The Word That Kept CSOs Out of Your Recompetes Is Gone

On Friday afternoon the Defense Health Agency posted a solicitation for five years of end user services support. It does not read like one.

There is no RFP number in the ordinary sense, no performance work statement, and nothing on the notice that names an incumbent or a predecessor contract. What there is: a whitepaper, due to DoDSAFE by 5:00 PM EDT on September 14, seventeen days after the notice went up.

The instrument is a commercial solutions opening. The reason it can reach a routine services portfolio at all is one word that left the U.S. Code in December.

"When does a recompete stop being a recompete?"

The Word Was Load-Bearing

Section 1823 of the FY2026 NDAA, Public Law 119-60, signed December 18, 2025, rewrote 10 USC 3458. The operative sentence now lets DoD acquire "commercial products, commercial services, or nondevelopmental items" through a general solicitation and a peer, technical, or operational review.

Read what came out. The old authority reached innovative commercial products and services, and the statute carried its own definition of innovative.

Section 1823 struck the definition and struck the qualifier.

It also added a subsection allowing a follow-on production contract from a CSO award, including on a sole-source basis, and dropped the Under Secretary approval requirement above $100 million. The section heading in the U.S. Code still says "innovative," which is the sort of thing that happens when a caption survives an amendment to the text underneath it.

Now, the DFARS.

Subpart 212.70 is the rule that implements 3458, and at the most recent issue of title 48, dated August 27, 2026, it has not moved. 212.7000 still scopes the subpart to "innovative commercial products or commercial services." 212.7001 still defines innovative. 212.7002(a) still says contracting officers "may only use a CSO" to obtain innovative solutions, close capability gaps, and where varying technical approaches can be reasonably anticipated.

That is 252 days between the statute changing and the regulation not changing (chart above). The source line on the subpart is still the original August 2023 rule.

What DHA Actually Opened

On August 7 the Defense Health Agency posted a special notice, solicitation number HT003826SC005, titled DHA Enterprise-Wide Commercial Solutions Opening. It runs until August 6, 2027, a 364-day standing door.

The notice describes itself as establishing "the general competitive procedures" for awarding FAR-based contracts under 10 USC 3201 and 3458, and other transaction agreements under 4021, 4022 and 4023. Its scope sentence cites 3458 "as amended by Section 1823 of the National Defense Authorization Act for Fiscal Year 2026," and reaches "commercial products, commercial services, and non-developmental items."

The word innovative appears nowhere in it. DHA is quoting the statute, not the subpart.

Under that door, the agency issues Areas of Interest, and the notice reserves the right to "post new, extend, or revise AoIs at any time."