Developments in Government Contracting — 2026

March 22	In AccelGov, LLC, an unsuccessful post-award protest, the Court of Federal Claims held there was a rational basis for the agency to assign the plaintiff's proposal a "low confidence" rating in the Management Approach evaluation factor on the basis of a finding of severe understaffing of one proposed position in one of seven supposedly equally important subfactors because adjectival ratings are not meant to be treated as numerical rankings that must be averaged to come up with the final score: "[A] stool missing any of its four legs, no matter which leg—and no matter how perfectly the other legs are constructed—is not a functional stool." The court also held that the agency the did not treat offerors differently by ranking the awardee higher in this same factor even though it was found to have proposed too few staff in another position.
March 21	In United Defense, LLC, an unsuccessful preaward protest, the Court of Federal Claims held that the plaintiff lacked standing to complain of a Procurement Integrity Act (PIA) violation because its Technical Approach proposal received an “Unacceptable” rating for reasons unrelated to the alleged PIA violation, rendering it ineligible for award.
March 20	In HII ShipCycle, LLC, a successful protest of the plaintiff's disqualification from a competition for the dismantlement and disposal of a nuclear-powered aircraft carrier, the Court of Federal claims held that where the plaintiff had notified the Government of problems it was having submitting its final proposal revisions electronically and had requested a very brief extension of the submission deadline, the Contracting Officer erred in denying the plaintiff's request without considering any of the circumstances, especially where the Contracting Officer was aware that there were only three offers in the competitive range and that the plaintiff's previous offer had received the highest possible rating in past performance, had only minor technical issues, and had the lowest price: "[T]he contracting officer knew of the Protester’s technological difficulties, knew the contents of the initial proposals, and failed to ever acknowledge the Protester’s request, even in later documented decisions. That does not reflect consideration of factors relevant to the procurement. Consequently, the contracting officer’s failure to consider the request was arbitrary and capricious."
March 19	Federal Acquisition circular (FAC) 2026-01 has been published and includes the following item: FAR Case 2025-007: The FAR has been revised to to incorporate revised thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative. Catching up on a decision I overlooked last year. In Paragon Defense Solutions, Inc., an appeal decided on the record under Rule 12.2, the ASBCA's small claims (expedited) procedures, the Board denied an appeal of what the contractor characterized as an improper termination, holding that this was a purchase order issued pursuant to FAR Part 13, and while the contractor had performed sufficiently to convert the order into an option contract, that option had simply lapsed because the contractor had failed to deliver conforming items within the required time.
March 18	In Racer Machinery Int'l, the ASBCA substituted the Canadian Commercial Corporation (CCC) for its subcontractor as the appellant, even though the CCC had filed its notice of appeal late, because, although the subcontractor was not in privity with the Government and, therefore, must have its appeal dismissed for lack of jurisdiction, the Contracting Officer's Show Cause letter and his subsequent decision terminating the contract for default (which contained the notice of appeal rights) had been sent to both the sub and CCC and, according to the Board, was worded so as to suggest the subcontractor had a right to appeal, which misled CCC into thinking that was so. I question this conclusion. It is the function of the CCC to act as a conduit directing federal contracts to subcontractors, and, given that the CDA has been the law for more than 45 years now, I think it is well past time for such a professional entity to be held to know that a subcontractor does not have privity with the Government.
March 17	In VSBC Protest of Crosstown Courier Service, Inc., the SBA's OHA denied the petition for reconsideration of its prior decision principally because the challenged transfer of an SDVOSB's ownership as part of a merger into a firm with the same name was accomplished as single transaction and not in two transactions as the protester had complained, and the firm continued to be controlled by an SDV after that transaction and was a qualified SDVOSB at the time of proposal submission.
March 16	In Matter of ACC Int'l, Inc., the SBA's OHA upheld the SBA's decision to graduate a firm from the 8(a) program because, using information provided by the firm, itself, the SBA correctly determined that its owner was no longer economically disadvantaged since his average annual adjusted gross income over the past three years exceeded $400,000, even including the amount he had reinvested in the business to avoid that outcome (and other reinvestment amounts came too late). The OHA also held that the firm had not rebutted the presumption that its owner was no longer economically disadvantaged because it had not shown that his disqualifying income level had been both unusual and unlikely to occur in the future.
March 15	In First Street Contractors, LLC, the ASBCA denied cross motions for summary judgment as to three claims in a contract to replace the existing grit dewatering equipment at a wastewater treatment plant because of genuine issues of fact concerning: (i) whether the contractor reasonably interpreted and relied on the contract documents to conclude that the existing concrete floor openings were larger than the grit pumps, and whether the existing concrete floor openings being smaller than the grit pumps was reasonably foreseeable based upon all the information available at the time of bidding; (ii) whether, based upon extrinsic evidence, a reasonable contractor in the contractor's position would have interpreted the ambiguous contract to require that valves larger than three inches be glass lined; and (iii) whether the Government's direction that the contractor provide continuous temporary grit pump watch services required work beyond the contract’s requirements.
March 14	In Penna Group, LLC, which has an unusual fact pattern, the ASBCA held that after it had formally dismissed a case with prejudice based upon the appellant's representations that the parties had settled the dispute and that the Government had paid the full settlement amount to the appellant's attorneys, the Board no longer had any jurisdiction over the case, including a motion to vacate its prior decision by the receiver in a Texas state court bankruptcy action on the alleged grounds that the the appellant's owner did not have the authority to enter into a settlement and had hidden the existence of the receivership from the Board. The Board held more generally, that under the CDA, the Board does not possess the authority to entertain a third-party challenge to the terms of a settlement agreement. Finally, under the explicit terms of the state court's receivership order, the Texas district court retained exclusive jurisdiction of the issues underlying the motion to vacate.
March 13	In Threat Tec, LLC, the Court of Federal Claims denied the plaintiff's request for a preliminary injunction against the Government's override of a CICA stay by awarding a bridge contract during a GAO protest because, based on the court's limited time to consider hastily filed, abbreviated briefing by both sides, the plaintiff had not met its burden to establish standing (its eligibility to perform the contract at issue) or its likelihood of success on the merits, including its Procurement Integrity Act allegations that it had failed to address in its reply brief after the Government and intervenor had spent considerable time rebutting them in their briefs. Although the court denied the Government's motion to dismiss the case outright, as we know, the denial of a preliminary injunction usually means the remaining request for a permanent injunction is dead in the water.
March 12	In VSS Int'l, although the CBCA denied most parts of the Government's motion for summary judgment as to the contractor's various claims due to disputed issues, it held that the contractor had not established a Type I Differing Site Condition because the contractor did not contend that existing subsurface or latent physical conditions differed from those specified in the contract or that the worksite had unknown physical conditions of an unusual nature that differed materially from what would be ordinarily encountered, but instead alleged only that there was a difference between the contract’s specifications and the Government's directions with regard to the manner in which the work would be conducted, essentially repeating the contractor's breach and changes claims.
March 11	In Cutter Enterprises, LLC, the ASBCA, in a lengthy and detailed opinion, upheld the default termination of a construction contract to alter aircraft hangar buildings because the contractor: (i) failed to provide the appropriate level of project management and quality control, which led to delays; (ii) did not follow the specifications on multiple occasions; (iii) did not maintain adequate schedules, which led to a failure to identify and track a critical path; (iv) failed, when requested, to provide assurances or any explanations for the delays sufficient to allow the Contracting Officer to understand their cause or how they would be prevented in the future; and (v) failed to prove that any of the many alleged causes for its delays were excusable or attributable to the Government.
March 9	Partially because I am a lifelong football fan, I feel compelled to post the opening paragraphs from the Court of Federal Claims' decision denying the request for reconsideration of its prior decision concerning the application of the "late is late" rule in the protest of Kropp Holdings, Inc.: Associated Energy Group, LLC’s (“AEG”) motion for reconsideration is akin to an unsuccessful challenge by an NFL coach in football. Assume, after a wide receiver catches the football, the referee deems the pass “incomplete” for two separate reasons. First, the receiver’s foot was out of bounds when he made the catch. Second, the receiver did not have sufficient control of the ball for the catch to be ruled complete. The coach challenges the play, arguing at length that the receiver did have sufficient control of the ball. The coach emphasizes that the ball was not bobbling in the receiver’s hands, the receiver had two hands on the ball, the ball was tucked firmly under the receiver’s arm, the ball never touched the turf, and the receiver maintained control of the ball long enough to make a football move. See 2025 NFL R ULEBOOK , Rule 8, § 1, arts. 3–4. While these arguments, if true, may prove that the receiver did, in fact, have control of the ball, the pass is still incomplete because the coach failed to address the fact that the receiver’s foot was out of bounds. See id. Much like the hypothetical NFL coach’s futile arguments regarding the receiver’s control of the football, no matter how many new arguments AEG asserts regarding whether there was timely government control of its proposal, AEG’s motion cannot prevail because—just as the coach did not address the fact that the receiver’s foot was out of bounds—AEG does not address its insufficient merits argument that its proposal was received by, and not prior to, the deadline for proposal submission. However, just as the Court held in its merits opinion, in order for the government control exception to the late-is-late rule to apply, the proposal must be received prior to the time set for receipt of offers. For this reason, and others discussed below, the Court’s call stands. Before the Court is AEG’s 37-page motion for reconsideration of an issue it devoted just five paragraphs to in its motion for judgment on the administrative record (“MJAR”). Compare ECF No. 92-1, with ECF No. 65-1 at 21–22. In its motion, AEG contends that the Court should reconsider its determination that the government control exception did not apply to its otherwise late submissions. See ECF No. 92-1 at 1; Kropp Holdings, Inc. v. United States, 176 Fed. Cl. 512, 533–39 (2025). However, notwithstanding myriad arguments that AEG asserts justify reconsideration, at bottom AEG fails to address the Court’s actual holdings on this issue and instead emphasizes less important portions of the Court’s opinion with which it disagrees. In addition to missing the Court’s holdings, AEG asserts new theories not raised in AEG’s merits briefing and attempts to reassert arguments that the Court already found unpersuasive the first time around. Neither these new theories nor rehashed arguments justify reconsideration.
March 7	In Fire Creek Co. and Aleut Management Services, LLC, which involved unsuccessful consolidated protests, the Court of Federal Claims held that, properly interpreted, the OASIS+ 8(a) IDIQ solicitation required each offeror to submit a minimum of two qualifying projects ("QP") performed by an entity that was an 8(a) certified firm at the time of offer submission, while both plaintiffs had relied upon firms that had been 8(a) certified at the time they had performed the qualifying work but were no longer certified at the time of offer submission. Thus, the plaintiffs had been properly determined to be nonreaponsive.
March 6	In Sheela Inc., an unsuccessful protest, the Court of Federal Claims held that: (i) the agency's Past Performance evaluation using CPARs complied with the solicitation's requirements and did not treat plaintiff disparately from other offerors; (ii) absent evidence sufficient to overcome the presumption that the Government's officials act in good faith, the mere fact that three of the evaluators were personally familiar with the plaintiff's prior work did not establish bias; and (iii) challenges to the price evaluations of other offerors failed because solicitation did not require a cost analysis and the plaintiff had not established prejudice.
March 5	In Viakorp Corp., the CBCA dismissed (as late) an appeal of a default termination filed more than 90 days after receipt of the Contracting Officer's decision. The contractor had argued that it had not received the decision until eight days after it was emailed, which was not only implausible, but also unavailing, because the appeal was still late even when counted from that date.
March 4	In NAICS Appeal of Venergy Group, LLC, the SBA's OHA held that in a solicitation to construct a boiler plant, the apellant's choice of NAICS 236220 ("Commercial and Institutional Building Construction") was preferable to the Contracting Officer's choice of NAICS 238220 ("Plumbing, Heating, and Air-Conditioning Contractors") .
March 3	In Size Appeal of Stripes Global, Inc., the SBA's OHA denied a size protest, holding that: (i) the ostensible subcontractor rule does not apply to procurements for manufactured items; (ii) the class waiver for the NAICS code controlling this solicitation meant the Limitations on Subcontracting rule did not apply; and (iii) the challenged firm met all four prongs of the nonmanufacturer rule--in particular, there was no requirement that the challenged firm be licensed by the State of California for the procurement and, therefore, no validity to the allegation that the challenged firm was reliant on, and, therefore, affiliated with, another firm for this alleged licensing requirement.
March 2	In AAR Government Services, Inc., an unsuccessful protest of an award to a higher-priced, higher-technically-rated offeror (which illustrates the court's refusal to substitute its subjective judgments for those of the agency), the Court of Federal Claims held that: (i) the agency conducted adequate discussions and used (and adequately documented) several different acceptable techniques to evaluate price reasonableness; and (ii) there were rational bases for the agency's Past Performance evaluations of the plaintiff and the awardee, including the rating of one of plaintiff's Past Performance examples as as "Marginal" and the rating for its subcontractor as "Unknown."
February 28	In Louis J. Blazy, the CBCA denied the pro se appellant's “Motion For Procedural Determination on the Validity of the Contracting Officer’s Final Decisions and Stay Merits Proceeding,” which had been submitted after the appeal proceedings were well underway, because: (i) even if, as appellant alleged, the Contracting Officer who had issued the decisions being appealed lacked a warrant, the underlying claims were deemed denied since they were followed by a valid appeal more than 60 days after the claims had been submitted; and (ii) like all appeals, these will proceed de novo, i.e., independent of the validity of the underlying decisions by the Contracting Officer.
February 27	In CWS FMTI LLC and Mainsail-Oasis Joint Venture LLC, which involved unsuccessful consolidated protests of the plaintiffs' (mentor-protégé joint ventures') disqualification from the GSA OASIS+ solicitation, the Court of Federal Claims held that, read together, two solicitation provisions unambiguously required that every offeror competing for a socioeconomic set-aside group must provide two qualifying projects from set-aside businesses to demonstrate their experience. The plaintiffs had argued that only one of those two provisions was applicable. The court also noted that, even if the solicitation were ambiguous, as alleged by the plaintiffs, that ambiguity was patent, and the plaintiffs had failed to timely object to it.
February 26	In GIP Indianapolis, LLC, an appeal submitted on the written record under Board Rule 19 and using the accelerated procedure in Board Rule 53, the CBCA held that the Government was not entitled to deductions for alleged overpayments of rent because the terms of bilateral lease amendments unambiguously established both the operating cost rent and the operating cost base and, therefore, controlled over any prior provisions or agreements concerning the rental amount.
February 25	In Louis J. Blazy, the CBCA sua sponte sanctioned a pro se appellant for a plethora of nonexistent citations in his “Motion For Procedural Determination on the Validity of the Contracting Officer’s Final Decisions and Stay Merits Proceeding,” which appear to be the result of AI hallucinations, even though the appellant denied he had used AI: Appellant’s motion contained four citations to decisions that appeared not to exist. For each citation, the Board issued an order directing appellant to produce a copy of the decision. Appellant did not submit copies of the requested decisions because those decisions, upon which he relied, do not exist. Appellant offered general, unpersuasive, confusing, and vague explanations for why he cited the non-existent decisions. He stated that “certain legal research databases . . . may not fully integrate with the . . . search codes used by the Court of Federal Claims.” He referred to errors in “publicly available sources,” “editorial errors” in unnamed “secondary reference sources,” and “mistakes in [unidentified] commercial contract law digests, and training compilations.” In one instance, appellant stated that a non-existent citation was used as “shorthand” for the citation of another case which he offered as a substitute, without explaining his definition of “shorthand” or how such “shorthand” translated to a citation for another decision. In another instance, appellant submitted what he characterized as an existing “decision,” stating that it was the decision that he intended to submit for one of the non-existing decisions. The existing “decision” submitted was a dismissal order that contained no substantive information as to the nature of the case, which appellant asserted stood for a legal principle, which principle was in no way discernible from the text of the dismissal order. In another instance, appellant submitted an existing decision, again stating that it was a substitute for a non-existing decision which he cited. That case did not stand for the principle cited. . . . Appellant submitted a general, non-specific explanation of his search method and a list of databases and indexes that he searched. At no time did he state that he had actually read any of the cases cited or identify in which source any of the citations to the non-existent decisions were found. Appellant’s explanation for citing the non-existent decisions offered no other detail, screen shots, or copies of any portions of the resources which specifically contained the citations of the non-existent decisions. Appellant’s motion contained four excerpts from depositions in quotation marks, appearing to be direct quotations, with deposition transcript page numbers cited.1 Respondent’s response to appellant’s motion noted that the quoted language did not exist on the pages cited or anywhere in the deposition transcripts. The Board issued an order directing appellant to state if the quotations were direct quotations or constructed from testimony. If they were constructed quotations, the Board directed appellant to quote the deposition testimony from which he created the construction, with transcript page citations. Appellant responded that the four quotes were constructed and quoted deposition testimony from which he alleges he constructed the quotes. The transcript page numbers where the quoted testimony appears do not correspond to the transcript page numbers initially cited for the four quotations in appellant’s motion. The actual testimony quoted does not support the non-existent “direct” quotes in the motion.
February 24	In Meltech Corp., the ASBCA held that the Government was entitled to a credit because the contractor switched to thinner roof panels than those in the approved 100% design specifications, even if the substituted panels met the performance requirements.
February 20	In Thomas Daniel Baker, the CBCA dismissed an appeal for failure to prosecute because, after the Board resumed operations following a shutdown due to a lapse in federal funding, the appellant ghosted the Board, failing to respond to mutiple Board orders.
February 19	In Lift Up Trucking, LLC, the ASBCA held that: (i) it lacked jurisdiction over a maintenance contractor's claim requesting specific performance (e.g., that the agency be required to remedy an allged tick infestation at the site); (ii) the contractor failed to allege the required sum certain in its claim that Government should assume responsibility for future delays or costs for possible overgrowth of vegetation; and (iii) the contractor admittedly did not perform certain required services so was not entitled to any payment under the related invoice.
February 18	Catching up a bit with an older decision. In Contract Dispute of Prow’ess Construction Corp., the FAA's Office of Dispute Resolution for Acquisition held, inter alia, that it had the authority to award nominal damages of $1,000 where the Government had established its claim for substandard work but had failed to prove quantum.
February 16	The GAO sustained a protest by Moorish-Wallace Construction Co. d/b/a Ryba Construction Co. because a solicitation amendment adding a wage determination was a material amendment, so the agency was not free to waive a bidder's failure to acknowledge it.
February 13	In Geoffrey Wattiker and Brittani Wattiker, the CBCA dismissed the husband of a husband and wife team of appellants for lack of standing because only the wife was the contractor who was challenging an auction sale as having included misrepresentations. In VSBC Protest of Sigo Valiant JV, the SBA's OHA held it lacked jurisdiction over the protester's request for the agency to conduct a "status investigation" of a firm, which the protester had sent to the agency along with a request that the agency forward it to the OHA.
February 12	In Gemeni Tech Services LLC, the Court of Federal Claims held that the agency had violated the court's previous injunction by revising the solicitation and requesting revised proposals instead of re-evaluating the prior proposals. In NAICS Appeal of Tribal Providers, the SBA's OHA held that, in a solicitation for teleradiology services, the Contracting Officer's choice of NAICS 621512 ("Diagnostic Imaging Centers") was preferable to the appellant's choice of NAICS-621111 ("Offices of Physicians (except Mental Health Specialists)") because the procurement was not for physicians' services generally, but for the very specific health services of producing diagnostic images. In Liberty Technical Services, LLC, an appeal submitted on the record using accelerated procedures and involving a contract to provide water treatment supplies and services at three VA medical centers, the CBCA denied the contractor's claims, holding, inter alia, that the contract's unambiguous requirement that the contractor "shall provide all supplies and technical support services” to fulfill the contract requirements included equipment not specifically identified in the contract that the parties, nevertheless, agreed was necessary for performance, especially where, within eight days of starting performance of the contract, the contractor confirmed that it had purchased the now-disputed controllers, pumps, and tanks but did not claim at that time that any of these items were not included in the contract. Although not necessary to its decision, the Board also discussed in detail the many deficiencies in the evidence of quantum submitted by the contractor.
February 11	In VSBC Appeal of Vialytix, LLC, the SBA's OHA upheld the decision that a firm was not an eligible SDVOSB because the SDV did not unconditionally own and control the firm, but instead jointly owned it with his wife.
February 10	In Wolverine Tube, Inc., the ASBCA addressed cross motions for summary judgment regarding T for C costs recoverable by a contractor that had continued to incur costs after a Stop Work Order was issued and corrective action undertaken as a result of a GAO protest (which ultimately resulted in award to another contractor), finding that issues of fact precluded summary judgment on most items of disputed costs. In Watts Constructors, LLC, which was decided in 2025, the ASBCA held that the six year limitations period barred the contractor's claim relating to alleged delays caused by the tardy issuance of a modification by the Government because the contractor was aware at the original time of that event that it was impacting the contractor's work on the project. Now, the Board has denied the contractor's motion for reconsideration.
February 9	In Advantaged Solutions, Inc., an unsuccessful protest by the original awardee against the results of corrective action, the Court of Federal Claims held that: (i) under Blue & Gold Fleet, the plaintiff waived its protest that the agency's de-scoping of solicitation had resulted in one that did not meet its minimum needs because the plaintiff had failed to object during the original solicitation process when that de-scoping had occurred; (ii) the agency properly undertook corrective action because it had treated proposals unequally in the original evaluation by faulting the competitor's proposal for identical language that it had found acceptable in the plaintiff's proposal; (iii) since the plaintiff's proposal was found acceptable and evaluated favorably both during the original and the corrective action evaluations, the agency was not required to conduct discussions with it during corrective action; and (iv) the agency's finding during corrective action that the competitor's proposal was acceptable was unobjectionable because it contained identical language to the protester's proposal, which had been found acceptable.
February 8	In Strong Structural Steel, Ltd, the Court of Federal Claims held it lacked jurisdiction over a claim by a subcontractor for steel bollard wall panels that it had manufactured for the southern border wall but were unused when construction was halted because the subcontractor lacked privity of contract with the United States .
February 6	In Syneren Technologies Corp., et al., the Court of Appeals for the Federal Circuit affirmed the prior CoFC decision in a protest against the agency's decision to undertake corrective action because agencies have the inherent authority unilaterally to terminate awards for convenience and and take corrective action while a bid protest is pending, provided that the agency gives notice.
February 5	In VSBC Protest of Fairfield Refrigeration & Cooling Equipment, the SBA's OHA denied a protest of a firm's SDVOSB status because the protest merely alleged that the protested firm “may or may not” be in violation of a few SBA regulations, with "absolutely no evidence" in support of that allegation. Here's one you don't see every day. Originally, in Size Appeal of Veteran Elevated Solutions, LLC, the OHA held that the Area Office erred in finding the challenged firm complied with the ostensible subcontractor rule because, contrary to the Area Office's findings: (i) Otis Elevator, a large business, was the challenged firm's subcontractor; and (ii) Otis would be performing the contract's primary and vital requirements. Now, more than nine months later, the OHA grants the original protester's request that the OHA issue an order declaring the protested firm ineligible for award after both the agency and the protested firm failed to respond to the protester's queries as to whether the agency had gone ahead with the award.
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 over a second claim because the appellant had not filed a notice of appeal of the Contracting Officer's decision. Subsequently, the appellant's motion for reconsideration was denied.
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.