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Happy Friday! It’s hard to believe we’re already halfway through July! We hope your summer has been filled with meaningful hangouts with family and friends, vacation adventures, and a little extra time to enjoy the season. As we head into the second half of summer, we’re grateful for your continued support of SmallGovCon and look forward to sharing more tips, updates, and resources to help your contracting business thrive. Have a great weekend. This week in federal government contracting saw articles on pausing parts of CMMC and the role of AI in federal procurement. Pentagon suspends CMMC phase two requirements, launches review of program An in depth look at interagency contracting Senate rejects Cyber Force push as debate over cyber structure continues The government’s role in innovation may be changing from customer to investor The federal government is trying to drive innovation with accountability GSA Solicits Industry Feedback to Enhance American-Made Product Procurement House hearing spotlights SBA’s 8(a) overhaul as tribes press for application backlog relief SBA Commends U.S. Department of War’s Suspension of CMMC Phase II for Small Defense Contractors Pentagon proposes new secrecy power to withhold unclassified records from public-access laws Despite revisions, GSA’s proposed AI acquisition rule still falls short, stakeholders say Pentagon seeks to shift billions to cover rising personnel costs SBA enters ‘new phase’ with Palantir on anti-fraud efforts The post SmallGovCon Week in Review: July 13-17, 2026 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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What time does the day end? Most people would answer that a day ends at midnight. However, a recent GAO decision highlights that, for purposes of filing a pre-award bid protest with the GAO, the business day ends at 5:30 p.m. ET when the GAO closes its doors for the day. Confusingly, this can result in a protest that was technically filed on a Friday after 5:30 p.m. ET, not actually being filed until Monday, the next business day. A recent GAO decision explores this phenomenon and clarifies filing deadlines for pre-award bid protests challenging solicitation terms, especially in the case where an offer deadline is after GAO’s close of business. In Oready, LLC, B-424508 et al., (Comp. Gen. June 8, 2026), the GAO dismissed Oready’s pre-award bid protests challenging the terms of three requests for quotations as untimely because they were filed after the GAO’s office had closed for the day on which the submission of quotations were due, even though they were filed before the time for receipt of proposals. Each of the requests for quotation issued by the Department of the Interior, Bureau of Indian Education for commercial occupational therapist and certified occupational therapist assistant services specified that quotations were to be submitted by 5:00 p.m. MDT on May 15, 2026 (which would be 7:00 p.m. eastern time). Oready submitted its protests to the GAO on May 15, 2026, after its office had already closed at 5:30 p.m. ET. GAO explained that “the submission after [GAO’s] office had closed meant that each was filed when [GAO’s] office reopened on May 18” and that “Oready had to have filed these protests with [GAO’s] Office by 5:30 p.m. [at the local time for GAO] on May 15 for them to be timely.” GAO’s bid protest regulations specifically state that “a document is filed on a particular day when it is received by EPDS by 5:30 p.m., Eastern Time.” 4 C.F.R. § 21.0(g). So, if a protest is filed on Monday before 5:30 p.m. ET, it is filed on that Monday. Conversely, if a protest is filed on Monday after 5:30 p.m. ET, it is treated as if it were filed on the next business day, Tuesday. Additionally, GAO’s regulations require that “protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals.” 4 C.F.R. § 21.2(a)(1). For example, imagine that the deadline for submitting an offer on a particular solicitation is 5:00 p.m. on a Sunday. Company X wants to file a protest based on apparent improprieties in the solicitation under 4 C.F.R. § 21.2(a)(1). If Company X were to wait to file a pre-award protest on this basis until 4 p.m. on Sunday, it would be too late. The protest, it appears based on this case, would be treated by GAO to be filed on that Monday, which is after offers were due on the preceding Sunday. For Company X’s protest to be timely submitted, it would have had to file its protest by 5:30 p.m. ET on the preceding Friday, which is GAO’s last business day before offers were due on the solicitation. While Oready openly admitted that its protests were untimely under 4 C.F.R. § 21.2(a)(1), it argued that it had emailed a copy of each of its protests to the contracting officer before the 5:00 p.m. MDT deadline for submitting quotations, so it had effectively filed a timely agency-level protest. Therefore, it further argued that the protests it filed with the GAO on May 18 were timely as they each constituted subsequent protests to the GAO. If a protestor has filed a timely agency-level protest, a subsequent protest to GAO is considered timely so long as it is filed within 10 days of protestor’s actual or constructive knowledge of initial adverse agency action. See 4 C.F.R. § 21.2(a)(3). This timeliness exception allows a protestor to file a protest with the GAO even after the time for receiving proposals has passed provided that the protestor has filed a timely agency-level protest. Ultimately, GAO found that Oready had not made an agency-level protest and therefore could not avail itself of the timeliness exception in 4 C.F.R. § 21.2(a)(3). There are specific elements that must be included in an agency-level protest, including that the protest makes “a request for an agency ruling” and “be addressed to the contracting officer or other official designated to receive protests.” FAR 33.103(d)(2)-(3). Here, GAO found that “none of the protests was addressed to any official at the Department of Interior or the Bureau of Indian Education specifically, and none requested a ruling from that agency.” Rather, Oready referred to the protest as “a copy of the protest filed with GAO” and the attached protest was addressed to and requested relief from GAO. Had Oready properly filed an agency-level protest, the timeliness exception would have applied, and the protests filed with GAO would have been timely as subsequent protests to GAO. While GAO’s regulations allow the GAO to consider an untimely protest if good cause is shown, it declined to do so under these circumstances. See 4 C.F.R. § 21.2(c). Therefore, GAO dismissed Oready’s protests as untimely. At first, it might not be intuitive how a protest filed one day really wasn’t technically filed until the next business day. However, this decision illustrates the importance of being mindful of timing and appropriately tracking your deadlines, especially if the office for receipt of proposals is in a different time zone than GAO, or there is a late time for receipt of proposals. If this feels overwhelming, or you need assistance with filing a protest with GAO by the proper deadline, feel free to reach out to us. Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919. The post When Today Becomes the Next Business Day: GAO’s Strict Rules for the Timely Submission of Bid Protests to Solicitation Terms first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Joint ventures are an increasingly common teaming structure in small business federal government contracting. They offer small businesses (and even some SBA-approved large business mentors) the opportunity to perform set-aside contracts as part of a team allowed to leverage the size and status(es) of its managing venturer. But with their growing popularity and obvious appeal amongst the small business community comes the often-asked question of how to calculate a joint venture’s receipts towards its venturers’ sizes. This GovConFAQ provides the answer. To take advantage of federal set-aside contracting opportunities, contractors must maintain their small business size status (or compliantly team-up with a small business that does). And to take advantage of federal set-aside contracting opportunities through a joint venture, each venturer must maintain its small business size status (unless the venturer is an SBA-approved mentor to a protege that does). But regardless, its inevitable that every joint venture must ensure at least one contractor’s small business size status is accurately calculated under SBA’s regulations to receive any piece of the set-aside pie. As such, it is crucial that small businesses know exactly how the annual receipts of their joint ventures will impact their size calculations and size status under SBA’s rules. But one reason this question is so common and sometimes subject to confusion is that SBA’s regulations for calculating size don’t speak to the treatment of joint venture receipts. In fact, the answer comes directly from SBA’s affiliation regulations instead. Those regulations state: For size purposes, a concern must include in its receipts its proportionate share of joint venture receipts. Proportionate receipts do not include proceeds from transactions between the concern and its joint ventures (e.g., subcontracts from a joint venture entity to joint venture partners) already accounted for in the concern’s tax return. Additionally, because some NAICS codes–and thus, some federal contracts–calculate a company’s size based on number of employees instead of average annual receipts, SBA’s affiliation regulations address joint venture calculations in that context too. They also state, “[i]n determining the number of employees, a concern must include in its total number of employees its proportionate share of individuals employed by the joint venture.” So, that’s it–nice and easy–it’s simply the “proportionate share” of each venturer’s receipts or employees that such venturer must include in its size calculations! And believe it or not, at one point many years ago, that really was “it”–that was as much as SBA’s rules had to offer. Indeed, prior to SBA’s 2020 final rule on the subject, there was confusion in the industry about the intended meaning of “proportionate share” here–specifically, whether “proportionate share” was tied to each venturer’s share of ownership in the joint venture or workshare. But fortunately, SBA took note of this confusion and supplemented the rule to clarify that “proportionate share” in this context was generally tied to workshare, not ownership. SBA updated, current rule explains, “[f]or the calculation of receipts, the appropriate proportionate share is the same percentage of receipts or employees as the joint venture partner’s percentage share of the work performed by the joint venture.” So, in general, when calculating your size status under SBA’s small business regulations, you must include the share of any joint venture’s annual receipts (for receipt-based size standards) or number of employees (for employee-based size standards) proportionate to your company’s workshare for the joint venture. But the reason I note “in general” here is there is one additional consideration SBA’s current rule now takes into account based on whether the joint venture qualifies as unpopulated or populated. And if you are not familiar with this final piece of the puzzle or caveat to the general rule here, don’t worry. That is likely because SBA actually did away with populated joint ventures some time ago–and only recently, decided to resurrect populated joint ventures, but only in limited circumstances. So, the current SBA affiliation regulations now include the following caveat explaining exactly how to calculate size accounting for a populated joint venture’s receipts or employees–and in this case, “proportionate share” is actually tied to ownership. The rule states the following: For a populated joint venture (where work is performed by the joint venture entity itself and not by the individual joint venture partners) the appropriate share is the same percentage as the joint venture partner’s percentage ownership share in the joint venture. For the calculation of employees, the appropriate share is the same percentage of employees as the joint venture partner’s percentage ownership share in the joint venture, after first subtracting any joint venture employee already accounted for in one of the partner’s employee counts. Questions about this post? Or need government contracting legal assistance? Email us. 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 GovConFAQ: How Do I Count My Joint Venture’s Receipts When Determining My Size? first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Happy Friday! The 4th of July weekend was a great chance to slow down, spend time with family and friends, and enjoy some good food and fireworks (or drones, in our case). The only downside? The weather has been incredibly hot and humid but that’s typical for summer here in Kansas. We hope you had a great week and are staying cool. Here’s what is happening in federal government contracting this week. Key stories include GSA AI proposed rules, and Congress having a lot to do this summer. Interior Department CIO is out after holding job for over a year Congress returns from recess with a lot on its plate DoD opens applications for long-awaited cyber apprenticeship program Federal CIO Barbaccia leaving in August GSA praised for initial changes to AI draft regs, but more work needed Study looks at the people impacted when an agency shuts down Senate lawmaker presses DoD, tech firms to disclose AI contract terms NEWS: Sens. Schiff, Curtis to Unveil Bipartisan Legislation to Modernize Small Business Technology, Support Small Business Owners Former Department of Energy Employee Sentenced for Bribery of a Public Official Federal Register: Conformance of Cost Accounting Standards to Generally Accepted Accounting Principles for Cost Accounting Standards 404, 408, 409, and 411 The post SmallGovCon Week in Review: July 6-10, 2026 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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SAM.gov is something every federal government contractor has to deal with for actions like searching solicitations and registering to be a federal contractor. As every federal contractor wanting to do business with the federal government has to register on SAM, the questionnaires on SAM must cover a wide array of different possible businesses and business structures. As much as SAM tries to make sure to cover all the possibilities, inevitably, there are some questions that could have so many answers that contractors will often have their own questions about how to answer them properly. One of the most common questions that come up from contractors during SAM registration is “what do I put for Immediate Owner on SAM?” or “what does Highest-Level Owner mean?” These questions seems to come up quite frequently, and we posted a blog about it back in 2014 when these questions on SAM first popped up. Despite the questions being present for quite some time, it still can trip up contractors when they register on SAM. The questions as to who the immediate owner is and who the highest-level owner is comes from FAR Subpart 4.18, which discusses Commercial and Government Entity Codes (CAGE Codes), FAR 52.204-16 (Commercial and Government Entity Code Reporting), 52.204-17 (Ownership or Control of Offeror), and 52.204-18 (Commercial and Government Entity Code Maintenance). Basically, these FAR clauses justify the need for offerors to identify owners who are entities when they register on SAM and bid on federal contracts. Thankfully, these FAR clauses also provide definitions which can help contractors better understand what SAM is aiming to learn with its questions about immediate owners and highest-level owner. For example, FAR 4.1801 and FAR 52.204-17 state: “Highest-level owner means the entity that owns or controls an immediate owner of the offeror, or that owns or controls one or more entities that control an immediate owner of the offeror. No entity owns or exercises control of the highest level owner.” “Immediate owner means an entity, other than the offeror, that has direct control of the offeror. Indicators of control include, but are not limited to, one or more of the following: ownership or interlocking management, identity of interests among family members, shared facilities and equipment, and the common use of employees.” SAM has an FAQ about what an “immediate owner” or “highest-level owner” is, and that FAQ focuses on control. SAM’s FAQ says in full: “An immediate owner is another entity that has direct control of your entity (the one you are registering in SAM.gov). Control could include: Ownership or interlocking management Identity of interests among family members Shared facilities and equipment The common use of employees The highest-level owner is another entity that controls the immediate owner, either directly or through another entity (or multiple entities). No entity controls the highest-level owner.” These definitions and guidance provide great context to what is expected whenever contractors are asked to identify their immediate owner or highest-level owner. Of note from these are the focus on the owner being an “entity” not an individual, and that “control” of the contractor is a determinative factor. Under the common legal definition of entity, it typically means a business organization, not an individual. Avid readers of SmallGovCon may note that many of these control concepts seem to align with some of SBA’s small business affiliation concepts, as small business affiliation focuses on control (check our blogs on SBA’s size affiliation concepts here and here). While we certainly encourage federal contractors learn about SBA’s size affiliation concepts, SAM does not explicitly indicate that it relies on SBA’s findings related to control to determine if one entity controls another enough to meet these definitions. Utilizing SBA’s size affiliation concepts may still be a great tool to help you to determine if there is possibly control from one entity over another. Another wrinkle to this is what to do with a joint venture registering on SAM or an entity with multiple owners. SAM has an FAQ on that as well. SAM explains: “Currently, only one Immediate Owner and one Highest-Level Owner may be identified in SAM.gov by a CAGE Code. If the offeror has more than one owner (such as a joint venture) at either level of ownership, they must select only one to report. This note is included at the bottom of FAR 52.204-17 Ownership or Control of Offeror displayed in your entity’s Representations and Certifications.” Typically contractors will choose the majority owner of a joint venture to be listed, but it varies upon each set of facts and circumstances. With all that in mind, let’s try a couple examples. Example 1: SmallGovCon Farms LLC , which is owned 100% by Farmer Greg, creates a new entity called GWeb LLC. GWeb is owned entirely by SmallGovCon Farms and has the same management teams. GWeb registers on SAM. GWeb will list its immediate owner as SmallGovCon Farms because it is an entity which owns and controls GWeb. Example 2: Using the same companies, GWeb creates a new entity called LawBlog. GWeb is still owned by SmallGovCon Farms. LawBlog registers on SAM. LawBlog will list GWeb as its immediate owner. LawBlog will also list SmallGovCon Farms as its highest-level owner because GWeb is owned and ultimately controlled by the entity SmallGovCon Farms. Contractors who run into the question of listing immediate owner or highest-level owner on SAM can now remember to ask themselves a few things in order to determine their immediate owner and highest-level owner: 1.) Is there an entity which has ownership in my company?; 2.) Does an entity with ownership in my company have any sort of control?; 3.) Does any other entity ultimately control my company’s immediate owner?; and 4.) If my company has multiple immediate owners, which one would be best to list on SAM as immediate owner and who is that listed entity’s highest-level owner? Of course these questions, and how to apply the definition of immediate owner and highest-level owner really depends on each contractor’s own circumstances, making them quite nuanced. Therefore, if you find yourself asking these questions, or these questions create even more questions for you while registering on SAM, make sure to reach out to a federal government contracting attorney, such as ourselves, for assistance. Questions about this post? Email us. Need legal assistance? 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 SAM Registration: Defining “Immediate Owner” and “Highest-Level Owner” first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Please join me on the GovCon Roundup Live, with Carroll Bernard and Steven Koprince to discuss several important developments affecting veteran-owned small businesses in federal contracting. Here are the details: Wednesday, July 15, 2026 1:00 – 2:30 PM Eastern Free to attend Here is the link for registration: https://lnkd.in/gKJVaqBg The post Event Announcement: GovCon Roundup Live, July 15, 1:00pm EDT, Expanding VOSB and SDVOSB Opportunities & Navigating the SBA Certification Minefield first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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We at SmallGovCon want to wish you and yours a wonderful Independence Day. Be safe this weekend and remember what the day is all about. It is a time to remember what unites as a nation, and consider our shared values and ideals. We hope you have a chance to relax, spend time with family and friends, and enjoy the 4th! We leave you with these words from the Declaration of Independence: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. Preamble to the Declaration of Independence The post Happy Independence Day from SmallGovCon! first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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When it comes to federal contracting, there are parts that are very detail-oriented. Countless signatures for countless certifications. We certainly empathize with contractors on this aspect of federal contracting. But just because we are empathetic does not mean that a contractor can ignore such requirements. In a recent decision, Revelations Counseling & Consulting, LLC v. United States, 180 Fed. Cl. 721 (2026), the Court of Federal Claims (COFC) made it very clear: Where the solicitation says sign the certification and include it in the proposal, sign it and include it in the proposal. Anything less and not only should you expect a rejection, the agency is often required to reject the proposal. In this case, the certification was a VA limitations on subcontracting clause that has cropped up multiple times lately in our practice and is an important part of small business contracting. We look at that decision today. On August 27, 2025, the VA issued a solicitation for call center staffing that it set aside for SDVOSBs. Three separate times in this solicitation, the VA instructed offerors to include the certification from VAAR 852.219-75, for VA Notice of Limitations on Subcontracting—Certificate of Compliance for Services and Construction. Two other rules (VAAR 819.7003 and VAAR 819.7004) require that this certification be completed by offerors on SDVOSB set asides. Twice in the solicitation’s instructions, the VA stated that the offeror needs to complete and sign the certification. Revelations Counseling and Consulting, LLC (Revelations), submitted its proposal on September 15, 2025. In its proposal, in Volume III, the company included the following language: “In accordance with VAAR 852.219-75, Revelations certifies that if awarded the contract, it will comply with the limitations on subcontracting requirement as provided in the solicitation and the resultant contract.” However, that is not the requirement of VAAR 852.219-75. That regulation reads, in relevant part: Offeror completed certification/fill-in required. The formal certification must be completed, signed and returned with the offeror’s bid, quotation, or proposal. The Government will not consider offers for award from offerors that do not provide the certification, and all such responses will be deemed ineligible for evaluation and award. Certification I hereby certify that if awarded the contract, [insert name of offeror] will comply with the limitations on subcontracting specified in this clause and in the resultant contract. I further certify that I am authorized to execute this certification on behalf of [insert name of offeror]. Printed Name of Signee: Printed Title of Signee: Signature: Date: Company Name and Address: As the COFC observed, “Revelations did not include the full text of the VAAR provision, or even the full text of the final certification block, and entirely omitted the authorization clause.” There further was no signature affixed to or otherwise connected to the certification language provided by Revelations. The VA then rejected Revelations’ proposal specifically for failing to complete and sign VAAR 852.219-75. Revelations, in turn, filed a complaint with the COFC. For the COFC, the question was simple: “did the VA properly reject Revelations’ proposal for failing to comply with VAAR 852.219-75 — and related Solicitation provisions — or did the VA act arbitrarily and capriciously in rejecting Revelations’ proposal because any error or omission in Revelations’ putative certification was immaterial?” The COFC observed that a material solicitation requirement is one that is express in the solicitation and that serves a substantive purpose. A substantive purpose means that something is important to the government, is binding on the offeror, or has some material impact on the bid. Getting straight to the point, the COFC noted that “mandatory minimum requirements are per se material.” When the solicitation expressly provides that acceptance or rejection of a proposal depends on adherence to a particular requirement, it is by definition material. Indeed, where the solicitation language states that a failure to comply requires exclusion, the agency can’t waive a failure to comply. The inclusion of VAAR 852.219-75 in the solicitation made it expressly clear that offerors needed to include the formal certification. The regulation itself states that offers that do not provide the certification will be rejected. The solicitation also made it clear multiple times that the formal certification must be submitted. As the COFC put it, “this Court cannot imagine how the Solicitation could have made it any clearer that offerors must submit the formal certification to be considered for award.” Even if the solicitation hadn’t expressly stated that the certification was required, the purpose of the formal certification, “to reduce the possibility that a contractor violating the Limitations on Subcontracting can later contend that it was somehow unaware of the compliance requirements,” was clearly material anyways. As for whether Revelations’ submission sufficed to meet the requirement, the COFC concluded it was not. Now, the COFC did note that it wasn’t sure one way or the other that the offeror had to include the entire text of VAAR 859.219-75 in the proposal. Indeed, it didn’t make a decision on that question. That said, the Court did note that because Congress wanted the VA to ensure compliance with the limitations, it would be reasonable for the VA to want the whole text. “Including the entire provision is a more surefire way of proving that the signee actually read and understood what the contactor agreed to.” In any case, it didn’t matter as Revelations’ failure to include the authorization clause and failure to sign the certification settled the matter. While the company argued that its failure to include the last line of the formal certification, that the certifier is authorized to bind the offeror, is immaterial, the COFC did not accept this argument. Revelations asserted that it does not matter whether someone executes the clause with authority or not. But, as the COFC noted: “Whether or not the government would actually indict or otherwise pursue the unauthorized certifier is irrelevant… When the executed certification contains the authorization clause, the government has a greater assurance that the offeror will actually be bound because the certifier makes himself or herself vulnerable to civil and criminal liability.” Even if the language had been provided, the failure to sign the certification further was fatal to Revelations. As the Court put it, “What is also clear to this Court is that an offeror must submit a certification with an independent and specific signature affirming the signee’s understanding and acceptance of the certification, and the consequences of non-compliance or breach.” Revelations’ argument that the solicitation did not define what “signed” means was viewed with great incredulity by the COFC. The regulation has a signature block, if a signature elsewhere sufficed, what would be the point of the signature block? The regulation commands that the certification be signed, if any other signature would do then what would be the point of that? As the COFC also noted: “The individualized signature makes it far more likely that the signee has read and accepted the terms of VAAR 852.219-75 and would likely make it far easier to prosecute violators — two of the primary aims of the amended Limitations on Subcontracting.” The COFC also dispatched with an argument that a signature of the formal certification at award would address the issue. This is about the agency demanding compliance with the requirements of a proposal. The COFC’s decision here is not surprising, and is a powerful reminder that these sorts of seemingly tedious formalities matter, even if an offeror doesn’t see the importance. If the solicitation says sign this certification and include it in the proposal, sign the certification and include it in the proposal. Is it a pain? Sure. But do it anyways. Questions about this post? Email us. Need legal assistance? 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 COFC: Limitation on Subcontracting Certification Trips Up Contractor Where Solicitation Requires it to be Signed and Attached first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Happy Friday! With June wrapping up, we’ve officially reached the halfway point of the year. Mid-year is the perfect time for federal government contractors to focus on the goals ahead and prepare for new opportunities in the months to come. Here’s to finishing June strong and carrying that momentum into a productive and successful second half of 2026! We hope you have a wonderful weekend. This week in federal government contracting news, a good chunk of the Revolutionary FAR Overhaul (aka “FAR 2.0” or the “RFO”) makes its way into formal rulemaking procedures, NASA expands total awards and introduces thousands of new awardees for SEWP (Solutions for Enterprise-Wide Procurement)–NASA’s premier Government-Wide Acquisition Contract, the White House accelerates the governmentwide shift to post-quantum cryptography and stirs up some controversy with a no-bid contract award for its Reflecting Pool renovations, and GAO identifies some anticipated procurement challenges of cloud computing and also, reflects on 2025’s FraudNet Activity Report. But that’s certainly not all. Take a look at this week’s articles for more on these and other happenings in the federal procurement landscape this week. First 17 parts of the FAR move into formal rulemaking process Trump’s contracting controversies in the spotlight following no-bid Reflecting Pool deal More SEWP for contractors as NASA expands total awards White House PQC order ‘lights a fire’ under post-quantum transition GAO: Cloud Computing: Federal Government Needs to Address Procurement Challenges Over 1,000 pages on FAR overhaul heads to formal rulemaking process Agencies award $179B to small firms in 2025, down from 2024 GAO verview: FraudNet Activity Report for Fiscal Year 2025 NASA announces 2,100 awards under SEWP’s sixth generation The post SmallGovCon Week in Review: June 22-26, 2026 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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The FAR Council has released its first batch of proposed rules to amend the Federal Register to implement the changes to the Federal Acquisition Regulation (FAR) to implement the executive order on Restoring Common Sense to Federal Procurement. In this post, we will provide an overview of how the RFO is being implemented as part of the formal rulemaking process. Overall, the proposed regulation seems to follow the vast majority of the proposed language that was already issued under the RFO. We’ve discussed some of those changes in past blog posts. For background, our earlier posts regarding various aspects of the RFO can be found here: Executive Order, Overview of FAR 2.0, FAR Part 6, FAR Part 19 and the Once 8(a) Rule under Part 19, FAR Part 12, FAR Part 15, FAR Part 33, . But this post notes some changes as compared to the original version of the RFO. Structure of the Proposed Rule “The FAR Council is issuing twelve proposed rules that collectively will streamline the FAR in its entirety.” The first four proposed rules were published on June 23, 2026. Each proposed rule cover two or more parts of the FAR, as shown below: FAR Parts 1, 2, 4, 33, 39, 40, 52, and 53. FAR Parts 5, 24, 29, and 52. FAR Parts 3 and 49. FAR parts 6, 7, 10, 18, 26, 37, 41, and 52. So, revisions to other parts will be released in separate portions of Federal Register proposed rule language. Comments Comments are due 30 days from date of publication, which is scheduled for June 23, 2026. Comments on this batch of updates would be due Thursday, July 23, 2026. Purpose We have written about the purpose and structure of the RFO on SmallGovCon. However, the proposed rule again summarizes the goals of revising the FAR. It notes that the RFO involves a “significant reduction of unnecessary mandates [that] is intended to clarify and reinforce the contracting officer’s discretion.” In addition, “plain language efforts include changes to active voice, edits to improve readability, and reorganization to present information more logically.” But the no “plain language edits are intended to change existing FAR requirements.” The FAR is replacing the term “shall” with “must” or “will.” There are also updates to all cross-references. One main goal of the RFO was to retain only “provisions that are required by statute or that are otherwise necessary to support simplicity and usability, strengthen the efficacy of the procurement system, or protect economic or national security.” So, all regulations with a statutory basis were to be retained, along with “non-statutory requirements that further one or more of the elements of sound procurements.” Helpful information was moved to non-regulatory resources such as the FAR Companion, “which provides insight from experienced practitioners across the government on using more streamlined practices and processes.” The RFO focuses on discretion. “RFO rules propose to eliminate mandates that unnecessarily interfere with agency discretion to determine the best way to procure products and services. The proposed RFO rules highlight more clearly streamlined and simplified authorities that allow buyers to use their time more efficiently and are expected to reduce time between solicitation and award.” The RFO “continues to promote competition, recognizing it as a vital mechanism for driving innovation, achieving better value, while prioritizing participation of domestic suppliers to foster a resilient and competitive American industrial base. Finally, it encourages innovation, urging agencies to explore and adopt new technologies, processes, and approaches that can lead to more efficient, effective, and transformative outcomes in government contracting.” Regulatory Sunset The rule will include a new section that “establishes a process to review sections, provisions and clauses in the FAR, and identify those policies that are no longer required or are outdated and can be removed from regulation through rulemaking.” As part of that process, the FAR Council plans to issue a “future proposed rule at regular timed increments requesting public input on policies that should be reviewed and considered for sunset.” Notable Changes in FAR Parts 1, 2, 4, 33, 39, 40, 52, and 53. Interestingly, the commentary preceding the proposed rules does not have a significant list of changes as compared to the original publication of the RFO. We interpret that to mean that the rules in the Federal Register are similar to those published on the RFO site. Here are some changes or language that drew our attention. “This rule proposes to change the meaning of the acronym ‘MAC’ from ‘multi-agency contract’ to mean ‘multiple-award contract’.” That is a helpful change that eliminates some confusion. A new acronym list. “This rule proposes to add a new subpart 2.102, Acronyms, and abbreviations. The list of acronyms and abbreviations will be located at https://www.acquisition.gov/far-acronyms.” This will provide a centralized listing of acronyms. Reduce SAM Reps and Certs. “Proposed changes to FAR part 4 include streamlining the registration process in SAM by only having entity level representations and certifications in SAM. Representations and certifications that are procurement-specific . . . or completed by submission of an offer will be removed from SAM and used in solicitations . . . .” Agency protests encouraged. For protests that request “independent review by an official at a level above the contracting officer,” the protester can receive “a redacted copy of the agency’s final technical evaluation of the protester’s proposal and a redacted copy of the source selection decision” and can “raise additional protest grounds, within a reasonable time set by the independent review official.” The goal is “to build confidence in agency protests, and resolve more protests at the agency level.” The proposed rule at Part 40 would incorporate various other proposed rules dealing with cybersecurity, Controlled Unclassified Information, Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment, Federal Acquisition Supply Chain Security Act of 2018, and others. Renumbering of clauses: “As a result of the RFO, the FAR Council is considering establishing a new FAR subpart in part 52, and relocating and renumbering all provisions and clauses under this new subpart. This means, if subpart 52.4 was used, all provisions and clauses would begin with 52.4 instead of 52.2.” Subcontract flow-downs. “This proposed rule, if finalized, would revise the subcontract paragraphs in these clauses to clearly state whether the clause flows down to commercial subcontracts, as outlined in the table” included in the rule. We at SmallGovCon will continue to review these proposed changes and highlight any specific items that contractors should pay special attention to. Be sure to review and comment on these proposed changes if you have concerns about them. Questions about this post? Email us. Need legal assistance? 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 Formal Revolution: FAR Council Releases Proposed Formal Rules to Start RFO Rulemaking Process first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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You have your eye on a solicitation. You know the work, you know the customer, and you are certain that you would be a front-runner for the award. Then, you learn that the agency is limiting competition for the procurement, and you can no longer compete for the contract. Immediately, you think that the agency must have made a mistake. After all, you were fully prepared to submit a proposal and perform the work. But is believing you could have competed for the contract and won the award enough to satisfy the requirements for filing a bid protest? A recent COFC decision answers this question. In CSI Aviation, Inc. v. United States, No. 25-1338C, 2026 WL 1296071 (Fed. Cl. May 4, 2026), CSI filed a bid protest in the COFC, challenging the Department of Homeland Security’s (DHS) decision to conduct a limited competition procurement as this excluded CSI from competition for providing comprehensive support for removal operations (CSRO) services. However, the COFC ultimately found that CSI failed to prove that it was an interested party and that it had suffered prejudice due to an error made by the agency. The COFC applied the following two-part test in determining whether CSI could challenge the terms of the solicitation: a protestor must show that (1) it is an interested party; and (2) it was prejudiced by a significant error in the procurement process. Although these are two separate requirements, the same showing may be relevant and may even satisfy both. So, how are these requirements different and what does a protestor need to show to satisfy each? And how does it differ when a contractor is challenging a sole-source award? Interested Party Requirement The COFC has held that an interested party is “an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” 31 U.S.C. 3551. This requires that the protestor show that it had a “substantial chance” of winning the contract to establish that it has a direct economic interest and is therefore an interested party. This is independent from any error that the agency may have made and focuses only on the protestor’s chances of winning. In the sole-source context, this means that the protester must allege facts and evidence to show that it can perform the contract just as well as the chosen awardee. After all, a sole-source decision means the agency determined that no other offerors can meet the requirements. Prejudice Requirement The protestor must also demonstrate that it was prejudiced by the agency’s significant error in the procurement process. Unlike the interested party requirement, this requirement focuses on the impact that the agency’s error had on the protestor’s chances of success. The Court of Federal Claims requires that the protester show that it would have had a substantial chance of winning the contract had the agency not made the error. Ultimately, “showing that the government erred in some procurement does not matter for an actual or prospective offeror that cannot pursue or perform the contract.” Therefore, the protestor must show that it can actually perform under the contract to demonstrate that it suffered prejudice. COFC’s Findings Unfortunately, CSI ran into trouble because it failed to allege any facts demonstrating its ability to perform under the contract. Although CSI asserted that it was an interested party, it did not present any facts demonstrating that it could perform the work sought by the solicitation. CSI merely restated the applicable legal standards and neglected to use any factual support for its claim that it was an interested party or that it had suffered prejudice. The court summarized it this way: “CSI’s complaint provides no factual allegations regarding CSI’s capability to perform the full scope of CSRO services. Indeed, CSI included only a single paragraph in its complaint regarding its various government contracts and the scope of its capabilities.” Plus, CSI’s briefing included “no discussion of CSI’s qualifications, its past work and experience, its ability to engage subcontractors, the willingness of potential subcontractors to perform elements of the scope of work that CSI could not perform, or anything of that sort.” The COFC noted that “the fact that CSI could have submitted a proposal had DHS engaged in a full and open competition proves absolutely nothing.” Regrettably, CSI’s failure to plead facts alongside its legal conclusions resulted in the COFC finding that CSI had not proven that it was an interested party or that it had suffered prejudice. Conclusion This case illustrates what a contractor must show if it wants to challenge a limited-source procurement, under both the interested party requirement and prejudice requirement. Although closely related and often satisfied by making the same showing with the same set of facts, each requirement is separate and distinct from the other. However, the bottom line is that simply restating the legal standards and making unsupported conclusions is not enough for the COFC. The protestor must plead and prove facts demonstrating that it is an interested party and has suffered prejudice by demonstrating that the protester can perform under the contract. You may believe that you would be a competitive bidder or could perform under the contract, but that does not automatically make you an interested party or show that you suffered prejudice. If you are interested in learning more about why you might want to consider filing a bid protest in the COFC, check out this previous article. If you decide to file a bid protest in the COFC or need assistance identifying which facts are important to show interested party status and prejudice, feel free to reach out to us. Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook The post “I Could Have Competed” Won’t Cut It: COFC Requires Showing Contractor Could Perform Work if it Wants to Protest Solicitation Terms first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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If your small business performs federal government contracts, chances are, you’ve already calculated your small business’s compliance with the applicable limitation on subcontracting (LoS) a time or two. But whether you’re new to the LoS equation–or you’ve long since mastered that math–knowing which costs you can exclude from your calculations is vital. Indeed, such can impact everything from the accuracy of a bidder’s regulatory compliance representations and certifications to a contractor’s critical contract performance and subcontracting decisions. In fact, under current SBA affiliation regulations, LoS compliance can even provide a defense to certain contract-specific findings of affiliation. But calculating LoS compliance and determining exactly which costs to include and exclude on a given contract is not always easy or straightforward. And that’s why we so frequently get this question and break down the answer in this article. As an initial matter, if you need a refresher on (or are brand new to) the concept of the LoS and/or how the LoS generally applies and is enforced in federal contracting, take a quick beat to go review our “Back to Basics” article on the LoS before reading any further. And since that article so effectively breaks down the LoS in plain language, I won’t go into much detail on the generalities of the LoS here. Instead, I will just give a brief big picture overview of the governing LoS regulations here. The LoS rules are set forth both in the FAR and in SBA’s small business regulations–which are now substantively almost identical (thank goodness, after basically a decade of the two sets of rules’ conflicting terms finally being resolved by the FAR council and revisions). Specifically, FAR 52.219-14 contains the LoS clause for insertion into federal contracts. And similarly, SBA’s small business regulations on the LoS are found at 13 CFR § 125.6. Both of these rules establish LoS applicability to small business federal contracts over the simplified acquisition threshold and all socioeconomic set-aside federal contracts. And both spell out the various limitations for services, supplies, specialty trade, and construction contracts. Further, as relevant here, less so individually–and more so in the aggregate–these two LoS rules provide an (unfortunately somewhat convoluted) list of everything contractors calculating their compliance with the LoS are allowed to exclude from such calculations. Generally, that list consists of the following: (1) for services contracts, other direct costs (provided they are not the acquisition’s principle purpose and are not provided by small businesses); (2) for supplies, construction, and specialty trade contracts, costs of materials; (2) work subcontracted to similarly situated entities (SSEs); (3) for mixed contracts, the supplies portion of contracts with services NAICS codes and the services portion of contracts with supplies NAICS codes; and (4) work performed overseas on awards under the Foreign Assistance Act of 1961 or work required to be performed by a local contractor. (1) Other Direct Costs Not the Acquisition’s Principal Purpose & Not Provided by Small Businesses (Services Contracts). Under the section of SBA’s LoS regulations setting the services contract subcontracting limitation, it states: Other direct costs may be excluded to the extent they are not the principal purpose of the acquisition and small business concerns do not provide the service, such as airline travel, work performed by a transportation or disposal entity under a contract assigned the environmental remediation NAICS code (562910), cloud computing services, or mass media purchases. (2) Costs of Materials (Supplies, Construction, Specialty Trade Contracts). Under the sections of SBA’s LoS regulations setting the subcontracting limitations for supply, construction, and specialty trade contracts, it further states in each such section: “Cost of materials are excluded and not considered to be subcontracted.” And though what consists of “cost of materials” may be straightforward on most contracts, just in case it isn’t so clear for others, the term is defined elsewhere in SBA’s small business regulations as follows: Cost of materials means costs of the items purchased, handling and associated shipping costs for the purchased items (which includes raw materials), commercial off-the-shelf items (and similar common supply items or commercial products that require additional manufacturing, modification or integration to become end items), special tooling, special testing equipment, and construction equipment purchased for and required to perform on the contract. In the case of a supply contract, cost of materials includes the acquisition of services or products from outside sources following normal commercial practices within the industry. (3) Work Subcontracted Similar Situated Entities (SSEs). Since the FAR’s council’s updates to the FAR’s LoS regulations, both those rules and those in SBA’s LoS regulations now spell out the ability to “exclude” work subcontracted to an SSE under federal contracts. But it is actually important to note a distinction here from the other more true-to-label “exclusions” discussed in this article. Rather than actually excluding or not counting SSE subcontracted work, the contractor actually does count such work–it just counts toward the contractor’s compliance with the applicable LoS. For example purposes, we will look at the rule for services contracts discussed in the FAR’s LoS regulations. But notably, the corresponding SBA’s LoS rule says essentially the same exact thing. The FAR rule requires the prime contractor on such contracts to agree that it “will not pay more than 50 percent of the amount paid by the Government for contract performance to subcontractors that are not similarly situated entities.” And it adds, “[a]ny work that a similarly situated entity further subcontracts will count towards the prime contractor’s 50 percent subcontract amount that cannot be exceeded.” Also, both the FAR’s and SBA’s LoS regulations contain basically this same SSE language in the other sections providing the limitations for supplies contracts (except for those applying and subject to the nonmanufacturer rule instead), as well as those for construction and specialty trade construction contracts. The FAR’s rule further defines an SSE, for purposes of the LoS, as a first-tier subcontractor, including an independent contractor, that—(1) Has the same small business program status as that which qualified the prime contractor for the award (e.g., for a small business set-aside contract, any small business concern, without regard to its socioeconomic status); and (2) Is considered small for the size standard under the North American Industry Classification System (NAICS) code the prime contractor assigned to the subcontract. And in SBA’s same definition regulations where cost of materials is defined (as referenced and linked above), it also states: Similarly situated entity means a subcontractor that has the same small business program status as the prime contractor. This means that: For a HUBZone contract, a subcontractor that is a certified HUBZone small business concern; for a small business set-aside, partial set-aside, or reserve, a subcontractor that is a small business concern; for a SDVOSB contract, a subcontractor that is a certified SDVOSB; for a VOSB contract, a subcontractor that is a certified VOSB; for an 8(a) contract, a subcontractor that is a certified 8(a) BD Program Participant; for a WOSB or EDWOSB contract, a subcontractor that is a certified WOSB or EDWOSB. In addition to sharing the same small business program status as the prime contractor, a similarly situated entity must also be small for the NAICS code that the prime contractor assigned to the subcontract the subcontractor will perform. One important aspect of SSE to keep in mind though, as detailed in the blog on the subject linked above, is that to qualify as an SSE, a contractor must meet the prime contract’s socioeconomic set-aside designation and must also be considered small for the NAICS code assigned to the subcontract. There is often confusion on the later requirement, as it is not the prime contract’s NAICS code’s size that governs qualification as an SSE, it is the one assigned to the subcontract itself that the subcontractor is performing under. Sometimes, that NAICS code is different than the prime contract’s where the subcontractor’s specific work and scope of work better qualifies under a more specific or different NAICS code than the prime contract. (4) Portion of Mixed Contract Not Represented by Contract’s Assigned NAICS Code. SBA’s LoS regulations have an entire section dedicated to mixed contracts. There, SBA’s regulations state: Where a contract integrates any combination of services, supplies, or construction, the contracting officer shall select the appropriate NAICS code as prescribed in § 121.402(b) of this chapter. The contracting officer’s selection of the applicable NAICS code is determinative as to which limitation on subcontracting and performance requirement applies. Based on the NAICS code selected, the relevant limitation on subcontracting requirement identified in paragraphs (a)(1) through (4) of this section will apply only to that portion of the contract award amount. In no case shall more than one limitation on subcontracting requirement apply to the same contract. SBA’s rules even contain three examples to elucidate this point, as follows: Example 1 to paragraph (b). A procuring agency is acquiring both services and supplies through a small business set-aside. The total value of the requirement is $3,000,000, with the supply portion comprising $2,500,000, and the services portion comprising $500,000. The contracting officer appropriately assigns a manufacturing NAICS code to the requirement. The cost of material is $500,000. Thus, because the services portion of the contract and the cost of materials are excluded from consideration, the relevant amount for purposes of calculating the performance of work requirement is $2,000,000 and the prime and/or similarly situated entities must perform at least $1,000,000 and the prime contractor may not subcontract more than $1,000,000 to non-similarly situated entities. Example 2 to paragraph (b). A procuring agency is acquiring both services and supplies through a small business set-aside. The total value of the requirement is $3,000,000, with the services portion comprising $2,500,000, and the supply portion comprising $500,000. The contracting officer appropriately assigns a services NAICS code to the requirement. Thus, because the supply portion of the contract is excluded from consideration, the relevant amount for purposes of calculating the performance of work requirement is $2,500,000 and the prime and/or similarly situated entities must perform at least $1,250,000 and the prime contractor may not subcontract more than $1,250,000 to non-similarly situated entities. Example 3 to paragraph (b). A procuring activity is acquiring both services and general construction through a small business set-aside. The total value of the requirement is $10,000,000, with the construction portion comprising $8,000,000, and the services portion comprising $2,000,000. The contracting officer appropriately assigns a construction NAICS code to the requirement. The 85% limitation on subcontracting identified in paragraph (a)(3) would apply to this procurement. Because the services portion of the contract is excluded from consideration, the relevant amount for purposes of calculating the limitation on subcontracting requirement is $8,000,000. As such, the prime contractor cannot subcontract more than $6,800,000 to non-similarly situated entities, and the prime and/or similarly situated entities must perform at least $1,200,000. But in the FAR’s LoS regulations, there is not a separate section dedicated to mixed contracts like SBA’s LoS regulations contain. Rather, those regulations just note under the services contracts section, “[w]hen a contract includes both services and supplies, the 50 percent limitation shall apply only to the service portion of the contract.” And they similarly state under the supplies contracts section, “[w]hen a contract includes both supplies and services, the 50 percent limitation shall apply only to the supply portion of the contract[.]” (5) Overseas Work Under Foreign Assistance Act of 1961 or Subject to Local Contractor Hiring Requirements. Finally, SBA’s LoS regulations state, “work performed overseas on awards made pursuant to the Foreign Assistance Act of 1961 or work required to be performed by a local contractor, is excluded.” * * * So, as you can see here, it is not always simple to calculate a contractor’s compliance with the LoS under SBA’s rules or the FAR’s. Nor it is always easy to know exactly what to exclude from such calculations–or similarly, to count toward the prime’s compliance “bucket” or against it (i.e., as work “subcontracted” to a non-SSE). But knowing what both SBA’s and the FAR’s LoS rules say about the various items that can and should be excluded–and about SSE’s and how to count their work–can certainly help the process. Questions about the LoS or this post–or need help calculating your own compliance or that of your team member? Email us. Need legal assistance? Call us at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post GovCon FAQs: What Costs Can I Exclude From Limitations on Subcontracting Calculations? first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Juneteenth is a day to celebrate freedom, reflect on history, and recognize how far we’ve come as a country. Observed each year on June 19, it marks the day in 1865 when enslaved people in Texas finally learned they were free—more than two years after the Emancipation Proclamation was issued. Whether you’re attending a local event, spending time with family, or simply taking a moment to learn more about the holiday, we hope you have a wonderful weekend. Happy Juneteenth! This week in federal contracting news includes stories on the recent DEI order, use of AI in government procurement, and the first look at the upcoming NDAA defense spending bill. SASC moves to codify Trump’s EO targeting defense stock buybacks 20 attorneys general sue Trump administration over federal contractor DEI order Everybody studies government contracting, but can outsiders actually move it? Trump administration builds on Tech Force model to recruit IT workers for short-term jobs Agencies are doubling down on AI upskilling, but they may be solving the wrong problem DoD’s $9.7B award for Microsoft products derailed by protest Senate Armed Services Committee releases NDAA details Politics: Defense contractors would be barred from buying back their stock in bill approved by Senate panel National Institutes of Health to Sunset Governmentwide Contracts in October Treasury planning online system for people to report suspected fraud Former Intelligence Community Contractor Pleads Guilty to Accepting Kickbacks SASC Chairman Roger Wicker and Ranking Member Jack Reed Announce FY27 NDAA Filing The public’s opinion of civil servants continues to climb Senate NDAA proposes CMMC grant program Transparency coming to OTAs, value of VARs The post SmallGovCon Week in Review: June 15-19, 2026 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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As regular SmallGovCon readers surely know, federal agencies have a great deal of discretion when procuring products and services. Protesters are often facing an uphill battle in attempting to demonstrate an agency abused that discretion in making an award. This is because typically, so long as the agency properly documents its decision making process, sticks to the solicitation terms, and there is documentation in the record that reasonably supports the agency’s decision, GAO will rule in the agency’s favor. Nevertheless, there are occasions when the agency will apply evaluation criteria unevenly, or base its decision on facts or considerations that are not allowed under the Solicitation. This is precisely what happened in a recent GAO protest which resulted in a win for the protester, and serves as a great reminder for contractors as to what situations may result in a successful bid protest. In Amentum Technology Inc., B-423898 et al., (Comp. Gen. 2026) the Defense Intelligence Agency (DIA) issued a task order proposal request (TOPR) seeking to support the United States Central Command (USCENTCOM) Intelligence Directorate in performing consolidated intelligence analysis and associated activities. The solicitation anticipated award would be made to the highest technically evaluated proposal with a fair and reasonable price, considering price reasonableness and a single non-price factor. Under these procedures, the agency would first evaluate offerors’ technical proposals to assess offerors’ ability to meet the requirements set forth in the performance work statement (PWS). DIA was supposed to consider, in order of importance, the offeror’s: (1) proposed approach, similar expertise, and substantial understanding of applicable PWS areas, (2) depth of knowledge and expertise, and (3) management approach. These three subfactors would make up the technical factor evaluation. Offerors provided technical proposals via an oral presentation, and DIA was required to assess its “confidence level” for each offeror and assign a corresponding rating of “high,” “some,” or “low” confidence. The agency would then evaluate price proposals to ensure that the highest technically evaluated proposal was proposed at a fair and reasonable price. The three offerors discussed in this decision were GDIT (the awardee), SOSi, and Amentum. GDIT received a technical rating of “high confidence” and proposed a price of $814,949,286; SOSi received a “high confidence” technical rating and proposed a price of $806,643,630; and Amentum (the incumbent) received a “some confidence” technical rating and proposed a price of $789,562,142. The source selection authority determined that GDIT’s proposed price was fair and reasonable and issued the task order to GDIT, at which point both Amentum and SOSi filed protests. Documenting the Decision As always, GAO emphasized that evaluation of proposals in a task order competition, including the determination of the relative merits of proposals, is primarily a matter within the agency’s discretion and that it doesn’t reevaluate proposals but instead examines the record to determine whether the evaluation and decision were reasonable and consistent with the solicitation’s evaluation criteria. However, GAO noted it will sustain a protest if the agency’s conclusions are inconsistent with the solicitation’s evaluation criteria, undocumented, or not reasonably based. Turning to the subject procurement, SOSi received a single negative finding, which stemmed from the proposal’s reference to a legacy network. DIA “believed” that SOSi referred to a regional information exchange system that had been used to support a specific operation in Afghanistan and was out of date by over eight years. However, nowhere in the record (in this case, an audio recording of SOSi’s oral presentation) was there any reference to the legacy network in question. GAO stated: “An agency that fails to provide documentary support for its evaluation of proposals or source selection decision bears the risk that its determinations will be considered unsupported, and absent such support, our Office may be unable to determine whether the agency had a reasonable basis for its determinations. Here, the agency asks us to accept the decreased confidence finding for SOSi’s oral presentation by simply referring to the evaluators’ conclusion, yet offers nothing from the audio recordings of the offerors’ oral presentations, the contemporaneous record, or otherwise to support that conclusion.” As a result of this lack of documented evidence, GAO agreed with SOSi, that the Agency’s evaluation was not supported by the record (as it didn’t show this regional information exchange system) and sustained its protest. As you likely know, an essential element of any viable protest is the existence of prejudice against the protester, meaning, “but for the agency’s actions, it would have had a substantial chance of receiving the award.” Here, when DIA determined that GDIT had the highest technically evaluated proposal, DIA had relied on the understanding that GDIT did not refer to antiquated legacy networks, while believing SOSi did refer to antiquated legacy networks. Because GAO could not find anything in the record to establish a reasonable basis for the agency’s decision related to SOSi, it could then not say “what impact a reasonable evaluation would have made on the agency’s identification of the highest technically evaluated proposal,” as both DGIT and SOSi “would have been assigned the same rating of ‘high confidence’ with neither proposal having been assessed a ‘decreases confidence’ finding.” When in doubt regarding prejudice, GAO resolves doubts in favor of the protester, and therefore concluded that SOSi had established the prejudice necessary to sustain the protest. Unequal Evaluation Moving to the other basis for the sustain here, Amentum, argued that the difference between its proposal and GDIT’s was the result of “a systematically unfair evaluation” which subjected it to more scrutiny than GDIT. GAO explained that it is “a fundamental principle” that an agency must “treat all offerors equally and evaluate their proposals evenhandedly against the solicitation’s requirements and evaluation criteria.” An example of disparate treatment according to GAO would be “reading some offerors’ proposals in an expansive manner and resolving doubt in favor of the offeror, while reading other offerors’ proposals narrowly and applying a more exacting standard that requires affirmative representations within the four corners of the proposal” The evaluation in question for this protest ground revolved around GDIT’s and Amentum’s responses to questions involving their planned approach to “upskilling” incumbent employees who would be hired to perform the task order. GDIT received credit for mentioning specific aspects of the PWS where it had upskilling plans in place, whereas Amentum was penalized for allegedly omitting any reference to that aspect of the PWS in its proposal. GAO once again found no evidence in the record that Amentum actually failed to address this aspect of the PWS in its oral presentation; on the contrary, GAO found Amentum specifically invoked upskilling in connection with the referenced component. GAO observed that, although DIA attempted to identify other distinctions between GDIT’s proposal and Amentum’s proposal, the agency’s explanation for the difference was limited to “reiterating the bare conclusions from the evaluation record.” On that record, GAO could not determine whether the agency’s different evaluation conclusions were the result of differences in the proposal or instead from different approaches to evaluation overall. “[T]he agency’s decision to award GDIT an increase in confidence and Amentum a decrease in confidence for training, supports the protester’s contention that DIA established a different and higher standard of review to evaluate Amentum’s proposal, which amounted to an unequal evaluation.” Therefore, the protest was also sustained on this protest ground, which GAO writing: “we find that we cannot determine that these areas of the agency’s evaluation were reasonable, and because the record does not show how a proper evaluation would have affected the identification of the highest technically evaluated proposal, we conclude that the protester was prejudiced by the agency’s evaluation.” Conclusion This case illustrates several standards that protesters have to satisfy when bringing an award protest to GAO. These standards are things that need to be kept in mind by contractors when they learn they did not get an award and are contemplating a protest. If you are a potential protester merely questioning the logic behind the agency’s decision, you are likely in for a losing effort. But, if on the other hand you can show that the agency essentially acted arbitrarily by failing to document its process in a meaningful way, you have a much better likelihood of protest success. Federal agencies must adequately document their evaluation processes, and when one fails to do so, it likewise makes sense to set such an award decision aside. Finally, if a protester can show that the agency applied uneven or unfair evaluation standards—typically by treating one similar offeror favorably and another disfavor ably for no discernable reason—GAO could sustain a protest on this basis. If you are a contractor, keep these items in mind when you review an award decision or get a debrief. Then if you think there may be grounds for a protest, or have questions about protests, reach out to federal contracting attorneys, like us, to talk further. 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 GAO Sustains Protest Due to Agency’s Inadequate Documentation and Unequal Evaluation of Offerors first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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SBA is proposing to amend its 8(a) Program rules to “remove the rebuttable presumption that individuals belonging to certain designated groups are socially disadvantaged and set forth revised standards for individuals establishing social disadvantage.” This proposed rule continues the trend that has been building since the Ultima decision in 2023. In 2023, a federal court said that the rebuttable presumption of social disadvantage under the 8(a) is unconstitutional as it violates the right to equal protection. Based on that decision, SBA stopped relying on the presumption of social disadvantage. Three years later, SBA is proposing to formally eliminate any mention of the presumption from the regulations. SBA would replace the individual social disadvantage narrative with a test that looks to whether a person experienced discrimination on the basis of race through programs like affirmative action. Here are some key points from the proposed rule. The proposed rule is titled “Reforms To Remove SBA’s 8(a) Program’s Rebuttable Presumption of Social Disadvantage for Individually Owned Firms Only; Reforms Do Not Impact Entity-Owned Firms.” It was released on June 11, 2026. Comments must be received on or before July 13, 2026. Press Release In its press release touting the proposed rules, SBA indicated that its goal is to “dismantle the race-based admissions framework that previously barred Americans of certain races from accessing 8(a) set-aside and sole-source contracting opportunities.” In addition, SBA stated that “all applicants will be required to prove their social disadvantage status by submitting verifiable, fact-based evidence.” The press release also noted that “From 2021 through 2024, the Biden Administration approved roughly 2,100 new 8(a) firms, compared with just 65 approved to date under the Trump Administration.” Scope: Not Entity-Owned Firms As an initial point, the “proposed rule applies only to the 8(a) BD eligibility of small businesses owned and controlled by individuals.” It does not impact “the eligibility of entity-owned small businesses (i.e., those owned by tribes, Alaska Native Corporations, Native Hawaiian Organizations, or Community Development Corporations).” Background The Small Business Act says that a socially disadvantaged individual is “those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities.” 15 U.S.C. 637(a)(5). In 2023, a federal court “enjoined the SBA from continuing to use the Rebuttable Presumption in administering the program. “Practically speaking, these regulations, both the text and its application, rendered white Americans almost totally unable to participate in the program.” New Standard The current language at 13 CFR 124.103(b) would be removed. That language pertains to “Members of designated groups” and states that “[t]here is a rebuttable presumption that the following individuals are socially disadvantaged” and then lists certain groups as socially disadvantaged, including Black Americans; Hispanic Americans; Native Americans; and Asian Americans. “SBA proposes replacing the current regulatory tests for social disadvantage with a new test.” SBA has not been enforcing this part of the rule with respect to designated groups for a number of years, but now has proposed to make it official in the regulations. This new test would look at whether government or provide entity was biased against a “definable racial, ethnic, or cultural group.” SBA describes this as follows: SBA proposes a test by which any individual American citizen can establish social disadvantage by showing that within his or her lifetime, the federal or a state or local government or a university or corporation, through any action, policy, rule, regulation, or other practice of any of its agencies, subsidiaries, or authorized agents, discriminated or was biased against a clearly definable racial, ethnic, or cultural group of which the citizen is a member, or favored in any way a racial, ethnic, or cultural group of which the citizen is not a member, and that the discrimination, bias, or harm materially harmed the citizen. Examples of such discrimination would include, but are not limited to: unlawful diversity, equity, and inclusion programs or policies; unlawful affirmative action programs or policies; race-based quotas, set-asides, or hiring targets; or, any government or private entity policies or programs that favored some groups over others on the basis of race.” The social disadvantage narrative would go away: “In proposing these social disadvantage changes, SBA considered maintaining the individual test for social disadvantage under the current 13 CFR 124.103(c) as an alternative means to establish social disadvantage but rejected that option. SBA believes that its limited resources are best served through its proposed social disadvantage test because it does not require an individualized narrative of personal disadvantage that opens the program to abuses and unconstitutional discrimination.” In addition, SBA stated “While SBA does not currently intend to apply the new test to current Participants at their next annual review, SBA requests comment on any reliance interests that would be implicated by these proposed changes.” Under the proposed rule, social disadvantage can be shown if a a governmental or private entity “discriminated or was biased against a clearly definable racial, ethnic, or cultural group of which the citizen is a member, or favored in any way a racial, ethnic, or cultural group of which the citizen is not a member.” A citizen can show bias if the governmental or entity action “disadvantaged the citizen’s group or that the government or private entity took adverse actions against or otherwise disfavored the citizen’s group. Such actions, policies, rules, regulations, or other practices favoring or disfavoring groups may include, but are not limited to: unlawful diversity, equity, and inclusion programs or policies; unlawful affirmative action programs or policies; race-based quotas, set-asides, or hiring targets; or, any policies or programs that favored some groups over others on the basis of race.” Two specific examples of bias in the proposed rule would include: “(A) Such actions, policies, rules, regulations, or other practices include prior iterations of 13 CFR 124.103 that excluded the Citizen’s racial or ethnic group as a group entitled to a rebuttable presumption of social disadvantage; and (B) Such actions, policies, rules, regulations, or other practices also include situations where the citizen’s group was disadvantaged in college or university admissions decisions or otherwise discriminated against by a private entity in an unlawful manner.” This proposed rule would eliminate the individual social disadvantage narrative. In its place would be a test of social disadvantage based, it appears, solely on discrimination by the government or a private entity that specifically targeted a racial group. There is an emphasis on government-imposed discrimination such as DEI. So, it seems that SBA would look to those types of examples to show social disadvantage. This rule represents a big departure from prior iterations of the 8(a) Program. Beyond the language of the proposed rule, contractors will have to see how SBA will actually enforce and apply these rules. Additional guidance or operating procedures would be helpful for contractors to know how these rules will be applied. 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 Breaking: SBA Proposes to Remove Social Disadvantage Presumption for 8(a) Program first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Happy Friday! We’ve seen a busy storm season lately across the region and the US. It’s that time of year as we transition from spring to summer. Hope all of our readers are staying safe amidst all this weather. It’s also been a busy week in the federal contracting world, with major developments including NIH shutting down its multiple award contracts, and increased focus on AI at GSA and other agencies. As the week comes to a close, read on to stay up to date on some of these stories. This weekend, it’s a good opportunity to recharge and enjoy the weekend before another busy week ahead. GSA reexamining data that shows no building is meeting minimum occupancy target NIH contracting arm announces sunset of all governmentwide vehicles GSA playing catch-up with industry on AI and tech, agency head says HASC challenges Trump’s EO ending bargaining rights for DoD workers OPM hiring for positions to build out AI across the government Fixed-price contracts in a world of uncertainty Burchett Leads Roundtable on Saving Taxpayers Money with Military Contracts States sue Trump administration over anti-DEI terms in federal contracts OPM awards major HR IT modernization contract to Oracle Oracle wins contract for first-ever governmentwide HR system CISA directive orders agencies to prioritize vulnerability patching in a new way The post SmallGovCon Week in Review: June 8-12, 2026 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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First launched in 2016 as the “All Small Mentor-Protégé Program,” this powerful initiative by the U.S. Small Business Administration (SBA) has evolved—but it remains a game-changing tool for both small and large federal contractors. In this informative webinar, SmallGovCon contributor and government contracts attorney, Gregory Weber, will break down the key elements of the SBA Mentor-Protégé Program. You’ll learn how this program can help small businesses enhance their capabilities and compete for larger contracts—with the support of an experienced mentor. The session will also cover how mentor-protégé joint ventures can create new contracting opportunities and expand your footprint in the federal marketplace. Additionally, we will provide an introduction to the even older DoD Mentor-Protege Program, which set the stage for the SBA’s program, and compare the two programs. Topics include: -Who is eligible and how to qualify -The benefits of participating as a mentor or protégé -How to form compliant mentor-protégé joint ventures -Key steps in the application process -Common myths, misconceptions, and pitfalls to avoid Why attend? Whether you’re a small business (SDVOSB, WOSB, HUBZone, 8(a), or SDB) looking to grow, or a large business interested in partnering with eligible firms, this webinar will equip you with the knowledge you need to take advantage of one of the SBA’s most impactful programs. Target Audience: Small businesses (SDVOSB, WOSB, HUBZone, 8(a), SDB) and large businesses seeking to do business with the federal government through strategic partnerships. Don’t miss this opportunity to explore how the SBA Mentor-Protégé Program can be a catalyst for growth and collaboration in federal contracting. Register here. The post Webinar: Mentor-Protégé Agreements, June 25, 2026, hosted by Empire APEX Accelerators first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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As a general rule, when it comes to compliance with a solicitation’s size standard, what matters is the size of the entity at the time it submits its initial offer per 13 C.F.R. § 121.404(a). This is something we’ve seen several times before in other cases. However, that is just the general rule, and there are several exceptions that can change things greatly. Indeed, when it comes to compliance with SBA’s joint venture requirements, we noted earlier this year (in a decision that preceded the one we discuss in this post) and before that such is determined at the time of final proposal revisions as opposed to the initial bid. Recently, a mentor-protégé joint venture learned the hard way via a decision from the Court of Federal Claims (COFC) that the initial offer size rule doesn’t change this requirement. Today, we’ll explore that decision. Back on October 24, 2022, Distinctive Home Care, Inc. (Distinctive), a large business, and Anglin Consulting Group, Inc. (Anglin), the protégé, entered into a mentor-protégé agreement (MPA) that received SBA approval. When the Defense Health Agency (DHA) issued a solicitation on November 15, 2022, the two companies formed a joint venture, Primary Health Care, LLC (“PHC”), to go after this procurement. PHC submitted an initial offer not long thereafter. On January 30, 2024, for whatever reason, Distinctive informed SBA that it wished to terminate its MPA with Anglin. This ended the MPA. PHC continued to exist and continued to await word on award for that solicitation. DHA requested revisions for proposals, and PHC provided a revised proposal on November 13, 2024, and January 16, 2025. A final proposal was submitted sometime thereafter. Initially, DHA made award to PHC. However, another successful offeror protested that PHC lacked the proper MPA, and so their sizes had to be combined for the procurement. SBA’s local area office in turn agreed with this, saying that PHC was small at its initial offer, but not at the date of final proposal revision as the MPA was no longer in place. SBA’s Office of Hearings and Appeals affirmed the area office’s decision, and PHC brought the matter to the Court of Federal Claims, bringing us to Primary Health Care, LLC v. United States, No. 25-1795C, 2026 WL 1530132 (Fed. Cl. May 12, 2026). The Court of Federal Claims noted that 13 C.F.R. § 121.404(f) states quite plainly that “[c]ompliance with…the joint venture agreement requirements in…§§ 125.8(b) and (c) of this chapter, as appropriate, is determined as of the date of the final proposal revision for negotiated acquisitions and final bid for sealed bidding.” Yes, 121.404(a) says that generally size is determined at initial offer, but that is a different question from whether the joint venture agreement complies with 13 C.F.R. 125.8(b) and (c) at the time of final proposal revisions. PHC’s argument that all that matters is size at the time of the initial offer would essentially undercut the rule of § 121.404(f). Previous versions of § 121.404 did not require evaluating the joint venture agreement’s compliance at the time of final proposal revisions, but that was changed in 2020. Indeed, SBA’s own commentary on the amendment of § 121.104 noted: C]ompliance with … [the] joint venture agreement requirements can justifiably change during the negotiation process. If an offer changes during negotiations in a way that would make a large business mentor joint venture partner be in control of performance, for example, SBA does not believe that the joint venture should be able to point back to its initial offer in which the small business protégé partner to the joint venture appeared to be in control. 85 Fed. Reg. 66146, 66153. As the Court stated: “That suggests that the SBA specifically intended to foreclose the argument Plaintiff is making now, namely, that an offeror can “point back to its initial offer” when the relationship between the joint venturers has changed.” To summarize things, the big problem here was the decision by Distinctive to terminate the MPA prior to submission of final proposal revisions. This really was less an issue of size as it was joint venture agreement compliance. Had the MPA been in place at that time, it stands to reason that, assuming the JV agreement was otherwise compliant with 13 C.F.R. § 125.8, the question would have been what was Anglin’s size at the time of initial offer. The problem wasn’t primarily one of size, but that the joint venture agreement no longer complied with 13 C.F.R. § 125.8 at the time of final proposal revisions. This does create an interesting question of what would have happened if Distinctive were small at the time of initial offer but grew large by the time of final proposal revisions. In the case at hand, it appears the procurement process lasted well over a year. So, it’s not out of the realm of possibility. Joint venture agreements between small businesses don’t have any requirements to get the affiliation exception for small business set asides, but a large-small joint venture agreement will result in affiliation unless the joint venture agreement is made with an SBA-approved MPA in place and that complies with § 125.8(b) and (c). What if the combined sizes of Distinctive and Anglin at the time of initial offer were smaller than the size standard, would this mean that PHC would still be eligible for award? Also, would the MPA need to be in place at both time of initial offer and time of final proposal revisions, or just final proposal revisions? It is not clear what the result would be, but it is a good reminder that, if you’re in a JV and you or another member is near the size standard, it would be good to keep track of your MPA’s continued viability in order to keep the JV eligible for set-asides. 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 Important Exception to “Size at Initial Offer” Rule Dooms Award to Mentor-Protégé JV first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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We are excited to announce that Jordan Akins has joined the firm and will also be a regular SmallGovCon contributor! You can read her full biography here. And check out Jordan’s first post here, discussing SDVOSB status protest best practices. Before joining the firm, Jordan served as General Counsel for the state of Kansas, advising agencies and boards on statutes, regulations, and newly adopted legislation. Her diverse experience in state government helps her break down complex legal issues into practical, understandable guidance for clients. She is a recent graduate of the Washburn University School of Law, graduating in the top five percent of her class. In law school, Jordan earned CALI Excellence for the Future Awards in Constitutional Law, Trademark Law, Corporate Compliance, Criminal Procedure II, and Conflict of Laws. Jordan also enjoys reading, traveling, and spending time with family and friends. She lives in Lawrence, Kansas, with her fiancé and can often be found cheering on the University of Kansas Jayhawks. We are excited to have Jordan become part of the team here at SmallGovCon and Koprince McCall Pottroff LLC! The post Jordan Akins Joins Koprince McCall Pottroff LLC as Associate Attorney and SmallGovCon Contributor! first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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When filing a Service-Disabled Veteran Owned Business (SDVOSB) status protest, timing is critical. A single missed deadline may be the difference between a successful protest and a protest that is never heard. Missing established filing deadlines can result in your protest being dismissed, regardless of how compelling your arguments are. The Small Business Administration (SBA) will enforce these timing rules strictly. In particular, can a contractor ask the agency to simply investigate a company for SDVOSB compliance? And does such a request need to meet the timing requirements? A recent OHA decision answers these questions. The OHA’s decision in VSBC Protest of Suntiff, LLC, SBA No. VSBC-472-P (Apr. 13, 2026), involved Suntiff filing a request for a status investigation of a SDVOSB with the CO of the VA. Suntiff did not elect to file a status protest in its own capacity. Instead, Suntiff sent a letter requesting that the contracting officer (CO) pursue the status protest and adopt the protest as a CO’s protest. In particular, this protest asked the CO to investigate the awardee’s “performance of the contract” and “forward a copy of its request to” the SBA. The CO forwarded Suntiff’s request to OHA but did not explicitly adopt the protest. Ultimately, the OHA determined that “a CO must explicitly adopt a protest and say they are protesting a concern’s status if that protest is to be treated as a CO’s protest.” Because Suntiff did not file a status protest within five business days, and the CO did not elect to explicitly adopt the protest, the protest was dismissed as untimely. OHA made it clear that “Protestor could have filed a protest of its own with OHA within five business days of bid opening. 13 C.F.R. § 134.1004(a)(4). Protestor failed to do so. There is no ‘status investigation’ procedure in SBA’s regulations.” However, this does not mean that it is futile to request that the CO initiate a protest on their own behalf. In fact, this protest would have been timely if the CO had adopted it or if the protester had made clear that it was filing a protest of the award, assuming that it was an interested party. The caution is that you should not assume that the CO will automatically adopt a request that they initiate a protest of their own. Put another way, do not put all your eggs in one basket. This decision also serves as an important reminder to be mindful of timing. As noted in 13 CFR 134.1004(a)(2), the CO may file a SDVOSB status protest at any time after the apparent awardee is identified, or after the bid opens. Conversely, interested parties only have five business days to file a protest. 13 CFR 134.1004(a)(3)-(4). Unfortunately, losing sight of these deadlines may result in your protest being dismissed due to untimeliness in accordance with 13 CFR 134.1004(a)(6). As applied to this decision, the protester learned of the identity of the apparent successful offeror on February 26, 2026. But the protest was not filed until March 2, 2026. This actually fell within the timeline of five business days, which would end on March 5, 2026. But the protester did not file a protest, merely a “status investigation” request. If you are interested in learning more about why you might want to consider filing a SDVOSB status protest, we have covered that in a previous article. However, if you do decide to file a SDVOSB protest on your own behalf, 13 CFR 134.1004(b)(a) requires that the protest be delivered to the CO, typically by email. But do not lose sight of your deadline. 13 CFR 134.1005(a) further requires that the protest be made in writing and include the following information: The solicitation number or contract number You or your attorney’s name, address, phone number, email address, and signature Other pertinent information that you believe the Judge should consider Specific allegations supported by credible evidence that the protested concern does not meet SDVOSB eligibility requirements You may look at these requirements and believe you have a winning argument, but even the strongest argument may never be considered if you file after the deadline. If you find yourself overwhelmed with meeting deadlines or need help with an SDVOSB status protest, feel free to reach out to us. Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook The post Timing is Everything: The Key to Timely SDVOSB Status Protests first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Contracting with the federal government requires companies to operate under heightened ethical and compliance standards. At the same time, competitive intelligence and strategic business development efforts are often critical to remaining competitive in the government marketplace. Understanding where the legal and ethical boundaries exist under procurement law, however, is not always intuitive. In this informative webinar, SmallGovCon contributor and government contracts attorney Nicole Pottroff will break down the fundamentals of procurement integrity and explain the key ethics rules every federal contractor should understand. Attendees will gain practical insight into how ethics regulations apply throughout the contracting lifecycle and learn how to identify and avoid common compliance pitfalls that can expose organizations to significant legal and financial risk. Topics Covered: Appropriate boundaries for agency communications Conflicts of interest Kickbacks and contingent fee restrictions False claims liability and compliance risks Effective internal ethics plans and compliance programs This session is designed to help contractors better understand procurement law requirements, strengthen internal compliance efforts, and confidently navigate ethical challenges in the federal contracting environment. Target Audience: Government contractors and subcontractors, compliance and ethics officers, contract managers, business development and capture professionals Register here. The post Govology Webinar: Ethics in Federal Government Contracting, June 23, 2026 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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Happy Friday and happy June! We’ve received a lot of rain in our neck of the woods recently, so everything is looking green and lush before the heat of summer sets in. There’s the steady hum of lawn mowers as everyone tries to get the grass mowed in between rain showers and the gardens are growing nicely so far. While the cloudy days and frequent storms can be a little inconvenient at times, it’s hard to complain when everything is looking this beautiful. We’re looking forward to all that June has in store. We hope you have a great weekend. In federal government contracting news this week, catch up on stories related to more contractor transparency, a potential statutory addition for the small business rule of two, and cybersecurity updates. Warren and Grassley Introduce Bipartisan Legislation to Improve Defense Contractor Transparency 7 Air Force Contract Opportunities GovCons Should Watch in 2026 VA seeks information on new AI interface and API for workforce AI executive order sets stage for new cybersecurity directives Government Contractors Agree to Pay Over $3.6 Million to Settle False Claims Act and Contract Disputes Act Liability Two changes moving through the House would reshape how agencies buy Mullin testifies on DHS contract reviews, CISA staffing The Evolving Procurement Fraud Landscape: Emerging Risks for Government Contractors US Homeland Security cancels most pending Noem-era contracts after review Committee on Small Business Holds Hearing to Highlight the Role Small Businesses Play in National Security The post SmallGovCon Week in Review: June 1-5, 2026 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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In September 2024, following a temporary application and system pause, SBA switched over to a new, streamlined and unified application portal. Now, applications for the SBA’s 8(a) Program, HUBZone Program, Veteran-Owned Programs, and Woman-Owned Programs all go through MySBACertifications.Gov. Unlike prior portals and procedures, through this one, those eligible have the option to apply for multiple SBA small business contracting programs simultaneously. But the question is, what are the potential risks and benefits of doing so? As for the application process itself, there are several potential benefits of the simultaneous application submittal option. It is certainly the most efficient way to submit applications to the SBA for participation in multiple socioeconomic programs—given the significant overlap in the required documentation submissions and standard SBA vetting procedures. For example, an applicant’s formation and organizational articles and agreements, copies of licensing and registration forms, tax forms and financial information, and current teaming agreements, subcontracts and other 1099s, joint ventures, mentor-protege agreements, etc., will be required for all of SBA’s socioeconomic programs. Additionally, for those SBA socioeconomic programs with similar ownership and control requirements (i.e., WOSB/EDWOSB, SDVOSB/VOSB, and 8(a) Program), SBA requires similar documentation and information demonstrating the qualifying individual’s/individuals’ direct ownership and unconditional control of the applicant’s day-to-day and long-term business operations. SBA will also require information on and documentation from any additional owners for all of these programs’ applications. As part of SBA’s control analysis for all such programs, it will also almost always require further information and/or documentation regarding any spouse involved in the applicant’s business, as well as any officers, board members, and employees holding critical licenses. And that is just one of the many reasons SBA nearly always comes back to an applicant, after the initial application package is submitted for any of SBA’s socioeconomic programs, asking follow-up questions and requesting further information and documentation–prior to deeming any such application “complete” and making a final decision on certification. So, its easy to see the benefits of submitting all of the necessary documentation, providing all of the required information, answering all of SBA’s follow-up questions, and meeting all of SBA’s follow-up requests for all the socioeconomic programs an applicant is seeking certification in–all at once. Such is clearly the most efficient use of the applicant’s time and resources. But recently, we’ve discovered anecdotally that simultaneous application specifically to SBA’s 8(a) Program and to any, some, or all of SBA’s other socioeconomic programs may not be the best option–at least not for any applicant hoping to achieve certification in any of the latter SBA socioeconomic programs in a timely manner. Indeed, SBA has openly acknowledged “ongoing delays with 8(a) processing,” which have already blogged about here–and which can likely at least in part be traced back to recent 8(a) audits and investigations we’ve blogged about here and here. As a result of these 8(a) application-specific processing delays, multi-program eligible applicants may now want to seriously consider applying for all other desired SBA socioeconomic programs first and awaiting SBA’s decision(s) there before proceeding with 8(a) Program application. Anecdotally, SBA has suggested that certification for other socioeconomic programs could take far less time than 8(a) Program certification–at least for the time being–potentially looking at a matter of weeks for WOSB/EDWOSB and/or VOSB/SDVOSB processing versus a matter of several months for 8(a) processing. Again anecdotally, SBA has even offered applicants with multiple pending socioeconomic certifications the option to withdraw their 8(a) applications to allow their WOSB/EDWOSB and/or VOSB/SDVOSB applications to process in a much more timely manner. But in such scenarios, SBA has also cautioned that full-8(a)-reapplication would still be required once the other certifications are granted–meaning having to again upload all documents, answer all questions, provide all information, and undergo SBA’s vetting process all over again. For those multi-program-eligible applicants seeking 8(a) status above all others, it seems the best advice is likely still to get that 8(a) application in and completed as soon as possible. But for those multi-program-eligible applicants seeking 8(a) that also have plenty of other socioeconomic program opportunities on their radar, it seems waiting to submit for 8(a) until after SBA grants certification in the other socioeconomic programs may well be worth some thought. Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post GovCon FAQs: Should I Apply Simultaneously for All SBA Statuses I’m Eligible For? first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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In October 2025, the SBA suspended an 8(a) Program contractor called ATI Government Solutions, LLC (ATI) after suspension under the FAR. ATI appealed the 8(a) suspension, and the decision shows that SBA must still support its actions with adequate evidence, and reasonable argument linked to that evidence. OHA remanded the suspension matter for more documentation from SBA. In ATI Gov’t Sols., LLC, SBA No. BDPT-728 (May 18, 2026), OHA considered the suspension of ATI. SBA had begun an investigation into ATI back in October of 2025. On October 21, 2025, SBA’s Suspension and Debarment Official (SDO) had suspended ATI under FAR 9.407 based on the statements of a contract manager that, among other things “ATI uses its 8(a) status to act as a ‘pass-through’ for other businesses that would otherwise be ineligible for 8(a) awards” and “ATI routinely does not meet the limitations on subcontracting requirements on its 8(a) contracts.” FAR 9.407 deals with suspension of contractors across the executive branch, rather than just through the 8(a) Program, based on “adequate evidence, pending the completion of an investigation or legal proceedings, when it has been determined that immediate action is necessary to protect the Government’s interest.” FAR 9.407-1. One example is fraud in connection with obtaining or performing contracts. FAR 9.407-2. SBA’s SDO also questioned if “ATI may have made false statements to SBA and other government agencies” and “these statements also call into question ATI’s 8(a) eligibility, whether ATI meets the required performance of work and distribution of profits on all 8(a) contracts, and whether ATI complies with SBA’s Mentor-Protégé program.” “The SDO found that immediate need existed to suspend ATI and the individuals and that it was not in the Government’s best interest to do business with ATI and the individuals.” On October 23, 2025, the SBA, in a parallel move, suspended ATI from the 8(a) Program under 13 C.F.R. § 124.305. This was based on multiple reasons, including: ATI acts as a “pass-through” in connection with “other businesses that would otherwise be ineligible for 8(a) awards”; “ATI routinely does not meet the limitations on subcontracting requirements on its 8(a) contracts”. SBA “concluded that as a result of these statements, ATI may have falsely obtained 8(a) certification and 8(a) contract awards.” On appeal, ATI argued that SBA based its suspension on inadequate evidence, “based solely on uncorroborated and unverified hearsay statements allegedly made, and later recanted, on a hidden camera by a former short-term employee with no personal knowledge of Petitioner’s compliance with 8(a) Program requirements or the applicable terms and regulation in 8(a)) government contracts.” OHA requested that SBA file “a refutation of all material facts and arguments that SBA believes are in dispute” and an Administrative Record with all relevant documents. In response, SBA submitted “one document, a copy of the October 21, 2025, letter suspending Petitioner and the individuals under FAR 9.407.” In summary, SBA argued that ATI had been suspended under “FAR 9.407-2(a)(3) and ineligible for contract awards. A FAR suspension is adequate evidence for an 8(a) BD program suspension.” OHA considered whether SBA had properly submitted the Administrative Record to support the 8(a) suspension, and concluded it had not. SBA argued that submitting the FAR suspension letter was sufficient. However, OHA examined the SBA suspension letter and found it wanting. OHA noted: The Suspension at issue does not mention the October 21st FAR suspension at all, let alone rely upon it as the reason for the Suspension. The Suspension states clearly that the reason for the Suspension is the statements made by Petitioner’s employee. However, the Agency Response here does not mention these statements and makes no effort whatever to substantiate them or to rely upon them as reasons for the Suspension. The Agency has thus stated on appeal a completely different justification for its action than that given at the time it was issued OHA held that “The reasons for the suspension are absent from the Administrative Record as presented by the Agency here. Therefore, I must REMAND this case to SBA for a new submission providing a new, sufficiently complete administrative record to conduct a meaningful review.” The record must include all documents that the SBA relied on, including videos. The ATI decision demonstrates that OHA will look closely at SBA’s decisions with regards to actions like suspension of companies under the 8(a) Program. SBA must base its actions on adequate evidence, and argument linked to that evidence. We will continue to monitor this decision as it reflects on both the SBA, the 8(a) Program, and how the federal government must justify its actions. 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 Back to the Drawing Board: SBA OHA Overturns Suspension of 8(a) Contractor first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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We have noted in past posts that, in some cases, it may make sense to protest a solicitation evaluation or award decision at GAO simply to get a stay on the award. This is because, if you meet certain deadlines, a stay of award and performance is automatically placed on the procurement for the duration of the protest. Now, there are circumstances in which an agency can override this stay, but the burden is on the agency to show such an override is necessary. The Federal Circuit confirmed this is the case in Life Science Logistics, LLC v. United States, 172 F.4th 1357 (Fed. Cir. 2026), in which an agency tried to get the higher burden for a preliminary injunction placed on GAO protesters. This decision suggests that agencies may think more carefully about attempting overrides of stays going forward. The matter in question stems from an award of a contract by GSA to a company called IQS in 2022. Life Sciences Logistics, LLC (LSL) filed a protest of this award with GAO shortly thereafter. After three separate iterations of protests and resolicitations, GSA awarded the contract for a third time to IQS on October 30, 2023, which LSL again protested with GAO. The Competition in Contracting Act (CICA) provides that, if a GAO protest is filed within 10 days of contract award or 5 days of a requested and required debriefing (whichever is later), a stay of performance on the awarded contract shall be in place during the GAO protest. 31 U.S.C. 3553. As such, LSL’s protest triggered such a stay. But the same statute provides that agencies may disregard this stay in certain circumstances. One such circumstance is when “urgent and compelling circumstances that significantly affect interests of the United States will not permit waiting for the decision of the Comptroller General concerning the protest.” 31 U.S.C. 3553(d)(3)(C)(i)(II). GSA attempted to override the stay from LSL’s protest for this very reason. After GSA did this, LSL sued at COFC, arguing that the override was unlawful as GSA’s reasoning was arbitrary. The COFC, in turn, agreed the override was arbitrary. The decision does not explain why it was arbitrary, we must assume the government’s argument was pretty weak if it was decided without even describing why the argument was invalid. GSA attempted to argue that COFC’s own four equitable factor standard (likelihood of success on the merits, irreparable harm, balance of equities, and public interest) applied to the GAO stay determination. COFC disagreed, noting that CICA provided for an automatic stay procedure. Inserting new injunctive relief standards into this procedure would go beyond the statute. GSA appealed this matter to the Federal Circuit. After first addressing a question of mootness, it turned to the actual issue of the stay. The court agreed with COFC: “A bid protestor seeking a declaration that an agency override of a CICA stay is arbitrary and capricious need only show that, in fact, the agency’s override was arbitrary and capricious. The protestor is not also required to demonstrate a likelihood of success on the merits, irreparable harm, a balance of the equities in its favor, and a benefit to the public.” Turning to the language from CICA, the Federal Circuit observed that the stay requirement was automatic if the protester met the applicable deadlines. That is the default rule. The stay may only be overridden in certain circumstances. Nothing in CICA permits using the four-factor rule. Congress specifically chose to impose no burden on the protester for the stay to apply. The stay is automatic. Thus, it “cannot have been Congress’ intent to require a protestor whose automatic stay has been overridden by arbitrary and capricious government action to have to prove to a court – in addition to the unlawfulness of the override – that the protestor faces irreparable harm, the equities are in its favor, and the public would benefit from granting the relief requested.” Indeed, the Federal Circuit observed that, were it to find this four-factor rule applied, it would greatly incentivize the government to override far more CICA stays. The government could essentially override the stay for no reason and shift the burden of proof to the protester. That would contradict the entire idea of making the stay automatic. The idea is that the burden is supposed to be on the government that the stay must be overridden for urgent reasons. The Federal Circuit’s decision in this matter is one we whole-heartedly agree with, both in terms of the logical nature of its reasoning and its impact on the protest system. Frankly, it is already not terribly difficult for the government to override the GAO stay where it needs to. Shifting the burden to the protester is simply unnecessary and would only serve to dissuade even more protests. One consideration that the court could have noted more is that the GAO stay is very limited in its duration. GAO is supposed to issue a decision within 100 days of the filing of a protest and, in our experience, GAO very much abides by this rule. As such, the stay generally lasts no longer than 100 days, limiting the burden it places on the government. In contrast, a stay in a COFC bid protest will last as long as the case is there, and that can take years. This is good news for protesters and will make agencies think more carefully about attempting overrides of stays going forward. Questions about this post? Email us . Need legal assistance? 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 Federal Circuit Refuses to Apply Stricter Injunctive Relief Test to GAO Stays first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
