As relevant to negotiated procurements, the Federal Acquisition Regulation (FAR) 15.201(f) requires agencies to make public, as soon as practicable, all information necessary for the preparation of proposals that is disclosed to one or more potential offerors. Such specific proposal preparation information disclosed to a prospective offeror must be made available to the public no later than the next general release of information. Thus, federal agencies may not provide a competitive advantage to certain offerors by furnishing them information not disclosed to all offerors. Relatedly, if a contractor can access non-public information that gives it a competitive advantage, it may be precluded from competing due to unequal access to information. The FAR requires that, when a presolicitation conference is conducted, conference materials be made available to all offerors upon request. At the same time, if a procuring agency provides all offerors with the necessary information to intelligently compete, it typically fulfills its obligation to furnish information equally. In this regard, the agency is not necessarily at fault when it fails to furnish general materials it promised to provide via a pre-designated method, unless the materials cause competitive prejudice or contain specific information essential for the preparation of proposals that is not available to all prospective offerors in the solicitation materials.
In B-424179, issued on February 25, 2026, the Government Accountability Office (GAO) denied a protest alleging unequal treatment due to the agency’s failure to publish the recording of a preproposal conference when it was determined that the agency had already published all information essential for the preparation of proposals. The U.S. Army Contracting Command, Redstone Arsenal in Alabama, issued the underlying solicitation under its Commercial Solutions Opening (CSO) authority for annual rotary-wing flight training for up to 1500 pilots. On December 1, 2025, the Army issued the final solicitation on SAM.gov containing all essential information, including the overall purpose of the program, acquisition approach, award guidelines, eligibility requirements, and proposal preparation and formatting instructions. The December 1 SAM.gov posting also notified offerors that the agency would host an in-person pre-solution conference to discuss, among other things, the four distinct phases of submissions and evaluations. Prospective offerors were informed that the conference would be recorded and the recording, transcripts, and slides would be posted on SAM.gov following government approval. The contract specialist later encountered technical issues posting the conference recording on SAM.gov and instead published it on the Defense Visual Information Distribution Service (DVIDS). Ultimately, none of the materials from the pre-solution conference were posted on SAM.gov.
The protester submitted a timely proposal but was notified that it was not selected under phase one of the evaluation and was eliminated from further competition. In the GAO protest that followed, the protester argued that the Army undermined competition by failing to post the preproposal conference recording and associated materials to SAM.gov despite its promise to do so. Thus, the protester took the position that the Army improperly treated offerors unequally and competitively disadvantaged offerors, such as the protester, who did not attend the preproposal conference. Meanwhile, the Army argued that the protester suffered no competitive disadvantage from its failure to post the materials. The GAO agreed with the agency and began its analysis by noting the agency’s disclosure obligations under FAR 15.201(f) and the standard to review the reasonableness of relevant agency actions. Since the protester was afforded the opportunity to attend the in-person conference, this case was distinguished from past GAO precedent involving the disclosure of information to one offeror and not others. In addition, the protester could not point to any essential information in the conference materials that was not available in the solicitation. Similarly, the protester failed to highlight any information in the conference materials that would have been competitively advantageous. Under the circumstances, the GAO denied the protest after determining that the solicitation, together with its amendments and attachments, was complete and contained all essential information required for offerors to intelligently compete.
The FAR mandates equal treatment of offerors in negotiated procurements, which includes the procuring agency’s obligation to furnish all information essential for the preparation of proposals to all offerors. All specific information about a procurement disclosed to one or more potential offerors must be made publicly available no later than the next general release of information. If a contractor can access non-public information that provides a competitive advantage, it may be excluded from competition without proof of actual prejudice, since competitive harm is presumed to protect the integrity of the procurement system. Ultimately, when a procuring agency fails to disclose certain information to all prospective offerors, the relevant inquiry is whether agency actions caused competitive prejudice or if the omitted materials contained specific information essential for proposal preparation that is not otherwise available in the solicitation documents. In the protest described above, the protester could not point to any specific information in the conference materials that would suggest that the Army ran afoul of this requirement. Nevertheless, even in the face of technical difficulties with posting the conference recording on SAM.gov, the procuring agency should have avoided this protest altogether by posting the other conference materials on SAM.gov and including the DVIDS link to the recording so the protester could gain timely access to the information.
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.