COFC Provides Cautionary Reminder on Timeliness for Protests of Solicitation Defects
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.
In replying to the agency's motion, the protester argued that the solicitation could not be treated as a set-aside procurement because the solicitation omitted NAICS Code 811310. Specifically, the protester argued that although the SAM.gov entry for the solicitation indicated that, “This is a 100% Small Business Set Aside procurement" under NAICS Code 811310, the solicitation was silent on the issue and "did not incorporate the pre-solicitation information [i.e., the NAICS Code] by reference." As a result, the solicitation could not have been viewed as a small business set-aside procurement.
The agency argued, on the other hand, that the protester's argument was waived under Blue & Gold (and its progeny). [2] Specifically, the agency contended that, notwithstanding the NAICS Code omission, the solicitation incorporated by reference FAR 52.219-6 – “Notice of Total Small Business Set-Aside.” Thus, because the solicitation contained the FAR small business set-aside clause, the protester should have challenged the discrepancy prior to the proposal deadline. Having failed to do so, the protester waived the argument.
Ultimately, the court determined that the protester waived its protest. Specifically, the court concluded that despite the protester's argument on the omission of NAICS Code 811310 from the solicitation, that argument "fail[ed] to acknowledge a glaring discrepancy within the solicitation" because FAR 52.219-6, “Notice of Total Small Business Set-Aside” was incorporated by reference into the solicitation. As a result, the protester's failure to object to the omitted NAICS Code prior to the proposal deadline, without “good cause to excuse its delay,” precluded its protest.
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" [3]
a “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.” [4]
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.
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[1] Prior to filing its protest at COFC, the protester lodged its protest at the Government Accountability Office ("GAO"). There, GAO ultimately dismissed the protest after finding that the solicitation was patently ambiguous and the protester failed to bring that challenge prior to the proposal deadline. See M.R. Pittman Group, LLC, B-419569, May 5, 2021, 2021 CPD ¶ ___.
[2] Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007).
[3] Id. at 1313.
[4] Inserso Corp. v. United States, 961 F.3d 1343, 1349 (Fed. Cir. 2020) (citations omitted).
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