Subpart 933.1.Protests
Sec.
933.102 General.
933.103 Protests to the agency.
933.104 Protests to GAO.
933.106 Solicitation provision.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 51 FR 31336, Sept. 3, 1986, unless otherwise
noted.
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Subpart 933.1.Protests
933.102 General (DOE coverage.paragraph (b)).
(b) The Heads of Contracting Activities, for contracts
estimated to be within the limits of their delegated
authority, may, without power of redelegation, provide
corrective relief in response to a protest in accordance
with 48 CFR 33.102(b).
[62 FR 53754, Oct. 16, 1997]
933.103 Protests to the agency. (DOE coverage.paragraphs (f), (i), (j), and (k)).
(f) If FAR 33.103(f) requires that award bewithheld or
performance be suspended or the awarded contract be
terminated pending resolution of an agency protest,
authority to award and/or continue performance of the
protested contract may be requested by the Head of the
Contracting Activity (HCA), concurred in by counsel,
and approved by the Procurement Executive.
(i)(1) Protests filed with the contracting officer before
or after award shall be decided by the Head of the
Contracting Activity except for the following cases,
which shall be decided by the Procurement Executive:
(i) The protester requests that the protest be decided by
the Procurement Executive.
(ii) The HCA is the contracting officer of record at the
time the protest is filed, having signed either the
solicitation where the award has not been made, or the
contract, where the award or nomination of the
apparent successful offeror has been made.
(iii) The HCA concludes that one or more of the issues
raised in the protest have the potential for significant
impact on DOE acquisition policy.
(2) Upon receipt of a protest requesting a decision by
the Procurement Executive, the contracting activity
shall immediately provide a copy of the protest to the
Office of Clearance and Support.
(j) The Department of Energy encourages direct
negotiations between an offeror and the contracting
officer in an attempt to resolve protests. In those
situations where the parties are not able to achieve
resolution, the Department favors the use of alternative
dispute resolution (ADR) techniques to resolve
protests. A protest requesting a decision at the
Headquarters level shall state whether the protester is
willing to utilize ADR techniques such as mediation or
nonbinding evaluation of the protest by a neutral.
Upon receipt of a protest requesting a decision at the
Headquarters level, the Office of Clearance and
Support will explore with the protester whether the use
of ADR techniques would be appropriate to resolve the
protest. Both parties must agree that the use of such
techniques is appropriate. If the parties do not
mutually agree to utilize ADR to resolve the protest,
the protest will be processed in accordance with the
procedures set forth in paragraph (k).
(k) Upon receipt of a protest lodged with the
Department, the contracting officer shall prepare a
report similar to that discussed in FAR
33.104(a)(3)(iii). In the case of a protest filed at the
Headquarters level, the report shall be forwarded to the
Office of Clearance and Support within 21 calendar
days of being notified of such a protest with a proposed
response to the protest. The Procurement Executive
(for protests at the Headquarters level or those specific
HCA protests cited in paragraph (i)(1) of this section)
or an HCA (for protests at the contracting activity
level) will render a decision on a protest within 35
calendar days, unless a longer period of time is
determined to be needed.
933.104 Protests to GAO. (DOE coverage.paragraphs (a), (b), (c), and (g)).
(a)(2) The contracting officer shall provide the notice
of protest.
(b) Protests before award. (1) When the Department has received notice from the GAO of a protest filed directly with the GAO, a contract may not be awarded until the matter is resolved, unless authorized by the Head of the Contracting Activity in accordance with FAR 33.104(b). Before the Head of the Contracting Activity authorizes the award, the required finding shall be concurred in by the DOE counsel handling the
protest, endorsed by the Senior Program Official, and
approved by the Procurement Executive. The finding
shall address the likelihood that the protest will be
sustained by the GAO.
(c) Protests after award. Before the Head of the Contracting Activity authorizes performance, the
finding required by FAR 33.104(c)(2) shall be
concurred in by the DOE counsel handling the protest,
endorsed by the Senior Program Official, and approved
by the Procurement Executive.
(g) Notice to GAO. (1) The report to the GAO regarding a decision not to comply with the GAO's
recommendation, discussed at FAR 33.104(f), shall be
provided by the HCA making the award, after approval
of the Procurement Executive. If a DOE-wide policy
issue is involved, the report shall be provided by the
Procurement Executive.
(2) It is the policy of the Department to comply
promptly with recommendations set forth in
Comptroller General Decisions except for compelling
reasons.
(3) The GAO does not have jurisdiction to consider
subcontractor protests.
933.106 Solicitation provisions.
(a) The contracting officer shall supplement the
provision at FAR 52.233-2, Service of Protest, in
solicitations for other than simplified acquisitions by
adding the provision at 48 CFR 952.233-2.
(b) The contracting officer shall include the provision
at 48 CFR 952.233-4 in solicitations for purchases
above the simplified acquisition threshold.
(c) The contracting officer shall include the provision at
48 CFR 952.233-5 in solicitations for purchases above
the simplified acquisition threshold.
[61 FR 41702, Aug. 9, 1996]