In the seminal decision Blue & Gold Fleet, L.P. v. United States, the U.S. Court of Appeals for the Federal Circuit held 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 in the Court of Federal Claims.” 492 F.3d 1308, 1313 (Fed. Cir. 2007). The Blue & Gold waiver doctrine prevents an offeror from submitting a proposal against a plainly defective solicitation, waiting quietly while the government and other offerors rely upon the defective language to their detriment, and subsequently filing a protest of that defect—generally after the government awards the contract to a different offeror. Under Blue & Gold, if a party disagrees with the terms of a solicitation, it ordinarily must protest those terms before the date set for receipt of proposals or forever hold its peace.
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