GSBCA Rules 10 and 15-48 CFR 6101.10 and 6101.15).

§ 201-32.403-3 Suspension decision.

(a) Upon request of an interested party, the GSBCA is authorized (40 U.S.C. 759(f)(2)(b)) to suspend procurement authority unless the Federal procuring agency establishes (at the suspension hearing held within 10 calendar days after the protest is filed) that: (See GSBCA Rules 19 and 21-48 CFR 6101.19 and 6101.21.)

(1) Absent GSBCA action, contract award (if not already made) is likely to occur within 10 calendar days; and

(2) Urgent and compelling circumstances which significantly affect interests of the United States will not permit waiting for the GSBCA decision.

(b) The GSBCA suspension decision may be oral, to be reduced to writing as soon as practicable.

(c) Upon a GSBCA decision to suspend procurement authority pending a decision on the merits of a protest, the Federal procuring agency is responsible for taking any necessary actions to fully comply with the GSBCA's suspension decision including, as appropriate:

(1) Withholding contract award; or (2) Suspending contract performance. (Under 40 U.S.C. 759(f)(3)(B), procurement authority shall be suspended for any ADP resources under a contract which are not previously delivered and accepted before the GSBCA suspension decision.)

[FIRMR Amdt. 8, 52 FR 10379, Apr. 1, 1987; 52 FR 13173, Apr. 21, 1987]

§ 201-32.403-4 Protest file.

(a) The Federal agency contracting officer is responsible for submitting a protest file to the GSBCA within 10 working days after the protest is filed. The protest file exhibits shall consist of all documents (and other tangible things) relevant to the protest and the contracting officer's decision which has been protested. The GSBCA may postpone or dispense with the submission of any or all protest file exhibits (see GSBCA Rules 4 and 12-48 CFR 6101.4 and 6101.12).

(b) The protest file exhibits shall include:

(1) The contracting officer's decision, if any, from which the protest is taken;

(2) The contract, if any, including modifications, specifications, plans, drawings;

(3) All correspondence between or among the parties that is relevant to the protest, if any;

(4) Affidavits or statements of any witnesses on the matter under protest, and transcripts of any testimony taken before the filing of the protest;

(5) All documents and other tangible things which the contracting officer relied in making the decision or in taking the action protested, including a copy of the agency procurement request, the GSA delegation of procurement authority (if any) and any correspondence relating thereto;

(6) The abstract of bids, if any;

(7) A copy of the solicitation, protester's offer (submit in camera as necessary), and a copy of any bid relevant to the protest if bid opening has occurred and no contract has been awarded;

(8) In a protest of a negotiated procurement when no award has been made, a copy of any offer being considered for award and which is relevant to the protest (ordinarily, these documents will be submitted in camera);

(9) Any existing additional evidence or information deemed necessary to determine the merits of the protest; and

(10) A list identifying the specific documents filed with the GSBCA giving sufficient details necessary for their recognition. (However, the list must not reveal the number and identity of the offerors whose proposals are filed in camera and should include an identifying statement, e.g., "Proposal(s) being considered for award.")

(c) The contracting officer is responsible for serving a copy of the protest file on all other parties at the same time it is filed with the GSBCA. A copy of the protest file exhibit listing documents filed with the GSBCA shall be included. However, copies of documents submitted in camera to the GSBCA or documents previously fur

nished need not be served on other parties.

8 201-32.403-5 Protest answer.

The Federal procuring agency is also responsible for filing its agency protest answer with the GSBCA within 15 working days after the protest is filed. The protest answer shall contain the agency's defenses, findings, actions, and recommendations in the matter. At the same time, the Federal agency shall serve a copy of the protest answer on all other parties (see GSBCA Rule 7-48 CFR 6101.7).

§ 201-32.403-6 Merits hearing participation.

The Federal procuring agency is responsible for participating in any hearing on the merits of a protest held within 25 working days after the protest is filed (see GSBCA Rules 9, 19 and 21-48 CFR 6101.9, 6101.19, and 6101.21).

§ 201-32.403-7 Merits decision.

(a) The Federal procuring agency will receive a copy of the GSBCA decision on the merits of the protest. This decision will ordinarily be issued within 45 working days after the protest is filed (see GSBCA Rule 29-48 CFR 6101.29).

(b) The Federal procuring agency is responsible for taking any necessary actions to fully comply with the GSBCA decision including, as appropriate:

(1) Amendment or cancellation of a solicitation; or

(2) Modification or termination of a contract. (Under 40 U.S.C. 759(f)(6)(B), a contract shall be presumed valid as to all ADP resources delivered and accepted under the contract before the GSBCA decision.)

§201-32.403-8 Costs award.

(a) The GSBCA is authorized (40 U.S.C. 759(f)(5)) to award protest costs to an appropriate interested party. Within 30 calendar days after a decision sustaining a protest, an interested party may submit a motion for payment to the GSBCA. The Federal procuring agency will have 20 calendar days after this submission for a re

sponse (see GSBCA Rules 35 and 3648 CFR 6101.35 and 6101.36).

(b) The GSBCA will issue its determination for the amount of protest costs allowed. Payment of these GSBCA awards may be made in accordance with 31 U.S.C. 1304.

§ 201-32.404 GSA participation.

(a) GSA may make a request to the GSBCA to participate in a protest case against any Federal procuring agency. GSA is eligible to intervene on the question of whether a delegation of procurement authority (DPA) is required, or whether the Federal procuring agency has failed to meet any condition of a DPA granted by specific request or by regulation (see GSBCA Rule 5-48 CFR 6101.5).

(b) When GSA procures ADP resources for another Federal agency, the requiring agency may be permitted by the GSBCA to participate in a protest case against that GSA procurement action.

(c) Information and asistance regarding the GSBCA ADP protest process covered by this Subpart 201-32.4 may be obtained by contacting GSA's Information Resources Management Service (KMA), Washington, DC 20405, telephone (202) 566-1126 or FTS, 566-1126.

of

201-33.011-2 Withdrawal of reports of excess or exchange/sale ADPE. 201-33.011-3 Corrections to reports excess or exchange/sale ADPE. 201-33.011-4 Annual reporting requirements.

201-33.012 Reuse of outdated ADPE.

AUTHORITY: Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c) and sec. 101(f), 100 Stat. 1783345, 40 U.S.C. 751(f).

SOURCE: FIRMR Amdt. 1, 50 FR 4384, Jan. 30, 1985, unless otherwise noted.

EDITORIAL NOTE: Nomenclature changes to Part 201-33 appear at 54 FR 2126, Jan. 19, 1989.

quickly. GSA's reuse program recognizes the fact that less costly ADPE is becoming obsolete at a faster rate than more costly ADPE.

[FIRMR Amdt. 15, 54 FR 2126, Jan. 19, 1989]

§ 201-33.001 Policy.

Federal agencies shall make available for intra-agency or interagency screening all ADPE that is no longer needed for the purpose for which it was acquired. Federal agencies shall screen used Government ADPE to determine whether it can satisfy their ADP requirements in an efficient and effective manner. The following additional policies apply to the screening of Government ADPE.

(a) When no longer required, outdated ADPE shall not be reassigned or screened for reuse within the Federal Government. This equipment shall be disposed of in the same manner as all other surplus property unless (1) a study has shown that the outdated ADPE represents the lowest overall cost solution to a requirement, or (2) the ADPE is part of an exchange/sale transaction.

(b) ADPE components that are not outdated and have an OAC of less than $1,000,000 shall be screened for reassignment only within, the holding agency. Any such components that cannot be reassigned shall be reported for disposal in the same manner as other surplus or exchange/sale property. Agencies shall establish internal procedures to accomplish intra-agency screening. Agency procedures shall include the requirements of §§ 20133.002, 201-33.003-2, and 201-33.010. Interagency transfers of ADPE with an OAC of $1,000,000 or less are permitted if the holding agency learns of a potential user outside the screening process.

(c) ADPE components that are not outdated and have an OAC of $1,000,000 or more shall be reported to GSA for interagency screening.

(d) In special circumstances, agencies may recommend that GSA (KMAS) screen on an interagency basis ADPE components that are not outdated and have an OAC of less than $1,000,000.

[FIRMR Amdt. 15, 54 FR 2126, Jan. 19, 1989]

§ 201-33.001-1 Applicability.

(a) Further provisions of this Part 201-33 pertain only to used ADPE components with an OAC of $1,000,000 or more and apply to all Federal agencies. Sction 201-33.012 pertains to outdated ADPE while the remaining sections pertain to ADPE that is not outdated.

(b) Agencies shall apply the provisions of this part to their grantees and contractors who operate ADP equipment under grants, contracts, or subcontracts, when the ADP equipment is

(1) Leased and the total cost of leasing is reimbursed under one or more Government contracts or grants;

(2) Acquired by a contractor or grantee under a contract or grant under the terms of which title is either vested in the Government or the Government is obligated or has the option to take over title;

(3) Furnished to the grantee or contractor by the Government; or

(4) Operated by the grantee or contractor as part of a Governmentowned or -controlled facility.

[FIRMR Amdt. 15, 54 FR 2126, Jan. 19, 1989]

§ 201-33.002 Reassignment of ADPE within Federal agencies.

(a) Government-owned ADPE not declared excess shall be reassigned within the agency when it is no longer required for the purpose for which it was acquired and the agency has another approved requirement which can best or most economically be met by reassigning this ADPE. When Government-owned ADPE can be substituted for ADPE intended to be acquired by lease or purchase or when Government-owned ADPE can be adapted for other further use, the intended acquisition action shall be stopped. Title transfer (under the authority of FPMR Part 101-46) between such owned ADPE and leased ADPE shall be considered as a means of reducing rental payments. ADPE shall be reassigned as specified in § 20133.003-2.

(b) The reassignment of Government-leased ADPE when it is no longer required for the purpose and use for which it was originally acquired is in the nature of a procurement and subject to the applicable laws and regulations governing procurement by Federal agencies.

(c) When there is no approved requirement for ADPE within the agency and ADPE is determined to be excess, this ADPE shall be reported to GSA as specified in § 201-33.011.

(d) Reassignment of ADPE to Federal agency grantees shall not be made until Federal requirements are determined in accordance with this Part 201-33.

(e) The use of ADPE for maintenance by redundancy (backup) or cannibalization for a parts source of supply shall not be made until Federal requirements are determined in accordance with this Part 201-33.

[FIRMR Amdt. 1, 50 FR 4384, Jan. 30, 1985, as amended by FIRMR Amdt. 15, 54 FR 2127, Jan. 19, 1989]

Federal agencies shall determine whether their ADP requirements can be efficiently and economically satisfied by using excess or exchange/sale ADPE. Agency procedures shall include screening of availability lists for ADPE. To obtain maximum reutilization and to minimize the procurement of new ADPE, excess and exchange/ sale ADPE shall be made available for transfer to other Federal agencies in accordance with the provisions of this Part 201-33. Any need for excess ADPE expressed by a Federal agency, including the Senate, the House of Representatives, the Architect of the Capitol and any activities under the Architect's direction, the District of Columbia, and mixed-ownership Government corporations, shall take precedence over disposal, provided such a need is made known to GSA prior to shipment or delivery in case of donation or prior to removal of the property from Government control in case of sale. Outdated ADPE will not be offered for agency screening. The reuse

§ 201-33.003-2 Considerations for use of excess Government-owned or leased ADPE.

A procurement solicitation to acquire ADPE by purchase or lease shall not be initiated until it is first determined and appropriately documented that the requirement cannot be met economically and efficiently by sharing ADPE already installed (see Part 201-31) or by utilizing excess Government-owned or leased ADPE advertised in ADPE availability lists published by GSA.

(a) Excess ADPE shall be considered at all times as a replacement for installed leased ADPE or meeting new requirements if the excess owned ADPE has the capability to fulfill the systems specifications and its overall costs in terms of acquisition represent the least overall cost to the Government. The reutilization of excess Government-owned ADPE is not a procurement action and therefore is not subject to the laws and regulations governing procurement by Federal agencies.

Government-owned

(1) When a contract has been awarded or a purchase/delivery order placed against an applicable ADP Schedule contract for ADPE and similar owned excess ADPE becomes available, consideration shall be given to terminating the contract or purchase/delivery order for the convenience of the Government. An evaluation of termination charges, if any, shall be made in addi

tion to the other considerations indicated in this § 201-33.003-2.

(2) To obtain maximum economic advantage to the Government, reutilization of excess owned ADPE to satisfy requirements generally shall be considered in the following priority order:

(i) To replace leased ADPE that is identical or functionally compatible;

(ii) To avoid procurement of new ADPE that is identical or functionally compatible;

(iii) To modify Government-owned ADPE to make it identical or functionally compatible;

(iv) To provide maintenance by redundancy; i.e., backup for installed ADPE; and

́(v) To cannibalize in order to have a parts source of supply for maintenance. In instances where maintenance support has been discontinued or significantly curtailed, reuse priority may be given to agencies seeking to support their installed base.

(b) The reutilization of excess leased ADPE is in the nature of a procurement and subject to the applicable laws and regulations governing procurement by Federal agencies.

(c) Since excess leased ADPE accrues substantial purchase option credits, agencies shall consider this equipment as a replacement for installed leased ADPE which has accrued fewer credits to the Government.

(d) When competing requirements exist for excess ADPE, GSA will determine the assignment of such ADPE to any agency on the basis of the greatest economic advantage to the Government.

[FIRMR Amdt. 1, 50 FR 4384, Jan. 30, 1985, as amended by FIRMR Amdt. 15, 54 FR 2127, Jan. 19, 1989]

§ 201-33.003-3 Reporting excess or exchange/sale ADPE.

Upon determination by a Federal agency that Government-owned or leased ADPE is excess to its needs or Government-owned ADPE will be replaced pursuant to the exchange/sale authority of FPMR Part 101-46, this information shall be reported as set forth in § 201-33.011.