See Bowen v. Massachusetts, 487 U.S. 879. 905 n.40 (1988) (acknowledging the congressional grant of "certain equitable powers in specific kinds of litigation" to the US Claims Court pursuant to 28 U.S.C. § 1491(a)(2)-(3)). 28 U.S.C. § 1491(a)(1).

The Army reviewed the whitepapers and selected two other offerors for award of the base effort using a best-value determination.Hydraulics International’s ProtestHydraulics International filed a bid protest at the COFC, contending that the Army misevaluated its schedule and price information in its whitepaper submission and waived a key requirement when evaluating the proposals from the two successful offerors.The Government argued that the COFC lacked subject matter jurisdiction over the protest because the dispute was not “in connection with a procurement or a proposed procurement” as required under 28 U.S.C. § 1491(b)(1) (the “Tucker Act”).Specifically, the Government contended that the Army was acquiring AGPU prototypes using its OT authority, and an OT agreement is not a “procurement.”Furthermore, the Government asserted that the OT awards were not “in connection with” a proposed procurement because any “follow-on production” from the OT awards was conditional and may never occur.In contrast, Hydraulics International argued that the COFC had jurisdiction to hear the case under the Tucker Act because the possibility of a follow-on production contract for 150 AGPUs without competition placed these OT awards “in connection with a procurement.”

the terms of the OT agreement at issue (which was included as an attachment to the Army’s solicitation) and held that it contained all the features of a contract. Thus, the court found that by asking the court to direct the Army to include it in Phase 1, MDHI was really asking the court to “force the Army to award [MDHI] a contract” and to obtain the benefits flowing from that contract. Given that MDHI’s source of rights stemmed from this potential contract with the Army, and that the Ninth Circuit has held that “potential contracts” fall within the scope of the Tucker Act, the court held that MDHI’s request fell squarely within the preclusive reach of the Tucker Act and that the court therefore did not have jurisdiction to grant MDHI injunctive relief.Second, the District Court held that it lacked jurisdiction because the Army’s solicitation process for the FARA CP Program was connected to a procurement, such that pursuant to the Administrative Dispute Resolution Act of 1996 (ADRA) (28 U.S.C. § 1491(b)(1)), the court did not have jurisdiction. In this regard, the court noted that ADRA once provided COFC and the district courts with concurrent jurisdiction over challenges “in connection with a procurement or a proposed procurement.”

ARC appealed the COFC’s dismissal of its protest to the Federal Circuit.HoldingOn appeal, the Federal Circuit agreed with the COFC’s finding that ARC could not show that it was prejudiced by CBP’s failure to consult with the SBA during its market research.First, the Federal Circuit rejected ARC’s argument that it only needed to establish standing to protest the RFQ to show that CBP’s failure to consult with the SBA was prejudicial error on the merits. The Court explained that there is a difference between whether a protester has alleged an injury-in-fact (or prejudice) to establish Article III standing and whether a protester can prove prejudicial error on the merits:To establish standing in a bid protest case, the protestor must show that it is an ‘interested party’ under 28 U.S.C. § 1491(b)(1), ‘which . . . imposes more stringent standing requirements than Article III.’ Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009).

The Federal Circuit, without addressing the basis for the lower court’s dismissal of this ground, held that the COFC lacked jurisdiction to consider the protester’s argument. The court cited one prong of the COFC’s protest jurisdiction under 28 U.S.C. § 1491(b)(1), which allows challenges to “any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” The Federal Circuit previously has held that “any alleged violation of statute or regulation in connection with a procurement or a proposed procurement” is a broad grant of jurisdiction, including statutory or regulatory violations connected “with any stage of the federal contracting acquisition process, including the process for determining a need for property or services.”

For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States. 28 U.S.C. § 1491(a)(1). Relying on the U.S. Court of Appeals for the Federal Circuit’s oft-cited decision in Resource Conservation Group LLC v. United States, 597 F.3d 1238 (Fed. Cir.

Protesters and other litigants before the U.S. Court of Federal Claims have long encountered the complexities of jurisdiction under the Tucker Act. The Tucker Act, 28 U.S.C. § 1491, is the statute granting jurisdiction to the Court of Federal Claims. It has a long and storied (some would say confusing and complex) history of disputes about what should and should not be before the court. While some may view these issues as "interesting," they are critically important to potential litigants, because the court's jurisdiction is statutory, unlike that of federal district courts, which are authorized by Article III of the Constitution.In a recent decision, the Federal Circuit addressed one of the more arcane but relevant jurisdictional issues—Blue & Gold waiver. In M.R. Pittman Group, LLC v. United States, Case No. 2021-2325, __ F.4th __ (Fed. Cir. 2023), the Federal Circuit held that a Blue & Gold waiver is not jurisdictional. As a result, this decision clarifies and simplifies an area of motions practice in bid protests before the court.I. The Blue & Gold Waiver RuleThe term "Blue & Gold waiver" comes from Blue & Gold, Fleet, L.P. v. United States, 492 F.3d 1308 (F

, 562 U.S. 428, 435 (2011). For example, in E.P.A. v. EME Homer City Generation, L.P., the Supreme Court found the Clean Air Act’s requirement that, to maintain an objection in court on certain issues, one must first raise the objection ‘with reasonable specificity’ during agency rulemaking to be non-jurisdictional because that requirement ‘d[id] not speak to a court’s authority, but only to a party’s procedural obligations.’ 572 U.S. 489, 511–12 (2014) [remaining citations omitted]. Similarly, the requirement that a party object to a solicitation containing a patent error prior to the close of bidding does not speak to the Court of Federal Claim’s authority to hear a case, but only to that party’s procedural obligations.We thus conclude that the Court of Federal Claims erred in holding that M.R. Pittman’s failure to object to the solicitation before the close of bidding created a jurisdictional defect. The Court of Federal Claims did have jurisdiction over M.R. Pittman’s claims under 28 U.S.C. § 1491(b)(1).5This tears asunder over 15 years of precedent-making decisions, reversing findings in the past that the COFC lacked subject matter jurisdiction under Blue & Gold. While the Federal Circuit concluded that the COFC improperly found that it lacked subject matter jurisdiction under COFC Rule 12(h)(3), the Federal Court found that, despite COFC procedural issues, those errors (finding a lack of jurisdiction) were harmless error as under COFC Rule 12(b)(6) (and other rules) the omitted NAICS Code and other ambiguities were patent (open and obvious) errors or ambiguities which required Pittman to protest prior to submission of a bid or proposal (which law has existed for decades where the issue is open and obvious to a reasonable bidder/offeror). Pittman failed to do this, resulting in it waiving its right and any standing it had to protest. As a result, while the COFC’s finding that it lacked jurisdiction was improper, its conclusion that the omission was patent resulted in the decision be

Previously, the Federal Circuit found that the COFC has jurisdiction under 28 U.S.C. § 1491(a) over implied-in-fact contracts only arising outside of the procurement context. In Safeguard Base Operations LLC v. United States, the Federal Circuit now has found the COFC has jurisdiction over implied-in-fact contract claims arising during the procurement context.

If you are filing a bid protest, it is important to hire a knowledgeable attorney to guide you through this sometimes complex process.In 1996, the Administrative Dispute Resolution Act (ADRA), 28 U.S.C. § 1491(b)(1), specifically granted federal district courts jurisdiction to hear challenges to pre- and post-award bid protests. The ADRA, however, included a sunset provision divesting the federal district courts of that jurisdiction by 2001.The bid protest system as we know it today establishes three forums that have jurisdiction to review bid protests:Agencies, established by Executive Order No. 12,979, 60 Fed. Reg. 55,171 (1995)The U.S. Government Accountability Office (GAO), established by the Competition in Contracting Act of 1984, 31 U.S.C. §§ 3551-3556The U.S. Court of Federal Claims (COFC), established by the Tucker Act, 28 U.S.C. § 1491 (as amended by ADRA)Each of these three forums serves a different purpose and comes with advantages and disadvantages when compared to the others.