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7 min read

Blue & Gold Waiver Rule Upheld in M.R. Pittman Bid Protest Appeal

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The M.R. Pittman Group, LLC filed an appeal with the United States Court of Appeals for the Federal Circuit on May 22, 2023. This appeal stemmed from the dismissal of their bid protest by the United States Court of Federal Claims. The presiding judge for this case was Senior Judge Charles F. Lettow, with a panel of circuit judges consisting of Dyk, Taranto, and Hughes.

Case Overview

The Court of Federal Claims dismissed the bid protest on the grounds of lacking subject matter jurisdiction. In their decision, the court referenced the Blue & Gold waiver rule, stating that the M.R. Pittman Group had waived their right to protest by failing to raise objections before the bidding process concluded.

Contrary to the Court of Federal Claims' ruling, the United States Court of Appeals for the Federal Circuit determined that the Blue & Gold waiver rule does not strip the Court of Federal Claims of its subject matter jurisdiction. However, despite this finding, the Federal Circuit ultimately upheld the dismissal by citing Court of Federal Claims Rule 12(b)(6) as a proper justification for the dismissal.

Background of the USACE Solicitation and Contract Award

In May 2021, the M.R. Pittman Group initiated legal action by filing a suit against the US Army Corps of Engineers (USACE) in protest of the contract awarded for the repair of pump units in Louisiana. This protest stems from the USACE's solicitation, which was issued in December 2020. It is worth noting that the pump station in question is currently operating at only 50% capacity.

The USACE solicitation, which was posted on beta.SAM.gov, was designated as a 100% small business set-aside procurement. However, it is important to highlight that the solicitation did not explicitly reference NAICS Code 811310. Instead, it incorporated by reference the Federal Acquisition Regulation (FAR) 52.219-6, which warns that only small businesses are eligible to submit offers and that any awards will be granted exclusively to small businesses.

Despite not qualifying as a small business under NAICS Code 811310, M.R. Pittman still submitted a bid. However, the USACE awarded the contract to J. Star Enterprise, Inc.

Subsequently, M.R. Pittman decided to file a bid protest with the Government Accountability Office (GAO). Their argument revolved around the omission of NAICS Code 811310 from the solicitation, contending that this exclusion invalidated the set-aside designation for small businesses. Unfortunately for M.R. Pittman, the GAO dismissed the protest, citing their failure to challenge the solicitation in a timely manner.

M.R. Pittman proceeded to file a lawsuit in the Court of Federal Claims. They sought a temporary restraining order and preliminary injunction. M.R. Pittman's central argument is that the absence of the relevant NAICS code in the solicitation renders it incapable of being treated as a small business set-aside.

Establishment of Timetable and Consolidation of Motions

The trial court conducted an initial status conference to establish a timetable for the proceedings. Afterwards, the government consolidated its motion to dismiss and response to the motions for emergency relief into a single document. However, the court decided to have separate briefing schedules for the emergency motions and the motion to dismiss.

The government contended that M.R. Pittman had waived its protest grounds by failing to raise the issue before the bidding deadline. While M.R. Pittman did respond to the government's argument, it did not file a separate response to the motion to dismiss.

A hearing focusing specifically on the motions for emergency relief was held by the Court of Federal Claims, separate from the motion to dismiss. During this hearing, the court and the parties discussed whether M.R. Pittman had effectively waived its protest grounds based on the Blue & Gold waiver rule.

Notably, the trial court did not set a deadline for M.R. Pittman to respond to the motion to dismiss. Ultimately, the court denied M.R. Pittman's motions for emergency relief and granted the government's motion to dismiss, citing a lack of subject matter jurisdiction under Rule 12(h)(3) of the Rules of the Court of Federal Claims (RCFC) (warning: PDF).

Moreover, the trial court concluded that M.R. Pittman had waived its protest grounds due to the clear and identifiable nature of the error, which the company failed to address prior to the close of bidding. The court supported its stance by highlighting the discrepancy between the omitted NAICS code and the FAR clause as compelling evidence of the error.

M.R. Pittman submitted a motion for reconsideration to the trial court which was subsequently denied.

Appeal to the United States Court of Appeals

M.R. Pittman sought an appeal at the United States Court of Appeals for the Federal Circuit (USCAFC) after their complaint was dismissed by the trial court on jurisdictional grounds. The USCAFC reviewed the legal determinations and factual findings made by the Court of Federal Claims.

M.R. Pittman argued that the trial court erroneously dismissed their complaint based on jurisdictional grounds. They contended that the Blue & Gold waiver rule was not a matter of subject matter jurisdiction. M.R. Pittman also raised concerns about the trial court's application of the Blue & Gold waiver rule, questioning both the procedural and substantive aspects of it.

Contrarily, the government argued that even if the Blue & Gold waiver rule was considered non-jurisdictional, the trial court's error was insignificant. They believed that the dismissal would still be justified under RCFC 12(b)(6) due to M.R. Pittman's failure to present a valid claim.

The USCAFC agreed that the Blue & Gold waiver rule was indeed non-jurisdictional, aligning with the Supreme Court's classification of "jurisdictional prescriptions" and "non-jurisdictional claim-processing rules." They explained that the purpose of the Blue & Gold waiver rule is to enhance efficiency by requiring objections to a solicitation before the bidding deadline. To support this interpretation, the USCAFC referenced previous cases where time-related requirements were also deemed non-jurisdictional.

Consequently, the USCAFC concluded that the Court of Federal Claims erred in treating M.R. Pittman's failure to object to the solicitation before the bidding deadline as a jurisdictional matter. In fact, they affirmed that the Court of Federal Claims did possess jurisdiction over M.R. Pittman's claims, as specified in 28 U.S.C. § 1491(b)(1).

Addressing M.R. Pittman's Procedural Arguments

The United States Court of Appeals for the Federal Circuit (USCAFC) addressed M.R. Pittman's procedural arguments.


Motion to Dismiss Before Formal Response and Opportunity to Respond

The court acknowledged that the trial court made an error by deciding the motion to dismiss before M.R. Pittman had the opportunity to file a formal response. In support of this position, the USCAFC cited the Supreme Court's statement that a plaintiff should be given notice and an opportunity to amend the complaint before a motion to dismiss is ruled upon.

The USCAFC emphasized the importance of providing a plaintiff with the opportunity to respond to a motion to dismiss in order to "crystallize the pertinent issues" and create a more complete record. According to the court, allowing the plaintiff to respond helps ensure that all relevant arguments and evidence are properly considered.

In this particular case, the USCAFC found that M.R. Pittman had a sufficient opportunity to respond to the government's motion to dismiss. The court noted that the government's arguments for dismissal were already included in its opposition to M.R. Pittman's motion for a temporary restraining order and preliminary injunction. Therefore, the court determined that M.R. Pittman had ample opportunity to address the arguments raised by the government.

Inapplicability of ArthroCare Case

The court examined M.R. Pittman's reference to the ArthroCare Corp. v. Smith & Nephew, Inc. case. However, the court made a clear distinction between ArthroCare and the current case. It noted that the opposing party in ArthroCare was unable to respond to the motion to dismiss due to a stay in the proceedings.

In rejecting M.R. Pittman's reliance on ArthroCare, the USCAFC emphasized that the legal principles applied in that case are not applicable to the present situation. The court explicitly stated that it has never established a categorical entitlement for a plaintiff to contest a Rule 12(b)(6) motion, and the Court of Federal Claims retains the authority to dismiss a case sua sponte if the pleadings present sufficient grounds for such action.

Substantive Responses Already Provided

The court highlighted that M.R. Pittman had already provided substantive responses to the motion to dismiss in its briefing and at oral argument. Therefore, the USCAFC concluded that M.R. Pittman was not prejudiced by its inability to submit a formal brief opposing the motion to dismiss.

Dismissal Before Production of Administrative Record

Addressing M.R. Pittman's argument regarding the dismissal of the case before the production of the administrative record, the USCAFC determined that the government did not violate RCFC, Appendix C, Section VII (warning: PDF). The court pointed out that the trial court had not set a date for the administrative record to be produced, so the government did not breach any requirement. Furthermore, the USCAFC found that the administrative record is not relevant to the patent ambiguity analysis.


Ultimately, the court rejected M.R. Pittman's procedural arguments and proceeded to consider the substantive arguments in the case.

The Court Upholds the Blue & Gold Waiver Rule and the Judgment of the Court of Federal Claims

The court extensively examined the application of the Blue & Gold rule in relation to the case of M.R. Pittman. This rule emphasizes the importance of raising objections to government solicitations before the bidding process concluded. In the present scenario, M.R. Pittman neglected to inquire about the missing NAICS code, a matter that was not in dispute. The court's primary objective was to determine whether this omission qualified as a patent or latent omission. After careful analysis, the court concluded that the omission was indeed patent, leading to the waiver of M.R. Pittman's protest ground. In support of its reasoning, the court cited several relevant cases.

The court found M.R. Pittman's counterarguments unpersuasive. One of their main contentions was that the application of FAR 52.219-6 to the solicitation was erroneous because the solicitation did not explicitly state that it was set aside for small businesses. However, the court rebutted this claim by pointing out that the incorporation of FAR 52.219-6 introduced inconsistency into the solicitation. Additionally, the court highlighted the fact that the webpage containing the solicitation link unequivocally stated it as a 100% small business set-aside procurement. M.R. Pittman attempted to downplay the webpage's significance by arguing against its formal incorporation into the solicitation, but the court dismissed this argument. 

The court asserted that the incorporation of the FAR clause created ambiguity that a diligent contractor would strive to resolve. Moreover, the court disputed M.R. Pittman's contention that extrinsic evidence could never be used to determine whether an ambiguity was patent, supporting its stance by referencing relevant cases such as HPI/GSA 3C, LLC v. Perry and Per Aarsleff A/S v. United States.

Another argument put forth by M.R. Pittman was that the Blue & Gold waiver rule should not apply since they did not derive any benefit from delaying their objection. However, the court refuted this claim by pointing out that M.R. Pittman did in fact benefit from the delayed objection. Moreover, the court noted that this argument was forfeited as it was not raised in the opening brief. 

The court further contended that M.R. Pittman was disqualified from the contract due to their failure to seek clarification regarding the set-aside status of the solicitation. M.R. Pittman challenged the inclusion of other FAR provisions that they deemed inapplicable, but the court countered by stating that such provisions were only incorporated if specifically indicated by the contracting officer.

The court ultimately upheld the trial court's decision under the Blue & Gold waiver rule, affirming the judgment of the Court of Federal Claims. However, the basis for affirmation was the failure to state a claim rather than a lack of subject matter jurisdiction.

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