In the United States Court of Federal Claims
No. 21-778C
Filed Under Seal: March 9, 2021
Reissued: March 22, 2021*
SEKRI, INC.,
Plaintiff,
v.
UNITED STATES,
Defendant.
Alan Grayson, Windermere, FL, for the plaintiff.
Rafique Anderson, Commercial Litigation Branch, Civil Division, U.S. Department of Justice,
Washington, D.C., Allison Eck, Defense Logistics Agency, of counsel, for the defendant.
MEMORANDUM OPINION
HERTLING, Judge
The plaintiff, SEKRI, Inc. (“SEKRI”), has filed this pre-award bid protest alleging that
the United States, acting through the Defense Logistics Agency (“DLA”), failed to designate in a
solicitation that SEKRI is the mandatory source of supply of a military-equipment item known as
Advanced Tactical Assault Panels (“ATAP”), which are components of protective ballistic vests.
The defendant has moved to dismiss the plaintiff’s claim for lack of subject-matter
jurisdiction under Rule 12(b)(1) of the Rules of the Court of Federal Claims (“RCFC”) or, in the
alternative, for failure to state a claim under RCFC 12(b)(6), arguing that the plaintiff has waived
its claim under the waiver rule established by Blue & Gold Fleet, L.P. v. United States, 492 F.3d
1308 (Fed. Cir. 2007).
Because the plaintiff is not an actual or prospective bidder, the plaintiff lacks standing to
bring a bid protest under 28 U.S.C. § 1491(b)(1). Although the defendant has not challenged the
*
Pursuant to the protective order in this case, the Court initially filed this opinion under seal
and gave the parties 14 days to propose redactions of confidential or proprietary information.
(ECF 21.) The parties have agreed that the opinion does not contain any information that
requires redaction. (ECF 24.) Accordingly, no redactions were made to this public version of
the opinion.
plaintiff’s standing, the Court must ensure it has jurisdiction over the case. Finding jurisdiction
absent, the Court must dismiss for lack of subject-matter jurisdiction. RCFC 12(h)(3).
Additionally, even if the plaintiff had standing, the Court would have to dismiss the plaintiff’s
claim under Blue & Gold Fleet, because the plaintiff failed to object to the solicitation upon
discovering a patent error before the close of the solicitation.
I. BACKGROUND1
The Javits–Wagner–O’Day Act (“JWOD Act”), codified at 41 U.S.C. §§ 8501-06, and its
implementing regulations, 41 C.F.R. pt. 51 and 48 C.F.R. subpt. 8.7, established the AbilityOne
Program. (ECF 1, ¶¶ 4-17.) The AbilityOne Program requires the government to procure certain
items included on a procurement list from designated qualified nonprofit agencies that employ
the blind or severely disabled. 41 U.S.C. § 8504(a). SEKRI is the designated, mandatory source
from which the U.S. Army must procure ATAP. (ECF 1, ¶¶ 18-19.)
In July 2019, the DLA issued solicitation SPE1C1-19-R-002 (“solicitation”). (ECF 13-2,
Decl. of Maria C. Aguayo ¶ 6.) The solicitation anticipated awards in two separate lots: Lot 1
sought to acquire a “Rifleman Set with Tactical Assault Panel” (“TAP”); Lot 2 originally sought
the same with “Associated Components.” (Id. ¶ 7.) The DLA awarded Lot 1 to Propper
International, Inc. (Id. ¶ 11; ECF 1, ¶ 23.) Because SEKRI is not a mandatory source of TAP, it
did not bid on either Lot 1 or Lot 2 of the solicitation.
On April 21, 2020, the DLA provided public notice of an amendment (“Amendment 6”)
to the solicitation. (ECF 1, ¶ 24.) Applying only to Lot 2, Amendment 6 changed the item to be
acquired to a Rifleman Set with ATAP, in place of TAP. (Id.) Amendment 6 did not list any
mandatory source of supply for ATAP. (See id.) The amendment became effective on June 3,
2020; it also established a July 20, 2020 proposal deadline. (ECF 13-1, App. at 74, 78.)
Ultimately, on September 18, 2020, another amendment extended the closing date for proposals
on Lot 2 to October 7, 2020. (Id. at 80-81.)
SEKRI learned of the change from TAP to ATAP shortly after the DLA issued
Amendment 6. (ECF 14-1, Decl. of Leo Miller ¶ 6.) SEKRI thus became aware that the DLA
was seeking ATAP through competition, rather than using SEKRI as the mandatory source of
supply. (Id.) Because SEKRI is a mandatory source of ATAP, it did not submit a proposal to
1
Because the Court grants the defendant’s motion to dismiss, the facts as alleged in the
complaint (ECF 1) are assumed to be true. This recitation of the facts therefore does not
constitute findings of fact; rather, the Court provides a recitation of the facts as alleged by the
plaintiff. For additional context, the Court refers to facts derived from exhibits submitted by the
parties in support of their briefs regarding the defendant’s motion to dismiss. These facts are
included only to add context and to provide a more complete background. In deciding the
jurisdictional issues, the Court considers evidence outside the pleadings, but in deciding the
defendant’s Blue & Gold Fleet waiver argument, the Court considers only the complaint and the
exhibits explicitly noted in Part III.B, infra.
2
compete for the award. (See ECF 14 at 14 (“SEKRI is not a bidder; on the contrary, SEKRI is a
required source of supply, and SEKRI maintains that there shouldn’t be any ‘bidders’ or
‘bidding’ for ATAP at all.”).) As SEKRI’s executive director explained, “[u]nder the JWOD
Act, . . . SEKRI is supposed to seek work by having requirements posted to the Procurement List
established by the federal agency Ability One, not by bidding against other government
contractors for such work.” (ECF 14-1, Decl. of Leo Miller ¶ 5.)
SourceAmerica is the central nonprofit agency through which SEKRI generally must
communicate regarding contracting activities under the AbilityOne Program. (ECF 1 at 10 n.6.)
Between June 10, 2020 and June 25, 2020, SourceAmerica emailed the DLA regarding the
solicitation, as amended by Amendment 6, on SEKRI’s behalf.2 (ECF 14 at 3; see also ECF 14-
2.) SourceAmerica explained to the DLA via email that SEKRI is the nonprofit agency
authorized to produce ATAP for the U.S. Army and inquired whether the DLA would be willing
to acquire ATAP under the solicitation through SourceAmerica, and thus through SEKRI.
(ECF 14-2.) The DLA’s contracting officer replied that “[t]o best meet the Army’s
requirements, DLA is purchasing the [ATAP] in the full & open unrestricted solicitation . . . .”
(Id.) Aside from this initial inquiry through email, SEKRI did not communicate further, either
directly or indirectly through SourceAmerica, with the DLA. SEKRI made no complaint, either
informal or formal, and lodged no protest regarding the solicitation, either with SourceAmerica,
the DLA, or the Government Accountability Office (“GAO”). SEKRI did nothing until it filed
this action before the Court in January 2021, more than three months after the solicitation closed.
On January 21, 2021, SEKRI filed this pre-award bid protest under the Tucker Act,
28 U.S.C. § 1491(b), alleging that the DLA had failed to designate SEKRI as the mandatory
source of supply for ATAP and seeking “to enjoin the award or continued performance of any
federal contract or contracts, or the modification of any federal contract or contracts, awarded to
or performed by entities other than SEKRI, for the production (in whole or in part) of a military
equipment item known as the [ATAP].” (ECF 1, ¶ 1.) The DLA has agreed not to make an
award for Lot 2 before May 31, 2021, unless the Court issues a decision allowing a contract
award to proceed. (ECF 11.)
The defendant has moved to dismiss for lack of subject-matter jurisdiction or, in the
alternative, failure to state a claim upon which relief can be granted, under Blue & Gold Fleet.
(ECF 13, corrected at ECF 18.) The defendant has not challenged the plaintiff’s standing to
maintain this action. The matter has been fully briefed, and upon the Court’s request, the parties
filed supplemental briefs addressing the issue of the plaintiff’s standing. The Court heard oral
argument on March 4, 2021.
2
The plaintiff asserts in its brief (ECF 14 at 3) that email exchanges regarding Amendment 6
between SourceAmerica and the DLA occurred between June 10, 2020 and June 25, 2020. The
only emails supplied by SEKRI are dated June 10, 2020; SEKRI has provided no emails from
after that date.
3
II. JURISDICTION AND STANDING
This court has jurisdiction over bid protests pursuant to the Tucker Act, 28 U.S.C.
§ 1491(b), which confers on this court jurisdiction over actions “by an interested party objecting
to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a
proposed award or the award of a contract or any alleged violation of statute or regulation in
connection with a procurement or a proposed procurement.” Id. § 1491(b)(1).
The defendant has moved to dismiss the complaint for lack of subject-matter jurisdiction,
pursuant to RCFC 12(b)(1) or, in the alternative pursuant to RCFC 12(b)(6), based on the waiver
rule established in Blue & Gold Fleet, discussed infra, III.A.3 To determine jurisdiction, the
“court must accept as true all undisputed facts asserted in the plaintiff’s complaint and draw all
reasonable inferences in favor of the plaintiff.” Trusted Integration, Inc. v. United States, 659
F.3d 1159, 1163 (Fed. Cir. 2011). The plaintiff has the burden of establishing jurisdiction by a
preponderance of the evidence. Id. When a plaintiff’s jurisdictional facts are challenged, only
those factual allegations that the government does not controvert are accepted as true. Shoshone
Indian Tribe of Wind River Rsrv. v. United States, 672 F.3d 1021, 1030 (Fed. Cir. 2012). The
court is not “‘restricted to the face of the pleadings’” in resolving disputed jurisdictional facts.
Id. (quoting Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 (Fed. Cir. 1993), cert.
denied, 512 U.S. 1235 (1994)). The court may review evidence outside the pleadings. Id. If the
court finds that it lacks subject-matter jurisdiction over a claim, RCFC 12(h)(3) requires the
court to dismiss the claim.
As a threshold issue, a plaintiff must establish standing. Although the defendant does not
dispute the plaintiff’s standing (see ECF 16 at 2), the Court raises the issue sua sponte. The
Court has “an independent obligation to determine whether subject-matter jurisdiction exists,
even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514
(2006).
In the context of a bid protest, standing connotes a concept narrower than the typical
inquiry to establish standing under Article III. Rather, to establish standing under § 1491(b), a
protestor must be an “interested party.” 28 U.S.C. § 1491(b)(1). The statutory term “interested
party” has been held to have a particular meaning under § 1491(b). The Federal Circuit rejected
3
The defendant argues that under Bannum, Inc. v. United States, 779 F.3d 1376, 1381 (Fed.
Cir. 2015), the Court must resolve its motion to dismiss under Blue & Gold Fleet before even
reaching the question of SEKRI’s standing. See also COMINT Sys. Corp. v. United States, 700
F.3d 1377, 1381-82 (Fed. Cir. 2012) (reaching the Blue & Gold Fleet issue without addressing
the issue of standing). The Court finds that the rationale of Inserso Corp. v. United States,
961 F.3d 1343 (Fed. Cir. 2020), undermines that aspect of Bannum and COMINT. In the wake
of Inserso, as discussed below, the Court determines that dismissal under Blue & Gold Fleet’s
waiver rule should be resolved under RCFC 12(b)(6). As a result, the issue of SEKRI’s
standing, and hence this Court’s jurisdiction, must be addressed and resolved as a preliminary
matter.
4
the dictionary meaning and the standing requirements of the Administrative Procedure Act
(“APA”). See Am. Fed’n of Gov’t Employees, AFL-CIO v. United States (“AFGE”), 258 F.3d
1294, 1302 (Fed. Cir. 2001) (“We . . . are not convinced that Congress, when using the term
‘interested party’ to define those who can bring suit under § 1491(b)(1), intended to confer
standing on anyone who might have standing under the APA.”). Because Congress used the
same term in § 1491(b) as it did in the Competition in Contracting Act (“CICA”), 31 U.S.C.
§§ 3551-59, the AFGE court found that “Congress intended the same standing requirements that
apply to protests brought under the CICA to apply to actions brought under § 1491(b)(1).” Id.
Based on the CICA definition of “interested party,” the court held “that standing under
§ 1491(b)(1) is limited to actual or prospective bidders or offerors whose direct economic
interest would be affected by the award of the contract or by failure to award the contract.” Id.
Following the “interested party” definition from AFGE, the Federal Circuit later
established a two-prong test to establish standing under § 1491(b): the plaintiff must “establish
that it (1) is an actual or prospective bidder, and (2) possesses the requisite direct economic
interest.” Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006). Protestors
must meet both prongs to establish standing. See id.; see also CGI Fed. Inc. v. United States,
779 F.3d 1346, 1348 (Fed. Cir. 2015). SEKRI fails the first prong of this test.
SEKRI concedes that it is not an actual bidder for the DLA’s solicitation. (See ECF 14 at
14.) SEKRI’s executive director explained that it does not seek work “by bidding against other
government contractors for such work.” (ECF 14-1, Decl. of Leo Miller ¶ 5.) Instead, as a
mandatory source, it relies on obtaining work through the AbilityOne Program. (See id.) The
only issue therefore is whether SEKRI is a “prospective bidder.”
Both parties cite to Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed. Cir. 2009),
to establish the plaintiff’s standing. In Weeks Marine, a non-bidder established standing because
it had demonstrated a non-trivial competitive injury in a pre-award bid protest. Id. at 1363. Both
parties argue that because SEKRI can demonstrate a non-trivial competitive injury, the result in
Weeks Marine would appear to give the plaintiff standing. The parties’ approach misinterprets
the analysis in Weeks Marine. The Federal Circuit did not deviate in that case from its two-
prong standing test and specifically noted that § 1491(b)(1) “imposes more stringent standing
requirements than Article III.” Id. at 1359 (citing AFGE, 258 F.3d 1294).
The court in Weeks Marine found that the protestor was a prospective bidder because the
protestor intended to bid and was able to perform the work contemplated by the contracts.
Weeks Marine, 575 F.3d at 1359-60. The government did not dispute the protestor’s intention to
bid or capability to perform. Id. Accordingly, the court moved on to the second prong. Its
holding is significant not because it gave non-bidders with a non-trivial competitive injury
standing but, instead, because it set the standard for the second prong in a pre-award bid protest.
Instead of requiring that a protestor demonstrate a “substantial chance” of obtaining the contract
but for the alleged error in the procurement process, as used for post-award bid protests, the court
held that, in pre-award bid protests, the “prospective bidder or offeror must establish ‘a non-
trivial competitive injury which can be redressed by judicial relief’ . . . .” Id. at 1363 (internal
quotation uncited) (emphasis added). In so holding, the Federal Circuit did not eliminate the first
prong of its standing test under § 1491(b)(1).
5
SEKRI has not established that it is a prospective bidder. Although SEKRI claimed to be
a prospective bidder at oral argument, it admits in its opposition brief that it “isn’t even
competing for award under [Amendment 6].” (ECF 14 at 17.) The plaintiff’s “opportunity to
qualify as a prospective bidder ends when the solicitation period ends . . . .” CGI Federal,
779 F.3d at 1350 (emphasis omitted). SEKRI has a timing issue; it cannot now claim to be a
prospective bidder on the DLA’s solicitation because the solicitation period ended on October 7,
2020.
Under CGI Federal, a plaintiff qualifies as a prospective bidder if it diligently pursued its
protest rights, such as bringing a bid protest prior to the close of bidding. CGI Federal, 779 F.3d
at 1349-50. The standing analysis here becomes blurred with the Blue & Gold Fleet waiver rule,
which requires a protestor with the opportunity to object to a patent error to do so prior to the
close of the bidding process. See Blue & Gold Fleet, 492 F.3d at 1313. Indeed, the Federal
Circuit, in declining to reach the standing issue after finding waiver under Blue & Gold Fleet,
noted that its case law “itself has taken into account, in certain circumstances, whether a party
has timely presented and diligently pressed its protest” to determine whether a protestor is an
“interested party.” Bannum, 779 F.3d at 1381 (citing CGI Federal, 779 F.3d 1346).
CGI Federal was a pre-award bid protest brought by a protestor who was not an actual
bidder. CGI Federal, 779 F.3d at 1347-48. The protestor instead argued that it was a
prospective bidder. Id. at 1348. Before bidding closed, the protestor filed a timely pre-award
protest at the GAO. Id. Although the bidding period closed while the GAO protest was pending,
the court held that the protestor had established its status as a prospective bidder by filing the
protest prior to the close of bidding. Id. at 1348, 1351.
SEKRI could likewise qualify as a prospective bidder if only it had “diligently pursue[d]
its protest rights” prior to the proposal deadline. Id. at 1349. SEKRI learned of Amendment 6
shortly after the DLA issued it, and SEKRI knew that the DLA was seeking ATAP through
competition, rather than using SEKRI as a mandatory source of supply. (ECF 14-1, Decl. of Leo
Miller ¶ 6.) On June 10, 2020 (before the proposal deadline), SourceAmerica emailed the DLA’s
contracting officer stating that SEKRI is the nonprofit agency authorized to produce ATAP for
the U.S. Army and inquiring whether the DLA would be willing to move forward with
SourceAmerica. (ECF 14-2.) The contracting officer replied that the DLA was purchasing the
ATAP through a full and open competition. (Id.) SourceAmerica relayed that information to
SEKRI on the same day and encouraged SEKRI “to respond to the commercial Solicitation
before it closes on July 20, 2020, while [SourceAmerica] continue[s] to look at other options.”4
(Id.) Disregarding SourceAmerica’s advice, SEKRI did nothing.
SEKRI lacks standing for the same reason it would lose on the merits under Blue & Gold
Fleet. It did not do anything in response to the solicitation; it neither submitted a bid nor
objected to the DLA or any other entity prior to the proposal deadline, despite knowing that the
4
The deadline was ultimately extended to October 7, 2020 on September 18, 2020. (ECF
13-1, App. at 81.)
6
DLA was procuring ATAP through competition. SEKRI did not diligently pursue its protest
rights through the SourceAmerica emails. SourceAmerica merely inquired on SEKRI’s behalf
whether the DLA would be willing to move forward with SourceAmerica, and the DLA replied
that it was proceeding through competition. SEKRI then did not formally protest the solicitation
until January 21, 2021, when it filed the present action in this court, 106 days after the close of
the solicitation. SEKRI also failed to protest or complain informally to the DLA in a manner that
might have salvaged its ability to claim status as a prospective bidder. SEKRI lost its
opportunity to qualify as a prospective bidder when the proposal deadline ended, without protest
or complaint of any kind by SEKRI, on October 7, 2020.
As a mandatory source of supply for ATAP, SEKRI can establish a non-trivial
competitive injury, but SEKRI never makes it to the second prong of the Federal Circuit’s test
for standing under § 1491(b). SEKRI argues that the Federal Circuit has addressed standing in a
mandatory-source protest under the JWOD Act. (ECF 17 at 5 (citing PDS Consultants, Inc. v.
United States, 907 F.3d 1345 (Fed. Cir. 2018).) PDS Consultants does not, however, help
SEKRI to establish standing. In that case, the Federal Circuit again used the CICA definition of
“interested party” to establish the protestor’s standing. PDS Consultants, 907 F.3d at 1356
(citing 31 U.S.C. § 3551(2)(A) and AFGE, 258 F.3d at 1302). The protestor in PDS Consultants
was preemptively challenging whether the agency could issue new contracts in the future, not
challenging either an existing contract or a closed solicitation. PDS Consultants, Inc. v. United
States, 132 Fed. Cl. 117, 125 (2017), aff’d, 907 F.3d 1345. In other words, there had not yet
been a solicitation period on the future contracts being challenged. There would have been no
CGI Federal prospective-bidder analysis required in those specific circumstances; indeed, the
Federal Circuit did not cite CGI Federal. See PDS Consultants, 907 F.3d at 1356. The Federal
Circuit held that the protestor had standing because “it is an actual or prospective service-
disabled veteran-owned small business bidder on the . . . procurements whose direct economic
interest would be affected by the contract award (or failure thereof).” Id. PDS Consultants
would help SEKRI if this case were about a potential future procurement of ATAP by the DLA
and the DLA had informed SEKRI that such a future procurement would again not include
SEKRI as a mandatory source. The case does nothing to establish standing for SEKRI to
challenge the now-closed DLA procurement at issue.
Although SEKRI has an economic interest as a mandatory source of supply, other
protestors that have been found to lack standing as non-actual or non-prospective bidders likely
have also had economic interests. In AFGE, for example, the protestors were federal employees
who allegedly had their employment at risk. AFGE, 258 F.3d at 1297. They alleged that if the
services at issue had been contracted to a contractor, rather than performed by agency personnel,
then the employees would be displaced. Id. In rejecting the dictionary meaning of “interested
party” and the APA standing requirements, the court adopted a meaning of “interested party” in
§ 1491(b) more stringent than merely a “‘person suffering legal wrong because of agency action,
or adversely affected or aggrieved by agency action.’” Id. at 1302 (quoting 5 U.S.C. § 702).
Rather, the court adopted the CICA definition in full. The ordinary sense of standing does not
apply; a protestor must be an actual or prospective bidder to establish standing under § 1491(b).
Because the federal-employee protestors in AFGE were not bidders or prospective bidders, the
court held that they did not have standing. Id.
7
Despite not being an actual or prospective bidder, SEKRI may have legal resource
beyond this court’s jurisdiction. The Tenth Circuit, for example, recognized the Federal
Circuit’s interpretation of “interested party” in § 1491(b). See City of Albuquerque v. U.S. Dep’t
of Interior, 379 F.3d 901, 910 (10th Cir. 2004). Because the Federal Circuit limited jurisdiction
under § 1491(b) to only actual or prospective bidders, the Tenth Circuit held that the district
court retained jurisdiction “to hear cases challenging the government’s contract procurement
process so long as the case is brought by someone other than the actual or potential bidder.” Id.
at 911. The district court’s jurisdiction derives from 28 U.S.C. § 1331 and the waiver of
sovereign immunity in the APA. Id.; see also Validata Chem. Servs. v. U.S. Dep’t of Energy,
169 F. Supp. 3d 69 (D.D.C. 2016) (Moss, J.) (criticizing the AFGE definition of “interested
party” while acknowledging APA jurisdiction in district court for claims by non-interested
parties).
SEKRI notes that the GAO, which applies the same standard from the CICA under its
bid-protest jurisdiction, has exercised jurisdiction over cases involving mandatory sources under
the JWOD Act. (ECF 17 at 5 (citing Training, Rehab. & Dev. Inst., Inc., B-418480, 2020 CPD
¶ 171, 2020 WL 2489778 (Comp. Gen. May 13, 2020); Goodwill Indus. of the Valleys, B-
415137, 2017 CPD ¶ 369, 2017 WL 6032987 (Comp. Gen. Nov. 29, 2017).) Although not
bound by GAO decisions, the Court may consider these decisions persuasive authority on the
application of the CICA’s definition of “interested party.” These cases do not appear to conflict
with the Federal Circuit’s approach, which is, of course, binding authority.
In Training, Rehab. & Development Inst., the GAO did not discuss the term “interested
party” or need to grapple with the issues raised in CGI Federal because the mandatory-source
protestor “timely filed a protest challenging the terms of th[e] solicitation before the . . . deadline
for submission of quotations.” 2020 WL 2489778, at *2. Here, in contrast, SEKRI did not file a
protest before the deadline for the submission of proposals.
In Goodwill Industries, the facts are closer but still distinguishable. The agency was
negotiating a new lease for a building with an incumbent lessor, VVP, LLC (“VVP”). 2017 WL
6032987, *2. Originally, the agency had contracted with Goodwill separately for custodial
services, for which Goodwill was the mandatory, designated source under the AbilityOne
program. Id. The new lease was to be a full-service lease, including the custodial services. Id.
VVP requested a proposal from Goodwill for the services, and Goodwill provided a proposal but
reminded VVP that it was the mandatory source for the services. Id. After the agency awarded
VVP the new full-service lease, the agency notified Goodwill that it would no longer contract
directly with Goodwill for the custodial services. Id. When Goodwill sought to confirm that the
agency was requiring VVP to procure the custodial services from Goodwill pursuant to the
AbilityOne regulations, the agency responded that it had no authority to direct VVP to do so. Id.
at *2-3. Goodwill filed its protest within ten days of that response. Id. at *4.
The agency argued that Goodwill was not an “interested party” because Goodwill, unlike
VVP, had not submitted a proposal to satisfy the space requirement. Id. at *5 n.10. The GAO
rejected this argument because Goodwill had no interest in providing space and “did, in fact,
submit a proposal to perform the custodial services at issue in response to a request from
VVP . . . .” Id. Here, SEKRI did not submit any proposal, and although it learned that the DLA
8
was proceeding with competition for ATAP in June 2020, it did not complain formally or
informally or protest until January 2021.
The GAO cases that SEKRI cites neither add clarity to the relevant standing issue before
the Court nor conflict with the Federal Circuit’s approach. They are insufficient to overcome the
clear mandate of the Federal Circuit’s precedents.
None of this is to say that the Court of Federal Claims lacks jurisdiction to hear claims
brought by mandatory-source suppliers of goods and services under the JWOD Act. Indeed,
SEKRI would have had standing to maintain this action if it had taken the necessary steps to
complain or protest the DLA’s planned procurement of ATAP through an open competition prior
to the closing date for the submission of proposals. It is that specific failure to have met the
Federal Circuit’s test for being a prospective bidder that undermines SEKRI’s standing, and not
the nature of its status as an alleged mandatory source under the JWOD Act.
Absent some exception to the Federal Circuit’s approach, the Court is bound by AFGE’s
definition of “interested party” and subsequent cases interpreting the standing requirement under
§ 1491(b). The Court is unaware of any such exception and the parties have cited none. The
Court notes that it makes sense intuitively that a mandatory source of supply in SEKRI’s
situation would have standing to challenge the solicitation even without being an actual or
prospective bidder, because SEKRI is challenging the mere fact that there was an open
solicitation for bids at all. The Federal Circuit precedents have never addressed the precise
situation confronting the Court. The test established by those precedents, however, is clear and
is not limited to the facts of the cases that were before the Court of Appeals as it devised the test.
Until the Federal Circuit clarifies the issue or creates a relevant exception to its test for standing
under § 1491(b), it is not for this Court to carve out its own exception in the face of binding
precedent.
Because SEKRI has not established that it is an actual or prospective bidder, it cannot
meet the first prong of standing under § 1491(b). SEKRI does not have standing to bring a bid
protest in this court, and the complaint must be dismissed under RCFC 12(b)(1) and 12(h)(3).
III. BLUE & GOLD FLEET
Given the novel situation presented by the issue of bid-protest standing for a mandatory-
source protestor, the Court also considers the substance of the defendant’s motion to dismiss.
Even if the plaintiff had standing, the Court finds that the plaintiff’s complaint must be dismissed
under Blue & Gold Fleet.
The defendant argues that SEKRI waived its claim under Blue & Gold Fleet and its
progeny. Because SEKRI filed this bid protest challenging the solicitation 106 days after the
deadline for proposals under that solicitation (October 7, 2020 – January 21, 2021), the
defendant argues that SEKRI’s claim is untimely under Blue & Gold Fleet. SEKRI argues that
Blue & Gold Fleet does not apply.
9
There is uncertainty whether the Blue & Gold Fleet waiver rule is jurisdictional. The
defendant has moved to dismiss either for lack of subject-matter jurisdiction under
RCFC 12(b)(1) or, in the alternative, for failure to state a claim under RCFC 12(b)(6). The Court
finds that the Blue & Gold Fleet waiver rule is not jurisdictional and thereby more appropriately
addressed under RCFC 12(b)(6).
A. Blue & Gold Fleet Waiver Rule
In Blue & Gold Fleet, 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.” 492 F.3d at 1313. This “waiver rule” furthers
the statutory mandate in 28 U.S.C. § 1491(b)(3), which provides that “‘the courts shall give due
regard to the interests of national defense and national security and the need for expeditious
resolution of the action.’” Id. (quoting 28 U.S.C. § 1491(b)(3)) (emphasis in original).
The Federal Circuit reasoned that the same rationale underlying its patent-ambiguity
doctrine applies when a party recognizes a patent error but does not object until after the close of
the bidding process. Id. at 1314. Specifically, the court found that “[a] waiver rule . . . prevents
contractors from taking advantage of the government and other bidders, and avoids costly after-
the-fact litigation.” Id. The court explained the consequences of a contrary holding:
In the absence of a waiver rule, a contractor with knowledge of a
solicitation defect could choose to stay silent when submitting its
first proposal. 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.
Id.
The Federal Circuit also found support in the fact that the GAO has adopted a similar rule
in its bid protest regulations, which provide that “‘[p]rotests based upon alleged improprieties in
a solicitation which are apparent prior to bid opening or the time set for receipt of initial
proposals shall be filed prior to bid opening or the time set for receipt of initial proposals.’” Id.
(quoting 4 C.F.R. § 21.2(a)(1)) (modification in original).
The Blue & Gold Fleet waiver rule has been reenforced and expanded in subsequent
cases. For example, in COMINT the Federal Circuit 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.” 700 F.3d at 1382. More recently, the Federal
Circuit in Inserso cited the broader standard from COMINT and held that the contractor in that
case had forfeited its right to seek relief. 961 F.3d at 1349-52.
Courts have held that when Blue & Gold Fleet’s waiver rule applies, a court must dismiss
the action; it has no discretion to allow the plaintiff to maintain the action. See, e.g., Contract
10
Servs., Inc. v. United States, 104 Fed. Cl. 261, 273 (2012); Unisys Corp. v. United States, 89 Fed.
Cl. 126, 139 (2009); see also Per Aarsleff A/S v. United States, 829 F.3d 1303, 1317 (Fed. Cir.
2016) (Reyna, J., concurring) (“Dismissal is mandatory, not discretionary.”).
B. Standard of Review
Courts have not been consistent as to whether motions to dismiss under the Blue & Gold
Fleet waiver rule should be subject to RCFC 12(b)(1) or RCFC 12(b)(6). Compare Sys.
Dynamics Int’l, Inc. v. United States, 130 Fed. Cl. 499, 511 (2017) (finding that the waiver rule
is a jurisdictional requirement subject to a RCFC 12(b)(1) analysis), with Unisys Corp., 89 Fed.
Cl. at 137 (dismissing under RCFC 12(b)(6) a claim barred by the waiver rule). See also DGR
Assocs., Inc. v. United States, 690 F.3d 1335, 1343 (Fed. Cir. 2012) (discussing whether the
government’s Blue & Gold Fleet jurisdictional argument was substantially justified and holding
that it was).
Informed by the recent Federal Circuit precedent in Inserso, the Court finds that the Blue
& Gold Fleet waiver rule is not jurisdictional and thereby more appropriately addressed under
RCFC 12(b)(6).
The Supreme Court has held that “‘subject-matter jurisdiction, because it involves a
court’s power to hear a case, can never be forfeited or waived.’” Arbaugh, 546 U.S. at 514
(quoting United States v. Cotton, 535 U.S. 625, 630 (2002)). In Blue & Gold Fleet, the Federal
Circuit did not establish the waiver rule as a limit on jurisdiction; indeed, it noted that “the
jurisdictional grant of 28 U.S.C. § 1491(b) contains no time limit requiring a solicitation to be
challenged before the close of bidding . . . .” 492 F.3d at 1315. Blue & Gold Fleet rooted its
waiver rule in § 1491(b)(3), which requires courts to “give due regard to . . . the need for
expeditious resolution of the action.” See id. (quoting 28 U.S.C. § 1491(b)(3)).
Although § 1491(b) gives this court jurisdiction over bid protests challenging the terms of
solicitations, Blue & Gold Fleet limits when a court can grant relief. See Inserso, 961 F.3d at
1352 (holding, in applying the waiver rule, that the contractor had “forfeited its right to . . .
relief”). Against a challenge by Judge Reyna in dissent arguing that the Blue & Gold Fleet
waiver rule had not survived the Supreme Court’s decision in SCA Hygiene Prods. Aktiebolag v.
First Quality Baby Prods., 137 S. Ct. 954 (2017) (rejecting the application of laches to bar
statutorily timely patent claims), the majority in Inserso firmly grounded Blue & Gold Fleet’s
waiver rule in the statutory text of 28 U.S.C. § 1491(b)(3). 969 F.3d at 1349 n.1.
Section 1491(b)(3) provides in full: “In exercising jurisdiction under this subsection, the
courts shall give due regard to the interests of national defense and national security and the need
for expeditious resolution of the action.” 28 U.S.C. § 1491(b)(3) (emphasis added). In other
words, once the plaintiff has established jurisdiction, § 1491(b)(3) limits the relief that can be
granted, requiring the court to “give due regard to . . . the need for expeditious resolution of the
action.” See id. The court, for example, cannot grant relief to a protestor who challenges the
terms of a solicitation years after the proposal deadline, even if the protestor’s complaint is filed
before the statute of limitations. See 28 U.S.C. § 2501 (establishing the Tucker Act’s six-year
statute of limitations). Otherwise, the court would run counter to § 1491(b)(3)’s mandate.
11
The waiver rule applies in full force when, as here, the protestor seeks injunctive relief.5
For example, in Inserso, the protestor “asked the court to provide all bidders in the small-
business competition access to the unequally disclosed information and to reopen the
competition to accept revised proposals.” Inserso, 961 F.3d at 1352. The Federal Circuit held
that the policy behind the waiver rule was served because the protestor was “seeking the relief it
could have gotten from [the agency] earlier, before [the agency] had already expended
considerable time and effort evaluating the bidders’ proposals.” Id. Because it had not objected
to the solicitation before the submission of final proposals, the protestor forfeited its right to
relief. Id.
As noted in footnote 3, supra, the defendant has cited two cases that reached the Blue &
Gold Fleet issue without addressing the issue of standing, but those cases predate Inserso.
(ECF 16 at 2 (citing Bannum, Inc., 779 F.3d at 1381 and COMINT, 700 F.3d at 1381-82).) The
court in Inserso describes the waiver rule as a limit on the protestor’s right to relief, not a limit
on jurisdiction. See Inserso, 961 F.3d at 1352.
Because the Court determines that the Blue & Gold Fleet waiver rule is not jurisdictional,
the defendant’s motion does not put jurisdiction in question. Accordingly, the Court will
consider the defendant’s motion to dismiss under RCFC 12(b)(6) for failure to state a claim upon
which relief can be granted.
Dismissal for failure to state a claim upon which relief can be granted “is appropriate
when the facts asserted by the claimant do not entitle him to a legal remedy.” Lindsay v. United
States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). The court must both accept as true a complaint’s
well-pleaded factual allegations, Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), and draw all
reasonable inferences in favor of the non-moving party. Sommers Oil Co. v. United States,
5
Given the waiver rule’s statutory underpinning (28 U.S.C. § 1491(b)(3)) and the six-year
statute of limitations of 28 U.S.C. § 2501, the waiver rule may support a different outcome if the
protestor seeks bid preparation costs. See Inserso, 961 F.3d at 1352-56 (Reyna, J., dissenting)
(raising objections to the Blue & Gold Fleet waiver rule). Because protesters are primarily
interested in securing the contract award, the cases have focused on claims for injunctive relief.
The distinction between the type of relief sought in the application of Blue & Gold Fleet appears
to remain unexplored territory. One possible course through which the Federal Circuit will
resolve the various strands of precedent, including its labeling of the waiver rule in Inserso,
961 F.3d at 1352, as a limitation on relief, and wrestle with the substance of Judge Reyna’s
dissent would be to hold that waiver under Blue & Gold Fleet ultimately does not compel
dismissal, under either RCFC 12(b)(1) or (b)(6). Instead, the Federal Circuit could determine
that the waiver rule forecloses a court’s ability to grant injunctive relief. That approach, which
seems most consistent with the language of § 1491(b)(3) on which the waiver rule is based,
would leave open the possibility that plaintiffs could still obtain bid preparation costs, even in the
face of a Blue & Gold Fleet waiver. In any event, the Federal Circuit has not yet even started
down this path, and it would be irrelevant here given that SEKRI has not requested bid
preparation costs because it did not prepare or submit a bid.
12
241 F.3d 1375, 1378 (Fed. Cir. 2001). To avoid dismissal, a complaint must allege facts
“plausibly suggesting (not merely consistent with)” a showing that the plaintiff is entitled to the
relief sought. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). “The plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).
In considering a motion to dismiss under RCFC 12(b)(6), courts are generally limited to
the consideration of the allegations in the plaintiff’s complaint. Dimare Fresh, Inc. v. United
States, 808 F.3d 1301, 1306 (Fed. Cir. 2015). RCFC 12(b)(6) thus differs from RCFC 12(b)(1),
under which courts may review evidence outside the pleadings when considering if jurisdiction
exists. See Shoshone Indian Tribe of Wind River Rsrv., 672 F.3d at 1030 (quoting Cedars-Sinai
Med. Ctr., 11 F.3d at 1584, cert. denied, 512 U.S. 1235 (1994).).
The law, at least prior to Inserso, was unclear as to whether a motion to dismiss under
Blue & Gold Fleet went to the court’s jurisdiction, and this case appears to be the first to address
the question since Inserso. As a result, the defendant brought its motion under RCFC 12(b)(1),
only citing to RCFC 12(b)(6) as an alternative basis for dismissal. In opposition to the
defendant’s motion under RCFC 12(b)(1), the plaintiff submitted exhibits to establish the Court’s
jurisdiction. The plaintiff attached to its opposition brief a declaration by SEKRI’s executive
director (ECF 14-1) and an exhibit containing emails between SourceAmerica and the DLA and
between SourceAmerica and SEKRI (ECF 14-2).
Because of the lack of clarity regarding the basis for dismissal under the Blue & Gold
Fleet waiver rule, in the interest of fairness and consistent with the narrow exception set out in
Dimare Fresh, the plaintiff should have every opportunity to support its defense against
dismissal under RCFC 12(b)(6). For the purposes of this motion, the Court will also therefore
consider the plaintiff’s additional materials to the extent that they support the plaintiff’s claim, as
if the materials are integral to the plaintiff’s complaint. See Dimare Fresh, 808 F.3d at 1306
(holding that courts may consider documents that are “‘incorporated by reference or integral’” to
the plaintiff’s claim) (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357 (3d ed. 2004)).
The defendant attached to its motion to dismiss the solicitation documents (ECF 13-1)
and a declaration of DLA’s contracting officer (ECF 13-2). Because the plaintiff refers to the
solicitation documents in its complaint, the Court also considers those solicitation documents but
does not consider the contracting officer’s declaration.
C. Application of the Waiver Rule
Under the Blue & Gold Fleet waiver rule, the plaintiff waives its claim if it (1) “ha[d] the
opportunity to object to the terms of a government solicitation containing a patent error,” and
(2) “fail[ed] to do so before the close of the bidding process.” Blue & Gold Fleet, 492 F.3d at
1313.
13
1. SEKRI had the opportunity to object to the DLA’s amendment
containing an alleged patent error.
A patent error is “‘an obvious omission, inconsistency or discrepancy of significance’”
that “could have been ‘discovered by reasonable and customary care.’” Per Aarsleff A/S,
829 F.3d at 1312-13 (quoting E.L. Hamm & Assocs., Inc. v. England, 379 F.3d 1334, 1339 (Fed.
Cir. 2004) and Analytical & Rsch. Tech., Inc. v. United States, 39 Fed. Cl. 34, 46 (1997)).
On April 21, 2020, the DLA provided public notice of Amendment 6, which modified the
solicitation from one seeking to acquire TAP to one seeking to acquire ATAP. (ECF 1, ¶ 24.)
Amendment 6 did not list ATAP as having a mandatory source of supply. (See id.) SEKRI
argues that this omission is error but that it is not patent. Accepting that it is error for the
purposes of the motion at hand, it must be a patent error because the omission of the mandatory
source constitutes an obvious discrepancy of significance.6 This obviousness is evidenced by
SEKRI’s own admission that it found out that the DLA was seeking ATAP through competition
shortly after the issuance of Amendment 6 and asked SourceAmerica to inquire about it. (See
ECF 14 at 3.)
Related to its opportunity to object, SEKRI argues that Blue & Gold Fleet applies only to
bidders and prospective bidders, and because SEKRI is neither a bidder nor a prospective bidder
but the mandatory source for ATAP, the waiver rule should not apply here.7 (Id. at 14-16.) For
support, SEKRI relies on this court’s decision in Red River Commc’ns, Inc. v. United States,
109 Fed. Cl. 497 (2013). In Red River, this court found that the waiver rule did not apply to a
non-offeror who was excluded from submitting a proposal by the solicitation’s terms. Id. at 511.
In that case, the solicitation at issue was not an open-source solicitation; instead, it “was issued
as a task order to an umbrella contract known as ‘NETCENTS–1.’” Id. at 500. It was advertised
only through the NETCENTS–1 website. Id. at 501. The protestor did not hold a NETCENTS–
1 contract. See id. at 510. Although the protestor in Red River learned of the solicitation prior to
the deadline for submission of proposals, the court found that Blue & Gold Fleet did not apply.
Id. at 511.
In Red River, the court distinguished other cases finding that Blue & Gold Fleet’s waiver
rule does apply to non-offerors. Id. at 507-10; see e.g., Shamrock Foods Co. v. United States,
92 Fed. Cl. 339 (2010); Infrastructure Def. Techs., LLC v. United States (“IDT”), 81 Fed. Cl. 375
(2008). Notably, unlike the solicitations in Shamrock Foods and IDT, the solicitation in Red
River was not publicly advertised. Red River, 109 Fed. Cl. at 510. The court found it “axiomatic
6
SEKRI also argues that Blue & Gold Fleet does not apply because there is no patent
ambiguity in Amendment 6. (ECF 14 at 10-12.) Blue & Gold Fleet, however, applies to cases of
patent error, not patent ambiguity. That case merely used the reasoning of the patent-ambiguity
doctrine to support the waiver rule. 492 F.3d at 1313-14.
7
SEKRI’s argument that Blue & Gold Fleet does not apply to it because it is neither an
actual nor prospective bidder undercuts the argument it makes to support its standing.
14
that if a contractor has no knowledge of the terms of a solicitation, it should not be charged with
the duty to bring any patent errors in that solicitation to the attention of the agency prior to the
close of bidding.” Id.
The protestor in Red River acquired the requisite knowledge of the solicitation’s terms to
bring a timely challenge, but the court reasoned that waiver was not appropriate. Id. at 510-11.
The court found that the policy undergirding Blue & Gold Fleet’s waiver rule—“the need for
expeditious resolution of the action” under 28 U.S.C. § 1491(b)(3)—supported an exception:
It will not serve that need [for expeditious resolution of the action]
if a protest filed by a non-offering contractor becomes ensnared in
an ancillary inquiry targeted to determining what the contractor
knew about the solicitation and when it knew it, or whether the
contractor chose the most effective means to bring the matter to the
agency’s attention.
Red River, 109 Fed. Cl. at 510. In other words, “the potential for time-consuming collateral
inquiries is too great to ignore” when a contractor is “excluded from submitting a proposal by a
solicitation’s terms and did not submit a proposal.” Id. at 511. The protestor therefore was not
required to satisfy the Blue & Gold Fleet waiver rule. Id.
The situation in Red River was different from the situation facing the plaintiff here. Most
significantly, the DLA provided public notice, “evidently through SAM.gov,” of Amendment 6
on April 21, 2020. (ECF 1, ¶ 24.) SEKRI does not allege that the amendment to the solicitation
was secret or circulated to a limited audience. It does not allege that it failed to find out about
the amendment in a timely manner such that it could not have brought a protest before the
agency or to this court while the solicitation was open. Rather, SEKRI explains that it “does not
consult such sources in order to participate in procurements, because it is a mandatory source of
supply, so it doesn’t need to.” (ECF 14-1, Decl. of Leo Miller ¶ 5.)
Although they go beyond the face of the complaint, the materials presented by the
plaintiff reveal that SEKRI found out about Amendment 6 shortly after the DLA issued it,
thereby learning of the DLA’s effort to acquire ATAP through competition. (ECF 14-1, Decl. of
Leo Miller ¶ 5.) SEKRI was not excluded from submitting a proposal by the solicitation’s terms.
As the alleged mandatory source of supply for the ATAP, SEKRI had an obligation to object to
the solicitation in a timely manner to preserve its ability to pursue a challenge in this court.
SEKRI is unable to explain why the rationale supporting the Blue & Gold Fleet’s waiver rule, as
most recently explicated by the Federal Circuit in Inserso, is inapplicable to its protest. Indeed,
the opposite is true. The policy behind Blue & Gold Fleet’s waiver rule is served because
SEKRI is “seeking the relief it could have gotten from [the DLA] earlier, before [the DLA] had
already expended considerable time and effort evaluating the bidders’ proposals.” See Inserso,
961 F.3d at 1352.
Although SEKRI’s complaint is devoid of allegations that it protested the solicitation to
the DLA, SEKRI presents the Court with documentation that it did make some effort to pursue
its claim to being the mandatory source for ATAP during the pendency of the solicitation. On
15
June 10, 2020, SourceAmerica emailed the DLA’s contracting officer regarding Amendment 6.
(See ECF 14-2.) At most the emails were an inquiry, not a complaint and certainly not a protest.
SourceAmerica explained that SEKRI is the nonprofit agency authorized to produce ATAP for
the U.S. Army and inquired whether the “DLA would be willing to move forward with
SourceAmerica” for the item. (Id.) The DLA replied that it was proceeding under the terms of
the amendment with a full and open competition. (Id.) SourceAmerica did not express
dissatisfaction or objection to the DLA in response; instead, it relayed that information on the
same day to SEKRI and encouraged SEKRI to respond to the solicitation before the proposal
deadline. (Id.) On June 10, the proposal deadline was July 20, 2020, but it was ultimately
extended to October 7, 2020. (See ECF 14-2; see also ECF 13-1, App. at 78.) Despite the
ongoing pendency of the solicitation, SEKRI took no further action, either through
administrative or judicial avenues, to challenge the solicitation and did not submit an offer.
SEKRI claims it had good cause to delay a protest because (1) it acted in accordance with
governing law through SourceAmerica; (2) it did not monitor beta.sam.gov and did not receive a
copy of Amendment 6 from the DLA; and (3) it is the DLA’s responsibility to comply with its
obligation to procure from mandatory sources. (ECF 14 at 18-19.)
Despite neither monitoring beta.sam.gov nor receiving a copy of Amendment 6 from the
DLA, SEKRI knew about it. (ECF 14-1, Decl. of Leo Miller ¶ 5.) SEKRI not only knew about
the amendment, but it pursued the issue through SourceAmerica. Following the June 10 email
exchange among SourceAmerica, the DLA, and SEKRI, SourceAmerica encouraged SEKRI “to
respond to the commercial Solicitation before it closes on July 20, 2020, while we continue to
look at other options.” (ECF 14-2.)
Given SEKRI’s economic interest in the procurement, it could not sit on its rights and
wait for the proposal deadline to pass, especially with the knowledge in June that the DLA was
not going to change course. SEKRI did not have good cause to delay a protest it would have had
until October 2020 to bring.
2. SEKRI failed to object to the DLA’s solicitation before the close of the
bidding process.
To avoid waiver, a party must object before the close of the bidding process, which
SEKRI argues means before an award is made. See Blue & Gold Fleet, 492 F.3d at 1313. In this
case, although the solicitation is closed, no award has yet been made.
The Federal Circuit has held that the waiver rule applies when a party does not challenge
the solicitation prior to the close of bidding. Per Aarsleff A/S, 829 F.3d at 1312-13; see also
MLS-Multinational Logistic Servs., Ltd v. United States, 143 Fed. Cl. 341 (2019) (“the Federal
Circuit has repeatedly determined that waiver can apply to pre-award protests as well as to post-
award protests.”). SEKRI brought the present pre-award bid protest on January 21, 2021, and
the DLA has agreed not to make an award before May 31, 2021. (ECF 1 & 11.) The close of
bidding, however, was on October 7, 2020. (ECF 13-1, App. at 81.) SEKRI did not bring a bid
protest before October 7, 2020.
16
The only question remaining is whether the SourceAmerica emails from June 10, 2020
constitute an objection to the procurement’s terms sufficient to avoid waiver under Blue & Gold
Fleet.
In 2015, the Federal Circuit held in Bannum that “mere notice of dissatisfaction or
objection is insufficient to preserve [the protestor’s] defective-solicitation challenge.” 779 F.3d
at 1380. Bannum reasoned that clarity is important for expeditious resolution of protest claims:
Requiring that the prescribed formal routes for protest be followed
(to avoid waiver) reduces uncertainty about whether the issue is
joined and must be resolved, and thereby helps prevent both the
wasted and duplicative expenses (of all bidders and the government)
and the delayed implementation of the contract that would likely
follow from laxer standards of timely presentation of solicitation
challenges.
Id.
The Federal Circuit suggested that a formal, agency-level protest or a pre-award protest
filed with the GAO would likely preserve a protestor’s challenge to a solicitation. Id. (citing
COMINT, 700 F.3d at 1382). In Bannum, because the contractor did not file a formal protest, it
waived its challenge, despite providing the contracting officer notice of its dissatisfaction with
the solicitation’s requirements. Id. at 1381.
Although there are some cases from this court applying a looser standard, these cases
predate the Federal Circuit’s decision in Bannum. See, e.g., DGR Assocs., Inc. v. United States,
94 Fed. Cl. 189, 202 (2010) (interpreting Blue & Gold Fleet to require only that “a party must
have done something prior to the closing date to protest the solicitation error”);8 Bannum, Inc. v.
United States, 115 Fed. Cl. 257, 274 (2014) (finding that a letter to the contracting officer
objecting to the solicitation requirements was sufficient to preserve the contractor’s challenge).
The discussion by the Federal Circuit in Bannum provides the controlling and decisive guidance
in the case now before the Court.
8
SEKRI cites to the related Federal Circuit decision, DGR Assocs., 690 F.3d 1335 (2012), to
argue that the Federal Circuit’s standard for what constitutes a sufficient objection is only that a
party have “done something.” (ECF 14 at 21.) Not only does that decision predate the Federal
Circuit’s decision in Bannum, which added some clarity to what is required to object, but the
applicability of DGR is limited because it discusses Blue & Gold Fleet in the context of an
application for fees under the Equal Access to Justice Act and addresses only whether the
government’s jurisdictional argument was substantially justified. See DGR Assocs., 690 F.3d at
1343-44.
17
SEKRI claims that it was following the procedures set forth by the JWOD Act and its
regulations when it raised the issue through SourceAmerica. (ECF 14 at 3.) The defendant
disagrees, pointing to the regulation governing disputes:
Disputes between a nonprofit agency and a contracting activity
arising out of matters covered by parts 51–5 [Contracting
Requirements] and 51–6 [Procurement Procedures] of this chapter
shall be resolved, where possible, by the contracting activity and the
nonprofit agency, with assistance from the appropriate central
nonprofit agency. Disputes which cannot be resolved by these
parties shall be referred to the Committee for resolution.
41 C.F.R. § 51–6.15. Although SEKRI argues that this provision only applies to the
administration of contracts, it appears to apply to disputes generally. Cf. § 51–6.9 (providing the
procedure for correspondence and inquiries during contracting activities). The regulation
demonstrates that SEKRI had an avenue to complain directly to the DLA rather than only going
through SourceAmerica to resolve its objection. Even if the regulation did not afford SEKRI a
route to complain directly to the DLA, nothing prevented SEKRI from protesting at the GAO or
this court when it discovered the alleged error in the solicitation.
SEKRI did not object to the DLA through an agency-level protest before the solicitation
closed. It did not protest at the GAO before the solicitation closed. It did not file an action in
this court before the solicitation closed. It did not do anything further prior to the proposal
deadline. As the defendant notes, SEKRI did not protest the solicitation until it filed the present
action in this court on January 21, 2021, 106 days after the close of the solicitation—more than
enough time to protest. Cf. Inserso, 961 F.3d at 1352 (noting that the protestor there “had
months to notify [the agency] of th[e] defect” in the solicitation and then an additional two
months before award); COMINT, 700 F.3d at 1383 (noting that the protestor “had two and a half
months between the issuance of [the challenged amendment to the solicitation] and the award of
the contract in which to file its protest. That was more than an adequate opportunity to object.”).
Bannum explicitly holds that a protestor must do more than provide notice of
dissatisfaction or objection to preserve its challenge. 779 F.3d at 1380. SEKRI did not do so.
3. SEKRI waived its challenge to the DLA’s amendment.
SEKRI argues that the Blue & Gold Fleet waiver rule does not apply when a challenge
rests on a statute that is protective of the protestor. (ECF 14 at 22-25.) Because the JWOD Act
is a protective statute, SEKRI argues that there should be an exception carved to the waiver rule
for its protest. The plaintiff argues that it is the government’s duty to comply with the statutory
and regulatory mandates of the AbilityOne program. (See id. at 3-4 (citing 41 U.S.C. §§ 8501-
06; 41 C.F.R. pt. 51; 48 C.F.R. subpt. 8.7).) This obligation imposed on the government should
excuse any application of the waiver rule to SEKRI.
The government is always obligated to follow the laws and regulations governing the
procurement process, but that does not remove the bidder’s responsibility to object to the
18
government’s patent errors in a timely manner if the bidder had the opportunity to do so, as
required by Blue & Gold Fleet. SEKRI does not cite to any case creating a protective-statute
exception to the Blue & Gold Fleet waiver rule (see ECF 14 at 22-25), and the Court does not
find that the basis of the plaintiff’s claim on the merits can overcome the statutory mandate in
§ 1491(b)(3), under which the Blue & Gold Fleet waiver rule derives its authority.
Because SEKRI had the opportunity to object to an alleged patent error in Amendment 6
but did not do so before the close of bidding, SEKRI waived its challenge.
IV. CONCLUSION
The plaintiff is not an actual or prospective bidder and thereby not an “interested party”
under 28 U.S.C. § 1491(b). Accordingly, the Court must dismiss sua sponte the plaintiff’s
complaint for lack of subject-matter jurisdiction under RCFC 12(b)(1) and 12(h)(3).
Even if the plaintiff had standing, it waived its claim under the Blue & Gold Fleet waiver
rule by failing to protest the solicitation upon discovering a patent error before the closing of the
proposal deadline. The Court grants the defendant’s motion to dismiss under RCFC 12(b)(6).
The Court will issue an order in accordance with this memorandum opinion.
s/ Richard A. Hertling
Richard A. Hertling
Judge
19