2 October 20222 minute read

Timeliness at the Court of Federal Claims: Reexamining the Blue & Gold doctrine in light of SCA Hygiene and Petrella

Timeliness is a crucial aspect of filing a successful bid protest. A protestor’s failure to comply with a forum’s timeliness rules may result in an otherwise meritorious protest being dismissed.

Protests filed at the US Court of Federal Claims must comply with the timeliness rule set forth in the so-called Blue & Gold doctrine. The rule provides 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 in a subsequent protest.

In June 2020, a judge on the US Court of Appeals for the Federal Circuit issued a dissenting opinion that identified a conflict between the reasoning in Blue & Gold and US Supreme precedent.

In a recent article for the Public Contract Law JournalThomas E. Daley, an attorney in DLA Piper’s Government Contracts group, discussed how the conflict undermines continued application of the Blue & Gold doctrine to bid protests as the doctrine impermissibly applies a timeliness rule that is more stringent than the statute of limitations applicable to bid protests filed in the Court of Federal Claims. The article also proposes two alternative ways in which the policy considerations identified in Blue & Gold could be addressed even if Blue & Gold were no longer applied.

Read the full article here. If you have any questions, please contact the author or your DLA Piper relationship attorney.