Like my alarm clock ringing on Monday mornings, GAO recently reminded protestors that protests based on pre-solicitation notices are just too early.
In F-Star Zaragosa Port, LLC; F-Star Socorro Holding, LLC, B-417414, et al. (Comp. Gen. Apr. 15, 2019), GAO dismissed protests based on pre-solicitation notices as premature.
Government agencies often publish a pre-solicitation notice as a precursor to an actual solicitation. This process helps the Government gauge contractor interest in the upcoming solicitation and determine whether there are qualified contractors capable of doing the work. It also helps agencies decide when a solicitation can be set-aside for a particular group.
Here, the General Services Administration’s Public Buildings Service issued a pre-solicitation notice seeking interest in providing leased warehouse space for a federal tenant agency. Seemingly confusing the notice for an actual solicitation, F-Star Zaragosa Port and F-Star Socorro Holding each filed a protest with GAO, both alleging the “specifications” in the notice, were “unduly restrictive of competition and that the agency set an unreasonably short ‘solicitation response time.’”
GAO promptly dismissed both protests. First, GAO noted that pre-solicitation notices are not equivalent to solicitations. In fact, “a pre-solicitation notice does not constitute a procurement action” that GAO has jurisdiction to review. Instead, GAO’s “jurisdiction is limited to considering protests involving solicitations already issued by federal agencies and awards made or proposed to be made under those solicitations.”
Next, GAO explained that “because the agency has not yet issued a solicitation, the protesters’ allegations merely anticipate improper agency action.” In essence, to permit a protest of a pre-solicitation notice would be to allow protests against agencies for actions they had not yet taken.
Ultimately, GAO dismissed the protest and clarified that the protester could only appropriately file after a formal solicitation was issued.
Though it may appear from this decision that pre-solicitation notices are useless from a protest standpoint, the pre-solicitation period can be a great time to try to lobby the agency to make changes in advance of the “real” solicitation. In this way, a protest may be unnecessary when the real solicitation comes out. In fact, in our experience, when glaring problems in a pre-solicitation are pointed out, such as obvious ambiguities, missing/wrong FAR clauses and the like, the agency will often fix them voluntarily. But if the agency’s response to the lobbying indicates that it won’t make a change, it can let you get a head start on a potential protest.
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