Under the Small Business Act and the Office of Federal Procurement Policy Act, federal agencies must publish notices of proposed contract actions and modifications exceeding $25,000 on the System of Award Management (SAM) unless an exception listed in Federal Acquisition Regulation (FAR) 5.202 applies. In other words, the government must publish all notices, which the FAR requires to be published via the governmentwide point of entry (GPE), SAM.gov. The SAM.gov GPE is the single point where contractors and the public can electronically access government business opportunities. Importantly, once the government publishes the synopses of a procurement action on SAM.gov, contractors are presumed to have “constructive notice” of the action. Under the doctrine of constructive notice, a party is imputed knowledge of a matter, even if it does not have actual knowledge of the matter at issue. Thus, as long as the government publishes the notice of an action via SAM.gov, contractors or interested offerors may not cite a lack of actual notice as prejudicial because they are presumed to have constructive notice of the published procurement action.
Thus, when an offeror fails to find or view a notice or a solicitation posted by the contracting officer (CO) on SAM.gov, that offeror is precluded by the presumption of constructive notice from subsequently filing a protest alleging it was denied a fair opportunity to compete. In B-416623, a small business contractor alleged that it was denied an opportunity to compete for a Department of Agriculture solicitation for the acquisition of foreclosure legal services and related technical support. In its protest filed at the Government Accountability Office (GAO), the protestor contended that the government never provided it with a copy of the solicitation and it could not locate the solicitation on the FedBizOpps website, which was the GPE before SAM.gov. The protestor took the position that it diligently pursued the subject opportunity through the FedBizOpps website by signing up for automatic updates and performing regular searches for relevant key terms. However, despite its best efforts, the protestor was unable to find or view the solicitation and thus failed to respond in a timely manner. In applying the presumption, the GAO charged the contractor with constructive notice and rejected the protestor's argument that the government had denied it a fair opportunity to compete.
However, if the agency fails to publish a notice of procurement action that the FAR requires to be published on SAM.gov, it falls short of fulfilling its notice obligations, even if it disseminates the relevant information using another government-controlled electronic medium. In B-296993, two protestors challenged the Air Force’s award of sole-source contracts for operational support services in Iraq. The agency requested a dismissal as the protestors did not meet the GAO’s strict timeliness requirements, which require post-award protests to be filed within 10 days of contract award. Notably, the Air Force had posted the sole source award announcement solely on the Department of Defense’s (DOD) “defenselink.mil” website. The agency took the position that the protestors were required to file their protests at the GAO within 10 days of that announcement as they had constructive notice of the awards. However, the GAO denied the agency’s request for dismissal, noting that FedBizOpps was expressly designated by statute and regulation as the official public medium for providing notice of contracting actions by federal agencies. Thus, it was improper for the Air Force to publish the sole-source award announcements solely via “defenselink.mil,” as that website was not the designated GPE. As a result, the protests were deemed to have been timely filed, even though the protestors filed their protests at the GAO more than six months after the Air Force’s “defenselink.mil” announcement.
Contractors should be mindful that under the doctrine of constructive notice, they are presumed to have notice of procurement actions published on SAM.gov without regard to their actual knowledge of the actions. Therefore, contractors should regularly monitor contract actions of interest on SAM.gov to ensure they do not inadvertently miss them. Furthermore, this presumption of constructive notice applies to contractors regardless of their incumbency status. In other words, just because a contractor is an incumbent on a federal contract does not mean that the government owes it a greater notice obligation. This is true even if the government gave the contractor individual notice of the solicitation on previous occasions. Similarly, an agency does not owe an obligation to provide actual notice to all interested contractors, even if it provides one or more contractors actual notice of the solicitation. Finally, as described above, the presumption of constructive knowledge applies even if the contractor cannot find, view, or otherwise access a posting on SAM.gov. Since this presumption of notice cannot be rebutted, agencies are required to publish procurement actions on SAM.gov, given the potentially severe consequences for contractors, including missed opportunities for government business.
This Federal Procurement Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.
