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31 U.S.C. §§ 3551–3553

3 sections in range

§3551. Definitions

31 U.S.C. § 3551

In this subchapter:
(1)
The term “protest” means a written objection by an interested party to any of the following:
(A)
A solicitation or other request by a Federal agency for offers for a contract for the procurement of property or services.
(B)
The cancellation of such a solicitation or other request.
(C)
An award or proposed award of such a contract.
(D)
A termination or cancellation of an award of such a contract, if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract.
(E)
Conversion of a function that is being performed by Federal employees to private sector performance.
(2)
The term “interested party”—
(A)
with respect to a contract or a solicitation or other request for offers 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
(B)
with respect to a public-private competition conducted under Office of Management and Budget Circular A–76 with respect to the performance of an activity or function of a Federal agency, or a decision to convert a function performed by Federal employees to private sector performance without a competition under Office of Management and Budget Circular A–76, includes—
(i)
any official who is responsible for submitting the agency tender in such competition; and
(ii)
any one individual who, for the purpose of representing the Federal employees engaged in the performance of the activity or function for which the public-private competition is conducted in a protest under this subchapter that relates to such public-private competition, has been designated as the agent of the Federal employees by a majority of such employees.
(3)
The term “Federal agency” has the meaning given such term by section 102 of title 40.
Notes, amendments, and revision history

(Added Pub. L. 98–369, div. B, title VII, § 2741(a), July 18, 1984, 98 Stat. 1199; amended Pub. L. 99–145, title XIII, § 1304(d), Nov. 8, 1985, 99 Stat. 742; Pub. L. 103–272, § 4(f)(1)(K), July 5, 1994, 108 Stat. 1362; Pub. L. 103–355, title I, § 1401, Oct. 13, 1994, 108 Stat. 3287; Pub. L. 104–106, div. D, title XLIII, § 4321(d)(1), Feb. 10, 1996, 110 Stat. 674; Pub. L. 107–217, § 3(h)(6), Aug. 21, 2002, 116 Stat. 1300; Pub. L. 108–375, div. A, title III, § 326(a), Oct. 28, 2004, 118 Stat. 1848; Pub. L. 110–161, div. D, title VII, § 739(c)(1)(A), Dec. 26, 2007, 121 Stat. 2030; Pub. L. 110–181, div. A, title III, § 326(a), Jan. 28, 2008, 122 Stat. 62; Pub. L. 111–84, div. A, title III, § 327(a), (b), Oct. 28, 2009, 123 Stat. 2255.)

Editorial Notes

Amendments

2009—Par. (1)(E). Pub. L. 111–84, § 327(a), added subpar. (E).

Par. (2)(B)(i). Pub. L. 111–84, § 327(b), amended cl. (i) generally. Prior to amendment, cl. (i) read as follows: “any official who submitted the agency tender in such competition; and”.

2008—Par. (2). Pub. L. 110–181 amended par. (2) generally. Prior to amendment, par. (2) read as follows: “The term ‘interested party’—

“(A) with respect to a contract or a solicitation or other request for offers 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

“(B) with respect to a public-private competition conducted under Office of Management and Budget Circular A–76 regarding performance of an activity or function of a Federal agency, or a decision to convert a function performed by Federal employees to private sector performance without a competition under OMB Circular A–76, includes—

“(i) any official who submitted the agency tender in such competition; and

“(ii) any one person who, for the purpose of representing them in a protest under this subchapter that relates to such competition, has been designated as their agent by a majority of the employees of such Federal agency who are engaged in the performance of such activity or function.”

2007—Par. (2). Pub. L. 110–161 amended par. (2) generally. Prior to amendment, par. (2) read as follows:

“(2)(A) The term ‘interested party’, with respect to a contract or a solicitation or other request for offers 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.

“(B) The term includes the official responsible for submitting the Federal agency tender in a public-private competition conducted under Office of Management and Budget Circular A–76 regarding an activity or function of a Federal agency performed by more than 65 full-time equivalent employees of the Federal agency.”

2004—Par. (2). Pub. L. 108–375 designated existing provisions as subpar. (A) and added subpar. (B).

2002—Par. (3). Pub. L. 107–217 substituted “section 102 of title 40” for “section 3 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 472)”.

1996—Pub. L. 104–106, § 4321(d)(1)(A), substituted “subchapter:” for “subchapter—” in introductory provisions.

Par. (2). Pub. L. 104–106, § 4321(d)(1)(B), substituted “or a solicitation or other request for offers” for “or proposed contract”.

1994—Par. (1). Pub. L. 103–355, § 1401(a), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “ ‘protest’ means a written objection by an interested party to a solicitation by a Federal 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;”.

Pub. L. 103–272 substituted “a Federal” for “an Federal”.

Par. (2). Pub. L. 103–355, § 1401(b)(1), inserted “The term” after “(2)” and substituted a period for “; and” at end.

Par. (3). Pub. L. 103–355, § 1401(b)(2), inserted “The term” after “(3)”.

1985—Par. (1). Pub. L. 99–145 substituted “Federal agency” for “executive agency”.

Statutory Notes and Related Subsidiaries

Effective Date of 2009 Amendment

Pub. L. 111–84, div. A, title III, § 327(d), Oct. 28, 2009, 123 Stat. 2255, provided that: “The amendments made by this section [amending this section and section 3554 of this title] shall apply— to any protest or civil action that relates to a public-private competition conducted after the date of the enactment of this Act [Oct. 28, 2009] under Office of Management and Budget Circular A–76, or any successor circular; and to a decision made after the date of the enactment of this Act to convert a function performed by Federal employees to private sector performance without a competition under Office of Management and Budget Circular A–76.”

Effective Date of 2008 Amendment

Par. (2)(B) of this section, as added by Pub. L. 110–181, applicable to a protest or civil action that challenges final selection of the source of performance of an activity or function of a Federal agency made pursuant to a study under OMB Circular A–76 on or after Jan. 1, 2004, and to any other protest or civil action that relates to a public-private competition under Circular A–76 or to a decision to convert a function performed by Federal employees to private sector performance without a competition under Circular A–76, on or after Jan. 28, 2008, see section 326(d) of Pub. L. 110–181, set out as a note under section 1491 of Title 28, Judiciary and Judicial Procedure.

Effective Date of 2007 Amendment

Paragraph (2)(B) of this section applicable to protests and civil actions that challenge final selections of sources of performance of an activity or function of a Federal agency that are made pursuant to studies initiated 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 competitions initiated under Office of Management and Budget Circular A–76, or a decision to convert a function performed by Federal employees to private sector performance without a competition under Office of Management 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 respect 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 authorize the use of a protest under subchapter V of chapter 35 of title 31, United States Code, with regard to a decision made by an agency tender official.”

§3552. Protests by interested parties concerning procurement actions

31 U.S.C. § 3552

(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 interested party. At the request of a majority of the employees of the Federal agency who are engaged in the performance of the activity or function 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 official under paragraph (1) whether or not to file a protest is not subject to administrative or judicial review. An agency tender official shall provide written notification to Congress whenever the official makes a determination under paragraph (1) that there is no reasonable basis for a protest.
Notes, amendments, and revision history

(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 respect to that procurement under this subchapter.”

1994—Pub. L. 103–272 and Pub. L. 103–355 amended section identically, substituting “section 111(f)” for “section 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 initiated 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 official, 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

31 U.S.C. § 3553

(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 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 30 days after 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 20 days after 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)(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 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 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 performance of the contract.
(2)
The contracting officer may withhold an authorization to proceed with performance of the contract during the period described in paragraph (4) if the contracting officer determines in writing that—
(A)
a protest is likely to be filed; and
(B)
the immediate performance of the contract is not in the best interests of the United States.
(3)
(A)
If the Federal agency awarding the contract 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 performance to proceed was not withheld in accordance with paragraph (2) before receipt of the notice, the contracting officer shall 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.
(B)
Performance and related activities suspended pursuant to subparagraph (A)(ii) by reason of a protest may not be resumed while the protest is pending.
(C)
The head of the procuring activity may authorize the performance of the contract (notwithstanding 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 concerning 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 period 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 debriefing date offered to an unsuccessful offeror for any debriefing that is requested and, when requested, is required.
(B)
For procurements conducted by any component of the Department of Defense, the 5-day period described in subparagraph (A)(ii) does not commence until the day the Government delivers to a disappointed offeror the written responses 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 subsections (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 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.
(2)
(A)
The Comptroller General may issue protective orders which establish terms, conditions, and restrictions for the provision of any document to a party under paragraph (1), that prohibit 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 research, development, or commercial information.
(C)
A protective order under this paragraph shall not be considered to authorize the withholding of any document or information from Congress or an executive agency.
(g)
If an interested party files a protest in connection with a public-private competition described in section 3551(2)(B) of this title, a person representing a majority of the employees of the Federal agency who are engaged in the performance of the activity or function subject to the public-private competition may intervene in protest.
Notes, amendments, and revision history

(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 existing 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), substituted “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), substituted “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 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.”

Subsec. (f). Pub. L. 103–355, § 1403(c), designated existing 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 initiated 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 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 official, see section 326(e) of Pub. L. 108–375, set out as a note under section 3551 of this title.