Government Contracts Monitor
GAO Mandates Bid Protest E-Filing and $350 Filing Fee Starting May 1, 2018
April 12, 2018
The Government Accountability Office (GAO) is requiring that all new bid protests filed starting May 1, 2018, be filed electronically, using GAO’s new Electronic Protest Docketing System (EPDS). GAO also is requiring payment of a $350 filing fee at the time of filing as a condition to acceptance and processing of a new protest. These new requirements apply to all new bid protests, except protests involving security classified information, as to which protestors will continue to need to separately coordinate filing procedures with GAO. Implementation of these new requirements means that all individuals seeking to file new bid protests at GAO on or after May 1, 2018, including those seeking to file pro se and proceed without counsel, will need to register with GAO and learn how to use EPDS. Fortunately, GAO has posted detailed registration guides and instruction manuals on its website at https://epds.gao.gov/login. However, the tight timeliness requirements applicable to filing bid protests mean that individuals who might want to file a protest should register well in advance, so as to be prepared and ready to move should the need arise.
As previously discussed here, this action has long been anticipated and is a welcome development that should facilitate and expedite the bid protest filing process at GAO. The new EPDS system will replace the past multitude of filing means (email, fax, mail, messenger delivery, etc.), and should provide greater certainty and consistency. However, the burden to ensure the timely filing of protests and protest-related submissions explicitly remains on the filing party. It therefore is incumbent on those filing bid protests to understand and act in a timely manner in using the new system.
Importantly, the EPDS provides access limited to the eligible parties to a specific protest (i.e., protestor, intervenor or agency). This requires protest specific action as to each new protest. The EPDS thus is not a general publicly-accessible system, such as Pacer, providing public access to all GAO filings. All formal protest filings, and most communications with GAO, will be filed via the new system, and such filing will provide service on all parties to the protest. However, GAO expressly states that it will continue to reach out to the parties by email and phone, as appropriate, and the parties will continue to communicate with each other on procedural and other issues, including proposed redactions, outside of EPDS. Also, the EPDS does not eliminate the continuing requirement to independently provide a copy of a new protest to the cognizant procuring agency contracting officer within 24 hours of filing the protest with GAO.
GAO’s new Final Rule establishing the EPDS was issued on April 2, 2018 (83 Fed. Reg. 13817). This Final Rule implements the requirements of Section 1501 of the Consolidated Appropriations Act for Fiscal Year 2014 (the “FY14 CAA”), and follows a proposed rule issued almost two years ago on April 16, 2016. The proposed rule elicited 34 timely comments, which are discussed in the Final Rule. Some of these comments requested additional information as to how the EPDS will function. GAO has addressed these comments by providing detailed registration and implementation instructions, including the transition to EPDS, on GAO’s website. Other comments suggested that the proposed $350 filing fee should he higher, or lower (particularly for small business). GAO reiterated that the filing fee is not intended to discourage or reduce the number of protests, and is intended solely to cover the costs of establishing and operating the EPDS. GAO explained its calculation methodology, and reaffirmed that “$350 is appropriate given the costs of the system.” GAO stated that it “will monitor the fee to ensure that it is properly calibrated to recover the costs of establishing and maintaining the system,” and will make any adjustments necessary to reflect changes in such costs, consistent with the statutory direction. Please note that the $350 is a one-time fee, and that no additional fees will be required in connection with subsequent issues relating to the same protest, including protest supplementation, protest costs and reconsideration.
In response to other comments, GAO confirmed that the $350 filing fee is mandatory, and that EPDS will not permit the filing of a protest without confirmation of payment. GAO further clarified that the $350 filing fee will be considered a cost of pursuing a protest, and will be recoverable by the protestor in instances where bid protest costs are authorized. However, GAO rejected the suggestion that a prevailing party be automatically reimbursed if a protest is sustained.
GAO’s Final Rule also makes certain other changes to GAO’s bid protest rules, which are beyond the scope of this article. Primarily these changes are intended to clarify and conform GAO’s rules with recent GAO decisional caselaw and practice. In addition, the changes require an agency issuing a CICA stay override to either file the Override D&F or a statement by the official approving the D&F as to the statutory bases for the override. They also require a party wanting an agreed redacted version of a particular protected protest filing after the initial protest to specifically request the same, and require the filing party to submit proposed redactions within two days.
In conclusion, all involved in the GAO bid protest process need to be aware of GAO’s new rules, and comply therewith starting May 1, 2018. Protests filed prior thereto will continue to be governed by the presently existing rules.
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