GovCon Intelligence

From the Front Lines: Bid Protests and Beyond (with Scott Flesch)

I sat down last week with Scott Flesch [https://www.millerchevalier.com/professional/scott-n-flesch], probably the most experienced bid-protest lawyer ever. Scott was the Chief Trial Attorney for the Army, where he worked on over 2,000 bid protests. He is now a member at Miller & Chevalier, a D.C. law firm. Our conversation started with the most recent Executive Order mandating fixed price contracting, and moved into the risks that contractors face from the FAR’s new class deviations implementing the DEI Executive Order. Scott also discussed the importance of intervening in protests, the differences between GAO and the Court of Federal Claims, and how small-business issues have come up in some recent cases. Links discussed Scott Flesch bio [https://www.millerchevalier.com/professional/scott-n-flesch] (Miller & Chevalier) Intervention Download: Why Offerors Must Prepare for Bid Protests [https://www.millerchevalier.com/sites/default/files/2025-07/2025-07-03_Intervention-Download.pdf] Executive Order: Promoting Efficiency, Accountability, and Performance in Federal Contracting [https://www.whitehouse.gov/presidential-actions/2026/04/promoting-efficiency-accountability-and-performance-in-federal-contracting/] FAR Council Memo: Agency Implementation of Executive Order 14398, Addressing DEI Discrimination by Federal Contractors [https://www.acquisition.gov/sites/default/files/page_file_uploads/FAR%20Council%20Guidance%20to%20Implement%20EO%2014398.pdf] Life Sciences Logistics LLC v. United States [https://www.cafc.uscourts.gov/opinions-orders/24-1522.OPINION.4-15-2026_2676666.pdf] (Court of Appeals for the Federal Circuit) Global Connections to Employment, Inc. v. United States [https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2026cv0301-41-0] (Court of Federal Claims) Noblis MSD, LLC v. United States [https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2026cv0301-41-0] (Court of Federal Claims) Revelations Counseling and Consulting LLC v. United States [https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2025cv2169-21-0] (Court of Federal Claims) CSlope Solutions LLC [https://www.gao.gov/products/b-422249.2%2Cb-422249.3%2Cb-422249.4] (GAO) Timestamps Introduction and the Value of the ABA Public Contract Law Section 00:00:00 The Shift Toward Fixed-Price Contracts 00:03:20 Dealing with Ambiguous Requirements and Bid Protests 00:09:58 Navigating the DEI Executive Order and False Claims Act Risks 00:14:37 Understanding CICA Stays at the GAO 00:23:27 CICA Stay Overrides 00:29:33 Procedures at the Court of Federal Claims 00:38:28 The Role of Intervenor’s Counsel in Bid Protests 00:41:12 The Noblis Case and Pleading for Injunctive Relief 00:50:32 Choosing Between the GAO and the Court of Federal Claims 00:53:21 The Revelations Case and Limitations on Subcontracting 01:00:44 The Certificate of Competency (COC) Process 01:05:23 Conclusion and Contact Information 01:10:20 With 20 years of Federal legal experience, Sam Le counsels small businesses through government contracting matters, including bid protests, contract compliance, small business certifications, and procurement disputes. Sam obtained his law degree from the University of Virginia and formerly served as SBA’s director of procurement policy. His website is www.samlelaw.com [http://www.samlelaw.com/]. This video is for informational purposes only and does not constitute legal advice. This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit www.govconintelligence.com [https://www.govconintelligence.com?utm_medium=podcast&utm_campaign=CTA_1]

8(a) firms dip below 3,400--plus an important SBIR case

Links discussed 8(a) participants in 2026 [https://datawrapper.dwcdn.net/Tvaur/3/] EO on Promoting Efficiency, Accountability, and Performance in Federal Contracting [https://www.whitehouse.gov/presidential-actions/2026/04/promoting-efficiency-accountability-and-performance-in-federal-contracting/] White House Budget Request FY27 [https://www.whitehouse.gov/wp-content/uploads/2026/04/budget_fy2027.pdf] Appropriations Committee Draft Report on FY27 Government Appropriation Bill [https://docs.house.gov/meetings/AP/AP00/20260421/119215/HMKP-119-AP00-20260421-SD003.pdf] SBA Office of Advocacy Leadership [https://advocacy.sba.gov/home/about/leadership/] GAO decision in KriaaNet, Inc. [https://www.gao.gov/products/b-422717.4%2Cb-422717.5], B-422717.4, B-422717.5, April 23, 2026 GAO decision in Threat Tec, LLC [https://www.gao.gov/products/b-424221], B-424221, April 23, 2026 Public Law 119-82 [https://www.congress.gov/bill/119th-congress/senate-bill/3971?s=1&r=22&hl=small], Small Business Innovation and Economic Security Act OHA decision in Size Appeal of Nisou Enterprises, Inc. [https://govt.westlaw.com/sbaoha/Document/I42f6bf4d43c511f19ab69613f0f1c935?viewType=FullText&listSource=Search&originationContext=Search+Result&transitionType=SearchItem&contextData=(sc.Search)&navigationPath=Search%2fv1%2fresults%2fnavigation%2fi0ad62d340000016d27a084e0925fcf0c%3fppcid%3d46ec65ad60ad4d999937a990339a0292%26Nav%3dADMINDECISION_PUBLICVIEW%26fragmentIdentifier%3dI42f6bf4d43c511f19ab69613f0f1c935%26startIndex%3d21%26transitionType%3dSearchItem%26contextData%3d%2528sc.Default%2529%26originationContext%3dSearch%2520Result&list=ADMINDECISION_PUBLICVIEW&rank=26&t_Method=tnc&t_querytext=DA(last+90+days)], SBA No. SIZ-6380 (2026) Jason Miller: “Is SBA Moving the small business contracting goal posts? [https://federalnewsnetwork.com/acquisition-policy/2026/04/is-sba-moving-the-small-business-contracting-goal-posts/]” (Federal News Network) Draft SBA FY26 Scorecard factors [https://federalnewsnetwork.com/wp-content/uploads/2026/04/SBA-letter.pdf] (Federal News Network) FAR Council Memorandum [https://acquisition.gov/sites/default/files/page_file_uploads/FAR%20Council%20Guidance%20to%20Implement%20EO%2014398.pdf] on Agency Implementation of Executive Order 14398, Addressing DEI Discrimination of Federal Contractors (April 17, 2026) David Fahrenthold, Luke Broadwater, and Andrea Fuller: “Firm Building Trump’s Ballroom Got a Secret No-Bid Contract for a Nearby Job [https://www.nytimes.com/2026/04/25/us/politics/lafayette-park-fountains-trump-contract.html?unlocked_article_code=1.fFA.5Xq6.1lUPj2T8eSZd&smid=url-share]” (New York Times gift link) Correction: When I was referring to 8(a) firms being terminated, that was in April, not August. Timestamps 00:00 – 8(a) Program Data: Shrinking Participation and Audit Impacts 02:54 – SBA Budget Proposals: White House Cuts vs. House Appropriations 06:23 – WOSB Program: Addressing Backlogs and Recertification Surges 07:46 – Congressional Spotlight: The Decline in New Entrants and 8(a) Removals 11:09 – Regulatory Update: Delay of Dodd-Frank Section 1071 Reporting 12:34 – GAO Case Law: Reprocurement and Certificate of Competency (Creanet Case) 18:36 – SBIR Protests: Timeliness and Successor in Interest (ThreatTech Case) 24:41 – SBIR Reauthorization: Program Extension to 2031 and New Security Rules 25:44 – SBIR Program Extension and Security Denials 26:16 – OHA Suspension Appeals and the 8(a) Data Call 28:52 – OHA Case Law: Nisu and Identity of Interest Affiliation 31:12 – The SBA Scorecard and Category Goals 34:50 – Regulatory Developments: FAR Council and DEI Executive Order 36:20 – Q&A: AI in Source Selection and Bid Protests 39:13 – Q&A: 8(a) Sole Source Trends for Native-Owned Firms 43:03 – Q&A: White House Procurements and Sole Source Contracts 45:06 – Q&A: 8(a) Certifications and OHA Remand Timelines With 20 years of Federal legal experience, Sam Le counsels small businesses through government contracting matters, including bid protests, contract compliance, small business certifications, and procurement disputes. Sam obtained his law degree from the University of Virginia and formerly served as SBA’s director of procurement policy. His website is www.samlelaw.com [http://www.samlelaw.com/]. This video is for informational purposes only and does not constitute legal advice. This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit www.govconintelligence.com [https://www.govconintelligence.com?utm_medium=podcast&utm_campaign=CTA_1]

AI Legal Risks and the Anti-DEI Executive Order

Jackson Moore [https://www.smithlaw.com/professionals/Jackson-Moore] and I recorded a GovCon Intelligence episode on location in Wilmington, North Carolina. We were on a panel there last week, moderated by Sue Kranes at the North Carolina Military Business Center Construction Summit. Jackson is a partner at Smith Anderson in Raleigh and recently has been writing about AI-related developments in GovCon. We talked about AI hallucinations and more broadly about how using AI can come back to haunt parties in litigation. Then we went back to the topic of our panel: the recent executive order on racially discrimination DEI and IBM’s $17 million settlement. Links Jackson Moore [https://www.smithlaw.com/professionals/Jackson-Moore] at SmithLaw.com NCMBC Summit [https://summit.ncmbc.us/] Turning Chats Into Trial Exhibits: Litigation Risks of Generative AI Use [https://www.smithlaw.com/newsroom/publications/turning-chats-into-trial-exhibits-litigation-risks-of-generative-ai-use] (smithlaw.com) You Can’t Spell Sanction without “A” and “I”: When Unchecked AI Hallucinations Result in Court Sanctions [https://www.smithlaw.com/newsroom/publications/you-cant-spell-sanction-without-a-and-i-when-unchecked-ai-hallucinations-result-in-court-sanctions] (smithlaw.com) Whitting v. City of Athens [https://www.damiencharlotin.com/documents/1674/Whitting__van_Irion_v._City_of_Athens_uSA_13_March_2026.pdf] (6th Cir. 2026) AI Hallucinations database [https://www.damiencharlotin.com/hallucinations/] (damiencharlotin.com) Appeals of Huffman Construction LLC [https://www.asbca.mil/LinkClick.aspx?fileticket=eAIy2KSL_Zg%3D&portalid=143] (ASBCA Oct. 23, 2025) U.S. v. Heppner [https://www.smithlaw.com/assets/htmldocuments/USA%20v.%20HEPPNER.pdf] (S.D.N.Y. Feb. 17, 2026). Steve Koprince: What aspects of federal contracting AI is most likely to get wrong [https://substack.com/@fedlift/note/c-244070163?r=jd3yw&utm_source=notes-share-action&utm_medium=web] Proposed GSA clause 552.239-7001, Basic Safeguarding of Artificial Intelligence Systems [https://buy.gsa.gov/interact/system/files/GSA_Federal_Acquisition%20Service%20Proposed%20Government%20AI%20System%20Terms%20and%20Conditions.pdf] Executive Order on Addressing DEI Discrimination by Federal Contractors [https://www.whitehouse.gov/presidential-actions/2026/03/addressing-dei-discrimination-by-federal-contractors/] IBM Pays $17 Million to Resolve Allegations of Discrimination Through Illegal DEI Practices [https://www.justice.gov/opa/pr/ibm-pays-17-million-resolve-allegations-discrimination-through-illegal-dei-practices] (justice.gov) 00:00 Welcome From Wilmington 00:26 Meet Jackson Moore 00:55 GovCon Law Practice Overview 01:55 AI In GovCon Law 02:55 Hallucinations And Sanctions 05:59 Verifying Case Citations 07:31 Sharing Data With AI 10:01 Protective Orders And AI 12:33 Discovery Of AI Chats 15:55 AI Gets GovCon Details Wrong 18:26 GSA Proposed AI Clause 23:12 Neutrality And Bias Questions 25:49 DEI Executive Order Fallout 28:29 False Claims Act Enforcement 32:08 Class Deviations And Litigation 36:15 How To Reach Jackson 36:30 Closing Thanks This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit www.govconintelligence.com [https://www.govconintelligence.com?utm_medium=podcast&utm_campaign=CTA_1]

Update on 8(a) suspensions, new cases on disadvantage, and policy predictions

On a GovCon Intelligence live stream, I covered the current state of the 8(a) Business Development Program and the latest suspension numbers, significant OHA and Federal Court decisions, and SBA administrative changes. I also addressed the impact of the Washington District Office’s move to Herndon and previewed the OIG’s 2026 audit priorities. 00:00:00 Introduction & 8(a) Suspensions Update 00:03:57 SBA Terminations and the Data Call 00:05:46 Office of Hearings and Appeals (OHA) Update 00:08:46 Understanding Economic Disadvantage: The ACC International Case 00:13:30 SBIR Phase III Bridge Contracts and the ThreatTec Case 00:16:34 Mentor-Protégé Past Performance and the iAdeptive Technologies Case 00:19:25 Corporate Transactions and SDVOSB Status: The Crosstown Courier Service Case 00:22:45 SBA Office Relocation 00:23:32 Impact of the SBA Washington District Office Relocation 00:26:02 Challenges in 8(a) Program Servicing and Application Approvals 00:27:10 The Mid-America Milling Decision and DBE Program Presumptions 00:31:13 New Legal Challenges to Private Sector Diversity Programs 00:32:12 Updates on the Ultima Services Case and SBA Regulations 00:33:22 Status of SBIR/STTR Program Reauthorization 00:34:27 The SBA OIG 2026 Oversight Plan: Audit Priorities 00:36:43 SBA COVID Relief Loans and EIDL Collections 00:38:06 Upcoming SBA Regulatory Reforms: Fraud, Waste, and Abuse 00:40:23 Summary and Closing Links SBA’s 8(a) suspensions (Jan 22 - Mar 26, 2026) [https://datawrapper.dwcdn.net/MFP0v/9/] Recent OHA decisions [https://govt.westlaw.com/sbaoha/Search/Results?transitionType=Default&contextData=%28sc.Default%29&t_Method=tnc&t_querytext=DA%28last%2090%20days%29&Page=1&SearchId=i0ad62d340000016d27a084e0925fcf0c&query=DA%28last%2090%20days%29&bhcp=1] Matter of ACC International Inc (OHA) [https://govt.westlaw.com/sbaoha/Document/I622a55311f6e11f18289ae7a0cb24b6d?viewType=FullText&listSource=Search&originationContext=Search+Result&transitionType=SearchItem&contextData=(sc.Search)&navigationPath=Search%2fv1%2fresults%2fnavigation%2fi0ad62d340000016d27a084e0925fcf0c%3fppcid%3d7fdc500be49a4946ab62afddac4df174%26Nav%3dADMINDECISION_PUBLICVIEW%26fragmentIdentifier%3dI622a55311f6e11f18289ae7a0cb24b6d%26startIndex%3d41%26transitionType%3dSearchItem%26contextData%3d%2528sc.Default%2529%26originationContext%3dSearch%2520Result&list=ADMINDECISION_PUBLICVIEW&rank=48&t_Method=tnc&t_querytext=DA(last+90+days)] ThreatTec v. United States (Ct. of Fed. Cl.) [https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2026cv0150-34-0] Stephen Bacon on the GAO’s decision in iAdeptive (LinkedIn) [https://www.linkedin.com/posts/stephen-bacon_protest-of-iadeptive-technologies-ugcPost-7442039246774784000-YeiS?utm_source=share&utm_medium=member_desktop&rcm=ACoAAEMLEekBxMJi-1KZDs9Q55wacpc381CzVRs] iAdeptive Technologies (GAO) [https://www.gao.gov/products/b-424158%2Cb-424158.2] VSBC Protest of Crosstown Courier Services (OHA) [https://govt.westlaw.com/sbaoha/Document/I1dd062371d2011f18ab9efc42c33e28e?transitionType=Default&contextData=%28sc.Default%29] News release: SBA Relocates Washington Metro Area District Office to Herndon, Virginia [https://www.sba.gov/article/2026/03/23/sba-relocates-washington-metro-area-district-office-herndon-virginia] Mid-America Milling Co. LLC v. US DOT (E.D. Ky.) [https://www.govinfo.gov/content/pkg/USCOURTS-kyed-3_23-cv-00072/pdf/USCOURTS-kyed-3_23-cv-00072-4.pdf] News release: American Alliance for Equal Rights Files Federal Lawsuit Challenging Race-Based Minority Supplier Certification Program [https://americanallianceforequalrights.org/american-alliance-for-equal-rights-files-federal-lawsuit-challenging-race-based-minority-supplier-certification-program/] Ultima Services Docket (courtlistener) [https://www.courtlistener.com/docket/16928316/ultima-services-corporation-v-us-department-of-agriculture/] S. 3971, SBIR Reauthorization [https://www.congress.gov/bill/119th-congress/senate-bill/3971/all-actions?s=1&r=33&hl=small] SBA OIG Audit Division 2026 Oversight Plan [https://www.sba.gov/sites/default/files/2026-03/SBA%20OIG%20-%20Audits%20Division%202026%20Oversight%20Plan.pdf] SBA OIG Evaluation of SBA’s All Small Mentor-Protege Program [https://www.sba.gov/sites/default/files/2019-09/SBA-OIG-Report-19-17.pdf] New York Times: The Small Business Administration lent $378 billion to keep businesses afloat. Getting paid back is proving difficult. [https://www.nytimes.com/2026/03/24/business/economy/sba-pandemic-loan-defaults.html?unlocked_article_code=1.WFA.b7Ih.HoBn_dPx6cyT&smid=url-share] Pending EO 12866 Regulatory Review on Fraud, Waste, and Abuse Reforms [https://www.reginfo.gov/public/do/eoDetails?rrid=1287014] EO 12866 Meeting on Fraud, Waste, and Abuse Reforms [https://www.reginfo.gov/public/do/viewEO12866Meeting?viewRule=true&rin=3245-AI66&meetingId=1334373&acronym=3245-SBA] With 20 years of Federal legal experience, Sam Le counsels small businesses through government contracting matters, including bid protests, contract compliance, small business certifications, and procurement disputes. Sam obtained his law degree from the University of Virginia and formerly served as SBA’s director of procurement policy. His website is www.samlelaw.com [http://www.samlelaw.com/]. This video is for informational purposes only and does not constitute legal advice. This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit www.govconintelligence.com [https://www.govconintelligence.com?utm_medium=podcast&utm_campaign=CTA_1]

How the Supreme Court changed GovCon (with Jayna Rust)

Today on GovCon Intelligence, I’m joined by Jayna Rust, a partner at Thompson Coburn and an adjunct professor at The George Washington University Law School. We break down the long-term impact of the 2023 Supreme Court affirmative action ruling on government contracting, including a look at whether there is a flood of DEI-driven discrimination claims. Because she also works on wills and trusts, we rounded out the conversation by covering what GovCon owners need to think about when preparing their estate plans. Links Jayna Rust bio [https://www.thompsoncoburn.com/people/jayna-marie-rust/] at Thompson Coburn Students for Fair Admissions [https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf] decision Ultima Services v. USDA [https://www.govinfo.gov/content/pkg/USCOURTS-tned-2_20-cv-00041/pdf/USCOURTS-tned-2_20-cv-00041-1.pdf] The Democratic Brand Is Toxic in Too Many States [https://www.nytimes.com/2026/03/16/opinion/democrats-senate-moderate.html?unlocked_article_code=1.T1A.6tZg._bmzBtTjjQsf&smid=url-share] by Matthew Yglesias (The New York Times) Should Moving to the Middle Win Candidates Votes? It Depends Where Voters Are [https://osf.io/preprints/socarxiv/discover] by David Broockman and Joshua Kalla VSBC Appeal of American Defense Builders Trust [https://govt.westlaw.com/sbaoha/Document/I0f3b0bd37a9811ef86d6e0e7f81d4bca?transitionType=Default&contextData=%28sc.Default%29], SBA No. VSBC-395-A (2024) VSBC Appeal of Vialytix, LLC [https://govt.westlaw.com/sbaoha/Document/I7a29b1f5fc5f11f09a28d4d98c31713c?transitionType=Default&contextData=%28sc.Default%29], SBA No. VSBC-462-A (2026) An auto-generated summary follows. In the coming days, this will be replaced at www.govconintelligence.com with a full transcript. On GovCon Intelligence, host Sam interviews Jayna Rust, a Thompson Coburn partner and GW Law adjunct, about how the Supreme Court’s 2023 Students for Fair Admissions decision has reverberated through government contracting, grants, and employment practices. Rust describes tracking the case because earlier affirmative-action precedents drew heavily on government contracting law, and she notes how the Ultima Services decision quickly applied the ruling to SBA’s 8(a) program by rejecting a race-based presumption. She says contractors and grant recipients began reassessing preferential programs for litigation risk, and that a later executive order revoking Executive Order 11246 accelerated reviews and scrutiny, including reported agency questions and Justice Department investigations. The conversation turns to rapid, broad reviews of small-business set-asides, the future of 8(a), the need for clearer public messaging, and how SBA trust-ownership rules complicate veteran-owned certifications. Rust also contrasts claims work with bid protests as more fact-intensive and document-driven. 00:00 Welcome and Guest Intro 00:29 Supreme Court Case Recap 04:02 Early Ripple Effects 05:59 Anti DEI Enforcement 07:58 Grants and Contracts Impact 10:45 8(a) Program Fallout 13:10 Set Asides Under Fire 14:24 Future of 8(a) 15:32 Messaging and Public Support 17:31 White Men Presumption Question 19:07 College Admissions Outcomes 21:26 Switch to Estate Planning 24:13 Contractor Succession Pitfalls 26:03 Trust Ownership Rules 27:51 Teaching Claims at GW 30:28 How to Connect and Wrap Up With 20 years of Federal legal experience, Sam Le counsels small businesses through government contracting matters, including bid protests, contract compliance, small business certifications, and procurement disputes. Sam obtained his law degree from the University of Virginia and formerly served as SBA’s director of procurement policy. His website is www.samlelaw.com [http://www.samlelaw.com/]. This video is for informational purposes only and does not constitute legal advice. This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit www.govconintelligence.com [https://www.govconintelligence.com?utm_medium=podcast&utm_campaign=CTA_1]