The U.S. Court of Appeals for the Federal Circuit (CAFC) issued Harmonia Holdings Group, LLC v. U.S., No. 2020-1538 (Fed. Cir. Dec. 7, 2021), a long-awaited decision that reverses the U.S. Court of Federal Claims (COFC) holding that filing a formal, agency-level protest before the award can potentially preserve a protestor’s post-award challenge to a solicitation without being untimely under the Blue & Gold waiver rule.
On November 12, 2018, Harmonia Holdings Group, LLC (Harmonia) filed a pre-award protest with the agency, asserting that it improperly denied offerors the opportunity to revise certain portions of their proposals in response to changes implemented through Amendments 9 and 10. The agency denied Harmonia’s protest on December 6, 2018. Nearly five months after the agency denied Harmonia’s protest, the agency issued its award decision on April 23, 2019. On May 7, 2019, Harmonia filed a bid protest at the COFC challenging the agency’s evaluation of proposals and again raised its pre-award protest claims that the agency “arbitrarily and irrationally refused to allow proposal amendments following Amendments 9 and 10” to the solicitation. Harmonia Holdings Grp., LLC v. United States, 146 Fed. Cl. 799 (2020).
The COFC agreed with the agency and denied Harmonia’s protest. The COFC reasoned 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 afterward in a § 1491(b) action in the Court of Federal Claims.” Id. at 812 (citing Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007)). The COFC explained that the waiver rule prevents contractors from waiting to bring a challenge after the award in an attempt to restart the bidding process and “avoids costly after-the-fact litigation.” Id. at 813 (citing Blue & Gold, at 1314). In this case, the COFC determined that Harmonia waived its pre-award protest claims by “failing to timely and diligently pursue its objections to Amendments 9 and 10” after the agency denied its protest and “[n]othing in the record or in plaintiff’s briefing meaningfully explains the five-month delay in Harmonia filing its pre-award protest with this Court.” Id. at 814.
Harmonia appealed to the CAFC, arguing that the COFC improperly extended the law of Blue & Gold by finding a waiver even though Harmonia had formally preserved its challenge by timely submitting its agency-level pre-award bid protest. Harmonia Holdings Group, LLC v. U.S., No. 2020-1538 (Fed. Cir. Dec. 7, 2021). The CAFC held that the COFC erred in determining that Harmonia waived its right to re-assert its pre-award protest under Blue & Gold. The CAFC explained that “a formal, agency-level protest before the award would likely preserve a protestor’s post-award challenge to a solicitation… as might a pre-award protest filed with the GAO.” Id. at 767 (citing Bannum, Inc. v. United States, 779 F.3d 1376, 1380 (Fed. Cir. 2015)). The CAFC emphasized 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.” Id. Thus, the Court determined that Harmonia’s timely agency-level challenge removed the case from the reach of the Blue & Gold waiver rule.
This case provides important insight and reminders for protesters. First, protesting to the agency can preserve pre-award protest grounds after award without being untimely under the Blue & Gold waiver rule. Second, protesters must be careful to diligently pursue pre-award challenges to ensure that those rights are preserved.
