Beginning May 1, 2018, all bid protests (except protests containing classified material) must be filed electronically through the Government Accountability Office’s new Electronic Protest Docketing System (EPDS). Along with an electronic filing platform, the GAO is introducing a $350 protest filing fee. These new rules apply only to GAO protests — not to protests filed at the U.S. Court of Federal Claims.
Without a proper understanding of GAO’s new rules, protesters risk filing an untimely protest or missing the deadline for an automatic stay of contract performance. McGuireWoods’ government contracting legal team — who represented a party to a protest selected for GAO’s pilot program during the EPDS testing phase — offer a list of tips and recommendations for navigating the new system:
- Register as a user, learn the system and ensure your staff is familiar with the layout. GAO has uploaded detailed videos explaining the EPDS filing procedure, along with an 81-page “Electronic Protest Docketing System (EPDS) Protestor/Intervenor User Manual,” for accomplishing practically every function on the platform. The new system features a unique layout that is best to learn before the time comes to file a protest. The system is quite different from other electronic filing systems, including the Case Management/Electronic Case Files system (CM/ECF), and it is worth the time and investment to learn it before you need it.
- File early, and have $350 payment ready. The daily filing deadline for EPDS is GAO’s close of business — 5:30 p.m. EDT — rather than the end of the day as on CM/ECF. EPDS requires that protests be uploaded, along with any supporting documents, with all “sensitive information” redacted. The GAO must receive the new $350 protest-filing fee in order for the bid protest to be properly filed.
After successfully uploading the document(s) and paying the initial filing fee, protesters should receive two automated email responses. The first email confirms receipt of the $350 filing fee, and the second email informs the contracting agency that the protest was filed. To mitigate the risk of an untimely protest, begin the filing process early in the day and, if there are any technical challenges, contact the GAO at email@example.com.
- Timely serve a copy of the protest on the contracting officer. Pursuant to 4 C.F.R. § 21.1, a protester still must serve a copy of the original protest on the contracting officer. Although an electronic notification will automatically be sent to the contracting officer, informing him or her of the protest, this does not negate the protestor’s duty to serve a complete copy of the protest on the contracting officer.
- Only four authorized personnel can access a protest through EPDS. After filing a protest, or intervening on behalf of a client, there are restrictions on access to the material on EPDS. Regardless of how many people on your team are admitted under the protective order, EPDS allows only four authorized representatives to access or file documents in the electronic system. (See GAO EPDS Protestor/Intervenor User Manual at 29.)
- Document attorneys’ fees. Under 4 C.F.R. § 21.8(e), if the agency takes corrective action in response to a protest, the GAO “may recommend that the agency pay the protester the reasonable costs of filing and pursuing the protest, including attorneys’ fees and expert witness fees.”
The protester has no more than “15 days after the date on which the protester learned (or should have learned, if that date is earlier) that GAO had closed the protest based on the agency’s decision to take corrective action” to file any request for reimbursement of its fees. If the protester files a timely request, the agency has 15 days to respond. Then, the protester has 10 days to file comments on the agency’s response. Unless the GAO has granted a time extension for filing comments, the GAO shall dismiss the request for reimbursement if the protester fails to timely comment. If the parties cannot agree, they can request — in accordance with 4 C.F.R. § 21.8(f) — that the GAO recommend the amount of fees that should be reimbursed.
Notably absent from this new regulation is language limiting the fees to those “reasonably” incurred in pursuing the protest or a flat hourly limit on the rate of recoverable fees. The GAO received a comment recommending that it fix the hourly rate of reimbursement at $150, but declined to do so.
- Decisions are distributed through EPDS. After the parties file proposed redactions to the GAO’s decision, the GAO will issue a “Public Decision.” Pursuant to 4 C.F.R. § 21.21(b), “[d]ecisions will be distributed to the parties through the EPDS.”
- Download any protest decisions of interest before May 1, 2018. Effective May 1, 2018, the GAO will reduce the time it preserves its bid-protest decisions and full docket for all cases, from 12 months to 60 days. If you do not have access to bid protest decisions through a different platform, such as Lexis or WestLaw, be sure to download any final GAO decisions of interest to your organization before this May 1 deadline.