DHS Update – Limited Source Award Draws Unwelcome Spotlight But Also Provides Valuable Lessons To Contractors About Protest Timing
In February 2025, the Department of Homeland Security (“DHS”) began market research related to its upcoming communications campaign to publicize information regarding immigration compliance. To prepare, DHS reviewed industry publications, analyzed recent DHS initiatives, and evaluated vendors that were skilled in hyper-targeted media and advertising services, ultimately identifying “four companies that specialize in domestic and international advertising campaign development, media buying, and media production.”
That same month, DHS determined to use “other than full and open competition” procedures to justify its limited source procurement, which resulted in the award of a $200M indefinite delivery, indefinite quantity (“IDIQ”) contract to Safe America Media, LLC. The SAM.gov notice noted DHS had invoked the “unusual and compelling urgency” exception under Federal Acquisition Regulation (“FAR”) 6.302-2, citing the “national emergency at the Southern border” as the basis for limiting competition. The linked Justification and Approval (“J&A”) further explained DHS’s rationale, linking the declared national emergency to the need to deter illegal entry into the United States and to rapidly deploy communications. Further, the notice explained that an additional delay in delivering these communications could contribute to the spread of misinformation, thereby affecting migration patterns and potentially increasing pressures at the border and raising the risk of humanitarian challenges.
After the facts of the DHS communications campaign came to light and calls for an investigation began in late 2025, Congress decided to investigate. Beginning in March 2026, Congress held several hearings examining DHS’s communications campaign procurement and related awards. Lawmakers requested information regarding the basis for awarding contracts without full and open competition, the selection of contractors, the justification for the procurement approach, and the use of appropriated funds.
Pre-Award Notification and Impact on Protest Timing
As described in our prior article, when an agency elects to use “other than full and open competition,” the FAR, with few exceptions, generally requires advance public notice before award. Notably, DHS did not publish an announcement for this procurement in SAM.gov or elsewhere even though it appears none of the FAR 5.202 exceptions to notice publication would have applied. The FAR 5.202(a)(2) exception to notice requirements under the unusual and compelling urgency exemption invoked by DHS permits an agency to bypass notice if (1) the conditions described in FAR 6.302-2 are met and (2) the government would be seriously injured if typical notice procedures are followed.
Without a doubt, a pre-award notification would have materially altered the protest landscape – if any had emerged. That is because when an agency publishes information about a limited source procurement pre-award, contractors are expected to challenge the decision or risk waiving their rights. This is because “a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection subsequently in a bid protest action in the Court of Federal Claims.” Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007).
Here, without additional information, eligible contractors could not have known of potential protest grounds until after DHS announced that it had conducted the procurement. DHS’s lack of transparency limited the information available to potential offerors before award. As a result, the absence of a pre-award notice rendered the basis for a potential protest unknown or not reasonably knowable until after award – effectively shifting the timeliness window to begin post-award.
Potential Challenges to the J&A
Post-award protests of other than full and open procurements often focus on the adequacy of the agency’s justification. As described above, DHS relied on the “unusual and compelling” urgency exception to limit competition to a small pool of contractors identified through market research. However, a J&A must do more than invoke urgency in conclusory terms – there must be an actual demonstration that (1) the agency’s needs were truly urgent, (2) the urgency was not of the agency’s making, and (3) the agency had solicited as many sources as practicable under the circumstances.
In analogous cases, protesters have succeeded with challenging the agency on these grounds. In AGMA Sec. Serv. v. United States, 152 Fed. 706, 729 (2021), the Court of Federal Claims stated that “the agency could have and should have prepared for a possible negative result [in a prior protest] and [would have] been in a better position to move forward appropriately” without needing to rely on a sole-source award. Similarly, in Reilly’s Wholesale Produce v. United States, 73 Fed. Cl. 705, 715 (2006), the Court found that the requirements under FAR 6.302-2(c)(2) were not met where “it appears that, from the start, the result of the interim procurement [that used the exception] was preordained – [the prior awardee] would be selected and other potentially viable competitors would be excluded.” These decisions underscore that review of an agency’s use of noncompetitive procedures turns on whether the asserted urgency is supported by the record, rather than merely accepting the agency’s justification at face value.
Bottom Line: DHS’s procurement underscores that while agencies may rely on urgency to limit competition, an agency’s actions in invoking that authority are not immune from scrutiny. For contractors, the key is identifying when protest grounds could have been known. Where pre-award notice is absent, the timeliness analysis shifts, and viable challenges may arise only after award. In that posture, protests will hinge on careful scrutiny of the J&A. Contractors should act promptly once the agency’s rationale becomes available and focus on whether the asserted urgency, scope, and limitation on competition are adequately supported by the record. In effect, the absence of pre-award notice can delay when protest grounds are reasonably knowable, thereby shifting the timeliness trigger to post-award.