INSERSO CORPORATION, Plаintiff-Appellant v. UNITED STATES, Defendant-Appellee FEDITC, LLC, RIVERSIDE ENGINEERING, LLC, Defendants
2019-1933
United States Court of Appeals for the Federal Circuit
June 15, 2020
Appeal from the United States Court of Federal Claims in No. 1:18-cv-01655-LAS, Senior Judge Loren A. Smith.
Decided: June 15, 2020
RICHARD P. RECTOR, DLA Piper LLP (US), Washington, DC, for plaintiff-appellant. Also represented by DAWN STERN; CARL BRADFORD JORGENSEN, Austin, TX.
ANTHONY F. SCHIAVETTI, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant-appellee. Also represented by JOSEPH H. HUNT, ROBERT EDWARD KIRSCHMAN, JR., DOUGLAS K. MICKLE.
Before REYNA, MAYER, and TARANTO, Circuit Judges.
Opinion for the court filed by Circuit Judge TARANTO.
Dissenting opinion filed by Circuit Judge REYNA.
The United States Defense Information Systems Agency (DISA), which is part of the U.S. Department of Defense, awarded contracts to multiple firms that bid for the opportunity to sell information technology services to various federal government agencies. Inserso Corporation unsuccessfully competed to be one of the firms awarded a contract. In an action filed against the United States in the Court of Federal Claims, Inserso alleged that DISA disclosed information to certain other bidders but not Insеrso, giving the rival bidders an unfair competitive advantage. The Court of Federal Claims held that DISA‘s disclosure did not prejudice Inserso in the competition and on that basis entered judgment in favor of the government. Inserso Corp. v. United States, 142 Fed. Cl. 678 (2019).
We agree that judgment in favor of the government is appropriate, but on a different ground. We conclude that, because Inserso did not object to the solicitation when it was unreasonable to disregard the high likelihood of the disclosure at issue, Inserso forfeited its ability to challenge the solicitation in the Court of Federal Claims. We do not reach the prejudice portion of the court‘s decision. We therefore vacate that decision and remand for the court to enter judgment consistent with this opinion.
I
On March 2, 2016, DISA publicly posted Solicitation No. HC1028-15-R-0030 (Encore III). The solicitation invited firms to bid for the opportunity to enter into indefinite-delivery/indefinite-quantity contracts under which the awardees would provide information-technology services to the Department of Defense and other federal agencies. The solicitation states that the contracts would involve fixed-price and cost-reimbursement task orders and that awards of contracts would be made to offerors whose proposals provided the best value to the government and satisfied the evaluation criteria.
The solicitation lists three criteria for evaluating proposals: (1) the bidder‘s technical/management approach, (2) the bidder‘s past performance, and (3) cost/price information. For the evaluation of price, the solicitation states, DISA would calculate a “total proposed price” and a “total evaluated pricе.” J.A. 101918. The total proposed price would be calculated by applying government-estimated labor hours for each year of contract performance to each of offeror‘s proposed fixed-price and cost-reimbursement labor rates; in turn, the total evaluated price would be calculated by adjusting any cost-reimbursement rates that DISA determined were unrealistic. The proposals with the lowest total evaluated price would then be evaluated for compliance with the other terms of the solicitation.
DISA divided the Encore III competition into two competitions. One competition would award a “suite” of contracts in a “full and open” competition; the other would award a suite of contracts to small businesses. J.A. 101891. DISA anticipated awarding up to twenty contracts in each competition.
Importantly, the solicitation expressly states that small businesses could compete in both competitions but could receive only one award. J.A. 101892. The solicitation also provides that firms could compete through joint ventures or partnerships. J.A. 101907. Under those provisions, several firms that bid in the small-business competition in fact also competed in the full-and-open competition as part of joint ventures. Inserso competed only in the small-business competition.
Bidders in both competitions submitted their proposals by October 21, 2016. But the timing of the two competitions quickly diverged. On November 2, 2017, DISA notified successful and unsuccessful bidders in the full-and-open competition of their award status. By November 8, 2017, i.e., less than a week later, DISA completed the debriefing process by which it discloses certain details of the agency‘s selection decision to winners and losers. See
DISA had not yet completed evaluating the proposals submitted in the separate small-business competition and was still communicating with bidders in that competition. By October 18, 2017, DISA had received responses to the first round of evaluation notices it had sent to small-business
DISA notified successful and unsuccessful bidders of its award decisions for the small-business suite on September 7, 2018. Inserso did not receive an award because its total evaluated price was the 23rd lowest in a competition for twenty slots. DISA attached a debriefing document to its notice to Inserso. The debriefing included—among other things—the total evaluated price for the twenty awardees and some previously undisclosed information on how DISA had evaluated the cost element of the proposals.
In response to its debriefing, Inserso sent follow-up communications to DISA. Inserso noted that several awardees in the small-business competition had also competed in the full-and-open competition as part of joint ventures or partnerships, and it asked whether those entities had received similarly detailed debriefings at the conclusion of the full-and-open competition (in fall 2017). Inserso expressed concern that, if so, the earlier debriefing would have provided unequal information giving a competitive advantage to some of the bidders in the pending small-business competition. In response, DISA stated that all unsuccessful bidders in both competitions were given similarly detailed information in their debriefings.
On September 12, 2018, Inserso filed a protest in the United States Government Accountability Office (GAO). See
On October 25, 2018, Inserso filed its own complaint in the Court of Federal Claims, alleging that the full-and-open debriefing gave certain offerors in the small-business competition a competitive advantage by providing them, but not other bidders, the total evaluated price for all full-and-open awardees and previously undisclosed information regarding DISA‘s evaluation methodology. Inserso alleged that this unequal provision of information created an organizational conflict of interest in violation of
The Court of Federal Claims ruled in favor of the government. Without definitively finding a violation, the court recognized that the challenged disclosure of information might have violated the identified regulatory standards, stating in particular that the total evaluated prices of the winners of the full-and-open competition “provided a useful comparison tool that [small-business-competition] offerors could utilize as a benchmark in revising their price proposals.” Inserso, 142 Fed. Cl. at 684. The court also stated that “[p]rejudice is presumed once a potentially significant [organizational conflict оf interest] is identified.” Id. Here, however, the court concluded, the government demonstrated lack of prejudice to Inserso, a conclusion that defeated Inserso‘s claim as to both sets of regulations at issue. Id. at 684–85. The court entered judgment on April 2, 2019. J.A. 6.
II
On appeal, Inserso argues that the Court of Federal Claims erred in its treatment of the presumption of prejudice, including in its determination that the government rebutted such a presumption. Inserso also argues that, even apart from a presumption of prejudice, it was entitled to a finding that it was prejudiced by the challenged unequal disclosure. The government—in addition to defending the trial court‘s analysis—argues in this court, as it did in the trial court, that Inserso forfeited its right to challenge DISA‘s disclosure by not raising the issue in a timely manner.
Under
A
Inserso alleges that DISA violated two sets of regulations that are part of the Federal Acquisition Regulation (FAR). First, it alleges that DISA violated FAR subpart 9.5, which directs contracting officers to avoid, neutralize, or mitigate “organizational conflicts of interest.”
Both of Inserso‘s regulatory arguments arise from the same underlying DISA action, having the same alleged wrongful effect on the small-business competition. Specifically, both arguments challenge the disclosure of certain information to firms that (directly or through partnerships or joint ventures) bid for the full-and-open suite of contracts when some of those firms (directly or through partnerships or joint ventures) were still preparing bids for the small-business suite. Because “the scope of work and evaluation factors are nearly identical for each suite,” Inserso, 142 Fed. Cl. at 684, and the information was relevant to the evaluation of bids, Inserso alleges, DISA‘s failure to disclose that same information to all bidders in the small-business competition gave those bidders with the information an unfair competitive advantage.
Inserso focuses on two categories of disclosed information: (1) the total evaluated prices of those firms which won contracts in the full-and-open competition; and (2)
Inserso, however, did not object to the disparity in provision of competitively advantageous information until after the awards were made in the small-business competition. We conclude that, by waiting until the awards were made, Inserso forfeited the objection.
B
In Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007), we held that “a party who has 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.” We have since held that this reasoning “applies to all situations in which the protesting party had the opportunity to challenge a solicitation before the award and failed to do so.” COMINT Systems Corp. v. United States, 700 F.3d 1377, 1382 (Fed. Cir. 2012). The Court of Federal Claims has correctly applied this rule in organizational-conflict-of-interest cases, including cases dealing with the disclosure of pricing information during debriefing. See Ceres Envtl. Services, Inc. v. United States, 97 Fed. Cl. 277, 310 (2011).
A defect in a solicitation is patent if it is an obvious omission, inconsistency, or discrepancy of significance. Per Aarsleff A/S v. United States, 829 F.3d 1303, 1312 (Fed. Cir. 2016). Additionally, a defect is patent if it could have been discovered by reasonable and customary care. Id. at 1313; see also K-Con, Inc. v. Secretary of Army, 908 F.3d 719, 722 (Fed. Cir. 2018) (“A patent ambiguity is present when the contract contains facially inconsistent provisions that would place a reasonable contractor on notice.“). “Whether an ambiguity or defect is patent is an issue of law reviewed de novo.” Per Aarsleff, 829 F.3d at 1312.1
Those principles defeat Inserso‘s claims. Inserso should have challenged the solicitation before the competition concluded because it knew, or should have known, that DISA would disclose information to the bidders in the full-and-open competition at the time of, and shortly after, the notification of awards. Inserso knew that the Encore III solicitation process was divided into two competitions and that small businesses could compete for both suites, either individually or as part of a joint venture or partnership. J.A. 101907. It is undisputed that Inserso knew that the full-and-open competition had been completed in November 2017. See Appellee Br. 41; see also Encore III Full & Open, Sam.gov, https://beta.sam.gov/opp/96e2d2943ebc322905ebf27cf711e158/view#award (noting that contract award was originally published Nov. 7, 2017).
The FAR indicates that the winning total evaluated prices would have been provided to all unsuccessful offerors in the competitive range within three days of the award.
Offerors in a government solicitation are “charged with knowledge of lаw and fact appropriate to the subject matter.” Per Aarsleff, 829 F.3d at 1314 (citing Turner Construction Co. v. United States, 367 F.3d 1319, 1321 (Fed. Cir. 2004)). Here, that knowledge includes knowing that the total evaluated prices would be disclosed to bidders in the full-and-open competition at or shortly after the announcement of the awards in that competition. It also includes knowing that the express terms of the solicitation contemplated overlap of bidders in the two competitions (directly or through partnerships or joint ventures), so that Inserso, if it had taken reasonable care, would have known that recipients of the information at issue could include bidders in the small-business competition. The law and facts made patent that the solicitation allowed, and that there was likely to occur, the unequal disclosure regarding prices that Inserso now challenges.
We reach a similar conclusion about the information regarding DISA‘s evaluation methodology that Inserso alleges would have provided a competitive advantage to bidders in the small-business competition. Although the FAR does not require disclosing such information in the award notice, Inserso should have known that disclosure of this information was likely to be a part of the competitively valuable information required by the FAR to be included in the post-award debriefing. For example, post-award debriefings must include, at a minimum, “[t]he Government‘s evaluation of the significant weaknesses or deficiencies in the offeror‘s proposal“, “[t]he overall evaluated cost or price and technical rating, if applicable, of the successful offeror and the debriefed offeror,” “[t]he overall ranking of all offerors,” and “[a] summary of the rationale for award.”
In response to the government‘s forfeiture argument, Inserso argues that it could not have known that DISA would debrief the bidders in the full-and-open competition while the small-business offerors were still revising their proposals. Appellant‘s Reply Br. 29–30. Inserso points out that the regulations do not set a strict time limit on debriefing; rather, they require only that “[t]o the maximum extent practicable, the debriefing should occur within 5 days” after an offeror requests debriefing.
We do not think it reasonable for Inserso to have believed that DISA would delay—for three quarters of a year—the post-award debriefing of the bidders in the full-and-open competition. The debriefing process is an important part of the award process, and the expressly stated baseline rule of five days demonstrates the very short time scale understood to be important. The “practicable” qualifier gives some flexibility: one treatise notes that when there are many offerors, debriefing may not be completed for weeks. Government Contract Bid Protests: A Practical & Procedural Guide § 2:11. But no evidence or authority presented to us suggests that the “practicable” qualifier has been used, or could be reasonably counted on by Inserso to be used, to delay debriefing for many months. Nor could Inserso reasonably rely on DISA to decide to delay the debriefing based on a possibility of unequal advantage in the small-business competition where nobody had called the issue to its attention. The Blue & Gold forfeiture standard exists in recognition of the need for interested bidders to call the agency‘s attention to solicitation problems of which they reasonably should be aware.
Moreover, Inserso should have known that DISA had debriefed the bidders in the full-and-open competition once the GAO publicly dismissed a post-award protest of the awards in that competition. GAO‘s regulations specify that for “a procurement conducted on the basis of competitive proposals under which a debriefing is requested . . . , the initial protest shall not be filed before the debriefing date offered to the protestor, but shall be filed not later than 10 days after the date on which the debriefing was held.”
D
Enforcing our forfeiture rule implements Congress‘s directive that courts “shall give due regard to . . . the need for exрeditious resolution” of protest claims.
The policy behind the forfeiture rule is served in this case. In its suit in the Court of Federal Claims, Inserso asked the court to provide all bidders in the small-business competition access to the unequally disclosed information and to reopen the competition to accept revised proposals. Had Inserso objected to the solicitation before the submission of final proposals, raising its concern that some bidders might have received information by participating in the full-and-open competitiоn, DISA could have confirmed that an unequal disclosure occurred and provided the non-proprietary debriefing information to all bidders in the small-business competition. Cf.
III
The Court of Federal Claims entered judgment on the administrative record “pursuant to the court‘s Opinion and Order, filed April 1, 2019.” J.A. 6. Because the cited Opinion and Order relied on the determination that Inserso was not prejudiced by DISA‘s disclosure—an issue we do not reach—we think it appropriate to vacate the judgment and remand for entry of judgment on the ground of waiver, consistent with this opinion.
The parties shall bear their own costs.
VACATED AND REMANDED
REYNA, Circuit Judge, dissenting.
The majority decides that appellant‘s claims are barred under the Blue & Gold “waivеr rule.” This decision rests on shaky, legal ground and cannot stand. First, the
I
First, the majority‘s opinion turns on the so-called Blue & Gold “waiver rule,” a hard-and-fast rule that this court created. This rule runs afoul of the separation of powers principle articulated in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 137 S. Ct. 954, and for this and other reasons should not be the deciding factor in this case.
In Blue & Gold, we created a “waiver rule” for claims filed at the United States Court of Federal Claims (“Claims Court“) challenging a patent error in a solicitаtion for a government contract. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007). Although we called it a “waiver rule,” this is a misnomer. Waiver is an equitable defense, the application of which is left to the trial court‘s discretion. Qualcomm Inc. v. Broadcom Corp., 548 F.3d 1004, 1019 (Fed. Cir. 2008). To prove waiver, the defendant must show that the plaintiff intentionally relinquished its right. Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Given the draconian effect of waiver, “[t]he determination of whether there has been an intelligent waiver of right . . . must depend, in each case, upon the particular facts and circumstances surrounding that case.” Id. The Blue & Gold waiver rule does not fit this definition. A court applying this rule gives no regard to the protestor‘s intent and is afforded no discretion in its application. These are not the marks of true waiver.
Rather, the Blue & Gold “waiver rule,” in theory and in practice, is a judicially-created time bar. See Per Aarsleff A/S v. United States, 829 F.3d 1303, 1316–17 (Fed. Cir. 2016) (Reyna J., concurring) (noting that under the Blue & Gold “timeliness bar” “[d]ismissal is mandatory, not discretionary” (internal citations omitted)); see also Bannum, Inc. v. United States, 779 F.3d 1376, 1381 (Fed. Cir. 2015); Contract Servs., Inc. v. United States, 104 Fed. Cl. 261, 273 (2012); Unisys Corp. v. United States, 89 Fed. Cl. 126, 137 (2009). The bar is triggered solely by the timing of a рrotestor‘s challenge. Specifically, if a protestor files a claim challenging a patent error in a solicitation prior to the close of the bidding process, the protestor‘s claim is deemed timely. Blue & Gold, 492 F.3d at 1313. If, however, the protestor files such a claim after the close of bidding, without having previously objected to such an error, the protestor‘s claim is untimely and will be dismissed. Id. at 1315; Bannum, 779 F.3d at 1380; see Maj. Op. at 8. There are no exceptions to this rule; its application is hard and fast. See Per Aarsleff, 829 F.3d at 1316.1 The Blue & Gold
In SCA Hygiene, the Supreme Court clarified that: “[w]hen Congress enacts a statute of limitations, it speaks directly to the issue of timeliness and provides a rule for determining whether a claim is timely enough to permit relief.” SCA Hygiene, 137 S. Ct. at 960 (emphasis added). Specifically, the Supreme Court “stressed” that “courts are not at liberty to jettison Congress’ judgment on the timeliness of suit,” even if the statute of limitations gives rise to “undesirable” “policy outcomes.” Id. at 960, 961 n.4 (internal quotation marks omitted) (emphasis added). Relying on this principle, the Supreme Court held that a court cannot rely on the doctrine of laches, an equitable doctrine primarily focused on the timelines of a claim, to preclude a claim for damages incurred within the Patent Act‘s statute of limitations. Id. at 967; see also Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 685 (2014) (“For laches, timeliness is the essential element.“). Yet this is precisely what we are doing in this case.
The Supreme Court rejected the same concern we articulated as the driving force in Blue & Gold—that a plaintiff could sit on its rights to the detriment of the defendant—as justification for a timeliness rule distinct and separate from a statute of limitations. In SCA Hygiene, the dissent argued that laches filled a “gap” in the statute of limitations which allowed patentees to “wait until an infringing product has become successful before suing for infringement.” SCA Hygiene, 137 S. Ct. at 961 n.4. The Supreme Court explained that such argument “implies that, insofar as the lack of a laches defense could produce policy outcomes judges deem undesirable, there is a ‘gap’ for laches to fill, notwithstanding the presence of a statute of limitations.” Id. The Supreme Court explained such gap-filling is “precisely the kind of legislation-overriding judicial role” a court cannot take on. Id. (internal quotation marks omitted). Yet, in the face of this admonition, this court once again assumes such a legislative role.
Key here, and not discussed in Blue & Gold, is that Congress has spoken to the timeliness of challenges to patent errors in the solicitation. Congress provided that “[e]very claim of which the United States Court of Federal Claims has jurisdiction,” which includes challenges to patent errors in the solicitation, “shall be barred unless the petition thereon is filed within six years after such claim first accrues.”
Additionally, our interest in reducing costly after-the-fact litigation and procurement delays does not save the Blue & Gold time bar from SCA Hygiene‘s reach. We cannot override the Claims Court‘s six-year statute of limitations based on our own policy concerns. Id. (“[W]e cannot overrule Congress‘s judgment based on our own policy views.“). To do so is to challenge policy judgments made by Congress in enacting the six-year statute of limitations. Petrella, 572 U.S. at 686 (noting that it is “not within thе Judiciary‘s ken to debate the wisdom” of the applicable statute of limitations).
Instead, we consider the prejudicial effects of delay at the remedy phase. Id. at 685, 687 (noting that in “extraordinary circumstances, . . . the consequences of a delay in commencing suit may be sufficient to warrant . . . curtailment of the relief equitably awarded“). Here, the Claims Court has the discretion to “award any relief that the court considers proper,” including declaratory relief, injunctive relief, and monetary relief limited to bid and proposal costs.
The majority recognizes that Congress imposed a six-year statute of limitations on bid protests before the Claims Court. The majority contends, however, that the Blue & Gold time bar is statutorily authorized because Congress instructed the Claims Court to give “due regard to the . . . need for expeditious resolution of the action.” Maj. Op. at 9 (quoting
First, a general and broad “need for expeditious resolution” of all bid protest claims does not translate into a discrete statute of limitations for a subset оf bid protest claims, namely solicitation challenges. See Blue & Gold, 492 F.3d at 1315 (noting that “it is true that the jurisdictional grant of
Additionally, Section 1491(b)(3) must be read in context with the preceding provision, Section 1491(b)(2), which gives the Claims Court discretion in affording “any relief that the court considers proper.”
Lastly, the majority‘s reading of Section 1491(b)(3) runs afoul of the Supreme Court‘s reasoning in SCA Hygiene. As the Supreme Court explained, once Congress enacts a statute of limitations, the statute governs the timeliness of claims even in the face of other statutory provisions. SCA Hygiene, 137 S. Ct. at 963. In SCA Hygiene, the respondent argued that the Patent Act codified a laches defense, and, thus, laches could apply even in the face of a statute of limitations. Id. The Supreme Court explained that even assuming that the statute provided for laches “of some dimension,” it did not follow that such a statutory defense could be invoked to bar a claim filed within the statute of limitations. Id. The Supreme Court explained that “it would be exceedingly unusual, if not unprecedented,” for Congress to include both a statute of limitations and a laches provision. Id. The Supreme Court further explained that it was not aware of “a single federal statute that provides such dual protection against untimely claims.” Id. As in SCA Hygiene, it would be unusual for Congress to provide dual protection against untimely solicitation-related claims via the broad discretionary language in Section 1491(b)(3) and the Claims Court‘s clear six-year statute of limitations. If no federal statute provides such dual protection, it would be unreasonable to impose a court-made timeliness bar to overcome a statute of limitations imposed by Congress.
For the above reasons, Blue & Gold conflicts with the reasoning in SCA Hygiene, and, thus, should not decide the outcome of this case.
II
Second, the majority improperly shoehorns Inserso‘s claims into the narrow and now undermined Blue & Gold domain. The Blue & Gold time bar applies only to challenges of patent errors in a solicitation. Inserso‘s claims, which do not challenge any patent errors in the solicitation, are not subject to this rule.
The Blue & Gold time bar applies only to challenges against patent errors in the solicitation. Blue & Gold, 492 F.3d at 1313. “Latent errors or ambiguities are not, of course, subject” to the Blue & Gold time bar. COMINT Systems Corp. v. United States, 700 F.3d 1377, 1382 n.5 (Fed. Cir. 2012). An error is “patent” if it is “an obvious omission, inconsistency or discrepancy of significance.” Per Aarsleff, 829 F.3d at 1312 (internal quotation marks omitted). By contrast, “[a] latent ambiguity is a hidden or concealed defect which is not apparent on the face of the document, could not be discovered by reasonable and customary care, and is not so patent and glaring as to impose an affirmative duty on plaintiff to seek clarification.” Id.
Here, Inserso brought two claims before the Claims Court: an organizational conflict of interest (“OCI“) claim and, in the alternative, a claim alleging that the government unequally treated offerors. Both of thеse claims arise from the government‘s disclosure of allegedly competitive pricing information to only the bidders in the Full & Open suite—one of two suites at issue.2 This unequal disclosure occurred
There is no obvious error, inconsistency, or discrepancy from the face of the solicitation indicating that the government would unequally disclose competitive pricing information. To the contrary, the solicitation informed bidders that the government (a) recognized that pricing information from one suite could be competitively valuable in the other suite, and (b) would take necessary measures to prevent unequal disclosure of such information. For example, the solicitation provided that the government would not release its estimated labor hours, a key pricing data point, until the competition for both suite competitions concluded. J.A. 101918. The solicitation also provided that the government would identify any potential OCIs. J.A. 101815 (“If any [conflicts of interests] become known to the Government, as defined by FAR Part 9.5, they will be identified.” (emphasis added)).
To hold otherwise places an undue and unjustified burden on contractors to actively investigate, anticipate, and preemptively challenge all conflicts of interest that could potentially arise under a solicitation. Inserso is not the government‘s keeper. See NetStar-1 Gov‘t Consulting, Inc. v. United States, 101 Fed. Cl. 511, 523 n.17 (2011) (“No doctrine or case requires a potential protestor to be clairvoyant or to police an agency‘s general noncompliance with the FAR on the possibility that such misfeasance might become relevant in a protest.“). Additionаlly, for small business contractors, like Inserso, such a burden could disincentivize entry to the federal procurement market. Rather, it is the government‘s burden to thoroughly investigate OCIs. For all federal government procurements, “contracting officers shall analyze planned acquisitions in order to . . . [i]dentify and evaluate potential organizational conflicts of interests as early in the acquisition process as possible; and . . . [a]void, neutralize, or mitigate significant potential conflicts before contract award.”
The majority argues that Inserso should have known that the government would disclose competitive pricing information, specifically, details regarding its price evaluation methodology, to Full & Open competitors during the debriefing process.4
The majority also suggests, without any articulated principled rationale, that the Blue & Gold time bar can extend to non-solicitation challenges. The majority‘s sole support is a non-binding Claims Court case. See Maj. Op. at 8 (citing Ceres Envtl. Services, Inc. v. United States, 97 Fed. Cl. 277, 310 (2011)). We have never previously extended Blue & Gold beyond challenges to the solicitation. See, e.g., Bannum, 779 F.3d at 1380; Sys. Application & Techs., Inc. v. United States, 691 F.3d 1374, 1385 (Fed. Cir. 2012); COMINT, 700 F.3d at 1382; Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1363 (Fed. Cir. 2009). We should not do so today. Specifically, such an extension is contrary to the express reasoning in Blue & Gold. In Blue & Gold, we relied on a determination that the defect at issue pertained to the “decision during the solicitation, not evaluation, phase of the bidding process.” Blue & Gold, 492 F.3d at 1313. We also noted that a time bar against post-award challenges stemmed from the Claims Court‘s jurisdiction to adjudicate claims “objecting to a solicitation by a Federal agency.” Id. (quoting
III
Lastly, the majority acts with improper haste when it bars in the first instance Inserso‘s claims pursuant to the undermined Blue & Gold time bar. As a general matter, a federal appellate court “does not consider an issue not passed upon below.” TriMed, Inc. v. Stryker Corp., 608 F.3d 1333, 1339 (Fed. Cir. 2010). There are, however, “circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt, or where injustice might otherwise result.” Singleton v. Wulff, 428 U.S. 106, 121 (1976) (internal quotation marks and citations omitted). This is not such a case.
Here, the parties narrowly briefed the applicability of Blue & Gold below and on appeal. Specifically, neither party briefed Blue & Gold post-SCA Hygiene and instead primarily focused on the merits of Inserso‘s claims. Most notably, the Claims Court did not address whether Inserso‘s claims were time-barred under Blue & Gold but instead reached the merits of Inserso‘s claims. Thus, given this backdrop, we should not apply Blue & Gold in the first instance. See Wood v. Milyard, 566 U.S. 463, 473 (2012) (noting that appellate “restraint is all the more appropriate when the appellate court itself spots an issue the parties did not air below, and therefore would not have anticipated in developing their arguments on appeal“). We should instead reach the merits of Inserso‘s claims.
I respectfully dissent.
Notes
The dissent also suggests that we refrain from ruling on the Blue & Gold issue. But Inserso does not dispute that the issue was raised in the trial court, and it is an issue of law that we see no impediment to resolving ourselves.
In creating the “waiver rule,” this court relied on various analogous timeliness doctrines. First, we noted that our rule virtually tracks the “timeliness regulation” for bid protests filed before the Government Accountability Office (“GAO“), a federal agency which adjudicates bid protests. Blue & Gold, 492 F.3d at 1314. The GAO‘s timeliness rule is a self-imposed filing deadline for bid protests, functioning much like a statute of limitations. SeeWe also found support in A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020 (Fed. Cir. 1992), a patent case where we relied on the equitable doctrines of laches and estoppel to bar relief, and in a long line of Claims Court cases applying the defense of laches. Blue & Gold, 492 F.3d at 1314–15. Notably, SCA Hygiene abrogated Aukerman. See SCA Hygiene, 137 S. Ct. at 967. Also, the Claims Court no longer applies laches to bar bid protests in light of SCA Hygiene. See, e.g., ATSC Aviation, LLC v. United States, 141 Fed. Cl. 670, 696 (2019).