The Hydra: Why FAR 2.0 May Mean More Litigation

FAR 2.0 may usher in a “golden age” of procurement litigation. Learn why the FAR is like the mythical hydra. Cut off one head (remove non-statutory rules) only to watch two more rise in its place (additional litigation over new interpretations or more complicated rules for contractors to track). David will discuss concrete examples including FAR 2.0’s treatment of the government control exception to the “Late is Late” Rule. The Government Accountability Office (“GAO”) and the Court of Federal Claims (“COFC”) disagree about how to interpret language written when computers batched incoming emails once per day. FAR 2.0 could have cleanly resolved this issue. Instead, FAR 2.0 made the landscape even more complicated and preserved the split between GAO and COFC. The result is uncertainty for some contractors, forum shopping, and wasteful doomed protests at GAO.