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.

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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.

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James A. Tucker

Telesto: Another Call For Clarity In Other Transactions Protest Jurisdiction

Strengthening the American Drone Industrial Base

Bid Protest Spotlight: Jurisdiction, Price Range, Late-Is-Late

Trump Issues Executive Order on Cybersecurity Rolling Back Some Prior Policies and Introducing New Ones

GAO Reaffirms Agencies’ Discretion to Award Sole-Source SBIR Phase III Contracts (Even to a Successor-in-Interest)

Two other transaction (OT) bid protests this year – first Raytheon and now Telesto – create an open split within the Court of Federal Claims over the scope of its jurisdiction, highlighting complex hurdles OT protesters must clear out of the gate. In this month’s Nash & Cibinic Report, we discuss Telesto and offer insights on how best to navigate the developing case law.Read the <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt0466fd77c758148b/686ea627588d46b11f83a03e/250709-telesto-another-call-for-clarity.pdf" target="_blank">article</a>.

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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Tori Dalcourt Angle is an associate in the Government Contracts practice in Morrison Foerster’s Washington, D.C. office.
Tori advises clients on various government contract matters, including both pre

Victoria Dalcourt Angle

Victoria Angle

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Telesto: Another Call For Clarity In Other Transactions Protest Jurisdiction

New DCMA Defective Pricing Pilot Team Will Possess Audit Resolution Authority

Buried toward the bottom of President Trump’s Executive Order, titled “<a href="https://www.federalregister.gov/documents/2025/06/11/2025-10814/unleashing-american-drone-dominance" target="_blank">Unleashing American Drone Dominance</a>” (the “Order”), is a mandate to identify military programs made more “efficient or lethal if replaced” by unmanned aircraft systems (“UAS”), aka “drones.” The Order, issued June 6, 2025, signals the administration’s intent to protect and expand America’s drone industrial base, both for commercial and federal purposes. The Order promotes a vision of electric Vertical Takeoff and Landing (“eVTOL”) aircraft (essentially flying cars) that “promise to modernize methods for cargo delivery, passenger transport, and other advanced air mobility capabilities.” With two-thirds of the Order focused on domestic commercialization of UAS, the final third focuses on the realpolitik use of drones. For government contractors and drone suppliers who sell, or would like to sell, drones to the federal government, the Order offers several sections of interest.First, the Order directs the establishment of an eVTOL Integration Pilot Program by the Secretary of Transportation. Acting quickly, the Secretary is to issue a request for proposals by September 6, 2025, and finalize selection of at least five pilot projects by March 6, 2026, to demonstrate eVTOL uses for advanced air mobility, medical response, cargo transport, and rural access. Obviously, this will be an opportunity to be the first in the door for what could be a significant long-term opportunity with federal buyers. The pilot projects are to begin eVTOL operations within 90 days of award. The program will conclude three years after the first pilot project becomes operational.Second, the Order seeks to protect the integrity of the drone supply chain and bolster domestic drone production. President Trump’s protectionist agenda runs deep, dating back to executive actions to promote <a href="https://govcon.mofo.com/topics/proposed-rule-to-amend-the-fars-implementation-of-the-buy-american-act" target="_blank">domestic sourcing preferences</a> in his first term, and reflected more recently in his emphasis on tariffs. The Order instructs “[a]ll agencies” to “prioritize the integration of UAS manufactured in the United States over those made abroad to the maximum extent permitted by law.” Given the application of existing domestic preferences, it isn’t clear what changes this will require, but it does indicate administration priorities. To secure the drone supply chain “from undue foreign influence and exploitation,” the Order requires the Federal Acquisition Security Council to publish a “Covered Foreign Entity List” identifying foreign suppliers that pose supply chain risks. The Order also directs the Department of Commerce to ensure vital components “remain under American control and free from national security risks” by engaging in rulemaking and investigations.Third, the Order prioritizes the export of U.S.-made drones. To ramp up exports, the Order mandates a variety of incentives. Among these are financial incentives, including direct loans and loan guarantees, equity investments, political risk insurance, technical assistance, grants, market access, and “any other incentive mechanism authorized by law.” It remains to be seen what concrete actions will result from this, but it is clearly worth tracking for those in the industry. To facilitate getting the drones to overseas markets, the Order instructs the Secretary of Commerce, in coordination with the secretaries of State, Defense, and Energy, to relax export control regulations before September 7, 2025. A few caveats are placed on the amendment of export controls: the U.S.-made drones may not be exported to foreign adversaries, pose a risk of diversion from programs of concern, or be otherwise restricted by law. Additionally, Commerce is to coordinate initiatives with other agencies to expand market access, reduce foreign trade barriers, and promote international interoperability.Fourth, the Order takes several steps to accelerate the American warfighter’s adoption of drone technology:<ul class="li-text-orange"><li class="li-text-orange">The Defense Innovation Unit’s (“DIU”) <a href="https://www.diu.mil/blue-uas" target="_blank">Blue UAS</a> list, a list of Department of Defense (“DoD”) approved drones, is to be leveraged to get more drones into the hands of America’s warfighters more quickly and easily. Blue list drones are those that are compliant with the laws governing DoD drone procurement: Section 848 of the FY20 National Defense Authorization Act (“NDAA”), section 817 of the FY23 NDAA, and the American Security Drone Act.</li><li>Blue list drones will be untethered from exception to policy requirements to operate on all military installations or ranges. The Blue list is to be expand by September 6, 2025, to include all drones and critical components compliant with Section 848, with the list updated monthly. This will make a greater variety of drones available more easily. Section 848, as amended, prohibits the DoD from procuring certain covered drones, unless an exception applies (such as for counter-drone activities), or a waiver is granted. Currently, the only way to get new vendors added to the list is either through sponsorship of a DoD customer or in response to a DIU Commercial Solutions opening.</li><li>As the list of approved domestic drones increases, the Order also tightens the prohibitions on covered foreign drones. The Order mandates that exemptions and waivers to Section 848 be curtailed, making them available only when “absolutely necessary” to mission success (one presumes to include testing and countermeasures). Section 848 compliance, however, is not to interfere with the military’s rapid adoption of drone technology as the armed forces seek “to exceed the capabilities of our foreign adversaries.”</li><li>Access to airspace for UAS training is to be streamlined by the FAA within 90 days, and a report on unnecessary barriers to accessing electromagnetic spectrum for UAS training is to land on the President’s desk within the same time frame.</li><li>Each military department is to identify programs that would be more cost efficient or lethal if replaced by UAS, with a report due to the President within 90 days.</li></ul>Companies supplying drones to the federal government (or looking to do so) will find much of interest in the Order. Drones increasingly play an important and sophisticated role in both the civil and defense sectors. The Order indicates the current administration’s commitment to expanding that role for domestically manufactured drones through regulatory rollback and incentives. The Order leaves in place the existing Congressionally-imposed protections of Section 848 and the “American Drone Security Act” of 2023, (which imposed a sweeping ban across all agencies on covered foreign drones, implemented via FAR clause 52.240-1), and supplements those protections with positive-side incentives to strengthen and promote the domestic drone industrial base.

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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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Markus Speidel is an associate in Morrison & Foerster’s Government Contracts & Public Procurement group, in Washington, D.C. Markus assists clients across a wide range of contract matters, including contract claims and disputes, bid protests, compliance counseling, and investigations.

Markus Gerhard Speidel

Markus Speidel

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Strengthening the American Drone Industrial Base

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

This month’s bid protest spotlight features a trifecta of decisions from the U.S. Court of Federal Claims.In MVL USA Inc. v. United States, a consolidated bid protest involving seven protesters, the Court rejected protesters’ plea to direct the rescission of Executive Order (EO) 14063, Use of Project Labor Agreements (PLAs) for Federal Construction Projects, and the regulations pursuant to that EO.In Gemini Tech Services, LLC v. United States, the Court determined the Army erred in establishing the competitive range prior to holding discussions.In Kropp Holdings Inc. v. United States, the Court found the Defense Logistics Agency erred in awarding a contract to an untimely proposal.MVL USA Inc.PLAs are pre-hire collective bargaining agreements establishing the terms and conditions of employment. In 2022, President Biden signed EO 14063, mandating PLAs in federal construction contracts over $35 million, though President Trump has rescinded this EO.<a href="#_edn1">[1]</a> On January 19, 2025, the Court granted plaintiffs’ motion for judgment on the administrative record, holding that several agencies erred in requiring PLAs when the agencies found during market research that PLAs would be anticompetitive, thus violating the Competition in Contracting Act of 1984. Plaintiffs initially sought permanent injunctive relief but disputed whether such relief should take the form of a general or specific injunction against the PLA’s application. The Court, however, did not grant injunctive relief, instead remanding the solicitations to the agencies.Following corrective action, the protesters sought permanent injunctive relief, requesting the Court to order the government to rescind the EO and the promulgated regulations. According to the plaintiffs, “[a]bsent permanent injunctive relief, [p]laintiffs will suffer irreparable harm if the [g]overnment continues to mandate through the FAR that procurement agencies include the unlawful PLA Requirements in all large-scale construction solicitations on which [p]laintiffs may bid in the future.”The Court declined. The protesters argued the Court’s jurisdiction to adjudicate the validity of regulations in the context of a Contract Disputes Act claim should enable it to do the same in a bid protest, thereby extending the holding of Boeing Co v. United States, 119 F.4th 17 (Fed. Cir. 2024).The Court rejected protesters’ expansive reading of Boeing, holding that Boeing does not suggest the Court may order the outright recission of a regulation in a bid protest. The Tucker Act limited the Court’s power in bid protests to the particular procurements before it, and the Court was unconvinced that the Tucker Act permitted the Court to enjoin the government into rescinding the regulations based on future harm in future procurements. Additionally, the Court cited DGR Associates Inc. v. United States, 690 F.3d 1335, 1341 (Fed. Cir. 2012), where the Federal Circuit instructed that the Court lacks authority to invalidate properly promulgated regulations. Reading both cases together in harmony, the Court held that it lacked jurisdiction to vacate or “universally enjoin” the EO and related FAR regulations beyond the specific interested parties and the seven consolidated bid protests challenging the particular procurements before it. And, because the government’s corrective action had removed the challenged PLA requirements from these procurements, there was no further relief the Court was able to provide.TakeawaysThe boundaries of the Tucker Act can only stretch so far. Protesters seeking injunctive relief at the Court can only request a remedy specific to a procurement or proposed procurement. Even if the Court could enjoin an agency from applying a given regulation or EO in a particular way in a particular procurement on behalf of specific interested parties, the Court does not necessarily have jurisdiction to entertain protests seeking to strike down those same regulations or EOs altogether.Gemini Tech Services, LLCThe FAR permits agencies to conduct discussions prior to award. FAR 15.306(c)(1) provides that “if discussions are to be conducted, [the Agency shall] establish the competitive range.” The FAR further instructs that the competitive range be “comprised of all the most highly rated proposals, unless the range is further reduced for purposes of efficiency.” Suppose all “highly rated proposals” were deemed unacceptable, could the government enter discussions? Although this hypothetical was not entirely applicable to this case, the Court held that the Army improperly entered discussions when its competitive range did not consist of the most highly rated offerors.The Army issued a FAR Part 15 solicitation on October 3, 2023, contemplating a three-step evaluation and selection process. The Army also reserved the right to conduct discussions at any point.To be considered for Step 1, proposals must be technically compliant. The Army would then evaluate proposals for technical acceptability until it assessed at least five offerors or 25 percent of proposals as technically acceptable. The three lowest-priced, acceptable proposals would advance to Step 2. The Army would then evaluate the proposals against recent and relevant performance and conduct a price realism analysis. Proposals receiving a “Substantial Confidence” rating would advance to Step 3, award to the responsible offeror with the lowest total evaluated price.Six offerors timely submitted proposals for this solicitation, and each advanced to Step 1. Trouble ensued. The Army found all six proposals were technically unacceptable. After a second round of evaluations, the Army again determined all six proposals unacceptable. After a third round of evaluating the same proposals, Army evaluated Gemini Tech Services, LLC’s (Gemini) proposal as the only technically acceptable submission.Notwithstanding Gemini’s acceptable proposal, the Army conducted discussions with all six offerors, stating it would be in the best interests of the government to maximize competition and promote efficiency. The Army’s explanation for initiating discussions mistakenly stated that all six proposals were technically unacceptable and that none could proceed to Step 2.The Army opened discussions with the five technically unacceptable offerors. Each submitted revised proposals, and the Army determined all five to be technically acceptable. The Army then closed discussions, but it reopened so Gemini could submit a final revised proposal, which it opted not to because the Army informed Gemini that its proposal was technically acceptable.The Army then selected Gemini, JP Logistics, and a third offeror to proceed to Step 2. Both Gemini and JP Logistics received a Substantial Confidence rating, but the third offeror did not. Because it had the lowest total evaluated price, JP Logistics received the award.Gemini then filed a protest at the GAO, asserting that the Army erred in entering discussions with technically unacceptable offerors. GAO determined that, because the Army reserved the right to conduct discussions at any stage of the evaluation, the Army was permitted to open discussions prior to assessing the final Step 1 evaluation ratings. GAO further found Gemini was not prejudiced by the Army’s decision because Gemini took part in discussions and could not establish that a revision to its proposal would result in a substantial chance for award.Gemini’s protest at the Court followed.The sole protest ground before the Court was whether the Army erroneously opened discussions. The Court held that under FAR 15.306(c)(1), the Army erred.The Court determined that opening discussions to technically unacceptable offerors violated the procedures set in FAR 15.306(c)(1). Although the Army stated it opened discussions for the purposes of efficiency, that explanation was insufficient to establish the competitive range. The Army, the Court explained, was required to analyze how or why the offerors in the competitive range were considered the most highly rated. The Court further held that—to the extent the Army could argue that all offerors were the most highly rated—the Army could not justify opening discussions. The record demonstrated that the opposite was the case: the record revealed that all six offerors were technically unacceptable. The Court then found that Gemini was prejudiced by the Army’s actions as the offeror with the only technically acceptable rating and the second-lowest total evaluated price.TakeawaysThe Court’s decision emphasizes the importance of documentation in justifying agency decisions. Post-hoc rationale will never justify an agency’s decision. Protesting parties, of course, do not have access to the record upon commencing a bid protest at either the Court or the GAO, so arguments relying on insufficient justification may not always succeed. One other difference between GAO and the Court that this case illustrates is how each forum assesses agency conduct. GAO is less likely to sustain a protest where the protested action is something that increases competition, but the Court will likely sustain a protest where the agency conduct involves a violation of regulation.It is also worth noting that while FAR 15.306(c)(1) does reference “efficiency,” the Army’s rationale—as stated in the opinion—misapplies the term “efficiency.” The FAR is clear that if there are too many offerors with the most highly rated proposals, the agency may reduce the competitive range for efficiency. But, the agency may only do so if it reserved the right in the solicitation. The FAR does not state an agency may expand the competitive range if there are too few most highly rated proposals.Kropp Holdings Inc.The “late-is-late” rule—an untimely submission is ineligible for award—has few exceptions. One such exception is the government control exception: an untimely offeror may be accepted if it was received at the “Government installation” designated for receipt of offers and was under the “Government’s control prior to the time set for receipt of offers.” FAR 52.212-1(f)(2)(i). Although protesters typically raise exceptions, this case presents an unsuccessful attempt for the awardee to use the government control exception for an untimely email.The Defense Logistics Agency (DLA) issued a solicitation with a due date of August 19, 2021, at 10:00 a.m. Eastern Time. The solicitation informed offerors that proposals received after the deadline would be considered late. Timeliness of an offer would be based upon the receipt timestamp on the submission inbox.Kropp Holdings Inc. (KHI) submitted its proposal on August 18, 2021, and Associated Energy Group (AEG) submitted its proposal on August 19, 2021. As revealed in the Court’s administrative record, AEG’s submissions for two volumes of its proposal, however, had timestamps after 10:00 a.m. The DLA concluded that KHI and AEG were the only acceptable offers and awarded the contract to AEG on June 3, 2022, despite recognizing that AEG untimely submitted two volumes. Following years of back-and-forth protests at the GAO, resulting in several rounds of corrective action, KHI filed its bid protest at the Court.Relying on the plain language of the solicitation—providing that submissions would be timely based upon the receipt timestamp on the submission inbox—the Court held that AEG’s proposal was late. DLA asserted that AEG’s proposal was timely because the timestamps on the emails themselves demonstrated timeliness. The Court rejected this argument, distinguishing between the email’s timestamp and the submission inbox’s timestamp.AEG’s reliance on the government control exception fared no better. It asserted the proposal arrived at the government installation—the Defense Information Systems Agency (DISA) server—at 10:00 a.m., and thus, the government control exception would excuse the untimeliness. AEG cited timestamps for the TLS Handshake—a protocol that establishes exchange of server certificates—and a security protocol, to assert that the government timely received the proposal. Skeptical as to whether an email server constituted a government installation, the Court rejected AEG’s argument. First, DISA was not the procuring agency.  Second, the Court held that the exception applies when the proposal was submitted prior to the time set for receipt of offers. Neither the TLS Handshake nor the security protocol established that the DLA received the proposal. Instead, these technologies only proved contact between servers, not timely submission.TakeawaysThe GAO does not apply the government control exception to electronic submissions, unlike the Court, which has applied the exception to electronic submissions. In this case, even under the most forgiving interpretation of the exception, the Court did not need to differ from GAO.The case also presents a scenario where access to the full administrative record at the Court could reveal potential protest grounds that may escape notice at the GAO. Only after four years of litigation did the protester realize that AEG submitted an untimely proposal. Unless a protester requests the timestamps of the proposals at the outset, the GAO record would not include such information. <a href="#_ftnref1" target="_self">[1]</a> A district court recently enjoined President Trump’s rescission, so EO 14063 is likely still in effect.

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Thomas Lee

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Last week, the Trump administration made its priorities clear for the nation’s cybersecurity posture in the form of the newly issued <a href="https://www.nextgov.com/cybersecurity/2025/06/trump-cyber-executive-order-aims-amend-problematic-parts-biden-obama-cyber-orders/405898/?oref=ng-author-river" target="_blank">executive order</a> entitled “Sustaining Select Efforts to Strengthen the Nation’s Cybersecurity and Amending Executive Order 13964 and Executive Order 14114” (the “Order”). The Order, issued on June 6,  was accompanied by a <a href="https://www.whitehouse.gov/fact-sheets/2025/06/fact-sheet-president-donald-j-trump-reprioritizes-cybersecurity-efforts-to-protect-america/" target="_blank">fact sheet </a>that explained the intentions behind the Order and included rationales for certain departures from the <a href="/topics/biden-s-final-cybersecurity-order-proposes-significant-changes-all-to-be-implemented-by-the-incoming-administration" target="_self">January 2025 cybersecurity executive order</a> issued by President Biden at the end of his administration, and another earlier Obama-era executive order.Read the full <a href="https://www.mofo.com/resources/insights/250612-trump-issues-executive-order-on-cybersecurity?utm_source=publication&utm_medium=email%7D" target="_blank">client alert</a>.

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Kaylee Bankston