Federal Circuit Holds COFC Misconstrued Blue & Gold. Why Did the Federal Circuit Still Affirm?

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The COFC dismissed a protest, finding the protester waived its right to protest under Blue & Gold. The COFC found this waiver deprived the court of subject matter jurisdiction. The Federal Circuit held the COFC erred in finding it lacked subject matter jurisdiction. The Blue & Gold rule is not jurisdictional. Rather, the waiver rule is a process rule that ensures litigants take certain steps at certain times. Nevertheless, the Federal Circuit found the COFC’s error harmless. Even if the COFC possessed subject matter jurisdiction, the protester failed to timely challenge a patent ambiguity in the solicitation. The protester had still waived its protest under Blue & Gold.

M.R. Pittman Group, LLC, v. United States, Fed. Cir. 2021-2325


The Army Corps of Engineers posted a solicitation for pump repair. The post on SAM.gov stated the solicitation was set aside for small businesses under NAICS Code 811310. The solicitation incorporated the FAR provision for small business set asides. But the solicitation itself did not include a reference to NAICS Code 811310.

M.R. Pittman submitted a bid. The Corps, however, told Pittman the company did not qualify as a small business under the applicable NAICS Code and was not eligible for award.

Pittman filed a bid protest with the Court of Federal Claims. Pittman also moved for preliminary injunction to halt the award. The government filed a combined motion to dismiss and response to Pittman’s injunction request. The COFC set a hearing on the injunction motion. The court said it would set a deadline for Pittman to respond to the government’s motion to dismiss at the injunction hearing.

The court held a hearing on the request for an injunction. Two weeks after the hearing, the court denied the request. The court also granted the government’s motion to dismiss even though Pittman had not responded. The court determined Pittman’s protest was a challenge to the terms of the solicitation. Because Pittman didn’t file its protest before the deadline, it waived its protest under Blue & Gold. The court opined the waiver deprived the court of subject matter jurisdiction.

Pittman appealed to the Federal Circuit.


Blue & Gold Waiver Is Not Jurisdictional

Pittman argued the COFC erred in dismissing it protest on jurisdictional grounds. The Federal Circuit agreed. The Blue & Gold waiver rule is not jurisdictional. Rather, the court reasoned, the rule is more akin to a claims processing rule that simply requires a litigant to take certain procedural steps at certain specified times. The COFC erred in finding Pittman’s waiver deprived the court of jurisdiction.

Response to Motion to Dismiss

Pittman also argued the COFC should not have ruled on the government’s motion to dismiss before Pittman responded. The court, however, found while Pittman didn’t file a formal response to the motion to dismiss, it had, in fact, had an opportunity to respond. The government had combined its motion to dismiss with its response to Pittman’s request for an injunction. The government raised the Blue & Gold argument in the combined motion. Pittman substantively responded to the waiver argument in its briefing on the request for an injunction. Moreover, Pittman further addressed the waiver issue at oral argument on the injunction motion.

Pittman Waived Its Protest

Although the Federal Circuit held, the COFC erred in dismissing the protest on jurisdictional grounds, the court ruled Pittman’s protest was still barred by Blue & Gold. The solicitation contained a patent ambiguity—it incorporated the FAR provision on small business set asides but did not include an NAICS code. A reasonably diligent contractor should have filed a pre-award protest to clarify this ambiguity. Pittman waited too long to protest.

–Case summary by Craig LaChance, Senior Editor