Federal Circuit Reinforces the Requirement for Timeliness of Bid Protests Challenging Solicitation Improprieties

The Federal Circuit’s recent opinion in Comint Systems Corporation & EyeIT.com, Inc., Joint Venture v. United States clarifies the broad scope of the equitable waiver rule applicable to solicitation challenges in bid protests brought before the Court of Federal Claims. The Federal Circuit’s decision reaffirms the principle established in the Federal Circuit’s decision in Blue & Gold Fleet, L.P. v. United States that a contractor who sits on his right to challenge a solicitation risks waiver of the right to bring such a challenge in a subsequent bid protest action before the Court of Federal Claims. The Federal Circuit in Comint sends a strong message that a challenge to a clear solicitation error or ambiguity must be asserted prior to contract award and failure to do so waives any right to assert such a challenge in a post-award protest. In addition, the Federal Circuit’s opinion indicates that timeliness under Blue & Gold is a critical threshold issue that may dispose of a protest before the Court of Federal Claims reaches other questions of standing or the merits.