For companies selling innovative technology to the federal government, a Commercial Solutions Opening (“CSO”) can provide a path to government business that looks quite different from a conventional FAR-based solicitation. CSOs are designed to give agencies—particularly the Department of Defense (“DoD”)—greater flexibility to acquire innovative commercial products, services, and capabilities while reducing some of the procedural formality associated with traditional procurements.

That flexibility, however, does not mean that CSO competitions are beyond legal scrutiny. Recent decisions from the Government Accountability Office (“GAO”) and the U.S. Court of Federal Claims (“COFC”) demonstrate that disappointed offerors can challenge CSO solicitations, evaluations, and awards. At the same time, those decisions underscore an important point for contractors: The solicitation’s own procedures matter enormously in a CSO procurement.

1. What is a Commercial Solutions Opening?

A CSO is a general solicitation mechanism authorized for the acquisition of innovative commercial products or commercial services. The DoD’s current regulations implement the authority in DFARS Subpart 212.70. The regulations define “innovative” broadly to include technology, processes, or methods that are new when a proposal is submitted, as well as new applications of existing technology, processes, or methods.

CSOs are intended for innovative solutions that can fulfill requirements, close capability gaps, or provide potential technological advancements, or where proposals with varied technical approaches are anticipated. They are not simply another name for a conventional request for proposals. The regulatory framework expressly contemplates a different acquisition model, including evaluation through scientific, technological, or other subject-matter-expert peer review.

The statutory and regulatory framework also recognizes CSOs as a competitive procedure. DFARS 206.102-70 provides that competitive selection based on peer review resulting from a CSO qualifies as a competitive procedure, and DFARS 235.006-71 similarly recognizes CSO competitions as satisfying the requirement for full and open competition when the applicable requirements are met.

In practice, CSOs are frequently associated with DoD’s technology-development and SBIR programs. But contractors should not assume that every CSO will use the same process. A CSO may establish its own requirements concerning proposal content, evaluation factors, communications with offerors, technical reviews, demonstrations, awards, and subsequent ordering arrangements. That variability is one of the most important features of the CSO—and one of the most important sources of potential protest risk.

2. CSOs are flexible, but the agency must follow its stated process

Traditional procurements are governed by an extensive body of FAR provisions addressing such matters as discussions, competitive range determinations, proposal revisions, and source selection procedures. A CSO may instead establish a substantially different process. That distinction can be decisive in a protest.

In PavCon, LLC, GAO considered a protest involving an Air Force CSO and rejected the protester’s argument that the agency was required to conduct meaningful discussions. GAO explained that negotiated-procurement procedures were not required under the CSO and that, in any event, the agency had not conducted discussions. GAO also concluded that the agency reasonably evaluated the protester’s proposal and its decision not to fund the proposal was consistent with the solicitation.

The lesson is straightforward: Contractors should not automatically import the rules of a conventional negotiated procurement into a CSO. Instead, the first question in analyzing a potential CSO protest should be: What did this particular CSO require? The solicitation may provide the best—and sometimes the only—roadmap for determining whether the agency acted improperly.

3. What kinds of issues can be protested?

CSO protests can involve many of the same fundamental issues seen in conventional procurements, although the applicable standards may differ depending on the CSO’s structure.

• Solicitation terms

A contractor may challenge, via a pre-award protest, a CSO provision that it believes is inconsistent with applicable law or regulation, unduly restrictive of competition, ambiguous, or otherwise improper. For example, GAO recently considered a protest challenging requirements in an Air Force SBIR solicitation issued under a DoD CSO. In Compotech, Inc., the protester argued that the solicitation was unduly restrictive and that the agency improperly treated a requirement as mandatory. GAO rejected the protest, finding, among other things, that the protester was not an interested party to challenge requirements it could itself satisfy. GAO also concluded that the challenged requirement was reasonable in light of the agency’s needs.

The practical point is important: A contractor contemplating a solicitation protest should identify not merely why a requirement seems burdensome, but why it is legally defective and how the defect affects the contractor’s competitive position.

• Proposal submission requirements

CSOs often impose highly specific submission procedures—and missing one can be fatal. In The Ulysses Group, LLC, GAO denied a protest after the Air Force declined to consider a proposal that had not been submitted in accordance with the CSO’s instructions. The solicitation required electronic submission through the designated DoD portal and did not provide an alternative submission method. GAO concluded that the agency reasonably rejected the proposal because the contractor did not comply with the solicitation’s submission requirements.

For federal contractors, this is a useful warning: CSOs may be flexible at the acquisition-policy level while being strict at the proposal-submission level. A contractor should therefore treat requirements concerning electronic submission, page limits, required attachments, certifications, signatures, customer endorsements, technical volumes, and deadlines as substantive requirements unless the CSO expressly indicates otherwise.

• Evaluation and selection

A disappointed offeror may also challenge an agency’s evaluation if it believes the agency departed from the solicitation, applied unstated criteria, ignored relevant proposal information, or otherwise acted unreasonably. But the scope of review can be particularly important in a CSO involving technical or peer review.

In Kinemetrics, Inc. v. United States, the Court of Federal Claims considered a CSO acquisition involving an iterative proposal process and peer review. The court concluded that it had jurisdiction to review whether the agency followed the applicable CSO procedures, but it emphasized the substantial deference owed to the agency’s sophisticated technical evaluation. The court ultimately declined to overturn the peer-review results.

This suggests an important distinction for protesters: A strong CSO protest generally attacks a demonstrable procedural or legal error—not merely the agency’s technical judgment. Showing that an agency preferred another company’s technology is rarely enough. Showing that the agency ignored an express solicitation requirement, evaluated the proposal using criteria inconsistent with the CSO, or failed to follow its prescribed process will usually present a substantially stronger case.

• Scope and ordering issues

Some CSOs result in the establishment of a contract vehicle or basic ordering agreement from which subsequent orders are issued. Those downstream actions can create their own protest questions.

In ViiNetwork, Inc. d/b/a ViiMed, for example, GAO considered a protest involving an order issued under a basic ordering agreement awarded pursuant to a CSO. The protester argued that the order was outside the scope of the agreement and that the award created organizational conflicts of interest. GAO dismissed both theories because, according to GAO, the record demonstrated that the order was consistent with the CSO and agreement, and the OCI allegations lacked the “hard facts” necessary to establish an actual or potential conflict.

The takeaway is that government contractors should examine not only the CSO itself, but also the contractual architecture that follows from it. A CSO may establish a framework under which later awards or orders raise traditional scope, OCI, or competition questions.

4. The jurisdiction question: GAO or Court of Federal Claims?

CSO protests also raise an important jurisdictional consideration because CSOs can involve different types of government instruments.

GAO has considered numerous CSO protests, including challenges to proposal evaluations and award decisions. GAO’s bid-protest forum provides an established mechanism for challenging federal procurement actions.

The Court of Federal Claims also has considered CSO protests. Kinemetrics is particularly significant because the government initially questioned the court’s authority to review the CSO process, but ultimately conceded that the court could review whether the agency followed the applicable CSO procedures. The court exercised jurisdiction and reviewed the protest on the merits.

The jurisdictional analysis can become more complicated where a CSO involves an Other Transaction (“OT”) agreement rather than a conventional procurement contract. Contractors therefore should not assume that the label “CSO” alone determines whether GAO or COFC will have jurisdiction. The nature of the instrument, the statutory authority being used, and the relationship between the challenged action and a procurement can all matter.

5. Timing can make or break a CSO protest

CSO protesters also need to pay close attention to protest deadlines. A contractor that believes a CSO contains a defective requirement generally should not wait until after the agency announces an award to raise the objection. Depending on the forum and circumstances, solicitation challenges can become untimely if they are not raised before the applicable deadline.

The same principle applies to information discovered during the procurement. Contractors should promptly assess whether a communication from the agency, an amendment, an evaluation notice, or a non-selection decision provides the factual basis for a protest.

The safest approach is to consult with counsel and establish a protest calendar as soon as a CSO is released, and update it whenever the agency takes an action that could affect the company’s rights.

6. A successful protest is not necessarily about proving that the agency chose the “wrong” technology

One recurring theme in CSO decisions is judicial and administrative deference to agency technical judgments. That generally makes sense given the purpose of CSOs. Agencies use CSOs precisely because they are seeking innovative approaches and often rely on technical experts to determine which technologies have the greatest potential.

A contractor therefore should distinguish between “The agency should have selected our technology” and “The agency did not evaluate our technology under the process the CSO required.” The second theory is generally more suitable for protest litigation.

The same principle applies to peer review. A contractor may strongly disagree with technical reviewers, but disagreement with the reviewers’ subjective judgment does not necessarily establish a viable protest ground. The contractor generally needs to identify a legally cognizable error and, importantly, demonstrate competitive prejudice where required.

GAO illustrated the importance of prejudice in PredictiveIQ LLC, where it denied a protest challenging the Air Force’s CSO evaluation because the protester had not demonstrated a possibility of competitive prejudice.

7. Corrective action is another possibility

Not every viable protest results in a merits decision. An agency may take voluntary corrective action after a protest is filed. For example, in Rex Eiserer d/b/a RAEKOR—Costs, a 2024 CSO-related matter involving an Air Force SBIR procurement, the agency agreed to rescind a non-award notification and make a new award decision consistent with the CSO. GAO subsequently dismissed the protest as academic. For contractors, this means a protest can have practical value even when it does not produce a published decision sustaining the protest.

8. Five practical lessons for CSO participants

For government contractors pursuing a CSO opportunity, several practical lessons emerge from the existing decisions.

• First, read the CSO as its own acquisition regime. Do not assume that conventional FAR procurement procedures automatically apply.

• Second, document deviations from the stated process. If the agency appears to depart from the CSO, preserve the relevant solicitation language, amendments, communications, evaluation notices, and other contemporaneous evidence.

• Third, raise solicitation defects early. Waiting until after award can create serious timeliness problems.

• Fourth, focus protest arguments on identifiable legal or procedural errors. Disagreement with an agency’s technical judgment, standing alone, is often a weak basis for protest.

• Fifth, analyze the acquisition vehicle with counsel before selecting a protest forum. A CSO that results in a conventional procurement contract may present a different jurisdictional analysis from one involving an OT agreement or another nontraditional instrument.

9. The bottom line

CSOs give agencies and innovative contractors a valuable alternative to traditional acquisition methods. Their flexibility is one of their principal advantages—but it also means that contractors must pay unusually close attention to the individual CSO’s terms.

The emerging protest decisions provide a consistent lesson: CSOs are flexible, but not unreviewable. GAO and the Court of Federal Claims have demonstrated that they can review CSO-related challenges while also recognizing the substantial discretion agencies may have in evaluating innovative technologies.

For government contractors, the best protest strategy thus often begins well before an award is announced: Understand the CSO’s unique procedures, identify which requirements are mandatory, preserve evidence of potential deviations, consult with counsel early, and assess protest deadlines immediately when a problem arises. In a procurement designed to move quickly, waiting can be particularly costly.

If you have any questions about the foregoing or require assistance, please do not hesitate to contact Aron Beezley or Gabby Sprio.