Morrison Foerster’s Government Contracts Insights provides our in-depth analysis of developments and trends impacting government contracting. Through Insights, our attorneys offer a real-time assessment of the statutory, regulatory, legal, and business-related developments and trends that are shaping the industry. We also examine a full array of non-U.S. public procurement issues, mindful that our clients compete in a global marketplace.Morrison Foerster’s nationally recognized Government Contracts and Public Procurement practice represents the world’s leading companies in the aerospace and defense, intelligence, cybersecurity, information technology, financial and professional services, education, healthcare, infrastructure, and logistics support sectors. We are enlisted to address our clients’ most complex and important legal issues. Our work includes contract and subcontract negotiation and other transactional matters, business and regulatory compliance counseling, internal investigations, bid protests, and a wide array of enforcement and litigation matters. Our clients range from Fortune 50 companies to small and medium-sized companies just entering the public sector. We advise both U.S. and non-U.S. companies involved in municipal, state, federal, and non-U.S. procurement matters.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Tina is Co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She represents a wide variety of government contractors including information technology, defense, biotechnology, and pharmaceutical companies, with a focus on general contract counseling and compliance, particularly concerning intellectual property, and cybersecurity matters and federal grant funding.Tina counsels contractors on compliance with federal, state and local acquisition and ethics regulations and with the evolving myriad of requirements pertaining to data security and cybersecurity. She has been involved with numerous internal investigations and compliance reviews, and with mandatory and voluntary disclosures to agencies, and litigation of False Claims Act matters.Tina routinely advises clients concerning:<ul><li>Prime-subcontractor relationships</li><li>Sources of supply and country of origin requirements</li><li>Price reductions and price reporting issues</li><li>Organizational conflicts of interest</li><li>Safeguarding of intellectual property and other proprietary interests</li><li>Licensing and data rights issues</li><li>Handling of classified materials and controlled unclassified information</li><li>Agency suspension and debarment proceedings</li></ul>She also assists clients with due diligence and other activities related to the acquisition of government contracting concerns, and with the drafting and negotiation of teaming agreements, subcontracts, licensing agreements, and cooperative research and development agreements. She also assists clients applying for federal grants (including SBIR and STTR agreements), and those who seek to obtain other transactional authority agreements, as well as those competing for state and local government work.Tina’s litigation experience includes government contracts claims litigation in federal courts and before boards of contract appeals, bid protests before the Government Accountability Office and the Court of Federal Claims, and complex disputes in federal courts, including civil fraud and False Claims Act litigation and reverse Freedom of Information Act litigation.Prior to joining Morrison Foerster, Tina worked at another large national firm and as a trial attorney in the Office of the General Counsel of the Navy, Navy Litigation Office.<h4>Representative Experience</h4><ul><li>Negotiation of largest CHIPS Act federal funding agreement between multinational semiconductor corporation and U.S. Department of Commerce.</li><li>Negotiated prime contract and major subcontracts related to the Department of Energy’s next generation supercomputer program, including extensive IP rights negotiations and negotiation of associated patent rights waivers.</li><li>Negotiated series of other transaction authority agreements with DARPA and associated subcontracts with more than a dozen research universities on behalf of a firm biotech client, including complex IP rights allocations and material transfer agreements.</li><li>Assist clients with FedRAMP authorization process and with development of license agreements for software products sold to federal, state and local government agencies.</li><li>Cyber incident response counseling to some of the largest companies and organizations impacted by security incidents.</li><li>Advises clients on Bayh-Dole reporting of inventions and IP strategies for contracts and grants.</li><li>Conducts due diligence for major government contract mergers and acquisitions.</li></ul>

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Tina is co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She counsels a wide variety of government contractors on compliance with federal acquisition and ethics regulations. She drafts and negotiates contracts on their behalf and has been involved with numerous internal investigations and compliance reviews, and with bid protest, contract claims, and False Claims Act litigation. She also advises on M&A transactions involving government contractors.

Tina D. Reynolds

Jim Tucker is of counsel in Morrison Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office.Jim’s practice runs the gamut of litigation and counseling in federal procurement matters, with an emphasis on bid protests, Cost Accounting Standards disputes, and small business matters. He has represented both protesters and awardees in scores of protests before the Government Accountability Office, the Court of Federal Claims, and procuring agencies, in acquisitions ranging from small business procurements to multibillion-dollar contracts of global significance. His representative protest matters span the aerospace sector, the Intelligence Community, base operations and logistics, healthcare, nuclear and environmental work, and information technology and software acquisitions. His protests have included both classified and unclassified programs. In addition to prevailing in published decisions, Jim has also secured favorable corrective action on behalf of clients in a wide variety of protests that were resolved without a published decision.Jim’s work also focuses on disputes over cost allowability and compliance with the Cost Accounting Standards, and he has appeared before the Armed Services and Civilian Boards of Contract Appeals, in size and status protests before Small Business Administration (SBA) area offices, and appeals before the SBA Office of Hearings and Appeals. Jim regularly counsels clients on contract interpretation, organizational conflicts of interest, and small business compliance.Jim graduated with high honors from the George Washington University Law School, where he focused his studies on federal procurement law, was a member of the Law Review, and interned with the General Services Administration’s suspension and debarment office. Jim also holds a degree in theology magna cum laude from the Pontifical Gregorian University in Rome and a bachelor’s degree in classical languages and literature summa cum laude from the University of Kentucky, where he graduated Phi Beta Kappa.

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Jim maintains an active practice in bid protests before the Government Accountability Office and contracting agencies and counsels clients in contract disputes and compliance obligations.

Jim Tucker is of counsel in Morrison Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office. Jim’s practice runs the gamut of litigation and counseling in federal procurement matters, with an emphasis on bid protests, Cost Accounting Standards disputes, and small business matters.

James Tucker

<div style="margin-bottom: 15px;" class="videoWrapper"><iframe class="sticky-video" title="Meet Alex Ward, Government Contracts Practice Co-Chair" src="https://www.youtube-nocookie.com/embed/TkliwdSlTaQ?rel=0" frameborder="0" allow="autoplay; encrypted-media" allowfullscreen="1" title="iframe"></iframe></div>J. Alex Ward is co-chair of Morrison Foerster’s Government Contracts and Public Procurement group. His practice covers a full range of government contracts matters, including investigations, bid protests, claims, general litigation, corporate transactions, and counseling. Alex strives in all matters is to provide his clients the highest level of efficient and effective representation.Alex represents contractors in internal and external investigations, disclosures to the government, and qui tam litigation, with great success in reducing or eliminating his clients’ exposure through active engagement with the government. His work in this area includes obtaining numerous declinations and dismissals of False Claims Act cases in their earliest stages, sparing his clients the cost, risk, and exposure of litigation.He has also served as lead counsel in dozens of bid protests involving military and civilian agency procurements of a wide range of products and services, including all manner of pre- and post-award protests in the GAO, the U.S. Court of Federal Claims, and state tribunals, as well as appeals to the U.S. Court of Appeals for the Federal Circuit and size protest appeals before the SBA’s Office of Hearings and Appeals.Alex handles all aspects of the claims process, from the initial assessment and drafting of requests for equitable adjustment through litigation in the Boards of Contract Appeals and the Court of Federal Claims. Alex’s practice also covers the full gamut of other controversies confronting government contractors, including prime-sub, teaming partner, employer-employee, competitor, and indemnification disputes. His litigation work also includes a wide variety of pro bono engagements, in which he has represented both individual and institutional clients in matters ranging from immigration and criminal defense to sustainable procurement and protection of the environment.Prior to joining the firm, Alex served in the U.S. Army as a commissioned officer and an Assistant to the General Counsel of the Army responsible for civil works and international matters, and as a clerk for judges on the U.S. Courts of Appeals for the Armed Forces and the D.C. Circuit. He is a member of the Boards of the Morrison & Foerster Foundation and the Chesapeake Bay Foundation and of Law360’s Government Contracts Editorial Board.

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Alex is co-chair of Morrison Foerster’s Government Contracts and Public Procurement practice. His practice covers a full range of government contracts matters, including bid protests, claims, investigations, corporate transactions, and counseling.

J. Alex Ward

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Morrison Foerster’s Government Contracts Insights blog provides an in-depth analysis of news, developments, and trends impacting government contracting and procurement. Through Insights, attorneys from our nationally recognized Government Contracts and Public Procurement practice will offer a real-time assessment of the statutory, regulatory, legal, and business-related developments that are shaping the industry. This blog will also examine a full array of U.S. and non-U.S. public procurement issues, mindful that our clients compete in a global marketplace.Read about our <a href="http://govcon.mofo.com/editors/">Authors</a>.Never miss a post. Subscribe to get real-time updates.

Brad is a partner in Morrison Foerster’s Litigation Department, Managing Partner of the Austin office, and Chair of the firm’s Israel practice. He is the former Co-Chair of the firm’s Global Litigation Practice and the Government Contracts + Public Procurement Practice.

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James A. Tucker

The Tortured Regulations Department: SBA’s New Rule and Its Effect on Investments

Bid Protest Spotlight: Standing, Relationships, Responsibility

House’s Passage of the SAMOSA Act Signals Policy Shift Towards Government-Wide Enterprise Software Licensing

New DFARS Regulation on Small Business Affiliate Past Performance

Bid Protest Spotlight: Unclear Criteria, Data Rights, Conflicts

In a lengthy and complex effort, the U.S. Small Business Administration (SBA) issued a <a href="https://www.federalregister.gov/documents/2024/12/17/2024-29393/hubzone-program-updates-and-clarifications-and-clarifications-to-other-small-business-programs" target="_blank">final rule</a> on December 17, 2024, that amended many requirements related to small business contracting. As with most rules, there are some good, some bad and some unknown factors. In this first post on the new regulations, we focus only on the changes with the greatest effects on investments in and M&A transactions of small businesses: (1) updates to permissible minority shareholder controls and (2) a substantial rewrite of post-acquisition recertification rules. We previously discussed the <a href="https://govcon.mofo.com/topics/size-recertifications-following-mergers-and-acquisitions-coming-changes-to-the-small-business-regulations" target="_blank">proposed version</a> of this rule. The final rule takes effect on January 16, 2025, although some (but not all) requirements related to recertifications on multiple-award contracts will not take effect until one year later, on January 17, 2026.Minority ControlsFor SBA’s purposes, business size is measured by the aggregate of a business concern and all its affiliates under common control. Such control can be established by affirmative means – by majority ownership or voting interests, for example – or through negative controls exerted by a minority shareholder, which, if one is not careful, can inadvertently jeopardize a company’s small business eligibility. Until now, practitioners have relied on a large body of case law at SBA’s Office of Hearings and Appeals (OHA) to cobble together a generally recognized set of negative controls that are sufficient to create affiliation, and those that are not – lists that varied confusingly between size and socioeconomic programs. With this final rule, SBA will expressly permit the same six minority controls across all programs and include a catchall provision that aligns with existing OHA precedent. These specific controls allow minority shareholders to block certain “extraordinary” actions by the small business without creating affiliation that could undermine eligibility for small business programs. This welcome change provides much needed certainty for how minority controls will affect affiliation status and further opens the door to minority investors in 8(a), woman-owned, and veteran-owned, and service-disabled veteran-owned small businesses (SDVOSBs).Five of the six minority controls were already enumerated in the affiliation rule for veteran-owned small businesses and SDVOSBs, and they will now be added to the SBA’s general affiliation rules and affiliation rules for 8(a) and woman-owned small businesses:<ul><li>“Adding a new equity stakeholder or increasing the investment amount of an equity stakeholder”;</li><li>“Dissolution of the company”;</li><li>“Sale of the company or all assets of the company”;</li><li>“The merger of the company”; and</li><li>“The company declaring bankruptcy.”</li></ul>A sixth minority control will be added to the existing allowed minority controls in the veteran-owned small business rule and the newly enumerated minority controls for the general affiliation rule and the affiliation rules for 8(a) and woman-owned small businesses:<ul><li>“Amendment of the company’s corporate governance documents to remove the shareholder’s authority to block any of the actions” that constitute allowable minority control.</li></ul>Previously, the general affiliation rule and affiliation rules for 8(a) and woman-owned small businesses did not include any enumerated exceptions, although precedent from OHA had identified some exceptions.Finally, a seventh catchall category in all four affiliation rules will allow minority shareholders to block any other “extraordinary action” through a provision that is “crafted solely to protect the investment of the minority shareholders, and not to impede the majority’s ability to control the concern’s operations or to conduct the concern’s business as it chooses.” In a time when the U.S. government is actively encouraging outside investments in government contractors, these changes are welcome. They will help businesses participating in any of SBA’s programs grow and hopefully make investor negotiations more straightforward. These changes also help meet the goal of simplifying agency regulations and making them more readily understandable outside the legal community. The result of these efforts brings the government market one step closer to the commercial market, although investors should still be careful about using standard forms that do not precisely align with SBA’s guidance, as discussed in our <a href="https://govcon.mofo.com/topics/venture-capital-investment-in-a-small-business-know-the-sba-rules-first-" target="_blank">previous blog post</a>.RecertificationsSBA has also attempted to simplify (or at least reduce the word count) of its recertification rules. This portion of the final rule attempts to provide more consistency in the effect of size recertifications following a merger, acquisition, or other change in control. To accomplish this goal, SBA has substantially rewritten the existing rules and moved them into a single new recertification rule at 13 C.F.R. § 125.12 to be cross-referenced by the regulations for each size and socioeconomic program. As before, recertification of size and status will be required from buyer and seller within 30 days of a merger, acquisition, or other transaction that results in a change of control.<a href="#_ftn1" target="_self">[1]</a> However, the effects of that recertification have now changed significantly, at least with respect to eligibility for future task orders on small business multiple-award contracts.In short, under the new regulations, when a concern represents itself as Other Than Small following a transaction with a large concern, it is:1. For Single-Award Set-Aside Contracts: Eligible to continue performing, have options exercised, and receive orders.2. For Multiple-Award Set-Aside Contracts: Not Eligible to bid on future orders or have options exercised.3. For Pending Proposals: a. Eligible for award of single-award set-asides if the proposal was submitted at least 180 days prior to the acquisition.b. Not Eligible for award of pending proposals for single-award set-asides submitted within the last 180 days.c. Not Eligible for pending multiple-award set-aside contract proposals or task order proposals under multiple-award set-aside contract vehicles, no matter when submitted.4. For GSA Schedule Contracts: Not Eligible for award of pending or future set-aside orders or blanket purchase agreements (BPAs). This is a stark departure from the current rule, which, in the interests of competition and consistency, generally permitted former small businesses to continue competing for task orders under multiple-award set-aside contracts and performing through all option periods and permitted contractors to continue bidding as small businesses through their GSA schedule contracts and related BPAs.<a href="#_ftn2" target="_self">[2]</a> SBA takes the express position in its summary of the final rule that these changes will not have a retroactive effect, but that is likely in the eye of the beholder. In any event, SBA has offered some relief to small businesses concerned about the value of their existing contracts: the rules above will not affect (1) eligibility for task order awards (including pending proposals) under multiple-award set-aside contracts if the acquisition occurs prior to January 17, 2026; and (2) eligibility for any options to be exercised prior to January 17, 2026. Note that neither of these exceptions appear to apply to GSA Schedule Contracts. This limited – but significant – one-year grace period before the rule takes effect for options and orders on multiple-award set-aside contracts is likely to drive significant M&A activity in 2025.New Exception: Small Company Buys Small CompanyIn a concession to industry and a change from the proposed rule, the final rule includes separate provisions for small companies that become other than small because of a merger with or sale to another small business, when the combined entity is no longer small. In this situation, the surviving entity will remain eligible for set-aside orders and options under existing multiple-award contracts; however, such orders and options will not count toward the procuring agency’s small business contracting goals. In other words, SBA has maintained the current rule for small-small acquisitions, exempting such transactions from the new rules applicable to large-small acquisitions. TakeawaysIn some ways, SBA’s new rules related to investment are more intuitive than the status quo. In particular, the minority shareholder negative control rules will provide real transparency and consistency for small businesses seeking non-control investments (and their investors). However, the recertification changes are likely to have a number of knock-on effects that SBA will have to address including decreasing the value of small businesses with multiple-award contracts, making the transition to a mid-size contractor harder and reducing competition for small business task orders – not to mention likely causing a spike in small business transactions in 2025.    Ethan Sterenfeld, a Law Clerk in our Washington, D.C., office, contributed to the writing of this article.<hr class="divider"><a href="#_ftnref1" target="_self">[1]</a> In a departure from the proposed rule, a mere agreement in principle will not trigger the recertification requirement, and the 30-day window will run instead from the effective date of the transaction.<a href="#_ftnref2" target="_self">[2]</a> Buyers should also keep in mind that recertification is required from both the acquired concern and the acquiring concern under the current and new regulations.

The Tortured Regulations Department: SBA’s New Rule and Its Effect on Investments 

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Jacobs

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Micross

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Damien is a partner in the firm’s Government Contracts & Public Procurement practice. He represents clients in all facets of government contracts transactions, as well as regulatory counseling, subcon

Damien Specht

Damien C. Specht

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Locke Bell is a partner in the firm’s Government Contracts & Public Procurement practice.

Locke Bell

Jim Tucker is of counsel in Morrison & Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office.
Jim’s practice runs the gamut of litiga

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Associate

Ali Young is an associate in the Government Contracts practice in Morrison Foerster’s Washington, D.C. office.

Alissandra Young McCann

Ali Young is an associate in the Government Contracts practice in Morrison Foerster’s Washington, D.C. office.

Alissandra McCann

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The Tortured Regulations Department: SBA’s New Rule and Its Effect on Investments

SBA Issues Final Rule on Appeals Process for PPP Loan Review Decisions

This month’s Law360 Bid Protest Roundup focuses on two Government Accountability Office (“GAO”) decisions and one Court of Federal Claims (“COFC”) decision. From COFC jurisdiction and standing, to meaningful relationship commitment letters, and responsibility determinations and unwarranted strengths, each decision serves a different helpful reminder for contractors submitting proposals and unsuccessful offerors looking to file a protest, alike.Acuity-CHS Middle East LLC<a href="#_ftn1" target="_self">[1]</a>Although Acuity-CHS Middle East LLC appears to be a case about organizational conflicts of interest (“OCI”) at first blush, the real meat of the case is about testing COFC’s jurisdiction and standing in the aftermath of the Federal Circuit’s surprising decision earlier this year in Percipient.ai v. United States, 104 F.4th 846 (Fed. Cir. 2024). A plaintiff has standing to challenge a procurement if it is an interested party, which is defined as an actual or prospective bidder that has a direct economic interest in the award of a contract. This usually means the protester must show that, but for the alleged procurement error, it would have had some likelihood of award itself. As a result, COFC has consistently held that subcontractors do not have standing to bring a bid protest as an interested party. In Percipient.ai, the Federal Circuit, however, found that standing in a protest extends to a prospective subcontractor when it has a substantial chance of being engaged by a prime contractor to meet the needs of the agency had the violations not occurred. Percipient.ai involved a supplier (Percipient.ai) of commercial software challenging a task order that the supplier alleged violated a statutory preference for products available commercially. Percipient.ai was, at most, a potential subcontractor for the task order. The Federal Circuit found Percipient.ai had standing because it had a direct economic interest in the alleged violation of the statute because it was an offeror of commercial or non developmental services or items. Importantly, the Federal Circuit clarified that it found the plaintiff had standing because it (1) invoked only the third prong of the Tucker Act protest authority (i.e., providing jurisdiction over interested parties challenging “any alleged violation of statute or regulation in connection with a procurement or a proposed procurement”); (2) asserted a violation of the statute providing preference for products available commercially and obligating the procuring agency to conduct market research; and (3) did not directly or indirectly challenge a solicitation for an actual or proposed award of a government contract. Here, Acuity-CHS Middle East LLC (“Acuity”) did not hold the underlying Department of State’s Diplomatic Platform Support Services IDIQ contract for the task order at issue. The task order was for Medical Support Services in Iraq (“MSSI”), which involves conducting drug testing of U.S. diplomatic and contractor personnel in Iraq. Acuity’s affiliate provides protective services in Iraq, and therefore its personnel are subject to the drug testing performed by the MSSI contractor. Therefore, State issued an OCI determination, and the terms of the MSSI task order solicitation stated that contractors holding, directly or through their affiliates, a contract for the protective services were prohibited from competing for the MSSI task order. Acuity filed a protest claiming that this arbitrarily and capriciously prevented it from participating in the task order as a subcontractor in violation of Federal Acquisition Regulation (“FAR”) 9.5. Specifically, Acuity argued the agency failed to reasonably consider and mitigate the OCI to allow it to participate as a potential subcontractor on the task order.Relying on Percipient.ai, Acuity argued it had standing to bring the protest and COFC had jurisdiction to hear it. Focusing solely on Acuity’s standing argument, COFC disagreed and dismissed the case. <a href="#_ftn2" target="_self">[2]</a> Specifically, COFC explained that Acuity could not show that it had a substantial chance of being selected as a subcontractor by the awardee (KBR) as KBR already had a subcontractor for the task order. There was also no record of a prior or current relationship between Acuity and KBR suggesting that Acuity would have a substantial chance of being KBR’s subcontractor for the task order in the future if KBR’s current subcontractor failed. COFC also explained that Acuity lacked subcontractor standing because it did not exclusively invoke the third prong of the Tucker Act. By alleging the contracting officer violated FAR 9.5 in determining that an immitigable OCI prevented it from participating in the task order, it inherently sought a determination that the task order was invalid and required reissuance, and thus also invoked the first prong of the Tucker Act’s protest authority. Furthermore, the alleged violation at issue here, unlike the violation in Percipient.ai, did not impose an ongoing legal obligation on the agency or the awardee. In other words, once State made its one-time OCI determination and awarded the task order to KBR, it imposed no continuing obligation on the agency or the awardee, according to the Court. Therefore, the regulatory violation here was not similar to the statutory violation in Percipient.ai, which involved a continuing obligation on the agency and its contractor to have a preference for commercial sources.TakeawaysAcuity-CHS Middle East LLC is the first test of how far the Federal Circuit’s holding in Percipient.ai might be applied. For those worried (or hopeful) that Percipient.ai blew the door open to subcontractor task order protests, Acuity-CHS Middle East LLC shows just how narrow COFC views that holding. Aggrieved prospective subcontractors should study this decision before rushing to the courthouse door. Mission SOLAIYA JV, LLC<a href="#_ftn3" target="_self">[3]</a>Mission SOLAIYA JV, LLC (“MSJV”), a Mentor Protégé Joint Venture under the Small Business Administration’s (“SBA”) Mentor Protégé Program, protested the General Services Administration’s (“GSA”) exclusion of MSJV’s proposal for award of the One Acquisition Solution for Integrated Services Plus (“OASIS+”) government wide acquisition contract due to noncompliance with a solicitation requirement. Specifically, despite scoring enough points for award, GSA excluded MSJV’s proposal for failure to provide a “qualifying project” from either the protégé member of the joint venture or from the joint venture itself, which was a mandatory requirement in Section L.5.1.3.1 of the Request for Proposals (“RFP”).MSJV argued, however, that the RFP permitted offerors, including members of a joint venture, to utilize resources from a parent company or affiliate to meet requirements of the RFP so long as a meaningful relationship commitment letter was submitted. Therefore, in lieu of submitting a qualifying project from MSJV or the protégé, MSJV submitted a qualifying project from the protégé’s parent company along with a meaningful relationship commitment letter. This, MSJV argued, should have been sufficient to meet the mandatory requirement for award.Unfortunately for MSJV, the GAO pointed out that the section of the RFP permitting reliance on an affiliate limited such reliance to scored sections of the RFP. And the mandatory qualifying project requirement for Mentor protégé Joint Ventures was not a scored section. Therefore, the GAO denied MSJV’s protest and found GSA’s determination that MSJV’s proposal was noncompliant was reasonable.TakeawaysIn a time where caselaw and regulations are continually redefining what agencies can and cannot require Mentor protégé Joint Ventures to submit to meet experience, past performance, and capabilities requirements, Mentor protégé Joint Venture offerors should pay close attention to the precise language of RFPs. As this case demonstrates, there are often subtle nuances that can become major pitfalls preventing award of the contract. When in doubt regarding the terms of a solicitation, be sure to submit a question to the agency during the Q&A period. If the response is unsatisfactory, a protest may be necessary prior to proposal submission.GOVCIO, LLC<a href="#_ftn4" target="_self">[4]</a>In GOVCIO, LLC, the protester, GovCIO, LLC, challenged the Department of Veterans Affairs’ (“VA”) award of a task order to General Dynamics Information Technology, Inc. (“GDIT”) for file conversion services, lodging multiple protest grounds. Of particular interest for this post are two of those grounds: (1) the sole successful ground regarding an unwarranted significant strength; and (2) an unsuccessful ground regarding allegations of nonresponsibility.First, the VA assigned GDIT’s Technical Evaluation two significant strengths, one of which related to GDIT’s perceived capability to exceed the estimated conversion requirement in the solicitation. Specifically, the VA assigned GDIT a significant strength for demonstrating a capacity to convert a redacted number of files per day, which the VA noted was a redacted percent higher than the solicitation’s estimated 1.2 million daily conversion rate.<a href="#_ftn5" target="_self">[5]</a> GovCIO argued this assessment was flawed because the 1.2 million daily rate from the solicitation was calculated based on calendar days, whereas GDIT’s was calculated using workdays. Therefore, the VA utilized an apples-to-oranges comparison when assigning the significant strength. When comparing the conversion rate using workdays as a common basis of comparison, however, GDIT’s estimated capacity did not come close to exceeding the required daily capacity by the percentage the VA noted in its evaluation.The GAO agreed with GovCIO that the VA’s assignment of a significant strength was unwarranted. Despite GovCIO having a lower Technical rating, no significant strengths, and fewer strengths than GDIT, the GAO further found this assignment of a significant strength prejudiced the protester. This was because the VA specifically mentioned it in the best value tradeoff as one of the benefits of GDIT’s proposal that warranted a price premium. Therefore, the GAO sustained the protest on this ground.Second, GovCIO unsuccessfully argued that the VA should have found GDIT nonresponsible due to allegations that GDIT allegedly attempted to gain an unfair competitive advantage by improperly pressuring one of GovCIO’s initially proposed subcontractors to rescind its commitment to support GovCIO. The VA argued that it evaluated responsibility at the time of award of the underlying IDIQ contract award, and the task order solicitation did not require an additional responsibility determination. It further argued that the issue raised by the protester was a private dispute rather than a violation of procurement law.The GAO agreed with the VA, citing to prior GAO case law finding that there is no requirement that an agency conduct an additional responsibility determination when issuing a task order under an IDIQ contract. It also explained that even if a responsibility determination was required, the VA was correct that this was a private dispute rather than relating to responsibility criteria or a violation of statute or regulation.TakeawaysThe two protest grounds discussed above provide different reminders for unsuccessful offerors. First, protesters should not shy away from raising legitimate arguments regarding assignment of strengths to an awardee’s proposal even if the awardee would still have a higher adjectival rating and number of strengths without the evaluation error. If the strength at issue was a differentiator in the best value determination, it could be a successful protest ground, as this case demonstrates. Second, protesters must raise challenges to responsibility at the IDIQ level, rather than the task order level. It is also worth remembering that disputes between private parties rarely rise to the level of a sustainable protest ground.    <a href="#_ftnref1" target="_self">[1]</a> <a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2024cv1072-46-0" target="_blank">Acuity-CHS Middle East LLC v. United States, 2024 WL 4716428 (2024)</a>.<a href="#_ftnref2" target="_self">[2]</a> With regard to jurisdiction, Percipient.ai held that the Federal Acquisition Streamlining Act (“FASA”), which bars COFC from hearing protests “in connection with the issuance or proposed issuance of a task or delivery order,” did not bar Percipient.ai’s case because Percipient.ai neither protested the agency’s decision in issuing the task order nor sought to change anything about the task order itself. Rather, it was directed to the agency’s violation of the statute and related regulations after issuance of the task order. In Acuity-CHS Middle East LLC, COFC never reached the question of whether FASA barred the protest because it found Acuity did not have standing as an interested party.<a href="#_ftnref3" target="_self">[3]</a> <a href="https://www.gao.gov/assets/880/872947.pdf" target="_blank">Mission SOLAIYA JV, LLC, B-421775.11, Nov. 7, 2024, 2024 WL 4788549</a><a href="#_ftnref4" target="_self">[4]</a> <a href="https://www.gao.gov/assets/880/872724.pdf" target="_blank">GOVCIO, LLC, B-421290.8, Sep. 11, 2024, 2024 WL 4707095</a><a href="#_ftnref5" target="_self">[5]</a> The precise number and percentage were redacted in the GAO’s decision.

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On December 4, 2024, the House passed the Strengthening Agency Management and Oversight of Software Assets (SAMOSA) Act, a bipartisan bill that is now before the Senate. Under the SAMOSA Act, federal agencies<a href="#_ftn1">[1]</a> are directed to assess their current software inventory and management of contracts and software licenses. Agencies then must develop plans to consolidate their software licenses and adopt enterprise license agreements. If the Act passes in the Senate, agencies will have to identify categories of software to prioritize for enterprise licenses and develop mitigation strategies to reduce software license restrictions. The Act also calls for agencies to train their employees in negotiating options within contracts to minimize restrictive license provisions and distinguishing between acquiring commercial software and custom software.  The SAMOSA Act also extends beyond these agency-level initiatives. If the bill becomes law, within two years after its passage, the Office of Management and Budget (OMB) will develop a strategy for the adoption of government-wide enterprise licenses for widely used software. As noted, only the House has passed the SAMOSA Act. The corresponding Senate bill remains pending since July 2023 when the Senate Committee on Homeland Security and Government Affairs approved its forwarding by unanimous vote. The Senate bill is sponsored by Senator Gary Peters (D-MI) and co-sponsored by four Republican and two Democrat Senators, indicating bipartisan support for the SAMOSA Act to become law. The SAMOSA Act leaves a number of questions open. For one, the bill does not provide specific direction on existing software contracts and procurements; it only requires development of agency-specific plans with a focus on obtaining enterprise licenses as the identified categories “come up for renewal or renegotiation.” It also does not address how contracting officials will facilitate fair negotiations to remove common commercial terms the government deems unfavorably restrictive, in light of the general directive in the Federal Acquisition Regulation (FAR) and Department of Defense FAR Supplement (DFARS) to procure commercial software on commercial terms.<a href="#_ftn2">[2]</a>The SAMOSA Act follows <a href="https://www.gao.gov/products/gao-25-107114" target="_blank">a recent Government Accountability Office (GAO) report</a> advising federal agencies to track opportunities to reduce software license costs. In January 2024, GAO recommended that agencies track software licenses and compare those licenses to their current inventory, a requirement mandated under the SAMOSA Act.<a href="#_ftn3">[3]</a> Just this past November, GAO identified restrictive software licensing practices in cloud computing across multiple agencies as an area where the government may reduce costs.<a href="#_ftn4">[4]</a> Similarly, Senator Joni Ernst recently sent a letter to Elon Musk and Vivek Ramaswamy, proposed leaders of the future Department of Government Efficiency (DOGE), indicating that cloud computing software licenses are a target area of prospective federal government cost cutting.<a href="#_ftn5">[5]</a>The SAMOSA Act and these recent GAO reports signal a potential policy shift in federal contracting for software. Contractors should thus be prepared to review their own license agreements with the government and their approach to federal sales. Thomas Lee, an associate in our Washington, D.C., office, contributed to the writing of this article.<hr class="divider"><a href="#_ftnref1">[1]</a> The SAMOSA Act applies the definition of “agency” in 44 U.S.C. § 3502, namely, “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency,” excluding the Government Accountability Office, the Federal Election Commission, District of Columbia agencies, and government-owned contractor-operated facilities. The Act exempts elements of the intelligence community from its definition of agency and suggests those elements will conduct their own independent assessments.<a href="#_ftnref2">[2]</a> See FAR 12.212(a); DFARS 227.7202-1(a). These policies make exceptions for terms prohibited by federal law or that otherwise do not satisfy the government’s specific needs – but in such cases where “the Government has a need for rights not conveyed under the license customarily provided to the public, the Government must negotiate with the contractor to determine if there are acceptable terms for transferring such rights.” DFARS 227.7202-3(b).  <a href="#_ftnref3">[3]</a> U.S. Gov’t Accountability Off., GAO-24-105717, Federal Software Licenses: Agencies Need to Take Action to Achieve Additional Savings (2024).<a href="#_ftnref4">[4]</a> U.S. Gov’t Accountability Off., GAO-25-107114, Cloud Computing: Selected Agencies Need to Implement Updated Guidance for Managing Restrictive Licenses (2024).<a href="#_ftnref5">[5]</a> Letter from Joni K. Ernst, U.S. Senator, to Elon Musk and Vivek Ramaswamy, Co-Chairmen, Dep’t of Gov’t Efficiency (Nov. 25, 2024).

Tina is a partner in Morrison & Foerster’s Government Contracts practice. She represents a wide variety of government contractors including information technology, defense, biotechnology, and pharmace

Tina Reynolds

House’s Passage of the SAMOSA Act Signals Policy Shift Towards Government-Wide Enterprise Software Licensing

Nearly a year ago, the National Defense Authorization Act for Fiscal Year 2024 directed the Department of Defense (DOD) to amend the Defense Federal Acquisition Regulation Supplement (DFARS) no later than July 1, 2024, “to require that when small business concerns bid on Department of Defense contracts, the past performance evaluation and source selection processes shall consider, if relevant, the past performance information of affiliate companies of the small business concerns.”On November 15, 2024, <a href="https://www.govinfo.gov/content/pkg/FR-2024-11-15/pdf/2024-26055.pdf" target="_blank">DOD promulgated that long-awaited amendment</a>, effective immediately, with no opportunity for public comment. Here is what DOD worked up over the course of the last year:<blockquote>When evaluating the past performance of an offeror that is a small business concern in response to a competitive solicitation, contracting officers shall consider relevant past performance information provided for affiliates of the offeror.</blockquote>DFARS 215.305(a)(2)(C). The new regulation is welcome news to some (those small business contractors that have affiliates and do business with DOD), but most offerors will not benefit from it. We have a few observations. The regulation also raises some important questions, which the lack of public comment has unfortunately left unresolved.Observations<ul><li>This regulation applies only to DOD procurements. Non-DOD procurements continue to follow the ordinary rule that agencies may but are not required to consider affiliate past performance. In our experience, most agencies already do consider affiliate past performance for all offerors, subject to the usual condition that the affiliate must be proposed to have some meaningful involvement in performance.</li><li>The new rule applies only to small business offerors. It does not require agencies to consider the past performance of affiliates of large business offerors, although agencies remain free to do so.</li><li>Because the regulation is located in DFARS Part 215, we would not expect it to be mandatory for acquisitions that do not use FAR Part 15 procedures. Thus, for example, DOD agencies would continue to be free to consider or not consider affiliate past performance when making Federal Supply Schedule orders under FAR Subpart 8.4, because DFARS Part 215 is generally inapplicable to such orders. Whether the new regulation applies to task order competitions under FAR Subpart 16.5 likely depends on whether a particular acquisition otherwise uses FAR Part 15 procedures.</li><li>The regulation is not limited to small business set-aside procurements. The rule applies when the offeror is a small business, even if it is bidding on a full and open opportunity.</li></ul>Unresolved Questions<ul class="li-text-orange"><li>Does the regulation apply to the evaluation of corporate experience? Although past performance and corporate experience are related, they aren’t the same thing, and the rules governing past performance evaluations do not necessarily apply to corporate experience evaluations. It would be logical for an agency to apply this new rule to both, but the text of the regulation does not actually require that.</li><li class="li-text-orange">Can an offeror receive affiliate past performance credit if its proposal does not propose meaningful involvement of the affiliate in contract performance? As <a href="/topics/-i-get-by-with-a-little-help-from-my-friends-relying-on-affiliate-past-performance-and-experience" target="_self">we have detailed before</a>, the ordinary rule is that agencies are prohibited from crediting an offeror with affiliate past performance if the offeror’s proposal fails to identify some meaningful participation by the affiliate in contract performance. We would expect agencies to read the new regulation in harmony with this longstanding case law. After all, the success of a different legal entity that won’t be involved in a new contract provides no “relevant” information about the offeror’s ability to perform well. But the regulation itself does not explain how this will work.</li><li>What does “consider” mean? The new rule requires DOD contracting officers to “consider” the past performance of small business offerors’ affiliates. But does it require the contracting officers to give that past performance the same weight as offeror past performance? The rule does not say, but we would expect contracting officers to retain some degree of discretion in this regard.</li></ul>

This month’s Bid Protest Roundup highlights three recent protests: one from the U.S. Government Accountability Office and two from the Court of Federal Claims. The first protest concerns an agency using unstated evaluation criteria; the second involves the adequacy of an agency’s investigation into its own data rights; and the third addresses an unequal access to information organizational conflict of interest.Hometown Veterans Medical, LLC, B-422751, B-422751.2, October 11, 2024In this pre-award protest, the GAO held an agency improperly rejected Hometown Veterans Medical’s (“Hometown”) proposal because the agency (1) evaluated Hometown’s proposal using a cursory review, which was not described in the solicitation, and (2) required copies of two representations, even though the solicitation did not expressly require them.On April 29, 2024, the Department of Veterans Affairs (VA) issued a Request for Proposals (RFP) for commercial home oxygen services. The RFP included the standard solicitation provisions for commercial items and an addendum to the instructions at FAR 52.212-1. Specifically, paragraph “C” of the addendum stated proposals that did not include all required documentation and all criteria would not be considered.The RFP included FAR 52.204-24, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment. Although the provision includes two representations, it contains instructions stating the offeror shall not complete the representations if it does not provide or use “covered telecommunications equipment.”Hometown posted completed online representations on SAM.gov, but because Hometown responded “does not” to the representations regarding using or providing covered telecommunications equipment, Hometown’s representations did not include FAR 52.204-24.The VA received eight proposals, including Hometown’s, and conducted an “initial cursory review” of each proposal. The Contracting Officer looked at each offeror’s SAM.gov records and looked for whether each offeror had attached completed responses to FAR 52.209-7 and 52.204-24 to their proposals. Four offerors did not include those representations in their proposals (including Hometown), so the VA rejected them. Hometown challenged the rejection, arguing it was based on unstated criteria.The GAO determined the VA’s removal of the four proposals was unreasonable. First, the GAO noted the VA’s initial cursory review was not consistent with the RFP. Second, the GAO disagreed that the solicitation’s requirement that “ALL documentation requested” meant offerors needed to include the specific representations at issue because the RFP instructed offerors to submit specific documentation (such as a table of contents, experience narrative, pricing schedule, etc.). Third, the GAO noted the VA’s argument is at odds with one of the basic purposes of SAM.gov: to be an electronic repository of offeror’s responses to FAR provisions. The GAO specifically distinguished this case from Futron, Inc., B-420703, July 25, 2022, 2022 CPD ¶ 189. There, the GAO rejected a protester’s argument that SAM.gov representations were an adequate response to an RFP requirement to submit a copy of the representation at FAR 52.204-24. GAO noted in Futron that the RFP explicitly required the provisions be attached to the cover letter. Here, the language was not so explicit, as the solicitation did not state offerors were required to provide copies of their SAM.gov representations. Therefore, GAO decided not to extend Futron’s holding and sustained the protest.Takeaway: GAO clarified its holding in Futron. Specifically, when an RFP does not have clear and explicit language indicating that representations must be attached to the responses, the Agency cannot simply reject the proposal as unacceptable if the proposal does not include them. Offerors should also be alert to the fact that sometimes more may be needed than their SAM.gov representations. Although the GAO ultimately decided the VA was unreasonable here, offerors should watch out for language requiring specific representations to be appended to their proposals.Rotair Aerospace Corporation v. United StatesIn this post-award protest, the Court of Federal Claims found the Defense Logistics Agency (DLA) conducted an adequate review of the government’s data rights by reviewing technical certificates provided by the Army.The Army Aviation and Missile Command (AMCOM) procures spare parts for the Apache combat helicopter. AMCOM provides instruction manuals known as “technical data packages” (TDPs), which include specifications and instructions on the manufacturing process for each part. AMCOM provides contractors with TDPs, however, the government does not necessarily have the same data rights in the underlying drawings, parts lists, and specifications as it does in the TDP itself, thereby limiting the usefulness of the TDPs. Further, some of AMCOM’s spare parts are identified as “critical safety items” that must be purchased from an approved source. A manufacturer can become an approved source through the Source Approval Request (SAR) process, which is managed by the Army. To complete the SAR process, a manufacturer must provide a complete and current copy of the TDP required for the part.On September 16, 2022, the DLA issued a pre-solicitation notice, after issuing a sources-sought synopsis. On September 20, 2022, the DLA executed a Justification and Approval (J&A) to use a sole source procurement to acquire arm assemblies and bell cranks from Boeing. For the J&A, the Contracting Officer (CO) stated the government did not have the necessary data rights to purchase from any additional sources besides Boeing, and Boeing was the only known source able to furnish the supplies. DLA issued a solicitation for the arm assemblies and bell cranks on September 30, 2022.On May 9, 2023, Rotair filed a bid protest with the Court. Rotair argued the DLA unreasonably prevented it from competing in the September 30th solicitation. Specifically, Rotair argued the DLA wrongly assumed Boeing maintained the data rights to the arm assembly and bell cranks, and because of this, DLA wrongly determined it could not share those specifications with other sources. Rotair argued the government was required to conduct a reasonable investigation into its data rights prior to making a sole source decision.Here, the Court determined the justification did meet the requirements of Competition in Contracting Act and DLA’s decision was rational. The Competition in Contracting Act allows an agency to use non-competitive procedures when the agency determines that its needs are only available from one responsible source and no other good will satisfy the agency’s need. Here, the government needed to review its own data rights. The Court found the government reasonably investigated its data rights. AMCOM provided a TDP list (“TDPL”) for each part to DLA. The TDPL for the arm assembly contained a “Technical Certification for Proposed Other than Full & Open Competitive Acquisition of Spare Parts,” which stated the data needed was not available. The TDPL for the bell crank contained the same certification and stated the government did not have the rights in the underlying data and could not be purchased. Both certifications concluded by stating there was a reasonable technical basis to conclude the items were only available from Boeing.The DLA used these certifications in the J&A. DLA stated the data was not available and could not be developed to allow full and open competition.Further, the Court clarified its broader holding in Chromalloy.<a href="#_ftn1" target="_self">[1]</a> The Court stated its holding in Chromalloy was to ensure an agency’s investigation was reasonable, not whether the agency took all possible investigatory steps to ascertain its rights. Here, Rotair argued DLA’s investigation was unreasonable because there was no evidence DLA, or the Army, reviewed any of its prior contracting history to determine its data rights. However, the Court disagreed and stated that the technical certifications provided showed that each part had undergone a full screening and that this was enough. Takeaway: This is another case that emphasizes the importance of understanding intellectual property rights. Further, the Court’s decision elaborates on what is considered a reasonable investigation into the government’s data rights. It seems clear that, so long as the government conducts a rather baseline review of the technical documentation for a specific part, that is good enough. Here, DLA simply relied on a certificate from the Army and the Court determined this to be adequate. Potential offerors should note that this decision inherently protects those offerors that use proprietary data to deliver goods or services to the government.ITellect, LLC v. United StatesIn this post-award protest the Court of Federal Claims determined the Defense Information Systems Agency (DISA) reasonably awarded LightGrid, LLC (LightGrid) the protested contract even though LightGrid did not disclose its president was married to a DISA Contracting Officer (CO).ITellect, LLC (ITellect) was the incumbent contractor providing Enterprise Voice Services (EVS) to DISA. DISA issued a solicitation to continue the EVS contract. Four offerors, including ITellect and LightGrid, submitted proposals. DISA awarded the contract to LightGrid on April 24, 2024.After LightGrid was awarded the contract, ITellect learned the president of LightGrid was married to a DISA CO who served as CO to ITellect’s incumbent EVS contract for two months in 2022 (Mrs. Smith). This was not disclosed on LightGrid’s proposal. LightGrid did not identify any current or potential organizational conflicts of interest (OCIs) and it did not mention a personal relationship between any of its employees and any DISA employees.ITellect protested, specifically claiming LightGrid did not disclose all its potential or actual OCIs and therefore made a material misrepresentation. After ITellect protested, the DISA CO who managed the procurement initiated an investigation to determine whether any OCI existed. ITellect made two main arguments. Specifically, DISA acted arbitrarily and capriciously by (1) not disqualifying LightGrid’s proposal for making a material misrepresentation and failing to comply with the solicitation’s requirement mandating disclosure of actual or potential OCIs, and (2) not disqualifying LightGrid for violating the FAR’s OCI provisions. ITellect also made an additional argument claiming DISA should have disqualified LightGrid due to the appearance of an OCI.The CO determined the only type of OCI that could have been applicable was unequal access to information. As part of the CO’s investigation, she reviewed communications between Mrs. Smith and LightGrid, Mrs. Smith’s sworn statement, and the Mrs. Smith’s Office of Government Ethics Form 450, in which Mrs. Smith had disclosed her relationship to the president of LightGrid. The CO also looked at Mrs. Smith’s roles in both the prior contract and current solicitation. The CO determined no OCI existed, which was consistent with the representations made by LightGrid.The Court first determined LightGrid did not make a material misrepresentation because DISA did not rely on, and nor was it influenced by LightGrid’s “omission.” The Court specifically noted Mrs. Smith did not play any role in the current solicitation. Second, the Court stated even if LightGrid did fail in disclosing the relationship between the president and Mrs. Smith, it was within the CO’s power to waive the irregularity and not disqualify LightGrid.Finally, the Court reviewed whether there was any appearance of OCI. The Court determined there was not. The Court distinguished this case from Asia Resource Partners, where the GAO found the Air Force was reasonable when it excluded an offeror because its owner was married to an Air Force CO.<a href="#_ftn2" target="_self">[2]</a> The Court noted in that case the CO and the owner hypothetically had access to nonpublic information. Here, however, Mrs. Smith did not have access to any relevant information regarding the instant procurement. Further, the Court stated, the simple existence of a family relationship did not create an appearance of an OCI.The Court concluded that the CO’s investigation was rational and entitled to deference.Takeaway: Although there was no OCI in the above case, that was not the issue. The issue was the appearance of an OCI. The Court noted LightGrid should have disclosed the relationship. LightGrid could have likely evaded this time consuming and expensive litigation had it simply disclosed the relationship between its president and the contracting officer from the start. Offerors should be thoughtful about what they do not disclose, especially with regard to OCIs, as it’s not just whether there is an actual or potential OCI but also whether the lack of disclosure might trigger or prolong an unnecessary protest.<hr class="divider"><a href="#_ftnref1" target="_self">[1]</a> Chromalloy San Diego Corp. v. United States, 145 Fed. Cl. 708 (2019).<a href="#_ftnref2" target="_self">[2]</a> Asia Resource Partners, B-400552, Nov. 5, 2008, 2008 CPD ¶ 201.

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Liam Bowers is an associate in the Government Contracts practice in Morrison Foerster’s Washington, D.C. office.

Liam M. Bowers

Liam Bowers

Bid Protest Spotlight: Unclear Criteria, Data Rights, Conflicts

This month’s Bid Protest Roundup highlights three recent protests: one from the U.S. Government Accountability Office and two from the Court of Federal Claims.

In a recent contribution to BRIEFING PAPERS, “Other Transaction (OT) Bid Protests: A Call for Clarity and Consistency,” Locke Bell answers common questions and offers practical guidance on whether and where to protest OT awards. Read the <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltbc1e8244cb5ff3ac/672cdb404ef1041efae54f0f/241107-other-transaction-ot-bid-protests.pdf" target="_blank">full article</a>.

Other Transaction (OT) Bid Protests: A Call for Clarity and Consistency