The implications of the Federal Circuit’s Blue & Gold waiver rule – pursuant to which a disappointed offeror waives any protest grounds it may have had to the terms of a solicitation that the offeror could have, but failed to, raise pre-award – continues to reverberate in unexpected ways when applied to real-life procurement situations.  In VS2, LLC v. United States, — Fed. Cl. — (Fed. Cl. 2021), the Court of Federal Claims (“COFC”) declined to further expand the Blue & Gold waiver rule to all challenges to a procurement action that could have been made pre-award, signaling that the edge of the Blue & Gold sword may be starting to dull and its reach limited.

Continue Reading “You Got To Know When To Protest” Part III: The Court Of Federal Claims Declines To Expand Blue & Gold Waiver Rule For Bid Protests “Any Further Than The Federal Circuit Already Has”

Many small businesses learn the hard way that a “bid protest” and a “size protest” differ in much more than name only. Whereas generally a “bid protest” challenges agency action taken in connection with a procurement and can be timely brought at the Government Accountability Office (“GAO”) or in the U.S. Court of Federal Claims (“COFC”) after award, a “size protest” challenges an offeror’s eligibility as “small” for a small business set-aside and must be filed with the U.S. Small Business Administration (“SBA”) within 5 days of contract award; otherwise, a disappointed offeror will forfeit its right to challenge the awardee’s size. While this consequential distinction may seem clear in a vacuum, a recent decision by the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) demonstrates that distinguishing between a “bid protest” and a “size protest” may not always be so easy. Instead, the Federal Circuit’s decision leaves open the possibility that even when a timely size protest was not filed with the SBA, a disappointed offeror still may be able to challenge the contracting officer’s failure to refer an awardee of a small business set-aside to the SBA for a size status determination by filing a bid protest at the COFC.


Continue Reading “What’s In A Name?”: Federal Circuit Holds Claims Court Blurred Distinction Between ‘Size Protests’ And ‘Bid Protests’ In Dismissal For Failure To Exhaust Administrative Remedies