2018 NDAA: Unsuccessful GAO Protesters May be Liable for Government Costs

The 2018 National Defense Authorization Act put a new twist on potential costs a contractor may incur in filing a GAO bid protest.

While many federal contractors are familiar with the costs arising from a GAO protest, including their attorneys’ fees and consultant and expert witness fees, and some are lucky enough to recoup such costs upon GAO’s sustainment of a protest, under the 2018 NDAA, some large DoD contractors may also be required to reimburse DoD for costs incurred in defending protests denied by GAO.

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Win a GAO Bid Protest? You May be Entitled to Attorneys’ Fees

As a government contracts attorney, there is nothing I enjoy more than winning a victory on behalf of a client–then having the government pick up the tab.  It doesn’t happen all the time, of course.  The general rule in the United States is that everyone pays his or her own attorneys’ fees.  But a recent GAO decision highlights the fact that, under the right circumstances, a successful GAO protester is entitled to recover its attorneys’ fees.

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