GAO Issues Final Regulations Implementing Electronic Protest Docketing System
Government Contracts Update
Date: April 12, 2018
The Government Accountability Office issued a final rule on April 2, 2018, amending GAO’s bid protest regulations to implement the new Electronic Protest Docketing System (EPDS), effective May 1, 2018.
As of May 1, all new protests must be filed via EPDS. Thompson Hine has participated in the pilot testing of EPDS and is familiar with the new filing system. The EPDS system is an effective means of docketing and communication for the parties, and the GAO bid protest system will be improved as a result.
The final rule and EPDS system are the result of requirements adopted by Congress in 2014 directing GAO to establish and operate an electronic filing and document dissemination system for bid protests, and the amendments to GAO’s regulations also include certain administrative changes.
In the preamble to the final rule, GAO responded to comments received in response to the proposed rule published in 2016. GAO notes in the rule that additional guidance for the use of the EPDS system has been provided by GAO in EPDS instructions available at https://epds.gao.gov/login. Significant issues addressed by GAO in the final rule and its preamble include the following:
Exclusive Use of EPDS
As of the effective date, EPDS will be the sole means for filing a bid protest at GAO, with the exception of protests containing classified information. In response to comments, GAO also stated that EPDS “will be the sole means for filing documents in connection with a protest, with two exceptions: (1) Documents containing classified material, and (2) documents that, for reasons of size or format, are not suitable for filing through EPDS.” The EPDS instructions address both categories of documents.
Filing Fee for Bid Protests
The congressional mandate requires a fee to file a protest through EPDS, and the final rule maintains the proposed fee at $350, subject to review by GAO. GAO stated that it “does not intend for the fee to discourage or reduce the number of protests,” but rather to cover the costs of establishing and operating EPDS.
GAO stated that it would revise its proposed regulations to clarify that documents with classified material “shall not” be filed through EPDS. This is now set forth in amendments to 4 C.F.R. § 21.1(h). GAO also clarified that the term “classified” refers to “information deemed classified by a United States government agency for national security reasons, and not to information that is proprietary or source-selection sensitive.”
Filing a Protest: Redacted Versions
Under the EPDS system, redacted versions of documents will not be available to the public. One commentator proposed that “redacted versions of protests should be posted in EPDS in a manner that is available to the public.” GAO responded that “EPDS does not allow access to documents, redacted or otherwise, to non-parties.”
Filing a Protest: Copy to Contract Officer
A commentator asked whether protesters will continue to be required to provide a copy of the protest to the contracting officer, as required by 4 C.F.R. § 21.1(e). GAO did not change this provision, stating that this “remains an important requirement so that contracting officers are provided prompt notice of protests, which enables them to meet their obligations to notify interested parties, as required by Federal Acquisition Regulation section 33.104(a)(2) and paragraph (a) of 4 CFR 21.3.”
Time for Filing
GAO had proposed, and adopted in the final rule, revisions to 4 C.F.R. § 21.2(a) to “clarify that where a basis for challenging a solicitation becomes known after the solicitation’s closing date, but the solicitation does not establish a new closing date, the protest must be filed within 10 days of when the protester knew or should have known of that basis—regardless of whether the time period for filing other protest claims was ‘tolled’ because a required debriefing had been requested.” This amendment is consistent with GAO precedent.
Communications Among Parties
GAO had proposed to revise 4 C.F.R. § 21.3(a) “to require that parties to a protest provide copies of all protest communications ‘to the agency and to other participating parties’ either through EPDS or email.” In the final rule, GAO clarified that the proposed revision applies to communications with GAO, and “was not intended to prohibit the parties from engaging in communications that do not involve GAO, or communications between some, but not all parties. Rather, the rule was intended to update the current rule to include EPDS.”
GAO’s clarifications will permit counsel for an intervenor to communicate freely with the agency. GAO clarified that “[t]he current rule requires all parties to be copied on all protest communications, which, in practice, means that when a party communicates with GAO, it must copy the other parties. To avoid confusion, GAO will revise the final rule to provide that parties must copy all other parties on communications with GAO” (emphasis added). GAO also stated that some communications “will continue to be made through email and telephone, as appropriate.”
Agency Response to Document Request
GAO proposed to revise 4 C.F.R. § 21.3(c) “to clarify that if the fifth day for filing the agency’s required response to a protester’s request for documents falls on a weekend or federal holiday, the response shall be filed on the last business day that precedes the weekend or federal holiday.” GAO adopted this rule but in response to comments, stated that it will use the term “by” the fifth day, rather than “on” the fifth day, to reflect that an agency may file its response sooner.
Therefore, the new regulation as adopted reads:
At least 5 days prior to the filing of the report, in cases in which the protester has filed a request for specific documents, the agency shall file a response to the request for documents. If the fifth day prior to the filing of the report falls on a weekend or Federal holiday, the response shall be filed by the last business day that precedes the weekend or holiday.
Protective Orders and Redactions
In response to comments, GAO noted that Paragraph 2 of GAO’s standard protective order requires parties to file proposed redacted versions of every document marked protected. “GAO recognizes, however, that the practice among parties in many protests is to agree not to prepare redacted versions of all documents. GAO also recognizes that preparation of redacted versions of documents requires resources on the part of the parties that prepare them and on the part of the other parties who must review them.”
Accordingly, GAO revised new paragraph (b) of 4 C.F.R. § 21.4 to provide that “when a party files a document in EPDS that is marked protected, that party must, at the request of another party, provide a proposed redacted version of the document to the requesting party within 2 days. This revision is intended to balance the legitimate interest in providing public versions of documents against the parties’ costs of preparing and reviewing such documents.”
One commentator requested that the new regulation expressly permit party-specific redactions (for example, in a document that may be released only to either the protester or intervenor). GAO responded that “GAO has not opposed the preparation and approval of party-specific redactions. Neither 4 CFR 21.4 nor the protective order prohibit this practice, and GAO does not see a need to address this matter in the rule.”
Accordingly, new paragraph (b) to 4 C.F.R. § 21.4 states:
“Any agency or party filing a document that the agency or party believes to contain protected material shall, if requested by another party, provide to the other parties (unless they are not admitted to the protective order) an initial proposed redacted version of the document within 2 days of the request.
Where appropriate, the exhibits to the agency report or other documents may be proposed for redaction in their entirety.
The party that authored the document shall file the final redacted version of the document that has been agreed to by all of the parties. Only the final agreed-to version of a redacted document must be filed.
If the parties are unable to reach an agreement regarding redactions, the objecting party may submit the matter to GAO for resolution. Until GAO resolves the matter, the disputed information must be treated as protected.”
Statutory Override of Automatic Suspension
GAO proposed to revise 4 C.F.R. § 21.6 to “require agencies to file a notification in instances where it overrides a requirement to withhold award or suspend contract performance, and to file a copy of any issued determination and finding.” In the preamble to the final rule, GAO clarified that GAO is required by statute “to consider the basis for an agency’s override in determining the remedy to recommend in the event we sustain a protest.”
In response to comments, GAO further revised this rule to give agencies the choice to file either the determination and finding itself, or a statement by the official who approved the document, which must specify the statutory basis for the override. Accordingly, the new regulation at 4 C.F.R. § 21.6 states:
An agency shall file a notification in instances where it overrides a requirement to withhold award or suspend contract performance, and it shall file either a copy of any issued determination and finding, or a statement by the individual who approved the determination and finding that explains the statutory basis for the override.
Task or Delivery Order Contracts
GAO proposed to add paragraph (l) of 4 C.F.R. § 21.5 to reference statutory provisions that limit GAO’s jurisdiction to hear protests in connection with a task or delivery order issued under indefinite-delivery, indefinite-quantity contracts, where the order is valued at dollar thresholds established by the statute, unless it is alleged that the order increases the scope, period, or maximum value of the contract.
A commentator proposed that this provision be revised to clarify that GAO has jurisdiction to hear protests concerning orders issued under the Federal Supply Schedule (FSS). GAO did not agree to add a revision, but affirmed that “the jurisdictional limitations on GAO’s review of orders issued under task or delivery order contracts pursuant to FASA [the Federal Acquisition Streamlining Act of 1994] does not affect our Office’s jurisdiction to hear protests concerning orders issued under the FSS.”
Agreements Other Than Procurement Contracts
GAO proposed to add paragraph (m) to 4 C.F.R. § 21.5 to “clarify that GAO has the authority to review protests that an agency is improperly using a non-procurement instrument.” A commentator proposed that GAO clarify that this authority “is limited to whether an agency is improperly using the non-procurement instrument to procure goods or services.” GAO agreed to do so; accordingly, the new regulation states that GAO does “review protests alleging that an agency is improperly using a non-procurement instrument to procure goods or services.”
Recommendation for Reimbursement of Costs
GAO revised 4 C.F.R. § 21.8(e) to provide that a protester must file comments on an agency’s response to a request for a recommendation for reimbursement of costs within 10 days, and that GAO will dismiss the request if the protester does not file the required comments.
Flexible Schedule Procedures
GAO stated that it reserves the right to use flexible schedule procedures in 4 C.F.R. § 21.10, even where the parties do not concur, adding that the use of these procedures “aids our Office’s ability to meet our statutory obligations to provide an inexpensive and expeditious forum for the resolution of protests.”
While many of the administrative changes to the GAO regulations will improve the bid protest process for GAO and clarify procedures for the parties, ultimately they will also aid GAO in continuing to provide the effective forum for resolution of protests mandated by Congress. For protesters, intervenors, agencies and their counsel, the biggest change under the new regulations is the exclusive use of EPDS for the filing of protests. As discussed above, the EPDS system is an effective means of docketing and communication for the parties and the GAO bid protest system will be improved as a result.
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