A highly anticipated decision recently issued by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) represents the latest development in the Blue & Gold[1] line of precedent regarding the timeliness of bid protest filings before the U.S. Court of Federal Claims (COFC). In Harmonia Holdings Group, LLC v. United States (Harmonia), issued on December 7, 2021, the Federal Circuit held that a timely filed, pre-award, agency-level protest preserves an offeror’s ability to later file the same protest post-award with the COFC.[2] However, the Federal Circuit warned that delays in filing a protest may result in “adverse consequences,” implying that the COFC may negatively consider such delays in determining whether “injunctive relief is appropriate.” Here, we summarize this important decision, its impact on future bid protests, and offer guidance to government contractors.
- The Protest
On July 12, 2018, the U.S. Department of Homeland Security, Customs and Border Protection (CBP) issued a solicitation for “application development and operation and maintenance support services.” CBP amended the solicitation ten times. On October 26, 2018, CBP issued Amendment 9 to the solicitation, and on November 1, 2018, CBP issued Amendment 10 to the solicitation. Offerors’ proposal revisions in response to Amendments 9 and 10 were due on November 13, 2018.
On November 12, 2018, Harmonia Holdings Group, LLC (Harmonia) submitted a pre-award, agency-level protest to CBP. In particular, “Harmonia challenged CBP’s limitation of revisions to Factor 2, Sub-factor 1, and Factor 5, arguing that offerors should be able to update their entire proposals in response to Amendments 9 and 10.” Harmonia also challenged “Amendment 10’s addition of FAR 52.219-14 Limitations on Subcontracting.” The next day, November 13, 2018, Harmonia submitted to CBP a proposal with revisions for Factor 2, Sub-factor 1, and Factor 5.
On December 6, 2018, CBP denied Harmonia’s protest. Then, on April 25, 2019, CBP informed Harmonia that “its proposal was unsuccessful, that a proposal revision would not be considered, and that [another offeror] had won the contract because it had submitted the proposal representing the best value to the government.” On May 7, 2019, Harmonia filed a bid protest with the COFC, challenging, in part, “CBP’s December 6, 2018 denial of Harmonia’s November 12, 2018 pre-award protest.” On January 16, 2020, the COFC denied Harmonia’s protest. In addressing “Harmonia’s bid protest insofar as it involved the same grounds raised in its pre-award protest to the CBP,” the COFC “determined that Harmonia’s bid protest on these grounds failed for untimeliness.” Harmonia appealed.
- The Appeal
On appeal, Harmonia contended that the COFC “improperly extended the law of Blue & Gold by finding waiver even though Harmonia had formally preserved its challenge by timely submitting its pre-award bid protest to CBP.” The government argued “that Blue & Gold waiver should apply, even though Harmonia timely submitted a formal pre-award protest to CBP, because of Harmonia’s delay in filing an action following CBP’s denial of its pre-award protest.”
The Federal Circuit began its analysis by noting that 28 U.S.C. § 2501 “establishes a six-year period . . . during which a party may file suit in the Court of Federal Claims.” The Federal Circuit explained that in Blue & Gold, however, it “restricted the time for bringing a bid protest in the Court of Federal Claims to a shorter period,” specifically holding that:
“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.”
The purpose of the Blue & Gold waiver rule was to “prevent[] a bidder who is aware of a solicitation defect from waiting to bring its challenge after the award in an attempt to restart the bidding process, ‘perhaps with increased knowledge of its competitors.’” But in Harmonia, the Federal Circuit explained that, in subsequent decisions, it “expanded the reasoning of Blue & Gold to encompass waiver based on delay that occurs after the close of bidding” and that Federal Circuit “cases concluding that Blue & Gold waiver applies generally involve a failure to timely object to a known, patent defect in the solicitation.”
Nevertheless, the Federal Circuit was “not persuaded that [its] precedent supports applying the Blue & Gold waiver rule to” the facts of Harmonia’s case. The Federal Circuit noted that “[i]n Bannum, Inc. v. United States, [it] explained that ‘a formal, agency-level protest before the award would likely preserve a protestor’s post-award challenge to a solicitation’” and, “therefore recognized that the Blue & Gold waiver rule is predicated not only on the notion of avoiding delay that could benefit the delaying party, but also on the notion of preserving challenges and providing notice to interested parties.” Accordingly, the Federal Circuit held that “Harmonia’s undisputedly timely, formal challenge of the solicitation before CBP removes this case from the ambit of Blue & Gold and its progeny.” While the Federal Circuit ultimately held that the case should not be dismissed as untimely, it warned that its “opinion should not be read as condoning delay in filing actions in the Court of Federal Claims.” The Federal Circuit explained that, “[u]nder certain circumstances, delaying bidders may face adverse consequences” and suggested that, “[o]n remand, the Court of Federal Claims might decide under the circumstances of this case that injunctive relief is ”
- The Decision
In sum, the Federal Circuit held that the Blue & Gold waiver rule does not apply when a protester timely files a pre-award, agency-level protest and retains its offeror status by submitting a timely proposal. However, the COFC may consider such delays in fashioning appropriate relief. In other words, while the COFC will no longer dismiss pre-award protests as untimely when the protester timely filed a pre-award, agency-level protest, it may find that—due to delay—the protester is not entitled to an injunction or meaningful relief even if the protest is meritorious.
- What Actions Can Contractors Take?
Contractors should diligently pursue pre-award protests and file with the COFC as soon as practicable after the denial of their agency-level or GAO protest. Contractors who do not diligently pursue such protests may achieve only a hollow victory.
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PilieroMazza attorneys are well-versed in all matters relating to the bid protest process. If you have questions concerning how the Harmonia decision could impact your protest, please contact Katie Burrows or Eric Valle, the authors of this blog, or a member of the Firm’s Bid Protests or Government Contracts practice groups.
[1] Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007).
[2] Harmonia Holdings Grp., LLC v. United States, No. 2020-1538, 2021 WL 5816288 (Fed. Cir. Dec. 7, 2021).
