On April 2, 2018, the U.S. Government Accountability Office (“GAO”) issued a final rule, which, effective May 1, 2018, implements an electronic filing system for bid protests known as the Electronic Protest Docketing System (“EPDS”). Historically, GAO has only accepted protest filings via e-mail, fax, regular mail, or hand delivery. However, in 2014, Congress directed GAO to establish an electronic filing and dissemination system. Thus, the concept for EPDS was born. After years of development, EDPS was taken for a “test drive” when, in early February 2018, GAO implemented a pilot program that identified a select number of protests to be administered using the new electronic platform. Initial feedback indicates that the system is quite similar to PACER, the electronic filing system that has been utilized by the federal court system for more than 25 years.
The key takeaways from the final rule and GAO’s instructions for EDPS are as follows:
- Effective May 1, 2018, 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;
- A document is filed when it is received in EPDS by 5:30 p.m. Eastern Time (unlike many electronic filing systems that consider a document filed so long as it is uploaded by 11:59 p.m., the final rule maintains GAO’s firm 5:30 p.m. filing deadline);
- Delivery of a protest or other document by means other than those set forth in the EPDS instructions does not constitute a filing;
- Filing a document in EPDS constitutes notice to all parties of that filing;
- Even with the establishment of EDPS, a protestor must still provide a copy of the protest to the individual or location designated by the procuring agency in the solicitation for receipt of protests or if there is no designation, to the contracting officer;
- Filings will be available for download in EPDS for a period of 60 days after the issuance of GAO’s final, public decision resolving the protest, request for reconsideration, or request relating to costs;
- GAO will charge a $350 fee for filing a protest (previously, there was no filing fee); and
- Filing fees are reimbursable costs of pursuing a protest in the event GAO recommends that the agency reimburse protest costs.
It is worth noting that GAO’s decision to implement a $350 filing fee was not without criticism. Indeed, some commentators argued that, in an effort to discourage frivolous protests and reduce the overall number of protests, GAO should impose a higher filing fee or calculate the fee based on a percentage of the value of the procurement at issue. In addition, others argued that there should be no fee at all or at least an exemption for small businesses. However, GAO explained that it does not intend for the fee to discourage or reduce the number of protests. Instead, GAO simply hopes to recoup the costs of establishing and operating EPDS and believes a blanket filing fee is the best way to accomplish that goal. That being said, it will be interesting to see what, if any, unintended consequences the implementation of a filing fee has on the bid protest system.
Lastly, as cautioned in the EDPS instructions, anyone wishing to file a protest should sign up for an EDPS account as soon as possible due to the time required to create a user account, submit all required information, and pay the filing fee. New users can signup for an EDPS account here and can familiarize themselves with the new rules here.
About the Author: Sam Finnerty is an associate with PilieroMazza in the Government Contracts Group. He may be reached at [email protected].