Key Notes:

  • Protestors must file protests in a new electronic docketing system.
  • New $350 filing fee.
  • Clarifications to the 10-day safe-harbor filing deadline.

Changes are coming to the United States Government Accountability Office’s (GAO) long-standing existing bid protest procedures. On April 15, the GAO released proposed revisions to its protest procedures. While not official yet, they have been issued for public comment and likely will come into effect later this year. If they do not take note of the proposed changes, contractors bidding on work with most federal government agencies and their attorneys risk losing their protest rights.

When federal agencies purchasing goods and services fail to follow requirements imposed by law or the solicitation terms, offerors and potential offerors may have standing to challenge those agency actions through, among other options, a bid protest with the GAO. The regulations governing bid protest procedures are set forth in the Code of Federal Regulations (4 CFR Part 21) and include strict deadlines for filing protests, procedures for controlling the treatment of protected information (PI), requirements to withhold contract awards or implement automatic stays of contract performance, and various other procedural requirements. The GAO’s proposed changes to the procedures in 4 CFR Part 21 can be found in the Federal Register.

Following is a summary of the proposed changes to the procedures set forth in 4 CFR Part 21.

Electronic Protest Docketing System

The first proposed change implements the requirements imposed under the Consolidated Appropriations Act of 2014 (Public Law 113-76, 128 Stat. 5 (Jan. 17, 2014)), which requires the GAO to establish and operate an electronic filing and document dissemination system for bid protests. The new electronic filing system will be called the Electronic Protest Docketing System (EPDS). EPDS will become the sole and exclusive means by which protestors file bid protests with the GAO with one exception: Protests that contain classified material will not be filed on EPDS.

Proposed redacted versions of documents should not be filed on EPDS. Instead, the proposing party must circulate the proposed redactions via email or facsimile to the other parties, or in the case of a protective order being in place, their counsel. Within five days of the parties agreeing to a redacted version of the document, the party filing the redacted document must file the final, agreed upon version on EPDS. Additionally, parties should seek the GAO’s guidance to resolve disputes regarding proper redaction of documents.

The GAO’s implementation of EPDS may pave the way for better oversight of information subject to protective orders and more control over the dissemination of PI (which generally consists of information related to trade secrets or business competition). While the proposed rules do not allow parties to file PI in EPDS, future revisions will likely allow for such filing. This will give the GAO improved control and oversight into protective order compliance. More specifically, the GAO will be able to determine the IP address associated with access to PI. In addition, the number of times a party downloads or prints PI is easily tracked to ensure compliance with the three-copy limitations related to PI.

The new procedures also propose a $350 filing fee, which is intended to offset the GAO’s costs for building and maintaining the new docketing system. The fee is subject to review every two years to ensure the costs are adequately calculated to recover to EPDS costs.

Clarifications to Filing Deadline

Following up on its recent decision in Protect the Force, Inc., - Recon., B-411897.3, Sept. 30, 2015, 2015 CPD ¶306, the GAO also proposes revisions that clarify the deadline to file a protest that challenges a solicitation when the basis of the protest becomes known and when there is no solicitation closing date or when no further submissions in response to the solicitation are anticipated. Under the proposed revisions to paragraph (a)(1) of 4 CFR 21.2, protestors filing such challenges must file their protests within 10 days of when the alleged impropriety was known or should have been known. Failure to do so would act as a waiver of one’s right to file a protest.

Time for GAO Decisions

Proposed changes to 4 CFR 21.9(a) expressly state that the GAO will attempt to resolve requests for reconsideration and requests for reimbursement of protest costs within 100 days after the request is filed.

While not yet in force, the GAO’s proposed changes to its regulations are the first in a number of years and, if implemented, will create significant procedural changes. Government contractors and their counsel need to be aware of and prepared to comply with the new requirements or risk losing protest rights. Knowing and keeping abreast of the protest regulations are key to a contractor’s being able to preserve and protect its rights.