Last Friday, the Government Accountability Office (GAO) released a Federal Register notice setting forth proposed amendments to the GAO Bid Protest Regulations (4 C.F.R. Part 21). Below, we review the major proposed changes to the GAO Bid Protest Regulations you should know about:
Electronic Protest Docketing System
On January 17, 2014, Congress passed the Consolidated Appropriations Act for 2014 (codified at 31 U.S.C. 3555(c)), which included a provision requiring GAO to develop an electronic case filing system for bid protests. The proposed amendments now provide the first glimpse into the much-anticipated electronic case filing system, called the Electronic Protest Docketing System (EPDS).
According to the proposed amendments, the EPDS will become an integral part of the bid protest process. Specifically:
EPDS will be the sole means for filing a bid protest at GAO (with the exception of protests containing classified information) and will enable parties to a bid protest and GAO to file and receive documents.
While the proposed amendments offer little detail regarding the functionality and design of the EPDS, GAO promises to provide more detailed information about the system once the amended GAO Bid Protest Regulations are finalized.
Fee for Bid Protest Filings
Currently, filing a bid protest at GAO does not require the protester to pay a filing fee. This practice will likely soon change. In addition to requiring GAO to establish an electronic case filing system (i.e., the EPDS), the Consolidated Appropriations Act for 2014 also mandated GAO to collect filing fees to “support the establishment and operation of the electronic system.”
Although the proposed amendments are subject to change prior to finalization, GAO “anticipates the bid protest filing fee will be $350.” The amount of the filing fee will be reviewed by GAO every two years to ensure that the filing fees collected are adequate to operate and maintain the EPDS. However, there is little clarity at this point regarding exactly how filing fees will be assessed in situations such as supplemental protest filings, or a protest filed after the Government utilizes corrective action in response to an earlier-filed protest.
Timeliness for Protests
Our blog previously featured an analysis of the GAO’s problematic decision in Protect the Force, Inc.-Recons., B-411897.3. In that case, GAO dismissed a post-award bid protest filed by Protect the Force as untimely. As we observed in our blog, GAO’s decision in Protect the Force exposed an ambiguity in 4 C.F.R. § 21.2(a) regarding the timeliness of a protest challenging an error or impropriety in a solicitation amendment, where the Government amends the solicitation but does not provide offerors an opportunity to submit revised proposals in response to the amendment.
In response to GAO’s decision in Protect the Force, GAO’s proposed amendments will revise the GAO Bid Protest Regulations “to clarify the time for filing challenges to a solicitation where the basis of the protest becomes known when there is no solicitation closing date or when no further submissions in response to the solicitation are anticipated.” In fact, the proposed amendments will revise 4 C.F.R. § 21.2(a)(1) to state:
(a)(1) . . . If no closing time has been established, or if no further submissions are anticipated, any alleged solicitation improprieties must be protested within 10 days of when the alleged impropriety was known or should have been known.
Although the proposed amendment to 4 C.F.R. § 21.2(a)(1) resolves a situational ambiguity in the GAO Bid Protest Regulations, it adds yet another layer to an already complex set of rules governing the timeliness of bid protests.
It has been almost 8 years since any significant changes were made to the GAO Bid Protest Regulations. While the majority of the proposed amendments are tailored towards the introduction and implementation of the EPDS, there are also other amendments to the GAO Bid Protest Regulations that are important. Of course, we will keep you posted as developments regarding the proposed amendments arise.