BID PROTESTS: GAO PROPOSED RULE CHANGES

This spring, the Government Accountability Office (“GAO”) announced a proposal to significantly revise bid protest rules and procedures.  Acting to implement Section 1501 of the Consolidated Appropriations Act for Fiscal Year 2014, the GAO proposed these rules changes to “reflect current practice and to streamline the bid protest process.”  Some of the more significant proposals include:

 

  • The creation and operation of an Electronic Protest Docket System (“EPDS”) for e-filing and document dissemination. One consequence of an electronic filing system is that the time for filing a protest may be impacted. Currently, in order to request and receive an automatic stay, a protester must file its protest one business day prior to the deadline in order for the GAO to provide notice to the agency.  In an electronic filing system, this notice might be automatic upon filing, such that filing a day early will no longer be necessary to invoke the automatic stay.  It remains to be seen whether and how GAO will address this issue.

 

  • A requirement for a filing fee, proposed to be $350.00 (currently there is no filing fee). It remains to be determined by the GAO how fee is to be paid. This is a potential issue in terms of timeliness of filing a protest because it is unclear what might happen if a fee is not recorded properly.  For example, if fee is paid with a credit card at the time of filing, will this be considered a timely filing?

 

  • Clarification of the “time for filing 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.” Such protests are proposed to be required to be “filed within 10 days of when the alleged impropriety was known or should have been known.”

 

  • A requirement that “parties to a protest must provide copies of all communications with the agency or other parties to the protest to the other participating parties either through EPDS or email”.

 

  • A provision that, “in cases where a protester or intervenor does not have counsel admitted to a protective order, and documents are withheld from the protester or intervenor on that basis, the agency must provide appropriately redacted documents that adequately inform the protester or intervenor of the basis for the agency’s arguments in response to the protest.”

 

  • A requirement that (1) comments on the agency report must be filed within 10 days after the agency files the report, unless GAO establishes a shorter period of time or grants an extension; (2) a protest shall be dismissed if the protester does not file comments within the period of time established in the revised rules; and, (3) reflecting longstanding GAO practice, “a protest allegation or argument shall be dismissed where the agency report responds to the allegation or argument, but the protester’s comments do not address the agency’s response.”

 

  • A clarification that “if the fifth day for filing the agency’s required response to a protester’s request for documents falls on a weekend or federal holiday, the response shall be filed on the last business day that precedes the weekend or federal ” This is apparently to address an open question and much fighting amongst parties regarding when the agency report is due in these situations.

 

  • Reflecting another longstanding GAO practice, a provision which states that “a protective order will not be issued where an intervenor retains counsel, but the protester does not.”

 

 

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