Inserso Corp. v. United States
961 F.3d 1343
Fed. Cir.2020Background
- DISA issued the "Encore III" solicitation with two parallel competitions: a full‑and‑open suite and a small‑business suite; small businesses could compete in both but receive at most one award.
- Some firms (via joint ventures/partnerships) participated in the full‑and‑open competition while also competing (directly or indirectly) in the small‑business competition; Inserso competed only in the small‑business suite.
- The full‑and‑open awards and debriefings occurred in Nov. 2017; the small‑business competition continued with final proposal revisions due June 20, 2018 and awards on Sept. 7, 2018.
- Full‑and‑open debriefings disclosed winners’ total evaluated prices and cost‑evaluation details; Inserso received no award (23rd of many) and alleged that unequal disclosure gave competitors an unfair advantage and violated FAR subpart 9.5 and equal‑treatment provisions.
- Inserso filed a GAO protest (dismissed), then sued in the Court of Federal Claims; the Claims Court found a possible regulatory violation but concluded the government rebutted presumed prejudice and entered judgment for the United States.
- The Federal Circuit vacated and remanded, but on the alternative ground that Inserso forfeited its right to challenge the solicitation by not objecting before the small‑business competition concluded; the appellate court did not decide the prejudice/merits issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Forfeiture/waiver of solicitation challenge (Blue & Gold) | Inserso could not reasonably have known full‑and‑open debriefings would occur while small‑business proposals remained open; the alleged defect was latent. | Government: solicitation and FAR made such disclosures likely; Inserso had notice and time to object before final proposals; failure to do so forfeits the claim. | Court: Inserso forfeited its challenge by failing to timely object; Blue & Gold timeliness/waiver rule applies. |
| Presumption of prejudice from an OCI / regulatory violation | Where an OCI or unequal disclosure is identified, prejudice is presumed; Inserso argued prejudice. | Government: rebutted any presumption of prejudice to Inserso. | Federal Circuit did not resolve prejudice; vacated CFC judgment and remanded to enter judgment based on forfeiture rather than prejudice finding. |
| Validity/applicability of Blue & Gold in light of SCA Hygiene | Dissent/Inserso: Blue & Gold’s time‑bar conflicts with SCA Hygiene and Congress’s six‑year limitations; Blue & Gold is a judicial timeliness rule that should not override statutory limits. | Majority: Blue & Gold remains applicable under §1491(b)(3)’s direction to give due regard to expeditious resolution and prior precedent. | Majority applied Blue & Gold; dissent argued that SCA Hygiene undermines that rule and that the court should address merits. |
| Merits — whether disclosure violated FAR (OCI / unequal treatment) | Inserso: disclosure of total evaluated prices and cost‑evaluation details created unfair competitive advantage and violated FAR §§9.504–9.505 and equal‑treatment provisions. | Government: debriefings and disclosures were consistent with FAR/normal practice; any competitive advantage claim was rebutted. | Claims Court found a possible regulatory violation but concluded lack of prejudice; Federal Circuit left merits unresolved and remanded for judgment based on forfeiture. |
Key Cases Cited
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (established rule that failing to challenge a patent solicitation defect before bid close forfeits later protest)
- SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 137 S. Ct. 954 (U.S. 2017) (Supreme Court: laches cannot override a statute of limitations; timing doctrines must respect congressional limits)
- Per Aarsleff A/S v. United States, 829 F.3d 1303 (Fed. Cir. 2016) (defines "patent" solicitation defects discoverable by reasonable care)
- COMINT Sys. Corp. v. United States, 700 F.3d 1377 (Fed. Cir. 2012) (applies Blue & Gold waiver rule to solicitation challenges)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (requires factual findings on prejudice in bid protest cases)
- Daewoo Eng'g & Constr. Co. v. United States, 557 F.3d 1332 (Fed. Cir. 2009) (standard of review for Claims Court legal conclusions and factual findings)