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Scott Flesch Discusses Shift Toward COFC for Bid Protests in Law360

Subtitle
"Claims Court Becoming More Attractive for Bid Protests"

Law360

Scott Flesch explained why the U.S. Court of Federal Claims (COFC) is gaining favor over the Government Accountability Office (GAO) for bid protests by some counsel. Flesch noted that the COFC provides an opportunity for a more complete administrative record, including acquisition planning, proposals, and agency communications. He highlighted the strategic advantage of the COFC's prefiling notice requirement. Referencing the Department of Justice's (DOJ) early engagement with counsel and potential to resolve disputes before formal complaints are filed, he adds, "That's 134 protests that arguably went away in the prefiling stage." Flesch also highlights DOJ's increased willingness to agree to voluntary stays at COFC and points out that GAO's filing fee recently increased which partly reduced the cost disparity between the two venues.