Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Friday, October 4, 2013, 11:02am EST
GAO Is Closed For Business
According to the GAO website, GAO is among the slew of federal agencies to cease operations during the government shutdown. This will obviously have a significant impact on bid protests, both on new protests and those already filed. GAO has issued guidance to federal contractors as to how bid protests and related filings will be handled during this period. Below are the key points from GAO’s guidance:
- Any protest related deadline for a filing by a private party (such as a protester) that falls on a day in which GAO is shutdown will be extended until the first day GAO resumes operations.
- For deadlines of Agency filings (such as an Agency Report), the agency can request an extension of up to one day for each day GAO was shut down.
- GAO will accept filings during the shutdown, but only via email, as its mail center is closed and fax machines have been disabled.
- New protests received during the shutdown, regardless of when sent, will be considered to be filed on the first day GAO resumes operations.
- GAO may extend the 100 day protest decision deadlines one day for each day GAO is shut down.
Contractors filing protests should likely expect delays in the protest process once GAO is back up and running. It’s highly probably that GAO will be inundated with filings once the lights are turned back on, and there is no predicting how long it will take GAO to bring all old and new protests up to date. However, it would probably be best practice for contractors to make filings with GAO, particularly new protest filings, as if it were business as usual. While deadlines may be extended due to the shutdown, there is no way to know how much advance notice there will be of GAO resuming operations. This could put contractors waiting to file in a precarious position with a very short turnaround time to prepare and file their protest documents.
Also, it is unclear how the GAO closing will affect the automatic stay requirement provided by the Competition in Contracting Act. Generally, if a protester files its protest within 10 days of contract award or 5 days after a required debriefing, the contracting officer is required to suspend performance pending resolution of the protest. However, these deadlines are arguably separate from GAO’s filing deadlines, and thus GAO’s extensions may not apply.
The government contracts community finds itself in uncharted waters as a direct result of the government shutdown. Government contractors will no doubt be negatively affected in myriad ways. Unfortunately, disruption to the bid protest process is one more issue that must be considered by contractors.