April 07, 2021 Feature

Protesting Too Much or Not Enough? Setting Boundaries in the Court of Federal Claims for the Recent Expansions of the Blue & Gold Waiver Rule

Matthew J. Michaels

When will an offeror who failed to raise objections prior to award waive its opportunity to protest? Should an offeror protest early and risk dismissal based on ripeness grounds, or file post-award and risk waiving its claims? The answers to these timeliness questions are not clear-cut, and recent cases have shifted the boundaries for waiver of pre-award challenges. Previously, there seemed to be a bright-line rule: Protesters must raise objections at the procuring agency, Government Accountability Office (GAO), or U.S. Court of Federal Claims (COFC) to any patent ambiguities or errors in the solicitation prior to the close of the bidding process. If timely objections are not raised, the protester waives its right to protest these patent errors and ambiguities after the contract has been awarded. This is known as the Blue & Gold waiver rule, created by the U.S. Court of Appeals for the Federal Circuit in Blue & Gold Fleet, L.P. v. United States.1

The waiver rule serves multiple purposes: (1) It removes the incentive an offeror would have to stay silent about a known solicitation flaw, wait to see if it is awarded, and, if not, file a protest to get a second bite at the apple if not selected for award, and to gain an advantage because it now knows the awarded price; (2) it prevents additional cost and inefficiency if the government and other offerors have to restart the procurement in the event of a successful protest; and (3) it provides the government with notice of any patent solicitation defects so it has a chance to correct them.

Generally, if an offeror files a timely pre-award protest with the procuring agency or Government Accountability Office (GAO) and the protest is denied, the offeror has not waived its pre-award challenge; it is given a second bite at the apple in a different forum. The offeror can raise those same pre-award objections at the Court of Federal Claims during a pre-award or potentially its post-award protest. Federal Circuit decisions in the past year have not provided much clarity regarding when a pre-award protest needs to be filed, although one upcoming decision may offer additional guidance.

In a case currently on appeal at the Federal Circuit, Harmonia Holdings Group, LLC v. United States,2 the court will decide whether the Blue & Gold waiver rule includes a “diligent pursuit” requirement—in short, whether a protester who filed a formal protest with the agency or at GAO, and whose protest was denied, can be deemed to have waived its pre-award objection by not diligently pursuing its pre-award challenge and waiting until after award to file a renewed objection at the Court of Federal Claims.

In a decision issued this past year, the Federal Circuit explicitly extended the Blue & Gold waiver rule to other pre-award objections beyond solicitation defects, particularly organizational conflicts of interest (OCI). The court in Inserso Corporation v. United States3 applied the waiver rule to an OCI and, in so doing, held the contractor to such a high standard for detecting potential protest issues during the solicitation period that contractors may be forced to file a pre-award bid protest if there is the mere potential for an OCI to occur.

Last, the Federal Circuit’s decision in Boeing Co. v. United States4 created a rule that some commentators suggest goes too far, and others welcome as setting an outer limit for situations in which the Blue & Gold waiver rule can be applied. In Boeing, the Federal Circuit held that for the waiver rule to apply, the plaintiff must have been able to bring its objection before a forum and have had the opportunity to receive a favorable outcome if the objection had merit. In other words, if there was no forum for the plaintiff to obtain relief prior to award, it cannot be said to have waived its claim. This article will address how these major cases have expanded or narrowed the Blue & Gold rule and how these new boundaries have been, and may in the future be, applied in Court of Federal Claims (COFC) cases.

The Blue & Gold Waiver Rule

The U.S. Court of Appeals for the Federal Circuit in Blue & Gold Fleet, L.P. v. United States5 created a well-known waiver doctrine based in statute and equity. The court 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.”6 This rule is a time-bar for challenges of patent ambiguities to the solicitation.

The Federal Circuit grounded this waiver rule in the jurisdictional mandate of the Court of Federal Claims in 28 U.S.C. § 1491(b)(3), which directs the COFC to “give due regard to [. . .] the need for expeditious resolution of the action” in exercising its jurisdiction. The rationale for the Blue & Gold rule is to prevent the cost, inefficiency, and unfair advantage that may occur were contractors allowed to “sit on their rights to challenge what they believe is an unfair solicitation, roll the dice and see if they receive award [sic] and then, if unsuccessful, claim the solicitation was infirm.”7

This rule was later extended in COMINT Systems Corp. v. United States,8 where the court found the Blue & Gold doctrine to apply to situations where a party did not have an opportunity to challenge the solicitation before the deadline for proposal submission, but had the opportunity to challenge the solicitation before the contract was awarded, and yet failed to do so. The court held,

“[a]ssuming that there is adequate time in which to do so, a disappointed bidder must bring a challenge to a solicitation containing a patent error or ambiguity prior to the award of the contract.9 Further, the Federal Circuit made clear in its decision in Bannum, Inc. v. United States10 that a protester was not required to file a pre-award protest at the COFC to preserve its rights; a protest filed with the agency or GAO would also likely not waive the protester’s right to raise its objection post award.11

More recently, the Federal Circuit clarified 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.”12 In Inserso, the court applied the Blue & Gold doctrine to a protest where the government’s actions allegedly gave rise to an organizational conflict of interest (OCI) and unequal treatment.

Harmonia Holdings and the Diligent Pursuit Requirement

By failing to diligently pursue a protest, a contractor may risk forfeiting its right to protest in two ways: First, it can result in a lack of standing where a prospective bidder who failed to submit a bid ceases to be an “interested party.”13 In bid protests of a solicitation, the COFC only has jurisdiction to render judgment on an action brought by an “interested party” that is an actual or prospective bidder who possesses a direct economic interest in the outcome of the bid.14 Second, a protester that fails to diligently pursue its protest in a timely manner may risk waiver of its claim under the Blue & Gold waiver rule.15 Although the Court of Federal Claims appears to have applied this rule, the Federal Circuit has not yet recognized this rule in any decision.

The “diligent pursuit” requirement is an extension of the Blue & Gold rule where not only must a party raise a pre-award objection prior to contract award, but “a party must thereafter pursue its position in a timely manner.”16 Only a handful of COFC cases have applied this extension of the waiver rule, so the boundary for when this “diligent pursuit” rule applies is not clearly defined. A current case at the Federal Circuit is testing the boundary of whether this requirement can apply to an actual offeror versus a prospective offeror.

In Harmonia Holdings Group, LLC v. United States,17 the parties are litigating over whether a protester who timely submitted a pre-award agency-level protest, which was denied, and thereafter timely submitted a proposal could waive its claim by not pursuing its protest to the COFC prior to award. In the lower Court of Federal Claims case, the court held that it is not enough to simply file an agency-level protest prior to the deadline for proposal submission; a protester must also diligently pursue its claims.18 The COFC ruled that by waiting five months to protest at the Court of Federal Claims after its agency-level protest was denied, Harmonia failed to diligently pursue its bid protest. The court determined that Harmonia had met the facial requirements of the Blue & Gold waiver rule by timely filing an agency-level protest on November 12, 2018, prior to award.19 The agency denied Harmonia’s protest on December 6, 2018.20 The contract was awarded on April 23, 2019.21 Harmonia then filed a protest at the Court of Federal Claims on May 7, 2019, roughly five months after the agency denied the protest, raising both pre-award and post-award arguments.22 The court concluded Harmonia waived its pre-award protest grounds because it failed to provide any justification for the five-month delay from the time of the agency’s decision to filing these claims at the COFC. The court reasoned that to permit Harmonia to re-raise these challenges after such a delay would “frustrate the holding in Blue & Gold and functionally give Harmonia a second bite at the apple.”23

In its appeal to the Federal Circuit, Harmonia contends the COFC has incorrectly “grafted a portion of this Court’s diligent pursuit doctrine, applicable to prospective offerors, onto the waiver rule.”24 The appellant also argues the COFC conflated the Blue & Gold waiver rule with the concept of standing. Harmonia contends the “diligent pursuit” rule is not applicable to a protester who, like Harmonia, submitted a bid and is an actual offeror; rather, the diligent pursuit rule is only used to determine whether a protester maintains standing as a prospective offeror.25

Although the Federal Circuit has not yet addressed the diligent pursuit rule in the context of the Blue & Gold waiver rule, the COFC previously applied this rule to a prospective offeror in DGR Associates, Inc. v. United States.26 DGR protested a Department of the Air Force solicitation issued as a competitive 8(a) set-aside procurement, arguing the Air Force was required under the Small Business Act to set aside the solicitation for HUBzone Small business concerns. Before the solicitation was issued, DGR requested the Air Force set aside this contract for HUBzone small businesses, which the Air Force refused to do. Prior to the solicitation closing date, DGR filed an agency-level protest alleging the Air Force failed to set aside this procurement for HUBzone small businesses, yet the Air Force continued with the procurement and accepted proposals. Within 10 days, DGR filed a protest at GAO. GAO ruled in DGR’s favor and recommended the Air Force cancel the current solicitation and reissue it as a HUBzone set-aside procurement; the Air Force refused to comply with GAO’s recommendation. Within 10 days of receiving notice of the Air Force’s decision, DGR filed a protest at the Court of Federal Claims seeking declaratory and injunctive relief.27 The Air Force contended that the court’s jurisdiction over this challenge was barred by the Blue & Gold waiver doctrine because DGR failed to file a pre-award protest with the court prior to the closing date for receipt of proposals.28

The court held that the Blue & Gold waiver rule does not require protesters to file at the Court of Federal Claims prior to the solicitation closing date; rather, “the protester must have done something prior to the closing date to protest the solicitation error, before raising the same objection subsequently . . . in the Court of Federal Claims.”29 Further, “a party must thereafter pursue its position in a timely manner.”30 The court ruled that the protester had not waived its objection to the solicitation requirements because it had “diligently pressed its position without waiver at each step of the way.”31

Although the Appellant in Harmonia Holdings argued the diligent pursuit rule does not apply to “actual offerors” who submitted a timely proposal, the COFC appears to have applied the rule in such a context in MLS-Multinational Logistics Services, Ltd. v. United States.32 In MLS-Multinational Logistics, the protester objected to the solicitation requirements it alleged were contrary to Port Tariff regulations. MLS filed an agency-level protest prior to the proposal due date and timely submitted a proposal prior to the due date of November 25, 2017. The agency rejected the protest on January 19, 2018, before contract award.33 Ten days later, the protester filed a protest at the GAO, which GAO ultimately dismissed on March 15, 2018.34 On April 30, 2018, the Agency awarded a contract to MLS, one of nine contractors awarded. Although MLS was awarded a contract, it reasserted its objections at the COFC on July 11, 2018, nearly four months after its GAO protest was dismissed.35

The COFC held the four-month delay had not resulted in the protester waiving its objections to the solicitation requirements. The COFC determined the protester had a justification for waiting to file a protest at the COFC, stating “MLS’ good faith discussions with the Navy, and hope for a resolution, explains the delay between the dismissal of the GAO protest and MLS filing suit in the United States Court of Federal Claims.”36 Although the protester was ultimately found to lack standing to protest because it was a contract awardee, the COFC appears to have applied a “diligent pursuit” requirement to allegations that an actual offeror waived its claim.

Although the “diligent pursuit” requirement may change with the Federal Circuit’s upcoming decision in Harmonia Holdings, the current best practice is for the contractor to submit a proposal even if it has already filed a pre-award challenge, and to diligently pursue its claim to the Court of Federal Claims if it is denied at the agency or GAO.

Inserso and the Reasonable and Customary Care Standard Applied to OCIs

Ambiguity has been and is at the center of the Blue & Gold waiver rule, as the rule only applies to patent, rather than latent, defects. An ambiguity or error is patent if it is “an obvious omission, inconsistency or discrepancy of significance.”37 In contrast, a latent ambiguity “is a hidden or concealed defect which is not apparent on the face of the document, could not be discovered by reasonable and customary care, and is not so patent and glaring as to impose an affirmative duty on plaintiff to seek clarification.”38

The standard for what is considered reasonable and customary care to uncover potential defects appears to be changing, imposing an affirmative duty to seek clarification even where a defect may not be so glaring. Several decades ago, the COFC held that “although the potential contractor may have some duty to inquire about a major patent discrepancy, or obvious omission, or a drastic conflict in provisions [. . .] he is not normally required (absent a clear warning in the contract) to seek clarification of any and all ambiguities, doubts, or possible differences in interpretation.”39 More recently, courts have found a potential offeror may have a duty to inquire or seek clarification of any and all defects that an offeror, taking reasonable and customary care, would have reason to believe exist.

For example, in Communication Construction Services, Inc. v. United States,40 the court determined that information on the industry day slides for that procurement identified the name and role of one offeror’s employees in source selection for this particular procurement. The protester filed a post-award protest alleging that the involvement of these individuals constituted an OCI. The court found the protester waived its OCI objection because the information it received during industry day was sufficient to “trigger[] a duty to inquire” and an “obligat[ion] to seek clarification of the issue.”41 There, the offeror received information, during the proposal period, indicating the OCI defect existed. However, in the recent Inserso case, the protester was held to a higher standard—one where the defect did not yet exist, but it was possible the OCI could (and likely did) arise in the future. This is a significantly higher level of reasonable and customary care than the Federal Circuit has previously imposed on protesters.

The Inserso case involved a bid for a multiple award contract that was split into two “suites”—one for full and open competition and one for small business—and the statement of work and evaluation criteria were very similar for both competitions.42 The Defense Information Systems Agency (DISA) ENCORE III contract was anticipated to be awarded to 20 small business awardees. Small business competitors were permitted to and did compete in both the full-and-open competition as well as the small business competition. Inserso competed only in the small business competition. The procurement schedules for both suites were originally aligned so awards were anticipated to be made on the same date. Proposals for both competitions were submitted on October 21, 2016, but the procurement schedules quickly diverged.43 Awards for the full and open competition were made on November 2, 2017, while the small business competition ended up requiring four proposal revisions, with the final revised proposals due on June 20, 2018. Awards for the small business suite were made on September 7, 2018. Inserso was not awarded a contract for the small business suite and requested a debriefing. In its debriefing, Inserso was provided with the pricing for all awarded contracts and detailed information on how cost elements were evaluated. Inserso, recognizing that some small businesses had participated in both suites, asked the agency if small business competitors in the full and open competition had received similarly detailed and competitively useful debriefing information from the full and open competition. DISA confirmed that competitors in both suites had received the same level of detail in their respective debriefings.44

Inserso filed a protest at the Court of Federal Claims alleging that the unequal disclosure of information created an organizational conflict of interest in violation of 48 C.F.R. §§ 9.504 and 9.505. The Court of Federal Claims found that although a significant OCI violation creates the presumption of prejudice, in this case the government demonstrated there was no prejudice to Inserso.45 Inserso appealed to the Federal Circuit.46

The Federal Circuit did not reach the issue of prejudice because it found Inserso’s protest was barred by the Blue & Gold waiver rule.47 The court ruled Inserso waived its right to challenge the Agency decision to provide detailed evaluation and award information because Inserso should have known from the solicitation that the Agency would provide such information in the debriefings. Offerors are “charged with knowledge of law and fact appropriate to the subject matter.”48 Because Federal Acquisition Regulation (FAR) 15.503(b)(1)(iv) requires the total contract price to be furnished in the award notice, Inserso should have known that unsuccessful offerors would have access to that information. Similarly, Inserso should have known that federal regulations require certain detailed evaluation information to be disclosed during the debriefing—for example, significant weaknesses/deficiencies and overall cost, price, and technical ratings of the successful offerors and debriefed offeror. As such, the court charged Inserso with constructive knowledge of the alleged OCI and held that Inserso waived its right to challenge the government’s actions.49

The court held the protester waived its OCI challenge because “a bidder in the small-business competition exercising reasonable and customary care would have been on notice of the now-alleged defect in the solicitation long before the awards were made.”50 That the court found the purported OCI in Inserso to be patent rather than latent indicates that in the future a protester will have to protest if there is even the slightest indication of a potential OCI, or risk forfeiting its OCI challenge.

Boeing and Pre-award Protests Require a Forum for Relief

The last major Federal Circuit decision in 2020 to move the boundaries of the Blue & Gold waiver rule is the court’s decision in Boeing Co. v. United States,51 where the Blue & Gold rule was used to attempt to block assertion of a post-award contract claim. The Boeing decision has received mixed reviews in the government contracts community. Some commentators welcome the fact that the decision seems to finally place a limit on the applicability of the Blue & Gold waiver rule in situations where a protester could not have received relief even if it filed a pre-award protest.52 Others view the primary effect of the Boeing decision as going too far by applying the pre-award waiver rule to post-award contract disputes and administration issues.53 What is clear is the courts will likely refuse to apply the waiver where the government fails to demonstrate the existence of a forum in which the protester could have received substantive relief on the issue involved. This section will review how the waiver rule was addressed in that case, and whether a contractor should file a pre-award protest in order to avoid forfeiting its only opportunity to contest an issue. Further, it will discuss how the courts may handle such cases in the future.54

Boeing alleged FAR 30.606, which was listed in the solicitation and incorporated in the awarded contract, was contrary to 41 U.S.C. § 1503(b) of the Cost Accounting Standards (CAS) statute because the regulation requires the government to disregard changes to a contractor’s cost accounting procedures that result in lower costs to the government while enforcing against a contractor changes that increase government costs; in contrast, the CAS statute requires the government to consider as a group both cost-lowering and cost-increasing changes. The Court of Federal Claims dismissed Boeing’s claim, ruling that Boeing waived its right to challenge the acquisition regulation and solicitation because Boeing failed to do so prior to award.55

The Federal Circuit held that the COFC erred in ruling that Boeing waived its challenge to FAR 30.606. It stated the contractor did not waive its challenge to the acquisition regulation because it did not have an opportunity for an effectual protest prior to award. The government agreed the agency was required by law to adhere to FAR 30.606 and therefore could not have provided the relief prior to award, which Boeing later sought post award. The court also found the government failed to identify any court or tribunal where Boeing could have received relief. Although the court noted that a contractor’s failure to pursue judicial relief prior to award may in some circumstances result in a waiver, a waiver does not apply where the government is unable to identify some judicial forum where the contractor could have received relief on the merits had the contractor raised the challenge prior to award.56

In a recent COFC case, the court applied a similar rationale to a challenge to a GSA solicitation that put offerors on notice of a possible conflict between the Small Business Runway Extension Act of 201857 and SBA’s interpretation of when this statute takes effect.

In BTAS, Inc. v. United States,58 BTAS objected to the SBA’s use of a three-year period rather than a five-year period to determine BTAS’s average annual receipts. The procuring agency, General Services Administration (GSA), contended that BTAS waived this argument by not objecting to this methodology during the proposal period. The solicitation contained an amendment specifically notifying offerors that the SBA intended to calculate average annual receipts using a three-year period.59 The court held that it could not have provided the protester with relief prior to award because the GSA did not have authority regarding use of the three-year versus the five-year period. As such, any protest of this GSA procurement would have been ineffective. Rather, the protester had to wait until the SBA made a small business size determination in order to protest.60

Therefore, a pre-award protest would not have been supported by the rationale of the Blue & Gold rule because a pre-award protest would not have been effective in forcing the GSA to revise the solicitation. As the court stated, “[r]equiring GSA to state in the Solicitation that the Runway Extension Act mandated the use of a five-year averaging period would have been an empty promise, given that size determinations are made by the SBA and not GSA.”61 Therefore, a pre-award protest would not have furthered the COFC’s jurisdictional mandate to give due consideration to need for expeditious resolution of the action, the justification for it under the Blue & Gold waiver rule. The court held that BTAS had not waived its claim under the Blue & Gold standard.62

One example of when this type of situation may occur in the future is with conflicting agency interpretations regarding facility security clearances for mentor-protégé joint ventures. The SBA recently revised its regulations to state that a joint venture may be awarded a contract where the partner venturer who will perform the cleared portion of the work has the required facility security clearance (FCL).63 However, it is the Defense Counterintelligence and Security Agency (DCSA), not the SBA, that issues facility security clearances to joint ventures, in accordance with 32 C.F.R. pt. 2004, National Industrial Security Program Directive No. 1. Department of Defense (DoD) regulations require joint ventures to have a facility clearance if they are awarded a classified contract. On December 4, 2020, the DCSA Office of Small Business Programs issued a memorandum acknowledging an apparent conflict in the two regulations, stating, “[p]ending reconciliation of these rules and ISOO guidance, DoD will continue to follow the requirements in 32 C.F.R. pt. 2004 and DoD policies in regard to the facility security clearance requirements for entities, to include joint ventures [. . .] that require access to classified information.”64 Essentially, the DCSA will not follow the SBA regulations.

If an 8(a) set-aside solicitation incorporates the SBA’s views on this issue, a contractor who wishes to exclude a joint venture competitor, where the members have facility security clearances but the JV does not, may not have to protest this issue prior to award. Assuming a protester could not receive effective relief in any forum by protesting prior to award, the Boeing and BTAS decisions indicate the offeror will not have waived its right to challenge this after award. However, given the changing nature of the Blue & Gold waiver rule, perhaps the safest route is to file a protest, even if it is dismissed as premature. Given the harsh consequences of failing to submit a timely protest, contractors should keep their eye on the shifting boundaries of the Blue & Gold waiver rule, particularly on the Harmonia Holdings decision set to come out later this year..


1. 492 F.3d 1308 (Fed. Cir. 2007).

2. Case No. 20-1538 (Fed. Cir. Apr. 14, 2020).

3. 961 F.3d 1343 (Fed. Cir. 2020).

4. 968 F.3d 1371 (Fed. Cir. 2020).

5. 492 F.3d 1308.

6. Id. at 1313.

7. Id. at 1314 (alteration in original) (quoting Argencord Mach. & Equip., Inc. v. United States, 68 Fed. Cl. 167, 175 n.14 (2005)).

8. 700 F.3d 1377 (Fed. Cir. 2012).

9. Id. at 1382 (emphasis added).

10. 779 F.3d 1376, 1380 (Fed. Cir. 2015).

11. See id. at 1380 (“filing a formal, agency-level protest before the award would likely preserve a protester’s post-award challenge to a solicitation, as might a pre-award protest filed with the GAO”).

12. Inserso Corp. v. United States, 961 F.3d 1343, 1349 (Fed. Cir. 2020) (quoting COMINT Sys. Corp., 700 F.3d at 1381).

13. See CGI Fed. Inc. v. United States, 779 F.3d 1346, 1351 (Fed. Cir. 2015) (a protester that “fail[s] to continue to pursue its rights in a diligent fashion [. . .] cease[s] to be a prospective bidder”); see also Palantir Techs. Inc. v. United States, 128 Fed. Cl. 21, 42 (2016) (holding Palantir did not lose its prospective offeror status as a result of the 43-day delay in filing the protest in this court after the GAO decision was issued).

14. See 28 U.S.C. § 1491(b)(1); 31 U.S.C. § 3551(2).

15. See DGR Assocs., Inc. v. United States, 94 Fed. Cl. 189, 202–03 (2010).

16. Id.

17. Case No. 20-1538 (Fed. Cir. Apr. 14, 2020).

18. Harmonia Holdings Grp., LLC v. United States, 146 Fed. Cl. 799 (2020).

19. Id. at 812–13.

20. Id. at 813.

21. Id. at 808.

22. Id. at 813.

23. Id. at 814.

24. Brief of Appellant at 33–34, Harmonia Holdings Grp., LLC v. United States, Case No. 20-1538 (Apr. 14, 2020), ECF No. 23.

25. Id. at 22.

26. 94 Fed. Cl. 189 (2010).

27. Id. at 196–99.

28. Id. at 200.

29. Id. at 202–03.

30. Id. at 203.

31. Id. at 204.

32. 143 Fed. Cl. 341 (2019).

33. Id. at 349.

34. Id. at 350.

35. Id. at 351.

36. Id. at 359.

37. Per Aarsleff A/S v. United States, 829 F.3d 1303, 1312 (Fed. Cir. 2016) (internal quotation marks omitted).

38. Id.

39. WPC Enters., Inc. v. United States, 323 F.2d 874, 877 (Ct. Cl. 1963), disapproved of on other grounds by United States v. Anthony Grace & Sons, Inc., 384 U.S. 424 (1966).

40. 116 Fed. Cl. 233 (2014).

41. Id. at 264.

42. Inserso Corp. v. United States, 961 F.3d 1343, 1346 (Fed. Cir. 2020).

43. Id.

44. Id. at 1347.

45. Id.

46. Id. at 1349.

47. Id. at 1350.

48. Id. (quoting Per Aarsleff A/S v. United States, 829 F.3d 1303, 1314 (Fed. Cir. 2016)).

49. Id. at 1350–51.

50. Id. at 1352.

51. 968 F.3d 1371 (Fed. Cir. 2020).

52. See, e.g., Aron Beezely & Nathaniel Greeson, Fed. Circ. Inconsistent on Bid Protest Waiver Precedent, Law360 (Aug. 14, 2020), https://www.law360.com/articles/1301404/fed-circ-inconsistent-on-bid-protest-waiver-precedent.

53. See, e.g., Ralph C. Nash, Postscript: Challenging Contract Administration Procedures, 33 Nash & Cibinic Rep. NL ¶ 35.

54. A thorough summary of Boeing Co. v. United States, 968 F.3d 1371, 1382 (Fed. Cir. 2020), was recently included in the Winter 2020 edition of The Procurement Lawyer, so only a brief summary of the case is provided here.

55. Boeing Co., 968 F.3d at 1373.

56. Id. at 1380.

57. Small Business Runway Extension Act of 2018, Pub. L. No. 115-324, 132 Stat. 4444.

58. 2021 U.S. Claims LEXIS 32 (Jan. 21, 2021).

59. Id. at *6–7.

60. Id. at *19.

61. Id.

62. Id.

63. 13 C.F.R. § 121.103(h)(4).

64. Memorandum from Steve Mapes, Def. Counterintelligence & Sec. Agency, Off. of Small Bus. Programs, Weekly Director’s Message (Dec. 2020), https://cbd5ffc8-9d52-426b-8c7c-2f0b48f19b8.usrfiles.com/ugd/cbd5ff_aa1d892dc7ba4d8ba5d946f54b2646a2.pdf.


Matthew J. Michaels


Matthew J. Michaels, an associate with Barnes & Thornburg LLP in Washington, D.C., focuses his practice on federal procurement law matters such as bid protest, size protest, federal regulatory compliance, and small business contracting.