The Government Accountability Office’s (“GAO”) rules for timely protesting non-solicitations can be confusing. Offerors (or potential offerors) diligently monitoring SAM.gov need to focus on the substance of a non-solicitation posting and not simply the name or subject line an agency uses for the posting. Postings titled Notices of Intent, Sources Sought Notices (“SSN”), and Requests for Information (“RFI”) (collectively “pre-solicitation notices”) are common but the information therein can be different even for nearly identical titled postings. For example, one agency’s RFI might request that interested parties submit statements of interest or capabilities while another agency’s RFI has no such requirement. Companies need to carefully review these pre-solicitation notices to determine if they must protest the notice to be timely under GAO’s rules, or if they can wait and protest the terms of a subsequently issued solicitation.

The general rule is that GAO only has protest jurisdiction over actual solicitations—not pre-solicitation notices—since the pre-solicitation notice does not set forth the actual final requirements of an agency, but only a draft of the eventual requirements. Protests of such pre-solicitation documents that do not reflect the final actual requirements of the agency will be dismissed as premature, as they only anticipate improper agency action. See F-Star Zaragosa Port, LLC, B-417414.1, B-417414.2, Apr. 15, 2019, 2019 U.S. Comp. Gen. LEXIS 110 at *1; see also AeroSage, LLC, B-415893, B-415894, Apr. 17, 2018, 2018 Comp. Gen. ¶ 142 at 4-5 (explaining that “a sources sought notice is a request for information by the agency and not a solicitation that anticipates the award of a contract”); Onix Networking Corp., B-411841, Nov. 9, 2015, 2015 Comp. Gen. ¶ 330 at 5 (concluding that a request for information provided to prospective vendors is not a “solicitation that embodies [the agency’s] actual requirements”); Sigmatech, Inc., B-296401, Aug. 10, 2005, 2005 Comp. Gen. ¶ 156 at 4 (finding that a “sources sought notice is not a solicitation”).

However, there is a limited exception to this general rule in the context of intended sole source procurements. Where an agency publishes to the government-wide point of entry (i.e., SAM) a notice of its intent to enter into a sole source contract and does not invite or request responses from other potential sources, GAO has found that a prospective offeror is required to file a protest within 10 days of that announcement in order to be timely. See Tyonek Eng’g & Agile Mfg., LLC, B-419775 et al., Aug. 2, 2021, 2021 Comp. Gen. ¶ 263 at 8; AGMA Sec. Serv., Inc., B-418647, June 24, 2020, 2020 Comp. Gen. ¶ 223 at 3.

Takeaways: GAO’s Rules for Timely Protesting Non-Solicitation Notices

1. Protests of the terms of a non-solicitation notice—whether SSNs or RFIs—are premature if the non-solicitation notice does not represent the agency’s final requirements. This is the case where the non-solicitation notice states that the agency intends to post a request for proposal (“RFP”) at a future date, or where the notice contemplates at least some use of competitive procedures (i.e., full and open competition or a competition that is wholly or partially set aside for a particular group of offerors), and does not request submissions from potential offerors.
    
   • When companies are unsure about an agency non-solicitation notice, they often contact the agency contracting officer or specialist to ask if the notice starts the clock for filing a timely GAO protest. Be careful. A company cannot rely on an agency’s guidance in terms of filing a timely protest. GAO’s rules trump agency guidance.
      
2. If the non-solicitation notice announces an intent to a make a sole source award, and requests or permits offerors to submit responses or statements of capabilities, offerors can wait to file a protest until such time that the agency definitively confirms its intent to make a sole source award. This usually occurs when the agency announces that it has made the sole source award. The rationale underpinning this rule is that after reviewing responses, the agency could change its mind and decide that it can use competitive procedures to meet its needs.
    
3. However, if the non-solicitation notice announces an intent to make a sole source award, and does not invite responses, protests challenging the use of non-competitive, sole source procedures must be filed within 10 days of the publication of the pre-solicitation notice.
    
4. Similarly, if the non-solicitation notice announces an intent to make a sole source award, and requests or permits interested third parties to submit responses or statements of their capabilities, but states that the responses or statements will be considered only for future procurements, then offerors should err on the side of caution and treat the non-solicitation notice as if it is not requesting or permitting responses—i.e., offerors should protest the sole source nature of the notice within 10 days of its publication on SAM. Since the agency is not considering responses for purposes of the present procurement, offerors are on notice that there is no chance responses will persuade the agency to abandon its intent to make a sole source award.
    
5. As a general rule, if you are unclear whether to file a protest, the best practice is to file. There is no penalty for filing a premature protest. An untimely protest, however, will not be heard by GAO.