In its March 2015 decision in Bannum, Inc. v. United States, the Federal Court of Appeals ruled that the plaintiff bidder was precluded from launching a bid challenge since the applicable rules required that the objection in question be filed prior to the submission of bids.
In its decision the court noted the distinction between defects in solicitation documents and defects in the bid evaluation process, noting that:
A bidder that challenges the terms of a solicitation in the Court of Federal Claims generally must demonstrate that it objected to those terms “prior to the close of the bidding process.” Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007). If it cannot do so, the bidder “waives its ability to raise the same objection afterwards…”.
The court found that the complainant did not pursue its available remedies by formally filing a protest prior the bid submission and instead attempted to launch its legal challenge after the contract award went to a competing bidder:
It is undisputed that the government received notice of Bannum’s dissatisfaction with the PREA-compliance requirement before awards were made. We conclude, however, that mere notice of dissatisfaction or objection is insufficient to preserve Bannum’s defective-solicitation challenge. The solicitations at issue and the governing regulations put Bannum on notice of the formal requirements for filing a “protest” that would trigger an agency obligation of response and prompt resolution. Bannum did not comply with those requirements; nor did it pursue other available means of formal protest (e.g., to the GAO or the Court of Federal Claims) until after the awards. In these circumstances, it waived its solicitation challenges.
As the court noted, the complainant failed to avail itself of remedies that could have resolved its objections to the terms of the solicitation document prior to bidding and it could not challenge those terms retroactively after the contract was awarded. As the court concluded:
Having failed to follow any of the various protest procedures available to bidders for swiftly resolving objections to the terms of the solicitation, Bannum cannot raise the same challenge in the Court of Federal Claims now that an award has been made.” This relevant grounds of complaint were therefore dismissed by the court.
As this case illustrates, when specific complaint filing deadlines are in effect, bidders must file their complaints in accordance with those deadlines or run the risk of being legally barred from raising those complaints after the bidding process has run its course.
