Final rules issued on April 2, 2018 will bring several changes to the bid protest rules at the Government Accountability Office (“GAO”), effective May 1, 2018. Among the most important are: (i) protests at GAO will be required to be filed electronically through GAO’s Electronic Protest Docketing System (“EPDS”), (ii) all initial protests will require a $350 filing fee, and (iii) in the rare case of a Competition in Contracting Act (“CICA”) stay override (“CICA stay”), agencies will be required to post justification information for such an override in EPDS.

Those of us who have been dealing with bid protests for a couple of decades can remember the bad old days when bid protests were filed via facsimile. GAO then moved to allow bid protest filings via e-mail, which was a tremendous technological leap and time-saver for all parties. Now, after months of beta testing, GAO’s new EPDS (very similar to the docketing system currently used by federal courts) will become the “sole means” for bid protest document filings at GAO, except for classified documents. While this change may not provide a great deal more efficiency than the current e-mail filing process, it will eliminate the current one-day delay between GAO’s receiving and processing the protest and GAO’s notification to the procuring agency. With the new EPDS, procuring agencies will receive notification of a protest concurrently with GAO.

The new $350 filing fee (slightly lower than the current $400 filing fee required at the Court of Federal Claims) will be payable through EPDS, and is intended to cover only the development, administrative, and maintenance costs of EPDS, and not to discourage protests. Notably, GAO rejected proposals for far higher (up to $1,000) filing fees, and for separate filing fees for supplemental protests. The filing fee will not be automatically refunded to a successful protester, but GAO can recommend such a refund as part of its decision.

The final important change concerns the so-called “CICA stay” to which a protester often is automatically entitled (usually depending on the timing of the protester’s initial filing). The CICA stay suspends the performance of the new contract award unless the agency decides to “override” the CICA stay, which is unusual but does happen. In such cases, the new rules require the agency overriding the stay to post in EPDS either a copy of its “Determination and Findings” for the action, or a statement from the official approving the override that identifies the statutory basis for the override. Although agencies sometimes provide such information, (but only upon request), the new rule will give protesters easy access to such information and thus expedite a protester’s decision whether to challenge an override at the Court of Federal Claims.

For more information, contact MWL Counsel Orest “OJ” Jowyk.