The Federal Circuit’s recent opinion in Comint Systems Corporation & EyeIT.com, Inc., Joint Venture v. United States clarifies the broad scope of the equitable waiver rule applicable to solicitation challenges in bid protests brought before the Court of Federal Claims.1 The Federal Circuit’s decision reaffirms the principle established in the Federal Circuit’s decision in Blue & Gold Fleet, L.P. v. United States2 that a contractor who sits on his right to challenge a solicitation risks waiver of the right to bring such a challenge in a subsequent bid protest action before the Court of Federal Claims. The Federal Circuit in Comint sends a strong message that a challenge to a clear solicitation error or ambiguity must be asserted prior to contract award and failure to do so waives any right to assert such a challenge in a post-award protest.3 In addition, the Federal Circuit’s opinion indicates that timeliness under Blue & Gold is a critical threshold issue that may dispose of a protest before the Court of Federal Claims reaches other questions of standing or the merits.
In Blue & Gold, the Federal Circuit held 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.”4 The court reasoned:
In the absence of a waiver rule, a contractor with knowledge of a solicitation defect could choose to stay silent …. If its first proposal loses to another bidder, the contractor could then come forward with the defect to restart the bidding process, perhaps with increased knowledge of its competitors. A waiver rule thus prevents contractors from taking advantage of the government and other bidders, and avoids costly after-the-fact litigation.5
In contrast to the situation in Blue & Gold, in which the alleged solicitation defect was known to the protester prior to the close of bidding, the alleged solicitation defect in Comint arose after the close of bidding, but prior to contract award. The Federal Circuit in Comint held that “the reasoning of Blue & Gold applies to all situations in which the protesting party had the opportunity to challenge a solicitation before the award and failed to do so.”6
Comint involved a solicitation for a multiple award, indefinite delivery/indefinite quantity contract for information technology services for the United States Department of Defense. The solicitation instructed bidders to submit bids for the basic contract and the first two task orders. The Agency stated that it would first evaluate offerors for award of the basic contract and then would evaluate successful offerors for award of the first two task orders. The solicitation informed bidders that the Agency would award the first two task orders concurrent with award of the basic contract. Bidding closed on September 13, 2010.
After the close of bidding, the Agency issued an amendment to the solicitation on January 19, 2011 informing offerors that the Agency would not award the two task orders in the solicitation concurrent with the basic contract, but would continue to use these task orders as sample tasks during the price evaluation of bidders’ proposals. The amendment stated that the agency would not accept revised proposals. On April 6, 2011, the Agency subsequently issued three awards for the basic contract.
Comint Systems Corporation & EyeIT.com, Inc., Joint Venture (Comint), a disappointed bidder, filed an unsuccessful agency-level bid protest. Comint subsequently filed a bid protest before the Court of Federal Claims alleging that the amendment converting the task orders in the solicitation to sample tasks “changed the solicitation so substantially that the agency was required to either cancel the solicitation or permit offerors to submit revised proposals.”7 Comint further asserted several evaluation errors.
The Court of Federal Claims dismissed Comint’s protest for lack of standing on the basis that Comint failed to demonstrate prejudice, holding that Comint, a low-rated offeror, failed to show a substantial chance of receiving the contract award.8 Comint appealed to the Federal Circuit.
In deciding the appeal, the Federal Circuit, before reaching the question of standing, considered the threshold issue of whether Comint had waived its right to challenge the solicitation amendment by failing to raise the issue before contract award. The Federal Circuit in Comint found that the policy concern underlying Blue & Gold “supports its extension to all pre-award situations.”9 Thus, where a bidder has “adequate time” to bring a solicitation challenge prior to an award, it must do so or such challenge is deemed waived under Blue & Gold.
On the facts, the Federal Circuit concluded that “Comint had ample time and opportunity to raise its objections” to the amendment in the two and a half months between the amendment and award, “but chose instead to wait and see whether it would receive in award of the contract.”10 The Circuit explained that having done so, Comint could not then assert its objection after not receiving the award to “get a second bite at the apple.”11 Thus, the Circuit dismissed Comint’s challenge to the solicitation amendment for failure to preserve its challenge. The Circuit affirmed the dismissal of the remainder of Comint’s protest for lack of standing.
The Federal Circuit’s decision to address first the timeliness of Comint’s solicitation challenge under Blue & Gold before other standing issues sends a clear message to contractors that timeliness is a paramount threshold issue in federal bid protest jurisprudence. The Federal Circuit’s decision is all the more significant because the Court of Federal Claims side-stepped the timeliness decision based on Blue & Gold considerations and decided the case on the basis of a lack of prejudice. The Federal Circuit clearly applied Blue & Gold first, treating it as a threshold issue, then also agreeing with the Court of Federal Claims on the prejudice issue. By signaling its insistence that timeliness is a threshold issue, the Federal Circuit raised the importance of timeliness and the risks of waiver for contractors. While both timeliness and lack of prejudice are standing issues, the Federal Circuit established in Comint in effect an order of precedence — it will examine timeliness as a matter of first priority, and then other issues of standing.
Further, the unusual facts in the case did not deter the Federal Circuit from applying the principles of Blue & Gold. The agency amended the solicitation after bidding closed. The protester sat on its argument that the amendment constituted a material change, requiring revised proposals, and waited to assert its challenge only after (multiple) awards, which did not include it. The Federal Circuit, however, set award as the last date for challenge to a solicitation, and in Comint accepted no excuse for waiting two and a half months after award to protest. Thus, Comint instructs that if protesters have a challenge to any aspect of the solicitation, they wait at their peril to protest to the Court of Federal Claims. The Federal Circuit’s decision does not resolve whether it would apply a waiver to a solicitation challenge if the protester waited far less than two and a half months, but still filed after award. The message of Comint, however, seems to indicate that a protester will test such facts at great risk, and that the Federal Circuit may treat the point of award as a hard stop beyond which it will simply not tolerate challenges to the terms of a solicitation.
Ultimately, Comint is a reminder that contractors must act promptly in all circumstances to preserve their bid protest rights.