Developments in Government Contracting 2026

In plain language, there is no readily apparent excuse for the Government waiting until after normal business hours on the last possible day to seek leave from the Court to blow past the deadline for filing the Administrative Record, thereby disrupting every subsequent deadline. In addition, the Government seeks to leverage the Ombudsman’s forthcoming decision into a sixty- five day stay, none of it attributable to a request for remand, nor with the assent of Plaintiff. In sum, the Government ignored the Court’s scheduling Order, granted itself an enlargement, and disrupted the long-held standard that bid protests are resolved on an expedited basis. This conduct is unsupportable.

What emerges from this regulatory and decisional thicket is a framework governed more by solicitation-specific terms than by universal rules. But underlying all four permutations is a single, unifying principle: there is one offeror, which becomes the prime contractor when awarded the contract, and that entity alone is in privity with the government. Subcontractors and affiliates are separate legal entities whose experience and past performance remain their own. Because the FAR does not provide universal definitions of “contractor” and “subcontractor,” and because it grants agencies wide latitude in structuring their evaluation criteria, the answer to “Can I get credit for my affiliate’s or subcontractor's past performance?” is invariably: “It depends.”

It depends on whether the solicitation expressly prohibits such consideration (Permutation One). It depends on whether the solicitation allows affiliate or subcontractor use but restricts evaluation credit under the past performance factor (Permutation Two). It depends on whether the solicitation requires documented teaming arrangements or proof of affiliate commitment (Permutation Three). And if the solicitation is silent, it depends on whether the offeror has adequately explained how the subcontractor or affiliate will be involved in performance (Permutation Four).

But in all four permutations, the fundamental reality is the same: when an agency considers the past performance of a subcontractor or affiliate, it is not converting that experience into the offeror’s own past performance. Rather, the agency is making a prospective judgment about whether the offeror’s proposed approach — which includes the use of certain teammates — is likely to result in successful contract performance. In sum, both offerors and agencies must remember that federal contracting is built on the general principle of privity: one government, one contract, one contractor. Subcontractors and affiliates may play critical roles in performance, but they remain separate legal entities. Their experience is their experience, their past performance is their past performance, and their contractual obligations run to the prime contractor, not to the government. No amount of creative proposal writing or evaluation gymnastics can change this fundamental legal reality.

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.

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.

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.

[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. . . .

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.

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.

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.