Bid protests are a ubiquitous part of government contracting, basically considered part of the normal procurement process. While bid protests can be filed at either the procuring agency level or at the U.S. Court of Federal Claims, the majority of bid protests are filed with the Government Accountability Office (GAO). Recently, on April 15, 2016, GAO released a proposed rule that will make several significant changes to their bid protest process. These proposed changes clarify some elements of the process, while at the same time raise several questions about how these new rules will affect protesters moving forward.
The primary change proposed by GAO is for the creation of an electronic filing system for the filing and administering of GAO bid protests. Currently, GAO bid protests are conducted almost exclusively via email. GAO has a dedicated email address that protesters and other parties to a protest use for filings. The proposed rule will establish the Electronic Protest Docketing System (EPDS), which will be the sole means for filing a bid protest with GAO (except for protests containing classified material). Whereas the current system does not have any filing costs, GAO anticipates a filing fee in the amount of $350 for any protest filed through EPDS.
The proposed rule will also require that any protest-related communications be provided to other parties participating in the protest either through EPDS or email. Also, agencies will be required to submit its agency report through EPDS.
While the proposed rule seeks to make several significant changes to the GAO protest process, it does leave several important questions unanswered. One of the key unexplained issues is the level of access that will be granted to the public to the filings made through EPDS. Will the system be publically accessible, similar to PACER, or will only certain individuals be granted access? There will likely need to be some registration requirement, given that the protester will need to be able to access EPDS in order to file its protest. Will anyone be able to register for the system, or only those who are actually a party to a protest? Also, the proposed rule does not address intervenors, and whether an intervening awardee will be required to file its notice of intervention through EPDS. The final rule suggests that additional guidance for the use of EPDS will be provided by GAO at a later time. Hopefully, this additional guidance will address some of these unanswered questions.
Some other notable changes to its bid protest regulations proposed by GAO:
- GAO proposes a minor change clarifying the timeliness requirements for filing a protest. Specifically, the proposed change will add language making it clear that the time for filing challenges to a solicitation when there is no solicitation closing date or when no further responses to the solicitation are anticipated is 10 days from when the alleged impropriety was known or should have been known.
- The proposed rule implements a requirement that a party filing a protected document in EPDS must file a proposed redacted version of the document within one day of filing, and the filing party has five days to file a final, agreed-upon redacted version of the document in EPDS.
- The proposed changes will clarify that any comments on the agency report must be filed within 10 days after the agency files the report on EPDS.
- The proposed rule will implement a regulation to reflect GAO’s longstanding policy that a protest will be dismissed if the protester does not file comments on the agency report prior to the 10 day deadline.
- GAO proposes to revise the current regulations to require an agency to file a notification and a determination any time it overrides a stay of award or performance mandated by the Competition in Contracting Act.
Comments on the proposed changes to GAO’s bid protest regulations may be submitted by May 16, 2016.