Changes Are Coming to GAO… And You Still Have Time to Comment on Them
In the Federal Register dated April 20, 2016, the Government Accountability Office (“GAO”) revealed its plan for complying with Sec. 1501 of the Consolidated Appropriations Act for Fiscal Year 2014. That legislation directed GAO to establish and operate an electronic filing and document dissemination system for the filing of bid protests with GAO. GAO also proposed other amendments to its Bid Protest Regulations to codify longstanding practices and otherwise streamline bid protest processes. Comments on these proposed changes are due to GAO by May 16, 2016. Information on submitting comments is on the first page of the Federal Register notice.
First, let’s talk about the new electronic system for filing bid protests with GAO. This electronic system will be the only way to file a bid protest with GAO (except for protests containing classified information) — no hard copy or faxed documents. Additionally, all documents and information related to the protest must be submitted through this electronic system for all parties to access. There are provisions for redacted documents in certain circumstances.
Next, let’s talk about fees. In addition to requiring GAO to establish and operate this electronic bid protest and document filing/dissemination system, Congress also authorized GAO to require persons filing a protest to pay a fee to establish and operate the system. After crunching all the numbers, GAO believes the bid protest filing fee will be $350; this assumes a six-year recovery period for development costs. Every two years, GAO will review the fee to ensure it continues to cover the costs of establishing and maintaining the system.
Now we will end with administrative changes. Some of them clarify the timing of submitting a protest. Others relate to protective orders, communications among the parties, recommendations for reimbursement of legal costs, and protest issues which GAO will not consider. In the Federal Register, several of these items effectively say, “This reflects GAO’s longstanding practice/view . . .” Therefore, while they are changes to the Bid Protest Regulations, not all of these administrative changes are actual adjustments to GAO’s practices in regard to bid protests.
If you’re thinking about submitting comments on the GAO changes and need assistance, reach out to a member of Cherry Bekaert’s Government Contracting Services Group.