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Many individuals who have gone through SBA’s 8(a) Business Development Program (the 8(a) Program) will tell you that the application process is not for the faint of heart. One of the most time-consuming, and often frustrating hurdles of the application is the Social Disadvantage Narrative (or SDN). Applicants are asked to revisit painful moments where they experienced discrimination. Sharing these deeply personal experiences is what makes it so upsetting for an applicant when SBA pushes back on their narrative – or worse, when SBA questions the bias, finding “legitimate alternative grounds” for the mistreatment. Under the regulations, “SBA may disregard a claim of social disadvantage where a legitimate alternative ground for an adverse employment action or other perceived adverse action exists and the individual has not presented evidence that would render his/her claim any more likely than the alternative ground.” 13 C.F.R. § 124.103(c)(3)(ii). For many applicants it can feel like their most personal moments are being put on trial. In The CTS Grp. LLC, Petitioner, SBA No. BDPT-621, 2025 (Apr. 29, 2025), SBA’s Office of Hearings and Appeals (OHA) considered SBA’s termination of a former 8(a) Program participant after determining the company’s SDN did not demonstrate social disadvantage. The CTS Group LLC (Petitioner) was an 8(a) Program participant whose eligibility had previously been based on the reliance of the presumption of social disadvantage. After the Ultima decision (read our blog about it here), SBA required all current 8(a) participants who had been admitted based on this presumption to submit an SDN establishing social disadvantage. The Narrative Petitioner’s owner, Calvin L. Scott Jr. (Mr. Scott), submitted an SDN on behalf of the company. The narrative described an experience Mr. Scott had in the federal contracting industry as a black man. Upon initial review, SBA sent the SDN back to Petitioner for additional revisions, stating the following, [T]hat one incident presents no instance of chronic and substantial bias, prejudice, and discrimination catalyzing negative impact. You [Mr. Scott] mention that all of the individuals involved were Caucasian. However, you fail to mention any names and any speech/action that evidences bias. The mere fact that those you were dealing with are Caucasian is not sufficient in meeting the preponderance standard. SBA gave Petitioner the following guidance for revisions to the narrative, In order to successfully meet the preponderance of the evidence standard SBA need[s] to clearly see that you have suffered chronic and substantial bias, prejudice, and discrimination based upon one or more objective distinguishing features (i.e., what others see about you when you “walk into a room”) which has had a negative impact upon your entry into or advancement in the business world. After several back-and-forth exchanges, Petitioner’s final revised SDN described two experiences where Mr. Scott had been subjected to discrimination: The first incident detailed Petitioner’s experience serving as a subcontractor. Mr. Scott had reached out to the prime contractor about the ability to add employees to the Petitioner’s subcontract: “Despite demonstrating exceptional expertise and contributing significantly, [Petitioner’s] efforts to expand our role on the contract and add more value were unjustly denied. [Three officials of the prime contractor] denied me the opportunity to add employees under the contract.” The officials “specifically cited [Mr. Scott’s] age and [Petitioner’s] relative lack of past performance as reasons for denying the expansion” of the subcontract agreement.” “At the time I felt [the prime contractor] as a worldwide large contractor was bias[ed] against a young black owned business striving to grow within a competitive landscape dominated by established contractors.” The second incident described a time when Petitioner was not the successful offeror on a contract. Petitioner had met the requirements of the solicitation, even being informed by the contracting officer that Petitioner “was more than likely to win the new contract.” However, despite checking all the boxes, the Petitioner was not the awardee. Mr. Scott later learned that two employees of the procuring agency had labeled Mr. Scott “the new guy” and based their decision on this factor. The SDN provided the following: “This decision was influenced by discrimination, prejudice and bias against [Mr. Scott] as young, qualified, minority owned business striving to grow within the government contracting arena. The contract award was clearly racially bias[ed] by awarding a prime contract based on their personal relationships rather than merit.” SBA Acting Associate Administrator for Business Development (AAA/BD) ultimately found that Petitioner’s final revised SDN insufficient, making the following findings: The first example is unpersuasive to show social disadvantage. The AAA/BD noted that, “Petitioner did not demonstrate that the prime contractor’s decision not to enlarge Petitioner’s subcontract stemmed from any racial or ethnic prejudice or cultural bias.” Legitimate Alternative Ground: The prime contractor may have perceived Mr. Scott’s actions as an attempt to circumvent the prime contractor by directly “soliciting [the] Prime’s customer for work.” 2. The second example is conclusory. The AAA/BD noted that, “the mere fact that Petitioner did not win a particular contract does not establish that “racial bias played a part in the decision.” Legitimate Alternative Ground: The agency could have been motivated to “award to a firm it was familiar with rather than a relative newcomer.” Therefore, SBA terminated Petitioner’s participation in the 8(a) Program because Petitioner’s SDN did not demonstrate the company was owned and controlled by one or more disadvantaged individuals. Holding OHA denied the appeal, ultimately finding the SBA decision was reasonable. In accordance with SBA’s guidance for the SDN, Mr. Scott was required to present facts and evidence that alone established that Mr. Scott had suffered social disadvantage that negatively impacted his entry or advancement in the business world. Under the regulations, SBA may find an SDN insufficient when a “legitimate alternative ground” for the negative outcome exists, and the individual fails to provide a preponderance of evidence that would render their social disadvantage claim more likely than the alternative ground. Here, OHA concluded that the two examples in the SDN did not present evidence that the negative outcome described was attributable to bias rather than the legitimate, non-discriminatory reasons that were raised by the SBA reviewers. As such, OHA denied Petitioner’s appeal. Key Takeaways Submitting a compelling social disadvantage narrative can be a difficult process that requires applicants to relive painful experiences. It’s made even more difficult when an applicant’s personal narrative is met with SBA’s skepticism. Knowing in advance what SBA is looking for can help applicants avoid facing SBA’s suggestions of alternative grounds. Cases like this one, as well as other resources, can help applicants create a narrative that details their personal experiences while meeting SBA’s regulatory demands. Check out these blogs for additional insight for drafting the SDN: Demonstrating 8(a) Social Disadvantage and What SBA is Looking For. Note that SBA may be transitioning to a new review process, so be sure to review all guidance from SBA as you work on the SDN. Questions about this post? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post SBA OHA Says: Claiming Social Disadvantage? Prove it! first appeared on SmallGovCon - Government Contracts Law Blog.View the full article -
Happy 4th of July! We hope that our SmallGovCon readers have a happy and safe holiday. This is a good time to remember that this country would be a far different place had we not achieved independence from the United Kingdom in the manner that we did. And maintaining the independence of this country takes everyone working together and the strength of our government to support the people’s independence and sovereignty. Federal government workers and contractors are crucial to maintaining our country. So raise a glass to them this holiday! The post Happy Independence Day from SmallGovCon! first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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SBA has announced that it will be auditing the 8(a) Program in a recent press release entitled: “Administrator Loeffler Orders Full-Scale Audit of 8(a) Contracting Program.” 8(a) Participants and former Participants should be aware that SBA will be focusing on a review of contracts issued under the 8(a) Program. The announcement from SBA cites to a news story highlighting a massive bribery scandal at USAID. SBA intends to “immediately initiate a full-scale audit of the agency’s awarding officers back to 2010.” The USAID case involved “a decade-long bribery scheme involving at least 14 prime contracts worth over $550 million in U.S. taxpayer dollars.” The SBA administrator noted: “We must hold both contracting officers and 8(a) participants accountable – and start rewarding merit instead of those who game the system.” The announcement states that: One 8(a) contractor, despite being officially flagged by USAID as lacking “honesty or integrity,” went on to receive an additional $800 million in federal contracts to evaluate “issues affecting the root causes of irregular migration from Central America. The SBA announcement also links to an article from the Daily Wire discussing the 8(a) contractor and its contracts at USAID. That article states: Vistant’s criminal scheme relied on joint ventures to exploit a DEI policy called 8(a) contracting, which lets the government award contracts with no or limited competition when the recipient is a racial minority or a small business. It formed a joint venture with a larger company —which was bribing Watson and would actually do the work — so Watson could use Barnes’ status as a black man to steer the contracts to him, rather than being obligated to go through an open competitive process. While the exact parameters of the audit are not found in this press release, here a few details. Who will lead. The SBA’s Office of General Contracting and Business Development, in “collaboration with various federal agencies that award contracts to 8(a) participants.” This office at SBA is the same office responsible for the 8(a) certification and contract review process, as well as various other small business federal contracting programs such as size determinations. Scope. Focus on “high-dollar and limited-competition contracts.” Timeframe. The audit will look at contracts over a period of fifteen years, back to 2010. Enforcement. Cases will then be investigated by SBA Office of Inspector General and DOJ. This audit could have a large impact on the 8(a) Program, as it seeks to review 15 years of contracts and possibly recover funds. It’s also possible the result of the audit could be used to enact changes to the 8(a) Program. However, changes to the 8(a) Program are not specifically mentioned in this press release. Questions about this post? Email us. Need legal assistance? Call at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post SBA Announces an Audit of 8(a) Program Contracts first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Happy Friday and happy summer, everyone! Things are really heating up here in the Midwest as well as the rest of the country. But the heat does not mean the WIR takes a week off. Rather, the news is just as hot off the press as is the weather. This week in federal government contracting saw updates on a GAO budget cut, AI led budget cuts, and increased review of contracts by agency heads. New sole-source thresholds gives a bigger piece of pie to Tribals and ignores small businesses GAO faces nearly 50% budget cut, less oversight of withheld funds in budget plan A deep dive into government contracting Lawmakers demand review of VA’s AI-driven contract cuts A Snapshot of Government-Wide Contracting for FY 2024 (interactive dashboard) GSA and Elastic Partner to Deliver Significant IT Cost Savings Across Federal Government What happens when the agency secretary starts reviewing grants and contracts A new working group wants to make federal procurement more efficient New DoD memo outlines review process for IT consulting contracts Contractor to Pay $1 Million to Settle Allegations of Overcharging U.S. Air Force at Cannon Air Force Base Hanford Contractor, Washington River Protection Solutions (WRPS), Agrees to Pay $6.5 Million to Resolve Allegations of Fraud Meeting of the Interagency Task Force on Veterans Small Business Development The post SmallGovCon Week in Review: June 23-27, 2025 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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SBA requires that, for 8(a) Program construction contract set-asides, the contractor must have a “a bona fide place of business in the applicable geographic area.” 13 C.F.R. § 124.501. In 2021, SBA suspended the enforcement of this requirement in light of the COVID-19 pandemic. On June 17, 2025, SBA announced that this moratorium is coming to an end. In this post, we’ll look at the rule and what the end of this moratorium means for 8(a) construction contractors. The Bona Fide Place of Business Requirement The “bona fide place of business” requirement is one we have explored in the past. In fact, in 2023, despite the ongoing moratorium, SBA made a few amendments to the rule for clarification. Essentially, the idea is that, in order to receive an 8(a) set-aside construction contract, the contractor must have an actual place of business in the area the work will be performed. Specifically, 13 C.F.R. § 124.3 defines a “bona fide place of business” as “a location where a Participant regularly maintains an office within the appropriate geographical boundary which employs at least one individual who works at least 20 hours per week at that location.” Basically, SBA is looking for a permanent office (although if you’re presently performing a federal contract in a given state, SBA will say you have a bona fide place of business solely for that state for the duration of that contract). Home offices will count. You can have more than one bona fide place of business too, so this isn’t like the principal office requirement with HUBZone. Furthermore, a contractor has to submit their claimed bona fide place of business for approval to the SBA district office for that location under 13 C.F.R. § 124.501(k)(2). This can be done with regards to a specific procurement or just in general. SBA has to approve of the bona fide place of business before award can be made. That said, a contractor can still submit an offer on the assumption it was approved if it has been waiting for over 15 working days since SBA received the request (five working days from a site visit if SBA conducts one) and hasn’t got a response. Of course, this leaves one question: What area does the bona fide place of business cover? First, the regulation notes that “[a] Participant with a bona fide place of business within a state will be deemed eligible for a construction contract anywhere in that state (even if that state is serviced by more than one SBA district office).” So, if you have a bona fide place of business in, say, Los Angeles, that will be sufficient for any 8(a) construction contracts to be performed in California. Of course, many companies have places of business that are near the border with other states. With regards to locations outside the state, it is essentially up to the SBA area office’s determination. The regulation does give some general guidance on what area the bona fide place of business will be found to cover: “This will generally be the geographic area serviced by the SBA district office, a Metropolitan Statistical Area (MSA), a contiguous county (whether in the same or different state), or the geographical area serviced by a contiguous SBA district office to where the work will be performed.” Essentially, then, unless the location of the contract is in the same state as your already SBA-approved bona fide place of business or you have otherwise gotten SBA’s approval that your place of business is within the area of the contract, you need to submit the bona fide place of business to the SBA area office for the contract site for approval. Oh, one last thing on contracts where work in multiple locations is required: If it’s a single-award contract, you have to have a bona fide place of business where the majority of the work (as determined by dollar value of the work) will be performed. If it’s a multiple-award contract, as long as you have a bona fide place of business at any location where work is to be performed, that will suffice. End of the Moratorium As noted above, SBA suspended this requirement in 2021. Therefore, if you receive an 8(a) set aside construction contract in the past few years, you should not be alarmed that you did not submit a bona fide place of business approval request for the contract. However, on June 17, 2025, SBA announced the moratorium is ending. The good news is you have an upcoming bid is that the moratorium did not end as of the date of that announcement. To give contractors time to adjust, the moratorium will end on September 30, 2025. After that time, the bona fide place of business requirement will apply again. From that date on, you will need to have an established bona fide place of business in the area of the contract for all 8(a) construction set asides. Questions about this post? Email us. Need legal assistance? Call at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post End of the Bona Fide Place of Business Moratorium first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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There is an old saying that the only thing constant is change. While true in a broad sense, it is especially true in federal contracting. At some point a federal contractor will find itself facing a change to its contract or performance, costing it money or time. Inevitably, that leads to the question of whether an REA should be pursued, or if a claim should filed. One of the most common responses to that question is actually another question: what’s the difference between an REA and a claim? Let’s answer that question here. The answer to what’s the difference between an REA and a claim really goes back to the procedure for each. While both actions pursue compensation from the agency related to a contract, an REA is less formal than a claim, while a claim triggers formal legal rights and appeals possibilities. But that only scratches the surface. An REA . . . REA is short for “Request for Equitable Adjustment.” An equitable adjustment, despite its common usage within the FAR, is not defined specifically in the FAR. Courts have defined it as “. . . a remedy payable only when unforeseen or unintended circumstances, such as government modification of the contract, differing site conditions, defective or late-delivered government property or issuance of a stop work order, cause an increase in contract performance costs.” Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1577 (Fed. Cir. 1995). So, at the most basic level, an REA is used to simply ask the agency to compensate you for a change to the contract, performance, timing, or other issue present in the contract. The FAR recognizes the opportunity for an REA in multiple situations, but the most common situations are when there is a change or partial termination of a contract. For example, the oft-used FAR 52.243-4 Changes provision mentions “equitable adjustment,” and sets forth the following standard in part of section (d): “If any change under this clause causes an increase or decrease in the Contractor’s cost of, or the time required for, the performance of any part of the work under this contract, whether or not changed by any such order, the Contracting Officer shall make an equitable adjustment and modify the contract in writing.” There is a similar clause in the Fixed Price Contract changes FAR Provision and even the DFARS has a section dedicated to REAs. The concept of REAs is found in many federal regulations, but to boil it down: if there was a change in the contract, there is the possibility for the contractor to ask the agency for an equitable adjustment to the contract so they may be compensated under the contract due to the effects of that change. (For a good run down on why one should file an REA, check out our entry in our Why File series on REAs). Note that we state they can “ask.” A hallmark of REAs are that they represent more of a negotiation or discussion with the agency. While the FAR says the CO “shall” make an equitable adjustment based on an increase (or decrease) in costs, it really depends on what changed, and what costs the contractor puts forth for compensation and negotiation. As REAs are seen as a negotiation, this also allows for the possibility of requesting attorneys fees related to the REA under FAR 31.205-33. In general, REAs are less adversarial. While REAs do have certain varying deadlines for the contractor to meet to request an equitable adjustment (such as the FAR provisions discussing partial contract termination), REAs are not as rigid as a claim. However, this flexibility can also be a downside, as agencies could delay responses to an REA or be less cooperative in the REA process, as compared to a claim, despite many of the FAR provisions stating an equitable adjustment “shall” be conducted. . . . Versus a Claim So, what is a claim? A claim is dictated by FAR 52.233-1 and is defined under this disputes clause as: “. . . a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract.” Right away, it is clear this is a much more formal process than an REA. Note that it is a “written demand” that is asserting a right, where an REA is more of a back and forth request for review. Claims must be in writing, and generally must be submitted within 6 years after the “accrual of the claim” occurs. In contrast, some REA deadlines that are spelled out in FAR clauses, are often measured in days. Once a claim is filed with the CO, it starts the clock on a required response from the CO which is typically 60 days, while REAs don’t have a required response deadline for the agency. Once the CO makes a decision on a claim, it is the final decision of the CO. There is no negotiation or back and forth at that point. If the contractor is not satisfied with that final decision of the CO, it can then be appealed to a board of contract appeals or the United States Court of Federal Claims. An agency is not required to respond to an REA. And, if denied, an REA has no direct appeal process. Of course, something that is initially submitted as an REA could subsequently be turned into a formal claim, as claims typically have a 6 year window. Claims also could require certain certifications of costs. Both an REA and claim focus on payment or compensation under a contract due to some issue under the contract, but claims are more formal, even containing deadlines for the agency’s response. Both REAs and claims could be sent to ADR under FAR 33.214 and contractors are expected to continue diligently with performance while the REA or claim is processed. REAs and claims, while potentially seeking the same compensation, vary in their procedure, formality, and underlying FAR provisions. Therefore, a quick answer to the FAQ of “what’s the difference between an REA and a claim” is: REAs are less formal negotiations for compensation under a change in the contract, while claims are formal demands for payment that could result in appeals in front of a court or tribunal. As shown, there is much more to that answer, but in general, both have their advantages and disadvantages. Often REAs will precede a formal claim, but REAs and claims are distinctly different avenues for contractors to pursue compensation due to changes in their contracts with the government. Of course, the decision of which one to pursue, or if these are even possibilities under the contract, is something that is fact specific and should be discussed with a federal government contracts attorney. If you find yourself still scratching your head on which avenue may be best, or even wanting to discuss more of the nuanced differences between an REA and claim, reach out to a federal government contracts attorney, such as the attorney-authors at SmallGovCon. Questions about this post? Email us. Need legal assistance? Call at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post GovCon FAQs: What is the Difference Between an REA and a Claim? first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Happy Friday! Juneteenth, celebrated on June 19th, marks a powerful moment in American history—the day in 1865 when enslaved people in Galveston, Texas, learned they were free, more than two years after the Emancipation Proclamation. It stands as a celebration of freedom, resilience, and the ongoing struggle for equality. Have a wonderful weekend! This week in federal government contracting news, keep your eyes on increased review of contracts at DHS, GSA’s plans for tech resellers, and reversals of some cuts at DOE. GAO finds Trump administration’s second violation of federal spending law You’re Invited: Live Demo of Procurement Co-Pilot – See It in Action! SBA Reinstates Rule to Return Federal Contractors to Work ‘Absolutely nuts’: DHS secretary to review all contract and grant awards over $100k Pentagon cancels multibillion dollar household goods moving contract GSA plans to ‘flip’ the role of tech resellers with OneGov strategy Army promises detailed transformation plan to Congress within 10 days Energy secretary signals reversal of some cuts to national labs Lawmakers press DoD officials on MILCON budget: ‘What’s that $900 million for?’ OpenAI awarded $200M DOD prototype contract Former USAID official, three contractors plead guilty in $550M bribery scheme The post SmallGovCon Week in Review: June 16-20, 2025 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Joint ventures created between a small business protégé and a large mentor are without a doubt a very alluring and popular aspect of the SBA’s Mentor-Protégé Program. It provides an incentive to potential mentors to share their connections, resources, experience, and industry knowledge with small businesses, many of whom are not only small, but participants in one of the various SBA programs such as the 8(a) Program and Woman-Owned Small Business Program, to name a couple. But, as appealing as mentor protégé joint ventures are, a recent decision demonstrates (yet again) there are a number of joint venture requirements that must be met if you want to experience their benefits. And failure to do so can result in some undesirable consequences. Multimedia Environmental Compliance Group, JV, SBA No. SIZ-6354 (May 12, 2025) considered a size determination in which the joint venture agreement (JVA) was found deficient because the non-managing venturer had negative control over actions that were considered day-to-day contract administration, which is improper under 13 C.F.R. § 125.8(b)(2)(ii). That regulation states that a small business joint venture agreement must have a provision: Designating a small business as the managing venturer . . .and designating a named employee of the small business managing venturer as the manager with ultimate responsibility for performance of the contract (the “Responsible Manager”). (A) The managing venturer is responsible for controlling the day-to-day management and administration of the contractual performance of the joint venture, but other partners to the joint venture may participate in all corporate governance activities and decisions of the joint venture as is commercially customary. The joint venture agreement may not give to a non-managing venturer negative control over activities of the joint venture, unless those provisions would otherwise be commercially customary for a joint venture agreement for a government contract outside of SBA’s programs. A non-managing venturer’s approval may be required in, among other things, determining what contract opportunities the joint venture should seek and initiating litigation on behalf of the joint venture. Also relevant here, SBA’s small business joint venture rules require a provision “[o]bligating all parties to the joint venture to ensure performance of a contract set aside or reserved for small business and to complete performance despite the withdrawal of any member” per 13 C.F.R. § 125.8(b)(2)(viii). Background There is a lot of background information included in this decision, so I will try to keep this information short and sweet. Multimedia Environmental Compliance Group, JV (the MECG JV) is a joint venture between Nicklaus Engineering, Inc. (NEI or protégé) and Wood Environment and Infrastructure Solutions, Inc. (WEIS). Additionally, NEI and WEIS were participants in the SBA’s Mentor-Protégé Program, with NEI being the small business protégé and WEIS as the large mentor. In addition to the MECG JV, NEI, the protégé, had many other joint ventures. The MECG JVA As relevant here, the JVA stated: “[e]ach RFP and proposal will be reviewed by the Responsible Manager, an NEI employee, and the Program Manager, a WEIS employee.” NEI’s President was identified as the Responsible Manager. The Program Manager remained unnamed. The Responsible Manager and Program Manager were tasked with the “ultimate responsibility for contract performance and will supervise the Task Order Managers who will report to her” and would “administer the ordinary day-to-day business of the Joint Venture.” The Responsible Manager and Program Manager would “jointly lead contract negotiations.” Additionally, NEI was appointed as the Managing Party, which was “responsible for conducting the Joint Venture’s business affairs.” The JVA also created an Executive Committee for “certain designated matters,” which would have one member from each venturer, each with an equal vote, and all decisions must be unanimous. The Executive Committee was responsible for the following actions, including: (i) To make decisions on general policy matters related to the Joint Venture which are not specifically delegated to the Managing Party or the Responsible Manager or the Program Manager, as defined in Subsection 6, hereof; (ii) To approve any extraordinary extension to the Scope of Services; (iii) To receive and review reports on the progress of the Services. The Responsible Manager and/or Program Manager shall meet with the Executive Committee when requested by said Committee; (iv) To approve all expenditures of the Joint Venture not billable to NAVFAC; (v) To provide other services as set forth elsewhere in this Agreement; (vii) To issue any public release or advertisement regarding this Agreement or the Contract such approved public release or advertisement shall mention both Parties; and Further, the JVA stated that if either party defaults its obligations under the contract, the remaining party may, if it elects to, complete performance of the contract. OHA Opinion The Area Office determined that MECG’s JVA met the requirements of 13 C.F.R. § 125.8(b) and (c). Following the size determination, Acacia7, the protester turned appellant, appealed the Area Office’s decision at the SBA’s Office of Hearings and Appeals. The appeal argued that the MECG JVA did not meet the joint venture regulatory requirements in 13 C.F.R. §125.8(b) because the non-managing venturer/mentor was a part of the Executive Committee. And not just any part of the Executive Committee. Acacia7 pointed to 13 C.F.R. § 125.8(b)(2)(ii), stating that the JVA failed to designate the small business as the managing venturer responsible for controlling the day-to-day management and administration because WEIS’s position in the Executive Committee granted it negative control of the joint venture. Finally, Acacia7 asserted that the JVA did not obligate parties to ensure performance if a contract set aside for small businesses despite the withdrawal of a member of the joint venture as required by 13 C.F.R. § 125.8(b)(2)(viii). Analysis OHA found that MECG’s JVA complied with 13 C.F.R. § 125.8(b)(2) in all aspects but two. First, OHA held that the Area Office erred when finding that the JVA complied with 13 C.F.R. §125.8(b)(2)(viii), which requires the parties to a joint venture to ensure performance despite the withdrawal of any member. MECG’s JVA gave the non-defaulting party the right to elect to complete the contract, not an obligation to do so, which is required per 13 C.F.R. § 125.8(b)(2)(viii). OHA also held that the JVA failed to comply with 13 C.F.R. § 125.8(b)(2)(ii). This requires a JVA to appoint a Managing Venturer and a Responsible Manager who have control of the “day-to-day management and administration of the contractual performance of the joint venture.” Although the JVA did appoint a Managing Venturer and a Responsible Manager, the Executive Committee outlined in the JVA had one representative from both NEI and WEIS, each with an equal vote. Additionally, the Program Manager, a WEIS employee, was given negative control over many of the duties that are generally considered day-to-day management and contract administration, of which the Managing Venturer and Responsible Manager should retain control of. Thus, the JVA failed to comply with the requirements at 13 C.F.R. § 125.8(b)(2)(ii) because the Managing Venturer was required to share authority with the non-Managing Venturer, usurping its control. The Lesson So, what can a non-Managing Venturer have negative control over? Commercially customary actions , which the SBA also confusingly calls extraordinary actions. This decision specifies that the following actions all constitute extraordinary actions that may require the minority shareholder’s input, but do not create negative control: Participate in corporate governance as is commercially customary; Have negative control over certain decisions if those would be commercially customary for a joint venture agreement for a government contract outside of SBA’s programs; Institute litigation; Require approval of which contract opportunities the joint venture should pursue; Have the ability to block certain extraordinary actions via supermajority provisions if those supermajority provisions are crafted to protect the investment of the minority shareholders and do not to impede the majority’s ability to control the concern’s operations or to conduct the concern’s business as it chooses; Dissolve the concern; Approve the addition of any new members or the withdrawal of any old members; To increase or decrease the size of the Board; To increase or decrease the number of authorized interests; To reclassify interests; Sell or otherwise dispose of the firm’s assets; Admit new members; Amend the JVA in any manner that materially alters the rights of existing members; File for bankruptcy. OHA found that actions outside of those listed above fail to comply with the SBA’s joint venture regulations and interfere with the small business’s ability to control the contract administration and day-to-day management of the joint venture. Conclusion The case discussed here is one of vital importance. The SBA’s joint venture regulations contain what can be confusing requirements related to control by the small business or managing venturer. Failure to follow those provisions can result in following these requirements. And recent regulatory updates and administrative decisions make it a subject matter that is still evolving, emphasizing the importance of staying up to date. Questions about this post? Email us Need legal assistance for a federal government contracting matter, give us a 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’s OHA: A Joint Venture Agreement Can’t Step on the Managing Venturer’s Toes first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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The word “termination” in nearly every context elicits concern. And in federal contracting, such concern may often be warranted. Some terminations are no big deal, resulting in a federal contract–or even just part of one–being ended a bit early for convenience of the government. But other terminations, based on alleged default or deemed “for cause,” can have significant negative impacts (especially on small and disadvantaged businesses). So, one thing remains consistent across the board for federal contract terminations: it is crucial to understand the type of termination you are issued, its legal implications, and your rights and options for resolution. This article provides a general overview of terminations. Future posts will dive in deeper to contractor termination rights and options and settlement proposals. FAR part 49 covers “Termination of Contracts” in the federal government contracting realm. Its scope includes a contracting officer’s authority and responsibility to terminate contracts, an agency’s procedural and notification duties for terminations, settlement agreements, and various other principles applicable to the two main types of federal government contract terminations: (1) terminations for convenience, and (2) terminations for default (also called “terminations for cause” for certain contract types). Terminations for Convenience This refers to the government’s right to end a contract (really) whenever and for whatever reason it wants. It is typically triggered by the applicable contracting officer’s decision that such a termination would be most beneficial to the government and/or taxpayers. And such a decision is generally given strong deference. FAR 52.212-4(i), and related clauses similarly, state: Termination for the Government’s convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor’s records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided. Indeed, there’s not much a contractor can do to change or prevent an agency’s termination for convenience. It really is entirely up to the contracting officer to decide if finishing out the work is necessary or beneficial–or, for whatever reason, is not. But this is also why the FAR’s termination for convenience cost settlement rules generally allow recovery of a wider range of costs than the other FAR clauses. Nearly every federal government contract incorporates the FAR clause giving the government termination for convenience rights. And there are different termination for convenience clauses for different kinds of contracts. But they work generally the same way. FAR 49.201(a) states the general principles behind compensating a contractor terminated for convenience. But the main takeaway is that there is no hard-and-fast calculation to be done to figure out what is owed. The government is required to work with the contractor to negotiate and settle on fair amount of compensation. FAR 52.249-2(e), the termination for convenience clause for fixed price contracts, (and other, similar FAR clauses) require the contractor to submit a settlement proposal to the contracting officer as soon as possible upon such termination–and no later than a year after such termination’s effective date. As you will see below, ensuring your settlement proposal is considered timely submitted is crucial. Now, what is “on time” or “timely” for each proposal–in my own experience–is not always easy to deduce. Even though the FAR sets a broad timeframe (from ASAP to one year out)–and potentially, any shorter deadline set by the agency could be argued and found contrary to the FAR–many agency’s still set their own “deadlines” for the settlement proposal. In such cases, unless you are ready and willing to litigate, it is often best to just meet such deadlines. And if you simply cannot do so, asking the contracting officer for an extension of the deadline–in writing–is often your best bet. So, now we know contractors must submit settlement proposals on time; the next logical question is “what costs can/should I include?” All these termination for convenience FAR clauses similarly insist that the terminated contractors’ settlements should fairly compensate them for work already done–and for any preparations made for the terminated work, with a “reasonable allowance for profit” factored in. See FAR 49.201(a) for an example of this language. But there are some limitations and boundaries on such compensation too. Indeed, the amount the contractor receives cannot be more than the contract price, minus whatever they’ve already been paid and the price of any work not terminated. But as you may already be thinking, this still leaves a lot of room to negotiate a fairly wide range of costs on many contracts. As such, it can be a generally wise idea to list every such allowable cost the terminated contractor can demonstrate–even with the understanding that the contracting officer will not approve all such costs (and is really most likely to meet in the middle somewhere). And fortunately, the FAR requires the contracting officer to “show its work” in detail when coming to such determinations–ensuring the contractor knows exactly how the decision was made and the compensation was calculated–so it can make an informed decision on whether or not to appeal any such determination. If the contracting officer fails to do this, that alone can be a strong push toward the appeal avenue, given the basic legal duty was not met. Indeed, by law, contractors have the right to appeal such contracting officer determinations if they do not feel they were fairly compensated in accordance with their governing FAR clause–provided they submitted their settlement proposal on time–as you can see from FAR 52.249-2(j) and similar clauses. To bring it full circle here, this is yet another reason it is crucial to timely submit the original settlement proposal to the contracting officer. Indeed, along with losing your right to appeal, failure to submit a settlement proposal on time actually gives the contracting officer the right to unilaterally determine a fair amount to pay you, instead. And it’s probably safe to assume you’ll be walking away with less than what you would have bargained for–sometimes, simply because the contracting officer is not even aware of all allowable costs incurred. Finally, it is not uncommon for contracting officers to also ask contractors what steps they took to mitigate their costs incurred upon being notified they were terminated for convenience. This comes from language in FAR 52.212-4(l), and related clauses, which you read above, to the extent of: “[t]he Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.” This is an important piece of the puzzle to keep in mind, as being able to demonstrate with documentation that you indeed took action to mitigate such costs (i.e., tried to rent/sell things that were no longer needed, get out of a lease, etc.) can help support full compensation of the the costs you did incur. So, if you find yourself terminated for convenience, make sure to get those settlement proposals in on time to give your company the best chance to maximize recovery of allowable costs. As long as you do so: your contracting officer must examine your settlement proposal and work with you to negotiate terms; and you retain the right to appeal the contracting officer’s decision if you don’t like it. Notably, there are even some much-less-well-known alternate dispute resolution provisions of the FAR that can be invoked (instead of initiating a full-blown appeal) if you cannot come to an agreement with your contracting officer on things like costs and compensation. Nonetheless, the FAR does say, “[w]hen possible, the TCO should negotiate a fair and prompt settlement with the contractor[,] and “[t]he TCO shall settle a settlement proposal by determination only when it cannot be settled by agreement.” And many times, agreement is reached without issue. Terminations for Default or for Cause Ok, yes, this is the scarier one. Does it mean you lost your contract, your right to certain payments, and maybe even your ability to get future government work? Well, possibly. But on a positive note, the FAR and applicable legal precedent do set the bar pretty darn high for a termination for default or termination for cause (they are essentially the same thing for different types of contracts). Indeed, the Civilian Board of Contract Appeals has repeatedly called it “a drastic sanction which should be imposed (or sustained) only for goof grounds on solid evidence.” And FAR 52.212-4(m), and related clauses similarly, state: Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience. So, basically, if you don’t hold up your end of the deal, the government will terminate your contract, negating your right to certain payment, and you will likely have a hard time getting future federal government work too. Again using the FAR clause for termination for default of a fixed price supply and service contract at FAR 52.249-8(f) (and again, there are other, similar clauses for other contract types), the government will still pay the contract price for completed supplies delivered and accepted. But unlike a termination for convenience, there’s no negotiation for future profits or work planned. And importantly, these FAR clauses do include procedures that the agency must follow in order to termination for cause or default, such as the requirement to issue a cure notice or notice of default to the contractor first and allow time to fix the issue. But even then, you only have ten days from the time you receive notice of default to fix the problem or you’re pretty much out of luck, in accordance with FAR 52.249-8(a)(2) and similar related clauses. That said–based on the high bar set by the FAR, the Boards of Contract Appeals, and the courts–there is still recourse available if you can show that the default wasn’t your fault or the high bar was simply not met. Indeed, if any failure to perform is caused by circumstances beyond the contractor’s control (think floods, pandemics, or a Red Dawn situation), such contractor is not liable for excess costs the government incurs in trying to complete the contract and for tracking down all of the supplies and materials that entails. And if you can prove you actually weren’t in default after the contract is terminated, the default was excusable, or the agency’s default termination simply doesn’t meet the required standards of the law, then (as it says in the FAR) your rights and obligations will be the same as if it had been terminated for convenience. And luckily, this means you’ll probably get more money and your reputation will remain intact. Additionally, under the FAR, a notice of a termination for default–alone–gives the terminated contractor the right to immediately appeal to the Board of Contract Appeals or the Court of Federal Claims, as it is considered the final decision of the contracting officer. And in most cases, such appeal is highly recommended if there are any appeal grounds present–as again, a default termination can be a really big deal and major hurdle for contractors seeking future government contracts. —————————————————————————————————————— In summary, knowing your rights is key if your company faces either type of termination. You’ll want to know what kind of termination clause your contract has, what steps the contracting officer has taken to that point, and what kind of termination you’ve been served with in order to mitigate risk and loss and to protect your company. Termination (of any kind) isn’t fun when you’re in the middle of working on a contract. But if you understand what’s happening, what is required, what your rights are, and how to respond to it, you can maximize how much you walk away with and make sure you’re still standing when the next opportunity comes around. Need help dealing with a federal contract termination? Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919. The post Back to Basics: Terminations first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Are you a disadvantaged small business owner looking for a leg-up in the federal marketplace? Well, this is your chance! Puerto Rico APEX Accelerators are hosting a FREE webinar to help you understand how the SBA 8(a) Business Development Program can open the door to exclusive contracting opportunities. And in very exciting news, this will actually be our firm’s first ever bilingual webinar! Indeed, our very own Nicole Pottroff will put her years of Spanish education to the test in an effort to maximize accessibility to this valuable information about federal government contracting. Webinar will be presented in English with Q&A to follow in Spanish. What You’ll Learn: How the SBA 8(a) program works and why it matters Key benefits like sole-source contracts and federal mentorship Eligibility requirements and how to apply Common mistakes that can delay or deny certification Live Q&A (*in Spanish) with a top expert in federal contracts law attorney, Nicole Pottroff Tips for starting your application Who Should Attend? Small business owners aiming to grow through federal contracting Government contracting consultants Entrepreneurs seeking new growth avenues Spots are limited – register now to reserve your place! Register here. The post [1st Ever Bilingual] Webinar Announcement: The SBA 8(a) Program, June 26, 2025, 12:30 PM – 2:30 PM CDT first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Another work week in the books. Hope you had a great one. Happy Father’s Day to all the dads out there and hope they have a relaxing weekend! This week in federal government contracting included stories about DoD fraud, DOGE cost-savings, and GSA centralizing additional work. USDA ended contract for food assistance ‘clearinghouse’ required by law, lawsuit claims Trump’s pick for VA watchdog role promises independence, impartiality VA employees raise concerns over short-staffing, looming cuts at rally DoD fraud detection efforts at ‘starting line,’ watchdog says Two more centralization, cost savings initiatives from GSA GSA Announces Transactional Data Reporting Expansion for Increased Procurement Transparency SBA sticks to DOGE cost-savings claims, though details — and math — remain fuzzy Hearing Wrap Up: Government Procurement Process Must Modernize to Boost Defense Innovation Veterans Affairs Contractor Agrees to Pay $4.3 Million to Resolve Claims of Overbilling for Products Hunger Free America files lawsuit after cancellation of USDA contract Timmons Opens Hearing on Accelerating Defense Innovation The post SmallGovCon Week in Review: June 9-13, 2025 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Touted as a “game-changer” when it was first introduced in 2016, the U.S. Small Business Administration’s All Small Mentor-Protégé Program isn’t new anymore. Known now as simply the “SBA Mentor-Protégé Program,” it is still extremely useful for large and small contractors alike. Government contracts attorneys John Holtz and Stephanie Ellis of Koprince McCall Pottroff LLC will explain the ins and outs of the SBA Mentor-Protégé Program, covering the program’s eligibility requirements, its potential benefits (including the ability to form special mentor-protégé joint ventures), the application process, and common misconceptions and pitfalls. Additionally,they will provide an introduction to the even older DoD Mentor-Protégé Program, which set the stage for the SBA’s program, and compare the two programs. Register here. The post Webinar! SBA & DoD Mentor-Protégé Program, June 24, 2025, 10:00-11:30am MDT, hosted by Texas El Paso APEX Accelerators first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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A couple FAR notices have removed proposed SBA rules relating to orders on multiple award contracts. This withdrawal seems to have the affect of decreasing the overall application of the small business Rule of Two, as discussed here. However, it only impacts the application of the rule of two to orders under multiple award contracts that were not restricted to small businesses. So, it’s impact is relatively narrow. Protests of Orders Under Certain Multiple-Award Contracts In this notice, the government is withdrawing a proposed rule dealing with Protests of Orders Under Certain Multiple-Award Contracts. That proposed rule stated: “DoD, GSA, and NASA agree with, and adopts, GAO’s conclusion that ‘the statutory grant of discretion does not require application of the Rule of Two prior to issuing an order, unless the multiple-award contract or task order solicitation expressly anticipated the use of the Rule of Two.’” ITility, LLC, B-419167 (Dec. 23, 2020), 2020 CPD ¶ 412. That proposed rule would have included the following language in FAR 16.505: (iv) In accordance with 15 U.S.C. 644(r), a contracting officer’s decision to set aside or not set aside an order, for small business concerns, is an exercise of discretion granted to agencies and not a basis for protest. However, this does not preclude the filing of a protest of such an order if such a protest would otherwise be authorized on a separate basis recognized in accordance with paragraph (a)(10)(i) of this section. The proposed rule was “expected to deter contractors from submitting protests of decisions to set aside or not set aside orders placed against multiple-award contracts, thereby saving contractors and the Government time and resources.” Interestingly, this rule was designed to reduce protests, but it has now been rescinded. Small Business Participation on Certain Multiple-Award Contracts The proposed rule from January 2025 was designed to “expand the use of small business set-asides for orders against multiple-award contracts.” The “proposed rule would require contracting officers to exercise their discretion to set aside an order for small business if the contracting officer determines that, under an applicable multiple-award contract, there is a reasonable expectation of obtaining offers from two or more responsible small business contract awardees that are competitive in terms of fair market price, quality, capability, ability to comply with the delivery or performance schedule, and past performance.” It would have allowed for exceptions for GSA schedules and for “agencies to establish procedures for contracting officers to exercise agency-specific exceptions.” Withdrawal In withdrawing both rules, the FAR Council said: “E.O. 14148, Initial Rescission of Harmful Executive Orders and Actions, repealed E.O. 14091 on January 20, 2025. As a result, the FAR Council is withdrawing the proposed rules. The FAR Council will focus on reducing the regulatory burden for all small businesses with the goal of increasing small business participation in Federal procurement.” The corresponding SBA proposed rule has not yet been withdrawn, but that is likely to occur. That “proposed rule would clarify the applicability of the Rule of Two to multiple-award contracts by directing that an agency set aside an order under a multiple-award contract for small business contract holders when the contracting officer determines there is a reasonable expectation of obtaining offers from two or more small business contract holders under the multiple-award contract that are competitive in terms of market prices, quality, and delivery.” So, the proposed rule would have required setting aside of certain orders under the Small Business Rule of Two. But now that has been rescinded. While the FAR Council still has the goal of “increasing small business participation,” that will not be done through applying the rule of two to orders. This withdrawal does not impact the basic rule of two regulation, found at FAR 19.502-2. Stay tuned to SmallGovCon to see if that rule may be affected by future changes to the FAR. Questions about this post? Email us Need legal assistance for a federal government contracting matter, give us a 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 FAR Council Removes Rule on Small Business Orders first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Imagine you’ve submitted a bid for a procurement that you believe your company is a shoo-in for. Nobody comes close to the experience and skills your company brings to the table. A while later, you learn that the new company down the street was awarded the contract. There clearly must be a mistake. The awardee doesn’t have half the experience your company has in this industry. Feeling wronged, you decide to file a bid protest questioning the award at the Government Accountability Office (GAO). Your lawyer informs you that a bid protest may be dismissed if the protester doesn’t qualify as an interested party. But you were an actual bidder who should have been awarded the contract. Of course you’re an interested party—right? It’s common to assume an unsuccessful offeror automatically qualifies as an interested party. However, not just any unsuccessful offeror is an interested party in the eyes of GAO. An “interested party” is “an actual or prospective offeror whose direct economic interests would be affected by the award of a contract or the failure to award a contract.” 4 C.F.R. § 21.0(a)(1). For a protest challenging the terms of a solicitation, GAO has stated, “an interested party is generally a potential bidder for the contract.” This is a pretty easy standard to meet. Alternatively, when challenging a contract award, “an interested party is generally an actual bidder that did not win the contract.” Other important factors could include the bidder’s standing in the competition, or the nature of the issues being raised. For the basics, we’ll focus on an interested party in a solicitation-terms protest versus a post-award protest. Protest of Solicitation Terms A solicitation-terms protest is also called a pre-award protest. To challenge solicitation terms, a prospective bidder is an interested party if the bidder has expressed interest in competing and has a direct economic interest. Typically, the prospective or actual bidder must be eligible for award. The most common reason for filing a pre-award protest is to challenge the solicitation’s terms. (learn more here Why File: A GAO Pre-Award Protest). When filing a GAO bid protest, “a protester is not an interested party to challenge the terms of a solicitation, even if the protest is sustained, if it is clear that the protester will be ineligible for award under the remaining terms of the solicitation.” DGCI Corp., B-418494 (Comp. Gen. Apr. 27, 2020). The protester must be eligible to compete for the award. This doesn’t mean the protester must be eligible on the terms they are protesting. Rather, the protester must be eligible under the remaining solicitation terms. Scenario One: ABC Company is bidding on a procurement. The solicitation calls for a specific license that is not normally required under this type of contract. ABC Company does not have the specific license required in the solicitation but is eligible under all the other requirements. Believing the licensing terms are overly restrictive and outside of industry norms, ABC Company files a pre-award protest. Here, the terms being protested are the reason ABC Company is not eligible for award. If ABC Company is successful and the licensing is no longer required, then ABC Company is eligible for award under the remaining terms. Scenario Two: Alternatively, the same ABC Company files a pre-award protest on different grounds, failing to include in its argument that the licensing terms are restrictive. GAO will likely find that ABC Company is not an interested party because even if the protest is sustained, ABC Company does not have the required license to be eligible for award. A Post-Award Protest There’s the saying that “If you’re not first, you’re last.” But when filing a post-award protest, your place in line matters. For a post-award protest, an interested party is an actual bidder or offeror with a direct economic interest. This is typically a bidder that was not awarded the contract or was eliminated from the competition. GAO has “generally found that a protester is an interested party to challenge an agency’s evaluation of proposals only where there is a reasonable possibility that the protester would be next in line for award if its protest were sustained.” Even if the protester was an unsuccessful offeror under a specific procurement, GAO will not view the unsuccessful offeror as an interested party unless there is a reasonable chance the protester will be the awardee if the protest is sustained. When there are higher-ranked intervening offerors, the protester will have to attempt to demonstrate to GAO that they qualify as an interested party. Scenario: ABC Company was the unsuccessful offeror of a procurement and believes the agency deviated from the stated evaluation criteria when making the award. If ABC Company was the “next-in-line” for award, then ABC Company is likely an interested party. ABC Company has a direct economic interest if the protest is sustained because there is a reasonably chance that ABC Company will receive the award. If ABC Company was a high-priced bidder that was not next-in-line for award, ABC Company must demonstrate that all the lower-priced bidders are ineligible for award for ABC Company to qualify as an interested party. Or it must demonstrate that the overall evaluation criteria, if applied correctly, could have resulted in award. For instance, if it was a lowest-price technically acceptable procurement, then a protester likely has to show that its price evaluation was incorrect, and correcting the price evaluation would have vaulted the protester to the first place in line in terms of pricing. Another factor GAO will consider is the remedy the protester is seeking. For example, if an actual bidder files a protest on the grounds that the agency improperly removed the bidder from competition, GAO may find the bidder is an interested party if the bidder would have the opportunity to compete again were the protest sustained. Note that interested party status is often determined at the front end of a protest. So, the initial protest must contain information or allegations sufficient to demonstrate that the protester is an interested party. Knowing who qualifies as an interested party in a GAO bid protest is an important consideration to keep in mind when deciding whether filing a bid protest is for you. 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 here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Back to Basics: Interested Parties first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Agencies get a lot of discretion when it comes to evaluating proposals. We’ve explored several different cases where GAO affirmed this principle. However, this principle is not absolute. Contrary to what some might think, there are limits on an agency’s discretion when it comes to how it evaluates proposals. Recently, the Air Force was reminded of this fact in a GAO protest concerning a price evaluation. We explore that decision here. On March 24, 2024, the Air Force issued a solicitation for a task order for communications support services for the Combined Air and Space Center Operations Center for the U.S. Air Forces Central Command. As part of these services, professional roles would need to be provided by the awardee. As such, the solicitation included FAR 52.222-46. When included in a solicitation, this FAR clause provides that offerors must submit a compensation plan for professional employees that will work under the contract. The government, in turn, must evaluate the plan on whether it shows a proper understanding of the contract’s requirements. This includes considering impact on recruiting and retention, the realism of the plan, and its consistency with the overall compensation plan for the offering. We explored this clause in a similar GAO decision back in November 2024. The solicitation also included DFARS 252.204-7024. This clause similarly says that the agency will consider, price risk, that is whether “a proposed price is consistent with historical prices paid for a product or a service or otherwise creates a risk to the Government.” It also says the agency will assess supplier risk, that is “the probability that an award may subject the procurement to the risk of unsuccessful performance or to supply chain risk.” In its evaluation, the Air Force gave SMS Data Products Group (SMS) an outstanding rating for its proposal. However, it went with Trace Systems (Trace) for award as Trace’s proposed price was about $120 million, whereas SMS’ was nearly $200 million and Trace also received an outstanding rating. SMS also ranked behind another company, MicroTechnologies (MicroTech), who received an outstanding rating and had a price of about $150 million. SMS filed a protest arguing that the Air Force unreasonably evaluated Trace and MicroTech’s professional employee compensation plans, failed to conduct the analysis required under DFARS 252.204-7024, unreasonably evaluated technical proposals, and failed to evaluate the risk posed by Trace’s low price. GAO denied the protest with regards to the last two arguments but sustained the first two arguments. Looking at FAR 52.222-46, GAO observed that it requires a two-pronged evaluation. The first prong is a price realism evaluation, and the second considers whether the proposed compensation is below those of predecessor contractors to see how it will impact program continuity. The Air Force, for its part, took the offerors’ proposed labor rates and compared them to an eight percent discount from the incumbent’s labor rates. If the rate was above this eight percent benchmark, the Air Force concluded it was realistic. If it was below this benchmark, there was a price realism concern. However, GAO noted that the Air Force never explained why it chose this eight percent benchmark. GAO puts it best: The record, however, contains no explanation, discussion, or support for the Air Force’s application of the eight percent baseline. In other words, the agency has offered no rationale for why it believed a firm could maintain program continuity, uninterrupted high-quality work, and availability of required competent professional employees while paying them up to eight percent less than what the incumbent employees are currently being paid. In fact, there is no representation or record to support a conclusion that the agency in fact considered the elements of the FAR provision 52.222-46(b) analysis when it decided to use the eight percent baseline. We therefore sustain the challenge to the agency’s evaluation of the direct labor rate component of Trace’s proposed professional employee compensation plan. Turning then to DFARS 252.205-7024, GAO noted that the record show that the contracting officer ran a supplier risk report on Trace, but failed to evaluate the price risk. While the Air Force tried to rest on its price evaluation as taking care of the price risk analysis, GAO observed that it found that price evaluation unreasonable, as discussed above. As such, the Air Force also failed to conduct the proper price risk analysis under DFARS 252.205-7024. Summary FAR 52.222-46 seems to be tripping a good number of contracting officers up. In addition to this case and the one we explored back in November 2024, there are a number of other, recent cases where GAO sustained protests because the agency failed to follow FAR 52.222-46: Mantech Advanced Sys. Int’l, Inc., B-419657 (June 17, 2021); Guidehouse LLP; Jacobs Tech., Inc., B-420860.1 (Oct. 13, 2022); and The Bionetics Corp., B-419727 (July 13, 2021) among others. This is something contractors should be on the lookout for if professional services are part of a procurement. DFARS 252.205-7024 also is something that can easily trip agencies up. These provisions show the limits of agency discretion, and the keen-eyed contractor should be able to hold agencies accountable for these procurements that fail to account for these procedures. Need legal assistance with a government contracting matter? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post FAR 52.222-46 Again? GAO Sustains Protest that Agency Price Evaluation was Unreasonable first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Happy Friday! Hope you are ready for a great weekend! Lot’s going on the federal government contracting world this week. This included updates on the FAR overhaul, as well as budget cuts at SBA that could leave SCORE and other programs in trouble if budget cuts go through. Native American programs protected from Trump’s anti-DEI order, agencies say Trump budget proposes nearly $1B in cuts to tribal programs HUBZone Program Updates and Clarifications, and Clarifications to Other Small Business Programs; Correction SCORE facing tough road ahead if SBA’s budget is cut VA plans to cut 1,000 IT positions, undoing Biden-era hiring surge The latest product from the FAR overhaul is posted, to positive reviews Part 1: Setting the Stage: Understanding the Vision Behind the FAR Overhaul The table stakes for government contracting are increasing, and so is uncertainty Contractors win more by knowing: The 3 deciders on the other side of GovCon Bill to overhaul federal software buying gets another shot in the Senate The post SmallGovCon Week in Review: June 3-6, 2025 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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As frequent SmallGovCon readers know, the Small Business Administration’s ostensible subcontractor rule can be tricky to navigate. The rule requires contractors not to rely too heavily on a subcontractor in the performance of a contract set aside under an SBA socioeconomic program, but what constitutes relying too heavily can be confusing for small business contractors. Without a clear measure of how reliant is too reliant, businesses have to worry that they may be denied an award or even worse, lose one in a post-award protest. In a recent decision, Daniels Building Company, Inc. v. United States, 24-1787, 175 Fed. Cl. 767 (2025), the Court of Federal Claims (COFC) provided potentially helpful insight into what SBA’s Office of Hearings and Appeals (OHA) and the Court of Federal Claims will consider when determining whether a prime contractor is “unusually reliant” on its subcontractor. The Ostensible Subcontractor Rule Simply put, this rule requires that any small business awarded a set-aside contract has to be the party actually performing the primary and vital work under the contract and is not overly reliant on a non-similarly situated contractor. 13 C.F.R. § 121.103(h)(3). Read more about the rule here. SBA has another rule establishing limitations on subcontracting which limits what percentage of work can be paid to a non-similar subcontractor. 13 C.F.R. § 125.6. This blog post has some further insight into that particular rule. The overlap between these two rules forms the basis of the ostensible subcontractor rule. A recent change to the rule, effective May 30, 2023, stated that SBA will not find that the primary and vital requirements are being performed by the subcontractor, or that the prime contractor is unusually reliant on the subcontractor, if the prime contractor can “demonstrate that it, together with any subcontractors that qualify as small businesses, will meet the limitations on subcontracting” found in 13 C.F.R. § 125.6. 13 C.F.R. § 121.103. However, for general construction contracts, the SBA has added to the regulation that “the primary and vital requirements of the contract are the management, supervision and oversight of the project, including coordinating the work of various subcontractors, not the actual construction work performed.” 13 C.F.R. § 121.103(h)(3)(iv). So, the limitations on subcontracting exception does not apply to general construction contracts, like the one at play in this decision. The rule essentially functions to make sure that set-aside government funds are actually going to the businesses they are set aside for, rather than larger entities that might use the small business as a pass through. While it’s true that subcontractors are essential to the prime’s ability to perform a contract, SBA is wary of a small business contractor being “unduly reliant” on a subcontractor that is not similarly situated (i.e., any business that is not another small business with the same program status, defined in 13 C.F.R. § 125.1). SBA acknowledges the need for contractors to benefit from the experience and past performance of subcontractors—in fact, this is even encouraged by the SBA’s mentor-protégé program (the details of which are governed by 13 C.F.R. § 125.9, and which SmallGovCon readers can find more about here). Nonetheless, if the subcontractor performs “primary and vital requirements” of the contract or the prime is “unusually reliant” on the subcontractor, SBA will treat the prime and subcontractor as affiliated for the purpose of size determination—meaning the prime contractor will be ineligible for the award. The question remains, how does SBA determine what is “unusually reliant?” The Daniels case provides some insight. If it Looks Like a Duck, and Quacks Like a Duck…How to Determine Primary and Vital Work In the Daniels case, the court reviewed an OHA decision finding that an awardee was not unusually reliant on its subcontractor. The prime contractor, Veterans Electrical Group (or VEG) qualified as an SDVOSB and was awarded a contract from the VA. To perform the contract, VEG executed a teaming agreement with Roncelli, Inc., a general contractor, and structured the teaming agreement so that the prime would be compliant with SBA regulations and maintain VEG’s eligibility for the award. Daniels, a disappointed bidder for the award, challenged VEG’s status, arguing they were unduly reliant on Roncelli and thus should be treated as affiliated, thereby rendering them ineligible for the award. The Area Office granted Daniels’ protest, but it was overturned on appeal to OHA. “OHA determined that VEG would be responsible for the overall management of the contract’s performance,” as well as job site oversite and contract performance, and this met the primary and vital requirements for a general construction contract. The COFC applied a four-factor test to determine whether OHA arrived at the correct decision regarding unusual reliance. For unusual reliance, SBA case law provides a four-factor test to demonstrate unusual reliance on a subcontractor: (1) “the proposed subcontractor is the incumbent contractor and is ineligible to compete for the procurement;” (2) “the prime contractor plans to hire the large majority of its workforce from the subcontractor;” (3) “the prime contractor’s proposed management previously served with the subcontractor on the incumbent contract;” and (4) “the prime contractor lacks relevant experience and must rely upon its more experienced subcontractor to win the contract.” “In determining whether affiliation exists, SBA will consider the totality of the circumstances, and may find affiliation even though no single factor is sufficient to constitute affiliation.” 13 C.F.R. § 121.103(a)(5). OHA’s consideration of these four factors, combined with other indicia of unusual reliance, “is consistent with 13 C.F.R. §§ 121.103(a)(5) and (h)(4)” which requires consideration of all aspects of the relationship. The court clarified that a subcontractor’s assistance to a prime contractor in obtaining a bid “does not demonstrate unusual reliance in and of itself but may be an indicator.” Id. The decision analyzed the VEG/Roncelli relationship through the lens of their teaming agreement, as well as their communications following receipt of the award, and applied the four factors to determine VEG was not unduly reliant on Roncelli. The Court pointed out that VEG was not planning to hire its workforce or management from Roncelli, and that Roncelli was not the incumbent contractor. There was no evidence that VEG relied on Roncelli’s experience to win the contract, and in fact Roncelli was not even mentioned in VEG’s bid. Bottom Line In the general construction context, ostensible subcontractor analysis is still based on all factors, not just work percentage. OHA is primarily concerned with suspicious dependence on a subcontractor by a small business awardee. They will look closely for continuity between the prior contractor and the new prime contractor—if it looks like the last contractor has graduated out of the program and is using a new SDVOSB (or similar SBA program participant) to continue receiving that sweet government set aside cash, OHA will hold the new prime contractor ineligible. But if the new prime uses their own employees and management, or the subcontractor is not the incumbent (or is eligible themselves to compete for the award), OHA will not apply the ostensible subcontractor rule. The line between reasonable assistance from a subcontractor and inappropriate reliance can seem hazy, but it really boils down to who is getting the work done and whether government funds are going to the people they were intended to go to. Editor’s Note: Special thanks to our wonderful legal clerk Will Orlowski for putting together this blog post. 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 COFC: Ostensible Subcontractor Rule for General Construction Still Looks at all Circumstances first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Happy Friday! The sun is shining here in the Midwest and after several days of rain, June is upon us. Time to get the lawn mower started this weekend. We hope you have some fun plans for the summer, other than mowing the lawn, with friends and family. This week in federal government news, catch up on a potential small business rule of two statute, additional contract-cutting, and GSA becoming a central contracting power player. Protecting Small Business Competitions Act of 2025 Trump’s contract-cutting blitz rattles a once-flourishing DC industry Trump administration moves to cut $100 million in federal contracts for Harvard GSA has been given more of the government’s contracting authority OPM tries again to modernize HR systems with new RFP Bluster or brilliance: Browsing the FAR 2.0 rewrite DOGE receipts for SBA fall billions short of administrator’s cost-savings claim District judge further enjoins Trump’s reductions in force at federal agencies Homeland Security cuts off access to ChatGPT and other commercial AI Trump team looks to end $37B program designed to help minority business saying it violates the Constitution Justice Department Establishes Civil Rights Fraud Initiative DoD ends ‘what you did last week’ email, asks civilians for ideas to cut waste GAO raises concerns about behavioral health services for veterans from community providers The post SmallGovCon Week in Review: May 26-30, 2025 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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The United States Court of Federal Claims (COFC) produced another decision focused on SAM registration and related FAR updates. We previously discussed the changes to the FAR no longer requiring constant SAM registration to be awarded a contract. We have also blogged on a recent COFC decision regarding solicitation amendments based on the new FAR rule. But, what happens if the old FAR rule, such as one regarding SAM registration, is still in a solicitation and the agency does not amend the solicitation? In Analysis, Studies, and Training International, LLC (ASTI) (April 14, 2025), the COFC builds off of the recent Zolon decision we wrote about regarding SAM registration FAR updates. The procurement was a WOSB set aside to train United States Air Force drone pilots. The solicitation was created before the recent updates to the FAR regarding SAM registration, and thus, had the old version of FAR 52.204-7 incorporated as a solicitation requirement. As you may know, the old version of FAR 52.204-7(b)(1) stated that offerors were “required to be registered in SAM when submitting an offer or quotation, and shall continue to be registered until time of award.” In comparison, the FAR 52.204-7(b)(1) version currently in effect in 2025 states: “An Offeror is required to be registered in SAM when submitting an offer or quotation and at time of award.” The new FAR simply focuses on the SAM registration being current as of the time of offer, and at time of award, rather than the previous requirement of continuous SAM registration. Under the current regulation, an offeror could accidentally have a very short SAM registration lapse between offer and award, and so long as the SAM is current again at time of award, the offeror should not lose its award. Unfortunately for ASTI, the solicitation did not have the new FAR regulation incorporated. The Solicitation in this ASTI case required submission of printouts of SAM registration, which would show WOSB status. The Solicitation also included the previous FAR 52.204-7 version that required continuous SAM registration to receive award. ASTI had what it framed as a mechanical error that didn’t show WOSB status, and SOFIS (another protester) had a short lapse in SAM registration. Due to these issues, both ASTI and SOFIS were not selected for award. Both offerors protested, generally basing their arguments on interpretation of the Solicitation’s SAM registration terms. In regards to ASTI, COFC found that the failure to mark WOSB on SAM registration was a material error. This of course is a good reminder to always check that all your representations and certifications are accurate. However, the ruling regarding SOFIS has a broader take away for contractors. SOFIS argued that it had submitted revised proposals that fixed the lapse in SAM registration and that the new FAR 52.204-7 retroactively applies, negating any issues in SAM registration lapses. In its ruling, the COFC clarified that at the time of the SAM registration lapse, the FAR mandated continuous SAM registration, and a revised submission didn’t change that requirement. In fact, the COFC cites to Zolon, stating that the old FAR 52.204-7’s registration clock is not “triggered” by the latest offer submitted, but rather, simply when “an offer” is submitted. Thus, the continuous SAM registration requirement was triggered by SOFIS’ initial offer, and was unaffected by subsequent revisions. Additionally, the COFC clarified that “[g]enerally, FAR amendments are not retroactive” unless the FAR explicitly states such. Therefore, changes to FAR 52.204-7 only apply to solicitations issued on or after its effect date in November 2024. Consequently, SOFIS could not take refuge in the new FAR language and had to maintain continuous SAM registration. Since SOFIS had a lapse in SAM registration, COFC found in favor of the agency. While, on the surface, contractors could look at this decision and simply think it was about SAM registration, but that would be missing the bigger picture. This case is a reminder to all contractors to keep an eye on FAR updates, and what FAR provisions are incorporated into a solicitation and at what time. Here, during an evaluation and ongoing protests related to a solicitation, the FAR was updated to directly negate or address the issue at the center of the case. However, since the Solicitation did not make an amendment to change the FAR provision, and the FAR update does not directly state that it is retroactive, it means that the FAR update does not retroactively apply. With large changes to the FAR planned under the so-called “FAR 2.0” this is a lesson for contractors to keep in mind for future procurements. The FAR may change, but if the procurement already had offers submitted, such changes may not have effect unless there is explicit language to the contrary. Of course, contractors should also make sure their SAM registration continues to be up to date and current to avoid issues felt by SOFIS and ASTI. If you find yourself questioning contract terms or FAR provisions, make sure to reach out to a federal contracting lawyer such as ourselves to help. 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 Be Careful, FAR Updates Generally Not Retroactive, Says COFC first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Ah, the Federal Acquisition Regulations, or FAR. Quite numerous and complex, yes, but they provide a standardized set of rules and procedures that govern federal government procurements. Regardless of what contract you’re dealing with (other than a few exceptions such as the FAA, which is not subject to the FAR), you can be sure that the rules of the FAR govern it. Unfortunately, that last statement is not true. Since 1989, the Department of Defense (and as time has passed, more and more other agencies) has held an interesting form of contracting authority. One that is not subject to the FAR or other such federal regulations. This unusual authority is referred to quite simply as “Other Transaction Authority” (OTA), and any government contractor that encounters it needs to understand that OTA procurements are a whole different beast from regular federal procurements. Background As noted above, OTA isn’t necessarily new, it has been around for over 30 years. But its usage has increased greatly since then, particularly in recent years. Initially limited to use by the DoD, it is now used by agencies such as the Department of Energy, the Department of Health and Human Services, the Department of Homeland Security, NASA, the FAA, and even the Department of Transportation. OTA is primarily used by these agencies for research work, although the DoD, NASA, and the Department of Homeland Security use it for prototype development as well. For this post, we’re going to focus on the DoD’s use of OTA as they use it the most and have the most expansive authority to use it. DoD’s authority here specifically comes from 10 U.S.C. § 4002 and 4003. These statutes note that the DoD and military may use OTA for research projects and for “prototype projects that are directly relevant to enhancing the mission effectiveness of military personnel” (in other words, weapons). So? Federal law treats DoD research projects and prototype development as distinct from federal procurements that most government contractors are used to. In fact, they are not even considered “procurements” by the COFC, as SpaceX learned the hard way in 2019 in Space Exploration Technologies, Corp. v. United States, 144 Fed. Cl. 433 (Aug. 26, 2019). In one case, GAO explained: “GAO’s audit reports to the Congress have repeatedly reported that ‘other transactions’ are ‘other than contracts, grants, or cooperative agreements that generally are not subject to federal laws and regulations applicable to procurement contracts.’” MorphoTrust USA, LLC, B-412711 (Comp. Gen. May 16, 2016). This is expressly stated in 32 C.F.R. § 3.2, in fact. Wait, wait, wait…”generally are not subject to federal laws and regulations?” Yes, you read that correctly. OTA-based agreements are not subject to the FAR, in addition to many other federal rules that don’t apply. Additionally, this lack of status as a “contract” means that OTA transactions are not subject to Court of Federal Claims or GAO jurisdiction, except where it would impact the award of a contract that is subject to such jurisdiction. See Space Exploration Technologies, Corp. Additionally, offerors can challenge the use of OTA where such authority is improper if the protest is made before bids are submitted. Blade Strategies, LLC, B-416752 (Comp. Gen. Sept. 24, 2018). Limitations on Use Well, this is certainly concerning for research contractors that work with the DoD. (Although if you are on the receiving end of an OTA award, you may appreciate that the award is difficult to protest.) If agencies can use OTA for such work and OTA isn’t governed by most federal law or hearable in the COFC or GAO, what’s to stop DoD from using it indiscriminately to get around the rules? If you perform research work for the DoD or military, it would appear the answer is “nothing.” 10 U.S.C. § 4002, which authorizes the use of OTA for research projects, does not appear to contain any limitations on the use of that authority, besides that it must only be used for research projects and that OTA cannot be used if similar research is being conducted under existing DoD programs. For those who develop actual weapons systems and such for the DoD, fortunately, there are some substantial limitations on the use of OTA. OTA for prototype work is authorized by 10 U.S.C. 4003. This statute notes that OTA can only be used for such prototypes if one of the following conditions exists: At least one nontraditional defense contractor or nonprofit research institution is participating significantly in the project. Here, nontraditional defense contractor means “an entity that is not currently performing and has not performed, for at least the one-year period preceding the solicitation sources by the Department of Defense for the procurement or transaction, any contract or subcontract for the Department of Defense that is subject to the full coverage under the cost accounting standards prescribed pursuant to Section 1502 of title 41 and the regulations implementing such section,”All significant participants in the transaction are small businesses or nontraditional defense contractors,At least one third of the total cost of the project is being provided by sources outside the federal government, orThe senior procurement executive for the agency finds exceptional circumstances justify the use. Furthermore, OTA may only be used for projects that, combined with any follow-on production contract, is at least $100 million in expected cost. As you may have noticed, these sorts of arrangements allow for award of follow-on production contracts, which do not have to utilize competitive procedures if competitive procedures were used for the prototype award and the awardee successfully completed the project. In any event, at least with prototype projects, OTA authority is somewhat limited. That said, the last potential condition “exceptional circumstances” is obviously quite vague. Concerns In recent years, the use of OTA has expanded greatly. The Center for Strategic & International Studies noted in 2020 that the Army’s use of OTA has increased by 416 percent since 2016. As the Center observes: “The evidence suggests that there is a paradigm shift ongoing in DoD as OTAs have become a core element in DoD’s approach to technology acquisition over the last five years. This is clearly seen in the mid-to-late stages of the development pipeline for major weapon systems where OTAs are increasingly replacing contracts. Between FY 2015 and FY 2019, OTAs rose from just 3 percent of DoD’s total R&D portfolio to 18 percent of DoD’s R&D portfolio.” While the need for flexibility with these sorts of projects is understandable, we, as well as other observers, are concerned with the increased use of OTA. Indeed, DoD internal oversight has noticed that contracting personnel utilizing OTAs have often not properly tracked awards through such a system or consistently awarded using OTA in accordance with applicable laws. The fact that DoD has made such observations gives us hope, however, that the government is recognizing that the balance between flexibility and oversight may have shifted a bit too much towards flexibility, and needed oversight may be coming soon. Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Other Transaction Authority? What Other Transaction Authority? – A Look at OTA first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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When an agency restricts a solicitation to a single brand-name, the agency must appropriately justify its decision, even where the solicitation is competed among holders of a governmentwide acquisition contract. In a recent case, the GAO sustained a protest, holding that an agency violated the FAR by failing to properly justify its brand-name restriction. The GAO’s decision in Westwind Computer Products, Inc., B-420119 (Dec. 8, 2021) involved a USDA solicitation seeking enterprise business solutions licenses and software assurance support. The solicitation was issued to holders of the NASA SEWP V GWAC. The solicitation specified that vendors were to propose only Microsoft products. In justification of the restriction, the solicitation stated that “USDA has standardized on Microsoft Office, email and cloud and has been using these tools for over 20 years.” The agency also stated that “Microsoft products are essential to the government’s need to provide software and security support necessary to meet operational, mission, Executive and Legislative requirements.” Westwind Computer Products, Inc. filed a protest challenging the terms of the solicitation. Westwind , which wished to offer Google Workspace software, argued that the USDA had failed to properly justify the brand-name restriction to Microsoft products. The GAO wrote that, under FAR 16.505(b)(1), “[a]gencies that issue orders under multiple-award indefinite-delivery, indefinite-quantity contracts must provide all contract holders a ‘fair opportunity to be considered’ for the issuance of all orders in excess of $3,500. In addition, the GAO continued: An agency ‘shall not’ use a brand-name justification unless two conditions are met: (1) “the particular brand-name, product, or feature is essential to the Government’s requirements”; and (2) “market research indicates other companies’ similar products, or products lacking the particular feature, do not meet, or cannot be modified to meet, the agency’s needs.” A justification for a brand-name restriction must be in writing, set forth the basis for using the exception, and be approved by the appropriate agency official. In this case, although the USDA claimed that Microsoft products were essential to the government’s needs, the USDA did not provide any market research indicating that other companies’ similar products, or products lacking a particular feature essential to the government’s requirements, do not meet, or cannot be modified to meet, the agency’s needs. The GAO rejected the USDA’s implicit assertion that the “particular feature” of Microsoft is that “it is already in use by USDA.” The GAO wrote that this assertion was “unpersuasive, where the FAR requires that agencies demonstrate, through a comparison of ‘particular feature[s],’ why only one product can meet the agency’s needs.'” Further, nothing in the agency’s market research included a comparison of Microsoft to Google Workspace, the software Westwind wished to offer. The GAO sustained the protest, holding: In sum, USDA’s justification does not state that the product or services USDA requires are offered only by Microsoft or that other companies’ similar products, or products lacking a particular feature, do not meet, or cannot be modified to meet, the agency’s needs, the agency has not met the FAR section 16.505(a)(4)(i) requirements for justifying a brand-name restriction. The GAO recommended that the agency either go back to the drawing board and attempt to satisfy the FAR’s requirement (something the GAO seemed skeptical that the agency could accomplish in this case), or recompete the requirement without the brand-name restriction. The GAO also recommended that the USDA reimburse Westwind’s reasonable protests costs, including attorneys’ fees. The Westwind Computer Products decision is a good reminder that the FAR disfavors brand-name-only acquisitions and requires agencies to follow certain steps to justify them, even under a GWAC like SEWP V. As the decision demonstrates, even if an agency has been using a particular brand for a long time, this alone may not be enough to justify a restriction to only that brand. Questions about this post? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post GAO Sustains Protest Where Agency Fails to Properly Justify “Brand Name Only” Requirement first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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The proposed OCI rule implementing the Preventing Organizational Conflicts of Interest in Federal Acquisition Act has just dropped. We started discussing the Act back in early 2023 after it was passed in late 2022, and I outlined my predictions at the Court of Federal Claims judicial conference. This 108-page rule will propose some major changes for organizational conflicts of interest. Here is a summary of some of the big changes proposed in this new rule. Stay tuned for more updates on SmallGovCon. The proposed rule was published on January 15, 2025 with comments due on March 17, 2025. Here are some initial thoughts on some of the important changes proposed in this rule, as well as a recap of the original statute and my earlier predictions. The OCI Statute The Preventing Organizational Conflicts of Interest in Federal Acquisition Act was made effective on December 27, 2022. The entire law, however, was less than two pages. It focused on a few key aspects: Examples. Congress would really like the FAR to focus on additional examples Definitions. the FAR must update “definitions related to specific types of organizational conflicts of interest, including unequal access to information, impaired objectivity, and biased ground rules.” OCI Disclosures and Procedures. New rules were requested to “update such procedures as needed to address agency-specific conflict of interest issues.” As well as add more procedures to require contractors “to disclose information relevant to potential organizational conflicts of interest.” Private Sector. The law specifically required “an example of the awarding by a Federal regulatory agency of a contract for consulting services to a contractor if employees of the contractor performing work under such contract are permitted by the contractor to simultaneously perform work under a contract for a private sector client under the regulatory purview of such agency.” Professional Standards. One other specific update was for the new rules to “take into consideration professional standards and procedures to prevent organizational conflicts of interest to which an offeror or contractor is subject.” Predictions for New Rules Here was my earlier prediction on some ways in which the FAR Council might implement these updates. Definitions. Incorporating definitions of the various categories of OCIs from existing case law. Private Sector. The current examples in FAR 9.508 don’t address the specific issue of work involving a “private sector client.” One likely update is that agency OCI solicitation clauses will now specifically require disclosure and mitigation of potential conflicts involving private sector clients. And there should be additional examples dealing with this type of scenario, as the current examples only refer to a specific licensing situation. Professional Standards. Current FAR 9.506 simply commands contracting officers to review OCIs, but with little guidance for agencies. While it’s hard to know exactly what Congress is referring to, it could mean professional standards such as those established by industry groups including public accounting rules. Those standards are already applicable to review of certain financial statements for publicly traded companies under 17 C.F.R. § 210.10-01. Other sources of standards could include business standards, legal, IT, and other professional groups. Will the proposed rule specifically list examples, or will it leave it up to federal contractors to address how professional standards fit into their OCI mitigations plans? The New Proposed OCI Rule Revamping of the FAR and General Policy Interestingly, there was a proposed OCI issued back in 2011, but it was withdrawn ten years later due to “the amount of time that had passed since publication of the proposed rule.” This rule proposes to move the entire OCI regulatory scheme from current FAR subpart 9.5 to a new subpart in FAR part 3. It will also change the title of the part from “Improper Business Practices and Personal Conflicts of Interest” to “Business Ethics and Conflicts of Interest.” While OCI “requirements are applicable to most procurements, acquisitions below the simplified acquisition threshold (SAT) and those for commercial products are exempt, as well as subcontracts for commercial products or commercial services.” Interestingly, the “rule directs contracting officers to explore all available methods to address an OCI based upon unequal access to information before selecting disqualification of an offeror to alleviate unfair competitive advantage. The rule will note that “Incumbent contractors may have a natural advantage that is not unfair when competing for follow-on contracts because of knowledge and expertise developed during contract performance.” Definitions The proposed rule will expand the list of definitions to include definitions of ““unequal access to information, impaired objectivity, and biased ground rules” and these will generally follow the accepted definitions from the case law. These definitions will be added to the general FAR definition section in FAR 2.101. We predicted this, and it makes sense for contractors not to have to sift through examples and case law to find the pertinent categories of OCIs. There is a new definition for firewall, stating: Firewall means a barrier against the unauthorized flow of information. Firewalls may consist of a variety of elements, including organizational and physical separation; facility and workspace access restrictions; information system access restrictions; independent compensation systems; and individual and organizational nondisclosure agreements. Examples The rule will provide “illustrative examples” for potential OCIs that could result from “relationships of contractors with public, private, domestic, and foreign entities” at new section 3.1204. The rules will focus on impaired objectivity and unfair competitive advantage. Unequal access to information and biased ground rules are both subsets of unfair competitive advantage. Many of these examples look quite similar to the existing examples found in FAR 9.508. The old rule had 9 examples and the new rule has about 15 examples. Here are a few that appear different from the old ones: “A contractor is assisting an agency in developing policies or regulatory procedures and the contractor or one of its affiliates may, at some future point, be governed by or subject to (or be a subcontractor or consultant to an entity governed by or subject to) such policies or regulatory procedures.” “A contractor is providing consulting services to an agency that is responsible for regulating an industry and the contractor is performing work under a contract for a public or private sector client that is regulated by that agency. Organizational conflict of interest is more likely to occur if the contractor’s employees are simultaneously performing work under both contracts.” “A contractor is providing support to an agency involving a subject area or issue while it is also performing work for other entities with a competing interest involving the same subject area or issue. For example, a contractor assisting an agency with implementing legislation or regulations may have a conflict if the contractor is also assisting industry with compliance on that same legislation or regulations.” “A contractor is providing enforcement support to an agency (e.g., cost recovery, litigation) while also assisting or representing parties subject to those activities. In addition, when a contractor supports enforcement activities for an agency, and those enforcement activities continue beyond the life of the contract, such conflicting client relationships could continue to jeopardize enforcement actions for a time even after the contract ends, especially if the contractor had access to sensitive information about the agency’s enforcement or litigation strategy.” “A contractor is conducting research for an agency, but that contractor or its researchers has financial or non-financial ties to a foreign entity that seeks capability or advantage related to the topic of that research and is likely to exert undue influence on the contractor. Undue influence in this context describes a situation in which an entity that is not party to a contract, through financial support, position of authority, or other ties, persuades the contractor to take actions that it would not have taken otherwise, such as taking the research in a certain direction or engaging in unauthorized information-sharing with other parties.” “A contractor is providing services to an agency related to national security or foreign policy matters, but that contractor is also providing similar services to a foreign government or other foreign entity (e.g., foreign state-owned or private enterprise) with a competing or opposing interest in those matters, which could result in the foreign entity having undue influence on the contractor’s performance on the contract.” “A contractor is providing a product or service to the Government and employs a former Government employee who was involved in developing the requirement for the product or service as part of such employee’s Government job.” Methods and Responsibilities The FAR council describes methods to address OCIs: “OCIs and their associated risks may be addressed by means of avoidance; limitations on future contracting; mitigation; and/or the Government’s assessment that the risk inherent in the conflict is acceptable.” Drafting the solicitation can help to avoid OCIs: “such as developing a statement of work that does not require contractors to utilize subjective judgment and, when required, soliciting advice from more than one contractor rather than relying on the advice of a single contractor.” Limitations on future contracting to address OCIs can be needed when “the contractor’s work on a current contract could be impaired by virtue of its expectation of future work” but there should be a “reasonable duration” and “a specific end date for the limitation.” A new requirement is for mitigation plans to become part of a contract, and the proposed rule will require that “the offeror-submitted and Government-approved mitigation plan be incorporated into the contract.” “The mitigation plan should provide sufficient details commensurate with the complexity of the organizational conflict of interest and the value of the acquisition.” Mitigation techniques can include things like Using a team member to perform some portion of work but there must be “controls to ensure that the entity with the organizational conflict of interest has no input or influence on how the party without the organizational conflict of interest performs the work.” Use of “structural or behavioral barriers, internal controls, or both.” “However, a firewall intended to limit the sharing of information may not adequately address an organizational conflict of interest regarding an affiliate.” Where an agency weighs the risk of an OCI, it must “assess whether some or all of the performance risk is acceptable because the risk is outweighed by the expected benefit of having the offeror perform the contract, and whether the performance risk is manageable.” For the contracting officer, there are guidelines for evaluating OCIs and managing them. “While existing case law requires the contracting officer to determine that a conflict has been adequately mitigated, the proposed rule allows the contracting officer to accept a risk when the conflict results from impaired objectivity and the risk to performance is low.” A contracting officer will have to consider OCIs at time of award and when issuing an order. The CO may review aspects such as (1) “extent to which the contract requires the contractor to exercise subjective judgment and provide advice”; (2) “whether it is expected to occur only once or twice during performance or to impact performance throughout the entire contract”; (3) agency oversight controls; (4) “risk of awarding to a contractor with significant financial ties to or other interests in that same industry”; (5) how “how professional standards or the contractor’s operating procedures” can reduce OCI but that professional standards are not sufficient by themselves. Clauses A new FAR clause at at FAR 52.203-XX, Potential Organizational Conflict of Interest—Disclosure and Representation, will “provide notice to offerors that the nature of the work described in the solicitation is such that OCIs may result from contract performance.” The clause will require an offeror to: (1) Disclose all relevant information regarding any OCI (including active limitations on future contracting and specific clients or industry relationships that may create OCI if identified by the contracting officer); (2) Disclose any professional standards to which it is subject, or any procedures it has in place, to prevent OCIs; (3) Represent, to the best of its knowledge and belief, that it has disclosed all relevant information regarding any OCI; (4) Explain the actions it intends to use to address any OCI ( e.g., submit a mitigation plan if it believes an OCI may exist or agree to a limitation on future contracting); and (5) Update their disclosure(s) for new information not previously disclosed or if there is a change to any relevant facts relating to a previously disclosed OCI. There will also be clauses for Postaward Disclosure of Organizational Conflict of Interest. Mitigation of Organizational Conflicts of Interest. Limitation on Future Contracting. Unequal Access to Information—Representation, “which requires the offeror to identify, prior to submission of its offer, whether it or any of its affiliates had unequal access to any information that could provide an unfair competitive advantage.” It will be interesting to see how these rules are implemented and how courts interpret them. Be sure to comment by the March 17 deadline if you have concerns. 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 New OCI Rule Contains Big Changes first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Happy Friday, SmallGovCon readers! Hope you had a great week and have some nice plans for the long weekend. Memorial Day, originally known as Decoration Day, originated in the years following the Civil War and became an official federal holiday in 1971. Unofficially, it marks the beginning of the summer season. To all those that served and or on active duty, thank you for your service! Have a wonderful weekend. This week in federal government contracting news, there are updates on an increase in government buying, cutting costs for large software vendors, and the federal budget. Judge bars Trump administration from shutting peace institute that sought to end violent conflicts Former Contractor of USAID-Funded Program Extradited to the United States, Convicted and Sentenced for Conspiracy to Obtain Grant Money Through Fraud GSA inks deal with Salesforce to lower price of Slack 90% for agencies GSA, Salesforce Collaboration Cuts Costs for Government, Slack to Provide Real-Time, AI-Powered Efficiency It will take more than a new policy to get certified SBOMs Retired four-star admiral found guilty of bribery after accepting $500K-a-year job in exchange for lucrative Navy contract MyGovWatch Numbers Show 6.5% Increase in Federal Government Buying in Trump’s First 100 Days Gerry Connolly, congressional champion of federal IT reform, dies at 75 VA eyes AI to improve software license management Federal budget plans still in limbo as Memorial Day approaches SBA Launches Onshoring Portal to Advance America’s Economic Comeback The post SmallGovCon Week in Review: May 19-23, 2025 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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This past November, we observed a change in the rules regarding SAM registration requirements for procurements. Prior to this rule change, both GAO and the Court of Federal Claims (COFC) had found that the FAR requires offerors to maintain SAM registration throughout the evaluation period for a procurement. With the rule change, FAR 52.204-7 (the regulation at issue) now only requires that an offeror be registered at the time of offer submission and at the time of contract award. A lapse in SAM registration in between those events, in other words, would not be fatal to an offeror’s proposal. Unfortunately for one company, this resulted in a COFC case that essentially reversed its victory at a prior COFC protest. Today, we’ll look at this second case and what happened. A brief summary of the prior protest is needed here. Back in 2023, Zolon PCS II, LLC (Zolon), brought a case to the COFC regarding the National Geospatial-Intelligence Agency’s (NGA) CLOVER contract. Under then-standing COFC precedent, an offeror had to maintain SAM registration from the date they submitted an offeror to the date they received award to be eligible for award under FAR 52.204-7. When the NGA attempted to create a deviation from this rule and award to offerors whose registrations lapsed during that period, Zolon brought its protest. On August 29, 2024, the COFC agreed with Zolon under the established precedent and found that NGA’s deviation was an attempt to amend the solicitation to make those particular awardees eligible for award. This rendered the deviation unreasonable and therefore improper. The NGA prepared its corrective action, promising to make new awards after re-evaluation. The FAR Council (The DoD, NASA, and GSA), concerned about this ruling and the others like it, decided to change FAR 52.204-7. On November 12, 2024, they issued the rule change. Now, under FAR 52.204-7, an offeror need only be registered at the time of offer submission and at the time of contract award. The NGA picked up on this rule change and issued an amendment, Amendment 12, to the CLOVER procurement incorporating the new language, with offers due January 10, 2025. The NGA also then terminated the original awards. Zolon again protested the amendment, arguing that the NGA was just trying to change the rules to favor the original awardees, making the amendment improper. It also argued that the rule didn’t apply retroactively, and because the NGA already made awards, it couldn’t amend the rules now. The COFC noted that, under FAR 1.108, contracting officers have the discretion to include changes to the FAR made after the solicitation was issued but before award. Specifically, the language says “[c]ontracting officers may, at their discretion, include the FAR changes in solicitations issued before the effective date, provided award of the resulting contract(s) occurs on or after the effective date.” While the NGA had made awards under the solicitation and did not terminate them until after the amendment, it had also said it was going to make new awards. In other words, the amendment applied only to the planned new awards, not the terminated awards. Those new awards were the “resulting contracts,” and as they had not occurred yet, the NGA could make the amendment. As the court put it: “Those awards will ‘happen as a consequence’ of Amendment 12, incorporating the new SAM registration rule, after the effective date of the new rule.” Furthermore, the fact the NGA didn’t specifically say it was relying on the rule change to make the amendment was irrelevant. With the rule change, the NGA had the complete discretion to make the amendment. The NGA was not deviating from FAR rules to favor an offeror, it was following what the FAR permitted. Nonetheless, Zolon still argued that the amendment was impermissibly retroactive, and that the earlier precedent still applied. The court observed that the question came down to whether the law took away or impaired existing rights, or created a new obligation, with respect to things that already occurred. Here, no new obligations were created. As the court noted, “[i]f anything, the new rule makes it easier for offerors to maintain compliant SAM registrations.” Likewise, the rule change didn’t deprive Zolon of any rights. Zolon remained just as eligible for award now as it did before. It is true that other offerors would not be allowed to compete against Zolon. But Zolon had no right to avoid such competition, nor did it have a right in maintaining the old version of FAR 52.204-7. Finally, Zolon argued again that the NGA was trying to favor the offerors. Again, the court observed that wasn’t an issue here. The problem in the earlier protest was that the NGA was deviating from FAR requirements. Here, it was simply following the new FAR language. As the court put it: “Again, this is not a scenario where the Agency is attempting to side step a FAR rule so that best-value offerors survive in the competition, it is attempting to follow a FAR rule that was specifically changed so that best-value offerors are not unnecessarily eliminated. That reasoning is neither arbitrary nor capricious.” With that, the COFC ruled against Zolon. One has to sympathize with Zolon here. It went through all that trouble and won, only for the government to change the very FAR provision it won on. That being said, the ability for an agency to amend its solicitation if the FAR permits it is very broad. The key thing here is that the agency was following the FAR this time around, whereas before, it was essentially trying to violate the FAR. That made all the difference, and is a good lesson here on federal agency discretion in amending solicitations. 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 Switcheroo – FAR Change Allows Agency to Amend Solicitation to Broaden Eligibility for Procurement first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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As our SmallGovCon readers might know, the SBA’s 8(a) Business Development Program is often thought of as the golden goose of federal government contracting, at least for small businesses. And it’s true, in some respects. While it is the most difficult of the SBA’s socioeconomic programs to gain admittance to, if admitted, you stand to reap large benefits such as access to competitive and sole-source contracts. And another SBA rule limits the ability to move contracts away from 8(a) Program set-asides. In that scenario, a contract that had been restricted to 8(a) Program Participants is recompeted as a set-aside for small businesses generally or a different socioeconomic category (SDVOSB, WOSB, HUBZone). Less frequently, it might not set aside for small businesses at all. If that happens, what should you do? Well, you should be familiar with what is commonly referred to as the “once 8(a), always 8(a)” rule as well as when to protest a violation of that rule. The Once 8(a), Always 8(a) Rule (as it’s often called) states that, “where 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.” 13 C.F.R. § 124.504(d)(1). That means that once a procurement is awarded as an 8(a) set aside, any follow-on procurement must be solicited and awarded to an 8(a) Program participant from that point forward. Seems easy enough, right? Yes and no. 13 C.F.R. § 124.504(d) and FAR 19.815(e) convey that the Once 8(a), Always 8(a) Rule applies anytime a procurement contains work currently performed under one or more 8(a) contracts. This includes situations in which the procuring agency believes the requirement is new and that the contract should not be considered a follow-on requirement. In such a case, the procuring agency must still coordinate with the SBA District Office servicing the 8(a) incumbent firm and the SBA Procurement Center Representative assigned to the contract to ensure that removing the work from the 8(a) Program is appropriate. Such notification must be in writing, must identify the scope and dollar value of any work previously performed through another 8(a) contract, and must include the scope and dollar value of the contract determined to be new. When determining whether to release a procurement from the 8(a) Program, the SBA will consider a number of factors, including “(i) Whether the agency has achieved its [small disadvantaged business] goal; (ii) Where the agency is achieving its HUBZone, SDVO, WOSB, or small business goal, as appropriate; and (iii) Whether the requirement is critical to the business development of the 8(a) Participant that is currently performing it.” There are also limited situations in which the SBA may decline to keep a procurement in the 8(a) Program “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.” Though, in our experience, this is a rare occurrence. However, it is possible if the following criteria are met: (A) The procurement awarded through the 8(a) BD program is being or was performed by either a Participant whose program term will expire prior to contract completion, or by a former Participant whose program term expired within one year of the date of the offering letter; (B) The concern requests in writing that SBA decline to accept the offer prior to SBA’s acceptance of the requirement for award as an 8(a) contract; and (C) The concern qualifies as a small business for the requirement now offered to the 8(a) BD program. 13 C.F.R. § 124.504(d)(2)(i). If SBA receives a request to release a requirement to a soon-to-graduate participant or former participant, SBA will also weigh the participant’s business development needs against the business development needs of qualified current participants. Additionally, SBA will not release a requirement from the 8(a) Program unless the agency agrees to solicit the procurement as a small business, HUBZone, SDVOSB, “or WOSB set-aside or otherwise identifies a procurement strategy that would emphasize or target small business participation.” 13 C.F.R. § 124.504(d)(3). Now, you may be thinking “I thought this blog was about the Once 8(a), Always 8(a) Rule.” And you would be right, it is! But it is important to understand what situations justify removing a requirement from the 8(a) Program to understand what situations potentially call for a protest. So, what can you do if a procurement is removed from the 8(a) Program without following the requirements of 13 C.F.R. § 124.504? You can protest a violation of the Once 8(a), Always 8(a) Rule, of course. Protesting an agency’s violation of the Once 8(a), Always 8(a) Rule is considered a protest of solicitation terms, or pre-award protest. As discussed in more detail here, a pre-award protest is a challenge to the terms of a solicitation under 4 C.F.R. § 21.2(a)(1). Just like you would protest a violation of the VA’s Rule of Two, or a patent ambiguity in a solicitation, you must file a Once 8(a), Always 8(a) protest before the deadline for proposal submissions. Once proposals are submitted and that deadline passes, you are out of luck and can no longer file a Once 8(a), Always 8(a) protest. If you are looking to protest, look closely at the definition of “Follow-on requirement or contract” in 13 CFR 124.3: The determination of whether a particular requirement or contract is a follow-on, includes consideration of whether the scope has changed significantly, requiring meaningful different types of work or different capabilities; whether the magnitude or value of the requirement has changed by at least 25 percent for equivalent periods of performance; and whether the end user of the requirement has changed. As a general guide, if the procurement satisfies at least one of these three conditions, it may be considered a new requirement. However, meeting any one of these conditions is not dispositive that a requirement is new. In particular, the 25 percent rule cannot be applied rigidly in all cases. Conversely, if the requirement satisfies none of these conditions, it is considered a follow-on procurement. Any such protest must allege that the contract is indeed a follow-on, based on these criteria. If you notice that work, that was previously acquired through the 8(a) Program, is no longer being solicited through the 8(a) Program (rather it is being solicited to a different type of small business, or is other than small business) a pre-award protest of a violation of the Once 8(a), Always 8(a) Rule might be in order. It is important to act sooner rather than later, because the GAO will dismiss any protest that is untimely, which, in this situation, a timely protest is one that is filed prior to the deadline for proposal submissions. 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 here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Why File: A Once 8(a), Always 8(a) Protest first appeared on SmallGovCon - Government Contracts Law Blog.View the full article