Stephen Bacon Quoted by Washington Technology on Potential New GAO Incumbent Bid Protest Risks
Stephen Bacon, a shareholder in Rogers Joseph O’Donnell’s Government Contracts Practice Group, was quoted in a recent Washington Technology article examining how the fiscal year 2026 National Defense Authorization Act could significantly change the risk calculus for incumbent contractors filing bid protests.
The article focuses on Section 875 of the 2026 NDAA, which authorizes the Department of Defense to withhold up to 5% of contract payments from an incumbent contractor that files a bid protest at the Government Accountability Office while continuing to perform under a bridge contract or extension. If the GAO ultimately dismisses the protest for lack of a reasonable legal or factual basis, the withheld payments may be forfeited.
Bacon told Washington Technology that the provision could meaningfully influence where, and whether, incumbent contractors choose to protest procurement decisions.
“This provision only kicks in if you protest at GAO, so at least in high-stakes incumbent protests, it may be that clients want to go to the U.S. Court of Federal Claims to avoid the potential penalty,” Bacon said.
Going forward, Bacon says incumbent contractors will need to carefully weigh forum selection, legal risk and financial exposure when challenging award decisions under the new NDAA framework.