Section 804 of the House-enacted version of the National Defense Authorization Act for Fiscal Year 2024 would establish a “loser pays” pilot program to require contractors to reimburse the Department of Defense for costs incurred in “processing” bid protests that are ultimately denied by the Government Accountability Office. The accompanying House Armed Services Committee report explains the provision’s intent as “curtailing wasteful contract disputes.”

Kayleigh Scalzo
Kayleigh Scalzo represents government contractors in high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability Office, U.S. Court of Federal Claims, U.S. Court of Appeals for the Federal Circuit, FAA Office of Dispute Resolution for Acquisition, Port Authority of New York and New Jersey, federal and state agencies, and state courts. She is also a co-head of the firm’s Claims, Disputes, and Other Litigation Affinity Group within the Government Contracts practice.
Kayleigh has particular experience navigating state and local procurement matters at both ends of the contract lifecycle, including bid protests and termination matters. In recent years, she has advised and represented clients in connection with procurements in Alaska, Arizona, California, the District of Columbia, Illinois, Indiana, Kansas, New Jersey, New York, Pennsylvania, Tennessee, Texas, and Virginia.
Kayleigh is a frequent speaker on bid protest issues, including the unique challenges of protests in state and local jurisdictions.
Federal Circuit Weighs in on Bid Protest Standing and Departs from Prior Cases
On May 10, 2023, the United States Court of Appeals for the Federal Circuit issued a decision regarding bid protest standing in CACI, Inc.-Federal v. United States et al. In that decision, the court declared previous decisions to no longer be good law and held that the Court of Federal Claims erred in finding the protester to lack standing.…
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GAO Releases New Procedures for Classified Bid Protests
GAO recently released new procedures for filing and handling bid protests involving classified material. The procedures emphasize that classified material cannot be filed on GAO’s Electronic Protest Docketing System (EPDS) under any circumstances. Instead:…
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New Contractor Conflict of Interest Rules May Be Coming Soon, with a Special Focus on Consulting and Advisory Contracts
In legislation passed last week, Congress directed the FAR Council to issue new rules for contractor organizational conflicts of interest. The legislation itself did not create any new OCI standards, but provided factors for the council to consider, focusing on conflicts of interest for companies that act as consultants to the government.
It is unclear at this point what the precise nature and extent of the resulting changes to the OCI rules may be. But the new law makes it likely that there will be some fairly significant revisions. Congress set a deadline of Summer 2024 for the new regulations, so the contracting community should be on the lookout for a notice of proposed rulemaking in the coming months, and should not hesitate to submit comments for the government’s consideration.…
New FAR Provision Aims to Encourage Communication Between Government and Industry
On December 1, 2022, the Department of Defense, General Services Administration, and NASA published a final rule addressing “Effective Communication Between Government and Industry,” which is aimed at “encourag[ing] communication between Government acquisition personnel and industry.”
The rule adds a paragraph to FAR 1.102-2 that reads as follows:
…The Government must not hesitate to communicate
GAO’s Annual Bid Protest Report: Number of Protests Continues to Drop While the Effectiveness Rate Remains High
On Tuesday, GAO released its Bid Protest Annual Report to Congress for Fiscal Year 2022, which provides bid protest statistics and other interesting information regarding GAO’s protest system.
- The number of protest filings dropped by 12% from FY21. After a 12% drop in FY21, protest filings went down another 12% in FY22, with
GAO Sustains Pre-Award Protest and Finds Solicitation Terms to Be Ambiguous
As we have previously covered on this blog, challenges to the terms of a solicitation typically must be raised in a bid protest brought prior to proposal submission. The Government Accountability Office recently sustained such a pre-award protest in Selex ES, Inc., B-420799 (Sept. 6, 2022). …
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DOD Issues Final DFARS Rule on Enhanced Debriefing Process
On March 18, 2022, the Department of Defense published a final rule in the Defense Federal Acquisition Regulation Supplement implementing its “enhanced” debriefing process. That process originated in the National Defense Authorization Act for Fiscal Year 2018 and had previously been implemented via a class deviation.
The DOD enhanced debriefing process — which applies to procurements under FAR Part 15, and to task order competitions under FAR 16.505 — has two hallmarks:…
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GAO’s Annual Report: Bid Protest Cases Filed Drop to Ten-Year Lows While the Effectiveness Rate Remains High
Last Tuesday, GAO released its Fiscal Year 2021 protest statistics, which as always contains a wealth of interesting information about GAO’s protest system.
- Protest filings dropped by 12% from FY20. After remaining fairly steady in FY19 and FY20, filings dropped in FY21, with the lowest number of cases filed since FY08. It seems likely,
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Accepting What You Can’t Change: ASBCA Holds that an Agency Must Accept Non-Conforming Goods After Waiting to Consider a Deviation
The FAR explains that the Government must accept or reject work as “promptly as practicable after delivery.” FAR 52.246-2(j). But what if the contractor knows its work is not compliant, but has asked the agency for a deviation from the contract’s terms? A recent decision from the ASBCA provides guidance on this tough but not uncommon issue.
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