In June 2007, the U.S. Court of Appeals for the Federal Circuit held that a party who fails to object to patent errors in a solicitation before the conclusion of the bidding process waives those objections. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007). Commonly, referred to as Blue & Gold, this decision warned contractors that challenges to the terms of a solicitation must be brought early or risk being lost forever. Blue & Gold was further solidified in 2015 in Bannum. Bannum held that “mere notice of dissatisfaction or objection is insufficient to preserve [a] defective-solicitation challenge.” Bannum, Inc. v. United States, 779 F.3d 1376 (Fed. Cir. 2015). In Bannum the protester’s failure to formally protest the solicitation resulted in a waiver of those challenges. Id. The court indicated that a formal challenge would have likely preserved the protester’s post-award challenges, Id., but this was not solidified until now.
On December 7, 2021 the Federal Circuit issued a decision in Harmonia Holdings Grp., LLC v. United States, No. 2020-1538, which clarified its position. In Harmonia, the protester filed a pre-award agency-level protest challenging the Agency’s position that allowed protesters to modify only certain aspects of their offers in response to Agency revisions to the solicitation. The Agency denied the protest and issued an award on April 25, 2019. Several weeks later the protester filed a bid protest with the U.S. Court of Federal Claims (COFC) challenging the award, in part, based on the same protest grounds it had raised in its pre-award agency-level protest. COFC concluded that “[n]othing in the record or in plaintiff’s briefing meaningfully explains the five-month delay in [the protester] filings its pre-award protest with this Court.” Harmonia Holdings Grp., LLC v. United States, 146 Fed. Cl. 799, 814 (2020), rev’d in part, vacated in part, No. 2020-1538, 2021 WL 5816288 (Fed. Cir. Dec. 7, 2021). COFC further concluded that while the protester “facially met the requirements under Blue & Gold, [it] nevertheless waived its right to bring those claims before this Court by failing to timely and diligently pursue its objections . . . .” Id.
The protester appealed and the COFC decision was ultimately reversed and remanded by the Federal Circuit. The Federal Circuit held that the protester’s timely and formal challenge to the solicitation, in the form of a pre-award agency protest, “removes this case from the ambit of Blue & Gold, and its progeny.” Harmonia Holdings Grp., LLC v. United States, No. 2020-1538. While the Court cautioned that its decision should not be “read as condoning delay” and that delaying bidders may face other adverse consequences it did not believe that the application of Blue & Gold should be one of those consequences. Id.
While Harmonia affirms the availability of protection to those who file formal pre-award challenges, Government contractors should continue to be diligent in pursuing pre-award relief, especially when the root of the problem is apparent from the face of the solicitation.