On December 15, 2016, the U.S. Government Accountability Office (the “GAO”) issued its annual report to Congress for Fiscal Year 2016, which provided data concerning overall protest filings in fiscal year 2016. (http://www.gao.gov/assets/690/681662.pdf). The annual report was noteworthy regarding the increases in bids protests received and sustained. GAO almost doubled the amount the sustained bids while bids submissions increased just around six percent. This is a positive and continuing trend which provides a realistic opportunity for a U.S. government contractor to obtain relief from failed government agency contracting practices.
In fiscal year 2016 the GAO received 2,789 cases in total, a six percent increase from fiscal year 2015. Of the 2,789 total cases brought before the GAO, 2,734 of the cases were closed by the GAO, with the GAO resolving 616 of these cases on the merits. To decide a case on the merits the GAO will review the facts presented into evidence by the parties and sustain or deny the protest based on the law as applied to the presented evidence. The majority of GAO protest cases do not reach this stage of review and many agencies will instead take voluntary action to remediate a contractor’s protest allegations prior to final review by the GAO.
The report concluded by identifying the most common grounds for sustaining a contractor protest which focused predominantly on failed agency evaluation processes, such as: (1) unreasonable technical evaluations, (2) unreasonable past performance evaluations, (3) unreasonable cost or price evaluations, and (4) flawed selection decisions.
CHANGES MADE TO GAO BID PROTEST FILING REQUIREMENTS
The GAO is implementing a new electronic filing system for bid protests, officially named the Electronic Protest Docketing System or EDPS. Back in April, 2016 the GAO published a notice in the federal register recognizing the implementation of electronic protest filing with the GAO. (https://www.gpo.gov/fdsys/pkg/FR-2016-04-15/pdf/2016-08622.pdf). In June, 2016 the GAO published “Electronic Protest Docketing System Instructions” to help contractors and counsel navigate the new electronic system prior to its debut. (http://law.pubkgroup.com/wp-content/uploads/sites/6/2016/09/GAO-Electronic-Protest-Docketing-System-Instructions.pdf). A firm start date for the system has yet to be established, but the GAO intends to add additional materials to its website as changes or additional instructions are needed. As soon as the system is complete, all contractors will be required to use EDPS when filing a bid protest with the GAO. (http://www.gao.gov/legal/bid-protests/file-a-bid-protest).
The new electronic fling system is making particular waves in the contractor community as it will begin to charge a fee per contractor filing. Protest filings that were once free will now cost $350 a piece. This fee was derived from the actual costs incurred by GAO in developing EDPS and intended to cover future costs for maintaining the system. At the Federal Practice Group (FPG), we understand the bid protest process and are working closely with clients to help them navigate the new EDPS system. FPG maintains its commitment to service excellence and will consider alternative fee structures which mitigate the costs of this new process. Our attorneys look forward to answering your questions about the new EDPS system and assisting you with any of your bid protest needs.