We have talked a good deal about the Small Business Rule of Two (not to be confused with the separate VA rule of two for veteran-owned businesses) over the years. The (very) general gist of the rule is this: If the procurement is above the simplified acquisition threshold, the agency must set it aside for small businesses if two or more small businesses can perform the work at fair prices. If the agency has a reasonable expectation that two or more SDVOSB/VOSBs, EDWOSBs/WOSBs, 8(a) participants, or HUBZone participants can perform work under a procurement, the agency must consider setting aside the procurement for that particular category (i.e., if it believes two or more 8(a) participants can perform the work, it can set aside the procurement for 8(a) participants). However, it appears there remains a good deal of confusion about what the Rule of Two requires, as opposed to what it simply permits. In a recent GAO protest, a contractor learned this the hard way, and today, we’ll explore that decision.
Continue readingTag Archives: GAO bid protests
Back to Basics: Interested Parties
Imagine you’ve submitted a bid for a procurement that you believe your company is a shoo-in for. Nobody comes close to the experience and skills your company brings to the table. A while later, you learn that the new company down the street was awarded the contract. There clearly must be a mistake. The awardee doesn’t have half the experience your company has in this industry. Feeling wronged, you decide to file a bid protest questioning the award at the Government Accountability Office (GAO).
Your lawyer informs you that a bid protest may be dismissed if the protester doesn’t qualify as an interested party. But you were an actual bidder who should have been awarded the contract. Of course you’re an interested party—right?
Continue readingWhy File: A Once 8(a), Always 8(a) Protest
As our SmallGovCon readers might know, the SBA’s 8(a) Business Development Program is often thought of as the golden goose of federal government contracting, at least for small businesses. And it’s true, in some respects. While it is the most difficult of the SBA’s socioeconomic programs to gain admittance to, if admitted, you stand to reap large benefits such as access to competitive and sole-source contracts. And another SBA rule limits the ability to move contracts away from 8(a) Program set-asides. In that scenario, a contract that had been restricted to 8(a) Program Participants is recompeted as a set-aside for small businesses generally or a different socioeconomic category (SDVOSB, WOSB, HUBZone). Less frequently, it might not set aside for small businesses at all. If that happens, what should you do? Well, you should be familiar with what is commonly referred to as the “once 8(a), always 8(a)” rule as well as when to protest a violation of that rule.
Continue readingChatGPT is Not Your Lawyer (Even If it Sounds Like One), Recent GAO Case Confirms
The world of Artificial Intelligence (AI) is a growing topic that many are eager to share their opinions on. There are people excited to witness this advancement of technology and are eager to implement AI programs into their lives and/or businesses to optimize efficiency. Others are uneasy about the advancements of AI, fearing replaceability or changes in the workforce. Or, there are those who have read one too many science fiction novels and believe that this is the beginning of the end.
A recent decision prompted GAO to weigh in on the use of AI in the realm of federal contracting. Specifically, should companies use AI to draft legal pleadings such as bid protests?
Continue readingMaking Unsuccessful Protesters Pay? Enhanced Pleading Standards? A Look at Proposed Changes to GAO Protest Rules Under the 2025 NDAA
Back in 2017, in the 2018 National Defense Authorization Act (NDAA), Congress passed a limited program for GAO protests of Department of Defense contracts where certain large contractors would have to reimburse the DoD for the cost of processing unsuccessful GAO protests. We reviewed that rule here. Congress repealed that provision with the 2021 NDAA. Now, the “losing protester pays” system is back with a vengeance. The 2025 NDAA creates a similar provision, but now the language appears to apply to all businesses that bring an unsuccessful GAO protest on a DoD contract. Coupled with enhanced pleading standards and an increase to the task order value jurisdiction requirement, this will make GAO protests of DoD contracts more burdensome on federal contractors. With that said, it is important to note: The 2025 NDAA only orders that the GAO and DoD produce a proposal that addresses the above for review by Congress. It does not absolutely mandate that the government then adopt said proposal. We look at these changes in this post.
Continue readingGAO Says: Solicitation + Q&A = Material Requirements
Recently, GAO sustained a bid protest, finding that the awardee did not meet the material requirements of the solicitation. The GAO held that the requirements of the solicitation included an agency’s answer during the question and answer (Q&A) period.
Continue readingCompensation for Professional Employees and You: GAO Sustains Where Agency Doesn’t Explain Why Proposed Decreased Compensation is Reasonable
While the federal government uses wage determinations for many occupations that contractors must abide by, things are different with professional occupations such as physicians, accountants, engineers, and (yours truly) attorneys. Contractors generally have more leeway with regard to how they pay their professional employees on a given contract. But it’s not unlimited. This is something that the National Oceanic and Atmospheric Administration (NOAA) didn’t address in its evaluation for a procurement, resulting in a successful GAO protest. In this post, we’ll look at the rules here and what went wrong.
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