When pursuing a bid protest before the Government Accountability Office, it is never a good idea to presume that you’ll get your attorneys’ fees paid by the agency.
If you are fortunate enough to recover attorneys’ fees, GAO’s general standard is to recommend paying the fees associated with all the protest grounds being pursued, whether or not they were meritorious. But although this is the general posture, it is not always the case.
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.
Those who follow SmallGovCon regularly know that I read a lot of GAO bid protest decisions (and often comment on them here). Reading the decisions—and working on many GAO protests for clients—I see some of the same mistakes repeated over and over.
These common mistakes can, and do, cost a government contractor a shot at a successful GAO protest. So here, in no particular order, are my top five common GAO bid protest mistakes.