Developments in Government Contracting — 2026

February 4	In Meltech Corp., the ASBCA held that the construction contractor had encountered a Type I differing site condition because the specifications did not alert it to the presence of a (hidden) five-inch crown in the existing roof structure that would interfere with its ability simply to install the new roof over the existing one without removing it, which is what the specifications (and the pre-bid Q&A) indicated the contractor could do.
February 3	In Amentum Technology Inc; SOS International LLC, the GAO sustained each of two consolidated protests because: (i) the agency's assignment of decreased confidence to one protester's proposal allegedly due to statements it made in the oral presentation was unsupported by anything in the contemporaneous record, including the audio recording of the oral presentations; and (ii) the differing evaluations of the other protester's and the awardee's proposals regarding "upskilling" was unsupported by the record and unfairly utilized a different and higher standard of review to evaluate the protester's proposal, which amounted to an unequal evaluation.
February 2	In Eleit Technology, Inc., a successful post-award protest by the incumbent against the award of a BPA under FAR Part 8.4, the Court of Federal Claims held that: (i) the agency failed to document any distinguishing features among the proposals, turning what should have been a qualitative evaluation into one for technical acceptability; and (ii) the record was insufficient to establish that the Government had adhered to the solicitation's "recency" requirement in evaluating the awardee's experience.
January 30	In Meltech Corp., the ASBCA denied the contractor's claim for alleged delays caused by additional security measures controlling base access implemented by the Government because those security measures were reasonable, applied worldwide, and were accompanied by a pamphlet explaining how to comply with them, while the delays were caused by the contractor's own actions, e.g., its delays in providing the correct paperwork, such as badging applications: [T]the evidence reveals [the contractor's] numerous failures in following the new procedure set forth by the government for the new base access process. The FMVCC complained that delays in [the contractor's] badging applications were largely due to it submitting paperwork at the last minute, incomplete paperwork and document submissions, and paperwork that required the FMVCC staff to retype their document on [the contractor's] behalf. The FMVCC complained to USACE that while the FMVCC processed thousands of applications every month for over a hundred different organizations, it had to delay other applicants to accommodate [the contractor's] last-minute applications. . . . The FMVCC sent two separate letters to USACE outlining the badging delays complained by [the contractor], which appear to be unique to [the contractor] due to its inability to follow directions. . . .
January 29	In Mega Star Logistic Services Co. , the CBCA dismissed one appeal as moot because the appellant did not dispute that the Government had paid the appellant what it claimed it was owed, and the Board held it lacked jurisdiction overa second claim because the appellant had not filed a notice of appeal of the Contracting Officer's decision.
January 28	In Peanut Wagon, Inc., which involved a dispute over the meaning of phrase "original cost" in determining the fair value the contractor was entitled to for its post-award installation of an HVAC system in a concession contract, in which it had a possessory interest at the contract's termination, the Court of Federal Claims held that, when examined in accordance with all its provisions, Black's Law Dictionary, GAAP, and changes to an older contract format, the contract unambiguously defined "original cost" as book value, i.e., historical cost minus straight line depreciation, and that determination governed whether the contractor was entitled to several categories of its claimed costs, e.g., indirect costs. Effective February 27, the CBCA is making amendments to its rules of practice and procedure to incorporate language that accounts for technological developments, to clarify differences between efiling and filing pleadings through the Board’s Electronic Docketing System (EDS), to change definitions where necessary to integrate EDS filing, to delete obsolete terminology, and to enhance integration of the Board’s new procedural rules proposed pursuant to recent amendments to the Administrative False Claims Act (AFCA) and the Contract Disputes Act (CDA). Also effective February 27, the CBCA is issuing new rules of procedure to effectuate the new administrative scheme set forth in the AFCA, as amended by the NDAA for FY 2025. specifically the administrative process for deciding claims brought by authorities seeking to impose civil penalties against persons who make, submit, or present false claims and statements to executive agencies.
January 27	In Size Appeal of The Underdogs Unlimited, LLC, the SBA's OHA held that the Area Office was correct in making an adverse inference after the protested firm failed to provide requested information concerning its compliance with the ostensible subcontractor rule, which was the subject of the size protest: Here, [the original size protester] sufficiently called into question Appellant's ability to perform the primary and vital requirements of the Solicitation in the absence of a subcontractor and sufficiently identified the absence of any subcontractors within Appellant's proposal. Subsequently, the Area Office requested Appellant provide documentation (licensure/certification) to demonstrate it could perform the primary and vital requirements of the contract in the absence of using a subcontractor. The Area Office further requested information from Appellant to evaluate Appellant's use of any subcontractors under the ostensible subcontractor rule and limitations on subcontracting under 13 C.F.R. § 125.6. Appellant did not provide the requested information or documentation and relied upon its assertion that it would comply with all subcontracting requirements.
January 26	In VSBC Protest of General Services Administration, the SBA's OHA denied a protest against a JV's SDVOSB status because, although the JV agreement did not explicitly contain provisions concerning financial reporting required by 13 C.F.R. §§ 128.402(c)(11), (12), it did contain provisions requiring extensive financial reports, and, more importantly, a provision explicitly requiring its Managing Member to prepare and submit the reports “required by the . . . applicable regulation.”
January 23	In VSBC Protest of General Services Administration, the SBA's OHA held that the SDVOSB member of joint venture is only required to own 51% of it if the joint venture is a separate legal entity, whereas, informal arrangements, such as this one, are not required to break down the ownership interests of their members.
January 22	In VSBC Protest of General Services Administration, the SBA's OHA denied a protest of a firm's status as an SDVOSB because an amendment to its joint venture agreement made before final proposal revisions was plainly in compliance with the applicable SBA requirements for joint ventures requiring quarterly financial statements and project-end profit and loss statements (13 C.F.R. §§ 128.402(c)(11) & (12)).
January 20	In Globe Trailor Mfg., Inc., a Rule 11 proceeding regarding the quantum due appellant for work performed prior to a T for C, the ASBCA held: (i) there would be no recovery at all for attorneys' fees that were not segregated between those incurred for preparing the termination settlement proposal (which would have been recoverable) and those for preparing constructive change claims (which would not); (ii) an affidavit allegedly in support of other attorneys' fees was of no evidentiary value because of the large number of unexplained redactions it contained; and (iii) an accord and satisfaction barred the recovery of legal fees related to an agreed settlement.
January 16	In VSBC Appeal of Datawize Technologies LLC, the SBA's OHA held that the denial of a firm's status as a certified SDVOSB was erroneous because the Operating Agreement gave the qualifying veteran the power to alter, amend, restate, or repeal the Agreement, or to adopt a whole new Operating Agreement, so any negative control given to the minority shareholder by other provisions was illusory.
January 14	In VSBC Appeal of Borek's Concrete Co., the SBA's OHA held that, although the reasons advanced for rejecting a firm's application for certification as an SDVOSB were erroneous, the conclusion was correct because a non-SDV could exercise negative control over the firm given its Bylaws which required that 60% of shareholders were necessary for a quorum, and 75% of shareholders were necessary to amend the Bylaws, when its SDV only had a 51% ownership interest.
January 13	Executive Order 14372 aims to increase the production of warfighting equipment by "underperforming" government contractors by prohibiting stock buy-back and corporate distributions by the contractor and capping executive compensation until the underperformance is remedied: Within 60 days of the date of this order, the Secretary shall take steps to ensure that any future contract with any new or existing defense contractor, including any renewal, contains a provision prohibiting both any stock buy-back and corporate distributions by the contractor during a period of underperformance, non-compliance with the contractor’s contract, insufficient prioritization of the contract, insufficient investment, or insufficient production speed as determined by the Secretary. Additionally, the Secretary shall ensure such future contracts stipulate that executive incentive compensation for contractors will not be tied to short-term financial metrics, such as free cash flow or earnings per share driven by stock buy-backs, and instead will be linked to on-time delivery, increased production, and all necessary facilitation of investments and operating improvements required to rapidly expand our United States stockpiles and capabilities. Further, the Secretary shall ensure such future contracts allow the Secretary, upon a finding by the Secretary that a contractor has engaged in underperformance, non-compliance with the contractor’s contract, insufficient prioritization of the contract, insufficient investment, or insufficient production speed, to require that executive base salaries of the contractor be capped at current levels, with increases allowed for inflation, consistent with applicable law, for a time period sufficient to allow the Secretary to scrutinize the incentive portion of executive compensation to ensure it is directly, fairly, and tightly tied to the above metrics.
January 9	In Kallidus Technologies, which involved multiple claims related to an IDIQ task order award for building renovation at a National Guard site, the ASBCA held, inter alia, that: (i) the Government constructively changed the original specifications for windows (which were not patently ambiguous) by ordering the contractor to adhere to revised specifications in a cure notice, and the contractor's expert's prospective time impact delay analysis was accepted as largely unrebutted by the Government; and (ii) the contractor's claim for allegedly changed requirements re cable tray would be denied because, read as a whole, the contract required cable tray, even though those requirements were not located in the section of the specs where they usually are found. The Board addressed quite a few additional claims for allegedly changed work, with mixed results for the contractor.
January 8	In OSC Solutions, Inc., the Court of Appeals for the Federal Circuit affirmed the prior ASBCA decision and rejected all of the contractor's legal theories (e.g., that this was a requirements contract or an implied-in-fact contract) because nothing in the disputed BPA or the purchase orders under it permitted the contractor to recoup its labor costs by any means other than actual product sales.
January 7	The GAO sustained a protest by Solutiions71, LLC because the agency did not meaningfully consider the possibility of an impaired objectivity OCI created by the award of a task order for an enterprise level geographic information system to a firm whose corporate affiliate held a related contract that would require the affiliate to provide recommendations and review the firm's work under the order.
January 6	In Warfighter Defense, Inc., the ASBCA held that, in the context of an RFQ, the appellant never accepted the Government's purchase order by performing, but only responded by proposing different terms, so no contract was formed under under FAR 13.004. In Targe Logistic Services Co., an appeal involving solely the amount due following a termination for convenience, the Board denied the Government's motion to add the affirmative defense of prior material breach, which would be relevant only if the contract had been terminated for default, and the parties can still litigate whether the appellant is entitled to certain costs as part of its termination settlement. The Board also held that whether the appellant had insurance to cover its risk of loss was a relevant issue, and the appellant will be compelled to respond adequately to the Government's discovery requests concerning that issue. In Malika and Refa Environmental Solutions, the ASBCA denied the Government's motion to dismiss for lack of jurisdiction (based upon its allegation that the appellant's response to one interrogatory suggested that the real party interest was a different corporate entity than the one that had filed the claim, obtained the Contracting Officer's decision, and filed the appeal) because the Government's allegation was outweighed by a sworn declaration from the appellant's CEO that the appellant was the party that had filed the claim and was prosecuting the appeal. In Ameresco, Inc., the ASBCA denied the Government's motion to dismiss two counts in the Complaint for lack of jurisdiction as allegedly not having been presented to the Contracting Officer in the original claim because: (i) numerous facts that were stated in that claim alleged unreasonable contract administration and, thus, supported the new theory of breach of the implied duty of good faith and fair dealing first alleged in the Complaint; and (ii) and certain facts alleged for the first time in the Complaint were not inconsistent with those alleged in the original claim.
January 5	In VSBC Protest of General Services Administration, the SBA's OHA held that issue preclusion (collateral estoppel) required the dismissal of a protest because it involved the same allegations (that a firm's JV agreement lacked certain required provisions) by the predecessor Contracting Officer on same procurement against the same firm previously decided against the agency in a prior OHA decision, which held that the firm's Operating Agreement together with its JV agreement contained all the necessary provisions.
January 4	In Siemens Government Technologies, Inc, the Court of Fedeal Claims denied the Government's motion to dismiss (for lack of jurisdiction) the plaintiff's claim for its development costs in seeking a task order that ultimately was not issued under its IDIQ contract because FASA's bar does not apply where the claims are not “directly and casually connected” to the issuance of a task order and the requested relief would leave the task order unaffected. The court also denied (at this stage) the Government's motion to dismiss the bid protest claim that the Government breached the implied- in-fact contract to treat the plaintiff fairly in the task order procurement because the court had not yet decided the viability of the CDA claim so this bid protest claim remained a viable alternative theory.
January 3	Markon LLC won its GAO protest because, inter alia, the agency's cost realism evaluation of the protester's proposal was not conducted in accordance with the solicitation's requirements, relying, instead, on oral instructions given to bidders that were not incorporated into the solicitation.
January 1, 2026	Happy New Year! I have left the last few entries from the 2025 blog below, but you can fine the entire 2025 blog here. In Fort Sam Acquisition, LLC, the Court of Federal Claims granted the Government's motion to dismiss a suit for failure to state a claim involving the meaning of a rent calculation provision in four ground leases on Joint Base San Antonio because the plaintiff's interpretation of the provision (i.e., that it allowed the plaintiff to deduct certain claimed expenses from the rent it owed the Government) was "facially unreasonable."
December 31, 2025	Solvere Technical Group, LLC won its GAO protest because: (i) the agency's interpretation of the Personnel Approach evaluation factor was directly contrary to the interpretation it had advanced (and the GAO had rejected) in another GAO protest concerning a substantially identical provision; and (ii) the fact that the solicitation specifically allowed offerors to submit TBD for proposed non-key personnel meant the protester should not have been penalized for doing so in the technical and cost evaluations. In Four LLC, the CBCA denied the Government's motion to dismiss because it was based on the theory that the procuring agency could not be held liable in damages for another agency's actions while acting as its agent, when the contractor's complaint was that based on another theory entirely, i.e., that the procuring agency breached a contractual warranty. NASA proposes to amend its regulations in order to fully implement the Administrative False Claims Act (AFCA), as amended by the FY 2025 NDAA. This updated rule establishes clear and comprehensive administrative procedures for investigating, evaluating, and imposing civil penalties and monetary assessments on individuals or entities that knowingly make, submit, or present false claims, representations, or misleading statements to NASA. The AFCA offers a streamlined, agency-level enforcement remedy that enables NASA to more effectively address smaller, lower-dollar fraud cases, safeguard critical Federal funds, and strongly deter fraudulent conduct. Comments are due by February 2026.
December 30	In Harbor Services, Inc., the CBCA denied the Government's to dismiss an appeal as untimely filed because the contractor reasonably believed that the Contracting Officer's statements that the contractor should submit revisions to its original claim in order to allow further negotiations (even though those negotiations never took place) meant the original decision was not final, and a subsequent email from the Contracting Officer was not sufficiently clear to revive his original decision. In VSBC Appeal of Florida Suncoast Transportation, LLC , the SBA's OHA upheld the denial of a firm's certification as an SDVOSB because its Articles of Organization designated a non-SDV as its CEO (the highest officer), and there was no designation of a Managing Member.
December 29	In Flatland Realty, LLC, a decision labeled as nonprecedential, the Court of Appeals for the Federal Circuit partially affirmed and reversed a prior ASBCA decision and held, inter alia, that the Government's revocation of a lease was a prior material breach that excused the contractor's further performance, including the contract requirement that it remove property or have it deemed abandoned.
December 26	In Abdul Mutakaber and Hamidullah, son of Mohammad Rajab, the Court of Appeals for the Federal Circuit affirmed prior companion CBCA decisions involving situations where the Government had terminated leases of properties from Afghan owners and the Taliban had taken over the properties prior to them being re-occupied by the owners. Specifically, the court held that: (i) the leases did not obligate the Government to return physical possession of the properties to the owners upon termination of the leases; (ii) the parties expressly agreed to allocate to the lessors the risk of damage and injury to the properties arising from third-party actions or events beyond the Government’s control or fault; (iii) the implied covenant of good faith and fair dealing could not impose on the Government a duty expressly denied by the lease provisions; and (iv) Afghan law did not impose a duty on the Government to return the properties upon lease termination.
December 24	In Vinsys IT Hub LLC, an unsuccessful protest, the Court of Federal Claims held that under 13 C.F.R § 124.3, the agency had properly established that the solicitation was for a new, rather than a follow-on, contract, and, therefore, under 13 C.F.R. § 124.504, the agency was only required to notify the SBA that the new contract would not be an 8(a) set-aside, rather than obtaining the SBA's approval, which would have been required were the new contract a follow-on to the previous 8(a) contract.
December 23	In Toro Defense Contracting, LLC, the Court of Federal Claims dismissed the case without prejudice because of a failure of pleading--the two-page Complaint failed (a) to allege the elements that would entitle the contractor to relief for delays or differing site conditions or even (b) to cite to any relevant contract or FAR provisions.
December 22	I have converted most of the pages on the site to the new format. The exceptions are the Procurement Review—Statutes, Regulations, Executive Orders pages for 2007–2022, which are very tedious and time consuming to convert. I will convert those a bit at a time. I am also knocking out various bugs as I find them on the newly converted pages. Whenever you spot a bug, please let me know about it.
December 19	In Brasfield & Gorrie, LLC, one of many recent cases involving Project labor Agreements ("PLA")—this one a protest against an amendment to a solicitation for a large scale construction contract to add a requirement for a PLA pursuant to E.O. 14063—the Court of Federal Claims held, inter alia, that: (i) the agency's failure to identify the agency’s needs for a PLA specific to the procurement, its failure to analyze the benefits from a PLA requirement, and its reliance solely on executive order presidential policy to justify a PLA requirement were arbitrary and capricious; (ii) the PLA requirement effectively excluded bidders, and the agency failed to make a rational determination that the PLA requirement furthered the agency's needs for the solicitation to comply with CICA’s mandate for full and open competition; (iii) the agency's failure to invoke a statutory exception to CICA’s full and open competition requirement was arbitrary and capricious in violation of CICA; (iv) for these failures, the agency was enjoined from proceeding with the inclusion of the PLA in this solicitation; but (v) the court lacked jurisdiction over the plaintiff's motions for a ruling from the court invalidating EO 14063 entirely.