Bid Protests

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Congress has once again reshaped the protest landscape—this time with a narrow but consequential change targeted squarely at Department of Defense (DoD) procurements. The Fiscal Year 2026 National Defense Authorization Act (NDAA), signed into law by the president on December 18, 2025, includes a new provision designed to discourage meritless protests at the Government Accountability Office (GAO), particularly where an incumbent contractor continues performing work during the protest. Although the language is focused and does not overhaul the protest system more broadly, it introduces a real financial risk calculus that unsuccessful incumbent offerors will now need to consider before pulling the protest trigger.Continue Reading Cracking the Kitchen Sink: FY2026 NDAA Brings Bid Protest Reforms for Defense Contractors That Lodge Meritless Protests

Government procurement is essential to modern governance. But when firms rig bids, allocate markets, or otherwise collude, taxpayers pay more, honest competitors are shut out, and trust erodes. In recent months, US agencies have continued to emphasize the importance of fair competition in government procurement, scrutinizing regulations that may favor incumbents or unfairly limit competition and expanding whistleblower options.Continue Reading Rigging the Game? Antitrust Risks in the Public Contracting Arena

On July 31, 2025, the Court of Federal Claims (COFC) issued its decision in The DaVinci Company v. United States. The case is noteworthy for contractors grappling with geographical supply chain concerns because it elucidates the extent to which two cornerstone country-of-origin procurement statutes—the Buy American Act (BAA) and the Trade Agreements Act (TAA)—can be misunderstood and misapplied by the government.Continue Reading Making Hay of the Interplay Between the TAA and BAA—COFC Sustains Protest Against the VA’s Improper Sourcing of a Critical Pharmaceutical

After years of anticipation, the Federal Acquisition Regulation (FAR) Council has announced the arrival of its proposed rule to enhance the safeguarding of Controlled Unclassified Information (CUI) in federal contracts (the Proposed Rule). Published in the Federal Register on January 15, 2025 (90 FR 4278), the Proposed Rule (stemming from FAR Case 2017-016) has been a long time coming and is intended to establish a government-wide standard for managing sensitive information, ensuring CUI uniformity and consistency across all agencies and federal contracts.Continue Reading They Did It. They Really Did It! The Arrival of the FAR CUI Proposed Rule

On January 8, 2025, in UNICA-BPA JV, LLC, the U.S. Government Accountability Office (GAO) sustained a protester’s challenge to its elimination from the competition for failing to have an active System for Award Management (SAM) registration at the time of its initial proposal submission. The GAO sustained the protest because the protester’s registration was in fact active at the time it submitted its final proposal revision (FPR) even though it was inactive at the time of initial proposal submission. The facts of the case are straightforward:Continue Reading What Happens When Uncle Sam Doesn’t Understand SAM? The Case of the Lucky Protester . . .

In Percipient.ai v. United States, the US Court of Appeals for the Federal Circuit may have triggered a legal “Big Bang” moment in government procurement law. The case centered on whether the Federal Acquisition Streamlining Act’s (FASA) “task order bar” could suppress claims alleging violations of 10 U.S.C. § 3453, which mandates a preference for commercial products. The Panel’s interpretation of the Tucker Act’s definition of “interested party” expanded the universe of standing, allowing prospective subcontractors to exert gravitational influence in legal challenges regardless of their role as indirect offerors. At the risk of offending real physicists, from a legal perspective, the Percipient.ai v. United States decision looks to expand a universe of legal scrutiny. Like the cosmic forces that shape galaxies, the Percipient.ai decision may shape the parameters of government contracting jurisdiction and procedural fairness in the procurement process.Continue Reading Big Bang?: The Federal Circuit, Percipient.ai, and Expanding Jurisdiction

Welcome, dear readers, to the height of protest season! Around the end of the federal fiscal year, the number of contract awards being made increases greatly. Which means so do the number of protests challenging those award decisions. If you are currently asserting or defending a protest (or think you will be before October is over), you are certainly not alone. Unfortunately, if you are somewhat confused about the details, mechanics, timing and procedures relating to protests—well, you also are not alone. This is undoubtedly one of the most complex and confusing areas of government contracting. But fear not! We’re here to help clear up the confusion and get you on the right track, to ensure you obtain those awards improperly awarded to a competitor and maintain those awards that you fairly won. To that end, below is a summary list of the 10 most common bid protestor mistakes, with links to more detailed information about each mistake and how to avoid it!Continue Reading Avoiding Common Bid Protest Mistakes: A Seasonal Guide to Our Top 10 Protest Don’ts!

The Government Accounting Office (GAO) recently issued MiamiTSPi, LLC-Reconsideration, an important decision concerning a procuring agency’s obligation to consider, when evaluating a joint venture, the experience of not only the joint venture itself but also the individual joint venture partners. While many contractors have historically viewed this regulatory requirement as an advantage—allowing small, protégé joint venture partners to rely on and leverage the experience of their “big” joint venture partners—this new opinion turns that thinking on its head. Here, GAO held that an agency’s favorable evaluation of a joint venture’s “Similar Experience” was unreasonable (and the reconsideration of the award therefore required) because the agency did not consider the joint venture’s failure to submit examples of the managing member’s individual past experience.Continue Reading Blessing or Burden? GAO Decision Casts New Light on Joint Venture Experience

As most government contractors have experienced firsthand, procuring agencies routinely engage in a wide variety of communications after bids have been submitted. On occasion, these exchanges are quite minor and afford an offeror the limited opportunity to clarify aspects of its proposal and/or to resolve clerical errors. Sometimes, however, the exchanges are more critical in nature and allow the contractor to submit proposal revisions as part of the negotiation process. When this occurs, the agency is said to have engaged in “discussions” with the contractor. In this scenario, the Federal Acquisition Regulation (FAR) imposes a host of obligations on the agency’s conduct.Continue Reading Sometimes Post-Proposal Communications Are More Than Sweet Nothings …

Virtually every year, the Government Accountability Office’s (GAO’s) Bid Protest Annual Report includes “flawed technical evaluations” as one of the top five most common grounds for successful protests. Simply stated, this means that if a protest is to be sustained at the GAO, there is a good chance the Government watchdog will find that the agency failed to evaluate the protester’s and/or awardee’s technical proposal in accordance with the solicitation’s disclosed evaluation methodology. It follows, of course, that more complex evaluation schemes (i.e., those with a multiplicity of factors, sub-factors, and weighting systems) carry a commensurately higher level of risk that agency evaluators will get it wrong. The GAO’s recent decision in AT&T Mobility, LLC provides one such example and is a useful case study for contractors.
Continue Reading The Devil Is in the Details: Recent GAO Decision Underscores the Importance of Checking the Agency’s Math