The Government Accountability Office (GAO) issued a final rule on April 2, 2018, that implements several important changes to the GAO bid protest process, including revisions to the draft regulations that were proposed a year ago. The new rules, which most significantly require the use of an electronic docketing system and impose a new filing fee, become effective May 1, 2018. We summarize the most notable rule changes below.
1) Electronic Filing System
Beginning on May 1, all protests filed at GAO must be filed electronically via GAO’s Electronic Protest Docketing System (EPDS), which is similar to the system used by the federal courts. GAO already has been testing this system during the last several months. EPDS will be “the sole means for filing a bid protest at GAO,” except that classified material must not be filed through EPDS. EPDS replaces GAO’s current procedure, which requires litigants to transmit protest filings to an email address. However, litigants still are encouraged to use email for a variety of communications during the protest. Once the protest bar adjusts to EPDS, the system should add a degree of efficiency and uniformity to the protest process. In particular, the procuring agency will receive immediate notice of the filing of the protest, thereby avoiding the current delay where the GAO must process the protest before providing notice to the agency.
2) Filing Fee of $350
GAO also has imposed a filing fee of $350 for new protests, payable through EPDS. Notably, this nominal fee is slightly lower than the filing fee of $400 required at the Court of Federal Claims. In deliberating on the final rule, GAO specifically rejected requests—presumably by government agencies—to impose a much larger filing fee to discourage “frivolous” protests. GAO also rejected a request that the fee be required for each supplemental protest and for requests for reconsideration or recovery of expenses. GAO’s comments on the final rule clarify that the filing fee is designed only to cover the administrative costs of EPDS and not to discourage protests. In addition, while GAO expressly declined to require that the filing fee be automatically reimbursed to the protester in the event of a successful protest, GAO preserved the right to recommend that relief.
3) Clarification of Protest Timeliness Rules
The final rule clarifies that, in a situation where “the basis for a protest becomes known when there is no solicitation closing date or when no further submissions in response to the solicitation are anticipated,” any protest must be filed within 10 days of when the basis of protest was known or should have been known. This important new provision is designed to “address a conflict” in GAO’s timeliness rules that GAO addressed in Protect the Force Inc.—Recon., B–411897.3, Sept. 30, 2015, 2015 CPD ¶ 306. In that case, the agency amended the solicitation on July 27, 2015 but did not give offerors an opportunity to submit revised proposals. Two days later, on July 29, 2015, the agency announced that the protester had not been selected for award. The protester requested a debriefing, which was held on August 5, 2015, and the protester filed its protest on August 10, 2015. GAO dismissed the protester’s challenge to the modified solicitation terms as untimely under the principle articulated above.
The final rule also clarifies that two 10-day deadlines apply to a protester’s request to recover costs following a successful protest. First, a protester must file comments on an agency’s response to a request for protest costs within 10 days, or else GAO will dismiss the request. Second, in the event that an impasse arises in negotiations between an agency and a protester over the amount of any claim for protest costs, the protester has 10 days to file a request for GAO to recommend the amount to be paid.
4) Submission of the Agency Report
Under the current regulations, at least five days prior to issuing its Agency Report responding to a protest, an agency is required to file an index of the documents it intends to produce, allowing a protester an opportunity to object to the agency’s planned production and GAO an opportunity to resolve any production dispute before document production is made. The final rule clarifies that “[i]f the fifth day prior to the filing of the report falls on a weekend or Federal holiday, the response [to a request for documents] shall be filed on the last business day that precedes the weekend or holiday.” This amendment is designed to prevent an agency from producing its document index immediately before filing its Agency Report, thus forcing the protester to address document production issues in the midst of its “comment period”—the 10 calendar days within which a protester must file its comments on the Agency Report.
5) CICA Stay Override
The final rule also requires that, in the rare instance where an agency decides to override the automatic suspension of performance of a new award to which a protester often is entitled under the Competition in Contracting Act (CICA)—the so-called “CICA Stay”—the agency must file in EPDS a copy of the determination and findings for the override or a statement from the approving official that specifies the statutory basis for the override. This requirement will afford protesters efficient access to the agency’s rationale for the override and facilitate any decision to protest that override at the Court of Federal Claims.
The final rule addresses certain issues relating to the redaction of documents subject to a GAO protective order. Most notably, while the rule requires only final agreed-to redactions to be filed in EPDS, the rule provides that a party must circulate (presumably via email) a proposed redacted version of any protest filing within two days of the request for such a redaction by another party.
GAO also expressly declined to include in the final rule any provision addressing “party-only” or “party-specific” redactions, which refer to redactions prepared only for one party’s benefit. The purpose of such redactions is to allow a party to review otherwise protected material that involves only the party’s own proprietary and confidential material. While many GAO attorneys historically have approved this practice, other GAO attorneys recently have opined that the protective order recognizes only two types of documents—“protected” and “public”—and the release of “party-specific” redactions is impermissible. Though the rule itself does not address the propriety of such redactions, the comments to the rule clarify that “party-specific” redactions are permitted: “GAO has not opposed the preparation and approval of party-specific redactions. Neither 4 CFR 21.4 nor the protective order prohibit this practice, and GAO does not see a need to address this matter in the rule.”
Overall, the final rule injects some welcome regularity and formality into the protest process and resolves several longstanding ambiguities and conflicts in GAO’s prior regulations.