“The Protest…”
“On November 12, 2018, Harmonia Holdings Group, LLC (Harmonia) submitted a pre-award, agency-level protest to CBP. In particular, ‘Harmonia challenged CBP’s limitation of revisions to Factor 2, Sub-factor 1, and Factor 5, arguing that offerors should be able to update their entire proposals in response to Amendments 9 and 10.’ Harmonia also challenged ‘Amendment 10’s addition of FAR 52.219-14 Limitations on Subcontracting.’ The next day, November 13, 2018, Harmonia submitted to CBP a proposal with revisions for Factor 2, Sub-factor 1, and Factor 5…”
“The Appeal
On appeal, Harmonia contended that the COFC ‘improperly extended the law of Blue & Gold by finding waiver even though Harmonia had formally preserved its challenge by timely submitting its pre-award bid protest to CBP.’ The government argued ‘that Blue & Gold waiver should apply, even though Harmonia timely submitted a formal pre-award protest to CBP, because of Harmonia’s delay in filing an action following CBP’s denial of its pre-award protest.’…”
“The purpose of the Blue & Gold waiver rule was to ‘prevent a bidder who is aware of a solicitation defect from waiting to bring its challenge after the award in an attempt to restart the bidding process, “perhaps with increased knowledge of its competitors.”’ But in Harmonia, the Federal Circuit explained that, in subsequent decisions, it ‘expanded the reasoning of Blue & Gold to encompass waiver based on delay that occurs after the close of bidding’ and that Federal Circuit ‘cases concluding that Blue & Gold waiver applies generally involve a failure to timely object to a known, patent defect in the solicitation.’…”
“The Decision
In sum, the Federal Circuit held that the Blue & Gold waiver rule does not apply when a protester timely files a pre-award, agency-level protest and retains its offeror status by submitting a timely proposal. However, the COFC may consider such delays in fashioning appropriate relief. In other words, while the COFC will no longer dismiss pre-award protests as untimely when the protester timely filed a pre-award, agency-level protest, it may find that—due to delay—the protester is not entitled to an injunction or meaningful relief even if the protest is meritorious.
What Actions Can Contractors Take?
Contractors should diligently pursue pre-award protests and file with the COFC as soon as practicable after the denial of their agency-level or GAO protest. Contractors who do not diligently pursue such protests may achieve only a hollow victory…” Read the full article here.
Source: Don’t Delay: How the Harmonia Decision Impacts Contractors’ Ability to Win Protests – By Katherine B. Burrows & Eric Valle, December 21, 2021. PilieroMazza.
