Highlights

  • Effective May 1, 2018, GAO’s new electronic protest docketing system (“EPDS”) will be the only method for filing bid protests at GAO – where the protest does not involve classified information.
  • Mandatory filing fee of $350.00 will apply to every protest filed – and a protest will not be deemed filed until the filing fee is received.
  • Size limitations for the EPDS are 50 megabytes for a single pdf or .xls document and aggregate total of 250 megabytes for each upload (e.g., protest letter of 50 megabytes, plus four Exhibits each also 50 megabytes).
  • Effective May 1, 2018, parties only are required to prepare proposed redacted versions of documents filed with GAO when specifically requested to do so by another party. (This does not apply to the redacted version of a protest which still must be filed within 1 day of filing the protest.)
  • Timeliness rules also revised – Protest related to solicitation impropriety that becomes apparent after proposals are submitted, but when there is no further opportunity to submit revised proposal, must be filed within 10 days of when protester knows or should know of the impropriety.

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GAO’s Final Rule Implementing Electronic Protest Docketing System and Other Administrative Changes is Effective May 1, 2018

GAO’s adoption and implementation of an electronic docketing system for bid protests filed with that office has been in the works since it was first mandated as part of the Consolidated Appropriations Act for 2014.  On April 2, 2018, GAO issued a final rule that implements the system – EPDS – effective May 1, 2018 and makes other administrative changes to the protest process.

Use of Electronic Docketing Mandatory:

Effective May 1, 2018, GAO’s new EPDS will be the sole means for filing a bid protest at GAO – unless the protest involves classified information. This is a significant change from the prior system where protests could be filed by email, fax and/or mail.  Under the new system, a protest will not be deemed filed until the mandatory $350 filing fee also is received.

Mandatory Filing Fee of $350:

For contractors, the most significant new requirement is the $350 mandatory filing fee required to file a protest at GAO. Previously, bid protests were filed 

at GAO with no charge.  Effective May 1, 2018, a protest will not be deemed filed until the $350 filing fee is paid. 

In publishing its new rules, GAO explained that it derived the $350 fee by taking into account development costs for the EPDS, estimates of hosting and maintenance costs, estimates of future bid protest filings, and a recovery period for development costs of approximately seven years. In response to public comments, GAO stated that it does not intend for the fee to discourage or reduce the number of protests.

It long has been the rule that a successful protester may be able to recover some or all of its attorneys’ fees and other costs incurred in pursuing its protest. GAO intends to treat reimbursement of the $350 filing fee similarly to other fees/costs associated with a protest where a protest is sustained and/or where an agency elects to take corrective action. That is, in cases where GAO recommends that costs be reimbursed, the agency will have to reimburse the filing fee also. That being said, it is unlikely that reimbursement of the filing fee will be recommended by GAO where, for example, an agency takes corrective action in response to a protest before an agency report is filed—the same as the current rule for reimbursement of other protest costs.

Other Changes Addressed in GAO’s Final Rule:

Timeliness of Certain Protests against Solicitation Improprieties:

Ordinarily, protests against defects or ambiguities in solicitations must be filed before the next due date for submission of proposals or other responses to the solicitation document. GAO has amended its timeliness rules to clarify that where a basis for challenging a solicitation becomes known after proposals have been submitted, and the solicitation does not establish a new closing date, the protest must be filed within 10 days of when the protester knew or should have known of that protest basis—regardless of whether the time period for filing other protest claims was ‘‘tolled’’ because a required debriefing had been requested.

Revised Process for Proposed Redactions of Protest Filings:

As part of the Final Rule, GAO has amended the requirement and process for circulation of proposed redacted documents filed in a protest.  A protester still must file a redacted copy of its protest within 1 day of filing the “protected” protest.  For all other documents, an initial proposed redacted version of that document only must be circulated if requested by another party.  Upon receipt of such a request, the authoring party must circulate a proposed redacted version to all other parties within 2 days of the request.  The proposed redacted document is not filed in the EPDS.  The parties collectively are to reach agreement on a final redacted version separate from the EPDS.  And, once there is an agreed on redacted version, that final redacted version is filed in the EPDS by the authoring party.

If the parties cannot reach agreement on a final redacted version, the objecting party may submit the matter to GAO for resolution.

Notice of Stay Overrides:

If an agency elects to override the automatic stay of performance or contract award, where applicable, the agency is required to file either a copy of the determination and finding regarding the override or a statement by the individual who approved the determination and finding with GAO.

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What Has Not Changed:

The legal grounds for filing a protest have not changed, and neither has the standard by which GAO reviews protests. According to GAO’s own statistics, the most common grounds for sustaining protests in 2017 were: (1) unreasonable technical evaluation; (2) unreasonable past performance evaluation; (3) unreasonable cost or price evaluation; (4) inadequate documentation of the record; and (5) flawed selection decision. (These statistics are available at https://www.gao.gov/assets/690/688362.pdf. GAO’s new rules are at https://www.gpo.gov/fdsys/pkg/FR-2018-04-02/pdf/2018-06413.pdf.)

FOR QUESTIONS OR MORE INFORMATION, PLEASE CONTACT:

Kenneth B. Weckstein

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Shlomo D. Katz

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Pamela A. Reynolds

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Tammy Hopkins

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Andrew C. Crawford

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