We’ve been following GAO’s plan to implement its Electronic Protest Docketing System (“EPDS”) with great interest. In fact, we’ve had the opportunity to test-drive the new system (tl/dr: it’s a very user-friendly system, but there are a couple of minor improvements that would make it even better).

Just yesterday, GAO released a final rule implementing EPDS. Here are the most important takeaways.

GAO’s final rule includes two very important points about EPDS:

First, the final rule says that, effective May 1, 2018, “EPDS will be the sole means for filing a bid protest at GAO (with the exception of protests containing classified information).” One commenter expressed concern about EPDS being the sole means for filing, noting that file size or type might not be compatible with EPDS. In this (rare) instance, however, GAO noted that its EPDS Instructions explain how a protest should be filed.

Second, GAO confirmed that new protest actions will be subject to a $350 filing fee. “At this time,” GAO explained that “additional fees will not be required for supplemental protests, requests for reconsideration, requests for recommendation for reimbursement of costs, or requests for recommendation on the amount of costs.” This clarification is helpful, as it wasn’t previously clear if supplemental protests would also be charged the $350 fee.

As expected, some commenters objected to the fee, asking that protest filings continue to be free. But somewhat surprisingly, other commenters argued that the fee was too low to discourage serial or speculative protesters (one commenter, in fact, suggested a $1000 fee). GAO rejected these suggestions, noting that the fee is not intended to discourage or reduce the number of protests but instead to cover the costs of establishing and operating EPDS. GAO also considered waiving the fee for small businesses but decided “that the interest of administrative efficiency supports imposition of a uniform fee for all protests.”

We think GAO’s rejection of a high fee makes sense. As we’ve previously noted, GAO protests aren’t actually all that common, and GAO already has effective remedies for dealing with abusive protesters if needed. Imposing a high fee would create an unnecessary barrier to the protest process, especially for small businesses.

GAO also noted that the protest fee might be a reimbursable cost if the protester is successful. In the case of a corrective action (where a protest isn’t decided on its merits), GAO noted that 4 C.F.R. § 21.8(e) allows a protester to request the agency reimburse the protester’s costs; if GAO recommends the agency reimburse such costs, the filing fee would be reimbursable.

***

With that, EPDS will be live May 1. All-in-all, I welcome this advancement: most courts use some type of electronic filing system, and it only makes sense for GAO to do the same.

The final rule includes a few additional nuggets unrelated to EPDS that we’ll separately address. In the meantime, let us know if you have any questions about EPDS or GAO bid protests.

View the full article