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The Blue & Gold Waiver Rule – Jurisdictional or Procedural?

In Blue & Gold, Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007), the Court held that objections to a solicitation must be made prior to the close of bidding and if the offeror fails to do so, their objection is waived. This waiver rule was found to be a jurisdictional bar at the Court of Federal Claims in M.R. Pittman Group, LLC v. United States; however, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision yesterday, clarifying that the waiver rule outlined in the Blue & Gold case is “more akin to a non-jurisdictional claims-processing rule” than it is to a jurisdictional rule. Specifically, the Court held, “an offeror’s failure to timely object to a solicitation error does not strip the offeror of its ability to have its protest heard in front of the claims court.” Rather, the waiver rule creates a procedural obligation that requires the protestor to raise its objection to the solicitation before the close of bidding in order for its objection to be properly before the Court. (See the Court’s decision here.)


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