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Task order pricing for construction MATOC’s may be based upon competition among pool members, rather than fixed contract level pricing. It is highly impractical to use fixed contract unit prices for ID/IQ task orders due to highly variable market conditions and individual scopes of work/locations.

I'm looking for examples of how different agencies (I'm at GSA PBS) are doing their construction IDIQ contracting, most specifically how they are complying with CICA on the base/master contract pricing, and subsequently how they are doing the task order contracts. I'm very familiar with multiple ways this has been done historically (and have been discussed on Wifcon), but all options I've reviewed have various..., well, I'll call them "challenges." Any samples you can link me to or email me (if you message me I'll send you my GSA email) would be greatly appreciated. Thanks! Mike

I am an old mossback who has been involved with this stuff since the 1970s. This reminds me of the ASPR days when we had to write D&Fs for a lot if things. Back then you had to use what was known as formal advertising (sealed bidding today). For DoD, there were 17 exceptions to the use of formal advertising. To use one of those exceptions you had to write a D&F citing the exception and why it applied. In addition, if you wanted to use a cost reimbursement contract, you had to write another D&F. If you wanted t write a facilities contract (which no longer exists) you had to write another D&F. Some of these D&F's required secretarial approval. I don't remember which required such approval, but do remember, not having problems getting them approved fairly quickly. Thus, while a pain in the neck, to me, the key is going to be who gets delegated authority to grant these approvals. It may be a deputy assistant assistant deputy secretary who get the joy of doing so and does nothing but grant approvals. My question is who s behind this and why? This nonsense was done away with by statute 40 years ago.

Happy Friday! Mother’s Day is this Sunday, and it’s a good reminder to slow down and thank the moms, grandmas, stepmoms, and mother figures who somehow keep everything moving. Whether you’re planning a get together, making a phone call, sending flowers, or just spending extra time together, we hope they will feel extra special. Happy Mother’s Day! This week in federal government contracting included a focus on fixed-price contracts, an update on 2024 spending, and new regulatory changes. Defense Federal Acquisition Regulation Supplement: Mitigating Risks Related to Foreign Ownership, Control, or Influence (DFARS Case 2021-D011) DoD strikes deals with major tech firms to deploy AI on classified networks The preference for fixed-price contracts receives accountability boost IBM security executive emerges as possible contender to lead CISA GAO: Artificial Intelligence: Uses and Risks for Small Business Contracting and Innovation Research Trump Order Stresses Use of Fixed-Price, Performance Based Contracts GAO: A Snapshot of Government-Wide Contracting for FY 2025 (interactive dashboard) FAR: Defense Federal Acquisition Regulation Supplement: Disclosure of Greenhouse Gas Emissions SBA Announces New $50 Million Grant Opportunity to Support Made in America Manufacturing, Workforce Training Trump admin floats policy language limiting contractor say on agency uses of technology SBA Administrator Loeffler Joins President Trump for National Small Business Week 2026 The post SmallGovCon Week in Review: May 4-8, 2026 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Agree with FrankJon generally here from my view down in the trenches. Anecdote: I just had a talk this week with an office the has a LH technical support desk contract that will be soon converted to FP (this conversion pre-dates the EO). Their two initial concerns were that they couldn't estimate accurately enough the workload of the help desk to convert to FP, and that FP just means more expensive in exchange for nothing. I think they would argue that the performance risk is the government's and can't be transferred- customers don't know and don't care about the employer of the help desk rep. They see their cost risk as lower under LH, since their expressed cost risk was having to spend more money on their help desk. FP means either price is too high - they spend more for the same thing - or the price is too low, contractor will cut corners to save money and that will reflect poorly on their office, not the contractor and that will also lead to higher prices later on. So either way they will lose. For what it's worth, I think they are wrong on all accounts, but that's what I heard. Also - "Government in Fiscal Year 2024 identified approximately $120 billion obligated on cost-reimbursement consulting contracts alone. " I looked this up with FPDS, and I don't see how this number is possible. Non-FP contracts for all services - not just cost and not just consulting - is $189 billion. I see no way to slice the data to get to their result from public data using standard definitions.

The White House recently released Executive Order 14402 titled Promoting Efficiency, Accountability, and Performance in Federal Contracting (EO 14402). EO 14402 was released on April 30, 2026. This EO requires agencies to use fixed-price contracts over cost-reimbursement wherever possible. Because of its potential impact on federal contractors, let’s walk through the highlights in this post. EO 14402 seeks to solve the problem that “Federal procurement has tolerated unpredictable costs, bloated overhead, and weak performance incentives.” In order to solve that, the federal “Government must adopt the best business practices to protect taxpayer dollars, hold contractors accountable, and achieve demonstrable returns on investment.” In particular, the EO contrasts fixed-price contracts with “cost-reimbursement” contracts. Fixed-price contracts “tie profit to the contractors’ performance”; reward “work that exceeds expectations and penalizing subpar performance”; and “encourage[] contractors to control costs.” The concern with cost-reimbursement contracts is that they “frequently allow for poorly defined product or service deliverables and increase the Government’s exposure to overspending by providing little incentive to control costs.” The EO notes that about $120 billion in FY 2024 went to cost-reimbursement consulting contracts. So, the goal of the EO is to make federal contracting more efficient and reduce cost-reimbursement contracts. Certainly a laudable goal and one that many administrations have worked on. But how will this EO change the calculus? EO 14402 seeks to make fixed-price contracts “the default and preferred method of procurement in order to advance cost predictability and budget discipline.” The EO requires the following: Agencies must, to the maximum extent allowed, “utilize fixed-price contracts, which for purposes of this order shall mean fixed-price contracts as defined in Part 16 of the [FAR], or contracts that tie profit to performance-based metrics when appropriate.” “Use of any non-fixed-price contract, including a cost-reimbursement contract, a time-and-material contract, a labor-hour contract, or any other non-fixed-price type of contract . . . must be justified in writing by the contracting officer to the agency head.” If a non-fixed-price contract or portion of contract exceeds certain dollar amounts, “the agency head must approve the contract in writing.” The minimums are: DoW $100 million, NASA $35M, DHS $25M, All other agencies $10M. The dollar thresholds will require approval by agency head at some pretty low amounts. $10 million for a civilian agency is not that large of a contract. Does the approval apply to each order, or just the baseline contract? I assume it applies to each order since that has the dollar amount attached. The EO does allow the the approval to be delegated to “appropriate non‑career employees.” Plus, there are some exceptions for “emergency, major disaster, or contingency operation” contracts and for “research and development or pre‑production development for major systems acquisition.” 90-day Timeline. Agency heads have 90 days to “seek to modify, restructure, or renegotiate its 10 largest non-fixed-price contracts by dollar value (including non-fixed-price contracts entered into on behalf of another agency) to facilitate use of fixed prices and performance-based incentives.” Agency heads must submit the number and value of non-fixed-price contracts to OMB within 90 days of the EO and then twice a year. In addition, the OMB shall issue guidance to all agencies within 45 days to implement these rules. FAR clauses have promoted fixed-price contracts already. For instance, RFO 16.301-2 states, that a “contracting officer shall use cost-reimbursement contracts only when” “[c]ircumstances do not allow the agency to define its requirements sufficiently to allow for a fixed-price type contract” and “2) U”[u]ncertainties involved in contract performance do not permit costs to be estimated with sufficient accuracy to use any type of fixed-price contract.” In addition, the “contracting officer shall document the rationale for selecting the contract type in the written acquisition plan and ensure that the plan is approved and signed at least one level above the contracting officer (see 7.103(j) and 7.105). However, the EO puts the use of fixed-price contract at the forefront and requires reporting on efforts from all federal agencies. It also makes approving larger contracts the subject matter of the agency head, rather than individual contracting officers. The net effect should be an increase in fixed-price contracts and a reduction in cost-reimbursement contracts. However, it’s not clear if agencies will simply continue to approve cost-reimbursement contracts. 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 EO Maximizes Fixed-Price Over Cost-Reimbursement Contracts first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

For better or for worse, these federal procurement “times they are a-changin’.” One obvious source of recent change is the shiny new FAR 2.0, a.k.a. the Revolutionary FAR Overhaul (RFO). With the government’s widespread implementation of the RFO and its many procurement rule and procedure updates, we at SmallGovCon have tried to cover as much as possible. But we’re talking about an essential rewrite of the decades-longstanding procurement playbook here. So unsurprisingly, there’s still a lot to go. One recent change well-worth some deeper discussion is the RFO’s updated “Once 8(a), Always 8(a)” Rule–which I’ve aptly deemed the “Once 8(a), Always 8(a)–or HUBZone, SDVOSB, or WOSB” Rule. As the SBA’s “Once 8(a), Always 8(a)” Rule remains unchanged, this RFO update has the potential for significant impacts on small business federal contracting, as well as some implementation conflicts–or confusion at the least. As an initial matter, if you are looking for some background on the FAR 2.0/RFO–or the Executive Order underlying its creation and implementation–look no further than our many prior blogs on the topic. Indeed, we’ve covered some big picture initial thoughts on FAR 2.0/the RFO, some of the more specific changes to part 6 and to part 8, and the highly significant survival of the Small Business Rule of Two (and a few other small business-centered changes) found in part 19. As you can read more about here, the updated FAR Part 19 makes significant changes to our general small business and set-aside contracting priorities and procedures, as well as to the SBA’s 8(a) Business Development Program, more specifically. One of the new FAR Part 19’s most notable 8(a) Program changes is to the prior “Once 8(a), Always 8(a)” Rule–a rule that used to strictly limit how the federal government could solicit follow-on contracts for requirements previously accepted into the 8(a) Program. With recent changes implemented by the RFO effectively replacing the “old FAR” rule but not addressing the corresponding SBA rule, where are we now? Though we can’t offer an answer to this question with any real certainty just yet, through this article, we can shine some light on the “Once 8(a), Always 8(a)” Rule’s current implementation by SBA regulations, prior implementation by the “old FAR,” and relevant RFO update. And we can hopefully provide enough helpful context to allow at least some intelligent speculation on the future role of the “Once 8(a), Always 8(a)” Rule in the world of federal procurement. The Prior FAR’s “Once 8(a), Always 8(a)” Rule. In regard to the rules and procedures for government release of previously-accepted 8(a) work for non-8(a) competition/award (a.k.a., the “Once 8(a), Always 8(a)” Rule), section 9.815(a)-(b) of the “old FAR” said the following: (a) Once a requirement has been accepted by SBA into the 8(a) program, any follow-on requirements (see definition at 13 CFR 124.3) shall remain in the 8(a) program unless— (1) SBA agrees to release the requirement from the 8(a) program for a follow-on, non-8(a) procurement in accordance with 13 CFR 124.504(d) (see paragraph (b) of this section); or (2) There is a mandatory source (see 8.002 or 8.003; also see paragraph (f) of this section). (b) To obtain release of a requirement for a follow-on, non-8(a) procurement, (other than a mandatory source listed at 8.002 or 8.003), the contracting officer shall make a written request to, and receive concurrence from, the SBA Associate Administrator for Business Development. Section (c)(1) of the old FAR went on to list the three following factors such written request should indicate: (i) whether the agency has met its small disadvantaged business goal; (ii) whether the agency’s “HUBZone, SDVOSB, WOSB, or small business goal(s)” have been met; (iii) whether such “requirement is critical to the business development of the 8(a) contractor that is currently performing the requirement.” And section (c)(2) said: Generally, a requirement that was previously accepted into the 8(a) program will only be released for procurements outside the 8(a) program when the contracting activity agency agrees to set aside the requirement under the small business, HUBZone, SDVOSB, or WOSB programs. Section (c)(3) of the old FAR also contained an exception to the default application of the rule for “task or delivery orders offered to and accepted into the 8(a) program, where the basic contract was not accepted into the 8(a) program.” And section (d) said: (1) When a contracting officer decides that a requirement previously procured under the 8(a) program is a new requirement and not a follow-on requirement to an 8(a) contract(s), the contracting officer shall coordinate with and submit a written notice to the SBA District Office servicing the 8(a) incumbent firm and to the SBA procurement center representative (or, if a procurement center representative is not assigned, see 19.402(a)) indicating that the agency intends to procure the requirement outside the 8(a) program (see 19.810(a)(4)). (2) The written notice shall include a copy of the acquisition plan, if available; the performance work statement (PWS), statement of work (SOW), or statement of objectives (SOO) for the new contract requirement; and the values of the existing 8(a) contract(s) and the new contract requirement. Finally, section (e)(1) of the old FAR explained the following: When a contracting officer decides to procure a follow-on requirement to an 8(a) contract using an existing, limited competition contracting vehicle that is not available to all 8(a) participants, and the current or previous 8(a) contract was available to all 8(a) participants, the contracting officer shall coordinate with and submit a written notice to the SBA District Office servicing the 8(a) incumbent firm and to the SBA procurement center representative (or, if a procurement center representative is not assigned, see 19.402(a)) indicating the intent to do so. And in what has the potential to create some conflict–or at least some confusion–moving forward with the subject RFO update, SBA’s own regulations also implement this rule in the manner discussed below. SBA’s “Once 8(a), Always 8(a)” Rule. As relevant here, SBA’s rules state the following at 13 C.F.R. § 124.504(d)(1) regarding “release for non-8(a) or limited 8(a) competition”: [W]here a procurement is awarded as an 8(a) contract, its follow-on requirement must remain in the 8(a) BD program unless SBA agrees to release it for non-8(a) competition. Where a procurement will contain work currently performed under one or more 8(a) contracts, and the procuring agency determines that the procurement should not be considered a follow-on requirement to the 8(a) contract(s), the procuring agency must coordinate with the SBA District Office servicing the 8(a) incumbent firm and the SBA Procurement Center Representative assigned to the contracting activity initiating a non-8(a) procurement action that it intends to procure such specified work outside the 8(a) BD program through a requirement that it considers to be new . . . Additionally, a procuring agency must coordinate with SBA where it seeks to reprocure a follow-on requirement through a pre-existing limited contracting vehicle which is not available to all 8(a) BD Program Participants and the previous/current 8(a) award was not so limited. If a procuring agency would like to fulfill a follow-on requirement outside of the 8(a) BD program, it must make a written request to and receive the concurrence of the AA/BD to do so. And as this SBA rule is not addressed or presumably directly impacted by the RFO, we will cover it in more depth than the corresponding prior FAR rule. Indeed, this same regulation also lists the factors SBA must consider when deciding whether to release a specific requirement from the 8(a) Program for non-8(a) competition, which includes: (i) whether the agency’s small disadvantaged business goals have been met; (ii) the agency’s progress in meeting its “HUBZone, SDVO, WOSB, or small business goal[s], as appropriate”; and (iii) whether such “requirement is critical to the business development of the 8(a) Participant that is currently performing it.” And it provides some limited exceptions to SBA’s default “Once 8(a), Always 8(a)” Rule at sections 124.504(d)(2) and (d)(4). Section (d)(2) outlines one exception for non-8(a) competitions/awards “to give a concern previously awarded the contract that is leaving or has left the 8(a) BD program the opportunity to compete for the requirement outside of the 8(a) BD program[,]” but only where: (A) the concern’s “program term will expire prior to contract completion, or . . . program term expired within one year of the date of the offering letter”; (B) the concern submits its request to SBA in writing prior to SBA’s acceptance of the follow-on requirement into the 8(a) Program; and (C) the concern qualifies as a small business for the follow-on requirement. Even then, the rule requires SBA to “balance the importance of the requirement to the concern’s business development needs against the business development needs of other Participants that are qualified to perform the requirement[,]” to “include consideration of whether rejection of the requirement would seriously reduce the pool of similar types of contracts available for award as 8(a) contracts[,]” and require SBA to “also seek the views of the procuring agency.” Section 124.504(d)(4) of the rule provides two types of exceptions to SBA’s “Once 8(a), Always 8(a)” Rule’s application–effectively removing the agency’s need to even seek a specific requirement’s “release” from the 8(a) Program: (i) where the prior requirement was just a non-8(a)-set-aside Multiple Award Contract under which certain “orders were offered to and accepted for” 8(a) Program competition/award; or (ii) where the “agency will use a mandatory source (see FAR Subparts 8.6 and 8.7(48 CFR subparts 8.6 and 8.7))” and notifies “SBA at least 30 days prior to the end of the contract or order.” Finally, in one aspect of SBA’s “Once 8(a), Always 8(a)” Rule that appears to lend itself to the RFO rule update discussed herein, SBA’s regulation also specifies at section 124.504(d)(3) that SBA may only release a requirement under this rule “where the procuring activity agrees to procure the requirement as a small business, HUBZone, SDVO small business, or WOSB set-aside or otherwise identifies a procurement strategy that would emphasize or target small business participation.” RFO’s “Once 8(a), Always 8(a)–or HUBZone, SDVOSB, or WOSB” Rule. In what now directly replaces the version of the “Once 8(a), Always 8(a)” Rule at prior FAR 9.815(e), the RFO states the following in full: 19.108-11 Release requirements for non-8(a) procurement. (a) Once a requirement has been accepted by SBA into the 8(a) program, any follow-on requirements (see definition at 13 CFR 124.3) must remain in the 8(a) program unless—(1) There is a mandatory source (see 8.101 through 8.103); (2) The follow-on will be set aside under the HUBZone, SDVOSB, or WOSB programs; or (3) SBA agrees to release the requirement from the 8(a) program for a follow-on, non-8(a) procurement in accordance with 13 CFR 124.504(d) (see paragraph (b) of this section). (b) To obtain release of a requirement from the 8(a) program, the contracting officer must make a written request to, and receive concurrence from, the SBA Associate Administrator for Business Development. (c) (1) The written request to the SBA Associate Administrator for Business Development must indicate— (i) Whether the agency has achieved its small disadvantaged business goal; (ii) Whether the agency has achieved its HUBZone, SDVOSB, WOSB, or small business goal(s); and (iii) Whether the requirement is critical to the business development of the 8(a) contractor that is currently performing the requirement. (2) The requirement that a follow-on procurement must be released from the 8(a) program in order for it to be fulfilled outside the 8(a) program does not apply to task or delivery orders offered to and accepted into the 8(a) program, where the basic contract was not accepted into the 8(a) program. So, this new RFO version of the “Once 8(a), Always 8(a) Rule” grants contracting officers authority, even without the previously-strictly-required SBA approval, to release any follow-on 8(a) contracts from the 8(a) Program they so chose provided only that such follow-on must then be set aside for HUBZone, SDVOSB, or WOSB competition or award. The RFO has essentially removed the “teeth” from the prior FAR rule. Under the old FAR, it was SBA with significant oversight authority over these 8(a) follow-on contract decisions. But much of that authority was dismantled by the RFO–both by the RFO’s: (1) addition of a new (quite-broad) exception to the “Once 8(a), Always 8(a)” Rule for any follow-on to an 8(a) contract that will be removed from the 8(a) Program as long as it will instead be solicited for HUBZone, SDVOSB, or WOSB competition or award; and (2) removal of the prior written SBA-approval requirements for such scenarios too. While this RFO-added language, on its face, appears somewhat consistent with the old FAR’s and the SBA’s provisions: (1) requiring consideration of whether HUBZone, SDVOSB, and WOSB goals have been met; and (2) stating that release from 8(a) should only be allowed where the requirement will be re-solicited through one of these three SBA socioeconomic programs. But this exception added by the RFO actually packs a significant punch to SBA’s authority that was not part of the old FAR’s or SBA’s version of the rule. Indeed, it essentially removes the need for SBA and eliminates SBA’s authority by removing SBA’s control over the subject follow-on contracting decisions. And in place of such SBA authority, consistent with a lot of general policy shifts we’ve seen in procurement law and procedure of late, it expands the contracting officer’s discretion and authority over how to best meet the agency’s needs and goals. And it further enforces the recent policy shift toward no SBA program receiving favor over another. What hasn’t changed, however, is the basic requirement to seek SBA’s prior approval of the release–and the relevant considerations and procedures for obtaining it–for situations where there is no mandatory source and the follow-on contract will not be solicited/awarded as a HUBZone, SDVOSB, or WOSB set-aside. So, the SBA’s “Once 8(a), Always 8(a)” Rule remains in place. And it is unclear at this time exactly how the RFO’s replacement of the old FAR’s version of the rule with the new “Once 8(a), Always 8(a)–or HUBZone, SDVOSB, or WOSB” Rule will impact SBA’s retainment of the rule. It is also unclear whether and how enforcement of the rule–which has historically been through GAO or the Court of Federal Claims–will look moving forward, that is, if enforcement even remains a thing. But keep an eye out for future blogs on the subject, as we will continue to provide any relevant updates, cases, regulatory changes, etc., as we move forward under the RFO. 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 The “Once 8(a), Always 8(a)–or HUBZone, SDVOSB, or WOSB” Rule, Where Are We Now? first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

As I follow the discussion I had this additional thought. Maybe it is a good idea in the eyes of the ivory tower folks due to the shrinking Federal workforce and staffing for contract administration for other than FFP contracts. Adequate acquisition workforce staffing for contract administration specifically. Along with adequate staffing of the "other assigned duties" of program folks to perform as contracting officer representatives. I suggest this without any data but would offer the failure in contract administration has a direct relation to additional cost for other than fixed price contracts. I would also suggest that the dire straits of the acquisition workforce will have direct negative cost impact on any type of contract in the contract administration phase..

Thank you, Vern. I’m referring to professional and administrative, severable contracts here. The other use of LH I see often is for optional “surge” work. Here, though, the agency is often tightly controlling the number of hours the contractor may work. The Government is very often seeking hours of effort, not an identifiable objective. Bottom line: I’d be willing to bet that the overuse of LH contracts this EO refers to carries much lower cost risk than implied. In practice, LH has evolved into something far different than what regulation intended.

"Support services" tasks in a lot of territory. The term describes a wide variety of requirements, including both constant and occasional. It includes blue collar and white collar work. I'd be careful about generalizations.

Similar idea, except that with FP-LOE the contractor would be paid upon performing the requisite number of hours and the agency accepting the deliverable, whereas with LH the contractor would simply be paid for hours worked regardless of whether it’s met the monthly target. If any FTEs aren’t working out, the agency instructs the contractor to remove or replace them. For this reason there are rarely lingering quality concerns. On a related note, I’ve been told that the military services commonly use CPFF Term contracts for their support services, including for services that would typically be considered commercial. In those situations the contractor is paid a monthly fee upon performing a requisite number of hours.

So is this a fixed-price level of effort contract type being treated as if it’s a labor hour type for billing purposes?

In these cases, as in most cases of LH usage I've observed, the agency is typically using LH not because it cannot accurately estimate the extent or duration of work, but for purposes of billing accuracy. Right or wrong, many requirements offices and 1102s believe it's easier to get an accurate invoice for support services when the contractor charges by the hour. In fact, some think there's nothing the government can do under a FFP support contract if the contractor shorts the Government on hours in a given month. Putting aside whether this use of LH is proper under regulation (it's not), I see little cost risk where the agency dictates the number of hours it wants and then allows the contractor to work up to that ceiling. There is, however, performance risk in having the contractor work on a best-effort basis. But most in government are either unaware of this risk or ignore it, as they've been operating this way without issue for years.

Limitations on Subcontracting (LoS) is one of the most confusing—and most enforced—rules in government contracting. For small businesses and their teaming partners, getting it wrong can lead to serious consequences. And the challenge? You may be asked to prove compliance at any point—before, during, or after contract performance. Our very own SmallGovCon author John Holtz will break down the LoS in clear, practical terms so you can understand what’s required and how to stay compliant. What You’ll Learn What the limitations on subcontracting rule actually requires How LoS applies to set-aside and sole-source contracts A step-by-step process to determine and maintain compliance Common pitfalls that can put your company at risk Real-world examples to help you apply the rule with confidence Why This Matters LoS isn’t just a technical requirement—it’s an area of active enforcement. Missteps can result in penalties, lost contracts, and reputational damage. What You’ll Walk Away With A clear understanding of how to navigate LoS requirements and a practical framework you can use to confidently assess compliance on your contracts. Who This Is For Small businesses performing or pursuing set-aside contracts (8(a), WOSB, HUBZone, SDVOSB) Prime contractors responsible for ensuring compliance on awarded contracts Subcontractors and teaming partners who need to understand their role in compliance Business development, contracts, and compliance professionals Please join us. Registration here. The post Govology Webinar Announcement: Limitations on Subcontracting: A Step-by-Step Compliance Guide, May 19, 2026 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

@formerfed @Don Mansfield Congress and executive branch procurement policy-makers have never been good at rigorously thinking things through. Their ideas (which are mostly just notions) about competition, contract, contract type and price date back to the 19th century, are not grounded in present realities, are half-baked, or are fundamentally unsound . Consider, for example, their notions about the effect of "full and open competition' and "contract type" on what the government ultimately pays under contracts that are complex and dynamic relations rather than simple transactions. When contracting for complex and dynamic requirements there can be no such thing as a "firm-fixed" price, and "full and open" competition produces only useless busy-work, needless delay, and costly litigation. Congress, the policy-makers, and much of the workforce are remarkably incurious and unwilling to question and reconsider their most cherished and deeply-held beliefs, and thus again and again prescribe and carry out policies and procedures that are poorly suited to the needs and objectives of the present day. There is no near-term solution to that problem, if any. It is inherent in the politics, structure, and operation of our federal government.

@Don Mansfield I don’t disagree. Researching the marketplace to identify typical compensation structures is sound advice. But what I found with many T&M/LH contracts is the government had historical data, including prior contracts, to reasonably forecast workload. Examples include facility operations, help desk support, responding to public inquires, and processing applications. These cases experience workload variations for a variety of reasons, but are largely predictable. I saw an instance where an auditor questioned the use of LH staffing for contract specialist support. The auditor showed the HCO from the offices own reporting data that the workload was steady over the prior three years. There were expected major increase in the 4th quarter and a minor increase in the 1st quarter. The office agreed to provide industry that data with the next recompute and award a fixed price contract.

If we're talking about the $120 billion spent on consulting contracts (which I interpret as Advisory and Assistance Services), I think ex ante specification of results is somewhat of a fool's errand. In my experience, the Government needs staff and work specification is more ad hoc--not because of poor planning, but because of the nature of the work. I think these contracts are best described as staffing contracts. As such, the Government should research what types of compensation arrangements are typically used in that industry and adapt to the market.

Alignment with the RFO push to commercial product or service? Seems like the EO also continues the RFO chaos! Why? I have not quite worked out the effect of the EO on the current RFO but it seems that the EO creates one of the first needs to reword the RFO at Part 1 and 16. RFO 1.506 Signatory Authority - It says when a D&F is required, the appropriate official according to agency regulations must sign it. Seems like there is going to be a RFO change per the EO that requires agency head signature? And then at RFO 16.601-3 requires that a time-and-materials contract or order may be used only if- "(a) The contracting officer prepares a determination and findings that no other contract type is suitable. The determination and findings must be- (1) Signed by the contracting officer prior to the execution of the base period or any option periods of the contracts; and (2) Approved by the head of the contracting activity" but now we have "agency head" per the RFO.

I believe more emphasis needs place on use of fixed price but not to the extreme in the EO with the designated levels of justification for non use. Each type has their appropriate place. This is so true. It’s really important for the government to clearly articulate the required outcome to industry and provide comprehensive information behind the requirement before proposals are due. A common theme expressed back in the days of performance based acquisition is the more industry knows what the government wants, the better the proposals. So provide the data to industry to reduce fixed price performance risk. I’ve done a lot of reviews of contracts and associated files across the government. The most frequent justification for use of T&M/LH is the program office can’t sufficiently specify needs in sufficient detail for fixed price. In most cases, it’s pretty clear that the program office just wants the flexibility to assign work to the contractor as if they were government employees. That’s easy to do when the contractor gets paid by the unit of time worked and the government just issues orders for what needs done. With a little thought on what was required by the contractor and specified, it could easily be fixed price.

Ah, the fixed-price mania. Again. Well, if you've been in contracting long enough you've been through this before. I remember going through it at least twice, and the people in the business before me had been through it at least once. The fixed-price mania has led to some noteworthy catastrophes in weapons development. The issue now is services. The popularity of the T&M contract, the worst of all, is likely due to poor requirements analysis and specification. The cost-reimbursement contract is not quite as bad.

EO What is the steel man argument here? What is the strongest case for why this EO is a good idea? Am I not understanding something - does this imply "justified in writing" but not approved under threshold? If so, what does this mean?

In this webinar, Gregory Weber and I will discuss some of the most important legal developments which may impact federal contractors in 2026. Specifically, we will discuss recent regulatory updates and decisions affecting small business and federal contracting rules, including the Revolutionary Far Overhaul (RFO) process and updates, as well as sharing RFO examples that are pertinent to federal contractors. Please join us. Registration information here. The post Webinar Announcement: Legal Updates, May 13, 2026 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Koprince McCall Pottroff LLC, a boutique federal government contracts firm in Lawrence, KS, is pleased to announce that it has elevated two of its attorneys to partner status. Gregory Weber and John Holtz are now partners at the firm! Greg’s client-focused communication skills and detail-oriented nature helps him to tackle issues for clients with ease. Greg relies on his experience in complex federal and state regulatory matters, along with his skills in research, communication, and drafting, to provide clients with clear and concise solutions for many of their varied needs. John Holtz relies on a wide berth of experience, along with lightning quick research, writing, and analysis skills. These give John the adaptability and resourcefulness needed to help clients navigate the world of government contracts, be it on a transactional basis or in litigation. This step is well-deserved. John and Greg have a depth of knowledge, a client-focused mindset, and a passion for representing their clients, all of which make them ideal attorneys in the field of government contracting. Congratulations to John and Greg! Greg can be reached at gweber@koprince.com. John can be reached at jholtz@koprince.com. The post Koprince McCall Pottroff Names John Holtz and Gregory Weber as Partners first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Happy May Day! May Day, celebrated on May 1st, traces back to old European traditions marking the arrival of warmer weather, complete with dancing around the maypoles. In some places, people still leave little baskets of flowers (called “May baskets”) on neighbors’ doorsteps as a surprise. Here’s hoping someone surprises you today with a basket on your doorstep. It’s also Law Day, when we celebrate the rule of law in our country. While there are no baskets of flowers, feel free to appreciate a lawyer today. Have a great weekend! And here’ s what’s happening in federal government contracting this week: problems with classified contracts, issues with following Buy American rules, and efforts to reduce fraud. GAO flags hundreds of classified contractor security violations Space Force selects companies for Golden Dome missile defense initiative Trump administration fires independent board overseeing the National Science Foundation SSC Awards Up to $3.2B in Space-Based Interceptor Contracts for Golden Dome Effort Audit Finds Failures to Comply with ‘Buy American’ Contracting Requirements at FAA GAO: Payment Integrity: Agencies’ Estimated Improper Payments Increased to $186 Billion in Fiscal Year 2025 SBA Announces National Small Business Week 2026 Virtual Summit Agenda House approves bill to fund the Department of Homeland Security and end the record shutdown House committee advances 9 anti-fraud bills with mostly bipartisan support White House CEQ Seeks Technology Proposals to Modernize Federal Permitting Processes Promoting Efficiency, Accountability, and Performance in Federal Contracting The post SmallGovCon Week in Review: April 27-May 1, 2026 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

In Spring 2025, President Trump issued Executive Order 14271, titled “Ensuring Commercial, Cost-Effective Solutions for Federal Contracts” which informed agencies that they should emphasize procuring commercially available products and services as much as possible. Fast forward a year later, and it would seem the White House’s Office of Management and Budget (“OMB”) is not seeing the push for utilizing commercially available products and services they expected among federal agencies. So a few weeks ago, almost a year to the day of President Trumps 2025 Executive Order, OMB issued a memo to federal agencies driving home the points of President Trump’s 2025 Executive Order and placing reporting requirements on agencies, which could effect the direction of future possible procurements across federal contracting. On April 17, 2026, OMB released memorandum M-26-12, titled “Increasing the Acquisition of Commercial Products and Services.” This memorandum was issued by OMB to further emphasize and put into place the aims of President Trump’s April 2025 Executive Order informing agencies to emphasize utilization commercially available products and services. OMB makes clear in this new memorandum that 1994’s Federal Acquisition Streamlining Act (FASA) has “required federal buyers to give a preference to commercial products and services and Part 12 of the Federal Acquisition Regulation” for decades, but in Fiscal Year 2024, OMB did not see the shift in procurements it expected. According to OMB “more than two-thirds of total federal contract spending reported” in FPDS (this data is transitioning to SAM.gov) was non-commercial products and services. Of that, more than $130 billion was for “non-commercial contracting for common services, such as professional support services, information technology and telecom services, and operation of facilities” often through cost-reimbursement contracts. OMB apparently see this as a risk for the federal government, as it could “allow undefined deliverables that increase the Government’s exposure to loss.” Consequently, OMB is now placing requirements upon agencies (called “stewardship actions” in the memorandum) to strengthen and push for the utilization of commercially available products and services rather what they deem “risky” alternative procurement methods. The actions OMB directs agencies to take are quite varied. This includes: “Reporting”; “Strengthened Responsibilities of the Competition Advocate”; “Improved Data Collection and Benchmarking”; and “Consultation with OMB.” For Reporting, OMB is generally asking agencies to provide the following: Information about recent non-commercial awards, including but not limited to: Value of noncommercial contracts awarded from April15, 2025 through September 30, 2025. List of Procurement Instrument Identifiers. For contracts over $10 million, date of next option, action planned by the agency after reviewing contracts, and an explanation, including market research and price analysis, for why a commercial solution is not planned for the next option (if applicable). Acquisition planning for upcoming (phrased as “near-term”) awards of non-commercial items, including: Total number of all open or pre-award actions for non-commercial products or services that were in process April 15, 2025 or later, and were initiated by March 31, 2026. And for those actions which exceed $10 Million, description of the requirement, contract type, cost estimate, action planned by the agency after this review, and if there is no plan for a commercial solution, a justification of such. Future procurement information, including “internal mechanisms put in place, including guidance to ensure any future planned award of a non-commercial award is reviewed” by the agency. Regarding strengthening responsibilities of the “agency competition advocate” the OMB memorandum expects agencies to confirm that whomever is serving as the agency’s competition advocate is “at a level not lower than the head of the contracting activity or deputy SPE” (meaning senior procurement executive), likely hoping this person wields more authority within the agency. Agencies have to report who this person is and information about that position by May 4, 2026. OMB then provides a list of the “minimum” activities which this competition advocate would take, including among other things, provide recommendations on how to maximize commercial buying, work with the agency to support implementation of the RFO Part 12 deviation, work with the agency’s small business director “to lower barriers to entry for commercial providers and encourage the participation of new entrants offering commercial solutions,” improve data collection, and support developing progress reports to OMB regarding compliance with FASA. To improve data collection and benchmarking there will be a review of how to improve tracking commercial products and services buying in FPDS, and an examination of how GSA could “baseline and benchmark agency acquisitions of commercial products and services.” Finally, the OMB memorandum explains that an agency may seek the input of OMB if they are contemplating soliciting non-commercial products or services. Such request for input from OMB should include many points of information, such as description of the planned requirement, reason for the requirement market research, competition plans, cost estimate information, and other items. With all this in mind, OMB seems to be taking the push for utilizing commercially available products and services very seriously. While this memorandum puts a lot of work on agencies, it is not to be ignored by contractors. OMB in this memorandum shows that the federal government will be shifting to more and more commercially available products and services, and FAR part 12 procurements, regardless of if the agencies want to or not. So contractors should prepare for such procurements, and to potentially offer such items if possible. This will obviously be something that the current administration will continue to monitor, and contractors should expect procurements to continue to shift more towards FAR Part 12 and commercially available products and services over time. We will keep an eye on this shift in procurements, If you have any federal government contracting law questions about this push towards commercially available items and services, be sure to contact federal government contracting lawyers such as ourselves. 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 OMB Continues Push for Commercial Products and Services first appeared on SmallGovCon - Government Contracts Law Blog.View the full article