All Activity

I’ve seen solicitations requiring offerors to submit HR data showing corporate retention percentages for the job categories. I don’t know if that works here but the general concern for agencies is minimizing performance disruptions when positions need replacing. I can see two different situations. One involves one or a few superstars that can’t easily be replaced. These people often are in high demand and frequently change jobs due to seeking new interests/challenges and/or better compensation. I’ve got a good personal friend that fits in this category. He’s worked for six financial advisory firms in five years. Ironically he’s in NYC. Dealing with a company employing those superstars and considering past performance is different that the other situation. The other involves evaluating a team. No single individual has relatively unique expertise. So you designate certain individuals as key personnel. You evaluate resumes and corporate experience in recruiting and retaining staff. If the evaluation discloses a good track record, the loss of a team member isn’t so critical.

This scenario does come up, as @formerfed mentions, in R&D / science / IT. Think of it like this - the government is hiring a team, not a company. I would 1) downgrade the relevancy/importance of PP for both offerors, 2) increase the contract's performance risk, and/or 3) reduce the comparative differences in PP between offerors for source selection purposes. If individuals have a disproportionately large impact on offeror past performance, and you cannot comfortably assume those individuals will remain with any offeror for the duration of the contract, then offeror's past performance is a relatively weaker signal of their ability to perform the contract successfully. The offeror's specific proposed team, the key individuals proposed to do the work, becomes the relatively stronger signal - but it comes with a big risk, those individuals staying on the job post-award. Note that this scenario, a very strong PP indicator is an offeror demonstrating a consistent history of hiring and retaining one star performer after another - think Boston Celtics or Yale.

Yes, I would but not significant.

Hmmm? Just a clarification for me as I follow. Advisor equals employee, or subcontractor?

Why is a bilateral mod required to delete expired, unexercised options? It doesn’t affect either party’s contractual rights or the total payments to the contractor? Does the tail wagging the dog contract admin software system not allow a admin mod to do this?

We evaluated the qualifications of key personnel that offerors proposed for many years. We identified the positions that we considered to be “key”. We also stated in the contract that substitutions of specifically proposed key personnel would be subject to the KO’s review and approval. Any proposed substitute would be evaluated in comparison to the qualifications and experience of the originally proposed and evaluated key person.

Will certainly be interesting if it sticks around long enough to be litigated!

Would you also give Joe's new company credit for his performance at his old company? Or would that go too far in your view? Thanks! Agree. I've encouraged my employees and colleagues to do it this way for years.

That makes sense. It's just unusual in Federal contracting to discuss past performance this way. For example, when we do CPARS, we're evaluating entities. If the contractor does outstanding work thanks to a lone rockstar employee, the company would get the rating nonetheless.

Agree. That is why I put the 'policy' qualifier in my reply. There is no good policy or functional rationale, but there definitely is a good statutory rationale. I look forward to the creative counterarguments about why it isn't ultra vires because the IDIQ awardees agreed, or BPA Calls are legally distinct from "task or delivery orders" and so exempt from 4106, or whatever.

Happy Friday! It’s hard to believe we’re already halfway through July! We hope your summer has been filled with meaningful hangouts with family and friends, vacation adventures, and a little extra time to enjoy the season. As we head into the second half of summer, we’re grateful for your continued support of SmallGovCon and look forward to sharing more tips, updates, and resources to help your contracting business thrive. Have a great weekend. This week in federal government contracting saw articles on pausing parts of CMMC and the role of AI in federal procurement. Pentagon suspends CMMC phase two requirements, launches review of program An in depth look at interagency contracting Senate rejects Cyber Force push as debate over cyber structure continues The government’s role in innovation may be changing from customer to investor The federal government is trying to drive innovation with accountability GSA Solicits Industry Feedback to Enhance American-Made Product Procurement House hearing spotlights SBA’s 8(a) overhaul as tribes press for application backlog relief SBA Commends U.S. Department of War’s Suspension of CMMC Phase II for Small Defense Contractors Pentagon proposes new secrecy power to withhold unclassified records from public-access laws Despite revisions, GSA’s proposed AI acquisition rule still falls short, stakeholders say Pentagon seeks to shift billions to cover rising personnel costs SBA enters ‘new phase’ with Palantir on anti-fraud efforts The post SmallGovCon Week in Review: July 13-17, 2026 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

What time does the day end? Most people would answer that a day ends at midnight. However, a recent GAO decision highlights that, for purposes of filing a pre-award bid protest with the GAO, the business day ends at 5:30 p.m. ET when the GAO closes its doors for the day. Confusingly, this can result in a protest that was technically filed on a Friday after 5:30 p.m. ET, not actually being filed until Monday, the next business day. A recent GAO decision explores this phenomenon and clarifies filing deadlines for pre-award bid protests challenging solicitation terms, especially in the case where an offer deadline is after GAO’s close of business. In Oready, LLC, B-424508 et al., (Comp. Gen. June 8, 2026), the GAO dismissed Oready’s pre-award bid protests challenging the terms of three requests for quotations as untimely because they were filed after the GAO’s office had closed for the day on which the submission of quotations were due, even though they were filed before the time for receipt of proposals. Each of the requests for quotation issued by the Department of the Interior, Bureau of Indian Education for commercial occupational therapist and certified occupational therapist assistant services specified that quotations were to be submitted by 5:00 p.m. MDT on May 15, 2026 (which would be 7:00 p.m. eastern time). Oready submitted its protests to the GAO on May 15, 2026, after its office had already closed at 5:30 p.m. ET. GAO explained that “the submission after [GAO’s] office had closed meant that each was filed when [GAO’s] office reopened on May 18” and that “Oready had to have filed these protests with [GAO’s] Office by 5:30 p.m. [at the local time for GAO] on May 15 for them to be timely.” GAO’s bid protest regulations specifically state that “a document is filed on a particular day when it is received by EPDS by 5:30 p.m., Eastern Time.” 4 C.F.R. § 21.0(g). So, if a protest is filed on Monday before 5:30 p.m. ET, it is filed on that Monday. Conversely, if a protest is filed on Monday after 5:30 p.m. ET, it is treated as if it were filed on the next business day, Tuesday. Additionally, GAO’s regulations require that “protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals.” 4 C.F.R. § 21.2(a)(1). For example, imagine that the deadline for submitting an offer on a particular solicitation is 5:00 p.m. on a Sunday. Company X wants to file a protest based on apparent improprieties in the solicitation under 4 C.F.R. § 21.2(a)(1). If Company X were to wait to file a pre-award protest on this basis until 4 p.m. on Sunday, it would be too late. The protest, it appears based on this case, would be treated by GAO to be filed on that Monday, which is after offers were due on the preceding Sunday. For Company X’s protest to be timely submitted, it would have had to file its protest by 5:30 p.m. ET on the preceding Friday, which is GAO’s last business day before offers were due on the solicitation. While Oready openly admitted that its protests were untimely under 4 C.F.R. § 21.2(a)(1), it argued that it had emailed a copy of each of its protests to the contracting officer before the 5:00 p.m. MDT deadline for submitting quotations, so it had effectively filed a timely agency-level protest. Therefore, it further argued that the protests it filed with the GAO on May 18 were timely as they each constituted subsequent protests to the GAO. If a protestor has filed a timely agency-level protest, a subsequent protest to GAO is considered timely so long as it is filed within 10 days of protestor’s actual or constructive knowledge of initial adverse agency action. See 4 C.F.R. § 21.2(a)(3). This timeliness exception allows a protestor to file a protest with the GAO even after the time for receiving proposals has passed provided that the protestor has filed a timely agency-level protest. Ultimately, GAO found that Oready had not made an agency-level protest and therefore could not avail itself of the timeliness exception in 4 C.F.R. § 21.2(a)(3). There are specific elements that must be included in an agency-level protest, including that the protest makes “a request for an agency ruling” and “be addressed to the contracting officer or other official designated to receive protests.” FAR 33.103(d)(2)-(3). Here, GAO found that “none of the protests was addressed to any official at the Department of Interior or the Bureau of Indian Education specifically, and none requested a ruling from that agency.” Rather, Oready referred to the protest as “a copy of the protest filed with GAO” and the attached protest was addressed to and requested relief from GAO. Had Oready properly filed an agency-level protest, the timeliness exception would have applied, and the protests filed with GAO would have been timely as subsequent protests to GAO. While GAO’s regulations allow the GAO to consider an untimely protest if good cause is shown, it declined to do so under these circumstances. See 4 C.F.R. § 21.2(c). Therefore, GAO dismissed Oready’s protests as untimely. At first, it might not be intuitive how a protest filed one day really wasn’t technically filed until the next business day. However, this decision illustrates the importance of being mindful of timing and appropriately tracking your deadlines, especially if the office for receipt of proposals is in a different time zone than GAO, or there is a late time for receipt of proposals. If this feels overwhelming, or you need assistance with filing a protest with GAO by the proper deadline, feel free to reach out to us. Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919. The post When Today Becomes the Next Business Day: GAO’s Strict Rules for the Timely Submission of Bid Protests to Solicitation Terms first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

There is a lot to get into here, but let's start with some fundamentals. First, the LOC clause only applies to cost, not fee. So you should not be including fee in your calculation of whether an overrun has occurred. Instead, the calculation only involves a comparison of allowable incurred costs to the estimated cost of the contract. Second, you said the overrun occurred because you did not know that your actual indirect cost rates would be higher than your provisional rates. However, that is not the test for determining if you can recover your overrun costs. The test is whether the contractor knew or should have known that an overrun was going to occur in time to give the government timely notice of the overrun. You are expected to have systems in place that allow you to track your indirect costs and report overruns. If you don't have such systems or you have them and you did not properly exercise them, and experienced an overrun, the government does not have to fund the overrun. If you complied with the procedures described above, I would submit a voucher for the remaining funding on the contract, but would not indicate it is the final or closeout voucher. I would also, submit a request for an adjustment to the estimated cost of the contract to reflect the actual costs you incurred. In regard to the latter, you will need to convince the government that you have incurred a compensable overrun.

@FrankJon This happens occasionally in R&D, scientific studies, and IT development projects where there are a limited number of personnel with unique expertise or capabilities available in the field. Companies hire or subcontract these experts for specific projects and then the experts move on. Past performance usually addresses this by saying Joe (the expert) worked on this project for company A but no longer there. While the project was successful, that was largely due to Joe’s involvement but he’s gone. Its questionable if similar success can occur in the future. Or Joe’s impact was good but not essential to the successful outcome and other staff are available. I commend you for calling references. It seems like the government gravitated towards the easy and risk adverse means of gathering past performance data - surveys and CPARS reports. There’s nothing like talking with the knowledgable people who actually experienced performance and have meaningful dialogue on the experience.

I don't know what your solicitation called for, but I work for an accounting and consulting firm. When we submit a proposal to a commercial client, we usually propose a team by name to be working on the project. We also provide the resumes of team members. It is the qualifications of the team that is evaluated, instead of the entire firm.

I'm putting together an emergent contract for financial advisory services. For the past performance factor, I'm calling their references. The challenge is that most of the offerors are firms in NYC who are constantly poaching each other's top talent. So Offeror A might provide a reference, but when I call the reference, what I get is: "John Smith is an outstanding advisor who produced all these great results. He was with Offeror A at the time of the referenced work, but now he's with Offeror B. I have no opinion on Offeror A as a firm. You should go with Offeror B because that's where John Smith is." This is a first for me. I've never considered evaluating the past performance of individuals instead of companies before. I want to use the information because it's useful to the Government's award decision, but I'm torn on how -- do I give credit to Offeror A, Offeror B, or some combination of both?

I think it’s defensible because because fair opportunity is not the competitive standard for orders placed against GSA schedules but it is the standard for orders placed against multiple award IDIQs. It’s not a “policy rationale” but a statutory rationale. The RFO didn’t change the statute. The RFO drafters are just hoping this sticks.

Agree with your inconsistency point. I’ve always believed the BPA concept was available under IDIQ contracts and proper but not necessarily labeling it as a BPA.

Inconsistency: The tool (BPA) existed, the need (streamlined repetitive ordering against an existing vehicle) existed across all IDIQ types, but the authority was only codified for a subset of IDIQs - MAS. Indefensible: There is no longer any policy rationale (that I know of) for treating a subset of IDIQs differently.

Which inconsistency is that?

I think of FAR 16.5 BPAs as correcting an indefensible inconsistency in the FAR, rather than a new solution being created to address an existing problem. That said, the timing is convenient. The current policy environment disincentivizes — and in some cases prohibits — the creation of new IDIQs. As a result, COs are expected to satisfy requirements through existing contract vehicles. Where those vehicles are IDIQs (like GWACs), COs can now establish BPAs directly against them under FAR 16.5. This gives COs a mechanism to achieve the same contracting objectives that were previously met by standalone IDIQs, while remaining compliant with policies that favor the use of existing sources. This is a fairly niche application. I wouldn't expect to find many instances of a requirement that is 1) indefinite enough that is should be an IDIQ/BPA, and 2) there is no suitable MAS, and 3) there is a suitable IDIQ. Non-DoD use cases could be medical research or construction/A&E.

Well I have not been involved in efforts related to contract management for quite some time but my recollection is that your #4 is the answer to all. Is it not proper contract administration process to modify the contract to remove the unexercised option which in turn adjusts the Total Contract Value in FPDS? Done in real time so to speak or at contract closeout.

Yeah, that's completely wrong and I see it all the time, nearly in everything submitted to me. I constantly find myself explaining that an option is a unilateral right and directing them to the definition under part 2. Constantly specialists tell me they plan to "exercise" the optional CLINs by getting the contractor's signature. Disturbing indeed. I typically include a clause similar to 52.217-7, only for services. The prescription for -7 applies to the contemplation of increased "supplies," not services. While your observations about optional CLINs and defining CLINs in some table as either mandatory or optional is spot-on, consider the case of labor hour contacts (also egregiously overused) in which funds are constantly and inevitably left unused and not invoiced after the PoP expires. This also creates a disparity between the total obligated amount and the contract value in the system after we deobligate those funds.

I'm curious how others think about this from both a contracting and conceptual perspective. Suppose a contract contains numerous optional CLINs, each with negotiated prices. Some of those option CLINs are never exercised, their periods of performance expire, and the Government can no longer legally exercise them. No funds were ever obligated against those CLINs. Years later, the contract administration system still reports a "Total Contract Value" that includes those expired, unexercised CLINs because they remain in the contract record. The obligated amount is significantly lower. This raises a few questions: Is the system's reported "Total Contract Value" best understood as a historical administrative value rather than the contract's current value? Once an option period has expired without being exercised, do those CLINs have any remaining contractual value, or do they merely have historical significance? If someone asked today, "What is this contract worth?" would you include the negotiated values of CLINs that can never again be exercised, funded, or performed? Is there any reason, either legally or administratively, to retain those expired optional CLINs with their negotiated values indefinitely, or would you consider a bilateral administrative modification to remove them once the underlying rights have lapsed? As a thought experiment, consider an expired stock option. Before expiration, it has economic value because the holder retains a legal right to exercise it. After expiration, the option document still exists and has historical significance, but the right itself has vanished. The option's current economic value is effectively zero. Is an expired, unexercised option CLIN analogous to that? Or should the negotiated price remain part of the contract's "value" simply because it remains part of the historical contract record? I'd be interested in hearing how others distinguish between historical contract value, potential contract value, and current executable value, if they distinguish them at all.

Assuming this ends up as a valid technique, I think a big question will be "why use it at all"? I can see it making sense for multiple-agency contracts, similar to how the GSA Multiple Award Schedule works. But for single-agency IDIQs? It's hard to see it. Maybe some practitioner will uncover a really innovative use case someday....