The Latest Bid Protest 'Reform' Should Be Repealed

Law360, New York (January 16, 2018, 5:58 PM EST) -- The National Defense Authorization Act for Fiscal Year 2018 included a provision that penalizes contractors for filing unsuccessful bid protests involving large defense procurements at the U.S. Government Accountability Office by requiring them to pay the U.S. Department of Defense's costs of processing the protests, regardless of the merit of the allegations.[1] This change was driven by alleged policy concerns that protests by large contractors are impairing the DOD procurement process.

By hamstringing effective and independent review of agency decisions, the new "loser pays" provision violates fundamental principles of administrative law enshrined in the Administrative Procedure Act, which was designed to protect...

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