United States: GAO Proposes Changes To Bid Protest Regulations, Including Imposing A Filing Fee

Gregory Hallmark is a Partner in Holland & Knight's Northern Virginia office

On April 15, 2016, the Government Accountability Office ("GAO") published a number of proposed changes to the procedural rules that govern bid protests in that forum. See 81 Fed. Reg. 22197. The primary purpose is to implement a new electronic filing system for use in bid protests, called the Electronic Protest Docketing System ("EPDS"). GAO also took the opportunity to add several significant new procedural rules, including a clarification about the timeliness of certain protests, as "administrative changes."

The proposed changes do not go into effect immediately and may yet be changed. The deadline for public comments on the proposed rule is May 16, 2016, and GAO will issue the final version sometime thereafter.

As noted, GAO is implementing a new electronic filing and document dissemination system, as mandated by recent legislation, to replace the current practice that generally relies on email. EPDS will be the mandatory method to submit protests and other filings, except in protests involving classified material. Many of EPDS's details will be hashed out later, as the system is still under development. GAO's website states that EPDS will be established "this summer."

Importantly, GAO will require a new fee to file a protest, as a way to recoup the costs to develop and maintain EPDS. GAO anticipates the fee will be $350 at first. By comparison, the Court of Federal Claims currently charges a $400 filing fee. As noted in this Blog previously, Congress specifically authorized GAO to charge a fee in the Consolidated Appropriations Act of 2014.

The proposed rule states that a filing in EPDS "constitutes notice to all parties" of the filing. That suggests the parties will automatically receive notice of filings through EPDS, much like the Court of Federal Claims' Electronic Case Filing ("ECF") system provides automatic service to all parties of a filing. Indeed, GAO's website states that "EPDS will also provide automatic notice of a protest to the agency."

This automatic notice mechanism could have important ramifications for protesters that seek the "automatic stay," the Competition in Contracting Act's ("CICA") rule that an agency must withhold award or suspend performance for the duration of the protest if GAO notifies the agency of the protest before a certain deadline. Critically, it is not the filing of a protest that triggers the automatic stay, but rather GAO's notice to the agency of the filing. Under the existing system, protesters depend on GAO's clerk to place a telephone call to the agency to provide the all-important notice, which has the practical effect that they must file well before the deadline to give GAO ample time to make the call. EPDS's automatic notice mechanism could change that. It remains to be seen whether GAO will rely solely on EPDS's automatic notice and cease notifying agencies by telephone, and also whether the Court of Federal Claims will consider the CICA stay to be triggered by the automated notice.

GAO also proposed several notable "administrative changes" to its procedural rules, unrelated to the new electronic filing system, including the following:

  • GAO proposes to revise its timeliness rules to address protests of solicitation improprieties that arise after final proposals have been submitted.

    A protest of a solicitation impropriety is generally due prior to the next deadline for proposals. See 4 C.F.R. 21.2(a)(1). All other protests are due within ten days after the basis of protest is known or should have been known, or after the debriefing, if a debriefing has been timely requested and is legally required. See 4 C.F.R. 21.2(a)(2). GAO has held in its decisions that when a solicitation impropriety is introduced after final proposals have been submitted, the ten-day rule of paragraph (a)(2) applies.

    The proposed rule "resolves a potential uncertainty," in GAO's words, that arises when that ten-day period is pending at the time the protester requests its debriefing. The existing version of paragraph (a)(2) states that when an offeror requests a required debriefing, it must wait until the debriefing to file a protest on any basis: "In such cases, with respect to any protest basis which is known or should have been known either before or as a result of the debriefing, the initial protest should not be filed before the debriefing date." But GAO has ruled in its protest decisions that the mandatory debriefing waiting period does not apply to a protest of a solicitation impropriety introduced after the last deadline for proposals, notwithstanding the regulation's statement that it applies to "any protest basis."

    GAO is now proposing to amend the regulations to bring them in line with its case law. The revised regulations would make clear that an offeror may not wait until its debriefing to protest a solicitation impropriety that arises after the final closing time for proposals. Rather, such protests must be filed within ten days after the alleged impropriety is known or should have been known.
  • GAO proposes to incorporate into its bid protest regulations an existing statutory rule that GAO may hear protests of task and delivery orders, but only those valued at more than $10 million. GAO has been applying this jurisdictional rule for years, but it is not currently stated expressly in the bid protest regulations.

    Perhaps more interestingly, GAO took this opportunity to point out that its authority to hear task order protests forcivilianagency procurements is set to expire very soon—October 1, 2016. Congress has permanently extended GAO's jurisdiction over task order protests for defense agency procurements but, oddly, has not yet done so for civilian agency procurements. Notably, the U.S. House of Representative's Fiscal Year 2017 National Defense Authorization Bill contains a provision that would permanently extend GAO's task order jurisdiction for civilian agency procurements. See H.R. 4909, § 1862.
  • As noted above, a protest filed at GAO within a certain deadline triggers an automatic suspension of performance, if the award has been made, or a requirement that the agency withhold making an award, if an award has not yet been made. However, CICA permits agencies to override this automatic stay under particular circumstances. Currently, GAO and protesters do not necessarily have any way to know whether an agency has decided to override the automatic stay.

    The proposed rule would require the agency to file a notification when it overrides the automatic stay. While the stated purpose for this rule change is to ensure that GAO knows of the override, it would appear to have the practical effect of ensuring that the protester will also know. A protester may challenge an agency's override decision only at the Court of Federal Claims.
  • The proposed rule would provide a welcome clarification of an ambiguity regarding the deadline for the agency's submission of its response to the protester's document requests. The response has long been due five days before the agency report. But where the fifth day falls on a weekend or holiday, the existing rules do not specify whether the agency must file its response on the last business day before the weekend or holiday or the next business day after the weekend or holiday. Often, the agency will file the response on the next business day, which can leave insufficient time to resolve any disputes over the scope of the agency's proposed document production prior to its filing of the agency report. Protesters are then left litigating objections to the document production during the 10-day period for responding to the agency report and sometimes does not receive documents initially withheld until several days into the 10-day period.

    To resolve the ambiguity, the proposed rule would require that the agency submit its response on the last business day before the weekend or holiday.
  • GAO has long held that if a protester fails to address a protest ground in its response to the agency report (called "comments"), the protest ground is deemed abandoned and GAO will dismiss it. The proposed rule would clarify that a "protest allegation or argument" shall be dismissed where the agency report responds to the allegation or argument "but the protester's comments do not address the agency's response."
  • Protest counsel often spend substantial time and effort preparing redacted versions of protest filings and negotiating over what information will become publicly available or will be redacted. The current process for negotiating redactions is relatively unstructured. The proposed rule would impose more structure on this process. It would require the party filing a document to distribute proposed redacted version within one day and to file a final redacted version within five days—or, if the parties cannot agree on redactions, to submit the dispute to GAO for resolution.

    In current practice, it is not uncommon for parties to skip the redaction process altogether amidst the rush of quick-turnaround deadlines. The rule change, if it becomes final, may create a good deal more work for protest counsel, under tight time pressure.
  • Lastly, GAO proposes a more structured process for successful protesters to pursue reimbursement of their protest costs from agencies. While the basic process is largely unchanged, the proposed rule would make it mandatory that the agency and protester respond to each other's submissions and would establish new deadlines for those filings. These changes should facilitate quicker resolution of cost claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions