throbber
Case: 19-1933 Document: 51 Page: 1 Filed: 06/15/2020
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`INSERSO CORPORATION,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`
`FEDITC, LLC, RIVERSIDE ENGINEERING, LLC,
`Defendants
`______________________
`
`2019-1933
`______________________
`
`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 Jus-
`tice, Washington, DC, for defendant-appellee. Also repre-
`sented by JOSEPH H. HUNT, ROBERT EDWARD KIRSCHMAN,
`JR., DOUGLAS K. MICKLE.
` ______________________
`
`

`

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`2
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`INSERSO CORP. v. UNITED STATES
`
`
`Before REYNA, MAYER, and TARANTO, Circuit Judges.
`Opinion for the court filed by Circuit Judge TARANTO.
`Dissenting opinion filed by Circuit Judge REYNA.
`TARANTO, Circuit Judge.
`The United States Defense Information Systems
`Agency (DISA), which is part of the U.S. Department of De-
`fense, awarded contracts to multiple firms that bid for the
`opportunity to sell information technology services to vari-
`ous federal government agencies. Inserso Corporation un-
`successfully 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 dis-
`closed information to certain other bidders but not Inserso,
`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 in-
`vited firms to bid for the opportunity to enter into indefi-
`nite-delivery/indefinite-quantity contracts under which the
`awardees would provide information-technology services to
`
`

`

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`INSERSO CORP. v. UNITED STATES
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`3
`
`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 pro-
`vided the best value to the government and satisfied the
`evaluation criteria.
`The solicitation lists three criteria for evaluating pro-
`posals: (1) the bidder’s technical/management approach,
`(2) the bidder’s past performance, and (3) cost/price infor-
`mation. For the evaluation of price, the solicitation states,
`DISA would calculate a “total proposed price” and a “total
`evaluated price.” J.A. 101918. The total proposed price
`would be calculated by applying government-estimated la-
`bor hours for each year of contract performance to each of-
`feror’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 de-
`termined were unrealistic. The proposals with the lowest
`total evaluated price would then be evaluated for compli-
`ance with the other terms of the solicitation.
`DISA divided the Encore III competition into two com-
`petitions. One competition would award a “suite” of con-
`tracts 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 ven-
`tures or partnerships. J.A. 101907. Under those provi-
`sions, several firms that bid in the small-business
`competition in fact also competed in the full-and-open com-
`petition as part of joint ventures. Inserso competed only in
`the small-business competition.
`
`

`

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`INSERSO CORP. v. UNITED STATES
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`Bidders in both competitions submitted their proposals
`by October 21, 2016. But the timing of the two competi-
`tions quickly diverged. On November 2, 2017, DISA noti-
`fied 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 de-
`briefing process by which it discloses certain details of the
`agency’s selection decision to winners and losers. See 48
`C.F.R. § 15.506.
`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-busi-
`ness bidders. Even after November 2, 2017, DISA sent sev-
`eral more rounds of evaluation notices to small-business
`bidders. DISA did not request final proposal revisions from
`the small-business bidders until April 2018. See 48 C.F.R.
`§ 15.307. Ultimately, such bidders had until June 20, 2018,
`to submit their final revised proposals for the small-busi-
`ness competition.
`DISA notified successful and unsuccessful bidders of
`its award decisions for the small-business suite on Septem-
`ber 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 com-
`peted in the full-and-open competition as part of joint ven-
`tures or partnerships, and it asked whether those entities
`had received similarly detailed debriefings at the
`
`

`

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`INSERSO CORP. v. UNITED STATES
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`5
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`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 compet-
`itive 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 sim-
`ilarly detailed information in their debriefings.
`On September 12, 2018, Inserso filed a protest in the
`United States Government Accountability Office (GAO).
`See 4 C.F.R. §§ 21.1–21.2. On October 17, 2018, GAO dis-
`missed Inserso’s protest because another party was chal-
`lenging the same solicitation at the Court of Federal
`Claims. See id., § 21.11(b).
`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 infor-
`mation regarding DISA’s evaluation methodology. Inserso
`alleged that this unequal provision of information created
`an organizational conflict of interest in violation of 48
`C.F.R. §§ 9.504, 9.505 and, in addition, violated at least one
`regulation specifically addressed to disparate treatment of
`bidders, 48 C.F.R. § 1.602-2(b). Inserso moved for judg-
`ment on the administrative record, and the government op-
`posed Inserso’s motion and cross-moved for judgment on
`the administrative record.
`The Court of Federal Claims ruled in favor of the gov-
`ernment. 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
`
`

`

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`6
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`INSERSO CORP. v. UNITED STATES
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`proposals.” Inserso, 142 Fed. Cl. at 684. The court also
`stated that “[p]rejudice is presumed once a potentially sig-
`nificant [organizational conflict of 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.
`Inserso timely appealed. We have jurisdiction under
`28 U.S.C. § 1295(a)(3).
`
`II
`On appeal, Inserso argues that the Court of Federal
`Claims erred in its treatment of the presumption of preju-
`dice, 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 une-
`qual 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 man-
`ner.
`Under 28 U.S.C. § 1491(b), the Court of Federal Claims
`has “jurisdiction to render judgment on an action by an in-
`terested party objecting to” a solicitation or contract award
`made by a federal agency. We review the Court of Federal
`Claims’ legal conclusions de novo and its factual findings
`for clear error. Daewoo Eng’g & Constr. Co. v. United
`States, 557 F.3d 1332, 1335 (Fed. Cir. 2009). “When mak-
`ing a prejudice analysis in the first instance, [the Court of
`Federal Claims] is required to make factual findings.”
`Bannum, Inc. v. United States, 404 F.3d 1346,1357 (Fed.
`Cir. 2005). Whether the court applied the appropriate legal
`standard to its factual findings is a question of law. See
`Shell Oil Co. v. United States, 688 F.3d 1376, 1381
`(Fed. Cir. 2012).
`
`

`

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`INSERSO CORP. v. UNITED STATES
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`7
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`A
`Inserso alleges that DISA violated two sets of regula-
`tions 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.” 48 C.F.R.
`§ 9.505.
` Section 9.505 describes the dual aims of
`“[p]reventing the existence of conflicting roles that might
`bias a contractor’s judgment” and “[p]reventing unfair com-
`petitive advantage.” Id., § 9.505(a), (b). An unfair compet-
`itive advantage can exist when a contractor possesses
`“[p]roprietary information that was obtained from a Gov-
`ernment official without proper authorization” or “[s]ource
`selection information (as defined in [48 C.F.R. §] 2.101)
`that is relevant to the contract but is not available to all
`competitors, and such information would assist that con-
`tractor in obtaining the contract.” Id., § 9.505(b). Second,
`Inserso alleges that DISA failed to treat it fairly and
`equally, as required by several provisions of the FAR. See,
`e.g., id., §§ 1.102(b)(3), 1.602-2(b), 3.101-1.
`Both of Inserso’s regulatory arguments arise from the
`same underlying DISA action, having the same alleged
`wrongful effect on the small-business competition. Specif-
`ically, 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 con-
`tracts when some of those firms (directly or through part-
`nerships or joint ventures) were still preparing bids for the
`small-business suite. Because “the scope of work and eval-
`uation 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 dis-
`close that same information to all bidders in the small-busi-
`ness competition gave those bidders with the information
`an unfair competitive advantage.
`
`

`

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`INSERSO CORP. v. UNITED STATES
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`Inserso focuses on two categories of disclosed infor-
`mation: (1) the total evaluated prices of those firms which
`won contracts in the full-and-open competition; and (2) de-
`tails of how DISA evaluated the costs built into the pro-
`posals made by bidders in that competition. Inserso
`contends, and the trial court recognized, that knowledge of
`the winning total evaluated prices from the full-and-open
`competition would provide a small-business-competition
`bidder a target range in which it could be confident that it
`would win an award. Inserso also contends that the cost-
`evaluation information would have been useful to a small-
`business-competition bidder who was considering how to
`reduce the price of its bid in a way that DISA would find
`acceptable.
`Inserso, however, did not object to the disparity in pro-
`vision of competitively advantageous information until af-
`ter 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, 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.” 492 F.3d
`1308, 1313 (Fed. Cir. 2007). 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).
`
`

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`INSERSO CORP. v. UNITED STATES
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`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 pre-
`sent when the contract contains facially inconsistent provi-
`sions 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
`
`
`1 The dissent, but not Inserso, suggests that this
`court’s Blue & Gold line of authority has been superseded
`by the Supreme Court’s decision in SCA Hygiene Products
`Aktiebolag v. First Quality Baby Products, LLC, 137 S. Ct.
`954 (2017). We do not read SCA Hygiene as having the
`broad implication that the dissent suggests but rather as
`holding only that the general non-statutory equitable time-
`liness doctrine of laches does not override the congression-
`ally enacted statute of limitations applicable to legal
`actions for damages. 137 S. Ct. at 959–67. Blue & Gold,
`in contrast, establishes a “waiver rule” under a specific
`statutory authorization—the congressional command that
`bid-protest jurisdiction under 28 U.S.C. § 1491(b) be exer-
`cised with “due regard to the . . . need for expeditious reso-
`lution of the action,” 28 U.S.C. § 1491(b)(3)—with support
`from longstanding substantive contract law and from reg-
`ulations under a related statutory regime specific to bid
`protests. See Blue & Gold, 492 F.3d at 1313–14 (discussing
`“patent ambiguity” and “contra proferentem” doctrines and
`General Accountability Office regulations).
`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.
`
`

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`INSERSO CORP. v. UNITED STATES
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`C
`Those principles defeat Inserso’s claims. Inserso
`should have challenged the solicitation before the competi-
`tion 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 Novem-
`ber 2017. See Appellee Br. 41; see also Encore III Full &
`Open, Sam.gov, https://beta.sam.gov/opp/96e2d2943ebc
`322905ebf27cf711e158/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 offe-
`rors in the competitive range within three days of the
`award. 48 C.F.R. § 15.503(b)(1)(iv) (“Within 3 days after
`the date of contract award, the contracting officer shall pro-
`vide written notification to each offeror whose proposal was
`in the competitive range but was not selected for award
`. . . . The notice shall include . . . [t]he items, quantities,
`and any stated unit prices of each award. If the number of
`items or other factors makes listing any stated unit prices
`impracticable at that time, only the total contract price need
`be furnished in the notice.”) (emphasis added). And DISA
`in fact included the awardees’ total evaluated prices in its
`notifications to unsuccessful full-and-open offerors. See,
`e.g., J.A. 186838–39.
`Offerors in a government solicitation are “charged with
`knowledge of law and fact appropriate to the subject mat-
`ter.” Per Aarsleff, 829 F.3d at 1314 (citing Turner Con-
`struction Co. v. United States, 367 F.3d 1319, 1321
`(Fed. Cir. 2004)). Here, that knowledge includes knowing
`
`

`

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`INSERSO CORP. v. UNITED STATES
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`that the total evaluated prices would be disclosed to bid-
`ders 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 al-
`leges would have provided a competitive advantage to bid-
`ders 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 val-
`uable information required by the FAR to be included in
`the post-award debriefing. For example, post-award de-
`briefings 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.”
`48 C.F.R. § 15.506(d). Although it may have been impossi-
`ble to know the precise contents of the full-and-open com-
`petition’s debriefings, Inserso should have known that
`those debriefings were bound to contain information that
`would provide a competitive advantage in the small-busi-
`ness competition, including the “overall evaluated cost or
`price” of the successful offerors. Id., § 15.506(d)(2).
`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
`
`

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`INSERSO CORP. v. UNITED STATES
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`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 debrief-
`ing; rather, they require only that “[t]o the maximum ex-
`tent practicable, the debriefing should occur within 5 days”
`after an offeror requests debriefing.
` 48 C.F.R.
`§ 15.506(a)(2). Therefore, Inserso argues, DISA should not
`have conducted the debriefing for the full-and-open compe-
`tition before the small-business competition closed.
`We do not think it reasonable for Inserso to have be-
`lieved 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 im-
`portant 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” quali-
`fier 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 In-
`serso 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 stand-
`ard 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
`
`

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`offered to the protestor, but shall be filed not later than 10
`days after the date on which the debriefing was held.” 4
`C.F.R. § 21.2(a)(2) (emphasis added). On February 21,
`2018, GAO dismissed a post-award bid protest challenging
`DISA’s awards in the full-and-open competition. Planned
`Systems Int’l, Inc. B-413028.5, 2018 WL 1898124 (Comp.
`Gen. Feb. 21, 2018). Inserso should have known, from the
`existence of a relevant protest at GAO, that the bidders in
`the full-and-open competition had been debriefed. Indeed,
`the GAO decision states as much. Id. at *3. The decision
`is not subject to a protective order, and there is no indica-
`tion that it would not have been publicly available on the
`day it issued. Therefore, Inserso is properly charged with
`knowing, on or shortly after February 21, 2018, that the
`bidders in the full-and-open competition had been de-
`briefed.2
`Because a bidder in the small-business competition ex-
`ercising reasonable and customary care would have been
`on notice of the now-alleged defect in the solicitation long
`before the awards were made, Inserso forfeited its right to
`raise its challenge by waiting until awards were made.
`Whether starting from the November 2017 award in the
`full-and-open competition or from the February 2018 GAO
`denial of a protest in that competition, Inserso had months
`to notify DISA of this defect before it submitted its final
`revised proposals. J.A. 178905. It had an additional two
`
`
`2 The dissent cites a solicitation provision that
`states: “The estimated labor hours used for evaluation pur-
`poses will not be provided to the offerors until after award.”
`J.A. 101918. That provision does not generally negate the
`expected normal operation of the debriefing process in the
`full-and-open competition. It applies only to estimated la-
`bor hours—thereby highlighting the obviousness of the de-
`fect by omitting mention of any other competitively
`advantageous information.
`
`

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`INSERSO CORP. v. UNITED STATES
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`months before DISA selected the small-business awardees.
`J.A. 179528. Our previous cases establish that this amount
`of time is more than sufficient. See COMINT, 700 F.3d at
`1383 (“Here, Comint had two and a half months between
`the issuance of Amendment 5 and the award of the contract
`in which to file its protest. That was more than an ade-
`quate opportunity to object.”).
`D
`Enforcing our forfeiture rule implements Congress’s di-
`rective that courts “shall give due regard to . . . the need for
`expeditious resolution” of protest claims. 28 U.S.C.
`§ 1491(b)(3). The rule serves the interest in “reducing the
`need for the inefficient and costly process of agency rebid-
`ding after offerors and the agency have expended consider-
`able time and effort submitting or evaluating proposals in
`response to a defective solicitation.” Bannum, Inc. v.
`United States, 779 F.3d 1376, 1381 (Fed. Cir. 2015) (quot-
`ing Blue & Gold, 492 F.3d at 1314) (quotation marks and
`brackets omitted); see also Per Aarsleff, 829 F.3d at 1317
`(Reyna, J. concurring).
`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 submis-
`sion of final proposals, raising its concern that some bid-
`ders might have received information by participating in
`the full-and-open competition, 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. 48 C.F.R. § 15.507. In-
`serso is now seeking the relief it could have gotten from
`DISA earlier, before DISA had already expended consider-
`able time and effort evaluating the bidders’ proposals. In-
`serso has forfeited its right to this relief.
`
`

`

`Case: 19-1933 Document: 51 Page: 15 Filed: 06/15/2020
`
`INSERSO CORP. v. UNITED STATES
`
`15
`
`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 Opin-
`ion 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, con-
`sistent with this opinion.
`The parties shall bear their own costs.
`VACATED AND REMANDED
`
`

`

`Case: 19-1933 Document: 51 Page: 16 Filed: 06/15/2020
`
`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`INSERSO CORPORATION,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`
`FEDITC, LLC, RIVERSIDE ENGINEERING, LLC,
`Defendants
`______________________
`
`2019-1933
`______________________
`
`Appeal from the United States Court of Federal Claims
`in No. 1:18-cv-01655-LAS, Senior Judge Loren A. Smith.
`______________________
`
`
`
`REYNA, Circuit Judge, dissenting.
`The majority decides that appellant’s claims are barred
`under the Blue & Gold “waiver rule.” This decision rests
`on shaky, legal ground and cannot stand. First, the
`validity of the Blue & Gold “waiver rule” is undermined by
`the reasoning in SCA Hygiene Products Aktiebolag v. First
`Quality Baby Products, LLC, 137 S. Ct. 954 (2017).
`Second, the undermined Blue & Gold “waiver rule” does
`not apply to appellant’s claims, which arise from latent
`errors not apparent from the solicitation. Third, the
`majority decides to bar appellant’s claims under the Blue
`& Gold “waiver rule” in the first instance. We should not
`
`

`

`Case: 19-1933 Document: 51 Page: 17 Filed: 06/15/2020
`
`2
`
`INSERSO CORP. v. UNITED STATES
`
`
`engage in such overreach given that the parties did not
`brief, and the Claims Court did not discuss, the interplay
`between Blue & Gold and SCA Hygiene. I respectfully
`dissent.
`
`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 solicitation 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
`
`

`

`Case: 19-1933 Document: 51 Page: 18 Filed: 06/15/2020
`
`INSERSO CORP. v. UNITED STATES
`
`3
`
`(internal citations omitted)); see also
`discretionary”
`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 trig

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