United States Postal Service

Protest Regulations

Extracted from Chapter 3 of the

United States Postal Service Purchasing Manual

(Issue 1, January 31, 1997)

Extract from the transmittal letter to the Purchasing Manual:

Issuance Date/Effective Date/Transition Period. The [Purchasing Manual (PM)] is being issued on January 31, 1997. Pending the revision and updating of purchasing support systems for consistency with this manual, purchasing organizations may adopt the policies and procedures contained herein immediately, or may follow the policies and procedures contained in the last edition of the Publication 41, Procurement Manual (Transmittal Letter 8, July 12, 1995). The Vice-President, Purchasing and Materials, will announce the end of the transition period by notice in the Postal Bulletin.

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The protest regulations contained in 3.6 of this PM will apply to any protest received after the PM’s issuance.

Text of Purchasing Manual 3.6

3.6 Protests

3.6.1 Applicability

This section applies to all protests against Postal Service contracting procedures and awards, including special categories of contracts described in other chapters of this manual. The General Accounting Office (Comptroller General) does not have jurisdiction to consider protests arising out of Postal Service contracting practices.

3.6.2 Definitions

3.6.2.a. Interested party. An actual or prospective offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.

3.6.2 b. Protest. A written objection by any interested party concerning the terms of a solicitation, the award or proposed award of a contract, or any other action relating to the solicitation or award of a contract.

3.6.2.c. General Counsel. The Senior Counsel, Contract Protests and Policies, has been designated as the General Counsel's representative to consider and decide protests and to take any other action that this section requires to be done by the General Counsel.

3.6.2.d. Days. Calendar days. However, any time period will run until a day which is not a Saturday, Sunday, or legal holiday.

3.6.3 Submission

3.6.3.a. A protest must be in writing and delivered to the contracting officer or the General Counsel. It must identify the solicitation or contract protested, and, preferably, the name of the contracting officer and the office responsible for it. The protest must set forth a detailed statement of its legal and factual grounds, including copies of relevant documents, all information establishing that the protester is an interested party, and establishing the timeliness of the protest. Mere statement of intent to protest is not a protest.

3.6.3.b. An initial protest sent both to the contracting officer and to the General Counsel will be considered to have been addressed to the primary addressee. For example, a protest addressed to the contracting officer which indicates that a copy is being furnished to the General Counsel is for consideration by the contracting officer under 3.6.6 below. If the primary addressee cannot be determined, the protest will be considered to be intended for the General Counsel, and will be handled under 3.6.7 below.

3.6.4 Timeliness

3.6.4.a. The Postal Service intends to complete its purchasing actions in a timely fashion while ensuring fair treatment to firms and individuals. A protester must submit any protest in a manner that will ensure its timely receipt. Protests received by the contracting officer or the General Counsel after the time limits prescribed by this section 3.6.4 will not be considered.

3.6.4.b. Protests based upon alleged improprieties in a solicitation that are apparent before the date set for the receipt of initial proposals must be received before the time set for the receipt of proposals.

3.6.4.c. Protests of alleged improprieties which do not exist in the initial solicitation but which are subsequently incorporated into the solicitation must be protested not later than the next closing time for receipt of proposals following the incorporation.

3.6.4.d. In all cases other than those covered by b. and c. above, protests by a protester that has received a debriefing shall be received not later than 10 days after the debriefing. In all other cases, the protest shall be received not later than 10 days after the basis of protest is known or should have been known, whichever is earlier. No protest other than one by a protester that has received a timely requested debriefing (see 4.2.8.a) will be considered if received more than 15 days after award of the contract in question.

3.6.4.e. If the contracting officer finds a protest submitted initially to the contracting officer to be obviously without merit, any subsequent protest to the General Counsel received within 5 days of the protester's actual or constructive knowledge of initial adverse action by the contracting officer will be considered if the initial protest was received in accordance with the time limits in paragraphs b. through d. above.

3.6.5 Contract Award

3.6.5.a. When a timely protest has been received by either the contracting officer or the General Counsel before contract award, award may not be made until the matter has been resolved, unless the VP, P&M, after consulting with counsel, determines that urgent and compelling circumstances which significantly affect interests of the United States Postal Service will not permit waiting for the decision. When authorized to make an award before a protest is resolved, the contracting officer must, at the time of or before the award, give notification of the award to the protester, any other commenting parties, and, if the protest is before the General Counsel, the General Counsel.

3.6.5.b. When a protest received after award is eligible for consideration under this section 3.6, the contracting officer must immediately furnish to the contractor a notice of the protest and the basis for it. The contracting officer, with the advice of assigned counsel, must determine whether it would be in the interest of the Postal Service to allow the contractor to proceed, seek a mutual agreement with the contractor to suspend performance on a no-cost basis, issue a unilateral stop-work order, or take other appropriate action.

3.6.6 Protests Received by Contracting Officers

3.6.6.a. Contracting officers must consider all timely protests received, except any that are being considered by the General Counsel in accordance with 3.6.3.b. The protester must be notified in writing of the contracting officer's decision.

3.6.6.b. A contracting officer's decision on a protest must be issued within 10 days after receipt of the protest. If a contracting officer determines that a protest is obviously meritorious, the contracting officer may take such action as is appropriate.

3.6.6.c. 1. The contracting officer, if unable to conclude that a protest is obviously meritorious, may, within 10 days after its receipt:

(a) Refer the protest to the General Counsel for resolution in accordance with 3.6.7 below; or

(b) With the concurrence of assigned counsel, determine that the protest is obviously without merit and advise the protester in writing accordingly.

2. The receipt of any protest is an occasion for the contracting officer to consider seriously the correctness of the purchasing action involved in the protest, with respect not only to the matters raised by the protester, but also with respect to other matters apparent from the contract file. Contracting officers shall fully and fairly consider all protests received from the standpoint of the protester as well as from the standpoint of the Postal Service. That a protest may be subject to dismissal or denial on procedural or other grounds which do not involve its merits does not relieve the contracting officer of the responsibility of documenting the bases for purchasing actions, including those that are the subject of the protest.

3.6.7 Protests Received by the General Counsel

3.6.7.a. Promptly after receiving a protest, the General Counsel notifies the contracting officer of its receipt and, unless a copy has been furnished, sends the contracting officer a copy of the protest together with any accompanying documents other than those already in the contract file. Additional statements or documents received by the General Counsel in the course of the protest are furnished to the contracting officer unless it appears that the contracting officer previously has been furnished them. The General Counsel's notification may identify issues apparently raised by the protest, matters presented by the protest which particularly require the contracting officer's response, and regulatory provisions or protest decisions possibly relevant to the protest.

3.6.7.b. Within 7 days after referring a protest to the General Counsel or receipt of notification that a protest has been received by the General Counsel, the contracting officer must:

1. In the case of a protest against the terms of a solicitation, notify the known prospective offerors that a protest has been received and provide them with a copy of it; and,

2. In case of any other protest, notify the offerors that might be affected that the protest has been received and provide them with a copy of it (see also d. 1).

3.6.7.c. The notices to the offerors must state that they may, if they wish, participate in the protest, submitting their opinions and relevant information on the protest if, within 5 days of receipt of the notice, they advise the General Counsel (with a copy to the contracting officer) of their intention to do so. Upon advice that an offeror intends to participate in a protest, the contracting officer must provide it with the contracting officer's statement on the protest and the documents necessary to the statement's understanding.

3.6.7.d. Material submitted by a protester, any other party, or the contracting officer will not be withheld from any other party in the protest except as provided herein:

1. A protester or any other party may redact from the circulation copies of its submissions trade secrets, confidential information, and other information for which a privilege is claimed, provided that the redacted copy is furnished contemporaneously with or no later than one day after its unredacted submission. If, because of such a claim or for other reasons, copies of a protester's unredacted submission cannot be furnished to affected offerors, the redacted version may be furnished instead.

2. The contracting officer shall redact privileged material (including supplier-selection sensitive material and other information the release of which could result in a competitive advantage to a supplier or suppliers) from the copies of the contracting officer's statement and the documents accompanying it furnished to the protester or to other parties (see e. and g., below). Redacted and unredacted versions shall be furnished to the General Counsel simultaneously.

3. The General Counsel may require the contracting officer, a protester, or any other party to justify their redactions. In the case of the contracting officer's submissions, if, in the General Counsel's judgment, the redactions are insufficiently justified, the General Counsel may disallow the redactions and direct the distribution of the documents without the unjustified redactions. When a protester or party is unable adequately to justify challenged redactions, the General Counsel may give the redacted submission appropriately diminished weight.

4. The General Counsel will review in camera all information submitted under a claim of privilege.

3.6.7.e. Within 30 days of referring a protest to or receiving the initial notification of a protest from the General Counsel, the contracting officer must send the General Counsel a report that includes:

1. The contracting officer's statement of the circumstances relevant to the protest, including specific responses to each allegation in the protest and the contracting officer's findings, determinations, and conclusions; and

2. Copies (unless the General Counsel has specifically requested the originals) of any documents relevant to the protest, including any of the following that may be applicable:

(a) The solicitation (including the specification or its relevant parts);

(b) The proposal submitted by the protester and the proposal against which the protest is directed;

(c) The evaluation of proposals; and

(d) Any other documents, statements, or materials necessary to determine whether the protest is valid.

3. In a case in which the protester has requested specific documents, the contracting officer shall provide to all parties and the General Counsel a list of those documents or portions of documents that have been furnished to the protester or included as information accompanying the contracting officer's statement, and those documents which the contracting officer intends to withhold from the protester and the reason for the proposed withholding.

3.6.7.f. The contracting officer should seek the assistance of assigned counsel in preparing the statement and report.

3.6.7.g. Concurrent with furnishing the report to the General Counsel, the contracting officer must furnish a copy of the statement (e.1., above) and copies of any other documentation contained in the report necessary to a full and clear understanding of the issues to the protester and any party who has indicated a desire to comment on the protest. When the protester or the party indicates that it is represented by counsel, a copy of the statement must be provided to that counsel. The contracting officer must include in the material furnished to the General Counsel a statement that this distribution has been made and must identify the parties to which the statement and its related documents have been sent.

3.6.7.h. The protester or any participant may submit comments on the contracting officer's statement. Such comments will be considered timely if received within 10 days of the commenter's receipt of the statement. Any rebuttal to any such comments a protester, other participant, or the contracting officer may care to make will be considered if received within 10 days after the party's receipt of the comments to which the rebuttal is directed. The failure of a party to comply with these time limits may result in resolution of the protest without consideration of the untimely comments.

3.6.7.i. When it is necessary to obtain a clear understanding of the protest, the General Counsel may request or permit the submission of additional statements by the parties. The contracting officer and other participating parties shall not submit statements in addition to those allowed by h., above, and j., below, unless they have been specifically requested by the General Counsel or permission has been granted by the General Counsel. Contracting officers must respond to the General Counsel's requests within 10 days and must distribute copies of such responses in the manner indicated in paragraph g. above.

3.6.7.j. The protester, any other party, or the contracting officer may request a conference with the General Counsel in connection with any protest under consideration by the General Counsel. The requests must be received within the time allowed for commenting on the contracting officer's statement. When more than one conference is requested, they will be held separately. The requester of a conference must provide a submission for the record summarizing the substance of its comments in the course of the conference, which must be received within 5 days after the conference.

3.6.7.k. If the time for acceptance of proposals might expire before a protest will be resolved by the General Counsel, the contracting officer should request an extension of the time for acceptance of proposals from each offeror whose proposal may be eligible for acceptance.

3.6.7.l. The General Counsel has established a goal of 21 days after receipt of all information submitted by all parties and the conclusion of all conferences for issuing a decision on a protest.

3.6.7.m. The General Counsel's decision on a protest disposes of the matter. Copies of the General Counsel's decision must be furnished to the contracting officer, the protester, and any other participant in the protest. A file of all protest decisions is maintained in the Postal Service Library, and decisions from 1987 to the present are available on the Internet at www.usps.gov/protestdecisions/welcome.htm..

3.6.7.n. The protester, any participant that submitted comments on the protest, or the contracting officer may request reconsideration of a protest decision. The request for reconsideration must contain a detailed statement of the factual and legal grounds upon which reversal or modification is deemed warranted, specifying any errors of law made or information not considered. A request for reconsideration of a decision must be received by the General Counsel not later than 10 days after the basis for reconsideration is known or should have been known, whichever is earlier, but in no case more than 20 days after the issuance of the protest decision.

3.6.7.o. The General Counsel may decline to decide any protest when the matter involved is the subject of litigation in any court of competent jurisdiction or has been decided on the merits in such a court. The foregoing does not apply when the court requests, expects, or otherwise expresses interest in the General Counsel's decision.

3.6.7.p. Notwithstanding any other provision of this section, when a protest is clearly without legal merit or is not reviewable by the General Counsel under these procedures, the General Counsel may summarily deny or dismiss a protest without a report from the contracting officer. When the propriety of summary denial or dismissal becomes clear only after information is provided by the contracting officer or otherwise obtained by the General Counsel, the protest may be denied or dismissed at that time.