A recent appeals court decision on an offeror’s waiver of Blue & Gold provides an opportunity to review what the rule means for offerors bidding on federal contracts.

Blue & Gold is used as a term-of-art for the requirement in cases before the Court of Federal Claims (one of two potential protest tribunals available to offerors, the other being GAO) that an offeror must protest a patent ambiguity, as opposed to a latent ambiguity, prior to contract award or said offeror waives its right to protest the ambiguity postaward.

Without this rule, offerors could either protest preaward or “save” their patent-ambiguity protest until after they learned the award decision (and presumably had lost).

Why blue and gold, and what’s a patent ambiguity?

The name refers to Blue & Gold Fleet, LP v US, 492 F.3d 1308, 1313 (Fed. Cir. 2007), in which the Federal Circuit found that an offeror with “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.”

But what distinguishes a patent from a latent ambiguity? Unfortunately we have to turn to case law. In 2022, the Federal Circuit, in Lebolo-Watts Constructors v Secretary of the Army, affirmed the Armed Services Board of Contract Appeals’ finding that a patent ambiguity is a matter “important” to the contract at hand, one which a competent offeror would need to know to bid. This is opposed to a latent ambiguity, which is not readily apparent and would not necessarily be discovered by an offeror over the course of developing its proposal. (Around the Beltway, we call this solutioning and storyboarding with varying levels of sarcasm.)

So, all unstated or unclear matters that are important enough to affect how an offeror responds to an RFP are patent ambiguities and must be resolved prior to the proposal deadline. Offerors’ only avenue for answering such questions is to submit them to the government and await the government’s response to all offerors. This means that the government’s refusal to resolve a patent ambiguity could draw a preaward protest, rendering RFP deadlines for questions feckless.

What just happened at Federal Circuit to trigger this post?

In MR Pittman Group, LLC, v US (Fed. Cir. 2021-2325), the appeals court heard from an offeror eliminated from a small-business competition because, while the solicitation itself did not contain a NAICS code, the SAM.gov entry did, and MR Pittman was not small under the code. The company protested to the Court of Federal Claims, which dismissed its protest because:

• MR Pittman should have resolved the NAICS code confusion prior to the submittal deadline in accordance with Blue & Gold, and
• because the company did not, the Court of Federal Claims did not have jurisdiction to hear its protest.

MR Pittman appealed, and the Federal Circuit disagreed with the second bullet, finding the Court of Federal Claims should not have dismissed the protest on jurisdictional grounds, because Blue & Gold is a rule that must be followed to receive relief from the courts rather than something that denies courts’ jurisdiction to hear the case. It also found MR Pittman waived its right to a postaward protest under Blue & Gold, upholding the award decision.