May 2025 was another drought month when it came to sustains at GAO.  This is not the first time the agency has gone an entire month without issuing a single sustained decision: we noted similar drought months in February 2023, October 2023, July 2024, and February 2025.  Therefore, as we have done in the past, we examine the other end of the spectrum: dismissal decisions.  The vast majority of GAO’s dismissal decisions are unpublished (or in GAO-speak, “undigested”).  For example, GAO dismissed 67 protests in May 2025, but digested only three of them.  Most dismissal decisions consist of less than a page of text and adopt standard language explaining the basis for common procedural deficiencies, such as untimeliness, lack of jurisdiction, or lack of interested party status. 

However, dismissal decisions can provide helpful guidance to both agencies and outside counsel when pursuing or defending against a dismissal request.  In this context, practitioners have voiced frustration that the body of caselaw addressing dismissal arguments is relatively thin as compared to the robust body of precedent addressing substantive protest issues.  In recognition of the utility of its dismissal decisions, GAO has, over the past several years, increased its issuance of “digested” dismissals – dismissal decisions that are published and available to the public.  By way of comparison: GAO did not digest any of its dismissal decisions in May 2020, whereas it issued three digested dismissals in May 2025.  This month’s digested dismissal decisions were: A2A Integrated Logistics, Inc., Raven Investigations & Security Consulting, LLC, and Perimeter Solutions LP. 

In A2A Integrated Logistics, A2A filed an agency-level protest, which was dismissed as untimely.  A2A then filed a GAO protest.  GAO ruled A2A’s protest was untimely, since the agency-level protest was submitted late.  Significantly, GAO noted that even though FAR 33.103(b) encourages parties to use “best efforts to resolve concerns,” this provision does not extend the time for filing an agency-level protest.  As we noted in our discussion of the A2A Integrated Logistics decision here, this dismissal decision underscores the risks of informal agency communication before protesting, as such interactions can inadvertently cut into GAO protest deadlines.

In Raven Investigations, GAO dismissed a protest because it had become “academic” (moot) where the agency had terminated the order that was the subject of the protest.  As we discussed here, however, the decision was notable, not for its discussion of mootness, but for its discussion of the use of artificial intelligence (AI) in legal work.  Noting that the protester’s briefing included several hallucinated case citations (that is, citations to decisions that do not exist and incorrect assertions about the contents of decisions that do exist), GAO stressed that the use of AI tools to draft pleadings without double checking the AI-generated assertions “wastes the time of all parties and GAO, and is at odds with the statutory mandate that our bid protest forum provide for ‘the inexpensive and expeditious resolution of protests.’”

Finally, in Perimeter Solutions, GAO dismissed the protest of a firm challenging a sole-source award because the company was not an “interested party” to pursue the protest.  Interested party status is similar to the concept of “standing” in traditional litigation.  In Perimeter Solutions, the protester challenged the Forest Service’s sole-source procurement of a long-term fire retardant named “Qela” that would be used to conduct an official field evaluation assessing whether Qela should receive full qualification for placement on the government’s qualified products list.  Perimeter protested, arguing that the government should instead procure and test Perimeter’s own fire retardant.  However, GAO dismissed the protest, finding that Perimeter was not an interested party to pursue the protest.  First, GAO noted that the government needed to test Qela—a product not available from Perimeter.  Second, although Perimeter also manufactured a fire retardant that it wished to undergoing testing and approval, Perimeter’s product had not yet passed preliminary “galvanic corrosion testing” that served as a prerequisite to official field evaluation testing.  For these reasons, Perimeter would not have been qualified for award even if GAO sustained the protest.  May’s three digested dismissal decisions serve as a valuable resource for practitioners by shedding light on procedural intricacies within the bid protest process.  Along with GAO’s growing body of dismissal decisions, these cases provide clarity and guidance on the procedural grounds necessary for a successful protest, thereby enhancing practitioners’ ability to navigate this unique type of litigation.  By understanding the reasons behind dismissals, practitioners can better prepare their cases, avoid common pitfalls, and effectively advocate for their clients’ interests.  Ultimately, these decisions contribute to a more informed and strategic approach to bid protests.

GSA first launched the TDR pilot in 2016 to study potential replacements for legacy disclosure and reporting obligations to ensure the pricing offered to GSA customers is fair and reasonable.  Those legacy obligations include the obligation to make Commercial Sales Practices (CSP) disclosures and to track commercial pricing and discounts to the negotiated Basis of Award customer under the Price Reductions Clause (PRC).  Under TDR, Schedule contractors submit quarterly monthly reports capturing 16 data elements for all sales made under the Schedule, obviating the disclosure and price-tracking requirements of GSA’s legacy CSP/PRC regime.

While the TDR pilot received positive feedback from industry, it met resistance from GSA’s Office of the Inspector General, creating doubt over the program’s future.  Nevertheless, FAS remained committed to the program, with Refresh 27 marking the culmination of efforts to make the Schedule program more accessible to industry.  

On June 2, 2025, the Court of Federal Claims (COFC) published an opinion in Telesto Group, LLC v. United States and addressed a bid protest challenging the U.S. Army’s actions during an acquisition conducted under OT authority. Although it ultimately denied the protest allegations on the merits, the court analyzed the contours of its bid protest jurisdiction in challenges related to an OT acquisition.

The Telesto Group opinion is noteworthy because the court employed a novel “principal purpose” test to determine whether the government was seeking to obtain a product or service, thus giving the COFC Tucker Act jurisdiction over the proposed procurement. In this developing body of case law, the Court of Appeals for the Federal Circuit has not yet considered (let alone resolved) the issue of OT bid protest jurisdiction; as such, contractors interested in OT acquisitions should take note of this COFC decision.   

Case Background

The Telesto Group case arose from the Department of the Army’s efforts to develop a solution to consolidate five separate business systems and improve their efficiency. The program—called Enterprise Business System-Convergence (ESB-C)—was initiated pursuant to the Army’s OT authority under 10 U.S.C. § 4022.

In a Prototype Project Opportunity Notice (PPON), the Army announced that it would conduct a multistep competition during a prototype phase, which would be followed by the award of a follow-on production contract. The Army explained that it would evaluate participants after each step of the prototype phase and select certain participants to advance to the next stage.

During the prototype phase, the Army selected only one participant, Accenture Federal Services, LLC, to continue to the final step. Telesto Group filed a bid protest at the COFC challenging the ESB-C competition. In particular, Telesto Group claimed that the Army’s conduct during the prototype phase was arbitrary and capricious, and it argued that the Army violated 10 U.S.C. § 4022. 

The government moved to dismiss the complaint, arguing that the COFC lacked bid protest jurisdiction to consider projects conducted under the Army’s OT authority. In short, the government maintained that the ESB-C program was not a procurement and therefore fell outside of the COFC’s Tucker Act jurisdiction.

The COFC’s Jurisdictional Analysis

At the outset, the court noted that its jurisdiction to consider bid protests related to projects under OT authority has been the subject of a growing body of caselaw and remains uncertain. The court explained that the key question in deciding whether the Tucker Act confers jurisdiction on COFC is whether the protest is “in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1). The court also pointed out that, although the Tucker Act does not define the term “procurement,” Congress has defined the term to include “all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and closeout.” 41 U.S.C. § 111.

Citing established Federal Circuit precedent, the court explained that the government’s decision to initiate a process that could potentially lead to a procurement contract, including under OT authority, is a protestable procurement decision. However, the court stated that the inquiry into whether an OT acquisition is a procurement is complicated by the fact that Congress defined OT acquisitions in the negative. That is, under 10 U.S.C. § 4021(a), Congress defined OT projects by what they are not, namely “transactions (other than contracts, cooperative agreements, and grants).”

Having set that backdrop, the court undertook its jurisdictional analysis and made several key findings:

• The Army’s decision to use its OT authority—as opposed to some other authority to initiate the prototype phase of the EBS-C program—was itself a procurement decision. As a result, the court concluded that it had jurisdiction to review the terms of the Army’s PPON to ensure compliance with laws applicable to OT projects.

• The resolution of whether the EBS-C program involves a procurement requires the court to apply a “principal purpose” test. The court explained that the test would examine the relationship between the prototype program participants and the Army to determine whether the government is seeking to obtain a product or service. As an example, the court explained that an OT project which is undertaken to assist with the development of a prototype but that does not contemplate the acquisition of the potentially successful prototype would not constitute a procurement.

• Applying the test to the facts, the EBS-C program became one “in connection with a ... proposed procurement” when the Army completed the prototyping process and determined that it would acquire the successful protype through a follow-on production contract. In this regard, the court found that there is “an effective jurisdictional blackout” during the prototyping phase of an OT project.

• Because the EBS-C program progressed to the point that it was, at least, a proposed procurement, there was COFC jurisdiction to consider Telesto Group’s challenges to the Army’s compliance with applicable statutes, regulations, as well as the PPON and other program-related documents. The court reasoned that all these authorities could form the basis of a protest as each related to the competitive procedures required for the Army’s use of OT authority under 10 U.S.C. § 4022. 

Based on these findings, the court concluded that only two of Telesto Group’s allegations—one asserting insufficient participation by nontraditional defense contractors and another claiming that unfair changes were made to the PPON—fell within the COFC’s jurisdiction. But in the end, the court considered and rejected all of Telesto Group’s allegations on their merits.

Takeaways for Government Contractors

The Telesto Group opinion reinforces the case law supporting bid protest jurisdiction to consider OT acquisitions at the COFC. At the same time (as explained above), the court analyzed the jurisdictional issue in a novel way, applying a “principal purpose” to determine whether the OT project amounted to a procurement.  

Contractors interested in participating in OT acquisitions should consider the following key takeaways:

• “Principal Purpose” Analysis: The Telesto Group opinion explained that when considering the issue of jurisdiction, the COFC will perform a case-by-case examination of the relationship between the government and the parties participating in the OT acquisition. The court used what it called the “principal purpose” test to determine whether the government intended to acquire a product or service—thereby making the protest “in connection with a . . . proposed procurement” for purposes of the Tucker Act. As a result, contractors considering filing a protest must have a solid grasp of the facts of the particular acquisition in order to assess the likelihood the OT project will be considered a procurement.  

• Challenge to Decision to Use OT Authority: The court confirmed that under Federal Circuit precedent, there is COFC jurisdiction to consider a protest challenging the government’s decision to use OT authority at the outset. Indeed, the court noted that the EBS-C program might have been challenged successfully because 32 C.F.R. § 3.1 limits the use of OT authority to “prototype projects that are directly relevant to weapons or weapon systems proposed to be acquired or developed by the Department of Defense.” Accordingly, contractors should assess the validity of the government’s use of OT authority at an early stage. This is especially true when the government attempts to move a project from a traditional FAR-based procurement to an OT acquisition.

• Jurisdictional Blackout During Prototype Phase: The court found there was no COFC jurisdiction to challenge the government’s actions during the prototype phase. This means that according to the Telesto Group opinion, jurisdiction to consider OT acquisitions is not constant throughout. Rather, jurisdiction exists at the outset, disappears in the prototype phase, and finally re-emerges if and when the government decides to award a follow-on production contract.
  • Notably, the court’s approach in this regard differs from that taken by other COFC opinions. For example, the Hydraulics Int’l, Inc. and Independent Rough Terrain decisions suggest that COFC jurisdiction exists throughout the OT acquisition as long as a follow-on procurement is contemplated in the beginning. Contractors should track the approach taken by other members of the COFC in forthcoming decisions. But as the case law continues to develop, contractors will have to recognize this ambiguity and factor it into their risk assessments.

• District Court Jurisdiction: The opinion makes clear that if the OT project does not include at least a proposed procurement, the COFC does not have jurisdiction. In such a case, however, the acquisition is not immune from judicial review. Instead, jurisdiction would exist in a federal district court under the Administrative Procedure Act (APA). So, contractors should be sure to remember that there is more than one potential forum for an OT-related protest.

Conclusion

Until the Federal Circuit resolves the issue of OT protests at the COFC, the jurisdictional landscape will continue to be complicated, uncertain, and potentially dynamic. Thus, in the absence of a bright line rule, contractors must pay close attention and consult with counsel related to potential protest challenges.

Multistate

• A bipartisan coalition of 42 attorneys general sent a letter to the House Committee on Financial Services and the Senate Banking Committee regarding the Homebuyers Privacy Protection Act of 2025 (H.R. 2808 and S. 1467). The letter urges Congress to pass this legislation to end the abusive use of mortgage credit triggers and seeks to preserve the use of mortgage credit to narrowly defined, consumer consented circumstances.
• A coalition of 8 attorneys general announced a contempt order was filed against John Spiller, owner of Rising Eagle Capital Group, JSquared Telecom, and Rising Eagle Capital Group-Cayman, which offered robocall dialer and VoIP (Voice Over Internet Protocol ) services to telemarketers. Spiller allegedly helped facilitate large volumes of robocalls, including many targeting numbers on the Do Not Call Registry, through his telemarketing service companies. Spiller is required to pay $600,000 in attorney’s fees and litigation costs for violating a 2023 court order that barred him from placing or facilitating robocalls.

Arizona

• Arizona Attorney General Mayes announced a settlement with Family Dollar Stores, LLC, the discount retailer, resolving allegations that it inaccurately advertised prices for items at their store. According to the OAG’s investigation, Family Dollar had repeatedly failed UPC Scanning Accuracy inspections conducted by the Weights and Measures Services Division of the Arizona Department of Agriculture in stores throughout the state. Meaning, the prices advertised on store shelves were not always the prices that customers paid at the register. Family Dollar Stores is required to pay $300,000 in civil penalties and attorneys’ fees and to implement changes to improve its pricing accuracy.

California

• California Attorney General Bonta announced a $275,000 settlement with Pacific Magazine Billing resolving allegations that the company was engaged in deceptive practices and violated California’s False Advertising and Unfair Competition Laws. The settlement resolves all allegations from the 2025 lawsuit filed in the Superior Court of the State of California County of San Diego regarding the deceptive practice of disguising solicitation mailers for magazine subscriptions as bills.   
• Attorney General Bonta issued a statement after a Northern District federal judge in State of California v. Donald J. Trump granted California’s request for dismissal to allow the state to appeal its case challenging the Trump Administration’s allegedly illegal tariffs. According to the complaint filed by the state, President Trump doesn’t have the authority to impose tariffs under the International Emergency Economic Powers Act without the consent of Congress. A copy of the judge’s order can be found here. 

Georgia

• Georgia Attorney General Carr announced the indictment of Christie Edwards on charges of racketeering and theft by taking. The indictment alleged that Ms. Edwards conducted a series of fraudulent ATM withdraws, point of sale transactions, checks, and credit card payments against elderly clients while employed as a bookkeeper at an accounting firm. The indictment alleges that Ms. Edwards’ conduct resulted in more than $380,000 of stolen funds.

Nevada

• Nevada Attorney General Ford announced the passage of Assembly Bill 44, which prohibits unfair and deceptive price-fixing of the prices for essential goods and services, such as food, clothes, footwear, gasoline, medical products, housing, telecommunication services, internet access, and ground transportation. However, Bill 44 does not apply to fees and rates charged within industries regulated by federal, state, or local governmental agencies. Bill 44 does not prohibit raising prices of essential goods or services due to normal market trends. The Bill aims to protect Nevadans from “predatory practices”.

New Jersey

• New Jersey Attorney General Platkin announced proposed rules aimed at protecting consumers from the unauthorized use and sale of their personal data by the operators that collect it during certain business transactions. The proposed rules would facilitate several rights for consumers in the state including, opting out of a business selling or using personal data targeted at advertising and providing consumers with more control over personal data obtained by a business. It also provides a framework for a universal opt-out mechanism. The 60-day public comment period, during which stakeholders have an opportunity to submit written comments on the proposed rules, which ends August 1, 2025.

Vermont

• Vermont Attorney General Clark resolved allegations against Unified Parking Partners (UPP) Global, LLC, a private parking operator, for misleading parking notices that implied that UPP Global was a governmental entity. The $150,000 settlement resolves allegations of violations of the Consumer Protection Act.  

Washington D.C.

• Washington D.C. Attorney General Schwab announced a settlement with William C. Smith & Co., Inc., resolving allegations that it conspired with other District landlords, using pricing software from RealPage, Inc., to inflate rents at over 50,000 apartment units across the District. According to the settlement, W.C. Smith will pay over $1,000,000 in civil penalties and will be required to reform its business practices to avoid certain rent-setting practices and to refrain from encouraging others to use revenue management software to accept recommended rent prices.
• Attorney General Schwab announced settlements with Equinox SC D.C., Inc., the luxury fitness studio, and Capital Healthcare, LLC (AllCare), provider of primary and urgent healthcare clinics, resolving allegations that they separately required employees to sign unlawful noncompete agreements. According to the Equinox settlement agreement, the company will pay in excess of $117,000 to impacted workers and the District, and will be required to stop using noncompete agreements for current or future employees in the District. The AllCare settlement requires the company to pay $18,000 and to stop the use of noncompete clauses and ensure that nondisclosure agreements do not infringe employees’ rights.

A new decision from the ASBCA provides a blueprint for how contractors can maximize recovery for government-directed suspensions under the FAR 52.242-14 (Suspension of Work).

Understanding your contractual rights under the FAR and documenting impacts early can mean the difference between absorbing costs and recovering them.

Suspension of Work Clause Basics

FAR 52.242-14 entitles federal contractors to contract adjustments if the Contracting Officer suspends “all or any part of the work” for “an unreasonable period of time.”

The clause therefore presents four basic elements that contractors must satisfy:

• A delay/suspension/interruption ordered by the government (in writing)

• The delay/suspension/interruption lasts for an unreasonable time

• An impact to contract performance, and

• Additional costs incurred by the contractor as a result.

Easy enough – sort of.

While the elements are straightforward, questions remain about what it means for a delay to be unreasonable.

Defining an Unreasonable Suspension

In the decision, the ASBCA considered a dispute between USACE and a contractor hired for a dam repair task order. 

During the contractor’s performance, the government suspended work to accommodate an intentional release of water from the dam.  The release was expected to take about two and a half weeks but ultimately lasted 94 days.

In considering the contractor’s claim under FAR 52.242-14, the Board zeroed in on the question of whether the suspension lasted for an unreasonable period of time. 

First, the Board noted that the contractor agreed with the plan to release the water, rendering that portion of the delay reasonable. However, even after the dam reached the desired level, the Board said the government “inexplicably continued releasing water” for an additional three days.  It therefore awarded the contractor costs associated with those delay days.

Additionally, after the dam reached the desired level, the Board found that the government unreasonably continued the suspension of work “based merely upon a forecast of rain, devoid of any other specifics.”   That entitled the contractor to the costs associated with an additional seven days of delay.

Note that the contractor’s claim included additional delay days that the Board rejected based on the relationship between the delay and the “specific purpose identified by the contract.”  That is, the mere length of time does not render a delay unreasonable.  You have to take a deeper look at the intent of the contract.

Practical Takeaways

Contractors facing government-directed suspensions can use this decision to spot unreasonable government-caused suspensions of work.

Additionally, many of the best practices I have discussed before still apply to claims under FAR 52.242-14:

• Provide Timely Notice – While you do not have to submit a full cost breakdown immediately, you must notify the contracting officer promptly when a suspension is likely to increase costs or delay performance.

• Document Everything – Keep detailed records of labor, equipment, and overhead costs during the suspension period.

• File a Claim – Even with a directed suspension of work, an REA or Claim is likely still required to recover from the government.

Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.