D&A Senior Advisor Jimm Rich
In an effort to improve the efficiency of its contract bidding protest procedures, the General Accountability Office (GAO) is planning a web-based electronic bid protest filing and dissemination system, the Electronic Protest Docketing System (EPDS). Though scheduled for 2016, the system will likely not go live until this year as GAO addresses cyber-security issues involving protection of proprietary and sensitive information.
In addition to directing the development of an electronic document filing portal, the implementing statute (Sec. 1501 of the Consolidated Appropriations Act for 2014) authorizes that “each person who files a protest under this subchapter to pay a fee to support the establishment and operation of the electronic system under this subsection.” The fee has been set at $350, which reflects the system development cost and projected cost of system upgrades and maintenance. The fee structure is set for review every two years to ensure that the level is sufficient to recover costs.
The scope of contract protests at the GAO shows the need for this new system. In FY 2016, the GAO received 2,789 cases: 2,621 protests, 80 cost claims, and 88 requests for reconsideration. Had the fee been implemented in FY 2016 (for bid protests only), GAO would have recovered $917,350. There are, of course, issues associated with fee collection and fund maintenance that require resolution. The GAO website notes that it will provide additional guidance for the use of EPDS separate from the regulations in 4 CFR part 21.
Will the fee have a chilling effect on bid protest filing? Probably not. The fee amount relative to internal protest development costs is not of great significance. It may, however, reduce frivolous filings though GAO maintains that there are relatively few frivolous filings – Latvian Connection, LLC notwithstanding.
GAO has also been directed to provide more detailed analysis of protest outcomes. Starting in fiscal year 2014, Congress required GAO to report the most prevalent grounds for sustaining protests during the preceding year. For the 2015 fiscal year, the most prevalent reasons for sustaining protests were:
• Unreasonable cost or price evaluation • Unreasonable past performance evaluation • Failure to follow evaluation criteria • Inadequate documentation of the record • Unreasonable technical evaluation
Below is a handy timeline chart that identifies key milestones in the GAO bid protest process.
Jimm Rich Senior Advisor
A member of the Dawson team since 2016, Jimm served as Chief of Contracting for the U.S. Army Corps of Engineers’ Baltimore, Kansas City and Galveston districts.