GAO proposes fee for bid protests

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The Government Accountability Office says it will seek congressional authority to start charging a fee for filing a bid protest.

Workload at the congressional office – which has jurisdiction to hear allegations against most federal agencies made by vendors that a procurement was improperly conducted– has increased (.pdf) by a third to 2,495 over the past 5 years while its appropriations fell by 6.4 percent from fiscal 2011 to fiscal 2012 to $511,296.

Ralph White, the agency's managing associate general counsel for procurement law, says the agency handles at least 16,000 protest-related emails each year, and must manually sort them.

What's badly needed, he says, is a docket system – but, based on an earlier response to a request for information, the agency estimates one would cost between $400,000 and $450,000, and that's money the agency doesn't expect to get from Congress.

"This is not an environment where those [spending] requests are lightly made or likely to be lightly granted. It's a tough environment," he said.

Two options the GAO is considering asking for congressional permission to implement are a flat fee of $240 per protest or a transaction-based charge per docket filing. The agency has considered adopting the U.S. Court's Public Access to Court Electronic Records docket system, but it may be unsuited to GAO needs, White said.

If the agency does gain authorization to charge fees, it would be careful to ensure that grant of a procurement stay (which filing a timely protest with the GAO triggers, under the Competition in Contracting Act) wouldn't be bound by payment clearance, White said.

But, the Court of Federal Claims, which also has jurisdiction to hear bid protests, charges $350 to file and will dismiss a case if the fee isn't paid, White noted.

Gaining congressional approval may not be easy, suggest outside observers. Eight congressional committees likely would claim a role in any changes to bid protest regulations – the House and Senate appropriations, oversight and small business committees, as well as armed services committees, since most filed protests pertain to Defense Department procurements (by dint of the sheer number of procurements the DoD conducts each year).

One matter that could become a sticking point is whether to grant small businesses a reduced fee, something that some GAO bid protest attorneys say in private they'd be opposed to.

In addition, the GAO's position as a legislative branch agency isn't lost on some members of Congress, who use the possibility of a free protest with the power to completely halt a federal procurement in progress as a tool in constituent relations.

For more:
- go to the GAO bid protest homepage

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