April 2, 2018

GAO Releases New Regulations for Bid Protests

Holland & Knight Government Contracts Blog
Eric S. Crusius

The GAO released its final rule implementing new regulations covering bid protests under its jurisdiction. In a previous blog post, we analyzed the proposed rules. The new regulations make changes consistent with the implementation of GAO's Electronic Protest Docketing System (EPDS) and are effective May 1, 2018.

With the release of these regulations, GAO will require that all protests, except protests utilizing classified materials, be filed in the EPDS system and subject to a mandatory $350 filing fee. According to GAO, this fee is calculated to cover the cost of the new filing system and not meant to be a deterrent to the filing of protests.

Key Changes Under the New Protest Regulations

The most significant changes include:

  • A new $350 filing fee (which is only reimbursable if GAO recommends that the agency reimburse the protestor for the protestor's costs of pursuing a protest);
  • Mandatory use of the EDPS system beginning on May 1, 2018;
  • Protestors must file protests alleging a latent issue with a solicitation that becomes apparent after award within ten days no matter whether there is a debriefing with respect to other post-award issues. See 4 CFR 21.2(a)(2);
  • Agencies have five days to respond to a protestor's request for documents. If that day falls on a weekend or holiday, the preceding business day is the due date for the response (though the agency can file the response sooner). See 4 CFR 21.3(c);
  • GAO is revising 4 CFR 21.5(m) to reflect that GAO will review protests alleging that an agency is inappropriately utilizing a non-procurement instrument when procuring goods or services; and
  • Protestors must file comments to an agency's response to a request for a recommendation for reimbursement of costs within 10 days. See 4 CFR 21.8.

Other Items of Note  

The new regulations also change or clarify a number of procedural rules:

  • Deadline for filing remains 5:30 p.m. Eastern Time. Filings must be "received in EPDS" by that time;
  • Protestors will still have to supply a copy of the protest to the contracting officer as required by 4 CFR 21.1(e) separate from the EPDS filing;
  • Proposals for redactions of documents (other than the initial protest) are not filed through the EDPS system until agreed-to by the parties. The party that originally filed the protected document through EPDS must file an agreed-to redacted version within five days. If there is disagreement between the parties, the parties are directed to seek GAO's direction. See 4 CFR 21.4(b);
  • Parties are not required to prepare redacted versions of all protected documents, but must do so within two days after a request by a party;
  • Protestors must file comments to an agency's response to a request for a recommendation for reimbursement of costs within 10 days. See 4 CFR 21.8; and
  • Decisions to override a stay by the agency must be filed by the agency with GAO. See 4 CFR 21.6.

These changes are the most significant alteration to the bid protest process at GAO in years and should be studied carefully by practitioners and contractors. We will continue to monitor these developments and post updates if necessary.

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