April 5, 2018 - Protests & Litigation

GAO to Implement Bid Protest E-Filing on May 1, 2018 (Along with Some Other Changes)

Protests and LitigationThe Government Accountability Office (GAO) will cut the ribbon on its Electronic Protest Docketing System (EPDS) on May 1, 2018, according to a final rule published Monday (at 83 Fed. Reg. 13817).  The electronic filing system, in the works for years and over the last few months subjected to beta testing by protest counsel, will come without many surprises. Nevertheless, GAO’s final rule implements some significant changes to its bid protest process:

  • Electronic Filing. Beginning on May 1, 2018, all protests (except those containing classified information) must be filed through EPDS. The same goes for supplemental protests, five-day letters, agency reports, comments, and all other documents related to a protest action. But take note — even though a protest must now be filed with GAO through EPDS, protesters still must provide a copy of the protest to the contracting officer under separate cover.
  • Filing Fee. GAO will stick to its proposed $350 filing fee, despite receiving many comments advocating a higher fee and many more urging GAO to reduce the fee, at least for small businesses. GAO also declined to adopt commenters’ requests for automatic reimbursement in the event a protest is sustained or an agency takes corrective action, but noted that a successful protester may request reimbursement of this fee as it would any other costs of pursuing its protest.
  • Clarified Five-Day Letter Deadline. The new rule clarifies that agencies must file responses to a protester’s document requests by the last business day before the five-day deadline when the deadline falls on a weekend or federal holiday, rather than the next business day after.
  • Requirement to Provide Requested Redactions in Two Days. GAO’s final rule implements a requirement for parties to provide, at the request of another party, a redacted version of any protected document within two days. This is much less burdensome than GAO’s proposed rule, which would have required filing proposed redacted versions of any protected document within one day after the protected version was filed, even if no one had requested a redacted version.
  • Notification of Stay Override. If an agency decides to override a stay requirement, either in the award of a contract or suspension of performance, it now must file a notification and provide with it either a copy of its Determination and Findings, or a statement by the approving official explaining the statutory basis for the override.
  • Responses to Requests for Reimbursement. The final rule requires an agency to respond to a successful protester’s request for reimbursement of costs within 15 days, and requires the protester to file comments within 10 days of the agency’s response. If the protester does not meet this deadline, GAO will dismiss its request.

GAO also took the opportunity in this final rule to codify some rules previously established in the Office’s decisional precedent:

  • Now codified in 4 C.F.R. § 21.2(a), where a basis for challenging the terms of a solicitation does not arise until after proposal submission, a requested and required debriefing will not “toll” the filing deadline for the related protest, which will still be 10 days from when the protester knew or should have known of that basis. See Protect the Force, Inc.—Reconsideration, B-411897.3, Sept. 30, 2015, 2015 CPD ¶ 306; Armorworks Enterprises, LLC, B–400394; B–400394.2, Sept. 23, 2008, 2008 CPD ¶ 176.
  • Now codified at 4 C.F.R. § 21.5(m), GAO will review protests alleging that an agency is improperly using a nonprocurement instrument — such as an other transaction agreement (OTA) — to procure goods or services. See, e.g., Rocketplane Kistler, B-310741, Jan. 28, 2008, 2008 CPD ¶ 22. This signals a welcome return to established GAO precedent after a recent departure in MorphoTrust USA, LLC, B-412711, May 16, 2016, 2016 CPD ¶ 133, in which GAO held that only an agency’s authorizing statute, and not whether an agency used a nonprocurement instrument to procure goods or services, was relevant to GAO’s review of the agency’s decision.