Quiero saber acerca de...

6622

Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices
protests, similar to the ones under the Contract Disputes Act. Agencies should also make best efforts to notify protesters of the timelines applicable to their agency-level protests.
5. Agencies should clearly and immediately provide written notice to protesters of any adverse agency action affecting the rights of the protester under the challenged procurement. Agency rules should provide that protests are deemed denied after a specified number of days without a decision and that agencies may grant case-specific extensions based on identified criteria.
Compiling the Record and Making It Available 6. Agencies should make available to protesters as much of the procurement record as is feasible. To address confidential information in the record, agencies should consider using tools such as enhanced debriefings.
7. Agencies should consider adopting a thirty-day deadline, running from the date a protest is filed, for providing protesters with as much of the procurement record as is feasible.
Protecting Against Adverse Consequences 8. Although the Federal Acquisition Regulation FAR prohibits the award of a contract or continued performance under an awarded contract during an agency-level protest, agencies should provide for a short extension of the stay after a final decision in an agency-level bid protest as permitted by the FAR. The short extension should be of sufficient duration e.g., five days to give the protester time to bring a follow-on protest at the Government Accountability Office GAO
or the United States Court of Federal Claims after the agencys decision.
9. Congress should provide that, if a protester promptly files a GAO protest after an adverse decision in an agency-level protest, the agency shall not award the contract or commence performance under the contract during the pendency of the GAO
protest, subject to potential override in urgent and compelling circumstances.
10. GAO should amend its bid protest procedures to ensure that follow-on protests at GAO are handled on an expedited basis, to the extent feasible.

jbell on DSKJLSW7X2PROD with NOTICES

Publishing Data on Agency-Level Protests 11. Agencies should collect and annually publish data about the bid protests they adjudicate. To the extent feasible, the data should at least include what the GAO
currently provides in its annual reports about the bid protests it adjudicates e.g., the number of bid protests filed with the agency;
the effectiveness rate of agency-level bid protests the ratio of protests sustained or in which corrective action is afforded versus total agency-level protests filed; the number of merits decisions by the agency; the number of decisions sustaining the protest;
the number of decisions denying the protest;
and the time required for bid protests to be resolved.

VerDate Sep<11>2014

19:27 Jan 21, 2021

Jkt 253001

Administrative Conference Recommendation 20205
Publication of Policies Governing Agency Adjudicators Adopted December 17, 2020
NOTE: Appendix B referenced in this Recommendation has been omitted from this notice because of the inaccessible images it contains. The full appendix may be found online at https www.acus.gov/
recommendation/publication-policiesgoverning-agency-adjudicators.
Federal agency officials throughout the country preside over hundreds of thousands of adjudications each year.1 As the Administrative Conference has previously observed, litigants, their lawyers, and other members of the public benefit from having ready online access to procedural rules, decisions, and other key materials associated with adjudications.2 They also benefit from having ready online access to the policies and practices by which agencies appoint and oversee administrative law judges and other adjudicators. The availability of these policies and practices helps inform the public about, among other things, any actions agencies have taken to ensure the impartiality of administrative adjudicators 3
and promotes an understanding of adjudicators constitutional status under the Appointments Clause and other constitutional provisions. The Administrative Conference acknowledges ongoing litigation regarding the constitutional status of many agency adjudicators and the continuing validity of the means and circumstances of their appointment and removal.4
Agencies may benefit from disclosures about agency adjudicators because it allows them to compare their own policies with those made publicly available by other agencies. Agencies proactive disclosures, which may sometimes already be required under the Freedom of Information Act and the E-Government Act, may also be more cost-effective than agencies responding to individual requests for information.5
Like other recent recommendations regarding adjudicators,6 this Recommendation pertains to officials who 1 See Admin. Conf. of the U.S., Recommendation 20162, Aggregate Agency Adjudication, 81 FR
40,260, 40,260 June 21, 2016.
2 Admin. Conf. of the U.S., Recommendation 20185, Public Availability of Adjudication Rules, 84 FR 2142 Feb. 6, 2019; Admin. Conf. of the U.S., Recommendation 20171, Adjudication Materials on Agency Websites, 82 FR 31,039 July 5, 2017.
3 Cf. Admin. Conf. of the U.S., Recommendation 20184, Recusal Rules for Administrative Adjudicators, 84 FR 2139 Feb. 6, 2019.
4 See, e.g., Lucia v. SEC, 138 S. Ct. 2044 2018;
Arthrex v. Smith & Nephew, 941 F.3d 1320 Fed.
Cir. 2019, cert. granted, __S. Ct. __Oct. 13, 2020
No. 191434.
5 FOIA Improvement Act of 2016, Public Law 114185, 2, 130 Stat. 538, 538 amending 5 U.S.C.
552a2; E-Government Act of 2002, Public Law 140347, 206, 116 Stat. 2899, 2916 amending 44
U.S.C. 3501.
6 See, e.g., Admin. Conf. of the U.S., Recommendation 20184, Recusal Rules for Administrative Adjudicators, 84 FR 2139 Feb. 6, 2019.

PO 00000

Frm 00011

Fmt 4703

Sfmt 4703

preside over 1 hearings governed by the formal hearing provisions of the Administrative Procedure Act APA 7 and 2
hearings that are not governed by those provisions but are required by statute, regulation, or executive order. It also covers officials agency heads excluded who review hearing-level adjudicators decisions on appeal. For ease of reference, this Recommendation refers to the covered adjudicators as either administrative law judges ALJs or administrative judges AJs.8 Agencies may decide to include on their websites the disclosures identified in this Recommendation for other adjudicators, depending on the level of formality of the proceedings over which they preside and whether they serve as full-time adjudicators.
Agencies may also decide to make similar disclosures with respect to agency heads if their websites do not already provide sufficient information.
This Recommendation focuses on policies and practices relating to adjudicators that agencies should disclose, including those addressing appointment and qualifications;
compensation including salaries, bonuses, and performance incentives; duties and responsibilities; supervision and assignment of work; position within agencies organizational hierarchies; methods of evaluating performance; limitations on ex parte communications and other policies ensuring separation between adjudicative and enforcement functions; recusal and disqualification; the process for review of adjudications; and discipline and removal.
Many of the policies and practices applicable to ALJs governing these matters are already publicly available because they are in the APA, Office of Personnel Management rules, or other legal authorities.9
Nevertheless, agencies that employ ALJs can take steps to improve the publics access to this information.
ALJs, in any case, make up a small portion of federal adjudicators. There are many more AJs than ALJs.10 AJs are regulated by a complex mix of statutory provisions, including civil service laws, agency rules codified in the Code of Federal Regulations, and agency-specific policies that take a variety of forms. Many types of information about AJs reside in these sources, but they may be difficult to find.11 Some relevant 7 See
5 U.S.C. 554, 55657.
vast majority of ALJs work at the Social Security Administration. AJs work at many different agencies under a variety of titles, including not only Administrative Judge but also, by way of example, Hearing Officer, Immigration Judge, Veterans Law Judge, Administrative Patent Judge, and Administrative Appeals Judge.
9 5 U.S.C. 554, 557, 3105, 4301, 5372, 7521; 5 CFR
pt. 930, subpt. B; Exec. Order No. 13,843, Executive Order Excepting Administrative Law Judges from the Competitive Service, 83 FR 32,755 July 13, 2018 issued July 10, 2018.
10 Kent Barnett et al., Non-ALJ Adjudicators in Federal Agencies: Status, Selection, Oversight, and Removal 1 Sept. 24, 2018 report to the Admin.
Conf. of the U.S., https www.acus.gov/report/nonalj-adjudicators-federal-agencies-status-selectionoversight-and-removal-1.
11 Leigh Anne Schriever, Public Availability of Information About Adjudicators 10 Nov. 23, 2020
8 The
E:FRFM22JAN1.SGM

22JAN1