Electronic filing of bid protests and the $350 filing fee are finally here. On Monday, April 2, 2018, the U.S. Government Accountability Office (GAO) published a final rule implementing two key changes to the bid protest process that have been anticipated for several months. First, mandatory electronic filing of protests through the new Electronic Protest Docketing System (EPDS) is effective May 1, 2018. Second, as part of implementing EPDS, GAO is implementing a mandatory $350 filing fee to pay for the costs of fielding and maintaining EPDS.
Electronic Filing Though EPDS
The fielding of EPDS is the result of a months-long process. In 2014, Congress directed GAO to develop an electronic docketing system to process protests and to charge a filing fee sufficient to pay for development and maintenance of the system. Over the past two years, GAO has developed the EPDS to serve as a one-stop-shop for filing protests and protest-related documents. Experienced bid protest counsel, including some Miles & Stockbridge attorneys, have participated in a pilot program for EPDS for the last two months to help GAO assess the system and to familiarize the bid protest bar with its features.
EPDS is designed to have an intuitive user interface. The system uses a modern layout which is strikingly different from the older PACER interface many attorneys and members of the public are familiar with for federal district court filings. Users who would previously file protests via mail, fax, or e-mail must now register here (for free) to receive an account and password, which can then be used to access EPDS and file a protest.
The major rule change made necessary by the fielding of EPDS is the requirement that electronic filing through EPDS is mandatory. There is no exception for any type of filer; small businesses, including those represented pro se without counsel (a unique aspect of practice at GAO), must register at EPDS and file using the same process that attorneys use.
Filing Fee
Monday’s final rule also makes effective a mandatory filing fee of $350. GAO has determined that a $350 fee is appropriate and sufficient to fund fielding and maintenance of the EPDS system. Payment is made with a credit card, PayPal, or Dwolla through a specialized Pay.gov payment interface in EPDS.
The filing fee is charged only for the filing of new protests. Supplemental protests involving the same solicitation or award decision, and requests for reconsideration or costs, do not require a separate filing fee.
Several commenters to the proposed rule requested an exception to the filing fee be made for small business or pro se filers. GAO rejected such suggestions in the final rule, indicating that the purpose of EPDS is best served by charging the same fee to all protest filers regardless of size status or representation.
Other Changes
Monday’s final rule also made several technical changes to GAO’s Bid Protest Regulations. Of particular note to experienced bid protest counsel is the provisions regarding redaction. Prior to the final rule, GAO rules only required admitted counsel to redact “pleadings” before GAO, which was generally understood by many to include protests, supplemental protests, and comments, and to exclude various other types of filings. The proposed rule suggested that parties negotiate redactions to all filings in EPDS, other than the agency report exhibits themselves. This had the potential to dramatically increase the cost of litigating bid protests, as a significant portion of the cost of bid protests involves negotiating redactions within the confines of the protective order. The final rule clarifies that a party need only circulate proposed redactions to a document when requested to do so by another party. GAO indicated in the final rule that it issued this clarification to balance the need for transparency with the potential costs to the parties involved with negotiating redactions.
Additionally, the final rule publicly acknowledges the long standing but previously unacknowledged practice of admitted counsel negotiating party-specific redacted versions of protected documents. When agreed to by the parties, party-specific versions allow a protester to view portions of protected documents discussing that party’s proprietary information, while protecting the proprietary and source selection information of other parties.
Implications for Contractors
The implementation of EPDS has the potential to create efficiencies at GAO as well as agency bid protest offices. Having documents available in one place could significantly alleviate some of the administrative load on GAO attorneys and their staff. This could in turn lead to quicker decisions by GAO and quicker decisions by an agency to take corrective action.
The mandatory filing fee is unlikely to have a significant effect on the vast majority of protesters. $350 is often insignificant when compared to the other costs of filing and litigating a bid protest. However, the filing fee may discourage the small portion of protesters – largely pro se – who are not legitimate interested parties. While a recent study indicates these ineffective protests represent a small portion of filed protests, they often take vital resources from GAO that could be better spent on legitimate protests filed by interested parties. This could lead to greater efficiencies at GAO and improve the quality of protest processing and decisions.
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