Scott Flesch discussed the complexities surrounding the implementation of the fee-shifting provision for Government Accountability Office (GAO) bid protests. He emphasized that while the provision – outlined in Section 885 of the 2025 National Defense Authorization Act – aims to deter frivolous protests, it may inadvertently lead to more litigation. "To the extent that the intent is to reduce litigation, that view may be short-sighted," Flesch said, pointing out that proving incurred losses due to delays or increased costs could become a contentious issue. He further noted that disputes may arise over whether an awardee is truly entitled to lost profits or whether the Department of Defense (DoD) should be reimbursed for protest-related costs. "Parties will end up fighting more about the amount of costs and whether a party is truly entitled to an alleged loss of profit by an awardee or reimbursement of a cost incurred by DOD to process a protest," Flesch explained.