In our previous blog article, we discussed the Federal Circuit’s decision in Inserso Corp. v. United States, 961 F.3d 1343 (Fed. Cir. 2020), in which a split panel held a protest cannot be brought in the U.S. Court of Federal Claims (“COFC”) if, before the time of proposal submission, “the law and facts” made it reasonably known to the contractor that a procurement error was likely to occur under the terms of the solicitation.  We analogized the Inserso decision’s application of this waiver rule – known in government contracts law parlance as the Blue & Gold rule – as creating a kind of gambling transaction for government contractors, forcing them to predict what “law” and what “facts” can reasonably be known before proposal submission, lest they risk forfeiting any opportunity for challenging an erroneous procurement decision based on that “law” and those “facts.”  In our prior posting, we suggested that Inserso seems to advise offerors to adopt a fairly expansive approach in assessing whether the available “law and facts” merit the filing of an early protest.  To wait is to risk the dismissal of your protest; to file may result in otherwise avoidable legal fees and a dismissal of your protest as premature, but – in that event – you will still be “in the game.”…
Continue Reading “You Got To Know When To Protest” Part II: Federal Circuit Holds Blue & Gold Waiver Rule For Bid Protests Inapplicable When Pre-Award Objection Would Have Been “Futile”