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Protest Ambiguities; Waiver of Rights

Posted By Tom Petruska, Friday, January 21, 2011

Protest Ambiguities; Waiver of Rights


The Boards of Contract Appeals and the Federal Courts have developed and enforced a well-established rule that an offeror who finds a patent ambiguity in a Request for Proposal ("RFP") must affirmatively seek clarification from the Contracting Officer ("CO") and, if it fails to obtain such clarification, file a pre-proposal protest.  Alternatively, some Offerors will prepare "Assumptions and Clarifications" that are submitted, generally, with the Price Volume explaining their interpretation of a patent ambiguity in the event they fail to receive any satisfactory clarification from the CO. When an Offeror fails to obtain clarification of  an ambiguity pre-award, then they are precluded from seeking relief post-award.  It is important, then, that Offerors vigorously pursue the clarification of these ambiguities; failure to do so may cause an Offeror to waive its rights.

In Blue and Gold Fleet L.P. v. United States(1) the National Park Service issued an RFP for ferry services from San Francisco to Alcatraz Island.  In a post-award protest decision, the Court ruled that the protest was a challenge to the terms of the RFP and was, therefore, untimely.  Blue and Gold Fleet protested that the RFP failed to include the mandatory wage and benefit data under the Service Contract Act, but the Court denied their protest, ruling 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 at the Court of Federal Claims.  The protester did nothing to challenge the omission of the Service Contract Act requirement prior to the date and time set for receipt of proposals. They waited until after the award of the contract but by that time they had waived their protest rights.

In Weeks Marine, Inc. v. United States(2) the protester challenged a Corps of Engineers RFP by filing suit at the Court of Federal Claims before the time and date set for receipt of proposals.  The Court ruled that Weeks Marine had standing to file a pre-award protest by showing a non-trivial competitive injury which can be redressed by judicial relief.

In Esterhill Boat Service Corp. v. United States(3) the protester challenged a RFP from the Veterans Affairs Department for leasing building space for a community based out-patient clinic.  The VA sought a lease of 8,000 to 9,000 square feet all on one floor.  Esterhill Boat Service could not comply, but submitted an agency level protest before the date and time set for receipt of proposals, apparently without success.  After proposals were submitted, the protester filed a protest at GAO which was rejected.  A protest at the Court of Federal Claims resulted in the same decision.

The Court ruled that Esterhill's challenge was untimely because, by waiting for the contract award decision, they gambled they would win, but when they lost, they protested.  The Court ruled Esterhill could have and should have filed suit at the Court prior to proposal submission, and protested the "one-floor" requirement.  Esterhill's fatal flaw was it allowed its challenge to the "one-floor" requirement to lapse hoping to somehow win the contract.  When they learned they had lost, it was too late; they had waived their rights.

In the foregoing cases, the protester failed to continue to pursue their initial protests.  This failure resulted in a waiver of rights.  When they were not successful receiving an award, they failed in their post award protests.  Any challenge to a solicitation must be timely filed and vigorously pursued.  Frivolous protests must be avoided.  In pre-award protests, the protester must demonstrate clear and prejudicial violation of law or regulation and show a non-trivial competitive injury which can be redressed by judicial relief.

If a concern fails to pursue their challenge hoping to obtain a contract, they waive their rights and, if they lose, they don't get a second chance.

Tom Petruska
Contracts Unlimited, Inc.

The foregoing is not a legal opinion or legal advice.  Consult your attorney for legal assistance.


1. 492 F.3d 1308 (Fed. Cir. 2007)
2. 575 F.3d, 1352 (Fed. Cir. 2009)
3. 91 Fed CL. 483 (2010)

Tags:  Protests 

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