GAO’s Enhanced Legal Standard for Government Contract Bid Protests

On July 14, 2025, the U.S. Government Accountability Office (GAO) proposed a more rigorous pleading standard for bid protests, as mandated in Section 885 of the Servicemember Quality of Life Improvement and National Defense Authorization Act for Fiscal Year 2025 (FY 2025 NDAA). The FY 2025 NDAA required GAO to submit a proposal for applying an enhanced pleading standard to protests of Department of Defense (DOD) procurements. However, GAO is applying this new standard to all protests, not just those related to DOD.

GAO's regulations require a bid protest to "set forth a detailed statement of the legal and factual grounds of protest" and "clearly state legally sufficient grounds of protest" to avoid dismissal. 4 C.F.R. §§ 21.1(c)(4), (f), 21.5(f). Under GAO's July 14 proposal, protestors must provide "credible allegations supported by evidence" to survive a request for dismissal. Describing this standard as a "clarification," GAO explained that it will both reduce ambiguity and further bolster GAO's ability to expeditiously resolve protest allegations that are either not credible or unsupported by adequate evidence.

The Old Pleading Standard: Either Allegations or Evidence

Under prior case decisions, GAO interpreted its regulations to require "at a minimum, either allegations or evidence sufficient, if uncontradicted, to establish the likelihood of the protester's claim of improper agency action." Midwest Tube Fabricators, Inc., B-407166, B-407167, Nov. 20, 2012, 2012 CPD ¶ 324 at 3. Moreover, GAO decisions previously clarified that bare allegations or allegations "based on information and belief" were insufficient. See, e.g., Aix Tech, LLC, B-423417 et al., Jun. 11, 2025 CPD ¶ 136 at 4 (dismissing protest as legally insufficient when it was "based on an unreasonable inference, as opposed to any credible evidence, and such speculative allegations do not provide a valid basis of protest"). To establish a legally sufficient protest ground, a protester could plead "either allegations or evidence[.]" Id. (emphasis added).

The Revised Standard: Credible and Supported by Evidence

While the prior pleading standard permits GAO to dismiss frivolous cases early in the process, in response to Section 885's directive, GAO proposed to "make it clearer that protest allegations must be credible and supported by evidence." GAO will require protesters to "provide, at a minimum, credible allegations that are supported by evidence and are sufficient, if uncontradicted, to establish the likelihood of the protester's claim of improper agency action." See U.S. Gov't Accountability Off., B-423717, GAO Proposal in Response to Section 885 of the Servicemember Quality of Life Improvement and National Defense Authorization Act for Fiscal Year 2025, at 15 (2025).

This standard will be applied to all protests, not just those challenging DOD procurements, as was required by Section 885. The new standard has already been implemented in two recent bid protests, which shed some light on how the new standard will impact protesters.

In Warfighter Focused Logistics, Inc., GAO further explained the new standard: "Protesters must provide more than a bare allegation; the allegation must be supported by some explanation and evidence that establishes the likelihood the protester will prevail in its claim of improper agency action." Warfighter Focused Logistics, Inc., B-423546 B-423546.2, Aug. 5, 2025, 2025 WL 2237333, at *3. The protester in this case, Warfighter Focused Logistics, Inc. (WFL), alleged, among other things, that the evaluation of the awardee's quote was unreasonable because both vendors used the same supplier, and all of the stock quoted by the awardee had already been procured by WFL. Applying the new pleading standard, GAO found the protester's argument speculative. GAO reasoned that WFL presented no evidence that it and the awardee were in fact using the same supplier or even that WFL owned all of the supplier's available stock. The new pleading standard may make it more difficult for protesters to challenge the agency's evaluation of an awardee's proposal because the protester usually lacks evidence or support for the contents of another offeror's proposal.

In DS Imports, LLC, the protest consisted of a single sentence, where DS Imports claimed to have successfully supplied the same product to the Department of Transportation last year, and attached a copy of a CPARS report. See DS Imports, LLC, B-423665, Aug. 20, 2025, 2025 WL 2417337. The GAO interpreted the protest to, at best, argue that the agency unreasonably evaluated DS Imports' quote, or failed to select it for award, because the contractor previously provided the requirement under past contracts and had a high past performance rating, according to its CPARS report. Applying the new standard, the GAO found the single-sentence argument and CPARS report to be insufficient evidence to show that its technical proposal should have been evaluated differently. Essentially, DS Imports' allegation failed to show improper agency action where DS Imports did not identify in the Agency's evaluation that was unreasonable. This protest was likely insufficient under either standard, but this case shows that GAO is applying its new standard to protests of agencies other than DOD.

Conclusion

While the analysis GAO will perform to determine if a protest is factually and legally sufficient to avoid dismissal may look the same, the new standard suggests that protesters may face a heavier lift at GAO on the outset of a protest. The new standard may also affect the number of bid protests brought before GAO, as compared to the Court of Federal Claims or the specific agency. How demanding the new pleading standard actually is will become clearer as more protests are evaluated under these new expectations. For now, it serves as an important notice to protesters that, going forward, they may need to provide as much evidence as possible with their protest to support their allegations.

*Special thanks to Government Contracts Project Assistant Millie Koehler for contributing to this GT Alert.