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Government Contracts Monitor

GAO Proposes Changes to Its Bid Protest Rules to Establish Electronic Filing

April 26, 2016

By: Lindsay Simmons

The Government Accountability Office (GAO) has issued a proposed rule amending its Bid Protest Regulations to implement the requirements of Section 1501 of the Consolidated Appropriations Act for Fiscal Year 2014 (the “FY14 CAA”) and to make certain administrative and other changes. The primary thrust of the proposed amendments is to implement the FY14 CAA’s direction to establish and operate an electronic filing and document dissemination system for the filing of bid protests at GAO.

GAO is currently in the process of developing the system, which will be called the Electronic Protest Docketing System (EPDS). The EPDS will be the sole means for filing a bid protest at GAO (with the exception of protests containing classified information), and will allow parties to a bid protest and GAO to file and receive documents. As authorized by the FY14 CAA, GAO anticipates requiring persons filing a protest to pay a $350 fee to file a protest through EPDS. The amount of the fee is based on GAO’s actual costs to develop the system, estimated costs of maintaining it, and estimates of future bid protest filings. The fee amount will be subject to review every two years.

The proposed rule describes changes to GAO’s Bid Protest Regulations to reflect the use of -- and establish practice requirements and guidelines for using -- the EPDS for filing protests and agency reports, handling certain communications among the parties, and submitting agreed-upon redacted versions of protest documents. The rule also includes a number of other language changes to clarify GAO’s use of protective orders and other matters. GAO also plans to publish additional guidance (not included in the Bid Protest Regulations) relating to the mechanics of using the EPDS and paying the filing fee.

In addition to the EPDS-related changes, GAO proposes to make two changes to the protest timing provisions of the Bid Protest Regulations: First, GAO plans to add language to paragraph (a)(1) of 4 C.F.R. §21.2 to clarify that challenges to a solicitation where the basis for a protest becomes known when there is no solicitation closing date (or when no further submissions in response to the solicitation are anticipated) must be filed within 10 days of when the alleged impropriety was known or should have been known. Second, GAO proposes to revise paragraph (a)(2) of 4 C.F.R. § 21.2 to clarify that the 10-day ‘‘safe-harbor’’ provision (i.e., the provision establishing that protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required shall be filed no later than 10 days after the date on which the debriefing is held) does not apply to protests challenging alleged solicitation improprieties covered by paragraph (a)(1) of 4 C.F.R. §21.2.

The latter change is intended to resolve a potential uncertainty addressed by GAO in a recent decision, Protect the Force, Inc.—Recon., B–411897.3 (Sept. 30, 2015), 2015 CPD ¶ 306. In that case, GAO denied the protester’s request to reconsider its dismissal of a protest challenging the terms of a solicitation as untimely. The protest had been filed within 10 days of a requested and required debriefing, but more than 10 days after the agency revised its solicitation. Because the solicitation did not establish a new closing date, GAO concluded that the challenge to the terms of the solicitation was required to be filed within 10 days of the revision to the solicitation. This change aims to ensure that paragraph (a)(2) of 4 C.F.R. § 21.2 expressly reflects the decision in Protect the Force, Inc.—Recon.

Finally, the rule proposes to revise paragraph (e) of 4 C.F.R. § 21.8 to provide more specific guidance regarding recommendations for reimbursement of protest costs.

While the GAO is not subject to the Administrative Procedures Act, and therefore is not required by law to seek comments before issuing a final rule, GAO has decided to invite written comments regarding the proposed revisions. Interested parties should submit comments on or before May 16, 2016 by email at bidprotestregs@gao.gov, to the attention of Jonathan L. Kang, Senior Attorney, Government Accountability Office, 441 G Street NW., Washington, DC 20548.

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