31 U.S.C. § 3554 — Decisions on protests

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, Page 296 TITLE 31—MONEY AND FINANCE § 3554 proposed award, or award does not comply with a statute or regulation, the Comptroller General shall recommend that the Federal agency— (A) refrain from exercising any of its options under the contract; (B) recompete the contract immediately; (C) cancel the solicitation issued pursuant to the public-private competition conducted under Office of Management and Budget Cir- cular A–76 or any successor circular; (D) issue a new solicitation; (E) terminate the contract; (F) award a contract consistent with the re- quirements of such statute and regulation; (G) implement any combination of rec- ommendations under clauses (A), (B), (C), (D), (E), and (F); or (H) implement such other recommendations as the Comptroller General determines to be necessary in order to promote compliance with procurement statutes and regulations. (2) If the head of the procuring activity re- sponsible for a contract makes a finding under section 3553(d)(3)(C)(i)(I) of this title, the Comp- troller General shall make recommendations under this subsection without regard to any cost or disruption from terminating, recompeting, or reawarding the contract. (3) If the Federal agency fails to implement fully the recommendations of the Comptroller General under this subsection with respect to a solicitation for a contract or an award or pro- posed award of a contract within 60 days after receiving the recommendations, the head of the procuring activity responsible for that contract shall report such failure to the Comptroller Gen- eral not later than 5 days after the end of such 60-day period. (c)(1) If the Comptroller General determines that a solicitation for a contract or a proposed award or the award of a contract does not com- ply with a statute or regulation, the Comp- troller General may recommend that the Fed- eral agency conducting the procurement pay to an appropriate interested party the costs of— (A) filing and pursuing the protest, including reasonable attorneys’ fees and consultant and expert witness fees; and (B) bid and proposal preparation. (2) No party (other than a small business con- cern (within the meaning of section 3(a) of the Small Business Act)) may be paid, pursuant to a recommendation made under the authority of paragraph (1)— (A) costs for consultant and expert witness fees that exceed the highest rate of compensa- tion for expert witnesses paid by the Federal Government; or (B) costs for attorneys’ fees that exceed $150 per hour unless the agency determines, based on the recommendation of the Comptroller General on a case by case basis, that an in- crease in the cost of living or a special factor, such as the limited availability of qualified at- torneys for the proceedings involved, justifies a higher fee. (3) If the Comptroller General recommends under paragraph (1) that a Federal agency pay costs to an interested party, the Federal agency shall— (A) pay the costs promptly; or (B) if the Federal agency does not make such payment, promptly report to the Comptroller General the reasons for the failure to follow the Comptroller General’s recommendation. (4) If the Comptroller General recommends under paragraph (1) that a Federal agency pay costs to an interested party, the Federal agency and the interested party shall attempt to reach an agreement on the amount of the costs to be paid. If the Federal agency and the interested party are unable to agree on the amount to be paid, the Comptroller General may, upon the re- quest of the interested party, recommend to the Federal agency the amount of the costs that the Federal agency should pay. (d) Each decision of the Comptroller General under this subchapter shall be signed by the Comptroller General or a designee for that pur- pose. A copy of the decision shall be made avail- able to the interested parties, the head of the procuring activity responsible for the solicita- tion, proposed award, or award of the contract, and the senior procurement executive of the Federal agency involved. (e)(1) The Comptroller General shall report promptly to the Committee on Governmental Affairs and the Committee on Appropriations of the Senate and to the Committee on Govern- ment Reform and Oversight and the Committee on Appropriations of the House of Representa- tives any case in which a Federal agency fails to implement fully a recommendation of the Comp- troller General under subsection (b) or (c). The report shall include— (A) a comprehensive review of the pertinent procurement, including the circumstances of the failure of the Federal agency to implement a recommendation of the Comptroller General; and (B) a recommendation regarding whether, in order to correct an inequity or to preserve the integrity of the procurement process, the Con- gress should consider— (i) private relief legislation; (ii) legislative rescission or cancellation of funds; (iii) further investigation by Congress; or (iv) other action. (2) Not later than January 31 of each year, the Comptroller General shall transmit to the Con- gress a report containing a summary of each in- stance in which a Federal agency did not fully implement a recommendation of the Comp- troller General under subsection (b) or (c) during the preceding year. The report shall also de- scribe each instance in which a final decision in a protest was not rendered within 100 days after the date the protest is submitted to the Comp- troller General. The report shall also include a summary of the most prevalent grounds for sus- taining protests during such preceding year. (Added Pub. L. 98–369, div. B, title VII, § 2741(a), July 18, 1984, 98 Stat. 1201; amended Pub. L. 100–463, title VIII, § 8139, Oct. 1, 1988, 102 Stat. 2270–47; Pub. L. 103–355, title I, § 1403(a)–(b)(3), Oct. 13, 1994, 108 Stat. 3289, 3290; Pub. L. 104–106, div. D, title XLIII, § 4321(d)(3), div. E, title LV, § 5501(2), Feb. 10, 1996, 110 Stat. 674, 698; Pub. L. 111–84, div. A, title III, § 327(c), Oct. 28, 2009, 123 Page 297 TITLE 31—MONEY AND FINANCE § 3555 Stat. 2255; Pub. L. 112–239, div. A, title VIII, § 867, Jan. 2, 2013, 126 Stat. 1862.) Editorial Notes REFERENCES IN TEXT Section 3(a) of the Small Business Act, referred to in subsec. (c)(2), is classified to section 632(a) of Title 15, Commerce and Trade. AMENDMENTS 2013—Subsec. (e)(2). Pub. L. 112–239 inserted at end ‘‘The report shall also include a summary of the most prevalent grounds for sustaining protests during such preceding year.’’ 2009—Subsec. (b)(1)(C) to (H). Pub. L. 111–84 added subpar. (C), redesignated former subpars. (C) to (G) as (D) to (H), respectively, and substituted ‘‘, (E), and (F)’’ for ‘‘, and (E)’’ in subpar. (G). 1996—Subsec. (a)(1). Pub. L. 104–106, § 5501(2)(A), sub- stituted ‘‘100 days’’ for ‘‘125 days’’. Subsec. (b)(2). Pub. L. 104–106, § 4321(d)(3), substituted ‘‘section 3553(d)(3)(C)(i)(I)’’ for ‘‘section 3553(d)(2)(A)(i)’’. Subsec. (e)(1). Pub. L. 104–106, § 5501(2)(B)(i), sub- stituted ‘‘Government Reform and Oversight’’ for ‘‘Government Operations’’. Subsec. (e)(2). Pub. L. 104–106, § 5501(2)(B)(ii), sub- stituted ‘‘100 days’’ for ‘‘125 days’’. 1994—Subsec. (a)(1). Pub. L. 103–355, § 1403(a)(1), sub- stituted ‘‘125 days after’’ for ‘‘90 working days from’’. Subsec. (a)(2). Pub. L. 103–355, § 1403(a)(2), substituted ‘‘65 days after’’ for ‘‘45 calendar days from’’. Subsec. (a)(3), (4). Pub. L. 103–355, § 1403(a)(3), (4), added par. (3) and redesignated former par. (3) as (4). Subsec. (b)(3). Pub. L. 103–355, § 1403(b)(1), added par. (3). Subsec. (c). Pub. L. 103–355, § 1403(b)(2), amended sub- sec. (c) generally. Prior to amendment, subsec. (c) read as follows: ‘‘(c)(1) If the Comptroller General determines that a solicitation for a contract or a proposed award or the award of a contract does not comply with a statute or regulation, the Comptroller General may declare an ap- propriate interested party to be entitled to the costs of— ‘‘(A) filing and pursuing the protest, including rea- sonable attorneys’ fees; and ‘‘(B) bid and proposal preparation. ‘‘(2) Monetary awards to which a party is declared to be entitled under paragraph (1) of this subsection shall be paid promptly by the Federal agency concerned out of funds available to or for the use of the Federal agen- cy for the procurement of property and services.’’ Subsec. (e). Pub. L. 103–355, § 1403(b)(3), amended sub- sec. (e) generally. Prior to amendment, subsec. (e) read as follows: ‘‘(e)(1) The head of the procuring activity responsible for the solicitation, proposed award, or award of the contract shall report to the Comptroller General, if the Federal agency has not fully implemented those rec- ommendations within 60 days of receipt of the Comp- troller General’s recommendations under subsection (b) of this section. ‘‘(2) Not later than January 31 of each year, the Comptroller General shall transmit to Congress a re- port describing each instance in which a Federal agen- cy did not fully implement the Comptroller General’s recommendations during the preceding fiscal year.’’ 1988—Subsec. (a)(1). Pub. L. 100–463 struck out ‘‘unless the Comptroller General determines and states in writ- ing the reasons that the specific circumstances of the protest require a longer period’’ after ‘‘submitted to the Comptroller General’’ before period at end. Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Gov- ernmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Con- gress, Oct. 9, 2004. Committee on Government Reform and Oversight of House of Representatives changed to Committee on Government Reform of House of Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999. Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Rep- resentatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Com- mittee on Oversight and Reform of House of Represent- atives changed to Committee on Oversight and Ac- countability of House of Representatives by House Res- olution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023. EFFECTIVE DATE OF 2009 AMENDMENT Amendment by Pub. L. 111–84 applicable to any pro- test or civil action that relates to a public-private com- petition conducted after Oct. 28, 2009, under Office of Management and Budget Circular A–76, or any suc- cessor circular, and to a decision made after Oct. 28, 2009, to convert a function performed by Federal em- ployees to private sector performance without a com- petition under Office of Management and Budget Cir- cular A–76, see section 327(d) of Pub. L. 111–84, 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)(3) 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(2) 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. INCLUSION OF INFORMATION ON COMMON GROUNDS FOR SUSTAINING BID PROTESTS IN ANNUAL GOVERNMENT ACCOUNTABILITY OFFICE REPORTS TO CONGRESS Pub. L. 114–328, div. A, title VIII, § 889, Dec. 23, 2016, 130 Stat. 2323, provided that: ‘‘The Comptroller General of the United States shall include in the annual report to Congress on the Government Accountability Office each year a list of the most common grounds for sus- taining protests relating to bids for contracts during such year.’’ PROMPT PAYMENT OF COSTS UNDER PRIOR LAW Pub. L. 103–355, title I, § 1403(b)(4), Oct. 13, 1994, 108 Stat. 3290, provided that: ‘‘Costs to which the Comp- troller General declared an interested party to be enti- tled under section 3554 of title 31, United States Code, as in effect immediately before the enactment of this Act [Oct. 13, 1994], shall, if not paid or otherwise satis- fied by the Federal agency concerned before the date of the enactment of this Act, be paid promptly.’’ § 3555. Regulations; authority of Comptroller General to verify assertions (a) The Comptroller General shall prescribe such procedures as may be necessary to the ex-