Admission of Former Employees as Consultants under GAO Bid Protest Protective Orders

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Tight deadlines apply to bid protests at GAO, including the admission of consultants under protective orders to provide technical, quantitative or other specialized knowledge useful to the litigation. GAO generally allows protesters to choose the assistance they deem necessary to pursue their bid protest, including consultants, unless the party opposing admission raises valid objections. GAO, however, has occasionally expressed its reluctance to admit a protesting party’s former employee as a consultant, particularly where the consultant is unlikely to testify before GAO again in the future.

Nevertheless, GAO has admitted former employees as consultants, even where the former employee was previously involved (several years before the protest) in the protester’s competitive decision-making. This article examines the standards that GAO applies in determining whether to admit consultants under its bid protest protective orders in this time-sensitive environment. It focuses on the gray area of whether a consultant’s prior—as opposed to ongoing— involvement in a party’s competitive decision making is grounds for rejection of an application for admission under a protective order.

Originally Published in Bloomberg BNA Federal Contracts Report - June 24, 2014.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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