Counsel Commentary: Eye on the Prize

Artificial intelligence (AI) has changed technology in many ways, and government procurement has yet to catch up. Procuring artificial intelligence systems poses significant challenges for federal agencies, with the rapid development of innovation proceeding too quickly for the long and complex procurement process. 

To address this, prize competitions have provided an alternative for agencies seeking to accelerate the AI procurement process. In 2013, the Government Accountability Office (GAO) ruled that it did not have jurisdiction to decide a challenge to the outcome of a prize contest. Nearly 11 years later, GAO recently decided in a separate protest filed by ARiA that this innovative approach is susceptible to protest when the prize contest is used to down-select eligible competition for a potential future contract. 

RJO shareholder Stephen L. Bacon explains how this decision provides important guidance to agencies and contractors regarding when a prize contest may be challenged in his monthly Contract Management Magazine column, “Eye on the Prize.” In the article, Bacon discusses the background for the decision as well as the implications of this decision on procurement. 

“The ARiA decision places a significant check on agency authority to use prize contests as a way to narrow the field of competitors for a procurement contract,” Bacon writes. “Although agencies have the flexibility to use prize contests in this manner, now they face the possibility that contest rules or outcomes may be challenged if the contest contemplates a potential follow-on contract.” 

The piece, which appears in the magazine’s September issue (subscription required), is the latest entry in Bacon’s monthly Counsel Commentary column and is published by the National Contract Management Association. It was used with permission.

Read Bacon’s latest Contract Management article here.