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.
Continue Reading Escaping Blue & Gold: Court holds filing a pre-award agency-level protest preserved protester’s arguments

The Court of Federal Claims has issued an important decision establishing that offerors will be held accountable for making inaccurate representations in proposals. According to the Court’s decision in GTA Containers, Inc. v. United States, No. 11-606C (Fed. Cl. Feb. 22, 2012) [pdf], proof that an offeror made a misrepresentation in its proposal is sufficient to sustain a bait-and-switch protest if the agency relied on the misrepresentation.
Continue Reading Clarifying the standard of proof for bait-and-switch protests at the Court of Federal Claims