As federal contractors begin to grapple with the first government shutdown in several years, many are wondering how the shutdown will impact bid protests. This client alert provides the lowdown for how the shutdown will impact new and existing bid protests.
Government Accountability Office (GAO)
GAO is closed due to the lapse in appropriations. Based on a message GAO issued earlier today, their electronic protest docketing system (EPDS) closed at noon today and will be inaccessible while GAO is closed. That means parties cannot make new filings or access prior filings in EPDS during the shutdown.
So, if you cannot make filings in EPDS, what happens to GAO protest deadlines during the shutdown? GAO will extend the deadlines as follows:
- For a new protest that is due on a day when GAO is closed, the deadline will be extended to the first day that GAO resumes operations. This could lead to a deluge of protest filings the first day when GAO reopens. If you receive a debriefing or award decision during the shutdown that you want to protest to GAO, we recommend getting your protest ready as soon as possible in case the shutdown ends without much advance warning.
- All deadlines for parties in existing protests, such as the deadline to file comments on an agency report, will be extended by the number of days that GAO is closed.
- The deadlines for GAO’s decisions on existing protests will be extended by the amount of time that GAO is closed. This raises an interesting situation for the CICA stay that, by law, is triggered by a timely protest to GAO. The CICA stay is supposed to remain in place until GAO’s decision, which means CICA stays may remain in place for longer than usual unless an agency decides to override the stay. Although overriding the CICA stay is uncommon, some agencies that are operating during the shutdown may consider the override given the prospect of longer CICA stays caused by the government shutdown.
Court of Federal Claims (COFC)
Unlike GAO, our understanding is that the COFC will remain open and all deadlines will remain in effect. As a result, COFC may be the better option during the shutdown for those procurements that permit a protest in either forum. Additionally, the United States Court of Appeals for the Federal Circuit confirmed that it will remain open for business during the shutdown and all filing deadlines and oral arguments will proceed as scheduled.
FAA’s Office of Dispute Resolution for Acquisition (ODRA)
Our understanding is that ODRA will be closed and pending protests will be put on hold during the shutdown. We are monitoring ODRA’s website for an official announcement to confirm its status during the shutdown and if it issues guidance on how it will handle deadlines for new and existing cases during the shutdown. We assume ODRA will extend its deadlines similar to GAO’s approach discussed above.
Agency Level
The shutdown’s impact on agency-level protests will vary from agency to agency. For agencies that are still open for business, protest deadlines should remain in effect. For agencies that are shut down, contractors should expect delays in decisions on pre-existing protests but, in the absence of definitive guidance from the agency, should adhere to a filing deadline based on an award or debriefing received prior to the shutdown.
If you have questions about how the shutdown may impact your existing protest, or if you need help in deciding how to handle a potential new protest or the impact on a CICA stay during the shutdown, please contact Jon Williams, Katie Burrows, or Eric Valle from PilieroMazza’s Bid Protests Group.
