Case: 20-1538 Document: 52 Page: 1 Filed: 12/07/2021
United States Court of Appeals
for the Federal Circuit
______________________
HARMONIA HOLDINGS GROUP, LLC,
Plaintiff-Appellant
v.
UNITED STATES, DEV TECHNOLOGY GROUP,
INC.,
Defendants-Appellees
______________________
2020-1538
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00674-LAS, Senior Judge Loren A. Smith.
______________________
Decided: December 7, 2021
______________________
WALTER BRAD ENGLISH, Maynard, Cooper & Gale, PC,
Huntsville, AL, argued for plaintiff-appellant. Also repre-
sented by EMILY J. CHANCEY, MICHAEL W. RICH.
DAVID MICHAEL KERR, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee United States.
Also represented by DEBORAH ANN BYNUM, JEFFREY B.
CLARK, ROBERT EDWARD KIRSCHMAN, JR.
WILLIAM SHOOK, Law Offices of William A. Shook,
PLLC, Washington, DC, argued for defendant-appellee
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2 HARMONIA HOLDINGS GROUP, LLC v. UNITED STATES
Dev Technology Group, Inc. Also represented by STEVEN
BARENTZEN, Law Office of Steven Barentzen, Washington,
DC.
_____________________
Before REYNA, SCHALL, and WALLACH, ∗ Circuit Judges.
REYNA, Circuit Judge.
Harmonia Holdings Group, LLC appeals a decision by
the U.S. Court of Federal Claims granting the defendants
United States and Dev Technology Group, Inc.’s Cross-Mo-
tion for Judgment on the Administrative Record. Harmo-
nia contends that the Court of Federal Claims erred in
determining that Harmonia waived its right to assert be-
fore the court the same challenges that it asserted in its
pre-award protest to U.S. Customs and Border Protection.
We agree and reverse the Court of Federal Claims’ decision
on waiver; vacate the Court of Federal Claims’ decision
that Customs and Border Protection did not act in an arbi-
trary or capricious manner in evaluating Harmonia’s pro-
posal and in making an award decision; and remand for the
Court of Federal Claims to determine in the first instance
the merits of Harmonia’s pre-award protest to Customs
and Border Patrol and what relief, if any, Harmonia is en-
titled to based on its pre-award protest. Because the Court
of Federal Claims could determine on remand that Harmo-
nia is entitled to submit a wholly revised proposal requir-
ing a new technical evaluation by Customs and Border
Protection, we decline, on mootness grounds, to reach the
merits of the Court of Federal Claims’ decision with respect
to Customs and Border Protection’s technical evaluation of
Harmonia’s proposal submitted on November 13, 2018.
∗ Circuit Judge Evan J. Wallach assumed senior sta-
tus on May 31, 2021.
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HARMONIA HOLDINGS GROUP, LLC v. UNITED STATES 3
BACKGROUND
U.S. Customs and Border Protection (“CBP”) is an
agency within the U.S. Department of Homeland Security
(“DHS”) with a broad mandate to provide security at the
nation’s borders. See, e.g.,
6 U.S.C. § 211(c). CBP is a law
enforcement organization charged with controlling and
monitoring traffic at the borders, including the flow of ve-
hicles, cargo, and people. See id.; see also J.A. 10292.
CBP’s Cargo Systems Program Directorate (“CSPD”) man-
ages a commercial trade processing system called the Au-
tomated Commercial Environment (“ACE”), which “helps
reduce the Nation’s vulnerability to changing threats with-
out diminishing economic security, by providing threat
awareness, prevention, and protection for the homeland.”
J.A. 10293. “ACE is the backbone of CBP trade processing
and risk management activities and the key to implement-
ing many of the agency’s trade transformation initiatives.”
Id. ACE provides CBP and DHS automated tools and in-
formation for making admissibility decisions before ship-
ments reach U.S. borders and supports cargo revenue
collection.
Id. Further, ACE “is not a single operating sys-
tem but a collection of applications built on diverse multi-
vendor technological platforms.”
Id. CPSD manages ACE
by developing and deploying software code, maintaining
existing system architecture, and developing new architec-
ture to support the expanding ACE environment.
Id.
The Competition
On July 12, 2018, CBP issued a solicitation requesting
quotes for “application development and operation and
maintenance support services” as part of CSPD’s effort to
develop and support cargo systems applications.
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4 HARMONIA HOLDINGS GROUP, LLC v. UNITED STATES
J.A. 10292. The solicitation involved six tasks 1: (1) Con-
tractor Transition In; (2) Contractor Transition Out;
(3) Cargo Systems Application Development; (4) Dev/Ops
Configuration and Release Management; (5) IT System Se-
curity Analysis; and (6) Operations and Maintenance.
J.A. 10297–307, 11274–87. The solicitation required each
offeror to submit a proposal in two volumes, each contain-
ing certain specified information. See J.A. 10276–77.
The solicitation explained that the acquisition would be
conducted in two phases. J.A. 10235. In Phase I, titled
“Oral Presentations,” CBP would seek to understand the
offerors’ responses to certain questions provided by CBP
relating to CBP’s requirements.
Id. CBP would evaluate
the Phase I responses “holistically with an overall adjec-
tival quality rating” and advise the offerors of their likeli-
hood of being selected. J.A. 10280–81. The intent of this
procedure was “to minimize proposal development costs for
those [o]fferors with little or no chance of receiving an
award.” J.A. 10235. Nevertheless, notwithstanding CBP’s
advice at Phase I, all offerors that participated in Phase I
could participate in Phase II.
Id.
In Phase II, titled “Written Responses,” CBP would
evaluate the offerors’ proposals in accordance with certain
evaluation criteria and could make an award without ne-
gotiations to the proposal deemed the best value to the gov-
ernment.
Id. The evaluation criteria included five factors:
• Factor 1: Technical Excellence
o Sub-Factor 1: Tasks 3, 4, and 6
o Sub-Factor 2: Task 5
o Sub-Factor 3: Risk Mitigation Plan
1 The original solicitation included seven tasks, but
Amendment 4 dated September 7, 2018, eliminated one
task and renumbered the tasks prior to the parties’ sub-
mission of their initial proposals. See J.A. 11274.
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HARMONIA HOLDINGS GROUP, LLC v. UNITED STATES 5
• Factor 2: Management Approach
o Sub-Factor 1: Staffing Plan/Key Personnel
o Sub-Factor 2: Program Management
o Sub-Factor 3: Sub-Contracting Manage-
ment/Teaming Plan
• Factor 3: Quality Assurance
o Sub-Factor 1: Transition-In Plan
o Sub-Factor 2: Transition-Out Plan
• Factor 4: Past Performance
• Factor 5: Price
J.A. 10281–85, 13062–63. The solicitation also explained
that the factors decreased in importance from factor 1 to
factor 5:
Factor 1 is more significantly important than Fac-
tors 2, 3, and 4; Factors 2 and 3 are of equal im-
portance and significantly more important than
Factor 4. The sub-factors are hereby described as
follows: all sub-factors within Factors 1, 2 and 3 are
of equal importance to the other sub-factors within
the same Factor. The non-Price Factors, when
combined, are significantly more important than
the Price Factor (Factor 5).
J.A. 10286.
For Factors 1–3, the solicitation explained that CBP
would assess whether each offeror’s proposal “exhibit[ed] a
thorough understanding of the complexity and magnitude
of the requirement and [the] likelihood that the [o]fferor
will be successful in performance under each tasking of the
[statement of work].”
Id. CBP would assign an overall ad-
jectival rating for each of the three factors and assign a risk
rating for each of their sub-factors.
Id. “[I]f an [o]fferor
receives a high risk rating, regardless of technical ratings
or price, that [o]fferor may not be considered for award.”
Id. For Factor 4, CBP would assess performance risk.
Id.
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6 HARMONIA HOLDINGS GROUP, LLC v. UNITED STATES
For Factor 5 relating to price, the solicitation stated
that CBP would “evaluate [p]rice [p]roposals to ensure
prices are fair and reasonable,” and that “[t]he importance
of price may increase as the differences between [o]ffe-
ror[s’] non-price factors decrease[].” J.A. 10287. The solic-
itation provided a sample price format and required
offerors to submit pricing for the contract line items
(“CLINs”) listed in the spreadsheet. J.A. 10277, 10334–42.
The sample price format explained how the tasks tied into
Time and Materials (“T&M”) CLINs, and it showed four
CLINs each having a list of pertinent job titles.
J.A. 10334–42. The four CLINs included (1) Base Develop-
ment CLIN 001 T&M, (2) On-Demand Services Depart-
ment CLIN 002 T&M, (3) Base [Operations & Management
(“O&M”)] CLIN 003 T&M, and (4) On-Demand Services
O&M CLIN 004 T&M.
Id. Taken together, the four CLINs
listed over 90 labor categories. See
id. The solicitation
specified that offerors must provide labor rates that are
“fully-burdened to include all direct and indirect costs and
profit,” and that the awardee must, “when so ordered by
the Government, provide the necessary management, la-
bor, facilities, materials and supplies to perform tasks as
stated in the task order contract.” J.A. 10237. Addition-
ally, in a section titled “Task Order Terms and Conditions,”
the solicitation provided for “Surge CLIN Volume,” mean-
ing that CBP could purchase additional services during the
performance period. J.A. 10270.
From July through mid-September of 2018, CBP issued
eight amendments to the solicitation. In late September
2018, Appellant Harmonia Holdings Group, LLC (“Harmo-
nia”), Appellee Dev Technology Group, Inc. (“Dev Tech”),
and other offerors submitted their initial proposals.
J.A. 11699–2452.
On October 26, 2018, CBP issued Amendment 9.
Amendment 9 altered the period of performance,
J.A. 11576; clarified the procedures for “Surge” CLIN pur-
chasing, J.A. 11593; revised Factor 2, Sub-factor 1, by
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HARMONIA HOLDINGS GROUP, LLC v. UNITED STATES 7
requiring offerors to “provide a detailed Staffing Plan when
the On-Demand/Surge CLINs are needed,” J.A. 11589; al-
tered Factor 5 by requiring offerors to conform their respec-
tive staffing plans under Factor 2, Sub-factor 1, to their
price quotations, J.A. 11593–94; provided a new sample
price format spreadsheet that required offerors to resubmit
pricing to comply with new CLIN pricing rules, J.A. 11593,
11637; and reduced the number of labor categories from 90
to 10, J.A. 11637, 11475.
On November 1, 2018, CBP issued Amendment 10.
Amendment 10 added Task 4 to CLIN 003, J.A. 11696,
11637; established estimated ceilings for CLINs 001, 002,
and 004, J.A. 11694; designated CLINs 001 and 003 as “Re-
quired Services,” i.e., work needed at time of award, id.;
and added FAR 52.219-14 Limitations on Subcontracting
(Jan. 2017), J.A. 11645.
Offerors’ proposal revisions in response to Amend-
ments 9 and 10 were due on November 13, 2018.
J.A. 11537. CBP specified in both Amendments that offe-
rors would be permitted to revise their proposals with re-
spect to Factor 2, Sub-factor 1 (Staffing Plan/Key
Personnel), and Factor 5 (Price). J.A. 11537, 11638.
On November 12, 2018, Harmonia submitted a pre-
award agency-level protest to CBP. J.A. 12490–94. Har-
monia challenged CBP’s limitation of revisions to Factor 2,
Sub-factor 1, and Factor 5, arguing that offerors should be
able to update their entire proposals in response to Amend-
ments 9 and 10. J.A. 12491–93. Harmonia also challenged
Amendment 10’s addition of FAR 52.219-14 Limitations on
Subcontracting (Jan. 2017), which prohibited offerors from
subcontracting more than 50 percent of the work, as a ma-
terial change warranting “major revisions” to offerors’ pro-
posals. Appellant’s Br. 9; see also J.A. 12493. The next
day, November 13, 2018, Harmonia submitted to CBP a
proposal with revisions for Factor 2, Sub-factor 1, and Fac-
tor 5. J.A. 12561–658.
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8 HARMONIA HOLDINGS GROUP, LLC v. UNITED STATES
On December 6, 2018, CBP denied Harmonia’s protest.
CBP rejected Harmonia’s argument that offerors should be
able to update their entire proposals in response to Amend-
ments 9 and 10, explaining that those amendments were
intended to merely give offerors “additional flexibility to-
wards pricing,” “did not change the overall technical solu-
tion to be performed,” and did not “constitute[] a material
change to the solicitation.” J.A. 12899. CBP also explained
that FAR 52.215-1, which Harmonia cited as permitting of-
ferors to update their entire proposals, in fact “d[id] not ap-
ply to this procurement conducted in accordance with FAR
Part 8.” J.A. 12900. Regarding CBP’s limitation on sub-
contracting under FAR 52.219-14, CBP stated that it would
“proceed with evaluations treating all [o]fferors with neu-
trality regarding compliance with this clause.” J.A. 12899.
In a memorandum revised on April 23, 2019, CBP per-
formed a comparative analysis of the proposals and stated
that “Dev Tech is more highly ranked than Harmonia,
which is considered the lowest ranked technical solution.”
J.A. 13052. The memorandum further indicated that Har-
monia would not be considered in CBP’s tradeoff analysis.
Id.
In an April 25, 2019 letter, CBP informed Harmonia
that its proposal was unsuccessful, that a proposal revision
would not be considered, and that Dev Tech had won the
contract because it had submitted the proposal represent-
ing the best value to the government. J.A. 13060. CBP
also informed Harmonia of the evaluation results, summa-
rized in the following chart:
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HARMONIA HOLDINGS GROUP, LLC v. UNITED STATES 9
J.A. 13063.
For each sub-factor, the chart showed CBP’s overall ad-
jectival rating (e.g., “Sat,” i.e., Satisfactory, or “Marginal”),
followed by the risk level (e.g., “Med,” i.e., Medium, “High,”
or “Low”). According to CBP’s evaluation, Harmonia re-
ceived high-risk ratings for three sub-factors: Factor 2,
Sub-factor 1 (Staffing Plan/Key Personnel Resumes); Fac-
tor 2, Sub-factor 2 (Program Management Approach); and
Factor 3, Sub-factor 1 (Task 1, Transition In Plan). See
id.
For all three sub-factors, CBP explained that Harmonia’s
proposal omitted certain “critical applications” that are
“major areas of functionality in O&M”: Cargo Release, For-
eign Trade Zone (“FTZ”), International Trade Data System
(“ITDS”), or Automated Export System (“AES”).
J.A. 13064–65. Regarding Factor 5 (price), CBP also stated
that the estimated total price for Harmonia’s proposal was
approximately $10 million greater than that of Dev Tech’s
proposal. See J.A. 13065, 13060.
The Court of Federal Claims
On May 7, 2019, Harmonia filed a bid protest with the
U.S. Court of Federal Claims. Harmonia Holdings Grp.,
LLC v. United States,
146 Fed. Cl. 799, 809 (2020); J.A. 27.
In its protest, Harmonia challenged CBP’s December 6,
2018 denial of Harmonia’s November 12, 2018 pre-award
protest. See Harmonia, 146 Fed. Cl. at 810, 813. Harmonia
also challenged CBP’s evaluation of the proposal Harmonia
submitted on November 13, 2018. In June 2019, the par-
ties briefed their cross-motions for judgment on the
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10 HARMONIA HOLDINGS GROUP, LLC v. UNITED STATES
administrative record and Dev Tech’s motion to dismiss.
Id. at 809; J.A. 27–28. The Court of Federal Claims held
oral argument on October 3, 2019. Harmonia, 146 Fed. Cl.
at 810; J.A. 31.
On January 16, 2020, the Court of Federal Claims is-
sued a decision on the parties’ motions. The court first de-
nied Dev Tech’s motion to dismiss and found that
Harmonia had proven standing by showing it had a sub-
stantial chance of winning the contract. Harmonia, 146
Fed. Cl. at 811–12. The Court of Federal Claims then de-
nied Harmonia’s motion for judgment on the administra-
tive record and granted Dev Tech’s cross-motion. The court
first addressed Harmonia’s bid protest insofar as it in-
volved the same grounds raised in its pre-award protest to
the CBP, i.e., the CBP’s limitation on proposal revisions
following Amendments 9 and 10. Id. at 812–14. The court
determined that Harmonia’s bid protest on these grounds
failed for untimeliness. Id. It quoted and relied on the fol-
lowing language from COMINT Systems Corp. v. United
States,
700 F.3d 1377, 1382 (Fed. Cir. 2012), while recog-
nizing that COMINT involved different facts:
To be sure, where bringing the challenge prior to
the award is not practicable, it may be brought
thereafter. But, assuming that there is ade-
quate time in which to do so, a disappointed bid-
der must bring a challenge to a solicitation
containing a patent error or ambiguity prior to the
award of the contract.
Harmonia, 146 Fed. Cl. at 813 (emphasis in original). The
court observed that “[n]othing in the record or in plaintiff’s
briefing meaningfully explains the five-month delay in
Harmonia filing its pre-award protest with this Court.” Id.
at 814. Given that delay, the court explained that it “can-
not conclude that Harmonia diligently or timely pursued
its position.” Id. The court further explained, “Had Har-
monia timely filed a pre-award protest with the GAO or
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HARMONIA HOLDINGS GROUP, LLC v. UNITED STATES 11
this Court after its agency-level protest was denied, it
would have avoided asking the Court to concurrently re-
solve both pre- and post-award protest grounds months af-
ter the Agency’s award decision.” Id. The court concluded
that, “while Harmonia facially met the requirements under
Blue & Gold, Harmonia nevertheless waived its right to
bring those claims before this Court by failing to timely and
diligently pursue its objections to Amendments 9 and 10.”
Id.
The Court of Federal Claims then addressed Harmo-
nia’s post-award challenges to CBP’s evaluation of Harmo-
nia’s proposal under Factors 1–3 2 and its resulting decision
to award the contract to Dev Tech. See id. at 814–17. Har-
monia had argued that the CBP’s evaluation with respect
to Factor 2, Sub-factor 1 (Staffing Plan/Key Personnel Re-
sumes) and Sub-factor 2 (Program Management Approach)
was “irrational.” According to Harmonia, “there can be no
doubt” that its proposal was responsive to the solicitation’s
requirements. Id. at 815 (citation omitted). Harmonia con-
tended that the CBP “unreasonably ignor[ed] [the] context”
of Harmonia’s “proposal description of its responsibility for
ITDS and Cargo Release.” Id. (citation omitted). Harmo-
nia further argued that the CBP assigned undue im-
portance to previously-unstated “[c]ore functional areas” of
the work, including Cargo Release, FTZ, ITDS, and AES.
Id.
The Court of Federal Claims rejected these arguments
because the solicitation made clear that the applications
not addressed in Harmonia’s proposal were a necessary
2 The Court of Federal Claims declined to reach the
merits of Harmonia’s arguments with respect to Factor 1
in light of its findings that the CBP did not irrationally as-
sign Harmon’s proposal high-risk evaluations with respect
to Factor 2, Sub-factors 1 and 2 and Factor 3, Sub-factor 1.
Id. at 817.
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12 HARMONIA HOLDINGS GROUP, LLC v. UNITED STATES
part of the services being procured. Id. at 816. And, given
the technical nature of the services at issue, the court de-
clined to substitute its judgment for that of the CBP. Id.
Harmonia also challenged the CBP’s high-risk evalua-
tion of its proposal under Factor 3, Sub-factor 1 (Task 1,
Transition In Plan). Harmonia contended that the solici-
tation merely required offerors to outline their approaches
to “taking full ownership of the requirements” and that
“there was no requirement to discuss any applications.” Id.
at 816–17 (citation omitted). Harmonia further contended
that it met the solicitation’s requirements by “specifically
mention[ing]” the Cargo Release, ITDS and AES applica-
tions. Id. at 817 (citation omitted). The Court of Federal
Claims rejected Harmonia’s arguments, agreeing instead
with Dev Tech that the solicitation specifically required
those applications and that Harmonia’s mere mention of
them in its proposal supported CBP’s high-risk evaluation
under Factor 3, Sub-factor 1. Id. (citations omitted). The
Court of Federal Claims determined that, based on its
high-risk ratings with respect to Factor 2, Sub-factors 1–2,
and Factor 3, Sub-factor 1, “Harmonia was ineligible for
award . . . in accordance with the terms of the Solicitation.”
Id.
Harmonia appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(3).
STANDARD OF REVIEW
We review decisions by the Court of Federal Claims on
cross-motions for judgment on the administrative record de
novo, applying the same standard as the trial court. XO-
tech, LLC v. United States,
950 F.3d 1376, 1379 (Fed. Cir.
2020). In deciding cross-motions for judgment on the ad-
ministrative record, the Court of Federal Claims considers
“whether, given all the disputed and undisputed facts, a
party has met its burden of proof based on the evidence of
record.”
Id. (quoting Palantir USG, Inc. v. United States,
904 F.3d 980, 989 (Fed. Cir. 2018)).
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HARMONIA HOLDINGS GROUP, LLC v. UNITED STATES 13
“Bid protests are reviewed under the Administrative
Procedure Act.” XOtech, 950 F.3d at 1380. Therefore, an
agency action may be set aside if it is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law,” or “without observance of procedure required by law.”
Palantir, 904 F.3d at 989 (quoting
5 U.S.C. § 706(2)(A),
(D)). The substantial evidence standard of
5 U.S.C.
§ 706(2)(E) applies to a trial court’s review of an agency’s
findings. Blue & Gold Fleet, L.P. v. United States,
492 F.3d
1308, 1312 (Fed. Cir. 2007). However, where the Court of
Federal Claims makes factual findings from the adminis-
trative record in the first instance, we review such findings
for clear error.
Id.
DISCUSSION
Harmonia contends that the Court of Federal Claims
erred in determining that Harmonia waived its right, un-
der Blue & Gold and its progeny, to file an action in the
Court of Federal Claims asserting the same challenges that
it asserted in its pre-award protest to the CBP, which the
CBP denied five months earlier. Appellant’s Br. 11–13,
15–18. Harmonia contends that the Court of Federal
Claims improperly extended the law of Blue & Gold by
finding waiver even though Harmonia had formally pre-
served its challenge by timely submitting its pre-award bid
protest to CBP.
Id. Under the proper application of the
law, Harmonia argues, it did not waive, and thus should be
permitted to pursue in the Court of Federal Claims, its
challenge to CBP’s limitation on offerors’ revisions of their
proposals following Amendments 9 and 10.
Id. Dev Tech
and the government argue that Blue & Gold waiver should
apply, even though Harmonia timely submitted a formal
pre-award protest to CBP, because of Harmonia’s delay in
filing an action following CBP’s denial of its pre-award pro-
test. We agree with Harmonia.
The statute establishes a six-year period following
claim accrual during which a party may file suit in the
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14 HARMONIA HOLDINGS GROUP, LLC v. UNITED STATES
Court of Federal Claims.
28 U.S.C. § 2501 (“Every claim of
which the United States Court of Federal Claims has juris-
diction shall be barred unless the petition thereon is filed
within six years after such claim first accrues.”). In Blue
& Gold, however, we restricted the time for bringing a bid
protest in the Court of Federal Claims to a shorter period.
Specifically, we held that
a party who has the opportunity to object to the
terms of a government solicitation containing a pa-
tent 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 in the
Court of Federal Claims.
Blue & Gold,
492 F.3d at 1313. We explained that this
waiver rule prevents a bidder who is aware of a solicitation
defect from waiting to bring its challenge after the award
in an attempt to restart the bidding process, “perhaps with
increased knowledge of its competitors.”
Id. at 1314. “A
waiver rule thus prevents contractors from taking ad-
vantage of the government and other bidders[] and avoids
costly after-the-fact litigation.”
Id.
Subsequently, in COMINT, we expanded the reasoning
of Blue & Gold to encompass waiver based on delay that
occurs after the close of bidding, given that the amendment
in that case was adopted after that time. 700 F.3d at 1382.
In COMINT, we explained that “[t]here is no question that
Comint could have challenged the solicitation before the
award.” Id. The protesting party there “d[id] not claim to
have been unaware of the alleged defect in Amendment 5
prior to the award of the contract,” and it had two and a
half months before the award in which to file its protest.
Id at 1382–83. We concluded that “[t]hat was more than
an adequate opportunity to object,” and that it was im-
proper for Comint to seek to restart the bidding process by
objecting to Amendment 5 for the first time after the
award. Id. at 1383.
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HARMONIA HOLDINGS GROUP, LLC v. UNITED STATES 15
Our cases concluding that Blue & Gold waiver applies
generally involve a failure to timely object to a known, pa-
tent defect in the solicitation. We are not persuaded that
our precedent supports applying the Blue & Gold waiver
rule to this case as the Court of Federal Claims did. In
Bannum, Inc. v. United States, we explained that “a formal,
agency-level protest before the award would likely preserve
a protestor’s post-award challenge to a solicitation . . . as
might a pre-award protest filed with the GAO.”
779 F.3d
1376, 1380 (Fed. Cir. 2015). We therefore recognized that
the Blue & Gold waiver rule is predicated not only on the
notion of avoiding delay that could benefit the delaying
party, but also on the notion of preserving challenges and
providing notice to interested parties. See
id. Harmonia’s
undisputedly timely, formal challenge of the solicitation
before CBP removes this case from the ambit of Blue &
Gold and its progeny. Therefore, we reverse the Court of
Federal Claims’ decision that Harmonia waived, under
Blue & Gold, its ability to file an action asserting the same
grounds of objection that it asserted in its earlier, formal
protest before CBP. We remand the case to the Court of
Federal Claims for consideration of the pre-award protest
that the court previously erroneously denied on Blue &
Gold grounds. Harmonia,
146 Fed. Cl. 812–14.
Our opinion should not be read as condoning delay in
filing actions in the Court of Federal Claims. Under cer-
tain circumstances, delaying bidders may face adverse con-
sequences, but we are not persuaded in this case that
imposition of a Blue & Gold waiver should be one of those
consequences. The Court of Federal Claims has relatively
broad authority under
28 U.S.C. § 1491(b)(2) to fashion a
remedy: the court may “award any relief that the court con-
siders proper, including declaratory and injunctive relief
except that any monetary relief shall be limited to bid prep-
aration and proposal costs.” On remand, the Court of Fed-
eral Claims might decide under the circumstances of this
case that injunctive relief is appropriate.
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16 HARMONIA HOLDINGS GROUP, LLC v. UNITED STATES
Harmonia seeks to submit “a fully revised proposal in
response to the changed requirements in Amendments 9
and 10.” Appellant’s Br. 28. Recognizing that the Court of
Federal Claims, on remand, could determine that it is ap-
propriate to reopen bidding and allow offerors to submit
wholly new proposals, which would require a new technical
evaluation by CBP, we vacate the Court of Federal Claims’
decision with respect to CBP’s technical evaluation of Har-
monia’s November 13, 2018 proposal on mootness grounds
and do not reach its merits. See Chapman Law Firm Co.
v. Greenleaf Constr. Co.,
490 F.3d 934, 939 (Fed. Cir. 2007)
(“When, during the course of litigation, it develops that the
relief sought has been granted or that the questions origi-
nally in controversy between the parties are no longer at
issue, the case should generally be dismissed.”). To the ex-
tent that the Court of Federal Claims determines on re-
mand that Harmonia is not entitled to submit a wholly
revised proposal, the Court of Federal Claims may decide
to reinstate its decision that CBP’s technical evaluation
was rational.
CONCLUSION
We hold that the Court of Federal Claims erred in de-
termining that Harmonia waived, under Blue & Gold, its
right to assert the same challenges that it asserted in its
pre-award bid protest before CBP. We therefore reverse
the Court of Federal Claims’ waiver decision and vacate its
decision that CBP did not act in an arbitrary and capricious
manner in evaluating Harmonia’s proposal and making an
award decision. We remand for the Court of Federal
Claims to determine in the first instance whether Harmo-
nia is entitled to relief with respect to its pre-award bid
protest. We have considered the parties’ remaining argu-
ments and find them unpersuasive.
REVERSED-IN-PART, VACATED-IN-PART AND
REMANDED
Case: 20-1538 Document: 52 Page: 17 Filed: 12/07/2021
HARMONIA HOLDINGS GROUP, LLC v. UNITED STATES 17
COSTS
No costs.
