GAO has announced a series of proposed amendments to its bid protest regulations. The changes are prompted by the Consolidated Appropriations Act for Fiscal Year 2014, one section of which required GAO to establish an electronic filing system. But the amendments are not limited to implementing electronic filing, and many of the other proposed adjustments warrant attention.
Electronic filing and new filing fee
Many of the proposed amendments address GAO’s proposed “Electronic Protest Docketing System,” or EPDS. Once adopted, EPDS will be the sole means for filing a bid protest at GAO, replacing the “email@example.com” email method. Protests containing classified information will not use EPDS.
Some protest-related communications will also be required to be submitted through EPDS under the proposed amendment to Section 21.3(a). GAO has stated that it will post instructions on its website as to which communications should be submitted through EPDS and which will continue to be exchanged through email. While this guidance is not yet available, the text of the proposed rule does not suggest a substantive change in existing practice, under which certain communications are distributed to all parties (and GAO, but parties may also have separate contact about some protest-related issues.
A filing fee in the amount of $350—the first of its kind at GAO—will be imposed to cover the costs of supporting EPDS. The fee is to be paid by the protester upon initiating the protest. GAO has not addressed how the filing fee will be paid, a potentially important consideration in light of GAO’s short and strictly enforced filing deadlines.
Other important amendments
GAO’s proposed amendments include substantive changes unrelated to EPDS. Many, but not all, of these changes are intended to formally adopt rules announced in GAO’s decisions. Here are some of the signifcant changes.
Two revisions to the regulations are intended to clarify the time for filing a protest when there is no solicitation closing date or when no further submissions in response to the solicitation are anticipated. The revisions make clear that the time for filing in this situation is 10 days from the date the impropriety was known or should have been known, and that this filing period cannot be extended by requesting a debriefing.
The amended rules will codify GAO’s holding in Protect the Force, Inc.—Recon., B-411897.3 (Sept. 30, 2015). In that case, the agency changed the solicitation on July 27, 2015, after proposals had already been submitted. Protect the Force was notified that it was not selected on July 29, was provided a debriefing on August 5, and filed a protest five days later. GAO found that Protect the Force’s protest was untimely because it was filed more than 10 days after Protect the Force became aware of the basis for its protest. GAO did acknowledge, however, that “our bid protest regulations might be read to permit timely filing of an issue involving an alleged solicitation impropriety until up to 10 days after a required debriefing.”
GAO’s acknowledgement of the problem in its regulations in Protect the Force—Recon. was an understatement. The plain language of Section 21.2(a)(2) clearly supported Protect the Force’s position, as it stated that protests under the relevant circumstances were to be filed within 10 days of knowledge of the impropriety “with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required.” GAO justified its decision in Protect the Force—Recon. citing previous decisions. Now, with these proposed amendments, GAO’s regulations will state the same rule embodied in those rulings, a welcome change.
- Protective orders and pro se protesters
The proposed amendments would make two changes to adjust GAO’s policies regarding protective orders and pro se protesters. First, Section 21.4 will state that GAO generally will not issue a protective order where the protester does not have counsel. Second, where GAO does issue a protective order and one party lacks counsel, the amended rules would require the agency to provide “appropriately redacted documents that adequately inform the protester or intervenor of the basis for the agency’s arguments in response to the protest.”
While the first of these changes codifies existing practice, the second may pose a challenge to agencies in cases where one party does not have counsel. At worst, pressure to provide a useable redacted agency report could lead to erosion of the protection of competitive information in these cases.
- Notice required when agency overrides stay
GAO has proposed a requirement that the agency file a notification if it overrides the CICA stay of award or performance. Under 31 U.S.C. §§ 3553(c)(2)(B) and (d)(3)(C)(ii), an agency may make an award or continue performance despite a protest only if it makes a written finding that the action is necessitated by “urgent and compelling circumstances.” Until the proposed amendment, agencies have not been required to notify anyone but the Comptroller General that it was taking this action. They have furthermore not been required to disclose their written conclusions. GAO’s proposed changes permit more scrutiny of agencies’ decisions to go forward with contracts despite a pending bid protest.
- Reimbursement of costs
Also of note is GAO’s proposal to amend its procedures for requests for protest costs under Section 21.8(e) and (f). Under the current rule, the protester files a request for costs within 15 days of learning that GAO closed the protest in response to the agency’s commitment to take corrective action. The agency “may” respond 15 days thereafter.
Under the revised rule, the agency must respond with its objections or its agreement to the request. A similar amendment to Section 21.8(f) is proposed, requiring the agency to submit a response to any request that GAO determine the amount of costs to be awarded. Preventing agencies from staying silent will allow GAO to determine when an agency has meritorious objections to requests for costs.
GAO is accepting comments on its proposed amendments until May 16, 2016. Comments may be submitted by email at firstname.lastname@example.org, to the attention of Jonathan L. Kang, Senior Attorney, Government Accountability Office, 441 G Street NW, Washington, DC 20548.