The Situation: Absent a new budget agreement, the federal government will shut down on Saturday, April 29, 2017, at 12:00 a.m.
The Result: That possibility leaves companies that have filed or are planning on filing GAO bid protests wondering what to expect regarding their inquiries.
Looking Ahead: Experience from the 2013 government shutdown provides insight on how bid protests might be handled.
The Office of Management and Budget ("OMB") has begun the preparations for a potential government shutdown, ordering agencies to review and update their shutdown plans. Only a few days remain for Congress to pass (and the President to sign) a bill funding the federal government. Unless the government reaches a deal on funding, the government will shut down on Saturday, April 29, 2017, at 12:00 a.m. Due to the short statutory time frames for resolution of Government Accountability Office ("GAO") protests, many companies may be wondering how a government shutdown would impact their pending or future protests.
The government shutdown of 2013 provides useful information regarding GAO's handling of protests in the context of a shutdown. In 2013, when the government shutdown was impending, GAO posted a notice to its website explaining what the agency would do in the event of a shutdown. Companies can expect that GAO will again post guidance on its Bid Protest Website in the days leading up to the shutdown, if one seems likely.
First, it is important to be aware that during a shutdown, GAO's fax machine may be turned off and the agency will not be able to accept hand deliveries. In addition, GAO's email system will not be monitored. Therefore, if you wish to make a filing during the shutdown, you should do so by email, but you should not expect any response (other than possibly an automated receipt) until the government reopens.
Second, protesters should be aware that if a filing deadline falls during the shutdown, then the due date for the filing will likely be extended until the day the government reopens. New protests received while GAO is closed are treated as filed on the day that GAO resumes operations. As a result, protesters may use the extra time during the shutdown to perfect their filings. The impact of this rule is that GAO may experience a record number of filings on the day it reopens. For example, when the government shut down for 16 days in 2013, GAO recorded nearly 200 new protests filed the day it reopened. In order to preserve companies' abilities to obtain the automatic stay of performance, GAO provided notice to the agencies of each of the protests within 24 hours.
This large number of filings on the same day may create a bottleneck in certain protest procedures that are normally routine. GAO could potentially have hundreds of protests that all have the same deadline for issuance of the decision—100 calendar days after the government reopens. This means that GAO Bid Protest Attorneys will be required to issue numerous protective orders and protective order admissions, resolve numerous document disputes, and draft numerous decisions at the same time. Similarly, attorneys representing protesters and interveners may find that they have many due dates that coincide. In such a situation, it may be wise to propose to GAO an alternative briefing schedule that would allow all of the parties to alter the overlapping due dates.
With regard to protests that are pending at the time of the government shutdown, depending on the length of the shutdown, it may be impossible for GAO to issue its decision by the original 100-day due date. As in 2013, companies can expect that GAO will work hard to issue as many decisions as possible prior to the shutdown. GAO will also strive to issue all of the remaining decisions by their original due date, although this may be impossible in some cases. For example, decisions due during the shutdown that are not issued prior to the shutdown will have to have their 100-day due dates extended—likely up to one day for each day the government was closed. According to GAO's report to Congress in 2014, when the government shut down in 2013, GAO had 280 active bid protests pending. Despite the 16-day closure of its office, GAO was able to resolve all but 39 of the cases by their original due dates. Therefore, companies can expect that GAO will again attempt, to the extent possible, to issue decisions on protests by the original 100-day deadline.
Three Key Takeaways
- While it might be possible to file a protest during the shutdown, responses should not be expected until the government reopens. If a filing deadline falls during the shutdown, then the due date for the filing will likely be extended until the day the government reopens.
- Bid protests received while GAO is closed are treated as filed on the day operations resume, which could result in a bottleneck for certain procedures.
- Depending on the length of the shutdown, it may not be possible for GAO to issue its decision by the original 100-day due date. That said, most determinations on pending protests (241 of 280) were rendered by the original deadline after the 2013 shutdown.