Pay to plea

Pay-Up-or-Shut-Up Fee Proposed for Federal Contracting Protests

The U.S. Government Accountability Office, which arbitrates contract disputes, is asking Congress to approve the agency’s first-ever fee to file a bid protest, said Ralph White, GAO’s managing associate general counsel for procurement law.

The proposed charge might come in the form of a $240 flat fee, which would fund an online docket system designed to help the GAO cope with a rising caseload, he said. The online docket would help ease the strain on GAO staff who must now manually filter through about 16,000 protest- related e-mail messages a year, White said. The current process raises the risk of mistakes and delays, he said. The proposed docketing system would increase transparency in the bid protest process by allowing contractors and the public to “instantaneously access all documents filed in a particular protest through a readily accessible web-based portal,” according to the GAO document.

It’s necessary to fund the online docket with a fee because Congress may not be willing to approve taxpayer money for it, White said.

The agency is proposing either the flat fee of $240 for each protest, or a lower initial charge with additional costs for filing supplementary documents. Both arrangements would raise about the same amount of money. The fee would be in line with the amounts charged at other legal venues, White said. For example, the U.S. Court of Federal Claims, which also hears contract disputes, charges a $350 filing fee, according to the GAO.

Some members of Congress probably will support the fee as a way to deter frivolous protests, while others may oppose it because they’ll see it as a burden on small businesses, said Dan Gordon, associate dean of procurement law at George Washington Law School and a former top contracting official in the Obama administration.

Charging a protest fee probably wouldn’t greatly alter the workload at GAO, he said.

“I would be astonished if there was a significant decline in the number of protests because of that fee,” Gordon said in a phone interview.

It's interesting to conjecture what other frivolous projects would be funded by the members of Congress instead of funding the docket system. My objection is about spending money frivolously, not about good faith petitioning our government for redress.