(a) General procedures. The contracting officer must take the action required of the “agency” in FAR 33.104.
(4)(S-90)
(1) Contracting offices must use the following reporting procedures, except that the PARC may require the report to be sent through the PARC’s office:
(i) Contracting offices reporting to AMC must send the report directly to the addressee in 5101.290(b) (9).
(ii) Contracting offices reporting directly to the USACE must send the report directly to the following address: U.S. Army Corps of Engineers, Attn: CECC-C, 441 G St., N.W., Washington, DC 20314-1000. [AFARS Revision #004, dated July 26, 2002]
(iii) All other Army contracting offices must send the report via courier or express mail service to the U.S. Army Contract and Fiscal Law Division, Attn: JALS-KFLC, 901 N. Stuart Street, Suite 500, Arlington, VA 22203-1837.
(iv) The report must be sent not later than 20 days after the GAO notifies the agency by telephone that a protest has been filed. If the GAO decides to use the express option and the contracting officer concludes that the report cannot be furnished in time, he/she must notify the appropriate office in (i)-(iii) at once so that it may request an extension from GAO.
(2) Before forwarding the report to the GAO Comptroller General, the addressees in 5133.104(a)(4)(S-90)(1)(i)-(iii) must review the report and recommend any changes required to ensure that the report is accurate, complete, and legally sufficient.
[AFARS Revision #21, dated May 22, 2007]
(b) Protests before award.
(1) (A) When it is necessary to request authorization to award a contract notwithstanding a protest, the contracting officer must prepare a determination and findings (D&F) to be signed by the HCA. The D&F must clearly explain the damage the United States will suffer if award is not authorized and the damages the United States will suffer if the award is made and the protest is sustained. However, no award can be made or selection announced prior to approval by the Deputy Assistant Secretary of the Army (Procurement) (DASA(P)), except for contracting offices reporting to AMC, when the approval may be granted by the Command Counsel, AMC. The contracting officer must also prepare a request for approval that identifies all protest issues and addresses the merits and expected resolution of the protest. Include details of any Congressional interest in the protest. After legal review, forward the request with the D&F to the HCA.
(B) Within three days after the contracting office is notified of the protest, the HCA will endorse the request for approval and electronically transmit the request and the D&F to the appropriate office in 5133.104(a)(4)(S-90)(1)(i)-(iii). That office shall immediately distribute the request and the D&F to the addressee in 5101.290(b)(1) and to Department of the Army, Attn: SAGC, General Counsel, 104 Army Pentagon, Washington DC 20310-0104.
[AFARS Revision #21, dated May 22, 2007]
(c) Protests after award.
(2) Process the finding as required at (b), Protests before award. The D&F must explain the damage the United States will suffer if continuing performance is not authorized and the damages the United States will suffer if continuing performance is authorized and the protest is sustained. Continuing performance cannot be authorized prior to approval by the DASA (P), except for contracting offices reporting to AMC, when the approval may be granted by the Command Counsel, AMC. Process the request for approval as required in (b).
(g) Notice to GAO. Send the report to the addressee in 5101.290(b)(1) not later than 45 days after receipt of the recommendations.
