Burr’s Government Contracts team examines the growing divide between the COFC and the GAO in bid protests challenging mandatory Project Labor Agreements (“PLAs”) on large-scale federal construction contracts. The article analyzes how more than 30 contractors have successfully challenged PLA requirements at COFC under the Competition in Contracting Act (“CICA”), while similar protests at GAO have largely failed.

The article discusses two landmark COFC decisions, MVL USA, Inc. v. United States and Brasfield & Gorrie, LLC v. United States, in which the Court held that agencies improperly imposed mandatory PLAs without adequately considering whether the requirements were necessary for the specific procurements at issue. In contrast, the article explores GAO’s decision in HHI Corp., where GAO upheld a PLA requirement and deferred to the Executive Order and FAR provisions supporting PLAs unless a regulatory exception applied.

The article further highlights key distinctions between COFC and GAO, including GAO’s deference to agency decision-making, its reliance on FAR compliance rather than broader CICA considerations, and its differing treatment of agency market research. The authors conclude that the recent PLA protest decisions reinforce COFC’s role as a more neutral and effective forum for contractors seeking relief in federal construction bid protests involving mandatory PLA requirements. For contractors, this can affect access to billions of dollars in federal construction work and shapes how future bid protests will be litigated.

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