§ 3554. Decisions on protests

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1984

   Competition in Contracting Act of 1984

   Pub. L. 98–369 div. B title VII § 2741(a) · 98 Stat. 494

   Enacted · 31 U.S.C. § 3554

   Added Pub. L. 98–369, div. B, title VII, § 2741(a), July 18, 1984, 98 Stat. 1201

   Source evidence

   Code source credit
   Added Pub. L. 98–369, div. B, title VII, § 2741(a), July 18, 1984, 98 Stat. 1201

   Enacted provision · exact public law section
   (a) Chapter 35 of title 31, United States Code, is amended by adding at the end thereof the following new subchapter: “SUBCHAPTER V— PROCUREMENT PROTEST SYSTEM “§ 3551. Definitions “In this subchapter— “(1) ‘protest’ means a written objection by an interested party to a solicitation by an executive agency for bids or proposals for a proposed contract for the procurement of property or services or a written objection by an interested party to a proposed award or the award of such a contract; “(2) ‘interested party’, with respect to a contract or proposed contract described in paragraph (1), means an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract; and “(3) ‘Federal agency’ has the meaning given such term by section 3 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 472). “§ 3552. Protests by interested parties concerning procurement actions “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. An interested party who has filed a protest under section 111(h) of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 759(h)) with respect to a procurement or proposed procurement may not file a protest with respect to Ante, p. 1182. that procurement under this subchapter. “§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 working day of the receipt of a protest, 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 of a protested procurement under paragraph (1) of this subsection shall submit to the Comptroller General a complete report (including all relevant documents) on the protested procurement— “(A) within 25 working days from the date of the agency’s receipt of that notice; “(B) if the Comptroller General, upon a showing 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 10 working days from the date of the Federal agency’s receipt of that determination. “(3) A Federal agency need not submit a report to the Comptroller General pursuant to paragraph (2) of this subsection if the agency is sooner notified by the Comptroller General that the protest concerned has been dismissed under section 3554(a)(3) 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 responsible for award of a contract may authorize the award of the contract (notwithstanding a protest 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 Comptroller General under this subchapter; and “(B) after the Comptroller General is advised of that finding. “(3) A finding may not be made under paragraph (2)(A) of this subsection unless the award of the contract is otherwise likely to occur within 30 days thereafter. “(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 (E)(cept as provided under paragraph (2)) shall, upon receipt of that notice, immediately direct the contractor to cease performance under the contract and to suspend any related activities that may result in additional obligations being incurred by the United States under that contract. Performance 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. “(e) The authority of the head of the procuring activity to make findings and to authorize the award and performance of contracts under subsections (c) and (d) of this section may not be delegated. “(f) 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 subsection (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. “§ 3554. Decisions on protests “(a) (1) To the maximum extent practicable, the Comptroller General shall provide for the inexpensive 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 90 working days from the date the protest is submitted to the Comptroller General unless the Comptroller General determines and states in writing the reasons that the specific circumstances of the protest require a longer period. “(2) The Comptroller General shall, by regulation prescribed pursuant to section 3555 of this title, establish an express option for Post, p. 1202. deciding those protests which the Comptroller General determines suitable for resolution within 45 calendar days from the date the protest is submitted. “(3) The Comptroller General may dismiss a protest that the Comptroller General determines is frivolous or which, on its face, does not state a valid basis for protest. “(b) (1) With respect to a solicitation for a contract, or a proposed award or the award of a contract, protested under this subchapter, the Comptroller General may determine whether the solicitation, proposed award, or award complies with statute and regulation. If the Comptroller General determines that the solicitation, 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) issue a new solicitation; “(D) terminate the contract; “(E) award a contract consistent with the requirements of such statute and regulation; “(F) implement any combination of recommendations under clauses (A), (B), (C), (D), and (E); or “(G) 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 responsible for a contract makes a finding under section 3553(d)(2)(A)(i) of this title, the Comp- Ante, p. 1200. troller General shall make recommendations under this subsection without regard to any cost or disruption from terminating, recompeting, or reawarding the contract. “(c) (1) If the Comptroller General determines that a solicitation for a contract or a proposed award cr the award of a contract does not comply with a statute or regulation, the Comptroller General may declare an appropriate interested party to be entitled to the costs of— “(A) filing and pursuing the protest, including reasonable 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 agency for the procurement of property and services. “(d) Each decision of the Comptroller General under this subchapter shall be signed by the Comptroller General or a designee for that purpose. A copy of the decision shall be made available to the interested parties, the head of the procuring activity responsible for the solicitation, proposed award, or award of the contract, and the senior procurement executive of the Federal agency involved. “(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 recommendations within 60 days of receipt of the Comptroller 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 report describing each instance in which a Federal agency did not fully implement the Comptroller General’s recommendations during the preceding fiscal year. “§ 3555. Regulations; authority of Comptroller General to verify assertions “(a) Not later than January 15, 1985, the Comptroller General shall prescribe such procedures as may be necessary to the expeditious decision of protests under this subchapter, including procedures for accelerated resolution of protests under the express option Ante, p. 1201. authorized by section 3554(a)(2) of this title. Such procedures shall provide that the protest process may not be delayed by the failure of a party to make a filing within the time provided for the filing. “(b) The Comptroller General may use any authority available 31 USC 701 et seq. under chapter 7 of this title and this chapter to verify assertions made by parties in protests under this subchapter. “§ 3556. Nonexclusivity of remedies; matters included in agency record “This subchapter does not give the Comptroller General exclusive jurisdiction over protests, and nothing contained in this subchapter shall affect the right of any interested party to file a protest with the contracting agency or to file an action in a district court of the United States or the United States Claims Court. In any such action based on a procurement or proposed procurement with respect to which a protest has been filed under this subchapter, the reports Ante, p. 1200. required by sections 3553(b)(2) and 3554(e)(1) of this title with respect to such procurement or proposed procurement and any decision or recommendation of the Comptroller General under this subchapter with respect to such procurement or proposed procurement shall be considered to be part of the agency record subject to review.”.

2. 1988

   Pub. L. 100–463 title VIII § 8139 · 102 Stat. 2270

   Struck · 31 U.S.C. § 3554(a)(1)

   Pub. L. 100–463 struck out “unless the Comptroller General determines and states in writing the reasons that the specific circumstances of the protest require a longer period” after “submitted to the Comptroller General” before period at end

   Source evidence

   Code amendment note
   Subsec. (a)(1). Pub. L. 100–463 struck out “unless the Comptroller General determines and states in writing the reasons that the specific circumstances of the protest require a longer period” after “submitted to the Comptroller General” before period at end.

   Enacted provision · exact public law section
   Sec. 8139. Section 3554 of title 31, United States Code, is amended in subsection (a)(1), by striking out “unless the Comptroller General determines and states in writing the reasons that the specific circumstances of the protest require a longer period”.

3. 1994

   Pub. L. 103–355 § 1403(a)(1) · 108 Stat. 3243

   Substituted · 31 U.S.C. § 3554(a)(1)

   Pub. L. 103–355, § 1403(a)(1), substituted “125 days after” for “90 working days from”

   Source evidence

   Code amendment note
   Subsec. (a)(1). Pub. L. 103–355, § 1403(a)(1), substituted “125 days after” for “90 working days from”.

   Enacted provision · exact public law section
   (1) in paragraph (1), by striking out “90 working days from” and inserting in lieu thereof “125 days after”;

4. 1994

   Pub. L. 103–355 § 1403(a)(2) · 108 Stat. 3243

   Substituted · 31 U.S.C. § 3554(a)(2)

   Pub. L. 103–355, § 1403(a)(2), substituted “65 days after” for “45 calendar days from”

   Source evidence

   Code amendment note
   Subsec. (a)(2). Pub. L. 103–355, § 1403(a)(2), substituted “65 days after” for “45 calendar days from”.

   Enacted provision · exact public law section
   (2) in paragraph (2), by striking out “45 calendar days from” and inserting “65 days after”;

5. 1994

   Pub. L. 103–355 § 1403(a)(3) · 108 Stat. 3243

   1. Added · 31 U.S.C. § 3554(a)(3); 31 U.S.C. § 3554(a)(4)

      Pub. L. 103–355, § 1403(a)(3), (4), added par. (3)

   2. Redesignated · 31 U.S.C. § 3554(a)(3); 31 U.S.C. § 3554(a)(4)

      Pub. L. 103–355, § 1403(a)(3), (4), redesignated former par. (3) as (4)

   Source evidence

   Code amendment note
   Subsec. (a)(3), (4). Pub. L. 103–355, § 1403(a)(3), (4), added par. (3) and redesignated former par. (3) as (4).

   Enacted provision · exact public law section
   (3) by redesignating paragraph (3) as paragraph (4); and

6. 1994

   Pub. L. 103–355 § 1403(b)(1) · 108 Stat. 3243

   Added · 31 U.S.C. § 3554(b)(3)

   Pub. L. 103–355, § 1403(b)(1), added par. (3)

   Source evidence

   Code amendment note
   Subsec. (b)(3). Pub. L. 103–355, § 1403(b)(1), added par. (3).

   Enacted provision · exact public law section
   (1) Section 3554 of title 31, United States Code, is amended in subsection (b) by adding at the end the following new paragraph: “(3) If the Federal agency fails to implement hilly the recommendations of the Comptroller General under this subsection with respect to a solicitation for a contract or an award or proposed 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 General not later than 5 days after the end of such 60-day period.”.

7. 1994

   Pub. L. 103–355 § 1403(b)(2) · 108 Stat. 3243

   Amended · 31 U.S.C. § 3554(c)

   Pub. L. 103–355, § 1403(b)(2), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows:

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 103–355, § 1403(b)(2), amended subsec. (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 appropriate interested party to be entitled to the costs of— “(A) filing and pursuing the protest, including reasonable 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 agency for the procurement of property and services.”

   Enacted provision · exact public law section
   (2) Subsection (c) of such section is amended to 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 recommend that the Federal 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 concern (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 compensation 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 increase in the cost of living or a special factor, such as the limited availability of qualified attorneys 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 request of the interested party, recommend to the Federal agency the amount of the costs that the Federal agency should pay.”.

8. 1994

   Pub. L. 103–355 § 1403(b)(3) · 108 Stat. 3243

   Amended · 31 U.S.C. § 3554(e)

   Pub. L. 103–355, § 1403(b)(3), amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows:

   Source evidence

   Code amendment note
   Subsec. (e). Pub. L. 103–355, § 1403(b)(3), amended subsec. (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 recommendations within 60 days of receipt of the Comptroller 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 report describing each instance in which a Federal agency did not fully implement the Comptroller General’s recommendations during the preceding fiscal year.”

   Enacted provision · exact public law section
   (3) Subsection (e) of such section is amended to read as follows: “(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 Government Operations and the Committee on Appropriations of the House of Representatives any case in which a Federal agency fails to implement fully a recommendation of the Comptroller 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 Congress 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 Congress a report containing a summary of each instance in which a Federal agency did not fully implement a recommendation of the Comptroller General under subsection (b) or (c) during the preceding year. The report shall also describe each instance in which a final decision in a protest was not rendered within 125 days after the date the protest is submitted to the Comptroller General.”.

9. 1996

   National Defense Authorization Act for Fiscal Year 1996

   Pub. L. 104–106 § 5501(2)(A) · 110 Stat. 186

   Substituted · 31 U.S.C. § 3554(a)(1)

   Pub. L. 104–106, § 5501(2)(A), substituted “100 days” for “125 days”

   Source evidence

   Code amendment note
   Subsec. (a)(1). Pub. L. 104–106, § 5501(2)(A), substituted “100 days” for “125 days”.

   Enacted provision · exact public law section
   (A) in subsection (a)(1), by striking out “125” and inserting in lieu thereof “100”; and

10. 1996

    National Defense Authorization Act for Fiscal Year 1996

    Pub. L. 104–106 § 4321(d)(3) · 110 Stat. 186

    Substituted · 31 U.S.C. § 3554(b)(2)

    Pub. L. 104–106, § 4321(d)(3), substituted “section 3553(d)(3)(C)(i)(I)” for “section 3553(d)(2)(A)(i)”

    Source evidence

    Code amendment note
    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)”.

    Enacted provision · exact public law section
    (3) Section 3554(b)(2) is amended by striking out “section 3553(d)(2)(A)(i)” and inserting in lieu thereof “section 3553(d)(3)(C)(i)(I)”.

11. 1996

    National Defense Authorization Act for Fiscal Year 1996

    Pub. L. 104–106 § 5501(2)(B)(i) · 110 Stat. 186

    Substituted · 31 U.S.C. § 3554(e)(1)

    Pub. L. 104–106, § 5501(2)(B)(i), substituted “Government Reform and Oversight” for “Government Operations”

    Source evidence

    Code amendment note
    Subsec. (e)(1). Pub. L. 104–106, § 5501(2)(B)(i), substituted “Government Reform and Oversight” for “Government Operations”.

    Enacted provision · exact public law section
    (i) in paragraph (1), by striking out “Government Operations” and inserting in lieu thereof “Government Reform and Oversight”; and

12. 1996

    National Defense Authorization Act for Fiscal Year 1996

    Pub. L. 104–106 § 5501(2)(B)(ii) · 110 Stat. 186

    Substituted · 31 U.S.C. § 3554(e)(2)

    Pub. L. 104–106, § 5501(2)(B)(ii), substituted “100 days” for “125 days”

    Source evidence

    Code amendment note
    Subsec. (e)(2). Pub. L. 104–106, § 5501(2)(B)(ii), substituted “100 days” for “125 days”.

    Enacted provision · exact public law section
    (ii) in paragraph (2), by striking out “125” and inserting in lieu thereof “100”.

13. 2009

    National Defense Authorization Act for Fiscal Year 2010

    Pub. L. 111–84 div. A title III § 327(c) · 123 Stat. 2190

    1. Added · 31 U.S.C. § 3554(b)(1)(C)(H)

       Pub. L. 111–84 added subpar. (C)

    2. Redesignated · 31 U.S.C. § 3554(b)(1)(C)(H)

       Pub. L. 111–84 redesignated former subpars. (C) to (G) as (D) to (H), respectively

    3. Substituted · 31 U.S.C. § 3554(b)(1)(C)(H)

       Pub. L. 111–84 substituted “, (E), and (F)” for “, and (E)” in subpar. (G)

    Source evidence

    Code amendment note
    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).

    Enacted provision · exact public law section
    (c) Decisions on Protests.— Section 3554(b) of title 31, United States Code, is amended— (1) by redesignating subparagraphs (C) through (G) as subparagraphs (D) through (H), respectively; (2) by inserting after subparagraph (B) the following new subparagraph (C): “(C) cancel the solicitation issued pursuant to the public-private competition conducted under Office of Management and Budget Circular A–76 or any successor circular;” ; and (3) in subparagraph (G), as redesignated by paragraph (1), by striking “, and (E)” and inserting “, (E), and (F)”.

    Effective date note
    Amendment by Pub. L. 111–84 applicable to any protest or civil action that relates to a public-private competition conducted after Oct. 28, 2009, under Office of Management and Budget Circular A–76, or any successor circular, and to a decision made after Oct. 28, 2009, to convert a function performed by Federal employees to private sector performance without a competition under Office of Management and Budget Circular A–76, see section 327(d) of Pub. L. 111–84, set out as a note under section 3551 of this title.

14. 2013

    National Defense Authorization Act for Fiscal Year 2013

    Pub. L. 112–239 div. A title VIII § 867 · 126 Stat. 1632

    Inserted · 31 U.S.C. § 3554(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.”

    Source evidence

    Code amendment note
    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.”

    Enacted provision · exact public law section
    SEC. 867. INCLUSION OF INFORMATION ON PREVALENT GROUNDS FOR SUSTAINING BID PROTESTS IN ANNUAL PROTEST REPORT BY COMPTROLLER GENERAL TO CONGRESS.   Section 3554(e)(2) of title 31, United States Code, is amended by adding at the end the following: “The report shall also include a summary of the most prevalent grounds for sustaining protests during such preceding year.”.

17 of 17 references resolved to an enrolled provision