GAO protests: new filing fee of $350

This may be a good question for a poll, but my WAG is there will be no effect.

It certainly costs more than a "stamp".  However, I don't think it will deter too many firms from filing a protest to the GAO.  The proposed amount is more or less the cost of an hour of an attorney's time.  A contractor filing a GAO protest will likely spend far more on the protest, so the initial filling fee should not be deterrent alone.  It may give some smaller firms pause before filing a protest that might be considered by some as frivolous, but I'm not sure.  We may find out over time (if an when the new procedures and costs are implemented) if it has an impact on the number of protest.  However, it may not be possible to attribute the cost of filing a protest to any reduction in the number of protests over the prior fiscal year.  I suspect the GAO would not want to be seen as deterring GAO protests.

I don't think it will affect the quality of the protest.  The protest either it timely or it is not.  It either has merits or it doesn't.  A lack of timeliness or merit has not kept firms from filing protests in the past.  I don't think charging a relatively nominal fee will affect the quality of a protest.

Pepe:

Do you want to me convert this to a poll?  It would be a simple yes, no, choice.

No, thank you. PepeTheFrog prefers the analyses to the conclusions.

PepeTheFrog said:

Does anyone think this will significantly affect the number or quality of GAO protests? PepeTheFrog imagines that any effects will be minimal because $350 is not much of a deterrent for filing. What does the forum think?

Not one bit.  $350 is a nominal amount when it comes to B&P costs.  Also, that doesn't appear to be the intent based on the notice (https://www.gpo.gov/fdsys/pkg/FR-2016-04-15/pdf/2016-08622.pdf):

Quote

GAO derived the fee using actual costs GAO has incurred to develop the system, estimates of future costs for hosting and maintaining the system (adjusted for inflation), estimates of future annual bid protest filings as determined by historical filings of the past five fiscal years, and a recovery period for development costs of approximately six years.  System establishment costs include payments made by GAO under an interagency agreement for development of the system, as well as GAO’s internal costs incurred for system development. Costs to maintain the system include estimated payments for post-development hosting and support of the electronic protest filing system, as well as estimates of GAO’s internal costs associated with maintaining the system after it has been deployed. All fees collected will be maintained in a separate account established by GAO. The fee will be reviewed every two years to ensure that it is properly calibrated to recover the costs of establishing and maintaining the system.

GAO included this announcement today, right after a summary of B-412701, Latvian Connection, LLC, April 22, 2016 (denied).

Coincidence? PepeTheFrog thinks this is an inside joke.

Matthew Fleharty said:

$350 is a nominal amount when it comes to B&P costs.  Also, that doesn't appear to be the intent based on the notice

A one-time fee of $350 is nominal. However, $350 might deter a repeat, frivolous protestor. Regarding the stated intent, PepeTheFrog is far more cynical.

PepeTheFrog said:

GAO included this announcement today, right after a summary of B-412701, Latvian Connection, LLC, April 22, 2016 (denied).

Coincidence? PepeTheFrog thinks this is an inside joke.

A one-time fee of $350 is nominal. However, $350 might deter a repeat, frivolous protestor. Regarding the stated intent, PepeTheFrog is far more cynical.

Fair point that it may deter a protestor that behaves in such a manner, but it would only do so in regards to having them bear the costs associated with their system.  If the GAO's primary purpose was to deter protests, I'd expect a higher fee than $350.  A search of the GAO's site for Latvian Connection, LLC returned 151 bid protests (http://www.gao.gov/search?q=Latvian+Connection&Submit=Search).  At $350 per protest that only totals $52,850.  Even though it appears that all of the 104 closed protests have been either dismissed or denied, Einstein defined insanity as "doing the same thing over and over again and expecting different results" - so I suppose I'm hesitant to try and predict behavior based on what seems rational when the historical trend for some has been anything but.

PepeTheFrog said:

GAO included this announcement today, right after a summary of B-412701, Latvian Connection, LLC, April 22, 2016 (denied).

Coincidence? PepeTheFrog thinks this is an inside joke.

A one-time fee of $350 is nominal. However, $350 might deter a repeat, frivolous protestor. Regarding the stated intent, PepeTheFrog is far more cynical.

This.  I don't think a $350 fee will affect overall year end numbers.  But I do think it will deter some contractors/firms that have essentially made filing cut and paste protests a hobby.

I came across this interview transcript where a representative from the GAO talked about the background for establishing the cost of filing fee. 

http://law.pubkgroup.com/2015/08/17/qa-with-pubklaws-annual-review-panelists-gaos-ralph-white/

.... and then there is this.  Apparently, there are proposals to amend the 2017 NDAA. One is to prohibit a CoFC suit after a GAO loss and the second would require a protestor to pay certain costs to the Government if they lose a protest.  

http://www.pscouncil.org/News2/NewsReleases/2016/PSC_Asks_HASC_to_Forego_Protest_Process_Changes_in_FY17_NDAA.aspx

I wrote an article entitled, "Pathologies of the Protest System: Recommendations for a Cure," which appeared in the July 2011 edition of The Nash & Cibinic Report, 25 N&CR ¶ 32. In it I described the problem of protests that are first filed with the GAO and then with the COFC by the loser. I said:

Quote

These kinds of protest cases lead us to wonder why we have a protest system in the first place. Tenacious protesters are pursuing every course of action available to them in the apparent belief that the contracts they seek are worth the cost of litigation. This is expensive not only for them, but for the agencies conducting the acquisitions, the firms that won the contracts and then must stand by for months waiting to see if they will be able to keep them, and, ultimately, for the taxpayers. Why should the Government permit this sort of thing? We think it is bureaucratically pathological for the Government to permit protesters to go to the GAO and then to the COFC or to challenge agency decisions to comply with GAO recommendations.

*     *     *

The number of such GAO-to-COFC decisions is small relative to the number of acquisitions conducted every year, and they do not make for a crisis in acquisition, but their effect is disproportionate. What is happening is troubling in principle and throws a monkey wrench into the acquisition process. Why should protesters be permitted to file with the GAO and then go to the COFC if they do not like the outcome, or sue to stop an agency from following the GAO's recommendation after it sustains a protest? Is the COFC supposed to serve as an appellate court? If the ideal protest system is inexpensive, simple, and expeditious and provides for appropriate corrective action following gross errors, then Congress should give the GAO exclusive jurisdiction, as it did in the case or protests of task and delivery order awards. Why do we need two forums?

*     *     *

The acquisition system does not need more doubt and confusion. Why not give the GAO exclusive jurisdiction over all protests? It can do the job, including the big ones, as it proved by its handling of the air tanker protest and many other protests of large procurements. (This does not mean that we think the GAO is perfect.) I part company with Ralph [Nash] and John [Cibinic] when it comes to the CICA stay provisions. I would retain them, because I fear that if stays were eliminated, too many agencies would choose to pay costs and anticipated profits rather than to take appropriate corrective action that would be in the taxpayers' best interests.

If the COFC is to be kept in the game, then I propose that Congress impose reasonable timeliness deadlines for filing with the court, as proposed by Saunders and Butler in 39 Pub. Cont. L.J. 539, cited above, and prohibit protesters from going from the GAO to the court or questioning an agency's decision to comply with a GAO recommendation. If a firm wants to challenge the outcome after an agency follows a GAO recommendation, it should be required to go back to the GAO. Protesters should be required to choose a forum and then live with the outcome.

I'm glad that DOD is asking Congress to prohibit protests to the COFC after a decision by the GAO. I hope Congress does it. It's the right thing to do. They should also require the court to establish timeliness rules for protests.

I posted this decision on the Home Page for tomorrow.  The link below takes you to the complete decision that I posted within the protests page.  The excerpt below puts the $350 filing fee in perspective.

"In sum, we recommend that the agency reimburse Federal Builders a total of $259,488.52, including proposal preparation costs of $47,242.00, $182,922.10 in attorneys’ fees for filing and pursuing the protest, $7,746.92 for the time spent by Federal Builders’ manager in assisting counsel in preparing and pursuing the protest, and $21,577.50 for the costs of pursuing its claim for reimbursement.  (Federal Builders, LLC-The James R. Belk Trust--Costs B-409952.3: May 6, 2016)  (pdf)"

Just learned there is a $100 - $300 protest fee in olympic gymnastics.

The inquiry system was devised...when widespread protests about judging led to a complete overhaul of the scoring system, including the elimination of the “perfect 10.” Scores now include an open-ended difficulty score, measuring the complexity of the routine, and the execution score, measuring how well the gymnast performed the routine. (scoring scheme sounds familiar?)

https://www.yahoo.com/sports/news/challenging-judges-in-olympic-gymnastics-costs-real-money-203905668.html

The article says there is a four minute deadline to provide the written protest.  I'd love to read one!  Just an accusation that there is a foreign substance in the judge's eye?  (By foreign substance I mean feces)

Seems to me they used to show what each judge scored and which outliers were eliminated and then the total score.   Now they just show the max, how many were deducted and the final score in hundreths.  I am not sure how one performance can be 1/100th subjective point better than another but it can.  And you don't know which judges gave the low scores.  I really hate sports with judges scoring them.  I like objective scoring like goals, shots, baskets, and time to the line.

Wrestling is compelling in that way.  There is no score: you just get beaten. 

There is still a ref, though.  Do you like the javelin throw or track?  Not much subjectivity there.

apsofacto said:

Wrestling is compelling in that way. There is no score : you just get beaten. 

There is still a ref, though.  Do you like the javelin throw or track?  Not much subjectivity there.

Concerning Olympic Wrestling, "There is no score" is not necessarily correct.  Even with a pin, there is a score...

http://www.nbcolympics.com/news/wrestling-101-scoring

Boof said:

Seems to me they used to show what each judge scored and which outliers were eliminated and then the total score.   Now they just show the max, how many were deducted and the final score in hundreths.  I am not sure how one performance can be 1/100th subjective point better than another but it can.  And you don't know which judges gave the low scores.  I really hate sports with judges scoring them.  I like objective scoring like goals, shots, baskets, and time to the line.

I remember some construction progress reports I've reviewed and they were stating a percentage complete that seemed to be based more on money spent rather than nice rounded "the roof is framed". It resulted in a project's progress "nailed down" to a hundred-thousandth of a percent.

On 4/26/2016 at 3:52 PM, Matthew Fleharty said:

Fair point that it may deter a protestor that behaves in such a manner, but it would only do so in regards to having them bear the costs associated with their system.  If the GAO's primary purpose was to deter protests, I'd expect a higher fee than $350.  A search of the GAO's site for Latvian Connection, LLC returned 151 bid protests (http://www.gao.gov/search?q=Latvian+Connection&Submit=Search).  At $350 per protest that only totals $52,850.  Even though it appears that all of the 104 closed protests have been either dismissed or denied, Einstein defined insanity as "doing the same thing over and over again and expecting different results" - so I suppose I'm hesitant to try and predict behavior based on what seems rational when the historical trend for some has been anything but.

Hi all,

Long time lurker & first time poster here.  Finally decided I should start contributing towards the fantastic community here.

A GAO report just released yesterday has banned Latvian Connection from filing protests for at least one year: http://www.gao.gov/products/D14354#mt=e-report

Icy,

Welcome!  Thanks for the link to that decision -- I was glad to see it.

Does anyone know if this is unprecedented? Is this the first time a company has been banned from GAO protests?

I don't know Pepe but I've been celebrating every since I heard about it.  This company deserves to set a precedent at GAO.

On a completely unrelated note, is anyone at Wifcon interested in joining PepeTheFrog to create a company called Estonian Pathways LLC?

This company will have a limited term of August 19, 2016 to August 19, 2017. PepeTheFrog is looking for people who have a strong background in the GAO bid protest process.

PepeTheFrog said:

On a completely unrelated note, is anyone at Wifcon interested in joining PepeTheFrog to create a company called Estonian Pathways LLC?

This company will have a limited term of August 19, 2016 to August 19, 2017. PepeTheFrog is looking for people who have a strong background in the GAO bid protest process.

But, you bring a good point: what's stopping Latvian Connections from continuing the administrative sabotage via proxy or other entity?  Listing the firm and the persons involved in EPLS, then requiring protestors to verify a positive SAM.gov registration?  We'll cross that bridge if/when we get there, I suppose.

Icy asked :

"But, you bring a good point: what's stopping Latvian Connections from continuing the administrative sabotage via proxy or other entity?  Listing the firm and the persons involved in EPLS, then requiring protestors to verify a positive SAM.gov registration?  We'll cross that bridge if/when we get there, I suppose."

Icy, I think that's why they specifically banned the principal.

EDIT: Joel already said what I said... I blame the board software for not showing me his response. :-p

Icy said:

But, you bring a good point: what's stopping Latvian Connections from continuing the administrative sabotage via proxy or other entity?

joel hoffman said:

Icy, that's why they specifically banned the principal.

PepeTheFrog is hopping, almost vibrating with curiosity: Isn't there a way for this crusade to continue? The principal and Latvian Connection LLC are both banned for one year. What's to stop Estonian Pathways LLC, owned by principal Pepe Le Grenouille, from picking up the sword? Who knows what other nefarious confederates lie waiting in the wings, and what can GAO do until Estonian Pathways LLC reaches a similar track record? What if Lithuanian Networks LLC, Baltic Nexus LLC, and Belorussian Intermediary LLC join the crusade? What then?

Unfortunately, the Board might have sparked a war of challenges

PepeTheFrog said:

PepeTheFrog is hopping, almost vibrating with curiosity: Isn't there a way for this crusade to continue? The principal and Latvian Connection LLC are both banned for one year. What's to stop Estonian Pathways LLC, owned by principal Pepe Le Grenouille, from picking up the sword? Who knows what other nefarious confederates lie waiting in the wings, and what can GAO do until Estonian Pathways LLC reaches a similar track record? What if Lithuanian Networks LLC, Baltic Nexus LLC, and Belorussian Intermediary LLC join the crusade? What then?

With all the interest this suspension could generate, other disgruntled aspirants might decide to join in similar behavior.

Jason:

Was something missing from this topic that once was here?  Not that I can recover it but I'd like to know if there is something wrong with this software.

bob7947 said:

Jason:

Was something missing from this topic that once was here?  Not that I can recover it but I'd like to know if there is something wrong with this software.

Sometimes if you view a thread and you view the "new posts", it will give you the newest posts at the bottom of the page, but it only gave me the first page's worth of new posts and didn't include the second page's new post.

Pepe --

What Latvian Connection did wasn't simply a matter of being a disgruntled non-awardee but something of a vendetta against DoD Contracting as a whole (as described by the GAO).

On one hand, it could very well be a matter of "Latvian Connection is indeed a special kind of case".

On the other hand, it could very well come down with a similar sanction for another company that goes on a protesting spree where their status as an interested party is null and they seem to have a business model centered on making broad and unsubstantiated claims of impropriety on behalf of themselves and other companies, and continuing to make the same legalese-babble arguments repeatedly to no avail, all while speaking publically about "corruption" of the very office to which they submit more than a literal gross of protests to in a single fiscal year.

On August 23, 2016 at 10:33 AM, bob7947 said:

Jason:

Was something missing from this topic that once was here?  Not that I can recover it but I'd like to know if there is something wrong with this software.

Bob, if two or more members are posting at the same time, after I post my answer, I don't always see other responses posted while I was composing my post  unless I refresh the page. Otherwise, it looks like my response was next in the string. Perhaps that is what Jason was referring to(?)