Advertisements often include a disclaimer: “individual results may vary.” Similarly, lawyers are notorious for saying “it depends.” The mandatory Project Labor Agreement (“PLA”) regulations have recently placed into context this adage as it applies to federal contract bid protests, with very different results depending on which forum – the Court of Federal Claims (“COFC”) versus the Government Accountability Office (“GAO”) – different contractors have selected to bring PLA bid protests.
Over the last two years, over 30 protesters have successfully achieved removal of mandatory PLAs from large-scale federal construction contracts based on two landmark bid protest decisions issued by the COFC. Similar challenges to PLAs at the GAO, however, have not been successful in removing PLAs, highlighting an emerging trend that the COFC is often a more effective relief forum than GAO for government construction contractors.
Executive Order (“EO”) No. 14063 requires contractors to negotiate or become parties to PLAs when competing for large-scale construction projects, unless an exception applies.[1] COFC has found that procuring agencies who presumptively mandate use of PLAs without considering a specific procurement’s underlying needs violate the Competition in Contracting Act (“CICA”) by unlawfully excluding otherwise responsible contractors from competition. In contrast to other competitive restrictions, like a preference for Service-Disabled Veteran-Owned Small Businesses (“SDVOSB”), the PLA mandate is based on an EO and related FAR regulations—not a law passed by Congress. The legal basis for this distinction is that the Constitution vests the power to pass laws in Congress, and therefore the Executive Branch may not implement a policy that violates a statute passed by Congress – in this case, CICA.
On behalf of its clients, the Burr team has successfully prevailed in two consolidated protests proceedings resulting in published decision victories. COFC first ruled in favor of seven protesters in December 2024, holding that the Government’s implementation of the EO and related FAR provisions ignored “the agencies’ own market research concluding the [PLAs] would be anticompetitive.” MVL USA, Inc. v. United States, 174 Fed. Cl. 437 (2025) (“MVL”). The Court explained that the agencies’ decision to mandate PLAs was the product of a policy determination made by the President and the FAR, and that the agencies failed to show PLAs had a “substantive performance relation to the substance of the solicitations at issue…”
Burr’s team continued filing similar protests at COFC on behalf of numerous additional protesters, culminating in a second victory for contractors at the end of 2025. Brasfield & Gorrie, LLC v. United States, 179 Fed. Cl. 509, 536 (2025) (“B&G”). B&G was briefed on an expedited schedule while over a dozen consolidated PLA protests were stayed on the Court’s docket. After B&G, in which COFC again held that a mandatory PLA violated CICA, the government took corrective action on almost all but one of the remaining active PLA protests. The one remaining PLA protest from the B&G round of protests is set for oral argument this summer.
Given this record of success, it is surprising that a contractor decided to file a similarly situated PLA bid protest at the GAO. It did not end well. GAO considered the same question and reviewed the same statute, EO, and regulations, but reached the opposite conclusion. HHI Corp., B-424037 (February 18, 2026) (“HHI”). How did this happen?
The facts and law are substantially similar in all three of these written decisions. In HHI, GAO focused on the market research just as COFC did in MVL and B&G.[2] In each case, the market research suggested that competition would be reduced if the PLA was mandated. For example, in HHI, three contractors expressed opposition to the PLA in the survey, indicating it would increase costs and reduce competition. Later, the agency received five responses with “a variety of positions both in favor of and opposition to PLAs,” including from labor unions and contractors. The agency concluded in seemingly contradictory fashion that “The project location is somewhat remote, making skilled labor somewhat difficult to access; however, there is no credible reason to believe that a PLA requirement would further restrict access to the skilled labor market.”
GAO is often perceived as far more deferential to agency decision-making compared to COFC. And that turned out to be the case in HHI, as GAO found no error and noted that the FAR requires agencies to include a PLA unless an exception applies. GAO’s deference was on full display in HHI, and its divergence from COFC was notable in three areas.
First, GAO’s analysis focused primarily on the agency’s compliance with the FAR rather than the obvious violation of CICA. GAO essentially declined to consider whether CICA, the EO, and the FAR were in conflict: “until the applicable regulations have been rescinded, our Office will follow them.” GAO extensively discussed the FAR’s instruction to use PLAs in construction contracts “unless an exception applies.” GAO continued: “there was no need for the agency to specifically demonstrate that a PLA requirement was tailored to its needs or appropriate for this specific procurement. Instead, consistent with the FAR, the agency analyzed whether an exception applied and reasonably concluded that one did not.” (emphasis added). This is directly contrary to the analysis undertaken by COFC and reverses the statutory presumption that the default position for government procurements is full and open competition among all responsible offerors.
Second, GAO mistakenly failed to consider whether the solicitation requirements violated CICA, writing “the inquiry is whether the agency has a reasonable basis for its stated needs. The PLA FAR provision and clause address the government’s needs for large-scale construction projects.” GAO noted that the EO and the PLA FAR provisions “identified performance benefits to the government associated with the use of PLAs on large-scale construction contracts. . .” On this point, it is true that the EO and the FAR claim that PLAs offer performance benefits in general for large-scale construction contracts. The point of disagreement between COFC and GAO appears to be whether an agency can rely solely on policy determinations reflected in FAR and EO language, or whether an agency must independently determine that these policy benefits will materialize in a specific project. GAO says the agency is entitled to rely on the policy determinations in the FAR and the EO. COFC says an agency must make this determination on its own.
Third, GAO declined to look closely at the agency’s market research. GAO noted that the protester said that at least one respondent said it would not compete, but GAO said that the agency still concluded that an exception did not apply because, per the FAR, a likely reduction in the number of offerors is not, by itself, sufficient to reduce competition at a fair and reasonable price. “[W]hile many contractors submitted complaints regarding the PLA requirement, none of them indicated they were less likely to bid on solicitations that included them. With mixed results from the PLA surveys . . . there was no evidence that the inclusion of a PLA requirement would be detrimental to competition or qualify the project for an exception under FAR 22.504(d).” By contrast, in B&G, COFC explained that the PLA mandate “effectively exclude[d] bidders” for reasons unrelated to the procurement’s actual needs, and noted that “multiple potential bidders dispute[d] a PLA requirement as exclusionary and wholly unrelated to labor-disruption risk in Louisiana…”
GAO’s decision is not surprising, given its generally deferential approach. In addition, the contractor in HHI should have realized the risks of going to GAO, as opposed to the COFC, given the well-reasoned approach adopted by the COFC in MVL and B&G. In April 2025, GAO denied a request for reconsideration that relied on COFC’s MVL decision as evidence to argue that GAO’s initial decision in that proceeding was based on an “error of law.” 4K Global-ACC JV, LLC—Recon., B-423092.2 (April 11, 2025). GAO noted there and in HHI that it is not bound to follow COFC’s decisions. This adds to the puzzling nature of the contractor’s choice of forum, as GAO decisions are non-binding and COFC decisions are enforceable by permanent injunction. This factor alone typically suggests that federal government construction contractors can be confident that when they prevail on a bid protest at COFC, the agency is required to give them the relief ordered by the Court. In contrast, agencies, on rare occasions, ignore GAO’s recommendations.
The PLA bid protests have clarified how GAO is typically more deferential to agency decision-making than COFC, and that GAO’s practice of deferring to procuring agencies can alter the outcome of bid protest proceedings. See e.g., Walsh Construction Co. II, LLC, B-423075.2 (February 20, 2025) (finding that the agency’s removal of PLA requirements was reasonable); HHI Corp., B-424037 (February 18, 2026) (finding that the agency’s inclusion of PLA requirements was reasonable). We expect this trend to continue and recommend that offerors in most federal construction contract bid protest cases analyze if the facts and legal issues involved make the COFC a more neutral, evaluative forum for relief.
The views expressed in this article are not necessarily those of ConsensusDocs. Readers should not take or refrain from taking any action based on any information without first seeking legal advice.
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[1] The EO is implemented via FAR 52.222-33 and -34.
[2] Notably, the government’s market research survey asked more detailed questions than in the B&G procurement.