The GAO is proposing a major overhaul of its bid protest filing system.
In a Federal Register notice published today, the GAO proposes significant changes regarding how protests are filed (get ready for filing fees), the timeliness of bid protests, and much more.
The GAO’s proposal responds to a 2014 statute, which directed the GAO to make certain changes to how protests are filed and processed. In addition to making those required changes, the GAO is proposing additional changes to its protest rules. The major proposed changes include:
- The GAO will establish an electronic system known as the Electronic Protest Docketing System, or EPDS. The EDPS will be the “sole means for filing a bid protest at GAO (with the exception of protests containing classified information), and will enable parties to a bid protest and GAO to file and receive documents.”
- Protesters will have to pay a filing fee. GAO “anticipates the bid protest filing fee will be $350,” which is based on “actual costs GAO has incurred to develop [the EPDS], estimates of future costs,” and so on.
- The GAO proposes a clarification of its timeliness rules governing so-called “pre-award” protests. Under current 4 C.F.R. 21.2(a), protests challenging defects or ambiguities in a solicitation ordinarily are timely so long as they are filed “prior to bid opening or the time set for receipt of initial proposals.” The GAO proposes “to clarify the time for filing challenges to a solicitation where the basis for a protest becomes known when there is no solicitation closing date or when no further submissions in response to the solicitation are anticipated.” Under the proposal, such protests “must be filed within 10 days of when the alleged impropriety was known or should have been known.”
- The GAO is also proposing to amend its timeliness rules to clarify that the timeliness rule governing debriefings (which applies to certain so-called “post-award” protests) “does not apply to protests challenging alleged solicitation improprieties . . ..”
- The GAO proposes to require that “where a protester or intervenor does not have counsel admitted to a protective order, and documents are withheld from the protester or intervenor on that basis, the agency must provide adequately-redacted documents that adequately inform the protester or intervenor of the basis for the agency’s arguments in response to the protest.”
- Also with respect to protective orders, the GAO proposes to amend its regulations “to reflect that GAO generally does not issue a protective order where an intervenor retains counsel, but the protester does not.”
- The GAO proposes to revise its rules “to require agencies to file a notification where it overrides a statutory requirement to withhold award or suspend contract performance and to require agencies to file any issued determination.” The GAO’s current regulations do not impose such a requirement.
- The GAO proposes to provide additional instructions and guidance to protesters and agencies alike regarding protesters’ claims for reimbursement of attorneys’ fees and costs.
When I first started working on GAO protests some years ago, facsimile was the GAO’s preferred method for communicating with the parties. Today, while many GAO filings are electronic, I still sometimes get a fax from the GAO. I’m glad to see that this awful 1980s dinosaur of a technology is on its permanent way out.
Some prospective protesters will, of course, complain about the filing fee, and the details have yet to be completely ironed out (for example, is a supplemental protest subject to a second $350 fee?) But most courts require filing fees from plaintiffs, and the GAO’s bid protest function is not all that dissimilar from that of a court. It’s not surprising that Congress directed the GAO to implement a filing fee for protests.
The GAO is currently accepting comments on its proposal, which may be filed on or before May 16, 2016. For information on where to submit comments, see the first page of the Federal Register notice.