On April 15, 2016, the Government Accountability Office (GAO) announced a proposed rule amending its bid protest requirements (Proposed Regulations). GAO intends to implement the requirements of Section 1501 of the Consolidated Appropriations Act for Fiscal Year 2014 (Section 1501) and to streamline the bid protest process. The major changes covered by the Proposed Amendments are (1) the creation of an electronic filing and document dissemination system for the filing of bid protests with the GAO; and (2) administrative changes, such as the introduction of a filing fee for bid protests. While the proposed regulations did not specify an effective date for the new rules, GAO seems to anticipate implementing them before the end of the government's fiscal year or upon the beginning of the 2017 fiscal year.
Section 1501 requires the GAO to create an online filing system, likely to be similar in form to the Public Access to Court Electronic Records (PACER) system maintained by the federal district courts. GAO is still developing the database, called the Electronic Protest Docketing System (EPDS), which will enable parties to both file and receive documents. Following its introduction, the EPDS will be the sole means for filing a bid protest with GAO. GAO intends to issue guidance for use of the EPDS at a later date.
In connection with the institution of the EPDS, GAO also proposes requiring a $350.00 filing fee for bid protests, which would be applied toward the operation of the EPDS. This fee is comparable to filing fees required by the Court of Federal Claims for new civil actions or proceedings ($350.00) and by the U.S. District Courts.
Though the Proposed Regulations purport to streamline the bid protest process and enhance the ability of parties to the protest to access protest documents, there are unanswered questions with regard to some aspects to the rules. First, while the proposed regulations call for the new filing fee to be paid at the time of filing, GAO has yet to issue any guidance on how payment is to be made. For timing purposes, if payment is to be made at the time of filing, and payment does not go through (via an online credit card transaction), would the protest be deemed untimely? The Proposed Regulations do not indicate how GAO will handle such matters. An alternative, that perhaps GAO will explore, is to have payment be made within a set time frame of filing of the protest. Otherwise, a protester filing very close to the deadline for a protest could potentially be untimely if the payment is not processed in time.
Under CICA and the current GAO regulations, in order for a protester to obtain the automatic stay of performance, the protester must file its timely protest so that GAO has at least one day in which to properly give notice of the protest to the contracting agency. In practice, this means that the protester usually has to file its protest one full working day before the actual deadline under CICA to have some degree of confidence that proper notice is given to the agency. That is, if CICA would require that a protest be filed by the close of business on a Tuesday to obtain the automatic stay, a prudent protester would try to have the protest filed no later than first thing Tuesday morning to ensure notice is given. In effect, this lessens the amount of time that a protester has to gather information and articulate a strong basis for its protest by one day. The proposed regulations at least offer the possibility that filing a protest with the EPDS will electronically cause notice to be provided to the contracting agency, allowing a protester to file its protest up until the deadline set out by CICA instead of so much earlier.
Through changes to 4 CFR 21.2, GAO also clarifies the time for filing a protest where there is no solicitation closing date or when no further submissions in response to the solicitation are anticipated. The Proposed Amendments stipulate that, in this situation, a party must file a bid protest within ten (10) days of when the alleged impropriety was known or should have been known.
The Proposed Amendments include a revision to 4 CFR 21.3 that requires parties to a protest must provide copies of all communications with the agency or other parties to the protest to other participating parties either through EPDS or email. It is unclear if, following an e-filing, communications with the Contracting Officer shall be made via EPDS or by email. GAO will not specify such details until the final rule is published.
Further changes to 4 CFR 21.3 will stipulate that, in the event the fifth day for filing the agency's required response to a protester's request for documents falls on a weekend or federal holiday, the response shall be filed on the last business day that precedes the weekend or federal holiday. This effectively provides the agency with less time to provide a response in some situations. Moreover, where a protester does not have counsel admitted to a protective order, and documents are withheld from the protester on that basis, the agency must provide redacted documents that inform the protester of the basis for the agency's arguments in response to the protest.