An estimated 126,000 minors who are in or have been released from federal custody are still waiting on a guaranteed lawyer, and a new ruling from the government's top contract watchdog means that wait will continue. The Government Accountability Office has denied a protest from the Acacia Center for Justice challenging the terms of a re-competed contract for legal services to unaccompanied migrant children, in a decision made public this week after being decided September 18. The ruling lets the Department of Health and Human Services' Office of Refugee Resettlement proceed with the solicitation exactly as written, but it does nothing to close the representation gap that opened when Acacia's own incumbent contract expired July 31 without a replacement in place.
Acacia was the incumbent provider of ORR's legal-services contract before HHS moved to re-compete the work under a new solicitation. The nonprofit's protest, decided as Matter of Acacia Center for Justice, B-424162.4, challenged two parts of that solicitation as unduly restrictive: invoice-timing rules that pay contractors only when representation, or a defined phase of it, is complete, even though immigration cases involving children routinely stretch across multiple years; and a clause defining the scope of what counts as covered "representation." GAO rejected both arguments and denied the protest outright.
Why GAO Let ORR's Invoice-Timing Rules Stand
The decision leaned on a standard GAO applies whenever a protester challenges how an agency has defined its own needs rather than how it evaluated competing bids. An agency's specifications get the benefit of the doubt unless the challenger can prove they are effectively unworkable. "Our office will not sustain a protest challenging an agency's determination of its needs unless the protester presents clear and convincing evidence that the specifications are in fact impossible to meet or unduly restrict competition," GAO said, according to Law360's report on the decision. Acacia's argument that payment tied to case completion or defined milestones was unworkable for representation that can span years did not meet that threshold, according to the ruling, and GAO found ORR was within its rights to structure invoicing around deliverable phases of representation rather than time elapsed.
How GAO Read the Representation-Scope Clause Against Acacia
Acacia's stronger argument centered on a solicitation clause spelling out what work qualifies as "representation" under the contract, which the nonprofit read as requiring a qualified legal representative present at every immigration proceeding for the roughly 126,000 minors in or released from ORR custody. GAO disagreed with that reading, finding that Acacia had read the solicitation's general requirements section in isolation, without accounting for the narrower obligations attached to specific contract tasks. "As such, we find the protester's interpretation of the solicitation to be unreasonable, when read as a whole and in a manner that gives effect to all of its provisions," GAO said, according to Law360's September 24 report on the ruling.
The $150 Million Award HHS Walked Back Before This Fight Started
The protest arrived after HHS had already stumbled once on this same procurement. In August, the department announced plans for a single-source award worth up to $150 million to Burke Law Group PLLC, a small Houston firm with no immigration-law practice, to take over legal-services work for unaccompanied children. Marcella Burke, the firm's founder and chairman, pulled her firm from consideration once the notice became public. "I was blindsided by the Federal Register notice," Burke said. "It seemed premature, and it was confusing." HHS withdrew the planned award, and the agency instead moved to the competitive re-compete solicitation that Acacia later protested and lost. The reversal left the legal-services program without a locked-in successor for weeks longer than it might otherwise have gone, compounding the gap that opened when Acacia's own contract lapsed at the end of July.
That gap has real consequences on the ground. Acacia's incumbent contract covered legal representation for unaccompanied children moving through immigration court while in or recently released from ORR custody. With the incumbent contract expired and the re-compete only now cleared of its protest, the roughly 126,000 minors the program is designed to serve have gone without a guaranteed source of counsel for nearly two months. The dispute over solicitation terms is also unfolding alongside separate federal court litigation over funding continuity for the broader legal-services program, meaning the GAO ruling settles the contract-terms fight but not the underlying question of when representation resumes at scale.
What It Means for Contractors
For firms bidding on HHS and other agency legal-services and social-services contracts, the decision is a reminder that GAO will defer heavily to how an agency structures payment milestones and scope-of-work definitions, even when a protester can show those terms create real operational strain over a multi-year engagement. Contractors who intend to challenge invoice-timing or scope clauses need more than an argument that the terms are inconvenient or costly to administer; GAO's "clear and convincing evidence" standard requires showing the terms are functionally impossible to meet or that they unreasonably shut out competition, a bar few protests clear. The case also underscores the risk agencies create for themselves when they attempt sole-source shortcuts on politically sensitive procurements: HHS's abandoned plan to hand Burke Law Group up to $150 million without a competed process, only to reverse course under public scrutiny, added delay to a program that then still had to survive a full bid protest before the competitive award terms were confirmed. Firms watching the ORR re-compete should expect the solicitation's payment and scope terms to remain unchanged following this decision, and should plan proposals around invoicing tied to representation milestones rather than elapsed time.
