DoD Makes Significant Changes to Bid Protest Requirements

By Dirk Haire

The 2025 National Defense Authorization Act (NDAA) includes two significant changes to DoD bid protests that are generally not favorable to contractors. (Both changes appear in Section 885 of the NDAA and can be viewed at pages 601-603 of this link.)

‘Loser Pays’ Provision

The first change is a return of the “loser pays” provision, which means that an unsuccessful protestor must reimburse the government for the costs and delay associated with bringing the protest.

The NDAA includes a formula to calculate the amount that is sure to have a chilling effect on bringing protests to the GAO. That said, it is important to note that this loser pays requirement does not apply to DoD protests filed at the Court of Federal Claims (COFC). This means that nearly all future DoD protests should be filed at the COFC.

Jurisdictional Threshold

The second change affects task order protests by increasing the GAO’s jurisdictional threshold from $25 million to $35 million. This means that a task order’s IGE must be at least $35 million to protest it at GAO.

The law that authorizes task order protests also specifically authorizes GAO – and not the COFC – as the tribunal to file a task order protest. However, recent decisions at the Federal Circuit (and two cases that I currently have at the COFC) have allowed the COFC to proceed under so-called “Tucker Act” jurisdiction. This question is being actively litigated, but if the Federal Circuit and the COFC continue to support Tucker Act jurisdiction for task orders, it would make sense in most cases to go to the COFC and not the GAO.

More Careful Review

In addition to the two factors discussed above, it appears that the COFC is generally more willing to engage in a careful review of bid protests, while the GAO is more likely to give undue deference to government statutes, regulations and source selection decision-makers. In the past year, I have won bid protests at the COFC on the legality of Project Labor Agreements (PLAs) and the requirement for “wet ink” signatures on bid bonds, while similar protests have been brought and lost by other contractors at the GAO.

Dirk D. Haire?has a national construction and government contracts practice focused on bid protests and claims litigation relating to federal construction. He and his team typically handle more than a dozen bid protests each year. If you have questions, contact Dirk at 202.461.3114 or [email protected].