The General Accounting Office proposed the first revisions since 1996 to its bid protest rules to clarify new developments since then (e.g. use of alternative disputes resolution (ADR), electronic filings, court decisions affecting rulings on contractor responsibility). The significant proposals are:
FAX and Electronic Filings. Protest and other documents may be filed by fax or other electronic means such as email but makes clear the filing party bears the risk the document will not be timely received by the GAO. Further, the new rule provides that GAO decisions may be transmitted electronically and finally the GAO may, when it chooses, hold hearings by video or other electronic means.
Definitions and Use of ADR. The proposed rule will provide that ADR is among the alternative procedures the GAO may use to promptly and fairly resolve a protest. A new definition would clarify that ADR consists of techniques – like outcome prediction and negotiation assistance – designed for timely resolution without a written opinion.
Comments on GAO Reports. Adds language making clear that protesters must file comments on agency reports within 10 days of receipt of the report unless GAO grants an extension. Fewer than 10 days may be appropriate where the GAO has established a shorter period.
Review of COC Determinations. Unless bad faith is demonstrated, the GAO will not review challenges to Certificate of Competency reviews of small businesses by government officials including alleged failure by the SBA to follow its own regulations.
Determinations of Responsibility. Though current language limits GAO review of determinations of responsibility to limited circumstances, recent cases have stated the GAO should rule on such issues where evidence raises serious concerns whether the contracting office unreasonably failed to consider available relevant information or violated a statute or regulation.
Suspension and Debarment Review. The proposal will add suspension and debarment actions as areas the GAO will not review. Rather, challenges should be at the agency that took the action.'
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