Earlier this week, the GAO announced the final version of its amended bid protest regulations, which take effect May 1, 2018. Significant changes to the regulations include
- the implementation of an electronic docketing system,
- imposition of a filing fee,
- possible reduction in the time within which the agency must respond to a protest’s specific document requests, and
- directions for preparing and filing redacted versions of protected documents. The amended rule, as well as public comments and the GAO’s responses, can be found at 83 FR 13817. Below is a summary of these key changes to the regulations:
Electronic Protest Docketing System: Stemming from requirements contained in the 2014 appropriations bill, the GAO is implementing an Electronic Protest Docketing System (“EPDS”), effective May 1. The EPDS will be the sole means for filing bid protests at the GAO, with the exception protests containing classified information. In response to public comments regarding the scope of “classified information,” and, specifically, whether that included proprietary or source-selection sensitive information typically characterized as “protected information,” in bid protest parlance, the GAO clarified that “classified information” refers only to information deemed classified by a United States government agency for national security reasons. With the implementation of this electronic docketing system, all parties to the protest will file and receive documents through the EPDS, though the protestor continues to be required to serve a copy of the original protest on the contracting officer pursuant to 4 CFR 21.1. While parties to the protest will have access to the documents in the EPDS, EPDS does not permit non-parties to access to these documents, redacted or otherwise. The GAO has published instructions on the use of the EPDS, which are available here.
Filing Fee: The anticipated filing fee for each protest filed in EPDS will be $350.00. The GAO’s response to public comments concerning the fee noted that it is not intended to discourage or reduce the number of protests, but is intended to offset the costs of establishing and operating EPDS. GAO rejected calls to waive the filing fee for small businesses. Successful protestors may, however, request that the GAO recommend that the agency reimburse the filing fee as part of the costs associated with the successful protest.
Document Requests: Protest filings often include requests for specific documents to be included in the Agency Report. Historically, the procuring Agency was required to provide its response to this document request five days before producing the Agency Report. As of May 1, if this deadline, i.e. the fifth day before the filing of the Agency Report, falls on a weekend or holiday, the GAO will require the Agency to provide its response by the last business day that precedes the weekend or holiday. While this does not directly affect protestors’ filing deadlines, it may result in additional time to object to the Agency’s position on producing the documents requested.
Redactions: Many protestors have different approaches to preparing and supplying redacted versions of protected documents. While the standard protective order requires parties to file proposed redacted versions of every document marked, the GAO recognizes in the comments published in the Federal Register that it is not uncommon for parties to agree not to prepare redacted versions of all documents. Under the amended regulations, the GAO will require that when a party files a document in EPDS that is marked protected, the party must—if requested by another party—provide a proposed redacted version of the document within 2 days. The amended regulation further provides that the final, agreed-to redacted version must be filed with EPDS. Any disputes regarding the proposed redactions will be resolved by the GAO.
For many, it is likely that the biggest impact of the amended regulations will be the filing fee, which can be a significant for a small business. Despite this fee, however, the GAO remains an important forum for bid protests. As discussed in previous posts, contractors who timely file their protests with the GAO are entitled to an automatic stay of performance on the awarded contract—a critical component for achieving meaningful relief in a bid protest. Additionally, with the implementation of the revised debriefing requirements (link to previous blog post) (applicable to Department of Defense procurements), contractors will be better informed when deciding whether to protest and incur this new filing fee.