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On April 2, 2018, the Government Accountability Office (GAO) published Final Rule 83 FR 13817, amending its bid protest regulations to implement the Electronic Protest Docketing System, make administrative and clerical changes, and “streamline the bid protest process.”

This Final Rule goes into effect on May 1, 2018.  We detail below some key changes it implements to the protest process.

The Electronic Protest Docketing System

Section 1501 of the consolidated Appropriations Act for 2015 directed GAO to establish and operate an electronic filing and document dissemination system.  GAO introduced the Electronic Protest Docketing System (EPDS) in a 2016 proposed rule, 81 FR 22197.

In the Final Rule, GAO confirmed that the EPDS will be the sole means for filing documents in connection with a protest, with two exceptions: documents containing classified material, and documents that are not suitable for filing through EPDS due to size or format.  GAO emphasized that classified material “shall not” be filed through EPDS, and reinforced its current practice directing parties to contact GAO for guidance in filing any such material.

In addition, GAO confirmed that, for the first time in its history, a uniform fee of $350 will be required for filing a GAO protest.  GAO clarified that it does not intend for the fee to discourage or reduce protests.  Rather, the fee will be used to cover the costs of establishing and operating EPDS and will be considered reimbursable costs if GAO recommends that the agency reimburse protest costs.  In response to comments, GAO confirmed that no additional fees will be required for supplemental protests, requests for reconsideration, or requests for recommendations regarding reimbursement of costs.

GAO directs parties to its website for further instructions on filing bid protests using EPDS.  However, unlike the PACER system in federal courts, EPDS will not provide access to any protest documents to non-parties.

Protest Timing for Solicitation Improprieties

In the Final Rule, GAO clarified a conflict between 4 CFR 21.2(a)(1) and (a)(2)—where the basis for challenging a solicitation becomes known after the solicitation’s closing date, but the solicitation does not establish a new closing date.  The Final Rule clarifies that the protest must be filed within 10 days of when the protester knew or should have known of that basis—regardless of whether the time period for filing other protest claims was ‘‘tolled’’ because a required debriefing had been requested.  This rule is consistent with GAO’s decisions in Protect the Force, Inc.—Reconsideration, B– 411897.3, Sept. 30, 2015, 2015 CPD ¶ 306, and Armorworks Enterprises, LLC, B–400394, B–400394.2, Sept. 23, 2008, 2008 CPD ¶ 176.

GAO acknowledged one commenter’s concern about the practical effects of this rule.  Specifically, by allowing protests concerning this type of solicitation impropriety to be “tolled” until after a required debriefing has been provided, the rule would avoid the possibility of a protester challenging both the solicitation impropriety and the source selection from being required to file two separate protests.   GAO maintained that the rule is necessary to resolve the existing regulatory conflict and that there is sound policy underlying the rule, that of resolving solicitation improprieties as early in the process as possible.  GAO also commented that the commenter’s concern “arises in exceedingly few protests.”

GAO Jurisdiction

GAO clarified that 10 U.S.C. § 2304c(e)(1) and 41 U.S.C. § 4106(f)(1) limit GAO’s protest jurisdiction over task and delivery orders to protests (i) challenging orders worth more than $10 or $25 million dollars for issued by civilian agencies or DoD, respectively;  or (ii) alleging that the order increases the scope, period, or maximum value of the contract.  We note that these jurisdictional limitations do not apply to orders issued under the Federal Supply Schedule.

GAO also clarified its jurisdiction over protests related to non-procurement instruments (e.g., grants, cooperative agreements or other transaction authorities).  While GAO generally will not review awards made under such instruments, it will consider protests alleging that an agency is improperly using such an instrument to procure goods or services.

Notification of Agency Override Decision

The Final Rule requires agencies, when overriding CICA’s automatic stay of performance, to provide GAO with either the written Determination & Findings (D&F) in support of the override decision, or a statement from the agency official that approved the D&F.  Although it does not administer or enforce the CICA stay, GAO explained that this change was necessary because CICA does require, at 31 U.S.C. § 3554(b)(2), that GAO consider the basis for any override when crafting an appropriate remedy where it sustains a protest.

Timing of the Agency’s Five-Day Letter

GAO’s regulations require an agency to provide, five days prior to the day it files the Agency Report, a letter detailing the documents that it intends to produce in response to the Protestor’s document requests (“Five-Day Letter”).  The Final Rule clarifies that if that fifth day falls on a weekend or federal holiday, the agency shall file the Five-Day Letter by the last business day before the weekend or a federal holiday.  Practically, this will serve to give protesters additional time to raise issues with an agency’s proposed document production before the Agency Report is due, and provide GAO additional time to address and resolve any such disputes.

Redactions

GAO’s standard Protective Order requires parties to file proposed redacted copies of every document marked protected.  The Final Rule acknowledges that parties historically have complied with this requirement on, at best, an ad hoc basis. Accordingly, the Final Rule adds clarification to the redaction requirements such that proposed redactions to a protected document are required to be provided within two days when requested by another party to the protest.  This rule does not negate the requirement that the protester file a redacted version of the initial protest.

Request for Recommendation for Reimbursement of Costs

The final rule requires a protester to file comments on an agency’s response to a request for a recommendation for reimbursement of costs within 10 days.  Where the protester fails to do so, GAO will dismiss the request.

Tags: bid protest, EPDS, GAO
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Photo of Anuj Vohra Anuj Vohra

Anuj Vohra litigates high-stakes disputes on behalf of government contractors in federal and state court, and maintains an active bid protest practice before the U.S. Government Accountability Office and the U.S. Court of Federal Claims. He also assists clients with an array of…

Anuj Vohra litigates high-stakes disputes on behalf of government contractors in federal and state court, and maintains an active bid protest practice before the U.S. Government Accountability Office and the U.S. Court of Federal Claims. He also assists clients with an array of issues related to contract formation (including subcontracts and teaming agreements), regulatory compliance, internal and government-facing investigations, suspension and debarment, organizational conflicts of interest (“OCIs”), intellectual property and data rights, and the Freedom of Information Act (“FOIA”).

Prior to entering private practice, Anuj spent six years as a Trial Attorney in the U.S. Department of Justice’s Commercial Litigation Branch. At DOJ, he was a member of the Bid Protest Team—which handles the department’s largest and most complex protests—and served as lead counsel in dozens of matters representing the United States in commercial disputes before the U.S. Court of Appeals for the Federal Circuit, the Court of Federal Claims, and the U.S. Court of International Trade.

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Photo of Mark Ries Mark Ries
Read more about Mark Ries
Photo of Christian Curran Christian Curran

Christian N. Curran is a partner in Crowell & Moring’s Washington, D.C. office, where he practices in the Government Contracts Group. His practice focuses on government contracts litigation and counseling, including bid protests, government investigations, and compliance with federal and state procurement laws…

Christian N. Curran is a partner in Crowell & Moring’s Washington, D.C. office, where he practices in the Government Contracts Group. His practice focuses on government contracts litigation and counseling, including bid protests, government investigations, and compliance with federal and state procurement laws and regulations.

Christian has broad experience in the government contracts arena, including bid protest litigation at both the Government Accountability Office and the Court of Federal Claims, contract claims before the Armed Services Board of Contract Appeals, prime-sub disputes, internal investigations, mandatory disclosures, transactional due diligence, Defense Contract Audit Agency audits, and compliance assessments. He also has experience in both traditional litigation and alternative dispute resolution forums, including international arbitration and mediation, and administrative proceedings before various government agencies.

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Photo of Rob Sneckenberg Rob Sneckenberg

Rob Sneckenberg is a government contracts litigator in Crowell & Moring’s Washington, D.C. office. He routinely first chairs bid protests before the U.S. Government Accountability Office (GAO) and U.S. Court of Federal Claims (COFC), and has successfully argued multiple appeals before the U.S.

Rob Sneckenberg is a government contracts litigator in Crowell & Moring’s Washington, D.C. office. He routinely first chairs bid protests before the U.S. Government Accountability Office (GAO) and U.S. Court of Federal Claims (COFC), and has successfully argued multiple appeals before the U.S. Court of Appeals for the Federal Circuit. He also represents contractors in contract claim and cost accounting disputes before the Armed Services Board of Contract Appeals (ASBCA), and counsels clients on a wide array of government contracts investigations. Rob is very active in Crowell & Moring’s pro bono program, where he focuses on civil and criminal appeals.

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Photo of Payal Nanavati Payal Nanavati

Payal Nanavati is a counsel in the firm’s Washington, D.C. office, where she practices in the Health Care and Government Contracts groups. Payal’s government contracts practice focuses on defending companies under the False Claims Act, litigation before the Armed Services Board of Contract…

Payal Nanavati is a counsel in the firm’s Washington, D.C. office, where she practices in the Health Care and Government Contracts groups. Payal’s government contracts practice focuses on defending companies under the False Claims Act, litigation before the Armed Services Board of Contract Appeals, and bid protests before the Government Accountability Office. Her health care practice includes working with providers and plans seeking to comply with laws and regulations applicable to digital health initiatives, fraud and abuse, and mental health parity.

Payal is a co-host of Crowell & Moring’s health care podcast, Payers, Providers, and Patients – Oh My!, which covers legal and regulatory issues that affect health care entities’ in-house counsel, executives, and investors.

Payal’s recent pro bono representations include clients seeking asylum or legal immigration status under the Violence Against Women Act and successfully defending against eviction attempts by a client’s landlord. During law school, Payal served as a staff member for the Journal of Gender and Law.

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