Help! What Happens to My GAO Bid Protest During a Government Shutdown?
With a pending government shutdown, many government contractors may be asking: What happens to my Government Accountability Office (GAO) bid protest if the government shuts down? Can I still file a bid protest while the government is shut down? Our Government Contracts attorneys have been tracking GAO's view of possible outcomes based on past shutdowns. Here's what you need to know:
In 2013, the government shut down for 16 days and GAO ceased operations during that period. When the shutdown occurred, GAO posted to its website "an explanation of how the shutdown would affect bid protest activities and how [GAO] would proceed when the government resumed operations" and explained that it "would extend the bid protest deadlines one day for each day that GAO was shut down." Because the government shut down for 16 days, GAO considered the bid protest deadlines extended for a maximum of 16 days. Of the 280 cases docketed at the time of the shutdown, all but 39 cases were decided on time within the 100 calendar days.
In 2018, the government shut down for 35 days and parts of the government ceased operations. However, GAO was not subject to the lapse in appropriations and remained open during the partial shutdown. During that shutdown, GAO posted to its website a notice explaining "how the partial shutdown would affect bid protest activities and how [GAO] would proceed when the affected parts of the government resumed operation" and "explained that the partial shutdown did not affect filing deadlines for protestors and private parties," but "all deadlines for affected agency filings were tolled during the lapse in appropriations for the applicable agency and that GAO would establish revised filing deadlines for affected agencies when the lapse in funding was resolved." None of the decision deadlines for the eight protests from affected agencies were delayed.
Partial Versus Full Shutdown
The reason that the 2018 shutdown was a partial shutdown as opposed to a full shutdown like 2013 is because Congress passed several appropriations bills to fund parts of the government. There are 12 appropriations bills that need to be passed to fully fund the government. If Congress enacts some of the bills but not others, the agencies affected by the bills not enacted are forced to cease normal functioning; this is known as a partial government shutdown. The bills that passed in 2018 were (1) Defense, (2) Energy and Water Development and Related Agencies, (3) Labor, Health and Human Services, Education, (4) Legislative Branch, and (5) Military Construction, Veterans Affairs, and Related Agencies. The Legislative Branch appropriations bill is the appropriations bill that covers GAO. The Congressional Research Service (CRS) tracks which appropriations bills have been passed here. According to the CRS website, which was last updated at 1:45 p.m. Eastern on September 28, 2023, only the Military Construction, Veterans Affairs, and Related Agencies bill has passed in the House (it has not passed in the Senate).
We will not know how the bid protest docket will be affected until we know whether GAO will be affected by the government shutdown. If a shutdown happens, GAO will most likely post a notice explaining its views on how bid protests will be affected on its website once the government shuts down, which government contractors will want to carefully review.
Our attorneys are keeping a close eye on developments relating to the appropriations bills and possible government shutdown. If you have any questions about filing a bid protest or a pending bid protest during a government shutdown, please contact one of the Miller & Chevalier attorneys listed below:
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