New Rules for Filing Protests at GAO and New DFARS Debriefing Requirements

Sheppard Mullin Richter & Hampton LLP

Sheppard Mullin Richter & Hampton LLP

GAO’s New Electronic Protest Docketing System

GAO finally has unveiled its long-awaited Electronic Protest Docketing System (“EPDS”). Effective May 1, 2018, all new protests (excluding those containing classified material) must be filed using GAO’s EPDS. EPDS is designed to provide a more seamless and efficient process for all participants. The system provides real-time notice to federal agencies of a new protest filing, which serves as the Agency’s notification to stay performance of the newly-awarded contract as required under the Competition in Contracting Act (“CICA”). Since most government contractors hire outside counsel to file protests, this change will not have a large impact on contractors. Contractors should be aware, however, that GAO also has implemented a new $350 filing fee for all new protests. All subsequent filings and supplemental protests do not require a filing fee. Funds from this filing fee will be used to pay for the operation and maintenance of the EPDS.        

New DFARS Clause Implements Additional Debriefing Requirements

 The National Defense Authorization Act (“NDAA”) for 2018 enhanced debriefing requirements for all contract and task order awards valued at $10 million or more. Under the new rules, contracting officers must provide unsuccessful offerors an opportunity to submit additional questions related to the debriefing within two business days after receiving the initial debriefing. The Agency then has five business days to respond after receipt of the questions. The DoD recently implemented these requirements by issuing “Class Deviation – Enhanced Postaward Debriefing Rights” effective immediately. Notably, under this rule, a debriefing does not conclude until after the Agency delivers the written responses to the offeror’s questions. Under CICA, an unsuccessful offeror has five days from the conclusion of a debriefing to file a protest at the GAO and request a stay of contract performance. Thus, the new requirement for written questions and responses can increase the amount of time an unsuccessful offeror has to file a protest and obtain a stay of contract performance by as much as seven business days.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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