GAO Finds That Challenge to Agency’s Failure to Comply With DFARS Requirement Comes Too Late

GAO’s recent dismissal of the protest in Tyonek Technical Innovations, LLC, B-424364, B-424364.2, June 30, 2026, carries an important lesson for government contractors: if you believe solicitation terms conflict with a statute or regulation, you must raise that challenge before proposals are due—not during discussions or afterwards.

The protest arose from an Air Force small business set-aside procurement for cyber operations training support services.  The RFP provided that an affiliate’s past performance would only be considered if the prime offeror demonstrated that the affiliate would perform “significant and critical aspects of the contract.”  And the RFP warned offerors that absent the required documentation, “the proposed affiliate companies, sister companies, joint venture companies, etc. shall not be evaluated or considered.”

This solicitation term appears to conflict with  DFARS 215.305(a)(2)(C), updated in November 2024 to implement Section 865 of the FY 2024 National Defense Authorization Act, which provides that “[w]hen 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,” even if not performing significant or critical aspects of the contract.  Despite the apparent conflict between the RFP language and the DFARS provision, Tyonek did not challenge the RFP’s terms before proposals were due, instead submitting a proposal that relied on its affiliate’s past performance.

During discussions, the Air Force asked Tyonek to confirm its intent to include affiliate past performance and to demonstrate that its affiliates would perform significant or critical aspects of the requirement.  The Air Force also asked Tyonek to explain how affiliates would contribute “resources to the performance of the contract in a meaningful way.”

At that point, Tyonek filed a protest—first with the agency and later with GAO—challenging the Air Force’s refusal to consider affiliate past performance absent a showing of meaningful involvement on the contract as inconsistent with DFARS 215.305(a)(2)(C).  Tyonek argued that it could not have known how the agency would interpret the solicitation's language until it received those evaluation notices.  But GAO was unpersuaded, finding that the discussion questions merely reinforced what the RFP had already made clear: affiliate past performance would not be considered unless the proposal showed that the affiliate would perform “significant and critical aspects of the contract if awarded.” Accordingly, Tyonek’s argument that this requirement was inconsistent with DFARS 215.305(a)(2)(C) was an untimely challenge to the solicitation's terms.

As we recently discussed here, GAO maintains strict and unforgiving deadlines for challenging the solicitation terms. The Tyonek decision serves as a reminder that companies cannot wait for discussions to raise a concern that they could have identified from the language of the solicitation itself.  When the terms of a solicitation appear to conflict with procurement laws or regulations, companies should confer with their protest counsel early in the process—before proposals are submitted—to preserve their right to challenge those terms.