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 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.
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.