Proposed rules shave days off bid-protest process

The General Accounting Office last week issued proposed rules for expediting the bid-protest process.

The Information Technology Management Reform Act, which gives GAO jurisdiction over all bid protests in IT procurements, requires the agency to shave 25 days from its consideration of cases. Beginning Aug. 8, GAO will have 100 calendar days to rule on all protests.

Generally, the proposed rules would reduce the time frames in which protesters and agencies are required to file legal documents, compared with both current GAO procedures and those of the General Services Administration's Board of Contract Appeals. Under the law, GAO would have more time than the 60 days in which GSBCA must make its decisions.

According to the proposed rule, GAO would give vendors only 10 calendar days to file a protest from the time the basis of a protest is known or should have been known. Current GAO rules allow 14 days, and GSBCA rules allow 10 working days. Under the proposed rules, vendors would have five days, rather than the current 14 days, to file supplemental or amended protests and five days to appeal an agency-level protest decision. GSBCA rules allow 10 working days. Responding to suggestions from lawyers, agencies and vendors, GAO would allow agencies to make requested documents available to protesters before they issue a response to a protest. Agencies would be required under the new procedures to let protesters and GAO know whether they will release the requested documents five days before they file their formal response.

Agencies would have less time to respond to requests by protesters for extra documents, and protesters would no longer get additional time to review them.

Jim Williams, deputy assistant commissioner for procurement with the Internal Revenue Service, said the rules appear to comport with the goals of new procurement reform laws aimed at streamlining the protest process. Williams said a new requirement that agencies issue their reports within 30 days rather than 35 days after a protest is filed is "fine with us" if "it helps to reduce time overall."

But Carl Peckinpaugh, a lawyer with Winston & Strawn, Washington, D.C., said compressed timetables for protesters could result in more protests being filed because vendors will not have as much time to analyze information they receive before they take legal action. In addition, he said, the provisions for early document disclosure might add to the volume of amendments to protests because "you won't have a full picture until it's over."

In comments filed with GAO earlier this year, the Information Technology Association of America argued for early disclosure of documents "because it would lead to the early elimination of issues that have no merit."

A source familiar with GAO's thinking on the proposed rules characterized the rule changes as "tweaks" to the current GAO bid-protest process. "They have made an attempt, wherever they could, to shave the time periods down," the source said. "It's always subject to adjustment."

The public has until July 1 to comment on the proposal.