“A recent U.S. Court of Federal Claims (“COFC”) bid protest decision provides a cautionary reminder on protest timeliness: challenges to patent solicitation defects must be lodged prior to the proposal deadline to avoid dismissal under COFC’s timeliness rules.”
“The protest of M.R. Pittman Group, LLC v. United States, No. 21-1397C (June 24, 2021) involved a challenge to the Army Corps of Engineers’ (“agency” or “Army”) award of a contract for the repair of pump units at Wilkinson Canal Pump Station in Louisiana and decision that the protester was “ineligible for award” because it was not a small business under NAICS Code 811310. [1] Prior to reaching the merits, however, the agency sought to dismiss the protest on timeliness grounds because the protester did not challenge the terms of the solicitation prior to the proposal deadline…”
“Notably, in dismissing the protest, the court articulated a couple points on the Blue & Gold doctrine that are worth noting:
- 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
- defect in a solicitation is patent” under the Blue & Gold waiver rule “if it is an obvious omission, inconsistency, or discrepancy of significance,” or “if it could have been discovered by reasonable and customary care.”
Takeaway
“This protest decision provides a timely reminder on the contours of the Blue & Gold waiver rule regarding challenges to solicitation improprieties. Moreover, it also serves to remind contractors that FAR clauses incorporated by reference are operative (i.e., contractors should be aware of what they mean and how they might impact your proposal). So, where a contractor believes that a solicitation is patently ambiguous or inconsistent, the time to file a protest is before the proposal deadline.” Read the full article here.
Source: COFC Provides Cautionary Reminder on Timeliness for Protests of Solicitation Defects – By Joshua Duvall, July 8, 2021. LinkedIn.
