurement action (including the report required by sub- section (b)(2) of this section) that would not give that party a competitive advantage and that the party is otherwise authorized by law to receive. (2)(A) The Comptroller General may issue pro- tective orders which establish terms, conditions, and restrictions for the provision of any docu- ment to a party under paragraph (1), that pro- hibit or restrict the disclosure by the party of information described in subparagraph (B) that is contained in such a document. (B) Information referred to in subparagraph (A) is procurement sensitive information, trade secrets, or other proprietary or confidential re- search, development, or commercial informa- tion. Page 295 TITLE 31—MONEY AND FINANCE § 3554 (C) A protective order under this paragraph shall not be considered to authorize the with- holding of any document or information from Congress or an executive agency. (g) If an interested party files a protest in con- nection with a public-private competition de- scribed in section 3551(2)(B) of this title, a per- son representing a majority of the employees of the Federal agency who are engaged in the per- formance of the activity or function subject to the public-private competition may intervene in protest. (Added Pub. L. 98–369, div. B, title VII, § 2741(a), July 18, 1984, 98 Stat. 1200; amended Pub. L. 103–355, title I, §§ 1402, 1403(c), Oct. 13, 1994, 108 Stat. 3287, 3290; Pub. L. 104–106, div. D, title XLIII, § 4321(d)(2), div. E, title LV, § 5501(1), Feb. 10, 1996, 110 Stat. 674, 698; Pub. L. 108–375, div. A, title III, § 326(c), Oct. 28, 2004, 118 Stat. 1848; Pub. L. 115–91, div. A, title VIII, § 818(c), Dec. 12, 2017, 131 Stat. 1464; Pub. L. 117–81, div. A, title XVII, § 1702(l)(5), Dec. 27, 2021, 135 Stat. 2160.) Editorial Notes AMENDMENTS 2021—Subsec. (d)(4)(B). Pub. L. 117–81 substituted ‘‘section 3304(c)(1)(G)’’ for ‘‘section 2305(b)(5)(B)(vii)’’. 2017—Subsec. (d)(4). Pub. L. 115–91 redesignated exist- ing provisions as subpar. (A) and former subpars. (A) and (B) as cls. (i) and (ii), respectively, of subpar. (A) and added subpar. (B). 2004—Subsec. (g). Pub. L. 108–375 added subsec. (g). 1996—Subsec. (b)(2)(A). Pub. L. 104–106, § 5501(1), sub- stituted ‘‘30 days’’ for ‘‘35 days’’. Subsec. (b)(3). Pub. L. 104–106, § 4321(d)(2), substituted ‘‘3554(a)(4)’’ for ‘‘3554(a)(3)’’. 1994—Subsec. (b)(1). Pub. L. 103–355, § 1402(a)(1)(A), substituted ‘‘one day after’’ for ‘‘one working day of’’. Subsec. (b)(2)(A). Pub. L. 103–355, § 1402(a)(1)(B)(i), sub- stituted ‘‘35 days after’’ for ‘‘25 working days from’’. Subsec. (b)(2)(C). Pub. L. 103–355, § 1402(a)(1)(B)(ii), substituted ‘‘20 days after’’ for ‘‘10 working days from’’. Subsec. (c)(3). Pub. L. 103–355, § 1402(a)(2), substituted ‘‘after the making of such finding’’ for ‘‘thereafter’’. Subsec. (d). Pub. L. 103–355, § 1402(b), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: ‘‘(d)(1) If a Federal agency receives notice of a protest under this section after the contract has been awarded but within 10 days of the date of the contract award, the Federal agency (except as provided under para- graph (2)) shall, upon receipt of that notice, imme- diately direct the contractor to cease performance under the contract and to suspend any related activi- ties that may result in additional obligations being in- curred by the United States under that contract. Per- formance of the contract may not be resumed while the protest is pending. ‘‘(2) The head of the procuring activity responsible for award of a contract may authorize the performance of the contract (notwithstanding a protest of which the Federal agency has notice under this section)— ‘‘(A) upon a written finding— ‘‘(i) that performance of the contract is in the best interests of the United States; or ‘‘(ii) that urgent and compelling circumstances that significantly affect interests of the United States will not permit waiting for the decision of the Comptroller General concerning the protest; and ‘‘(B) after the Comptroller General is notified of that finding.’’ Subsec. (f). Pub. L. 103–355, § 1403(c), designated exist- ing provisions as par. (1) and added par. (2). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2004 AMENDMENT Amendment by Pub. L. 108–375 applicable to protests filed under this subchapter that relate to studies initi- ated under Office of Management and Budget Circular A–76 on or after the end of the 90-day period beginning on Oct. 28, 2004, see section 326(d) of Pub. L. 108–375, set out as a note under section 3551 of this title. EFFECTIVE DATE OF 1996 AMENDMENT For effective date and applicability of amendment by section 4321(d)(2) of Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2220 of Title 10, Armed Forces. Amendment by section 5501(1) of Pub. L. 104–106 effec- tive 180 days after Feb. 10, 1996, see section 5701 of Pub. L. 104–106, div. E, title LVII, Feb. 10, 1996, 110 Stat. 702. EFFECTIVE DATE OF 1994 AMENDMENT For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 8752 of Title 10, Armed Forces. EFFECTIVE DATE Section applicable with respect to any protest filed after Jan. 14, 1985, see section 2751(b) of Pub. L. 98–369, set out as a note under section 4751 of Title 10, Armed Forces. CONSTRUCTION OF 2004 AMENDMENT Amendment by Pub. L. 108–375 not to be construed to authorize the use of a protest under this subchapter with regard to a decision made by an agency tender of- ficial, see section 326(e) of Pub. L. 108–375, set out as a note under section 3551 of this title. § 3554. Decisions on protests (a)(1) To the maximum extent practicable, the Comptroller General shall provide for the inex- pensive and expeditious resolution of protests under this subchapter. Except as provided under paragraph (2) of this subsection, the Comptroller General shall issue a final decision concerning a protest within 100 days after the date the pro- test is submitted to the Comptroller General. (2) The Comptroller General shall, by regula- tion prescribed pursuant to section 3555 of this title, establish an express option for deciding those protests which the Comptroller General determines suitable for resolution within 65 days after the date the protest is submitted. (3) An amendment to a protest that adds a new ground of protest, if timely made, should be re- solved, to the maximum extent practicable, within the time limit established under para- graph (1) of this subsection for final decision of the initial protest. If an amended protest cannot be resolved within such time limit, the Comp- troller General may resolve the amended protest through the express option under paragraph (2) of this subsection. (4) The Comptroller General may dismiss a protest that the Comptroller General deter- mines is frivolous or which, on its face, does not state a valid basis for protest. (b)(1) With respect to a solicitation for a con- tract, or a proposed award or the award of a con- tract, protested under this subchapter, the Comptroller General may determine whether the solicitation, proposed award, or award com- plies with statute and regulation. If the Comp- troller General determines that the solicitation,