"Meaningful Consideration" of Procurement's Primary Activity Required in Size Standard Determinations
Client Alert | 1 min read | 10.16.14
In RLB Contracting, Inc. v. U.S. (Oct. 3, 2014), the Court of Federal Claims enjoined the USDA from moving forward with a small business set-aside procurement for a shoreline and marsh restoration project issued under a NAICS code for "Other Heavy and Civil Engineering Construction," to which both the USDA and SBA found the code’s smaller size standard exception for "contracts which are comprised primarily of dredging and surface clean up" inapplicable. Concluding that the size standard decision by the USDA (which was affirmed by the SBA) was "flawed because the [administrative] record does not show that they gave proper consideration to whether dredging constitutes the primary activity involved," the CFC deemed the size standard determination "irrational."
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Client Alert | 3 min read | 11.21.25
On November 7, 2025, in Thornton v. National Academy of Sciences, No. 25-cv-2155, 2025 WL 3123732 (D.D.C. Nov. 7, 2025), the District Court for the District of Columbia dismissed a False Claims Act (FCA) retaliation complaint on the basis that the plaintiff’s allegations that he was fired after blowing the whistle on purported illegally discriminatory use of federal funding was not sufficient to support his FCA claim. This case appears to be one of the first filed, and subsequently dismissed, following Deputy Attorney General Todd Blanche’s announcement of the creation of the Civil Rights Fraud Initiative on May 19, 2025, which “strongly encourages” private individuals to file lawsuits under the FCA relating to purportedly discriminatory and illegal use of federal funding for diversity, equity, and inclusion (DEI) initiatives in violation of Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity (Jan. 21, 2025). In this case, the court dismissed the FCA retaliation claim and rejected the argument that an organization could violate the FCA merely by “engaging in discriminatory conduct while conducting a federally funded study.” The analysis in Thornton could be a sign of how forthcoming arguments of retaliation based on reporting allegedly fraudulent DEI activity will be analyzed in the future.
Client Alert | 3 min read | 11.20.25
Client Alert | 3 min read | 11.20.25
Client Alert | 6 min read | 11.19.25
