Why Government Contractors Shouldn’t Let AI Write Their Bid Protests: A Bid Protest Isn’t a Writing Exercise, It’s a Series of Judgment Calls

Article by: Mary Pat Buckenmeyer, Partner

In my practice, I’m seeing this pattern more often: a contractor loses an award, opens an AI chat, and asks it to draft a bid protest.

I get it, it’s fast, cheap, and it’s amazing how polished the output can be. But watching this play out over the last year or so, I want to offer my words of caution and to say, this is one of the worst places to let AI take the lead. Notice, I didn’t say don’t use AI at all, but hold that thought, we’ll get to that.

First things first: a protest isn’t a writing exercise—it’s a judgment call.

By this, I mean that a good protest is built on strategic decisions that no language model can make for you:

• Forum selection. The Government Accountability Office (GAO), the U.S. Court of Federal Claims (COFC), and agency-level protests each carry different rules, timelines, and track records. Pick the wrong one and you can lose before you’re even heard. Harsh, but true.
• Timeliness traps. Protest deadlines are unforgiving and jurisdictional, especially around debriefings and the ten-day versus five-day rules that determine whether you even get a stay of performance. No AI tool can independently verify the procedural posture of your specific procurement. These timeliness rules are why I still keep a wall calendar, a physical desk calendar, and an Outlook calendar.
• Issue selection. Experienced counsel know which arguments GAO and the COFC will actually find viable, versus which ones sound compelling but consistently lose. Throwing every argument at the wall, which AI tools love to do, can dilute your strongest issues which, in turn, can cost you credibility.
• Reading a debriefing. Knowing what the agency’s answers (or evasions) actually signal takes pattern recognition built from dozens of these situations, not from summarizing one document.

Next, the one that gives me a lot of heartburn: there’s also a real confidentiality problem.

Protests involve sensitive pricing, technical approach, and evaluation and other source selection sensitive information. Running that through a general-purpose AI tool raises real questions about disclosure and data retention. And that’s just for the initial protest. The GAO and COFC do not currently permit the use of AI tools once protective orders are in place. It’s one thing for your client to give you permission to use their sensitive information in an AI tool. It’s another thing entirely once that information is disclosed under a protective order — at that point, it’s not your client’s call to make, and it’s not yours either.

And then there’s the accuracy risk that’s already embarrassed litigants elsewhere: AI models fabricate case citations and misstate regulations with total confidence and bravado. One fabricated citation in front of a forum where credibility is everything can sink your entire protest and invite sanctions.

But let’s end on a positive note: as promised, here’s where I think AI does belong.

I think AI is a useful tool to:

• Organize and summarize lengthy solicitations and evaluation records
• Flag potential inconsistencies for a human to dig into
• Speed up drafting once the legal strategy is already set
• Surface candidate case law for me to verify and apply myself

AI makes my team faster. It doesn’t replace the judgment, accountability, and hard-won experience that protest practice demands.

A bid protest is often a contractor’s last shot at correcting an unfair award decision, often with millions of dollars and years of program work riding on it. That’s not the moment to hand the wheel to a tool that can’t verify your deadlines and can’t be held accountable for its advice.