Three new bid protests were recently filed by AGC members that incorporate AGC’s legal theory challenging the government’s new PLA mandate. While bid protests challenge specific project awards at the U.S. Court of Federal Claims, the legal theory developed for AGC by outside counsel at Fox Rothschild aims to strike down the government’s PLA mandate across the board. The AGC-legal theory challenges the lawfulness of the government’s new PLA mandate as an unlawful socio-economic set aside that Congress never authorized. Consequently, this violates the Competition in Contracting Act (CICA).
Bid protests before the U.S. Court of Federal Claims typically move faster than litigation in federal district court. Briefs are due in December, and oral arguments will occur in January 2025. AGC members' three new bid protests add to the four bid protest cases previously reported here. Upon receiving a protest, the government has voluntarily agreed to suspend the project award in all seven bid cases.
Significantly, the government could have taken corrective action in each bid protest case and used the exception process to remove the government PLA mandate. However, to date, the government has neither received nor granted any exceptions to its PLA mandate on any construction project estimated to cost $35 million or more.[1] Instead, in multiple cases, once protested, the government supplemented sparse market research existing in the administrative record in an attempt to justify the government PLA mandate.
For more information, contact Leah Pilconis, General Counsel, at 703-837-5332 or Brian Perlberg, Senior Counsel, at 703-837-5318.
[1] More information can be found at https://www.acquisitiongateway.gov/additional-resources/resources/5014.