# AFFARS MP5333.104

#### Mandatory Procedure

MP5333.104

##### Protests to the GAO

March 2007

MP5333.104 Protests to the GAO.

(a) General

(1) The Air Force response to a GAO bid protest must comply with GAO’s Bid Protest Regulations (4 CFR 21) and FAR 33.104, as supplemented.

(2) SAF/AQCK serves as the notification point with the GAO for all protests. The phone number is (703) 588-7079and the facsimile number is (703) 588-7915.

(3) The Commercial Litigation Division, Air Force Legal Operations Agency (AFLOA/JACQ) represents the Air Force on all protests. AFLOA/JACQ’s overnight delivery address is: AFLOA/JACQ, Attn: Carolyn Smith, 1501 Wilson Blvd., Suite 606, Arlington, VA 22209-2403. The main phone number is (703) 696-9063, DSN 426-9063 and the facsimile number is (703) 696-9084, DSN 426-9084.

(4) The contracting officer shall send any communication to the GAO through AFLOA/JACQ (with a courtesy copy to SAF/AQCK) and forward any inquiry received from an attorney representing a protestor or interested party to AFLOA/JACQ.

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

(6) The supporting legal office is the office that provides legal support to the contracting activity that received the protest. An attorney from the cognizant legal office will draft the memorandum of law and otherwise support the defense of the protest. AFLOA/JACQ will provide protest guidance to attorneys.

(b) Initial Actions upon Receipt of Protest

(1) SAF/AQCK 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:

(i) Forward a copy of the protest to the supporting legal office.

(ii) Provide a copy of the protest (or a redacted copy if the protest is designated as containing protected material) to the awardee, or if no award has been made, to all offerors who appear to have a reasonable prospect of receiving award. Provide AFLOA/JACQ any responses received from the awardee or these offerors.

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

(A) A discussion of whether a stay of performance or award is required IAW FAR 33.104(b) or (c).

(B) If a stay is required IAW FAR 33.104(b) or (c), whether an override will be sought IAW FAR 33.104(b) or (c). (See paragraph (h) below.)

(C) If a stay is not required, discuss whether a suspension of performance or termination of the contract is in the best interest of the Air Force.

(iv) Email AFLOA/JACQAFLOA/JACQ the name, phone number, fax number, and e-mail address of the contracting officer and the local attorney assisting in the protest defense.

(3) The contracting officer shall, as soon as possible, but no later than three business days of receiving the protest, consult with the supporting legal office to determine:

(i) Whether corrective action should be taken.

(ii) Whether summary dismissal should be requested.

(A) The GAO may summarily dismiss a protest that on its face is untimely, fails to set forth a detailed statement of the legal and factual grounds of protest, or involves a matter outside of GAO’s jurisdiction (4 CFR 21.5).

(B) At the request of AFLOA/JACQ, the contracting officer shall prepare and forward documents supporting a summary dismissal request.

(C) AFLOA/JACQ may authorize the contracting activity to delay preparation of the agency report while the GAO considers a summary dismissal request.

(4) AFLOA/JACQ will notify the contracting officer and supporting legal office as to which documents AFLOA/JACQ requests to be forwarded electronically, by facsimile or by overnight delivery, in advance of the Agency Report.

(5) The contracting officer shall, within ten days after the Air Force receives the protest, provide the statement of facts and table of contents to the supporting legal office.

(6) The contracting officer shall e-mail drafts of the initial legal memorandum, statement of facts, and table of contents (including a listing of any requested documents deemed irrelevant and being provided in a separate binder) to AFLOA/JACQAFLOA/JACQ (copying the focal point) as soon as practicable, but not later than 15 days after the Air Force is notified of the protest (or seven days from the date the express option is invoked by the GAO).

(c) Preparation of Agency Report

(1) Format

(i) The contracting officer shall prepare the agency report as a stand-alone report that can be submitted “as is” by AFLOA/JACQ to the GAO.

(ii) The contracting officer shall prepare complete copies of the agency report for the GAO, the protester, each interested party, AFLOA/JACQ. In addition, except for DRUs and AFMC Centers, a copy of the agency report should be prepared for the focal point. The contracting officer shall ship all copies of the agency report to AFLOA/JACQ as directed; never to the GAO and other parties.

(iii) The contracting officer shall submit copies of the agency report in 3-ring binders, not contract folders. Label each binder, on both the front and spine of each binder, with protester’s name, B-number, name of intended recipient, the volume number of the binder and tabs within the binder (Volume 1 of 3, Tabs 1-12), and if protected material is contained in the binder, mark the binder “PROTECTED MATERIAL – TO BE DISCLOSED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER.

(iv) Documents shall be numbered, tabbed, and identified in the table of contents. Each page within each tab should have a unique page number.

(v) Tabs 1 and 2 contain the legal memorandum and contracting officer’s statement of facts.

(vi) Tab 3 contains a copy of the protest.

(vii) A copy of the table of contents should be in each binder. The table of contents has five columns.

(A) The first column is labeled “TAB” and lists the tabs using whole numbers, without letters or decimals.

(B) The second column is labeled “DOCUMENT” and provides a brief description of the document or documents under the corresponding tab.

(C) The third column is labeled “DATE” and provides the date the document was generated, if known.

(D) The fourth column is labeled “WITHHELD FROM” and lists the name of any party not receiving the document under the corresponding tab (either because the party already has a copy of the document (e.g., solicitation) or because the document contains protected information and the party does not have counsel admitted under a protective order).

(E) The fifth column is labeled “PROTECTED” and indicates whether the document contains protected information.

(2) Contents

(i) Legal Memorandum. The supporting legal office will prepare the initial legal memorandum, which will include a legal analysis of each ground of protest.

(ii) Contracting Officer’s Statement of Facts

(A) While coordination with others involved in the procurement is essential, the actual drafting of the document is the responsibility of the contracting officer.

(B) The statement of facts is written in narrative form and contains three sections.

(1) The first section provides a one paragraph overview of the procurement including the type of solicitation protested; solicitation number and date issued; a description of goods or services being acquired; a description of the decision protested; the name of the successful contractor, if known; the amount of contract, as awarded and with options; the amount protester bid for basic contract and options; and other pertinent background information.

(2) The second section provides a chronology of events that includes the date and a brief description of significant events in the procurement. The chronology may include the date bids or proposals were originally due; the date final proposal revisions were requested; the date final proposal revisions were received; the date of award; and other pertinent dates.

(3) The third section describes and responds to all allegations raised in the protest. The contracting officer shall address each allegation separately and should cite specific language or facts relied upon by the protest allegation and relevant language or facts supporting the Air Force position. Appropriate references to the FAR should also be made.

(C) References to documents contained elsewhere in the agency report shall be followed by citations, including tab number and page number.

(iii) Other Documents

(A) The agency report includes, as appropriate: 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; all evaluation documents (including individual evaluator ratings, scores, analyses, worksheets, and interim and final ratings); the solicitation, including amendments; source selection and technical plans; abstracts of bids or offers; 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.

(B) In addition to the documents in (A), the contracting officer shall forward all documents requested by the protester to AFLOA/JACQ unless otherwise instructed.

(C) Documents requested by the protester but deemed not relevant shall be forwarded to AFLOA/JACQ in a tabbed binder separate from the agency report. The contracting officer should consult AFLOA/JACQ before placing non-relevant documents in a separate binder.

(iv) Proprietary or Source Selection Sensitive Information

(A) The contracting officer shall review all documents for proprietary or source selection sensitive information. Any document containing such information must be designated as “protected” in the table of contents. The contracting officer should consult the supporting legal office if questions arise during this process.

(B) Protected documents include, among other things: any proposal or document submitted by an offeror (including the protester) containing confidential commercial or financial information; interim or final ratings of any offeror (including those contained in summary documents such as a competitive range determinations, source selection decision documents, or proposal assessment reports); past performance information of any offeror (including the protester); and other “source selection information” and “contractor bid and proposal information” as defined in FAR 3.104-3.

(C) The GAO will usually issue a protective order in a protest involving protected information when the protester has an attorney. Although a document designated as protected will not be released directly to the protester, a protester’s attorney admitted to a GAO protective order must be provided a copy of any protected document filed at the GAO.

(D) When an attorney represents the protester, AFLOA/JACQ will forward the protester’s copy of the agency report directly to the attorney. The terms of the protective order prohibit the protester’s attorney from forwarding or otherwise disclosing any protected information to the protester.

(E) In the absence of a protective order, the contracting officer may include protected documents in agency reports or subsequent filings by redacting the material considered proprietary or source selection sensitive. In such cases, both the original and redacted versions of such documents are provided to AFLOA/JACQ and GAO. The contracting officer will consult with AFLOA/JACQ before preparing redacted copies of the agency report.

(d) Transmission of Agency Report

(1) The contracting activity shall transmit all copies of the agency report (including one for the protester, one for each intervenor, one for the GAO, and one for AFLOA/JACQ) using overnight delivery so that AFLOA/JACQ receives them not later than 20 days after the Air Force is notified of the protest. If GAO uses the express option procedures, AFLOA/JACQ must receive the agency report within 10 days from the date the express option is invoked. Only AFLOA/JACQ will distribute agency reports to the GAO and other parties.

(2) The GAO may request production of the agency report prior to the deadlines described above. The contracting activity shall work with AFLOA/JACQ to ensure that these time frames are met.

(3) When requested AFLOA/JACQ, the contracting activity shall submit an electronic version of the agency report.

(4) The focal point shall work in concert with the contracting activity and review the contracting officer’s statement of facts prior to its submission to AFLOA/JACQ. The focal point shall ensure that the contracting officer’s statement of facts is in the proper format and addresses all protest allegations and that the agency report is otherwise complete.

(e) Process after Agency Report is filed

(1) Comments on the Agency Report

(i) The protester and all interested parties may file written comments on the agency report within ten days of receiving the report.

(ii) The protester may request additional documents after the agency report has been filed if the existence or relevance of documents first becomes evident from the agency report. At the request of AFLOA/JACQ, the contracting officer must provide additional documents within two days.

(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/JACQ in order to ensure a timely response to the GAO. The focal point shall be copied on any response provided to AFLOA/JACQ. The focal point makes comments or suggestions on supplemental responses directly to AFLOA/JACQ or SAF/AQCK.

(2) Supplemental Protests

(i) Based on the information contained in the agency report, the protester may assert supplemental grounds of protest. Unless it can be dismissed, a supplemental protest will require an additional response from the agency. However, this response is usually more narrow than the original agency report and will normally not require as much documentation.

(ii) At the request of AFLOA/JACQ, the contracting officer shall provide additional documents and information in support of a response to the supplemental grounds of protest.

(iii) Technically, a supplemental protest triggers a new 100-day clock for the resolution of the protest. As a matter of practice, the GAO will usually try to resolve the entire matter within the original 100 days.

(3) Hearings

(i) The GAO or any party to a protest may request a hearing in the protest. Hearings are usually held at the GAO in Washington D.C.

(ii) AFLOA/JACQ will represent the Air Force at any hearing.

(iii) The contracting activity shall provide the requested witnesses and other support required by AFLOA/JACQ. The contracting activity is responsible for funding witness travel and TDY costs.

(iv) At the request of the GAO through AFLOA/JACQ or at the request of AFLOA/JACQ, the contracting activity shall obtain and fund court reporter services to transcribe the hearing. The cost of court reporter services is typically shared between the contracting activity, the Protester, and the intervenor.

(v) AFLOA/JACQ will submit comments on the hearing to GAO. The contracting officer shall produce additional information as requested by AFLOA/JACQ.

(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. The GAO will issue a public redacted version of the decision at a later date.

(i) Denial or Dismissal. If the GAO denies or dismisses a protest, the protest is closed. The Air Force can proceed with all contractual actions upon notification of denial or dismissal.

(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 through SAF/AQCK and AFLOA/JACQ within 15 days of the date of the decision.

(B) Potential costs may include attorney fees and in-house costs related to pursuit of the protest. Costs must be paid by the base or procuring activity. A protester must submit a cost claim to the agency within 60 days of a decision or recommendation to award costs. Any cost claim received should be forwarded immediately to AFLOA/JACQ. GAO has established a body of law around the payment of cost claims, and AFLOA/JACQ will analyze the claim for reimbursable and unallowable expenses. AFLOA/JACQ may offer a settlement to the protester, subject to the approval of the contracting officer. If a settlement cannot be reached, the GAO may decide the claim in a written decision. Once a final figure is determined (either through settlement or by the GAO), the contracting officer arranges for payment to the protester.

(2) Alternative Dispute Resolution (ADR). ADR is a flexible way to resolve litigation quickly. In the GAO bid protest process, ADR allows the Air Force to resolve protests weeks and even months before a decision is due. Air Force policy is to use ADR to the maximum extent practicable; however, the feasibility of ADR depends on the facts and circumstances of the protest.

(3) Outcome Prediction. Outcome prediction is a common form of ADR 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.

(4) Settlement. The Air Force may decide to settle a protest. A settlement shall be a formal, written agreement signed by the contracting officer or, if appropriate, by the supporting Air Force attorney. A settlement shall include the actions the Air Force agrees to such as to take corrective action, pay certain protest costs, produce selected documents, or take other fact-specific actions. In exchange, the protester agrees to withdraw its protest and may waive certain cost entitlements. Settlement of a protest is not a “payoff” to the protester, and is only pursued when doing so is in the best interests of the Air Force considering cost factors and litigation risk. If a settlement is negotiated, the contracting officer shall fax a copy of the signed settlement agreement to AFLOA/JACQ.

(5) Withdrawal. The protester may withdraw the protest, either because of corrective action taken by the Air Force or for other reasons. Once the protester gives notice of withdrawal to the GAO, the contracting activity can resume all contractual actions.

(g) Corrective Action

(1) Corrective action may be taken by the Air Force at any time during the protest process or upon the recommendation of the GAO when a protest is sustained.

(2) Corrective action is appropriate when a significant flaw in the procurement process has been discovered or when GAO precedent suggests that the protest will likely be sustained.

(3) Prompt corrective action shall be taken to minimize costs to the Air Force. Corrective action taken prior to submission of the agency report will usually prevent the agency from having to pay protest costs. In contrast, corrective action taken after submission of the agency report will often result in the agency having to pay costs.

(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/AQCK and AFLOA/JACQ. The contracting officer shall notify SAF/AQCK and AFLOA/JACQ 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.

(h) Mandatory Stay of Award or Performance

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

(i) The Air Force must stay award or performance of a contract when notified of a protest within 10 days after the date of contract award or within 5 days after the debriefing date offered to an unsuccessful offeror for any debriefing that is requested and, when requested, is required.

(ii) The Air Force can override a stay in appropriate circumstances when it can show a requisite level of harm resulting from a delay of contract award or performance.

(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 concurrently to the HCA (via Contracts staff) and SAF/AQCK within seven days of the protest notification by SAF/AQCK.

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

(2) Overriding Stay of Award (protest filed before award)

(i) A stay of award may only be overridden by “urgent and compelling circumstances that significantly affect interests of the United States.” These circumstances may include delays, work stoppages, or performance degradations that severely impact mission-critical operations.

(ii) All requests shall include facts that establish the urgent and compelling circumstances that significantly affect the interests of the United States. The request shall explain why the incumbent’s contract cannot be extended.

(3) Overriding Stay of Performance (protest filed after award)

(i) A stay of performance may be overridden either by “urgent and compelling circumstances which significantly affect interests of the United States” or when “performance of the contract is in the best interests of the United States.”

(ii) Urgent and compelling circumstances may include delays, work stoppages, or performance degradations that severely impact mission-critical operations. The Air Force must specifically address why performance by the particular awardee is urgent and compelling.

(iii) The Air Force has broad but not unfettered discretion in determining what is in its best interests. Schedule delays, mission degradation, and other disruptions may be considered. Costs of delaying performance under a stay, to the extent they are quantifiable, should be compared to potential termination costs. If the stay is overridden based upon best interests, the GAO will make its recommendation without regard to any cost or disruption from terminating, recompeting, or reawarding the contract (4 CFR 21.8(c)).

(iv) If the contracting officer does not request continued performance authority, contract performance shall cease immediately. If a request is initiated and the HCA does not authorize continued performance within ten days of protest notification, the contracting officer shall suspend contract performance. If circumstances change after suspension of contract performance, the contracting officer may initiate a request to continue performance.

(4) Procedural Requirements

(i) The written finding required by FAR 33.104 (b) or (c) includes:

(A) A description of the goods or services requested and the type of contract.

(B) A concise summary of the protest and the Air Force position on the merits.

(C) If applicable, the required award date and rationale.

(D) A statement of the impact on the Air Force if award or performance is delayed 30, 60, or 90 days.

(E) A description of alternative methods for obtaining the required supplies or services (e.g., options, organic capabilities, purchase orders), including a detailed explanation of why such alternatives are not feasible.

(F) An estimate of termination costs if the protest is sustained and the contract terminated 30, 60, or 90 days after award.

(G) The name and telephone number of any point of contact at SAF or HQ USAF who knows the impact of delay in contract award or performance.

(ii) SAF/AQC may request a briefing on technical and contractual aspects of the solicitation when an override is requested.

(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/AQCK. A copy of the override notice shall be sent to the protester and interested parties, as required by FAR 33.104(d).