Court Rules That Contractor Waived Its Right To Challenge Solicitation With Mere Notice of Protest

The Federal Circuit recently issued a decision finding that a bidder who disagreed with the terms of a solicitation had waived its rights to challenge those terms when it merely asserted that it was protesting the terms but never actually filed a formal bid protest prior to the award decision.  In the case, the bidder disagreed with an amendment to the solicitation and, in submitting the signed amendment to the government to confirm its receipt, also submitted a letter labeled “AGENCY PROTEST.”

However, the letter did not constitute a formal protest, and the bidder did nothing further until after the award decision was made, at which time it filed a formal protest.  The Court ruled that the bidder had waived its right to challenge the terms of the solicitation by waiting until after the award decision to file its formal protest.  The fact that the government on notice of the bidder’s objection to the solicitation was not by itself sufficient to prevent this waiver.