NDAA Section 875: Congress Targets Incumbent Bid Protests Despite Declining Filings

Congress has enacted a new mechanism to discourage meritless bid protests of U.S. Department of Defense (DoD) contract awards by incumbent contractors. Under existing rules, when a contractor files a bid protest at the Government Accountability Office (GAO), the contracting agency must stay performance of the awarded contract for up to 100 days pending the GAO’s resolution of the protest. When the awarded contract is a follow-on effort, this means the contracting agency may have to extend any incumbent contracts or award new bridge contracts at least for the duration of the protest to ensure the agency is able to continue fulfilling its needs. Agencies and Congress have long been concerned that government contractors with lapsing incumbent contracts are gaming this system by filing meritless protests at the GAO to extend performance of their existing contract for an extra 100 days.

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