Insights

On May 7, 2025, GAO issued a decision in Raven Investigations & Security Consulting, LLC, B-423447, warning the bid protest bar that artificial intelligence (“AI”)-based tools utilized without proper oversight may result in severe consequences, including dismissal of the protest and sanctions.

On April 16, 2025, the White House issued an Executive Order (“EO”), “Ensuring Commercial, Cost-Effective Solutions in Federal Contracts,” requiring agencies to meet their needs with commercially available products and services to the maximum extent practicable. The EO reiterates and builds upon the requirements set forth in the Federal Acquisition Streamlining Act of 1994 (“FASA”), which similarly encourages the use of commercial acquisition procedures. Specifically, the EO institutes a required review procedure for certain open acquisition actions and establishes an oversight procedure to be implemented for all acquisitions hereafter.

On April 15, 2025, the White House issued an Executive Order (“EO”), “Restoring Common Sense to Federal Procurement” calling for the reform of the Federal Acquisition Regulation (“FAR”) consistent with the aims of EO 14192, “Unleashing Prosperity Through Deregulation,” which sought to eliminate perceived unnecessary regulatory burdens. Specifically, the April EO notes that the FAR should only contain statutorily required provisions or those “essential to sound procurement,” and it recommends the removal of any FAR provisions that do not advance these objectives.

On March 20, 2025, the White House issued Executive Order (“EO”), “Eliminating Waste and Saving Taxpayer Dollars by Consolidating Procurement,” to consolidate domestic civilian contracting for “common goods and services” within one agency—the General Services Administration (“GSA”). The EO defines “common goods and services” as those described in the Category Management system first developed as part of a previous effort, dating back to 2014, to coordinate spending across the government.

On February 26, 2025, the White House issued an Executive Order (“EO”), “Implementing the President’s ‘Department of Government Efficiency’ Cost Efficiency Initiative,” to transform federal spending on “covered” contracts, grants, and loans. The EO defines “[c]overed contracts and grants” as “discretionary spending through Federal contracts, grants, loans, and related instruments, but excludes direct assistance to individuals; expenditures related to immigration enforcement, law enforcement, the military, public safety, and the intelligence community; and other critical, acute, or emergency spending, as determined by the relevant Agency Head.”

In Bitmanagement Software GMBH v. United States, Case No. 23-1506 (Fed. Cir. Jan. 7, 2025), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) denied the appeal of Bitmanagement Software Gmbh (Bitmanagement) challenging the Court of Federal Claims’ (COFC) $154,400 damages award, and denying its demand for $85 million in damages resulting from the Navy’s infringement of Bitmanagement’s software copyright.  The Federal Circuit affirmed the COFC’s (1) use of a hypothetical negotiation approach to compute damages; and (2) decision to award damages using a “per use” rather than a “per copy” approach.

On November 14, 2024, the U.S. Government Accountability Office (GAO) released its Annual Report on Bid Protests for Fiscal Year 2024, containing the full statistics shown below:

In Percipient.ai, Inc. v. United States, the Federal Circuit considered Percipient.ai Inc.’s (Percipient) protest arising out of the National Geospatial-Intelligence Agency’s (NGA) SAFFIRE procurement, for the improvement of the agency’s production, storage, and integration of geospatial intelligence data.  Percipient’s protest was unusual—filed in 2023, it related to a task order NGA awarded to CACI, Inc. (CACI) two years earlier, for which Percipient did not (and could not) bid.  But Percipient’s protest did not challenge the award to CACI.  Instead, Percipient challenged NGA’s (and CACI’s) alleged failure, during task order performance, to conduct sufficient market research as to the commercial availability of AI software—for which Percipient already had a commercial offering that purportedly met NGA’s needs—before CACI began developing its own software at significantly higher cost.  Percipient alleged this failure violated 10 U.S.C. § 3453, which establishes a preference for commercial items/services and instructs agencies to procure them “to the maximum extent practicable.”

On May 3, 2024, in Geospatial Technology Associates, LLC v. United States, COFC No. 16-346C, the U.S. Court of Federal Claims denied the government’s motion to dismiss for lack of jurisdiction and, alternatively, for summary judgment due to alleged inaccuracies in a copyright registration, holding that plaintiff Geospatial Technology Associates, LLC’s (“plaintiff” or “GTA”) patent and copyright infringement claims pursuant to 28 U.S.C. § 1498 raise issues that “must be addressed at trial.” This newest development follows GTA’s original March 2016 lawsuit against several government agencies—including the Department of the Army, the Department of the Air Force, and the National Geospatial-Intelligence Agency (“NGA”)—alleging patent and copyright infringement of the underlying software code of its product, “NINJA.pro.” 

The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2024, signed into law on December 22, 2023, makes numerous changes to acquisition policy. Crowell & Moring’s Government Contracts Group discusses the most consequential changes for government contractors here. These include changes that impose a new conflict of interest regime for government contractors with a connection to China, impose new restrictions and requirements, require government reporting to Congress on acquisition authorities and programs, and alter other processes and procedures to which government contractors are subject. The FY 2024 NDAA also includes the Federal Data Center Enhancement Act, the American Security Drone Act, and the Intelligence Authorization Act for FY 2024.

On October 26, 2023, the U.S. Government Accountability Office (GAO) released its Annual Report on Bid Protests for Fiscal Year 2023.