On April 15, 2016, the Government Accountability Office (GAO) issued a proposed rule in the Federal Register that would amend its current bid protest Regulations, codified at 4 C.F.R. Part 21.
On April 15, 2016, the Government Accountability Office (“GAO”) published proposed changes to the rules that govern bid protests. See 81 Fed. Reg. 22197. The primary purpose is to implement a new electronic filing system for use in bid protests, called the Electronic Protest Docketing System (“EPDS”), in addition to several new procedural rules.
Electronic Filing System
In order to comply with statutory mandate, GAO is implementing a new electronic filing and document dissemination system, called the EPDS which will be mandatory method to submit protests and other filings, except in protests involving classified material.
New Filing Fee of $350
GAO will require a new fee to file a protest of $350, payable through EPDS. By comparison, the Court of Federal Claims currently charges a $400 filing fee.
Time for Filing a Protest
The proposed rule states that a filing in EPDS “constitutes notice to all parties” of the filing. That suggests the parties will automatically receive notice of filings through EPDS. Indeed, GAO’s website states that “EPDS will also provide automatic notice of a protest to the agency.”
This automatic notice mechanism could have important ramifications for protesters that seek the “automatic stay,” the Competition in Contracting Act’s (“CICA”) rule that an agency must withhold award or suspend performance for the duration of the protest if GAO notifies the agency of the protest before a certain deadline. Critically, it remains to be seen whether GAO will rely solely on EPDS’s automatic notice and cease notifying agencies by telephone, and also whether the Court of Federal Claims will consider the CICA stay to be triggered by the automated notice.
Agency Report Submission
The proposed rule would provide a clarification of an ambiguity regarding the deadline for the agency’s submission of its response to the protester’s document requests. The response has long been due five days before the agency report. But where the fifth day falls on a weekend or holiday, the existing rules do not specify whether the agency must file its response on the last business day before the weekend or holiday or the next business day after the weekend or holiday. Often, the agency will file the response on the next business day, which can leave insufficient time to resolve any disputes over the scope of the agency’s proposed document production prior to its filing of the agency report. Protesters are then left litigating objections to the document production during the 10-day period for responding to the agency report and sometimes does not receive documents initially withheld until several days into the 10-day period.
To resolve the ambiguity, the proposed rule would require that the agency submit its response on the last business day before the weekend or holiday.
Protest Ground – Response
GAO has long held that if a protester fails to address a protest ground in its response to the agency report (called “comments”), the protest ground is deemed abandoned and GAO will dismiss it. The proposed rule would clarify that a “protest allegation or argument” shall be dismissed where the agency report responds to the allegation or argument “but the protester’s comments do not address the agency’s response.”
Withholding of Award and Suspension of Contract Performance
GAO proposes to add the filing requirement to its regulations: “An agency shall file a notification in instances where it overrides a requirement to withhold award or suspend contract performance, and it shall file a copy of any issued determination and finding.” In the unusual case in which an agency decides to override the automatic suspension of performance required by the Competition in Contracting Act during the pendency of a protest, this rule would ensure that such a decision is well publicized and that a protester is given appropriate notice to challenge it.
Reimbursement of Costs
GAO proposes a more structured process for successful protesters to pursue reimbursement of their protest costs from agencies. While the basic process is largely unchanged, the proposed rule would make it mandatory that the agency and protester respond to each other’s submissions and would establish new deadlines for those filings. These changes should facilitate quicker resolution of cost claims.
Protest counsel often spend substantial time and effort preparing redacted versions of protest filings and negotiating over what information will become publicly available or will be redacted. The current process for negotiating redactions is relatively unstructured. The proposed rule would impose more structure on this process. It would require the party filing a document to distribute proposed redacted version within one day and to file a final redacted version within five days—or, if the parties cannot agree on redactions, to submit the dispute to GAO for resolution.
In current practice, it is not uncommon for parties to skip the redaction process altogether amidst the rush of quick-turnaround deadlines. The rule change, if it becomes final, may create a good deal more work for protest counsel, under tight time pressure.