On May 1, 2018 the Government Accountability Office (GAO), which hears and decides the majority of federal bid protests each year, made some important rule changes. Some of these changes can have significant implications for lawyers and the contractors they represent. Read on to learn more about the most important rule changes, and how they might affect you if you find yourself in a GAO protest.
#1: A Filing Fee
The most significant change, and the one bound to affect all contractors who move to protest at GAO, is the new filing fee. The days of filing a protest for free by sending an email or for the cost of a postage stamp are over. Effective May 1, all protestors must pay a $350 filing fee to have their protest heard at GAO.
This change was the source of much debate. Some folks wanted no fee at all, thinking it would discourage small businesses from protesting. Others thought the fee should be higher, with one proposal suggesting the cost of file a protest should be $1,000. Another proposal advocated for a sliding scale in which contractors pay higher and higher fees as they file more protests. That said, most high-fee proposals were united in the goal of discouraging contractors from filing so-called frivolous protests.
GAO kept the proposed $250 fee. Ultimately, the dollar amount had less to do with its perceived impact on bid protests, and more to do with a statutory change. Congress’ mandate was that the fee must pay for GAO’s new electronic filing system (see #2). GAO estimated that a fee of $350 per protest would cover the costs associated with the new system, and that’s where they set the fee.
It’s unlikely that the $350 fee will discourage most protests. $350 isn’t a huge amount of money in the context of the majority of federal contracts. But, it could deter the rare contractor that files an excessive amount of protests. (In fact, one company filed so many baseless protests that GAO suspended its ability to file new ones). And small business contractors may think twice about protesting a smaller dollar buy.
#2: The E-Filing System
Contractors now need to register on GAO’s Electronic Protest Docketing System (EPDS) in order to file a protest. Attorneys are probably wondering if EPDS is similar to PACER, the system the federal court uses. In some ways, EPDS is a bit more user-friendly than PACER. It’s worth noting, though, that EDPS users won’t be able to search for unsealed filings in protests to which they are not a party,(like they can in PACER). And EPDS blocks access to all filings after GAO issues a protective order and before it grants lawyers access to protected filings. EDPS will, however, be a full e-filing system and notify you when others have submitted documents in the cases to which you are privy. GAO will no longer accept submissions via faxes or hard copies, unless for some reason your documents can’t be filed electronically.
#3: Additional Requirements Around Automatic Stay
On one hand, there’s nothing new about the automatic stay. If your protest meets the requirements of timeliness or certain other criteria, then there’s an automatic stay of either the award or contract performance. And agencies can override the automatic stay when there are urgent or compelling circumstances, or if doing so is in the best interest of the United States.
The difference now is that when an agency overrides the stay, it must issue a written determination or statement explaining the basis for the override with GAO and the protest parties. This way, all involved parties will know what the agency is doing, and why, in terms of the stay. It’s worth nothing that these overrides, however, can be challenged at the Court of Federal Claims.
#4: New Thresholds for Protests of Task & Delivery Orders
Congress and the agencies have gone back and forth over the years about what the protests of task and delivery order thresholds should be. GAO’s new protest rules now explain that most protests of task and delivery orders (except for scope issues) are subject to statutory dollar thresholds. Although the rules don’t explicitly state what those thresholds are, this information is established by statute. For DoD task and delivery orders, the current dollar threshold is $25 million, and for the “civilian” agencies it’s $10 million.
Although it’s fairly uncommon, from time to time there’s a defect in an agency’s solicitation that emerges only after proposals or bids have been submitted with no opportunity for offerors to re-submit. There has been some discussion over when you can launch a protest under such circumstances, since there’s no additional bid or proposal anticipated and the agency might make an award and move to debrief while you’re still considering whether or not to protest.
GAO has now amended its regulations to state that these unusual circumstances have to be protested within 10 days from when the basis of the protest is known or should have been known. This change makes manifest a rule buried in a few GAO bid protest rulings. The addition underscores the complexity of GAO’s protest timeliness rules, which can be a real headache even for protest lawyers. So contractors should get some solid help trying to figure out the appropriate deadlines. You don’t want to lose your opportunity to protest.
For more on GAO’s new rule changes, listen to my interview with Tom Temin on Federal News Radio’s “Federal Drive.”