By failing to object to solicitation terms before the close of bidding, a protester typically waives those objections in a post-award bid before the Court of Federal Claims (COFC). An exception exists, however, where a protester filed a timely pre-award agency-level protest challenging patent errors or ambiguities.
But, as powerfully illustrated by the COFC’s decision in Harmonia Holdings Group, LLC v. United States, this exception is limited. In that case, Harmonia, one of the offerors on the procurement, initially brought an agency-level protest to challenge the U.S. Customs and Border Protection’s (CBP) issuance of two amendments to the solicitation, arguing that the agency improperly denied offerors the opportunity to revise their proposals in response to these amendments. CBP denied the protest.
Approximately five months later, and shortly after CBP had awarded the contract to another contractor, Harmonia again raised its pre-award protest ground, this time in a protest before the COFC that also challenged the award. Harmonia, for its part, provided no reason for the delay but contended that its agency-level protest of CBP’s amendments was sufficient to preserve the issue for a post-award COFC protest.
The COFC rejected this argument. Recognizing the principle that a pre-award agency-level protest of patent errors in a solicitation would “likely” preserve the issue in a post-award protest, the COFC held Harmonia waived its pre-award protest grounds by delaying for nearly five months. The COFC’s inquiry focused on whether Harmonia diligently or timely pursued its position to avoid unnecessary after-the-fact litigation. Given the unexplained five-month delay between the two protests, the COFC explained, Harmonia failed to satisfy this standard. The COFC further reasoned that excusing Harmonia’s undue and unexplained five-month delay would effectively give it a “second bite of the apple.”
The COFC’s decision makes clear that if contractors lose pre-award agency-level protests, they must diligently pursue those grounds if they wish to have those challenges reviewed by the COFC (or the Government Accountability Office (GAO)), or else risk waiving the issue altogether.
If you have any questions about the Harmonia decision or pre-award protests more generally, please contact Richard Arnholt or any member of our Government Contracts Practice Group.