Time is shorter on protests with GAO procedure changes

With the General Accounting Office now the sole independent arbiter of information
technology bid protests, vendors and agencies need to get up to speed on changes in GAO's
bid protest rules.


The changes, which took effect Aug. 8, were necessary because of the Information
Technology Management Reform Act, which repealed the General Services Administration Board
of Contract Appeals' power to hear IT protests.


Vendors that object to solicitations or contract awards still can protest to the
procuring agency or file suit in federal court. But GAO and GSBCA historically received
most of these complaints.


The major statutory change to GAO protests was to shorten the time for deciding a
protest from 125 to 100 calendar days. To implement this short time limit, GAO in turn has
shortened two protest deadlines--those for filing protests and for submitting agency
responses.


Aggrieved vendors now have 10 calendar days, instead of 14, to file a protest. This is
a compromise position. GAO initially sought to give protesters only five calendar days to
file a protest after receipt of documents from the agency. Protests based on solicitations
still must be filed before the next solicitation closing date. Protests based on denial or
apparent denial--which GAO is calling an "initial adverse agency action"--of an
agency-level protest also must be filed within 10 calendar days.


The filing deadlines mesh well with the new statutory requirements for speedier
debriefings. Within three days of receiving notice of award, a losing bidder may ask--in
writing--to receive a debriefing. The agency is required to provide the debriefing
"to the maximum extent possible," within five days of receipt of the request.


In an ironic twist, GAO has saved time and effort by delaying when a protest is filed.
In cases where a debriefing has been requested, GAO will not accept a protest
filed before the debriefing. This does away with preemptive defensive protests. Instead,
GAO will consider as timely only those protests filed within 10 calendar days of the
debriefing.


To take advantage of the automatic suspension of contract award or performance,
however, vendors have just five calendar days from the date on which the agency offers the
required debriefing. Again, the debriefing is required only when a losing vendor has
requested it within three days of award notice and only when the buy was competitively
negotiated.


Also, the time limits on an automatic suspension apply to the time when agencies
receive notice of the protest from GAO--not the protester. But GAO might not notify the
agency until the day after it receives the protest. So a bidder that files a protest on
the fifth day after its debriefing may be ineligible for the suspension because GAO
officially notified the agency on the following or sixth day. The rule of thumb here is
file early, don't wait until the last day.


One interesting wrinkle is that foreign bidders might have more time to file a GAO
protest. The North American Free Trade Agreement provides a 10-working-day period for
protests. Presumably, a Canadian or Mexican company could file a timely protest within
this period, even though the GAO rules make no such NAFTA exception.


The other shortened time limit is the one within which agencies must file their protest
reports with GAO. Now they have 30 calendar days. Previously, an agency had to submit its
response to a protest within 35 days of notification of the protest by GAO.


This tighter deadline was also a compromise. Some vendors had advocated that agencies
submit their supporting documents earlier. Instead, GAO is requiring that five days before
the protest reports are due, the agency submit a list of the supporting procurement
documents, including those that it does not plan to release to GAO. The goal here is to
resolve disputes about protester access to agency documents early in the process.


Protests at GAO certainly will proceed more quickly with the new deadlines. It is less
certain whether the participants will feel, 100 days later when the decision comes down,
that GAO has given the issues fair and careful consideration.


Joseph J. Petrillo is an attorney with Petrillo & Associates in Washington.
William E. Conner, an associate with the firm, contributed to this column.



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