September 17, 2019

September 17, 2019

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September 16, 2019

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

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.

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

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About this Author

Katie A. Calogero, Sheppard Mullin law firm, Government, Contracts Lawyer, Litigation Attorney, Washington, DC
Associate

Katie Calogero is an associate in the Government Contracts, Investigations and International Trade Practice Group in the firm's Washington D.C. office.

Ms. Calogero represents clients of all sizes in a broad range of Government contracts and International Trade matters.  Her practice includes:

  • Prosecuting and defending pre- and post-award bid protests before the Government Accountability Office (GAO), the United States Court of Appeals for the Federal Circuit, the United States Court of Federal Claims (COFC),...
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