Counsel Commentary: Congress Focuses on Incumbent Protesters

Congress has introduced a significant shift in the bid protest landscape with Section 875 of the FY2026 National Defense Authorization Act. The change targets incumbent Department of Defense (DoD) contractors that file protests at the Government Accountability Office (GAO). 

Section 875 creates financial consequences for contractors whose protests are ultimately dismissed for lacking a reasonable legal or factual basis, adding a new variable to the decision-making equation for incumbent contractors considering filing a bid protest at GAO.

In his monthly Contract Management magazine column, “Congress Focuses on Incumbent Protesters,” Rogers Joseph O’Donnell shareholder Stephen L. Bacon writes that Section 875 seeks to discourage incumbent contractors who try to file frivolous protests to extend their incumbency.

“Historically, protesters have not had to worry about financial penalties for filing a bid protest,” Bacon writes. “Once Section 875 is implemented, however, DoD incumbent contractors will face the threat of real monetary consequences if they choose to file a protest at GAO.”

Bacon notes that contractors may increasingly consider filing at the U.S. Court of Federal Claims, where the withholding and forfeiture provisions do not apply. The heightened risk may also lead contractors to narrow the scope of their protests, which could limit access to agency records tied to specific allegations. Implementation questions remain, including how the DoD will define which protest grounds lack a “reasonable legal or factual basis” to trigger the forfeiture penalty.

This article was published in the March/April 2026 issue of Contract Management magazine by the National Contract Management Association (NCMA). Access to the full article in NCMA’s online content library is subject to NCMA’s article access policies.

View a PDF of the article here.