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(B) if the Federal agency does not make such payment, promptly report to the Comptroller General the reasons for the failure to follow the Comptroller General's recommendation.
(4) If the Comptroller General recommends under paragraph (1) that a Federal agency pay costs to an interested party, the Federal agency and the interested party shall attempt to reach an agreement on the amount of the costs to be paid. If the Federal agency and the interested party are unable to agree on the amount to be paid, the Comptroller General may, upon the request of the interested party, recommend to the Federal agency the amount of the costs that the Federal agency should pay.
(d) Each decision of the Comptroller General under this subchapter shall be signed by the Comptroller General or a designee for that purpose. A copy of the decision shall be made available to the interested parties, the head of the procuring activity responsible for the solicitation, proposed award, or award of the contract, and the senior procurement executive of the Federal agency involved.
(e)(1) The Comptroller General shall report promptly to the Committee on Governmental Affairs and the Committee on Appropriations of the Senate and to the Committee on Government Reform and Oversight and the Committee on Appropriations of the House of Representatives any case in which a Federal agency fails to implement fully a recommendation of the Comptroller General under subsection (b) or (c). The report shall include
(A) a comprehensive review of the pertinent procurement, including the circumstances of the failure of the Federal cy to implement a recommendation of the Comptroller General; and
(B) a recommendation regarding whether, in order to correct an inequity or to preserve the integrity of the procurement process, the Congress should consider
(i) private relief legislation;
(iv) other action. (2) Not later than January 31 of each year, the Comptroller General shall transmit to the Congress a report containing a summary of each instance in which a Federal agency did not fully implement a recommendation of the Comptroller General under subsection (b) or (c) during the preceding year. The report shall also describe each instance in which a final decision in a protest was not rendered within 100 days after the date the protest is submitted to the Comptroller General. $ 3555. Regulations; authority of Comptroller General to
verify assertions (a) The Comptroller General shall prescribe such procedures as may be necessary to the expeditious decision of protests under this subchapter, including procedures for accelerated resolution of protests under the express option authorized by section 3554(a)(2) of this title. Such procedures shall provide that the protest process may not be delayed by the failure of a party to make a filing within the time provided for the filing.
(b) The procedures shall provide that, in the computation of any period described in this subchapter
(1) the day of the act, event, or default from which the designated period of time begins to run not be included; and
(2) the last day after such act, event, or default be included, unless
(A) such last day is a Saturday, a Sunday, or a legal holiday; or
(B) in the case of a filing of a paper at the General Accounting Office or a Federal agency, such last day is a day on which weather or other conditions cause the closing of the General Accounting Office or Federal agency, in which event the next day that is not a Saturday, Sunday, or legal
holiday shall be included. (c) The Comptroller General may prescribe procedures for the electronic filing and dissemination of documents and information required under this subchapter. In prescribing such procedures, the Comptroller General shall consider the ability of all parties to achieve electronic access to such documents and records.
(d) The Comptroller General may use any authority available under chapter 7 of this title and this chapter to verify assertions made by parties in protests under this subchapter. $ 3556. Nonexclusivity of remedies; matters included in
agency record This subchapter does not give the Comptroller General exclusive jurisdiction over protests, 8 and nothing contained in this subchapter shall affect the right of any interested party to file a protest with the contracting agency or to file an action in a district court of the United States 9 or the United States Claims Court 10. In any such action based on a procurement or proposed procurement with respect to which a protest has been filed under this subchapter, the reports required by sections 3553(b)(2) and 3554(e)(1) of this title with respect to such procurement or proposed procurement and any decision or recommendation of the Comptroller General under this subchapter with respect to such procurement or proposed procurement shall be considered to be part of the agency record subject to review.
8 Section 1491(b) of title 28, United States Code (as added by section 12(a) of the Administrative Dispute Resolution Act of 1996, P.L. 104–320) provides:
(b)(1) Both the Unites [so in law] States Court of Federal Claims and the district courts of the United States shall have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement. Both the United States Court of Federal Claims and the district courts of the United States shall have jurisdiction to entertain such an action without regard to whether suit is instituted before or after the contract is awarded.
(2) To afford relief in such an action, the courts may award any relief that the court considers proper, including declaratory and injunctive relief except that any monetary relief shall be limited to bid preparation and proposal costs.
(3) In exercising jurisdiction under this subsection, the courts shall give due regard to the interests of national defense and national security and the need for expeditious resolution of the action.
(4) In any action under this subsection, the courts shall review the agency's decision pursuant to the standards set forth in section 706 of title 5.
Subsections (d) and (e) of section 12 of the Administrative Dispute Resolution Act of 1996 (P.L. 104–320; 110 Stat. 3875) provide:
(d) SUNSET.—The jurisdiction of the district courts of the United States over the actions described in section 1491(b)(1) of title 28, United States Code (as amended by subsection (a) of this section) shall terminate on January 1, 2001 unless extended by Congress. The savings provisions in subsection (e) shall apply if the bid protest jurisdiction of the district courts of the United States terminates under this subsection. (e) SAVINGS PROVISIONS.—
(1) ORDERS.-A termination under subsection (d) shall not terminate the effectiveness of orders that have been issued by a court in connection with an action within the jurisdiction of that court on or before December 31, 2000. Such orders shall continue in effect according to their terms until modified, terminated, superseded, set aside, or revoked by a court of competent jurisdiction or by operation of law.
(2) PROCEEDINGS AND APPLICATIONS.—(A) a termination under subsection (d) shall not affect the jurisdiction of a court of the United States to continue with any proceeding that is pending before the court on December 31, 2000.
(B) Orders may be issued in any such proceeding, appeals may be taken therefrom, and payments may be made pursuant to such orders, as if such termination had not occurred. could have been discontinued or modified absent such termination. 9 Pursuant to section 12(f) of the Administrative Dispute Resolụtion Act of 1996 (P.L. 104 320), the first sentence of section 3556 is amended by striking out “a court of the United States or” in the event that the bid protest jurisdiction of the district courts of the United States is terminated pursuant to section 12(d) of that Act (see footnote on preceding page). The intent is probably to strike out the words “a district court of the United States or”.
SUBCHAPTER VI-RECOVERY AUDITS 11 § 3561. Identification of errors made by executive agencies in payments to
to contractors and recovery of amounts erroneously paid (a) PROGRAM REQUIRED.—The head of each executive agency that enters into contracts with a total value in excess of $500,000,000 in a fiscal year shall carry out a cost-effective program for identifying any errors made in paying the contractors and for recovering any amounts erroneously paid to the contractors.
(b) RECOVERY AUDITS AND ACTIVITIES.-A program of an executive agency under subsection (a) shall include recovery audits and recovery activities. The head of the executive agency shall determine, in accordance with guidance provided under subsection (c), the classes of contracts to which recovery audits and recovery activities are appropriately applied.
(c) OMB GUIDANCE.-The Director of the Office of Management and Budget shall issue guidance for the conduct of programs under subsection (a). The guidance shall include the following:
(1) Definitions of the terms "recovery audit” and “recovery activity” for the purposes of the programs.
An order issued in any such proceeding shall continue in effect until modified, terminated, superseded, set aside, or revoked by a court of competent jurisdiction or by operation of law.
(C) Nothing in this paragraph prohibits the discontinuance or modification of proceeding under the same terms and conditions and to the same extent that proceeding
10 Pursuant to section 902(b)(1) of the Court of Federal Claims Technical and Procedural Improvements Act of 1992 (P.L. 102–572), the reference to the United States Claims Court in section 3556 is deemed to be a reference to the United States Court of Federal Claims.
11 Section 831(b) of the National Defense Authorization Act for Fiscal Year 2002 (P.L. 107– 107; 115 Stat. 1188) provides:
(b) REPORTS.—(1) Not later than 30 months after the date of the enactment of this Act (December 28, 2001), and annually for each of the first two years following the year of the first report, the Director of the Office of Management and Budget shall submit to the Committee on Government Reform of the House of Representatives and the Committee on Governmental Affairs of the Senate, a report on the implementation of subchapter VI of chapter 35 of title 31, United States Code (as added by subsection (a)). (2) Each report shall include
(A) a general description and evaluation of the steps taken by the heads of executive agencies to carry out the programs under such subchapter, including any management improvement programs carried out under section 3564 of such title 31;
(B) the costs incurred by executive agencies to carry out the programs under such subchapter; and
(C) the amounts recovered under the programs under such subchapter.
(2) The classes of contracts to which recovery audits and recovery activities are appropriately applied under the programs. (3) Protections for the confidentiality of
(A) sensitive financial information that has not been released for use by the general public; and
(B) information that could be used to identify a person. (4) Policies and procedures for ensuring that the implementation of the programs does not result in duplicative audits of contractor records.
(5) Policies regarding the types of contracts executive agencies may use for the procurement of recovery services, including guidance for use, in appropriate circumstances, of a contingency contract pursuant to which the head of an executive agency may pay a contractor an amount equal to a percentage of the total amount collected for the United States pursuant to that contract.
(6) Protections for a contractor's records and facilities through restrictions on the authority of a contractor under a contract for the procurement of recovery services for an executive agency
(A) to require the production of any record or information by any person other than an officer, employee, or agent of the executive agency;
(B) to establish, or otherwise have, a physical presence on the property or premises of any private sector entity for the purposes of performing the contract; or
(C) to act as agents for the Government in the recovery of funds erroneously paid to contractors.
(7) Policies for the appropriate types of management improvement programs authorized by section 3564 of this title that executive agencies may carry out to address overpayment
problems and the recovery of overpayments. $ 3562. Disposition of recovered funds
(a) AVAILABILITY OF FUNDS FOR RECOVERY AUDITS AND ACTIVITIES PROGRAM.–Funds collected under a program carried out by an executive agency under section 3561 of this title shall be available to the executive agency for the following purposes:
(1) To reimburse the actual expenses incurred by the executive agency in the administration of the program.
(2) To pay contractors for services under the program in accordance with the guidance issued under section 3561(c)(5) of this title.
(b) FUNDS NOT USED FOR PROGRAM.—Any amounts erroneously paid by an executive agency that are recovered under such a program of an executive agency and are not used to reimburse expenses or pay contractors under subsection (a)
(1) shall be credited to the appropriations from which the erroneous payments were made, shall be merged with other amounts in those appropriations, and shall be available for the purposes and period for which such appropriations are available; or
(2) if no such appropriation remains available, shall be deposited in the Treasury as miscellaneous receipts.
(c) PRIORITY OF OTHER AUTHORIZED DISPOSITIONS.—Notwithstanding subsection (b), the authority under such subsection may not be exercised to use, credit, or deposit funds collected under such a program as provided in that subsection to the extent that any other provision of law requires or authorizes the crediting of such funds to a nonappropriated fund instrumentality, revolving fund, working-capital fund, trust fund, or other fund or account. $ 3563. Sources of recovery services
(a) CONSIDERATION OF AVAILABLE RECOVERY RESOURCES.(1) In carrying out a program under section 3561 of this title, the head of an executive agency shall consider all resources available to that official to carry out the program.
(2) The resources considered by the head of an executive agency for carrying out the program shall include the resources available to the executive agency for such purpose from the following sources:
(A) The executive agency.
(C) Private sector sources. (b) COMPLIANCE WITH APPLICABLE LAW AND REGULATIONS.Before entering into a contract with a private sector source for the performance of services under a program of the executive agency carried out under section 3561 of this title, the head of an executive agency shall comply with
(1) any otherwise applicable provisions of Office of Management and Budget Circular A-76; and
(2) any other applicable provision of law or regulation with respect to the selection between employees of the United States
and private sector sources for the performance of services. $ 3564. Management improvement programs
In accordance with guidance provided by the Director of the Office of Management and Budget under section 3561 of this title, the head of an executive agency required to carry out a program under such section 3561 may carry out a program for improving management processes within the executive agency,
(1) to address problems that contribute directly to the occurrence of errors in the paying of contractors of the executive agency; or
(2) to improve the recovery of overpayments due to the agency. $ 3565. Relationship to authority of inspectors general
Nothing in this subchapter shall be construed as impairing the authority of an Inspector General under the Inspector General Act of 1978 or any other provision of law. $ 3566. Privacy protections
Any nongovernmental entity that, in the course of recovery auditing or recovery activity under this subchapter, obtains information that identifies an individual or with respect to which there is