GAO Proposing Fee for E-Filing Protests

05/02/2016

This post provides a summary of a new GAO rule change proposal prepared by Vandeventer Black Construction and Government Contracts Team attorney Blake Christopher.

Dissatisfied bidders and offerors can currently file protests for free electronically, but the General Accountability Office (GAO) is now proposing a $350 fee. The reasons given for the change are to finance the program, including a new system, and seemingly to discourage what the GAO’s considers unnecessary filings that result from the current free and easy to use system.

2,639 protests were filed last year, and the GAO argues many of them unnecessary. Critics of the proposal note that the current system allows access regardless of financial circumstances, and that charging a fee will discourage protests. While the U.S. Court of Federal Claims charges a fee for protests, it has a program in place that considers ability to pay when collecting its filing fee; and it is unknown whether the GAO will do the same.

The GAO determined the proposed fee level, in part, by figuring the price of building and running a new filing system called the Electronic Protest Docket System (EPDS). Separate from the proposed filing fee there are additional concerns that EPDS will be publicly available, meaning every document filed in the system could be accessed by the general public. This would require contractors and attorneys to redact a greater amount of material, further increasing filing costs and affecting filing strategies. GAO has not yet addressed the EPDS confidentiality concerns.

Copy of the April 16, 2016 proposed rule is available at the following Federal Register website:

https://www.federalregister.gov/articles/2016/04/15/2016-08622/government-accountability-office-administrative-practice-and-procedure-bid-protest-regulations

The new rule is not officially subject to a comment period, but the GAO is accepting comments to the proposed through May 16, 2016.

For more information on the proposed rule changes, contact Blake Christopher (bchristopher@vanblacklaw.com) or any of the other Construction and Government Contracts Team members at Vandeventer Black (www.vanblacklaw.com).

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