Supreme Court’s End to Chevron Deference Impacts CDA Claims and Bid Protest Procedures

By Scott P. Fitzsimmons and Brandon Regan

On June 28, 2024, the United States Supreme Court ended the long-standing doctrine of Chevron deference. The Court’s decision in Loper Bright Enterprises v. Raimondo brings with it significant changes in how courts must consider a federal agency’s statutory interpretation. The Loper decision has implications in two significant areas of federal contracting: Contract Disputes Act (CDA) claims and bid protests. 

Background of the Loper Decision

The Supreme Court’s decision centers on whether courts should defer to an administrative agency’s interpretation of an ambiguous statute. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the Court established a process of statutory interpretation. First, courts determine whether Congress’s intent on a specific issue was clear. If it was not, the court then deferred to the agency’s interpretation of the statute, if the interpretation was reasonable.

Loper involved family-owned fishing businesses who challenged a rule by the National Marine Fisheries Service (NMFS) requiring the businesses to pay for government-certified observers. The businesses argued that the applicable statute did not authorize NMFS to impose such costs. The lower courts applied Chevron deference, ruling in favor of the NMFS. In its recent decision, the Supreme Court overruled Chevron, asserting that courts must independently interpret the law and not defer to an agency’s interpretation. 

Implications for CDA Claims

The CDA establishes the legal framework for resolving disputes between contractors and the federal government. Under Chevron, the Court of Federal Claims (COFC) and Boards of Contract Appeals were required to apply an agency’s reasonable interpretation of federal statutes. See Bell v. United States, 169 Fed. Cl. 466, 477 (2024) (citing Chevron and asserting that “a court shall sustain the agency’s approach so long as it is based on a permissible construction of the statute.”); Appeal of Boeing Co., ASBCA No. 60373, 18-1 B.C.A. (CCH) ¶ 37112 (July 17, 2018) (“Chevron requires that we defer to an agency’s reasonable interpretation of a statute . . . .”). The Supreme Court’s Loper decision fundamentally alters this dynamic.

Now, COFC and the Boards must independently interpret statutory provisions without deferring to agency expertise, regardless if the agency’s interpretation appears reasonable. This change may lead to a more rigorous judicial review process and increased challenges to agency decisions. Contractors may find this new review process beneficial because the COFC and Boards are required to analyze government positions with more scrutiny. 

Because Loper mandates that courts exercise independent judgment, contractors may have greater opportunity to present their interpretation of applicable statutes. Although this process may lead to prolonged litigation, it may also result in more thorough and well-reasoned decisions, providing clearer guidance in the area of contract disputes. 

Implications for Bid Protest Actions

Bid protests are mechanisms through which contractors can challenge government procurement decisions including awards. Such protests may be adjudicated at the agency level, at the Government Accountability Office (GAO), or at COFC. Like CDA claims, the Loper decision will change bid protest proceedings. 

Similar to CDA claims, COFC and GAO were previously bound to follow an agency’s reasonable interpretation of a statute during a bid protest. See SH Synergy, LLC v. United States, 165 Fed. Cl. 745, 777 (2023) (recognizing in a bid protest matter that COFC must determine whether the agency’s position “is based on a permissible construction of the statute.”); Asrc Fed. Data Network Techs., LLC, B-418028, 2019 CPD ¶ 432 (Dec. 26, 2019) (“our Office is required to give great deference to an agency’s reasonable interpretation”).

Removing Chevron deference in bid protests means that COFC and GAO will no longer defer to agency interpretations of procurement statutes and regulations. This change requires GAO and COFC to scrutinize agency actions that often involve highly competitive, billion-dollar contracts. 

With COFC and GAO taking more active roles in interpreting procurement laws, contractors have a new avenue to present their statutory interpretations. Whether this results in more bid protests remains to be seen, but removal of the deference afforded to agencies will require a greater emphasis by the federal government to ensure its interpretation and application of procurement requirements complies with the plain meaning and congressional intent of each statute. As a result, agencies may be more cautious in their decision-making processes, knowing that their interpretations are now subject to judicial review. This change could lead to more detailed and well-justified procurement decisions to withstand judicial scrutiny, potentially improving the overall fairness and transparency of the procurement process.


The Supreme Court’s Loper decision reshapes the landscape of procurement law by eliminating certain powers previously afforded to federal agencies. For CDA claims and bid protest actions, this change heralds a potentially new era of increased judicial scrutiny.