If it looks and acts like an appropriations, it’s because it is an appropriations! The “One Big Beautiful Bill” (OBBB) was signed into law on July 4, 2025. While its legislative path to enactment was through a process called “reconciliation,” it also had billions in new spending for a wide range of government programs.

Just in the last two weeks, with the continuing temporary lapse in appropriations for the Department of Homeland Security, and with a new report that the Department of Defense is planning to rapidly accelerate into the current federal fiscal year almost all of the $151 billion in new spending provided to it in the OBBB, there is renewed attention to these provisions.

A Brief Lesson in Federal Budget Categories

Despite the general prohibition on using a Reconciliation bill for new spending, that’s exactly what the OBBB does. But first a brief lesson is federal budgeting. Government spending is generally divided into four main types:

1. Discretionary Spending: Typically set in annual appropriations acts.

2. Mandatory Spending: Often called “entitlement” or “direct” spending, which is determined by existing laws that set eligibility criteria and benefits formulas (e.g., Social Security, Medicare, Medicaid, federal judge salaries, and some agriculture programs).

3. Tax Expenditures: Subsidies for health insurance, savings, and similar costs.

4. Interest Payments: Interest on the federal debt.

The Role of the Reconciliation Process

According to the Congressional Research Service, when Congress adopts a budget resolution setting budgetary goals for a given federal fiscal year, it may be necessary to change existing revenue, direct spending, or debt limits to achieve those goals, i.e. to “reconcile” current law with the budgetary goals adopted.

The OBBB was a Traditional Reconciliation Bill

The OBBB was a “traditional” reconciliation bill – and treated as such under the special rules in both the House and Senate for such legislation – because it responded to the reconciliation instructions included in the covered budget resolution and included changes in mandatory spending and tax expenditures.

The Unusual Twist: New Discretionary Appropriations

But in an unusual twist, the OBBB was also loaded with new discretionary appropriations for dozens of departments and agencies, including the Departments of Defense and Homeland Security. Most of the new appropriations established an unusual five fiscal year period of eligibility – through September 30, 2029 – before the funding would expire.

Statutory Phrases in the OBBB

For many of the DHS and DoD provisions in the OBBB Act, each of the lead-in phrases for such provisions used a very slight variation of the classic appropriations statement:

“In addition to amounts otherwise available, there is appropriated to the Secretary … out of any money in the Treasury not otherwise appropriated, to remain available until September 30, 2029, the following…”.

Strategic Implications for DHS and DoD Funding

Here, the Republicans in Congress chose to use the reconciliation process to not only reduce mandatory spending and include tax and other policy provisions, but also to increase appropriations for numerous programs and activities of government.

How else would DHS be able to “spend” money on CBP and other DHS employees’ salaries and other activities? How else would DoD be able to fund, let alone accelerate, its “discretionary spending” on Golden Dome, on shipbuilding and on industrial base needs?

Given the unmistakable intent of Congress to enact traditional-style appropriations, even in this “reconciliation” package, the full array of authorities are available to the President to execute these appropriations, including transfer and reprogramming authorities. Thus, it is not surprising that the congressional failure to enact a “regular” appropriations act for DHS appears to be having minimal effect on DHS operations and personnel.

Contact Protorae Law

If you have any questions or need any additional information, please do not hesitate to contact the author, Alan Chvotkin, at achvotkin@protoraelaw.com or the Protorae Law attorney with whom you normally work.

References:

• Public Law 119-21 (July 4, 2025), available at BILLS-119hr1eh.pdf.

• Congressional Research Service, “The Reconciliation Process: Frequently Asked Questions,” Report R48444 (Feb 23, 2026), available at The Reconciliation Process: Frequently Asked Questions | Congress.gov | Library of Congress.

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What is Collaborative Divorce? (The “No-Court” Pledge)

As highlighted by the CPNV, Collaborative Divorce is a revolutionary model built on a single, uncompromising principle: The parties pledge in writing to reach a settlement without ever going to court.

In a traditional divorce, the threat of “seeing you in front of a judge” is often used as a tactical weapon. In the Collaborative process, that weapon is removed. If the process breaks down and either party chooses to litigate, both attorneys must withdraw. This “disqualification clause” ensures that everyone, lawyers and clients alike, is 100% incentivized to find a creative, durable solution.

The Value Added: How “Certified Collaborative” Changes Your Outcome

Being a certified collaborative attorney is a shift in negotiation strategy. Traditional litigation is positional (I want X, you want Y). Collaborative practice is interest-based (Why is X important to you? How can we both achieve our goals?).

How this manifests for you practically:

• A Professional Team, Not a Legal Battle: Instead of each spouse hiring “dueling experts” to fight over the value of a business or pension, Becky works with a neutral team. This often includes a Financial Neutral to untangle complex assets and a Child Specialist to act as the “voice of the children.”
• Privacy for Professional Lives: For many of our clients, discretion is a top priority. Unlike the public record of a courtroom, collaborative sessions are entirely private. This protects your financial disclosures and personal history from public scrutiny—a vital benefit for business owners, executives, and those with sensitive professional clearances.
• Customized, Not “Cookie-Cutter”: Judges are often bound by rigid, one-size-fits-all legal guidelines. Becky uses the Collaborative model to craft schedules and settlements that reflect the reality of your specific life, whether that involves complex business ownership, federal pay scales, or unconventional work travel.

The Logistical Advantage: Control and Efficiency

One of the greatest stressors in a divorce is the loss of control. The court dictates your deadlines, your hearing dates, and ultimately, your future.

With Becky and the Collaborative Process, you regain that control:

1. Your Timeline: Meetings are scheduled around your life, not the court’s crowded docket.
2. Your Decisions: You and your spouse remain the ultimate decision-makers. You don’t have to worry about a judge, who has only seen you for a few hours, deciding your family’s fate.
3. Your Future Relationship: Because the process is built on “Divorce with Dignity,” it preserves the ability to co-parent or move forward without the scorched-earth bitterness often left behind by trial.

Transition, Not Trauma

Becky Kinsel has spent her career in the trenches of complex litigation. She knows the cost, financial and emotional, of a “win” in court. By choosing a collaborative path with a seasoned trial attorney, you aren’t choosing a “soft” option; you are choosing a smart option.

Ready to Navigate Your Next Chapter?

Choosing the right path for your divorce is one of the most significant decisions you will ever make for your family and your financial future. Whether you require the structured, private environment of a Collaborative Divorce or the assertive representation of a seasoned trial team, Becky Kinsel and the Domestic Relations team at Protorae Law are equipped to guide you.

Contact us to schedule a confidential consultation and discover if the Collaborative Process is the right fit for your family.

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On December 18, 2025, President Trump issued an Executive Order titled “Ensuring American Space Superiority.”[i] The Order establishes four major priorities for the Federal Government’s space policy. To achieve these priorities, the President directed the Secretary of Commerce and the NASA Administrator to, within 180 days, reform their space acquisition processes to support the priorities in this Executive Order, and to use their existing authorities to improve efficiencies and expedite space acquisitions, including establishing a “general preference” for the use of Other Transaction Authorities (OTAs) and Space Act Agreements.

Modernizing Defense Acquisitions and Promoting Innovation

Recall that on April 9, 2025, President Trump issued Executive Order 14265 directing the Department of Defense/War (DoD) to utilize existing authorities to expedite acquisitions throughout the Department, including endorsing as a “general preference” the use OTAs for DoD acquisitions to promote streamlined acquisitions.[ii]

In my December 2, 2025, blog, titled “Using OTAs — Opportunities but Uncertainties,” [iii] I provided background information on OTAs and how DoD was planning to increase the use of OTAs, noting that the SECDEF’s November 10, 2025, “Acquisition Transformation Strategy” called on the department to maximize flexible contracting by promoting the use of OTAs. But I cautioned then that with the new opportunities comes risks and uncertainties that can diminish their value or fail to bring the anticipated results.

DoD/DoW Use of OTAs for the Golden Dome Initiative

While the DoD/DoW has the broadest statutory authority for the use of OTAs for various types of acquisitions and leads the government in the dollar value of OTA awards, overall federal spending through OTAs has, to date, been relatively small. That may change this federal fiscal year, largely due to the awards related to the Golden Dome initiative and implementation of President Trump’s space policy.

On Dec. 2, the Missile Defense Agency (MDA) announced the first tranche of awards to over 1,014 companies[iv] for the “Scalable Homeland Innovative Enterprise Layered Defense (SHIELD),” which is a major program aimed at revolutionizing America’s missile defense capabilities through next-generation technologies and innovative approaches. MDA subsequently announced a second grouping,[v] and then a third grouping,[vi] bringing the total number of SHIELD awards to over 2,400, with a combined estimated total value of $151 billion.[vii]

Space Force Implementation: SBI Contracts and Kinetic Interceptors

On December 6, 2025, U.S. Space Force announced the award of eighteen contracts for the space-based interceptor (SBI) technology portion of the Golden Dome program, all identified as using DoD’s OTA authority. And according to other press reports, in November 2025, U.S. Space Force awarded an undisclosed number of prototype SBI contracts, likely also using OTA techniques, but without disclosing the winning offerors or any details about the presumably classified work.

Finally, in early December 2025, U.S. Space Force issued, via SAM.gov, a pre-solicitation Request for Prototype Proposal (RPP)[viii] for kinetic midcourse interceptor solutions, with a February 2026 award date. According to that SAM.gov notice, “(t)his action is expected to result in multiple fixed-price Other Transaction Agreements in accordance with 10 USC 4022. In addition, the Government anticipates the awards may also incorporate Prize Competitions in accordance with 10 USC 4025.”

Conclusion: The Catalyst for Future Space Exploration

The use of OTA techniques is well suited to the technical and acquisition challenges of the Golden Dome and planned space exploration, and this Executive Order will certainly be a catalyst for OTAs’ increased use. But even in these domains, OTAs are still only a means to achieve results and must be used carefully and appropriately, with transparency and accountability for both government purchasers and competitors. I’ll be watching how Commerce and NASA reform their “space acquisition processes” and increase their reliance on the use of OTAs. DoD’s initiatives are already underway but could still use greater transparency.

[i] Executive Order 14369 of December 18, 2025, “ Ensuring American Space Superiority,” available at 2025-23845.pdf.

[ii] Executive Order 14265 of April 9, 2025, “Modernizing Defense Acquisitions and Spurring Innovation in the Defense Industrial Base,” available at 2025-06461.pdf.

[iii] Alan Chvotkin, December 2, 2025, blog “Using OTAs – Opportunities but Uncertainties,” available at Using OTAs – Opportunities but Uncertainties – Protorae Law.

[iv] GovWire: “MDA Awards Spots to Over 1,000 Contractors on $151B SHIELD Contract for Golden Dome,” December 3, 2025, available at MDA Issues First Awards Under $151B SHIELD Contract.

[v] Defense One, “Another 1,000 defense companies chosen for $151B Golden Dome competition, December 19, 2025, available at Another 1,000 defense companies chosen for $151B Golden Dome competition –  Defense One.

[vi] Defense One, “Another 350 firms approved to bid on Golden Dome,” January 15, 2025, available at Another 340 firms approved to bid on Golden Dome work worth up to $151B – Defense One.

[vii] Defense One, “Another 1,000 defense companies chosen for $151B Golden Dome competition, December 19, 2025, available at Another 1,000 defense companies chosen for $151B Golden Dome competition –  Defense One.

[viii] U.S. Space Force (USSF) Space Based Interceptor (SBI) Pre-solicitation notice for Prototype Proposal (RPP), December 19, 2025, available at SAM.gov.

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Badge Flipping to Hire Employees

When a Federal government contractor supplants an incumbent contractor on a federal professional or technical services contract, the offeror has often bid, and expects to hire, some or all of the incumbent employees from that predecessor contractor. In fact, the contractor’s plan for transitioning the work, and the incumbent workforce, from the incumbent to the successor contractor, is often an important evaluation factor used by federal agencies in making its award decision.

The On Again-Off-Again Executive Order

On January 20, 2025, in his first day in office, President Trump issued Executive Order 14148, titled “Initial Rescission of Harmful Executive Orders and Actions.”[i] One item in that long list of enumerated items was the repeal of President Biden’s Executive Order 14055,  titled “Nondisplacement of Qualified Workers Under Service Contracts,” that was issued on November 18, 2021.[ii] In a surprising delay, it was only on December 22, 2025, eleven months after President Trump’s executive action, that the Department of Labor took final action to rescind the Department’s December 14, 2023, nondisplacement implementing regulations.[iii]

Under President Biden’s Executive Order 14055, contractors and subcontractors performing on covered Federal service contracts must, in good faith, offer a right of first refusal of employment to qualified employees working on the predecessor contract. After a contentious, and litigation-filled, regulatory process, the Department of Labor issued its final implementing rule on December 14, 2023.[iv]

Surprisingly, the FAR Council never implemented the final 2023 Department of Labor regulations into the Federal Acquisition Regulation (FAR). There is no data to indicate how many agencies included the Labor Department’s requirements in their solicitations or contracts even in the absence of an official final FAR clause.

The genesis of this “nondisplacement” requirement dates to an Executive Order issued by President Clinton in 1994;[v] this Executive Order was implemented in the FAR. President George W. Bush revoked that Executive Order in 2001[vi] and on May 6, 2020, the FAR Council deleted all FAR references relating to this requirement. President Obama issued a new Executive Order in 2009,[vii] which was also incorporated into the FAR, but President Trump, in his first term in 2019, repealed the Obama Executive Order.[viii]

Conclusion

The nondisplacement rule has been a political football for 30 years. With the final 2025 Trump Administration actions to repeal the Biden Executive Order and rescind the Department of Labor rules, we’ll have to wait at least three more years to know whether the next President will reinstate this nondisplacement requirement on future covered federal contracts.

If you have any questions or need any additional information, please contact the author at achvotkin@protoraelaw.com or the Protorae Law attorney with whom you normally work.

[i] Executive Order 14148 of January 20, 2025, “Initial Rescissions of Harmful Executive Orders and Actions,”  available at 2025-01901.pdf.

[ii] Executive Order 14055 of November 18, 2021, “Nondisplacement of Qualified Workers Under Service Contracts,” available at 2021-25715.pdf.

[iii] Department of Labor December 22, 2025, final rule “Nondisplacement of Qualified Workers Under Service Contracts: Rescission of Regulations,” available at 2025-23626.pdf.

[iv] Department of Labor December 14, 2023, final rule “Nondisplacement of Qualified Workers Under Service Contracts,” available at 2023-27072.pdf.

[v] Executive Order 12933 of October 20, 1994, “Nondisplacement of Qualified Workers Under Certain Contracts,” available at Federal Register :: Executive Orders.

[vi] Executive Order 13204 of February 17, 2001, “Revocation of Executive Order on Nondisplacement of Qualified Workers Under Certain Contracts,”, available at Federal Register :: Executive Orders.

[vii]Executive Order 13495 of January 30, 2009, “Nondisplacement of Qualified Workers Under Service Contracts,” available at E9-2484.pdf.

[viii] Executive Order 13897 of October 31, 2019,” Improving Federal Contractor Operations by Revoking Executive Order 13495,” available at 2019-24288.pdf.

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The Letter of Intent (LOI) Arrives: The Entrepreneur’s First Misstep

Once upon a time…. 

After some preliminary discussions and disclosing some financial statements, Eager Entrepreneur (EE) receives an offer to buy his small business.  A Letter of Intent (LOI) has been presented by Buyer and that big equity event EE has been dreaming of is in sight!  No more payroll to meet, no more late hours, no more compliance audits!  Buyer wants to close quickly and the offer price looks tempting.  And the Buyer seems so nice and said we can work any issues out post-closing. 

The company’s attorney, Learned Lawyer (LL), does not yet know and neither does its outside accountant nor any manager or employee of the Company.  EE has been trying to avoid professional fees and, besides, you can find everything on the Internet anyway.   

EE’s gut tells him he should forward the LOI to legal counsel but does not want LL to get in the way of his big payday.  So, EE sends LL the LOI with the comment that he accepts the proposed price and deal structure. 

LL replies requesting a call at EE’s earliest convenience….   

LL: Congratulations on the offer.  Is a Non-Disclosure Agreement in place? 

EE: [crickets….] 

LL:  No worries, I will send you one to get signed and be effective as of an earlier date.  Have you had a recent valuation of the company?   

EE: [gnashing of teeth….] 

LL: Based on recent M&A deals for small businesses in your Company’s space on which my Firm has been on the buy or sale side, your Company is likely worth more.  This equity is the capstone of your career, years of work and sacrifice, and then you will be subject to a lengthy non-compete.  Get full value. 

EE:  But, a valuation will take time and cost money. 

LL:   Your accountant already has the financial information and will not take as long or cost as much as you think in comparison with the negotiating power you will then have to get a much higher sale price…many times more than the cost for the valuation.  And BTW, you are not the only shareholder…. Remember Aunt Minnie and Cousin Lamar who provided seed money back in the day and each own 2%?  As director you owe all shareholders the duty to maximize value. 

EE:   Alright, I will forward the LOI to the accountant and request a valuation. 

A short time later…. 

EE receives a valuation in which the value of the Company is twice the offered price.  

To be continued….. 

The Power of Valuation: Maximizing Your Business Exit Value

When contemplating a business sale or faced with a Letter of Intent, your first call should be to experienced business counsel. Mergers and Acquisitions and maximizing exit value are core strengths of attorneys at Protorae Law. Contact us today to discuss if we can help you maximize the value of your life’s work. What will happen when LL explains the proposed deal structure and EE takes the valuation back to the Buyer? Find out in Part II.

The post The Eager Entrepreneur’s Mistake: Delaying Counsel in a Business Sale appeared first on Protorae Law.

Other Transaction Agreements (OTAs) are again in the federal procurement newsfeeds because of new initiatives from the Department of Defense/War (DoD). I’ve represented companies in the negotiation and award of OTAs and taught classes to contractors on what they are and how to work with and towards them, while protecting their interests. Yet I’ve said many times: “If you’ve seen one OTA, you’ve seen one OTA!” DoD’s new attention will certainly bring new opportunities, but it comes with risks and uncertainties that can diminish their value or fail to bring the anticipated results.

What Are OTAs?

According to the Defense Acquisition University,[i] Other Transaction Agreements (OTAs) are valid U.S. Government contractual instruments other than standard procurement contracts, grants, or cooperative agreements. OTAs can include flexible business arrangements to acquire research and development activities to advance new technologies (Research OTAs), and prototypes or models to evaluate technical or manufacturing feasibility or military utility of new or existing technology (Prototype OTAs). This may apply to processes, concepts, end items, and systems from non-traditional defense contractors, as well as from traditional defense contractors when statutory requirements for small business participation or cost sharing arrangements are satisfied.[ii] Many laws and regulations governing federal contracts do not apply to OTAs (i.e., Federal Acquisition Regulation (FAR) and the Competition in Contracting Act (CICA)); however, the Procurement Integrity Act, most fiscal laws, and competitive practices are applicable.

OTAs provide opportunities to structure agreements that may leverage commercial business practices and remove barriers to entry such as cost accounting standards (CAS) compliance. Also, intellectual property rights requirements may be negotiated to encourage non-traditional defense contractors to do business with the government.

Awards can be made to a single organization or through a consortium organized around a particular technology or mission area. In recent years, the consortium model, and the creation of Consortium Management Organizations (CMOs), have become the dominant recipients of DoD OTA awards.

Promoting the Use of OTAs within DoD

The Department of Defense/Department of War (DoD) has the broadest legislative foundation for using OTAs. While first made available to the Defense Advanced Research Projects Agency (DARPA) in 1989, over time, Congress has expanded, tweaked and constricted their use by DoD. Now, they can be used for research and development or for prototyping. When appropriately planned for and successfully completed using either of these two types of instruments, they can also be used for follow-on production. According to a September 3, 2025, Government Accountability Office (GAO) report, DoD has obligated over $18 billion through OTAs in Fiscal Year 2024, the last full year for which data is available.[iii]  According to a June 30, 2025, blog from FedConsult,[iv] total government OTA  awards in Fiscal Year 2025 for all federal agencies was (only) $18.36 billion, with $18.12 billion of that coming from defense agencies. Total federal contract spend in Fiscal Year 2024 was $774 billion!

On March 6, in a Secretary of Defense memo titled “Directing Modern Software Acquisition to Maximize Lethality,” he directed DoD components to use OTAs “as a default procurement approach for software acquisition pathway efforts.[v] Then, on April 9, 2025, the President issued an Executive Order directing preferential use of OTAs for DoD acquisitions.[vi]  Finally, on November 10, 2025, following the Secretary of Defense’s November 7 speech, the Department released it “Acquisition Transformation Strategy,” and under Pillar #1 to rebuild the defense industrial base, the strategy called on the department to maximize flexible contracting by promoting the use of OTAs, and indicated that the department will provide “additional resources, guidance and training” to expand the use of OTAs.[vii] Guidance and further instructions are to be issued within 90 days.

The “Wannabees”

Only 20 departments or agencies (or portions of agencies) have been given any type of authority to use OTAs in their acquisitions, and not every one of them has been given the full range of options that DoD has been given.[viii] In addition, many other federal agencies have petitioned Congress for either limited, unlimited, or expanded authority to use OTAs as part of their acquisition reform initiatives or to make temporary authority permanent.

Data Challenges at DoD

In its September 2025 report to Congress, the GAO noted that DoD “lacks full information about the outcomes of OTA use. For example, DoD cannot systematically track the extent to which DoD transitioned prototype projects using OTAs into production efforts. DoD also lacks aggregated data on the extend of NDC (non-traditional defense contractors) participation on OTAs.”[ix]

GAO also noted that, in July 2021, “DoD (could) still not fully identify which consortia members are performing the work awarded under consortia-based OTAs and recommended that DoD develop and implement a systematic approach to track consortium members performing on OTAs. DoD concurred in that recommendation and in June 2022, GSA added new data fields to the Federal Procurement Data System (FPDS) to identify awardees performing consortia-based awards. In this report, GAO reviewed the updated FPDS fields and found that 84 percent of the covered records contained the proper information.[x]

GAO’s report made two recommendations to DoD. First, that DoD develop and implement a systemic process to track FAR production contracts using DoD’s follow-on production authority. Second, that DoD fully and accurately report on consortia members performing on projects awarded under consortia-based OTAs.[xi] DoD concurred with both recommendations.[xii]

However, there is no other known independent review of how other agencies with some form of OTA authority have complied with the recordkeeping and reporting of their OTA transactions.

Conclusion

OTAs have been available to DoD for decades and to many other federal agencies (other than NASA which was the recipient of the original OTA authority in the 1958 Space Act), for many years. They provide a valuable alternative to agencies to meet unique or specialized need, when used by knowledgeable government agencies and sophisticated, even if not “traditional,” contractors. The renewed push by DoD will certainly accelerate the learning curve for both the department and for those companies who might find this procurement method attractive. But with opportunities will come risks and challenges that neither the government nor industry should take lightly or ignore. Both sides need competent and experienced professionals versed in the uniqueness of OTAs to be successful.

[i] Drawn from Defense Acquisition University (DAU), renamed in November 2025 as the Warfighting Acquisition University, Adaptive Acquisition Framework Contracting Cone, available at Other Transactions | Adaptive Acquisition Framework.

[ii] Unique to the requirements imposed by statute on the Department of Defense is to utilize “non-traditional defense contractors.” A non-traditional defense contractor is an entity that is not currently performing and has not performed, for at least the one-year period preceding the solicitation of sources by the DoD for the procurement or transaction, any contract or subcontract for the DoD that is subject to full coverage under the cost accounting standards (CAS).

[iii] See Government Accountability Office  report: “Other Transaction Agreements; Improved Contracting Data Would Help DoD Assess Effectiveness,” Sept 3, 2025, available at GAO-25-107546, Other Transaction  Agreements: Improved Contracting Data Would Help DOD Assess Effectiveness, at 8.

[iv] See Archisha Mehan blog for FedConsult: Federal Procurement’s New Frontier: The Rise of OTAs, available at Federal Procurement’s New Frontier: The Rise of OTAs – GovSpend.

[v] See Memorandum for Senior Pentagon Leadership (and others), March 6, 2025, available at Directing-Modern-Software-Acquisition-to-Maximize-Lethality.pdf.

[vi] Executive Order 14265 (April 9, 2025), titled “Modernizing Defense Acquisitions and Spurring Innovation in the Defense Industrial Base,”, available at 2025-06461.pdf.

[vii] See Department War November 10, 2025, “Acquisition Transformation Strategy,” available at Acquisition Transformation Strategy, at 10.

[viii] As of August 2024. See Association for Talent Development Aug 9, 2024, blog titled “Unlocking Innovation: A Guide to Other Transaction Authorities (OTAs) for Federal Agencies,” available at Unlocking Innovation: A Guide to Other Transaction Authorities (OTAs) for Federal Agencies.

[ix] See Note iii, supra, at 8.

[x] See Note iii, supra, at 14.

[xi] See Note iii, supra, at 32.

[xii] See Note iii, supra, at 41.

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Entrepreneurs tend to be very optimistic people as they see opportunities where others do not, especially when buying a business.  This exuberance can lead some to avoid discussing the inherent risks in a prospective venture.

The Necessity of Due Diligence

Every potential acquisition requires one to investigate the business and identify the risks – lawyers call this due diligence.  But even at the end of the due diligence there remain unknowns about the future.

Transferring Risk with Representations and Warranties

Representations and warranties form a key component of every well-drafted purchase agreement. Here is where a good lawyer can help by crafting specific representations and warranties about the business and specifics of the transaction that transfer risk about certain uncertainties from one party to the other and provide mechanisms for compensating one side for these risks.

The Danger of Generic Form Agreements

Using form agreement drafted for other situations can often make one feel comfortable about “papering” the deal but in fact sometimes do little to nothing to protect the purchaser from risks associated directly with the specific transaction.

Long agreements do not necessarily lead to agreements that will win the day in court should problems arise in the future.  Spending some money with a lawyer prior to buying the business can save significant sums later when attempting to litigate a form contract.

Don’t let optimism cloud your judgment when making a major business investment. Protecting your future starts with a meticulously drafted purchase agreement tailored specifically to your transaction’s unique risks. Before you sign on the dotted line, partner with legal experts who specialize in due diligence and contract negotiation. Contact Protorae Law today to ensure your investment is secure.

The post Buying a Business? Don’t Overlook Representations and Warranties. appeared first on Protorae Law.

The article, titled “Contractors Face Rising Costs From Gov’t Shutdown,” is available at Contractors Face Rising Costs From Gov’t Shutdown – Law360 (paywall).

If you have any questions about the effect of the shutdown on contractors while it is still in place, or actions to be taken when the shutdown ends, you can reach Alan at achvotkin@protoraelaw.com.

The post Protorae Law’s Alan Chvotkin Quoted in Law360 on the Impact of the Shutdown on Federal Contractors appeared first on Protorae Law.

Timeline and Key Templates of the FAR Rewrite

This FAR rewrite was launched by President Trump’s Executive Order 14275 on April 15, 2025 (i) with a target completion date of 180 days (ii) The final two sections of the FAR rewrite, covering Part 2 (relating to “Definitions of Words and Terms”) and Part 52 (relating to “Solicitation provisions and Contract Clauses”) were published on October 28, 2025, twenty-eight days into the Fiscal Year 2026 “shutdown” due to the lapse in appropriations. The last seven substantive changes to specific parts of the FAR were published on September 30, 2025.  

Agency Deviation Requirement Creates Inconsistency

But publishing the templates for each of the current Parts of the FAR was only the first, albeit a significant, step in the FAR overhaul process. From the outset of the FAR overhaul design, agencies were tasked with the responsibility for issuing class deviations to their own FAR supplements, based on the common templates (iii). As I previously noted (iv), this requirement for individual agency deviations has created confusion and inconsistency across the government – even though eliminating such confusion and inconsistency was the core objective of creating and maintaining the government-wide FAR from its April 1984 inception.  

Low Compliance: Tracking Agency Deviations

Throughout this FAR overhaul process, the Department of Defense/Department of War has been an integral participant in creating the various templates but has not issued a single class deviation to its Defense Federal Acquisition Regulation (DFARS). Furthermore, even excluding the last seven substantive changes that were issued on September 30, and the final two updated that were issued on October 28, agencies have failed to timely meet their obligations to publish deviations implementing the template changes within their own agencies.  

The high-water mark for agency-published deviations was for the very first FAR overhaul template that was published on May 2, 2025, covering FAR Part 1. By August 7, 2025, 31 agencies had published a class deviation modifying their own agency acquisition supplement and none have been published since August 7. The first agency to act was the Millennium Challenge Corporation on May 8; the last was the U.S. Agency for International Development on August 7, 2025. However, as of October 31, 2025, that 31 number of agency-issued deviations was reached only one other time during this process, covering FAR Part 10 (relating to market research). Even excluding all of the FAR templates that were first published during September or October, the number of agency deviations published by October 31, 2025, range from a low of seventeen (for both FAR Parts 28 and 48) to a high of twenty-nine (for FAR Part 34)(v).   

Contractor Due Diligence: Varying Effective Dates

In addition, the effective date of each published agency deviation varies. For example, for the May 2, 2025, template changes to FAR Part 1, most were effective upon publication, with effective dates for any specific agency ranging throughout May to August, and several were made retroactive to the May 2 template publication.  

Thus, contractors pursuing new procurement opportunities at a federal agency need to know what class deviations that agency has already issued, what is the effective date of each of those deviations, and whether those deviations have been properly incorporated into their new solicitations.   

Challenges to Agency Action

There is no doubt that the September publication of so many of the FAR rewrite templates, coupled with the government shutdown that likely furloughed many of the agency personnel responsible for issuing their own deviations, has affected agencies completing these actions. But what accounts for the incomplete action on earlier template publications? 

The Next Steps in the FAR Overhaul Process

The next steps in the overhaul process will be the FAR rewrite team’s review of the “informal” public comments that have been submitted to each template publication, followed by a determination to make any revisions to the templates/deviations, and then to publish the integrated FAR rewrite for official public comment.   

According to the May 2, 2025, OMB memo: 

“After the FAR Council has posted model deviation guidance for all FAR parts, it will turn to formal rulemaking using the notice and comment process set forth at 41 U.S.C. § 1707. The rulemaking will be informed by the model deviation text, public input on the text received on the RFO website, operational experience with agency deviations, recommendations from agency points of contact identified pursuant to subsection (b), testing of the buying guides, and other appropriate inputs.” 

Conclusion: Focus on Agency Deviations and DFARS

While there is still a long way to go on the formal FAR overhaul process before it becomes effective, in the near term the name of the game is in the agency deviations to their own acquisition supplements and when and how they are incorporated into agency acquisitions. We’re also waiting for action by the Department of Defense to modify its DFARS rules to align with the FAR templates. Contractors should closely follow their key agencies for publishing additional deviations and for implementation into upcoming solicitations. I’ll be watching their actions, as well.  

If you have any questions or need any additional information, please do not hesitate to contact me at achvotkin@protoraelaw.com, or contact the Protorae Law attorney with whom you normally work.   

Works Cited

i Executive Order 14275 of April 15, 2025, titled “Restoring Common Sense to Federal Procurement.” 
ii The 180-day target date for completion, as provided for in Section 4 of the Executive Order, was October 15, 2025.
iii See Office of Management and Budget Memorandum M-25-26 (May 2, 2025), titled “Overhauling the Federal Acquisition Regulation”, and one from the FAR Council providing “Deviation Guidance to Support the Overhaul of the Federal Acquisition Regulation.” Under this FAR Council directive, agencies are to issue these deviations within 30 days of the release of the model deviation.
iv See my June 4, 2025, blog for Centre Law & Consulting titled “FAR Overhaul – Emphasizing Speed Over Uniformity.”
v As of November 3, 2025, I’ve not completed my matrix to show which agency has issued a deviation for each Part issued. However, on November 3, GSA’s senior acquisition executive, Jeff Koses, posted on LinkedIn that GSA, the Department of Agriculture, and the Department of Homeland Security have issued all of required deviations. That leave 28 agencies that have not completed publication of deviations for the templates for each of the FAR Parts, including zero deviations published by the Department of Defense/Department of War.

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Prioritize Performance and Funding Awareness

Alan emphasized the critical importance of contract performance. Unless formally told to stop work, you must continue to perform all elements of your contract. This includes the timely submission of both invoices and required reports. 

Meticulous Documentation is Essential

Meticulous documentation is essential during this period. For each federal contract affected by the shutdown, Alan strongly advised contractors to separately track the time and expenses incurred. This dedicated effort to document costs is the foundation for any future requests for reimbursement.

Understand Claims and REA Deadlines

Finally, Alan provided a critical warning concerning recovery: Be aware of the strict timelines for submitting Requests for Equitable Adjustment (REAs) and formal claims once the shutdown ends. Missing these deadlines can irrevocably waive your right to recover costs associated with the shutdown’s impact.

Alan’s insights underscore the need for vigilance and legal strategy in the government contracting community. If you or your company need guidance or additional help navigating the impact of the shutdown on your federal contracts, please contact Alan Chvotkin and our Government Contracts team.

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