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Hello, Blog Readers. October is finally here, and with it comes the beautiful colors, cooler temperatures, pumpkin patches, and other fall favorites. Of course, the weather can be a little unpredictable in October, with warm afternoons one day and a definite chill in the air the next, so be sure to enjoy those pleasant fall days when you can. This week in federal government contracting included a warning about government functions at DoW, and how federal contracting proposals could alter control of intellectual property. GSA overcomes protests to award contract for next gen HSPD-12 services IG Warns of Contractors Performing Inherently Governmental Functions at DoD/DoW SBA Awards $3.75 Million to Train Veteran-Owned Small Businesses to Compete for Federal Contracts SBA Adds Five New Surety Bond Partners for Small Businesses Competing for Contracts New federal contracting proposals could change who controls intellectual property ‘Hallelujah’: Stakeholders react with praise and concern to GSA AI acquisitions clause Lawmakers eye more federal action on AI standards, security, disclosures The post SmallGovCon Week in Review: October 5-9, 2026 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

I was taught to re-solicit until you receive SF 330s from at least three firms to comply with the AE statute. However, this discussion could be moot as the Government moves away from DBB to other construction acquisition methods.

In the world of bid protests, GAO gets some of the spotlight because there are so many protests filed there. COFC seems to get plenty of attention because of the complexity and scope of its decisions. The Office of Dispute Resolution for Acquisition (ODRA)? Well, not so much. ODRA is a bit like the forgotten child of the bid protest family—rarely the first name that comes to mind, but very important when it comes to protesting a Federal Aviation Administration (FAA) acquisition. While they are fewer in number, it’s important for any contractor working with the FAA to know this protest option, either to pursue it as a protester or if its award gets protested. This blog post puts ODRA into the spotlight for a change and showcases the process for protesting an FAA acquisition. The ODRA’s own website and guide has some good tips for ODRA bid protests. Below, we highlight some of the key items to consider. Filing the Protest Before you can even think about filing a protest, you need to know where to file it. Under the FAA’s Acquisition Management System (AMS), ODRA is the FAA’s one-stop shop for resolving contract disputes and bid protests, including size-related protests connected to a bid protest. 49 U.S.C. § 40110(d)(5). Interestingly, the FAA is exempt from the protest rules governing most procuring agencies, including the Small Business Act and Competition in Contracting Act. 49 U.S.C. § 40110(d)(2)(D). Rather, it is the FAA’s AMS that “establishes the policies, guiding principles, and internal procedures for the FAA’s acquisition system.” 14 C.F.R. § 17.3(c). When a protest is filed at ODRA, procurement activities or contractor performance will generally continue during the protest “unless there is a compelling reason to suspend all or part of the procurement activities or contractor performance.” 14 C.F.R. § 17.13(g). If a protester would like to request such a suspension, the protester must set forth such compelling reason(s) in the initial protest and supply all facts and documents in support of that position. 14 C.F.R. § 17.15(d). The protester must also demonstrate that they have alleged a substantial case, that the lack of a suspension would cause irreparable injury, that the relative hardships on the parties favor a suspension, and that a suspension would be in the public interest. Id. Whether a suspension is requested or not, there are certain elements that the protest must contain in any case. Specifically, the protest is required to be in writing and must include: The protester’s name, address, telephone number, and fax number and those of the protester’s counsel; The SIR number or, if available, the contract number and the name of the CO; The basis for the protester’s status as an interested party; The facts supporting the timeliness of the protest; Whether the protester requests a protective order, the material to be protected, and a redacted copy of that material A detailed statement of the legal and factual grounds of the protest, and a copy of each relevant documents; The remedy or remedies sought by the protester; and The signature of the legal representative, or another person duly authorized to represent the protester. 14 C.F.R. § 17.27(a). As far as timing, protests of terms are due prior to the proposal deadline: “Protests based upon alleged SIR or solicitation improprieties that 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 the receipt of initial proposals.” 14 C.F.R. § 17.15. Otherwise, protests are due “(i) [n]ot later than seven (7) business days after the date the protester knew or should have known of the grounds for the protest; or (ii) If the protester has requested a post-award debriefing from the FAA Product Team, not later than five (5) business days after the date on which the Product Team holds that debriefing.” But what happens after the protest is actually filed? After Filing the Protest Within 5 days of the protest being filed, or as soon as practicable, ODRA will convene an initial status conference and will encourage the parties to use alternative dispute resolution (ADR). 14 C.F.R. § 17.17(b). Thereafter, the FAA and the protester have 5 business days to decide whether they will attempt to use ADR. If the parties decide not to move forward with ADR (or after the ADR is done), the protest will proceed under the ODRA adjudicative process. 14 C.F.R. § 17.13(d). The ODRA judge will then typically decide the matter based on the administrative record and arguments of parties. You might be surprised at everything that goes into the adjudicative proceedings and (spoiler alert) it is certainly too much to include in just one blog. And anyways, I’m sure you are wondering what happens when the adjudicative process is all said and done. Potential Protest Remedies At this point, the hard part is over. You have filed the protest, and the administrative record has finally closed. What happens next? ODRA has its own broad discretion to recommend and impose remedies consistent with the AMS and other applicable law. 14 C.F.R. § 17.23(a). What might those remedies be, you ask? ODRA could recommend and impose any combination of the following: Amend the SIR; Refrain from exercising options under the contract; Issue a new SIR; Require a recompetition or reevaluation; Terminate an existing contract for the FAA’s convenience; Direct an award to the protester; Award bid and proposal costs; and/or Any other remedy consistent with the AMS that is appropriate given the circumstances. Id. This will largely depend on the circumstances surrounding the procurement or proposed procurement. For example, ODRA might look at factors such as the nature of the deficiency, degree of prejudice to other parties, degree of prejudice to the integrity of the acquisition system, extent of performance completed, the urgency of the procurement, and the impact on the Agency’s mission. 14 C.F.R. § 17.23(b). Takeaway As you can see, there are unique rules and regulations that apply to ODRA protests. After all, filing a protest at ODRA can be tricky. There are short deadlines and little-known technical rules that apply and can ultimately lead to dismissal. You should strongly consider hiring an attorney to assist you in avoiding complex technical pitfalls and present a stronger case at ODRA. If you find yourself contemplating a filing or defending a protest at ODRA, please feel free to reach out to us. Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919.Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post GovCon FAQs: How Do I Protest an FAA Acquisition at ODRA? first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

The problems with government contracting--lengthy processes, mediocre results, and excessive litigation--cannot and will not be solved through rules reform. There is abundant documented history and analysis to support that assertion. All reform has done is create churn and needless complexity. Government contracting is large scale, rules-bound, and procedurally complicated. It requires a highly-educated and well-trained workforce to achieve full operational effectiveness. That is essential to a force that obligates almost a trillion dollars a year in support of government civilian and military operations. But our workforce development is based on a generally weak master-apprentice OJT model with poor quality formal education. Governmental incompetence is increasingly apparent in all the Western democracies. And it's not due to inherent bureaucratic laziness. The workforce personnel that I meet on a weekly basis really want to do a good job. The only long-term and effective solution to government contracting problems is through intensive workforce development. Currently, we take people with bachelor's degrees and MBAs and throw them into the government contracting vortex without preparing them properly. Our fighting forces in the military get far better training at the school and unit level, thank God, than the people who support them. That's due to poor leadership at the contracting agency, contracting activity, and contracting office unit level. Infantry company commanders, platoon leaders and NCOs know that they must train their people to fight. That's nurturing, motivational leadership. What do heads of contracting activities, chiefs of contracting offices, and contracting officers do to nurture and develop their people? We need Airborne School, Pathfinder School, Ranger School, Q Course, and SEAL quality (not style) training for would-be heads of contracting activities, chiefs of contracting offices, contracting officers, and contract specialists. In other words, we need deep and top-quality contracting workforce education and training. But we don't have it. And I doubt we'll get it, because we are in the hands of a political and bureaucratic cult of incompetence.

Good, maybe best practices but not innovations

Have you ever looked at the periodic table of acquisition innovations and wondered where the innovations were? https://acquisitiongateway.gov/periodic-table

I know this is off topic but I’ll say it anyway. The innovation term is way overused in acquisitions. I tried to think of true innovation examples in contracting and all I came up with is Purchase Card, Share in Savings contracts for IT systems, oral presentations including pop quizzes that replaced written proposals, and award of BPAs where companies replied with email prices to email RFQs years before before anything else was done electronically.

Not definitively. We just know how the COE interprets the statute.

Yes. That's why I posted it. But does it settle the issue?

Yep...from a previous post by me. "For reference I did them for the USACE in the 1990's."

Seems like the COE believes they have complied with the Brooks Act if A-E procedures were used to award the single-award task order contract:

With all the 8(a) social disadvantage updates of late, the other 8(a) Business Development Program eligibility requirements haven’t been in the spotlight much. But when SBA released its last social disadvantage FAQ (Part II), it also released a new potential for success FAQ with some helpful guidance. General 8(a) Eligibility To be eligible for SBA’s 8(a) Business Development Program, there are several eligibility criteria an applicant must meet—and a participant must maintain compliance with. SBA’s general eligibility criteria are found in Part 124, Subpart A, of SBA’s 8(a) regulations, specifically at 13 C.F.R. § 124.101, which states: Generally, a concern meets the basic requirements for admission to the 8(a) BD program if it is a small business which is unconditionally owned and controlled by one or more socially and economically disadvantaged individuals who are of good character and citizens of and residing in the United States, and which demonstrates potential for success. So, as a quick reminder, the eligibility criteria can generally be broken down as follows: Company must qualify as a small business; Company must have unconditional ownership by a disadvantaged individual (DI); Company must be controlled by a disadvantaged individual; DI must be socially disadvantaged; DI must be economically disadvantaged; DI must have good character; DI must be United States Citizen, residing in the United States; and Company must demonstrate potential for success. Current Potential for Success Rule As relevant to the subject FAQ, SBA’s potential for success rule, found at 13 C.F.R. § 124.107, generally states the following: SBA must determine that with contract, financial, technical, and management support from the 8(a) BD program, from contractors or from others assisting with business operations, the applicant concern is able to perform 8(a) contracts and possess reasonable prospects for success in competing in the private sector. To do so, the applicant concern must show that it has operated and received contracts (either in the private sector, at the state or local government level, or with the Federal Government) in its primary industry classification for at least two full years immediately prior to the date of its 8(a) BD application, unless a waiver for this requirement is granted pursuant to paragraph (b) of this section. For a deeper dive into the existing SBA regulation for potential for success, please take a look at this prior blog on the subject. Potential for Success FAQ SBA’s most recent FAQ on the potential for success rule was issued on September 10, 2026. It covers exactly what an applicant must provide to SBA to demonstrate its potential for success, as well as what to do if the applicant doesn’t meet the standard requirements. Specifically, the FAQ states the following: What must I provide to demonstrate my business meets the Potential for Success requirement for entry into the 8(a) Business Development Program? You must provide the following: Business income tax returns for each of the last two tax years that show operating revenues; AND Proof of contract performance in the applicant’s primary NAICS code for the two full years immediately prior to application date, without gaps in performance. It goes on to list five conditions that must be met for SBA to waive this “two years in business requirement” if it cannot be met. It states: The individual or individuals upon whom eligibility is based have substantial business management experience; The applicant has demonstrated technical experience to carry out its business plan with a substantial likelihood for success if admitted to the 8(a) BD program; The applicant has adequate capital to sustain operations and carry out business plan as a Participant; The applicant has a record of successful performance on contracts from governmental or nongovernmental sources in its primary industry category; and The applicant has or can demonstrate ability to timely obtain the personnel, facilities, equipment, and any other requirements needed to perform contracts as a Participant. Finally, the FAQ explains SBA will deny any 8(a) application that fails to meet both the “two years in business” criteria and the five waiver criteria. It adds that an applicant can simply reapply for admission in 90 days if it later becomes compliant with either or both sets of criteria to demonstrate potential for success. But it also stresses SBA’s recommendation to “wait to apply for entry into the 8(a) Business Development Program until your business meets these minimum requirements to maximize your potential for success in the program.” Interestingly, this “new” FAQ largely parrots SBA’s existing potential for success regulations. In fact, the five conditions that must be met for a waiver of the “two years in business” rule appear to be identical to SBA’s waiver criteria listed at 13 C.F.R. § 124.107(b)(1). So, the main things this FAQ appears to tell us—that are not also found in SBA’s regulations—are simply: (1) what SBA’s rules mean by requiring proof of contract performance and operating revenues under the primary NAICS code “for at least two full years” prior to the application date; and (2) SBA’s recommendations on when to reapply if denied on the basis of potential for success. Indeed, the FAQ simply clarifies that the applicant’s documentation showing compliance with the “two years in business” rule must also show that contract performance must have been continuous or “without gaps in performance” for those two “full” years to meet SBA’s standards. And the FAQ simply confirms that SBA recommends you wait until you can show compliance with the minimum requirements before reapplying—despite the 90-day-reapplication window. Questions about this post? Email us. Need legal assistance? call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post SBA Issued a New 8(a) Potential for Success FAQ first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

I will modify my comment as follows....."The most concerning thing to me is that the agency's position hinders the ability of a 1102 to be innovative to execise initiative within the context of the RFO to get the mission accomplished."

Agree. This is my experience as a practitioner. An otherwise FFP contract with a relatively small 'reimbursable cost' element is considered FFP for all purposes (approvals, reporting). For my agency, this almost always means travel reimbursement as that is the commercial practice for some services we purchase at high volume. These reimbursable needs to be a separate line item (yes, it's a line item without a deliverable, but the greater sin is mixing = FFP and <> FFP on the same line item). I think we typically add 212-4 ALT 1 clause explicitly limiting it to that line item only. We do add a lot of very detailed instructions and extra review, since it can cause problems post-award. Note that GSA has fairly elaborate policies and procedures about closely related concepts - ODCs, Travel, and 'Order Level Materials' - on its various sources.

The best reference I have found concerning task order contracts for A-E services is the Corps of Engineers EP 715-1-7. https://publibrary.sec.usace.army.mil/api/download?id=54d37b16-bc67-4684-8fa3-931365061e0e&filename=EP%20715-1-7_Architect-Engineer%20Contracting%20in%20the%20USACE_2026%2001%2015.pdf&token=&preview=true

Oh, give me a break. Innovation is overrated. The hydrogen bomb was an innovation, and hasn't it made us happy. DOGE was an innovation. Happy about that?

I'm saying let's assume we do what the attorney says and attempt to make multiple awards--what happens if only one firm shows interest? In other words, it's not possible to make multiple awards even if we wanted to.

A PS - It is clear that the OP's agency has made a decision as to use. The most concerning thing to me is that it hinders the ability of a 1102 to be innovative within the context of the RFO to get the mission accomplished. I would suggest that from industry to the Federal practitioner some like the use of a A-E single award IDIQ and some do not but why block its use if it applies this (below) standard (emphasis added). Ref. RFO 1.102! "exercise personal initiative and sound business judgment in providing the best value product or service to meet the customer’s needs. In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority."

My apologies if you felt I was stepping on your toes. Agreed, just trusting the representation via his statements of what it says. Agreed but my experience suggests that if A-E firms felt doing a single award A-E IDIQ was in violation they would have been screaming a long time ago. For reference I did them for the USACE in the 1990's. My position as well which it seems the lawyer has not done. My conclusion on what I have seen so far. If the letter is ever provided I reserve the right to change my mind. Yes "project". Language carried to the FAR and RFO as well. An issue that I did hand ringing on when I was employeed as an 1102 I mght add. The RFO (and previously the FAR) does not define the term. So what is a project? I would suggest we could drag out a long discussion regarding same. Absent case law to conclude how it applies to a single award A-E IDIQ it would seem to me that it just depends.

@C Culham Yes, and he was especially interested in mine. And aren't 1102s supposed to think things through when they answer. After thinking things through I cannot conclude that the legal "decision" he complained about is wrong without seeing it, which I have not, and neither have you. I can also say that your demand for case law misses the mark. If there is no case law--and I have not found any--it may mean only that the issue has not been litigated. Nevertheless, since the issue has been raised a CO must try to answer. The usual way to do that is through statutory and regulatory language and history. Let's start with a close reading of statutory language, since it prevails over regulatory language and prior practice based on regulatory language. Since you have read 40 U.S.C. 1103, which is quite short, do you see anything therein that may be pertinent to the question of its application to fair opportunities under MATOCs?

I have based my conclusions on the posts of the OP and my own experience in contracting for A-E services, the experience where I spent several years in what I will call the speciality area of A-E. The OP has stated in the text of the posts "decision" and "there was no case law presented that supported their decision." So not rushing. Yes. It looks to me like an attempt to justify a upper level managment decision as opposed to a legal opinion that is well thought out. Vern's question to me being case in point as it seems from information provided that the legal opinion did not include supporting case law and most likely consideration of the Brooks Act. If an agency wants to rightfully demand something be done then they should just say it and not cloak it in decisions or opinions. I applaud the OP for raising the question for discussion. Isn't that what 1102's are suppose to do?

Thank you, Jon.

Has anyone participating in this discussion read the Brooks Act, 40 U.S.C. 1103, Selection procedure: Notice anything that strikes you as relevant to this discussion?

Staff attorneys do not write decisions. They write opinions. We have not seen the opinion in question. Former Fed has not provided it to us. Carl, Have you seen the opinion? If not, on what do you base your conclusion about what the attorney considered or didn't consider? And have you read 10 U.S.C. 3406? Don't rush to judgment. I almost did so, then started thinking and stopped short.

Circular question? If a solicitation states that there will only be one award (single award IDIQ) is that not the same? Is not the rule that if you state only one award would you not have to issue an amendment to state multiple awards almost like soliciting a new need? My view. I issue a solicitation to award one A-E IDIQ contract. I follow RFO 36 (essentially Brooks Act). I evaluate the SF-330's create the list of 3 highly qualified. I go to number 1 and I successfully negotiate a priced IDIQ. Task orders issued will be based on the price(s) (negotiated further, created from priced line items or some combination as so stated in the contract) in the awarded IDIQ. I have meet the intent of RFO 36 as the contractor is the most technically qualified and resulting work by the contractor is based on price. For the Task Orders I am not selecting the contractor based on technical ability I am simply pricing the work they are asked to perform in the Task Order. My view is based on what I believe to be the general principle that a Task Order issued against a contract is dependent on the parent contract in which it was issued. I say this even though some will point me in the direction of RFO 2.1 and the definition of a contract. PS - As to an AI response. Since there is an absence of case law on which AI can grasp to assist in a response AI is using discussions like this and crazy conclusions like that of the attorney in my view. Until I am pointed in the direction of case law that states that a single award A-E IDIQ violates the intent of RFO 36 and its supporting statute the Brooks Act I am not a believer in the conclusion reached in the "decision".