On Friday, April 15, 2016, the Government Accountability Office (GAO) proposed a series of amendments to its Bid Protest Regulations. For the most part, these regulations are administrative in nature; however, government contractors should be aware of the proposed changes in the following areas:
- Electronic Filing. The GAO is developing a new Electronic Protest Docketing System (EPDS) that will be the sole means for filing a bid protest and other documents at the GAO. There will be some exceptions to this method of filing, such as protests including classified information, and redacted copies of pleadings.
- Filing Fee. To offset the costs of developing and maintaining the EPDS, the GAO proposes a $350 filing fee. GAO states in its rule that it intends to review this fee on a biennial basis, presumably to determine whether the amount should be increased or decreased.
- Timeliness. The GAO also proposes a change regarding the time for filing a protest, where the agency revises a solicitation, but does not establish a new closing date. The proposed change clarifies that, in such a situation, the protest must be filed within 10 days of the revision, not 10 days of a requested and required debriefing. Stated otherwise, the change more formally reflects the GAO's long-held position that "the 10-day 'safe harbor' provision in [4 C.F.R. 21.2] paragraph (a)(2)…does not apply to protests challenging improprieties covered by paragraph (a)(1) of 4 CFR 21.2."
- Redactions. The GAO also proposes to formalize the process of submitting redacted versions of filings containing protected information. In particular, the regulations as amended will require the filing party not only to provide the other parties with a proposed redacted version of a protected document within one day of filing that protected version, but also to file a final agreed-upon redacted version of that document five days after submitting the proposed redactions. This proposed change will expedite the redactions process and may increase the overall cost of the protest for parties previously unwilling to submit redacted versions of their filings.
- Clarifying Task Order Jurisdiction. Further, GAO proposes to add to its list of protest issues not for consideration, specifically task or delivery order contracts where the order is valued at less than $10 million.1 This clarification reflects legislation applying task and delivery order protest limitations to both Department of Defense and civilian agency procurements. GAO clarifies in the proposed rule that the limitation on GAO's jurisdiction over civilian agency task order awards valued at less than $10 million is subject to a sunset clause, and the limitation will no longer be in effect after September 30, 2016. Venable will be monitoring upcoming legislative activity to assess whether the limitation on GAO's jurisdiction over protests of civilian task and delivery orders valued at less than $10 million will extend beyond September.
- Notice of Award Stay and Suspension of Contract Performance. Finally, the proposed changes will require an agency "to file a notification where it overrides a statutory requirement to withhold award or suspend contract performance" and "require agencies to file any issued determination." Though GAO has not previously required this information, it clarified in the proposed rule that this information is necessary to implement GAO's statutory mandate to consider the basis for an agency's override in determining the remedy to recommend in the event GAO sustains a protest.
Comments on the new proposed rule must be submitted on or before May 16, 2016.