as corrected, does not exceed that of the next lowest acceptable bid under the original invitation for bids.

(c) Determinations under § 1-2.4064(b) of this title may be made only on the basis of clear and convincing evidence that a mistake in bid was made, and either that the mistake was mutual or that the unilateral mistake made by the contractor was so apparent as to have charged the contracting officer with notice of the probability of the mistake. If the evidence does not warrant a determination under § 1-2.406–4 (b)(1) or (b)(2), of this title, a determination may be made that no change shall be made in the contract as awarded.

(d) Authority to make administrative determinations in connection with mistakes in bid disclosed after award has been delegated to the Deputy Assistant Secretary for Grants and Procurement Management, OASAM.

(e) Each determination shall be approved by the Assistant General Counsel, Business and Administrative Law Division, Office of General Counsel, OS.

§ 3-2.407 Award.

§ 3-2.407-8 Protests against award.

(a) General. (1) Contracting officers shall consider all protests or objections regarding the award of a contract whether submitted before or after award, provided such protests are filed in a timely manner. In order to be considered timely, protests based on alleged improprieties in any type of solicitation which are apparent before bid opening or the closing date for receipt of proposals shall be filed prior to bid opening or the closing date for receipt of proposals. In other cases, protests shall be filed not later than 5 working days after the basis for protest is known or should have been known, whichever is earlier. If a protest has been filed initially with the contacting officer, any subsequent protest to the Secretary, Department of Health, Education, and Welfare, or the General Accounting Office filed within 5 days of notification of adverse action will be considered provided the initial protest to the contracting officer was timely. Written

confirmation of all protests shall be requested from protestants. The protestant shall be notified in writing of the final decision on the protest, and the notification shall set forth the rationale upon which the decision is based.

(2) Reports concerning protests, whether before or after award, shall include the following documentation:

(i) A statement by the procuring activity's headquarters procurement staff office, containing its recommendation, with supporting reasons, as to the merits of the protest.

(ii) The contracting officer's statement of facts and circumstances including a discussion of the merits.

(iii) The contracting officer's conclusions and recommendations including documentary evidence on which they are based.

(iv) A copy of the IFB or RFP.

(v) A copy of the abstract of bids or proposals.

(vi) A copy of the bid or proposal of the successful offeror to whom award has been made or is proposed to be made.

(vii) A copy of the bid or proposal of the protestant, if any.

(viii) The current status of award. Where award has been made, this shall include whether performance has commenced, shipment or delivery has been made, or a stop work order has been issued.

(ix) A copy of any mutual agreement to suspend work on a no-cost basis when appropriate (see § 1-2.407-8(c) of this title).

(x) Copies of the notice of protest given offerors and other parties when such notice is appropriate (see § 12.407-8(a)(3) of this title).

(xi) A copy of the technical evaluation report required by § 3-3.5104, of this chapter when applicable, and a copy of each evaluator's rating for all proposals.

(xii) A copy of the negotiation memorandum when applicable (see § 3-50.301 of this chapter).

(xiii) Any other documents which are relevant to the protest.

(xiv) The name and telephone number of the person in the procure

ment office who may be contacted for information relevant to the protest.

(xv) The file shall be assembled in an orderly manner and shall include an index of enclosures.

(3) Copies of the views of interested parties submitted pursuant to § 12.407-8(a)(3) of this title shall be furnished to the Protest Control Officer, Office of Grants and Procurement Management-OASAM, whenever the protest is reviewed by that office (including protests lodged with GAO).

(4) Whenever the contracting officer deems it desirable to obtain the views of higher authority or when such submission is required by paragraph

(b)(2) of this section, the file shall be forwarded, in duplicate, through the cognizant protest control officer to the Departmental Protest Control Officer, Office of Grants and Procurement Management-OASAM, by the most expeditious means. The file shall be marked "IMMEDIATE ACTIONPROTEST BEFORE AWARD."

(5) The Office of Grants and Procurement Management-OASAM, has been designated as the headquarters office which GAO should contact concerning protests. All reports on protests lodged with GAO shall be submitted to that office.

(6) Each procuring activity of the Department shall designate a protest control officer, to serve as an advisor to the contracting officer and monitor protests from the time of initial notification until the protest has been resolved. The protest control officer should be a senior procurement specialist of the headquarters procurement office staff. In addition, procuring activities should designate similar officials within their principal components to the extent practicable and feasible. A copy of each appointment and termination of appointment of protest control officers shall be forwarded to the Director of Procurement Policy and Regulations Development, OGPM-OASAM.

(b) Protest before award. (1) If award has not been made, the contracting officer shall require that written confirmation of an oral protest be filed within 5 working days of the oral notification. If the written protest is not

received by the time specified, the oral protest may be disregarded and award made in the normal manner unless the contracting officer, upon investigation, finds that remedial action is required, in which event such action shall be taken. Contract files shall be documented to reflect the receipt of oral protests and the disposition thereof.

(2) In the following cases written protests received by the contracting officer shall be forwarded to the Protest Control Officer, Office of Grants and Procurement ManagementOASAM: (i) The protestant requests referral to the Secretary of Health, Education, and Welfare; (ii) the protest is known to have been lodged with the Comptroller General, the Office of the Secretary, or the Small Business Administration; (iii) the protest is filed after award of contract; (iv) the contracting officer entertains some doubt as to the proper action regarding the protest or believes it to be in the best interest of the Government that the protest be considered by the Office of the Secretary or the Comptroller General.

Otherwise submission of protests to the Office of Grants and Procurement Management-OASAM, may be dispensed with by the contracting officer if he is satisfied that the protest is without any reasonable degree of foundation. Except as modified in § 12.407-8(b)(3) of this title and paragraph (b)(3) of this section, the contracting officer, with the concurrence of the procuring activity protest control officer, and either the Office of General Counsel, Business and Administrative Law Division, or cognizant Regional Attorney, may disallow the protest. Such action shall be followed by a written explanation to the Office of Grants and Procurement Management-OASAM, documented by copies of any pertinent correspondence.

(3) Where is it known that a protest against the making of an award has been lodged directly with GAO, a determination to make award under § 12.407-8(b)(4) of this title must be approved by the Deputy Assistant Secretary for Grants and Procurement Management.

(4) If award is made pursuant to § 12.407-8(b)(4) of this title, the contracting officer shall document the file to explain the need for immediate award and shall notify the protestant and, as appropriate, to others concerned except GAO. Notice will be given to GAO by the Office of Grants and Procurement Management-OASAM.

(c) Protests after award. All formal protests after award shall be forwarded to the Protest Control Officer, Office of Grants and Procurement Management-OASAM, and shall be documented in accordance with paragraph (a)(2) of this section. The file shall be submitted, in duplicate, by the most expeditious means and shall be marked "IMMEDIATE ACTIONPROTEST AFTER AWARD."

§ 3-3.103-50 Notifying and debriefing of unsuccessful offerors.

(a) Policy. (1) The policy of this Department is to provide a debriefing, when requested in writing, to an offeror that has unsuccessfully competed for a DHEW procurement. Requests for exceptions or deviations from debriefing policy and procedures shall be submitted to the Director, Office of Procurement and Materiel Management, OASAM, for approval.

(2) A briefing is intended to:

(i) Tell an unsuccessful offeror which areas of his proposal were judged to be weak and deficient and whether the weaknesses or deficiencies were factors in his not having been selected;

(ii) Identify the factors which were the basis for selection of the successful contractor. If the quality of the successful offeror's proposal to satisfy the mission requirement was the basis, the unsuccessful offeror should be so informed, and given a general comparison of significant areas, but not a point-by-point comparison of all the elements considered in the evaluation criteria. If the successful offeror was selected on the basis of cost, the unsuccessful offeror should be told that such is the case. If selection was based on other factors, they should be specified.

(3) If an unsuccessful offeror feels that his failure to obtain the award was not justified, he will rely, at least in part, on the information given him in the debriefing to determine whether he should seek recourse. Accordingly, it is essential that a debriefing be conducted in a scrupulously fair, objective, and impartial manner, and that the information given the unsuccessful offeror be absolutely factual and consistent with the findings of the Contracting Officer and the basis on which he made the award.

(4) A debriefing should not reveal:

(i) Confidential or privileged commercial or financial information, trade secrets, techniques, or processes of the other offerors; and

(ii) The relative merits or technical standing of the unsuccessful offerors.

(b) Procedures. (1) Once a procurement action has been initiated, through the evaluation process, and even after the selection of a contractor, all queries as to the relative merits of the submitted proposals shall be courteously but firmly directed to the Contracting Officer. All other personnel will avoid exchange of comments with all offerors.

(2) If the procedures set forth in § 33.802-1 are utilized, and an award will be made within 30 days after a determination of the competitive range has been made, a preaward notification to offerors regarding whether their proposals are within the competitive range is not required. A preaward notification is required if the procedures set forth in § 3-3.802-2 are utilized or if it will take longer than 30 days after