Case: 21-2325 Document: 33 Page: 1 Filed: 05/22/2023
United States Court of Appeals
for the Federal Circuit
______________________
M.R. PITTMAN GROUP, LLC,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2021-2325
______________________
Appeal from the United States Court of Federal Claims
in No. 1:21-cv-01397-CFL, Senior Judge Charles F. Lettow.
______________________
Decided: May 22, 2023
______________________
JONATHAN S. FORESTER, Riess LeMieux, LLC, New Or-
leans, LA, for plaintiff-appellant. Also represented by
CHRISTOPHER K. LEMIEUX.
GALINA I. FOMENKOVA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
BRIAN M. BOYNTON, PATRICIA M. MCCARTHY.
______________________
Before DYK, TARANTO, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
Case: 21-2325 Document: 33 Page: 2 Filed: 05/22/2023
2 M.R. PITTMAN GROUP, LLC v. US
M.R. Pittman Group, LLC appeals a decision of the
United States Court of Federal Claims dismissing M.R.
Pittman’s bid protest under Court of Federal Claims Rule
12(h)(3) for lack of subject matter jurisdiction. The Court of
Federal Claims determined, pursuant to the Blue & Gold
waiver rule, that M.R. Pittman waived its protest when it
failed to object prior to the close of the bidding process. We
hold that waiver under Blue & Gold does not deprive the
Court of Federal Claims of subject matter jurisdiction,
making dismissal of M.R. Pittman’s claim improper under
Rule 12(h)(3). That error was harmless, however, because
dismissal was proper under Court of Federal Claims Rule
12(b)(6). Consequently, we affirm.
I
M.R. Pittman Group, LLC filed suit in the United
States Court of Federal Claims in May of 2021, protesting
the United States Army Corps of Engineers’ (USACE)
award of a contract for the repair of pump units in Louisi-
ana. The USACE issued Solicitation No. W912P820B0063
on December 21, 2020 for the repair of pump units at Wil-
kinson Canal Pump Station in Plaquemines Parish, Loui-
siana. Pump stations, such as the one at issue, protect
Louisiana residents and infrastructure during hurricane
season and other times of significant flooding. At the time
of the solicitation, the pump station was only operating at
50% capacity.
The USACE posted the solicitation for the repair of
these pump units on beta.SAM.gov, the government-wide
point of entry providing electronic access to “[g]overnment
business opportunities greater than $25,000.” The
webpage with the link to the solicitation noted, “[t]his is a
100% Small Business Set Aside procurement. All
Small Business concerns representing itself as
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M.R. PITTMAN GROUP, LLC v. US 3
such . . . under NAICS Code: 811310 may submit offers.” 1
J.A. 2 (emphasis original); J.A. 256. The solicitation itself
did not include a reference to NAICS Code 811310. It did,
however, incorporate by reference Federal Acquisition Reg-
ulation (FAR) 52.219-6—titled “Notice Of Total Small
Business Set-Aside”—which warns that “[o]ffers are solic-
ited only from small business concerns,” and “[a]ny award
resulting from this solicitation will be made to a small busi-
ness concern.” J.A. 2–3; J.A. 61. Bids were due on January
20, 2021.
M.R. Pittman submitted a bid on that date and was the
lowest bidder out of the four companies that submitted
bids. The USACE informed M.R. Pittman that the contract
was set aside for a small business under NAICS Code
811310 and requested that M.R. Pittman update its NAICS
code status. But M.R. Pittman did not qualify as a small
business under NAICS Code 811310 and was thus ineligi-
ble for the award. The USACE then awarded the contract
to J. Star Enterprise, Inc., a small business based in New
Orleans, Louisiana.
On February 3, 2021, M.R. Pittman filed a bid protest
with the Government Accountability Office (GAO). The
crux of M.R. Pittman’s protest was that the omission of NA-
ICS code 811310 meant that the solicitation could not be
treated as a set-aside for small business concerns. The
GAO dismissed the protest after holding that M.R. Pittman
failed to timely challenge the solicitation.
M.R. Pittman then filed suit in the Court of Federal
Claims along with a motion for a temporary restraining or-
der and preliminary injunction (collectively, the motions
1 The North American Industry Classification Sys-
tem (NAICS) code is the official standard used to determine
whether a business is a “small business concern” for a given
contract.
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4 M.R. PITTMAN GROUP, LLC v. US
for emergency relief or emergency motions). M.R. Pittman
again argued that the omission of the relevant NAICS code
meant that the solicitation could not be treated as a small
business set-aside.
The trial court held an initial status conference to de-
termine a schedule for the initial proceedings, including
the motions for emergency relief. The government indi-
cated that it intended to move to dismiss and was contem-
plating filing its response to the motions for emergency
relief and a motion to dismiss in the same document. The
government explained that combining the two documents
made sense because “the discussion of the likelihood of suc-
cess on the merits in our view largely collapses with actual
success on the merits.” J.A. 184 at Tr. 15:19–24. In order to
accommodate the USACE’s desire to have these pumps re-
paired as quickly as possible, the trial court decided to have
separate briefing schedules for the emergency motions and
the motion to dismiss. The Court explained that M.R.
Pittman’s deadline to respond to any motion to dismiss
would be decided at the hearing for the emergency motions.
The government did in fact file a combined Motion to
Dismiss and Opposition to Plaintiff’s Motion for Temporary
Restraining Order and Preliminary Injunction. The com-
bined filing argued that, under Blue & Gold, Fleet, L.P. v.
United States,
492 F.3d 1308 (Fed. Cir. 2007), M.R.
Pittman had waived its protest grounds by failing to raise
the issue prior to the close of bidding. The combined filing
did not make separate arguments on this issue for the mo-
tion to dismiss and response to the emergency motions.
M.R. Pittman filed a Reply to the government’s Opposition
to Plaintiff’s Motion for Temporary Restraining Order and
Preliminary Injunction. M.R. Pittman did not file a sepa-
rate response to the motion to dismiss, as the trial court
had not set a response brief deadline for the motion to dis-
miss. M.R. Pittman did, however, respond to the Blue &
Gold waiver argument set out in the government’s
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M.R. PITTMAN GROUP, LLC v. US 5
combined filing when it addressed the reasonable likeli-
hood on the merits factor.
The Court of Federal Claims then held a hearing on the
motions for emergency relief. The trial court confirmed that
the hearing was not on the motion to dismiss. The court
and parties discussed, quite extensively, whether M.R.
Pittman had waived its grounds for protest under Blue &
Gold. The court did not set a deadline for M.R. Pittman to
respond to the motion to dismiss. Two weeks after the hear-
ing, the trial court denied M.R. Pittman’s motions for emer-
gency relief and granted the government’s motion to
dismiss. The trial court found that it lacked subject matter
jurisdiction under Rule 12(h)(3) of the Rules of the Court of
Federal Claims (RCFC).
The trial court found that “the waiver rule for bid pro-
tests adopted by the Federal Circuit forecloses [] Pittman’s
protest” because the USACE’s “error was apparent from
the onset” and “Pittman had ‘the opportunity to object to
the terms of’ this solicitation ‘prior to the close of the bid-
ding process,’” but failed to do so “without any indication of
‘good cause to excuse its delay.’” M.R. Pittman Grp., LLC v.
United States,
154 Fed. Cl. 241, 244 (Fed. Cl. 2021) (quot-
ing Blue & Gold,
492 F.3d at 1313, 1315). Specifically, the
trial court found that there was a “glaring discrepancy
within the solicitation itself” between the omitted NAICS
code and the expressly incorporated “Notice of Total Small
Business Set-Aside” FAR clause.
Id. The trial court also
stated that the “omission of NAICS Code 811310 from the
solicitation [was] obvious, . . . given that the webpage with
the link to the solicitation stated that ‘[t]his is a 100%
Small Business Set Aside procurement’ and specifically
listed the relevant NAICS code.”
Id. at 244 n.4 (second al-
teration in original). And consequently, the trial court
found that “the inconsistency ‘could have been discovered
by reasonable and customary care,’ . . . by reading either
the pre-solicitation information or the provisions of the
FAR incorporated in the solicitation.” Id. at 244. The court
Case: 21-2325 Document: 33 Page: 6 Filed: 05/22/2023
6 M.R. PITTMAN GROUP, LLC v. US
thus held that M.R. Pittman waived its protest grounds un-
der the Blue & Gold waiver rule and that this waiver de-
prived the court of subject matter jurisdiction.
M.R. Pittman filed a motion for reconsideration, which
the trial court denied. M.R. Pittman appeals. We have ju-
risdiction under
28 U.S.C. § 1295(a)(3).
II
We review the Court of Federal Claims’ legal determi-
nations de novo and its factual findings for clear error. Pal-
ladian Partners, Inc. v. United States,
783 F.3d 1243, 1252
(Fed. Cir. 2015).
M.R. Pittman argues that the trial court erred in dis-
missing the complaint on jurisdictional grounds because
the Blue & Gold waiver rule does not implicate subject
matter jurisdiction. M.R. Pittman also argues that, regard-
less of whether the waiver rule is jurisdictional, the trial
court’s application of that rule was improper for both pro-
cedural and substantive reasons. We address jurisdiction
first.
A
M.R. Pittman argues that the trial court erred in dis-
missing the complaint on jurisdictional grounds because
the Blue & Gold waiver rule does not implicate subject
matter jurisdiction. M.R. Pittman argues that it is an “in-
terested party” “objecting to the government’s failure to
award it the contract associated with the Solicitation,” Ap-
pellant’s Br. 30, and that the Court of Federal Claims has
subject matter jurisdiction over M.R. Pittman’s claims pur-
suant to
28 U.S.C. § 1491(b)(1). In its response, the govern-
ment does not argue that Blue & Gold waiver is
jurisdictional. Instead, the government argues that even if
M.R. Pittman is correct about Blue & Gold waiver being
nonjurisdictional, the trial court’s error is harmless and
dismissal would still be proper under RCFC 12(b)(6) for
failure to state a claim.
Case: 21-2325 Document: 33 Page: 7 Filed: 05/22/2023
M.R. PITTMAN GROUP, LLC v. US 7
We agree that the waiver rule articulated in Blue &
Gold is nonjurisdictional. The Supreme Court has stressed
a distinction between “jurisdictional prescriptions” and
“nonjurisdictional claim-processing rules.” Fort Bend
Cnty., Texas v. Davis,
139 S. Ct. 1843, 1849 (2019). In Blue
& Gold, 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.
492 F.3d at 1313. We also explained that the rule reduces
the need for the “inefficient and costly” process of agency
rebidding “after offerors and the agency ha[ve] expended
considerable time and effort submitting or evaluating pro-
posals in response to a defective solicitation.”
Id. at 1314
(internal quotation marks and citation omitted).
We hold that the Blue & Gold waiver rule—which
seeks to reduce inefficiencies by requiring an objection to a
solicitation be made prior to the close of bidding—is more
akin to a nonjurisdictional claims-processing rule since it
“seeks to promote the orderly progress of litigation by re-
quiring that the parties take certain procedural steps at
certain specified times.” Henderson v. Shinseki,
562 U.S.
428, 435 (2011). For example, in E.P.A. v. EME Homer City
Generation, L.P., the Supreme Court found the Clean Air
Act’s requirement that, to maintain an objection in court
on certain issues, one must first raise the objection “with
reasonable specificity” during agency rulemaking to be
nonjurisdictional because that requirement “d[id] not
speak to a court’s authority, but only to a party’s procedural
obligations.”
572 U.S. 489, 511–12 (2014); see also Fort
Bend Cnty,
139 S. Ct. at 1850 (listing “several other time
prescriptions for procedural steps in judicial or agency fo-
rums” that the Supreme Court has categorized as
Case: 21-2325 Document: 33 Page: 8 Filed: 05/22/2023
8 M.R. PITTMAN GROUP, LLC v. US
nonjurisdictional). Similarly, the requirement that a party
object to a solicitation containing a patent error prior to the
close of bidding does not speak to the Court of Federal
Claim’s authority to hear a case, but only to that party’s
procedural obligations.
We thus conclude that the Court of Federal Claims
erred in holding that M.R. Pittman’s failure to object to the
solicitation before the close of bidding created a jurisdic-
tional defect. The Court of Federal Claims did have juris-
diction over M.R. Pittman’s claims under
28 U.S.C.
§ 1491(b)(1). The fact “[t]hat the Court of Federal Claims
based its dismissal on lack of subject matter jurisdiction,
however, is not fatal to the judgment of dismissal.” Adair
v. United States,
497 F.3d 1244, 1251 (Fed. Cir. 2007). We
therefore turn to the merits of the decision.
B
Beginning with M.R. Pittman’s procedural arguments:
M.R. Pittman first argues that the trial court erred in de-
ciding the motion to dismiss before M.R. Pittman filed a
formal response to the motion. M.R. Pittman explains that
the trial court only set deadlines for the motions for emer-
gency relief and that a schedule for M.R. Pittman to re-
spond to the motion to dismiss would be set at the hearing
on the motions for emergency relief. See Appellant’s Br. 16–
20. As a result, M.R. Pittman never filed a brief formally
responding to the motion to dismiss and urges us to reverse
the dismissal to provide it an “opportunity to respond to the
Motion to Dismiss.” Id. at 25.
The Supreme Court has stated that “a plaintiff with an
arguable claim is ordinarily accorded notice of a pending
motion to dismiss for failure to state a claim and an oppor-
tunity to amend the complaint before the motion is ruled
upon.” Neitzke v. Williams,
490 U.S. 319, 329 (1989). This
notice and opportunity to amend enables the plaintiff
“meaningfully to respond by opposing the motion to dismiss
on legal grounds or by clarifying his factual allegations so
Case: 21-2325 Document: 33 Page: 9 Filed: 05/22/2023
M.R. PITTMAN GROUP, LLC v. US 9
as to conform with the requirements of a valid legal cause
of action.”
Id. at 329–30. The opportunity to respond “crys-
tallizes the pertinent issues and facilitates appellate re-
view of a trial court dismissal by creating a more complete
record of the case.”
Id. at 330.
Even though M.R. Pittman never filed a formal brief
opposing the motion to dismiss, it had a more than suffi-
cient opportunity to respond to the government’s motion to
dismiss. As explained above, the government filed a com-
bined Motion to Dismiss and Opposition to Plaintiff’s Mo-
tion for Temporary Restraining Order and Preliminary
Injunction. That combined filing had a single section on ap-
plication of the Blue & Gold waiver rule. That section com-
prised both the entirety of the government’s motion to
dismiss and the entirety of the government’s arguments re-
garding the likelihood of success on the merits, which is a
mandatory element of emergency injunctive motions. See
Silfab Solar, Inc. v. United States,
892 F.3d 1340, 1345
(Fed. Cir. 2018). The applicability of Blue & Gold waiver
was discussed extensively at the hearing on the emergency
motions. And the government’s arguments regarding like-
lihood of success on the merits for the motions for emer-
gency relief and its arguments regarding the motion to
dismiss were one and the same. Thus, in responding to the
former, M.R. Pittman also responded to the latter.
In arguing that the court committed reversible error in
deciding the motion to dismiss before M.R. Pittman filed a
formal brief in opposition, M.R. Pittman relies heavily on
our decision in ArthroCare Corp. v. Smith & Nephew, Inc.,
406 F.3d 1365 (Fed. Cir. 2005). Appellant’s Br. 20–25. In
that case, we remanded for further briefing and reconsid-
eration of a dismissal under Rule 12(b)(6) where the oppos-
ing party had no opportunity to respond to the arguments
for dismissal because the case had been stayed.
Id. at 1369.
M.R. Pittman argues that this case is analogous to Arthro-
Care because the court explicitly stated that the hearing
and briefing would only pertain to the motions for
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10 M.R. PITTMAN GROUP, LLC v. US
emergency relief. M.R. Pittman’s reliance on ArthroCare is
misplaced for two reasons.
First, the law applicable in ArthroCare is not applica-
ble here. Our decision in ArthroCare applied the law of the
Third Circuit, which had adopted “a categorical rule” that
a Rule 12(b)(6) motion can be decided only after affording
the non-moving party an opportunity to respond.
Id. We,
on the other hand, have never held that a plaintiff is cate-
gorically entitled to an opportunity to oppose a Rule
12(b)(6) motion. To the contrary, we have held that the
Court of Federal Claims “may dismiss sua sponte under
Rule 12(b)(6), provided that the pleadings sufficiently evi-
dence a basis for that action.” Anaheim Gardens v. United
States,
444 F.3d 1309, 1315 (Fed. Cir. 2006). Second, the
facts in ArthroCare are quite different from the facts of this
case. As just explained, M.R. Pittman had substantively re-
sponded to the motion to dismiss both in its briefing on the
motion for preliminary injunction as well as at oral argu-
ment. That is a far cry from the facts in ArthroCare, where
the defendant did not have an opportunity to respond to
the plaintiff’s motion to dismiss an antitrust counterclaim
because the case had been stayed. ArthroCare,
406 F.3d at
1368.
To be sure, M.R. Pittman’s assumption that it would
have the opportunity to file another brief before the motion
to dismiss was decided was a reasonable one given the trial
court’s statements to that effect. That fact, however, does
not mean that the loss of that opportunity amounts to
harmful procedural error. See
28 U.S.C. § 2111 (“On the
hearing of any appeal . . . , the court shall give judgment
after an examination of the record without regard to errors
or defects which do not affect the substantial rights of the
parties.”). For the reasons set forth above, M.R. Pittman
was not harmed by its inability to submit a formal brief
opposing the motion to dismiss.
Case: 21-2325 Document: 33 Page: 11 Filed: 05/22/2023
M.R. PITTMAN GROUP, LLC v. US 11
M.R. Pittman also argues that the trial court erred in
dismissing the case before the production of the adminis-
trative record. See Appellant’s Br. 25–27. According to M.R.
Pittman, the government violated RCFC, Appendix C, Sec-
tion VII when the government failed to produce the admin-
istrative record after M.R. Pittman requested it. But
Section VII only requires production of the administrative
record “by the date(s) established at the initial status con-
ference.” RCFC, App. C, Sec. VII. In this case, the trial
court did not set a date to produce the administrative rec-
ord during the status conference, so the government could
not have violated Section VII.
Moreover, the portions of the administrative record
that M.R. Pittman seeks are not relevant to the patent am-
biguity analysis. M.R. Pittman seeks, inter alia, documents
related to another bidder that was not awarded the con-
tract despite the fact that this contractor’s bid was lower
than the awardee’s bid. M.R. Pittman appears to argue
that the reason that this second contractor was not
awarded the contract is because, like M.R. Pittman, it was
not a small business under the relevant NAICS code. See
Appellant’s Br. 26 (quoting J.A. 213). But as explained be-
low, whether a contract contains a patent or latent ambi-
guity is a question of law, not fact. Therefore, whether this
other bidder was also not a small business under the proper
NAICS code is irrelevant to the analysis.
In sum, we hold that the trial court did not commit re-
versible procedural error when it ruled on the govern-
ment’s motion to dismiss before M.R. Pittman filed a
formal response to the motion. Nor was M.R. Pittman prej-
udiced by the fact that the administrative record had not
been produced before the action was dismissed. Having re-
jected M.R. Pittman’s procedural arguments, we turn to its
substantive arguments as to why Blue & Gold waiver is
inapplicable in this case.
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12 M.R. PITTMAN GROUP, LLC v. US
C
As explained above, Blue & Gold requires that a party
with the opportunity to object to the terms of a government
solicitation containing a patent error must do so prior to
the close of the bidding process or else it waives its ability
to raise that objection in the Court of Federal Claims.
492
F.3d at 1313. That M.R. Pittman had the opportunity to,
but did not, inquire about the missing NAICS code is un-
disputed. The dispute here lies in whether the missing NA-
ICS code—when considered with the solicitation’s webpage
or the FAR provision incorporated in the solicitation—con-
stituted a patent omission from the solicitation. If the omis-
sion is patent, then M.R. Pittman waived its protest ground
by failing to object before the close of bidding. If the omis-
sion is latent, then M.R. Pittman can proceed with its bid
protest. We conclude that the omission was patent.
“Whether an ambiguity or defect is patent is an issue
of law reviewed de novo.” Per Aarsleff A/S v. United States,
829 F.3d 1303, 1312 (Fed. Cir. 2016). A defect in the solici-
tation is “patent” “if it is an obvious omission, incon-
sistency, or discrepancy of significance” or “if it could have
been discovered by reasonable and customary care.” In-
serso Corp. v. United States,
961 F.3d 1343, 1349 (Fed. Cir.
2020). Furthermore, when interpreting a contract, the par-
ties are charged with knowledge of law and fact appropri-
ate to the subject matter. Turner Const. Co. v. United
States,
367 F.3d 1319, 1321 (Fed. Cir. 2004).
Here, we agree with the trial court that the solicita-
tion’s incorporation of FAR 52.219-6—titled “Notice of To-
tal Small Business Set-Aside”—and the statement of the
solicitation’s webpage that “[t]his is a 100% Small Business
Set Aside procurement” with the relevant NAICS code ren-
ders the omission patent as a matter of law. J.A. 4–5; J.A.
61, 256.
M.R. Pittman’s arguments to the contrary are uncon-
vincing. M.R. Pittman argues that, because FAR 52.219-6
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M.R. PITTMAN GROUP, LLC v. US 13
only applies to solicitations that have been totally set-aside
for small businesses, “there is no incorporation in the So-
licitation itself to say that this Solicitation was totally set
aside for small business concerns, this Solicitation, as a
matter of law, has not been set aside for any such purpose.”
Appellant’s Br. 29. In other words, M.R. Pittman argues
that, because FAR 52.219-6 is conditional and the omission
of the proper NAICS code means the condition was never
triggered, “FAR 52.219-6 is not applicable to the Solicita-
tion” and therefore cannot create a patent ambiguity. Id.;
see also
id. at 27–29; FAR 52.219-6(b)(1) (“This clause ap-
plies only to . . . [c]ontracts that have been totally set aside
for small business concerns[.]”).
But as the trial court correctly determined, to accept
this argument “is to ignore the incorporated FAR regula-
tion.” M.R. Pittman Grp., 154 Fed. Cl. at 244. What M.R.
Pittman’s argument fails to account for is the fact that the
incorporation of FAR 52.219-6 evidences an inconsistency
in the solicitation given the omission of the code. The incor-
poration of the FAR provision suggests an error—either the
FAR clause was incorporated when it was not applicable or
an NAICS code was omitted when it was required.
Such an ambiguity is especially glaring given the fact
that the webpage with the link to the solicitation noted,
“This is a 100% Small Business Set Aside procure-
ment.” M.R. Pittman argues that the webpage is irrelevant
to whether there was a patent ambiguity because the
webpage was not incorporated into the solicitation and “[a]
patent ambiguity cannot be created where the ‘solicitation
itself is facially unambiguous and the only conflict that al-
legedly exists is between the solicitation and some ancil-
lary source of information.’” Appellant’s Reply Br. 18–19
(quoting Lab’y Corp. of America v. United States,
108 Fed.
Cl. 549, 566 (Fed. Cl. 2012)).
But the incorporation of a FAR clause created an am-
biguity that a reasonably diligent contractor would seek to
Case: 21-2325 Document: 33 Page: 14 Filed: 05/22/2023
14 M.R. PITTMAN GROUP, LLC v. US
clarify. Therefore, the solicitation cannot be said to be “fa-
cially unambiguous.” Moreover, M.R. Pittman’s suggestion
that extrinsic evidence can never be used to determine
whether an ambiguity was patent to one of the contracting
parties is wrong as a matter of law.
Where an ambiguity is not so glaring as to rise to
the level of patency, yet the contractor knows or
has reason to know that the drafting party, una-
ware of the contractor’s interpretation, holds an in-
terpretation different than its own, the result when
that contractor seeks to bridge the crevasse in his
own favor should be no different than if the ambi-
guity were patent.
HPI/GSA 3C, LLC v. Perry,
364 F.3d 1327, 1336–37 (Fed.
Cir. 2004) (citation and quotation marks omitted). Indeed,
in Per Aarsleff A/S v. United States, we held patent a de-
fect that was reasonably discoverable by examining the
Danish central business register where companies were re-
quired to register.
829 F.3d at 1313.
Finally, M.R. Pittman makes two arguments for the
first time in its reply brief that we also find unpersuasive. 2
First, M.R. Pittman argues that, since it “gain[ed] no ad-
vantage by waiting to object,” the purpose of the Blue &
Gold waiver rule was not met and the rule should not ap-
ply. Appellant’s Reply Br. 15. But the assertion that M.R.
Pittman did not benefit from waiting to object is simply not
true. Had M.R. Pittman inquired into the set-aside status,
it risked the USACE amending the solicitation to add the
missing code, in which case it would be clear that M.R.
2 Regardless of their persuasiveness, these argu-
ments are also forfeited. See SmithKline Beecham Corp. v.
Apotex Corp.,
439 F.3d 1312, 1319 (Fed. Cir. 2006) (“Our
law is well established that arguments not raised in the
opening brief are waived.”).
Case: 21-2325 Document: 33 Page: 15 Filed: 05/22/2023
M.R. PITTMAN GROUP, LLC v. US 15
Pittman was ineligible for the contract. By not seeking clar-
ification on the set-aside status of the solicitation, M.R.
Pittman left itself the ability to argue that the solicitation
was not a small-business set-aside for lacking the required
NAICS code. Second, M.R. Pittman argues that the solici-
tation also incorporates other FARs that M.R. Pittman con-
tends are inapplicable. See Appellant’s Reply Br. 20–22
(identifying FAR 52.219-7, 27, 29, and 30 as being incorpo-
rated at J.A. 69–70). But the provisions M.R. Pittman
points to are only incorporated if “the Contracting Officer
has indicated [them] as being incorporated in th[e] contract
by reference.” J.A. 68. There is no indication that the con-
tracting officer marked FAR 52.219-7, 27, 29, or 30 as being
incorporated. FAR 52.219-6, on the other hand, is explicitly
incorporated by reference. J.A. 61.
In sum, we agree with the trial court that M.R. Pittman
waived its protest grounds under the Blue & Gold waiver
rule.
III
We have considered M.R. Pittman’s remaining argu-
ments, but we find them unpersuasive. Accordingly, the
judgment of the Court of Federal Claims is affirmed, albeit
for failure to state a claim rather than for a lack of subject
matter jurisdiction.
AFFIRMED
