A Proposed Rule published by the Government Accountability Office (“GAO”) in the Federal Register on April 15 contains one provision federal contractors will want to comment on:
Do you want to pay $350 to file a bid protest?
In the Proposed Rule, the GAO anticipates that it will establish an electronic system known as the Electronic Protest Docketing System, or EPDS. The EDPS will be the sole means for filing a bid protest at GAO (with the exception of protests containing classified information), and will enable parties to a bid protest and the GAO to file and receive documents. Protesters will have to pay a filing fee, which is anticipated at $350, and is based on “actual costs the GAO has incurred to develop [the EPDS], estimates of future costs,” and so on.
We all know that being a federal government contractor comes with additional costs not encountered in the private sphere – costs due to delays and extra work required, costs when a contract is terminated for convenience, costs to hire a professional to comply with federal laws and regulations. . .
These costs are somewhat offset by “perks” – free services available to contractors such as registration in federal databases including as SAM.gov and VetBiz, and access to certain resources.
Perhaps the biggest “perk” is the right to file a bid protest contesting improper award of a federal contract or defects with a solicitation. After all, a great deal of work goes into preparing a proposal for a contract opportunity, and such awards impact a business’ profit margins (or even livelihood). The venue of choice for contractors is often the GAO, which, right now, does not charge to file a bid protest.
I do understand the rationale for the GAO proposing to charge to file a bid protest. It is in fact expensive for the GAO to process such protests; and a fee may also reduce the number of frivolous protests.
I also, however, believe that the benefits are far outweighed by the drawbacks. First of all, why $350? Such a large amount is cost-prohibitive for many small businesses – it is rarely that expensive to file a formal lawsuit in most venues. Second of all, given the costs that contractors must incur due to government- caused issues in the performance of a federal contract, don’t they deserve to have this service provided for free? Third of all, if the government has improperly issued an award or has issued a defective solicitation, why should a contractor (literally) have to pay for the government’s mistake(s)?
Luckily, this is a Proposed Rule, meaning that it is not likely to become an implemented rule any time soon. Not only that, but it will take years for the EPDS system to become functional. Still, as a contractor, if you have an opinion on the imposition of this fee, make sure you submit your comment on or before May 16, 2016. (Comments may be submitted by email at [email protected] to the attention of Jonathan L. Kang). The complete Proposed Rule may be accessed here.
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GAO Proposed Rule Affects Contractors’ Bottom Line
I,, myself, was protested 4 times by a similar SDVOSB a few years ago. The people that filed these protests did so knowing they were frivolous. Their object was to keep us from bidding on jobs against them. It worked. If they would have had to pay the $350 maybe the protests would not have been started. They filed first one and then another and then another and finally, the last. Each of these were filed in succession. A total of almost 12 months were spent without our being able to bid on jobs. Their attempts failed. WE are still in business.
I’m sorry to hear that happened. To me that kind of situation is the biggest argument in favor of the fee.
It might help if the amount was a bit lower ($200 will still deter) and a protestor automatically got their fee back if they received some form of relief (corrective action or a sustained protest). Then those with merit aren’t punished.
When Latvian was suspended by private company FEDBID following a GAO Protest win against the Navy for not setting aside a solicitation automatically as the value was $ 80,000 ( B-410000 ) where the Navy canceled the solicitation to escape the GAO. We took action by taking agencies using FEDBID to the GAO in groups of 15 to 40 solicitations in each protest. IT WAS EFFECTIVE. FEDBID was just getting suspended in Jan 2015 and Agencies were still using them.
It took Latvian filing 500 GAO Protests to get the 2 wins against FEDBID / Dept of State ( B-410947 ) and against FEDBID / Dept of Interior ( B-410981 ) where the GAO stated FEDBID ” We recommend that the agency revise the ground rules of the procurement to conduct the competition in a manner consistent with the Small Business Act and other procurement laws and regulations. We also recommend that DOI reimburse the protester the costs of filing and pursuing its protest.”
Those wins came shortly after SDVOSB AEROSAGE LLC prevailed against FEDBID (B-409627 ) and was suspended by FEDBID and Florida’s FITNET too was suspended by this private company.
FEDBID will never suspend another U.S. Small Business – ever.
We should have to pay to file a protest to combat Negative Determinations, Discrimination, arbitrary, capricious, and contrary to the Law behavior ?
Rubbish.
Latvian Connection LLC has been getting discriminated against by the State Dept, BBG, every Branch of the DoD, Dept of Interior that do not want to honor Automatic Set Asides for the $ 3,000 to $ 150,000 contracts, still use the bid-rigging FEDBID that has an ATP Automatic Target Price that is in itself a bid rigging mechanism and FEDBID is inviting ineligible Businesses to bid on Set Aside solicitations and we have one right now, B-412833 where FEDBID invited 2,338 companies to bid and a WOSB US 21 INC was awarded except they don’t possess the NAICS code 334510 – that is willful misrepresentation and the State Dept did exactly what they did in B-410947 – awarded while under a GAO Protest.
We file protests against awarded contracts where a Negative Determination and a contract that should have been an automatic set aside was awarded to a foreign company; solicitation was not set aside; FAR 19.202-2 and FAR 19.202-4 were ignored; and the solicitation was not publicized. Those protests the white collar criminals cannot escape – they are awarded.
Should we have to pay to file against the Army that gave an amendment to their friends to change a size of a rectangle – 8 days after bidding closed and excluded Latvian Connection LLC. That win was B-411489 and caused the permanent end of ASFI and PROCNET. They are not the official GPE
We are about to file a series of group protests to bring to the GAO all of the solicitations published on 275 different State Dept website. No Sources Sought to determine Small Business interest or automatic set asides. That is industrial scale discrimination against SDVOSB Latvian Connection LLC and this is why we file protests. So that our bidding opportunities go up not steered to a foreign company or Large Business.
Hillary Clinton harmed Latvian Connection LLC her entire time as leader of the State Dept and in fact there appears to be $ 6 Billion unaccounted for in contracts under her watch documented in a State Dept IG report. One of these may be taken down as other links appear to have been to conceal this industrial scale systemic evidence of STATE DEPT and BBG discrimination of U.S. Small Businesses and a total failure to comply with FEDERAL Procurement Laws. http://www.washingtontimes.com/news/2014/apr/4/state-dept-misplaced-6b-under-hillary-clinton-ig-r/?page=all ; and the OIG report https://oig.state.gov/system/files/224580.pdf
My upcoming protests will show the above document about Hillary Clinton’s leadership and her leadership in ragards to Procurement Integrity and discrimination of U.S. Small Businesses under her watch and it will give 6 supporting documents including GAO decisions B-411848, B411489, B-296984, and 3 COFC cases where the GAO and Federal Judges state that the only Official GPE, Governmentwide, single portal, single Government Point of Entry is http://www.fbo.gov
I even have a copy of the GAO protest about the FEDBIZOPPS GSA Federal contract and its purpose. Serve as the single portal for Federal contract opportunities.
Latvian has been systemically discriminated against and this is how I vindicate our position that a concealed private solicitation is an illegal Negative Determination and is/ was steered contract.
Contracting Officers should be United States citizes and it is Richard Ginman while at the DPAP and the FAR Council that broke the trust of the American public and allowed foreign contracting officers. It should not have happened.
http://blogs.wsj.com/corruption-currents/2011/05/24/u-s-citizenship-no-longer-a-requirement-for-state-dept-contracting-officers/
I have a series of protests to file about FEDBID and the Agencies using FEDBID steering contracts; violating FAR 15.206 and reposting without compelling reasons; without a SF30 Amendment; allowing FEDBID employees to contact by phone and email vendors ( AEROSAGE LLC B-409627 ); violate the late is late ground rule and FEDBID is extending the solicitation ( inherent governmental function ) and CO is not posting to GPE a SF30 Amendment; facilitating willfully misrepresenting companies to bid on contracts they don’t have a NAICS for, driving down the price and harming U.S.Small Businesses that DO have the NAICS; inviting ineligible companies ( inherent governmental function ) and canceling the solicitation ( inherent governmental function ) arbitrarily; not awarding on first round of bidding to lowest bidder ( inherent governmental function ); not issuing elimination from competitive range letters ( inherent governmental function ); not restricting bidding to original bidders ( FAR 15.206 ); Procurement Integrity Act violations of interfering with the procurement process and steering the outcome by awarding to other than the low bidder and to bidders that are foreign. FEDBID is a platform for violating the Small Business Act and the FAR and it is going to be taken on.
There are dozens of Susan Taylors acting on monopoly FEDBIDs behalf and Obama’s OFPP appointee is now the head of FEDBID and was there when AEROSAGE LLC, FITNET INC, Latvian Connection LLC were suspended. Joseph G. Jordan was at FEDBID when FEDBID was suspended and Luther Tupponce, FEDBIDs legal counsel was recommended for suspension along with Ali Saadat.
So, there is a purpose to GAO protest and Congress could appoint a designated attorney general to file cases against contracting officers violating the Small Business Act; Federal Acquisition Regulations; Anti-Bundling statutes; and other contracting irregularities that is the current discrimination of SDVOSB Latvian Connection LLC and other SDVOSB, VOSB, and other U.S. Small Busness concerns:
See Scanwell Lab., Inc. v. Shaffer, 424 F.2d 859, 864 (D.C. Cir. 1970) (“Instead of designating the Attorney General, or some other public officer, to bring such proceedings, Congress can constitutionally enact a statute conferring on any nonofficial person, or on a designated group of non-official persons, authority to bring a suit to prevent action by an officer in violation of his statutory powers; for then, in like manner, there is an actual controversy, and there is nothing constitutionally prohibiting Congress from empowering any person, official or not, to institute a proceeding involving such a controversy, even if the sole purpose is to vindicate the public interest. Such persons, so authorized, are, so to speak, private Attorney Generals.”); Department of the Navy–Modification of Remedy, B-284080.3, May 24, 2000, 2000 CPD ¶ 99 (“In our view, [the] protest served precisely the purpose anticipated by CICA [by] highlight[ing] a failure by GSA to properly maintain the FSS program . . . [W]e think CICA clearly anticipates that the government should reimburse DRS for acting as a private attorney general in shining the light of publicity here.”); E&R, Inc.–Claim for Costs, B-255868, B-255868.2, May 30, 1996, 96-1 CPD ¶ 264 (“In essence, entitlement to bid protest costs relieves a protester of the financial demands of acting as a private attorney general where it brings to light an agency’s failure to conduct a procurement in accordance with law and regulation.”)
As a SDVOSB, I should never had to have learned to file GAO Protests – but the level of white collar criminal activity in the Dept of Defense, State Dept, and other Federal Agencies is why we had to learn and take on these white collar criminals. We have caused the removal of 100 contracting officers … and counting.
Until we are not discriminated against and stop seeing bundled solicitations, no Sources Sought, and finding hidden solicitations. Then there will be no need to file GAO Protests.
Until then, a fee will just drive these protests to the Agency where they will be covered up – but still published on http://www.usmilitarycontracting.org and https://www.facebook.com/usmilitarycontracting.org Each protest will be put onto You Tube. the GAO are already not publishing their Decisions that countermand Federal Laws, Regulations, Statutes and even their own previous decisions to cover-up for Agencies violating the FAR, Small Business Act and the GAO are not inviting the Small Business Administration to comment.
The GAO are for the most part perpetuating the white collar crime by not awarding bid protest costs as soon as corrective action is taken. Which for Latvian is 75% of the time. That means there really was something wrong.
We had a GSA protest where the contracting officer did not give a delivery destination on a single order under a FOB included in delivery LPTA for Toner cartridges. He gave the delivery location 1 hour after the Protest was filed – Al Jaber Air Base, Kuwait.
The moron ignored 2 requests for delivery location. The GSA Office of Small Business Development was unresponsive. The ombudsman was unresponsive. The GAO protest cause this white collar criminal to post the delivery destination.