GAO Issues New Guidance for Protests Involving Classified Material

The U.S. Government Accountability Office (GAO) issued new guidance in January 2023 (GAO Guidance) on filing and handling classified bid protests. The new procedures can be viewed on the GAO website and contain clear guidance to protester and intervenor counsel as to GAO's procedures for protests that include information subject to national security classifications.

As a quick summary, the newly published GAO Guidance directs protesters to:

• File the protest directly with the agency (via classified transmission systems). The date a classified protest (or other classified filing) is filed with the agency will be deemed the date filed with GAO for timeliness purposes.
• After filing with the agency, notify GAO immediately either by phone at 202.512.5436 or email at protests@gao.gov.
• Do not file anything in the Electronic Protest Docketing System (EPDS) until directed to do so by GAO. GAO will complete an unclassified notification form containing basic, unclassified information about the protest and provide that notification form to the protester with instructions on filing. Submission of the notification form in EPDS without prior coordination with GAO is prohibited.
• Once the notification form has been filed and the protest is docketed in EPDS, the assigned GAO attorney will provide additional instructions concerning subsequent filings and submissions.
• Never file any classified material via EPDS.

Overview of Procedures

The GAO's recently updated procedures for filing and handling protests with classified materials must be followed scrupulously by agency, protester and intervenor counsel who are involved in classified bid protests.

To file a protest involving classified materials (at any classification level), the protester should contact the procuring agency for filing instructions and file the protest with the agency, not in the EPDS. After filing the protest with the agency, the protester's counsel should immediately notify GAO's Procurement Law Control Group that a classified protest was filed with the agency. Again, notification to GAO should be made at 202.512.5436 or protests@gao.gov.

Once notification is made, GAO will obtain the necessary information to complete an unclassified notification form. That notification form – completed by GAO – will then be provided to the protester, and the protester will submit that form as the protest document that is filed in EPDS (along with the $350 filing fee).

A protester is not permitted to complete and file the notification form in EPDS before contacting GAO. GAO will provide the protester with the completed notification form in order to ensure all procedures have been properly followed. Only then, upon GAO direction, is the protester allowed to submit the notification form in EPDS.

Once the notification form has been filed and the protest is docketed in EPDS, the assigned GAO attorney will provide additional instructions concerning subsequent filings and submissions. For all filings potentially involving classified material, parties must submit documents first to the agency for security review, unless prior approval from GAO for physical delivery to GAO has been obtained. No party other than the agency may file an unclassified version of a document in EPDS unless given express consent by GAO.

Notably, the date on which a classified protest (or other classified filing) is filed with the agency will be deemed the date filed with GAO.

As a reminder, never file any classified material via EPDS.

Agency counsel should notify GAO immediately upon receipt of a protest containing classified material. Agency counsel must coordinate with the assigned GAO attorney concerning how classified materials will be made available to GAO. After a security review of a filing by the agency, an unclassified version of that filing can potentially be put in EPDS, but only by agency counsel and only when it is appropriate and directed by the assigned GAO attorney.

Conclusion

Based on the authors' experience, it is helpful to engage with agency counsel early on in order to coordinate matters such as an acceptable secured location for protester counsel to work on protest filings, whether the protester or intervenor have acceptable systems to transmit protest filings, and any other details that must be addressed in order to effect an orderly protest process. This will, ideally, permit the parties to present a unified proposal for GAO's consideration, avoiding undue delay. GAO's new guidance is helpful in framing these discussions.

Counsel who handle bid protests involving classified materials must become familiar with GAO's procedures and should always err on the side of caution in confirming their clearance to access, receive and transmit protest filings and other materials that may contain classified information.