Many of you are aware of the Government Accountability Office’s (“GAO’s”) new bid protest regulations; this is a reminder that they went into effect today, May 1, and include several significant changes. You can see the April 2, 2018, Federal Register text of the revisions here, and in addition to the changes themselves, the background and discussion of comments received in response to GAO’s earlier proposed changes are worth reading to fully understand the new rules and where GAO is coming from.
A quick summary of the most important changes:
- All protests must now be filed in GAO’s new Electronic Protest Docketing System (“EPDS”). Protests via email will no longer be permitted.
- All new protests now require a $350 filing fee. This does not apply to supplemental protests.
- Filing anything through EPDS “constitutes notice to all parties of that filing.” This is very significant as there is no longer need to worry, after filing a protest, whether it was filed early enough in the day for GAO to notify the agency by COB that GAO received the protest. GAO will no longer be making those calls, as the agency will receive real-time notification of the protest through the EPDS system. That will constitute notice to the agency for Competition in Contracting Act (“CICA”) stay purposes. (Note that separately serving the Contracting Officer is still required, although it is the agency’s timely receipt of notice through the EPDS system that will trigger CICA stay obligations.)
- All subsequent filings are to be made through EPDS.
- GAO had proposed making redactions requirements more onerous but backed off somewhat in response to comments received. Although a redacted public version of the protest must be filed through EPDS within one day of the original protest filing, filers are only required to propose redacted versions of subsequent protected filings when another party requests a redacted version. In such cases the filer must propose redactions within two days of the request. Of course a filer can still propose redactions to its own filing without another party requesting redactions, but there is no requirement for the filer to do so absent a request from another party. GAO has acknowledged that while its protective orders could be read to require that redacted versions of all protected filings be created, in practice parties often disregard this and it is not necessarily a bad thing. Redacted filings can be useful but in some situations may not be worth the investment of attorney resources necessary to create them.
- The timeliness rules have been clarified to conform with case law such that, when a solicitation impropriety protest ground first becomes apparent after proposals are due and there will be no opportunity to submit revised proposals, such protest grounds must be filed within 10 days after the alleged impropriety is known or should have been known.
- When seeking protest costs after corrective action, protesters now need to file comments responding any agency opposition to reimbursing such costs within 10 days after receipt of the opposition.
A couple of notes about EPDS. It is similar to Case Management/Electronic Case Files (“CM/ECF”) in some ways but actually more intuitive and a bit easier to use. One important difference is that, while filings need to be designated as protected or non-protected, even non-protected filings are not publically available through the system itself—EPDS only makes the filings available to GAO and counsel in the case. Several of Blank Rome’s attorneys have been using EPDS on a pilot basis for the last couple of months; please reach out if you have any questions about how the system works.