Recent US GAO Decision Reinforces that US COFC’s Decisions are Not Binding on GAO as a Bid Protest Forum
On April 23, 2025, the Government Accountability Office (“GAO”) released a public decision dismissing a reconsideration request filed by 4K Global-ACC JC, LLC. The decision is noteworthy because in rejecting the request for reconsideration, GAO emphasized that it is not bound by decisions of the US Court of Federal Claims (“COFC”).
This Legal Update summarizes the GAO’s decision and discusses key points for federal contractors that may consider filing bid protests at GAO, COFC, or both.
Background
The underlying GAO protest involved the award of a contract by the Department of the Army, Corps of Engineers, for building repairs. In particular, 4K Global challenged the Government’s decision to award a contract to another firm because 4K Global’s project labor agreement (“PLA”) did not comply with the Federal Acquisition Regulation (“FAR”).
On January 15, 2025, GAO denied the protest. GAO found that the Government reasonably rejected 4K Global’s proposal because the record showed that it had not submitted a PLA that complied with applicable FAR sections.1 Citing its timeliness rules at 4 C.F.R. § 21.2(a)(1)2—which require solicitation challenges to be raised before proposals are submitted—GAO also dismissed as untimely 4K Global’s arguments that the PLA requirements set forth in the solicitation were unreasonable.
Request for Reconsideration
In its request for reconsideration, 4K Global argued that a COFC decision issued after the initial 4K Global decision indicated that GAO’s denial of its protest contains an error of law. The request relied on MVL USA, Inc., et al. v. United States.3 According to 4K Global, GAO’s decision was flawed because the COFC’s MVL USA decision “struck down the mandate . . . regarding the [PLA] requirement.”
GAO denied 4K Global’s request for reconsideration. As a threshold matter, GAO explained that 4K Global’s reliance on a COFC decision as the sole basis for reconsideration was misplaced. In this regard, GAO stated:
As our Office has previously explained, while we have traditionally given careful consideration to decisions of the court, we are not bound by them.4
GAO also explained that the COFC’s holding in MVL USA was neither relevant nor applicable to the issue in 4K Global’s protest for at least two reasons. First, GAO noted that MVL USA involved pre-award protests, whereas 4K Global’s challenge was filed post-award. GAO explained that this difference in procedural posture was important because 4K Global’s arguments focused on the solicitation’s requirements, and were dismissed as untimely because they were raised post-award. Second, GAO reasoned that because the MVL court expressly limited its holding to the individual contracts in that case, the COFC’s decision would not apply to a GAO decision that preceded the court’s decision.5
In the end, GAO denied the request for reconsideration without addressing the merits of the potential disagreement between its decision in the underlying 4K Global protest and the COFC’s decision in MVL USA. Instead, GAO relied heavily on the non-binding nature of the COFC’s decisions and the procedural differences in the respective cases.
Conclusion
As most federal contractors are aware, Congress has authorized bid protests to be filed with the procuring agency, GAO, and the COFC.6 There are a number of legal distinctions between GAO and the COFC. Importantly, the two bid protest forums are independent of each other and neither forum is bound by the decisions of the other forum.7 The GAO’s reconsideration decision in 4K Global reinforces this general principle. Accordingly, contractors that may pursue protests at GAO and/or COFC bid protest should take note of this decision.
Along with generally clarifying that COFC’s decisions are not binding on GAO, the decision suggests that GAO is not eager to address the merits of COFC decisions that may be inconsistent. This is important for contractors to note when determining which bid protest forum will provide the best chances of success. In this regard, potential protesters should see COFC case law as persuasive (at best), and should not count on GAO changing course based solely on an arguably inconsistent COFC decision. Rather, would-be protesters should assess their likelihood of success based on a careful consideration of the respective case law at GAO and the COFC as two separate bid protest forums.
1 Specifically, GAO found that 4K Global’s PLA did not satisfy the requirements of FAR sections 52.222-33 and 52.222-34. Id. at 4.
2 4 C.F.R. § 21.2(a)(1) states, in relevant part, that “[p]rotests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals.”
3 174 Fed. Cl. 437 (January 21, 2025).
4 4K Global-ACC JV, LLC—Recon., B-423092.2 at 3(citing Kingdomware Techs.—Recon., B-407232.2, Dec. 13, 2012, 2012 CPD ¶ 351 at 3).
5 4K Global-ACC JV, LLC—Recon., B-423092.2 at 4 (citing MVL USA, Inc., et al., supra at 441, 463).
6 31 U.S.C. §§ 3551-57 (GAO); 28 U.S.C. § 1491(b) (COFC).
7 Under its Bid Protest Regulations, GAO will dismiss “any case where the matter involved is the subject of litigation before, or has been decided on the merits by, a court of competent jurisdiction.” 4 C.F.R. § 21.11(b). Thus, if a protest has been decided on the merits by the COFC (a court of competent jurisdiction), this rule would preclude GAO from reconsidering the same matter in a subsequent protest. This rule would also prevent GAO from considering a protest when the same matter is pending before the COFC.
