REDACTED OPINION 

In the United States Court of Federal Claims

No. 15-158C

Filed: April 2, 2015

Redacted Version Issued for Publication: May 7, 20151

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Post-Award Bid Protest; 

Jurisdiction; Failure to State a Claim;

Waiver; Ambiguity.

VISUAL CONNECTIONS, LLC,

 Protestor,

v.

UNITED STATES,

 Defendant,

v.

KNIGHT POINT SYSTEMS, LLC,

 Defendant-Intervenor.

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Cyrus E. Phillips, IV, Albo & Oblon, L.L.P., Arlington, Virginia, for protestor.

Shari A. Rose, Trial Attorney, Commercial Litigation Branch, Civil Division, United 

States Department of Justice, Washington, D.C., for defendant. With her were Benjamin 

C. Mizer, Acting Assistant Attorney General, Civil Division, and Robert E. Kirschman, 

Jr., Director, Commercial Litigation Branch.

Thomas O. Mason, Cooley, LLP, Washington, D.C., for intervenor. 

 

1 This opinion was issued under seal on April 2, 2014. The parties were asked to propose 

redactions prior to public release of the opinion. This opinion is issued with some of the 

redactions that the parties proposed in response to the court’s request. Words which are 

redacted are reflected with the following notation: “[redacted].”
2

O P I N I O N

HORN, J.

FINDINGS OF FACT

Protestor, Visual Connections, LLC (Visual Connections), filed a post-award bid 

protest in the above captioned case on February 19, 2015, protesting the United States 

Department of Health and Human Services (HHS), Agency for Healthcare Research and 

Quality’s (AHRQ) award of a task order to Knight Point Systems LLC (Knight Point).2

On June 26, 2014, AHRQ issued Request for Quote No. AHRQ-15-10003 (RFQ).

The RFQ sought quotations from “service-disabled veteran-owned small businesses 

holding Federal Supply Schedule (FSS) 70 contracts with the General Services 

Administration (GSA).” The RFQ indicated that, “[t]he purpose of this task order is to 

maintain agency production systems as well as the architectural, engineering, 

configuration management, and hosting services needed to support those systems. The 

contractor shall provide support for application operations and maintenance, and testing 

and deployment of complex technologies into the existing IT environment.” The period of 

performance was for a “Base Period of 12 months with four, 12 month option periods.” 

The “Quote Review Criteria and Evaluation” indicated that 

[e]valuation of responses to the RFQ will consider both technical and cost 

factors. Both the technical response and business response will be 

evaluated based on the extent to which they follow the technical and 

business response instructions in section 7 [Quote Requirements] of this 

RFQ. The quote(s) representing the best value will be selected.

Regarding the technical response, the RFQ indicated that “[o]fferors will be 

evaluated on how well they address vendor capacity, expertise, and understanding of 

conformance issues with the stated accessibility requirements.” For the evaluation of the 

technical response, the RFQ identified 100 points, with 40 points for “UNDERSTANDING 

THE PROJECT AND TECHNICAL APPROACH,” 20 points for “CORPORATE AND 

PERSONNEL QUALIFICATIONS AND EXPERIENCE,” and 40 points for 

“MANAGEMENT AND STAFFING PLAN.” (all capitalization in original). Regarding price, 

the RFQ indicated that “[b]usiness responses will be evaluated for price reasonableness. 

An analysis will be conducted to determine whether the proposed effort is realistic for the 

 

2 On February 23, 2015, the court granted Knight Point’s motion to intervene. Despite 

moving to intervene, Knight Point filed two notices with the court, first indicating that it did 

“not intend to file its own motion to dismiss,” and in the second notice indicating that it did 

“not intend to file its own submission regarding the decision issued by United States Court 

of Appeals for the Federal Circuit in Bannum v. United States, No. 2014-5085 (March 12, 

2015).” In the second notice, Knight Point indicated that “Knight Point did not file a motion 

to dismiss separate from the Defendant's motion, and accordingly will defer to the 

Government to address the impact of the Bannum decision on its waiver arguments.” 
3

work to be performed; reflect a clear understanding of the requirements; and consistent 

with the unique methods of performance described in the offeror's technical response. 

This analysis is intended to determine the degree to which the quote is fair and 

reasonable.” The parties agree that the RFQ did not address the relative importance of 

the price and non-price factors.

In its complaint, Visual Connections indicates that the “Request for Quotations 

Number AHRQ-15-10003 was issued on June 26th, 2014, and Quotations were received 

on July 28th, 2014. The announced Evaluation Factors were not challenged before the 

date and time set for receipt of Quotations.” Five offerors, including protestor and 

intervenor, submitted proposals. The Source Selection Determination indicated that “[t]he 

technical evaluation was conducted on August 5, 2014 by an internal review panel 

consisting of persons with background and experience in the field covered by this 

procurement. The quotes were reviewed and scored based upon the criteria listed in the 

RFQ.” Protestor received an evaluated score of 81.25, and an evaluated price of 

$13,947,748.00 for the base year and the four option years. Intervenor received the 

highest evaluated score, 90.25, and had an evaluated price of $19,958,456.00 for the 

base year and the four option years.

3

The Source Selection Determination also indicated that:

The solicitation stated that the award would be made to the offeror that 

presents the best value to the Government based on two factors: 1) 

Technical and 2) Price. Although the price quoted by Knight Point Systems 

is higher than all other offerors, except [redacted], their technical response 

was significantly superior to all other offerors. KPS' [Knight Point Systems]

proposed cost outlined in their business response was reasonably under 

AHRQ's independent government cost estimate, which the government 

deemed fair and reasonable based off of current and historical data. 

Furthermore, their proposed labor mix and commitment to retain senior staff 

demonstrated their complete understanding of the project and the skill sets 

required to ensure IT service delivery for the four defined task areas. 

Personnel were the largest evaluation factor and KPS presented by far the 

highest caliber of personnel with all required skill sets and certifications. 

Additionally, the hours proposed and cost were in direct line with the 

government's estimate for the scope of work. Conversely, the four other 

Offeror's cost and technical responses demonstrated they did not possess 

an accurate or complete understanding of the project. In some instances 

either the cost or overall hours bid were not consistent or in line with 

government estimates, which were determined using significant historical 

data from previous contracts, for the scope of work defined in the SOW

[Statement of Work]. The Knight Point Systems response is technically 

superior to all other offerors. Although their quote was offered at a higher 

total estimated price, the technical benefits of their response outweigh the 

 

3 The Independent Government Cost Estimate for the base year and the four option years 

was $[redacted].
4

technical deficiencies and risks presented by the other offerors despite their 

lower costs. It is determined that the response submitted by Knight Point 

Systems represents the best value to the Government. Based on the above, 

the Contracting Officer selects Knight Point Systems for award of this task 

order in the total amount of $27,458,456. The base period amount funded 

at time of award is $3,991,691.20.

The Task Order Officer’s Award Recommendation Memo, included as an attachment to 

the Source Selection Determination, indicated that, regarding Visual Connections:

The Visual Connections (VC) Team proposed a team of incumbent 

contractors and staff that have knowledge of the applications, policies, 

procedures (SDLC, Rational, etc.) and toolset used to support the O&M 

requirements and activities. However, the VC Team failed to demonstrate a 

clear understanding of the strategic direction of AHRQ and needs for 

addressing current challenges faced in the current and future operational 

environment as related to Shared Services transition, Virtual Infrastructure 

and electronic processing. The VC Team's response to specific tasks were 

stated in terms of prior support accomplishments rather than providing an 

approach to performing or improving task performance as requested in the 

SOW. In terms of Application Development they discussed an approach to 

independently foster application development which is not the intention of 

this task. It is not a requirement to have the contractor seek application 

development opportunities. In terms of key personnel, VC exposes AHRQ 

to significant continuity risk by proposing a Lead Architect that is a Database 

Analyst without the appropriate level of experience or management ability 

to fulfill this role. They also failed to provide the skills mix required to support 

effective performance of the SOW Tasks. 

Regarding Visual Connections, in its trade off analysis, the agency indicated:

After careful review, VC Team's cost proposal highlighted some challenges 

that would affect their ability to successfully perform the tasks outlined in 

the SOW. For instance, the Visual Connections Team proposed a staffing 

level of [redacted] FTE's [Full Time Equivalent] ([redacted] hrs.) at a cost of 

$[redacted] which is well below the [redacted] FTE's ([redacted] hrs.) 

historical billings and the government cost estimate of $[redacted]. The low 

staffing levels proposed by the VC Team present significant risk to AHRQ 

and directly affect the VC Team's ability to adequately perform the work 

outlined in the SOW and are considered unrealistic to support existing 

AHRQ applications. Additionally, the VC Team did not sufficiently address 

critical requirements outlined in the SOW related to managing and 

maintaining a storefront capability for Agency publications, administering 

AHRQ's SharePoint Server environment, and enhancing mobile 

applications. This is in stark contrast to how KPS accurately provided staff 
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and a labor mix required to sustain O&M operations on a consistent and 

uninterrupted basis.

AHRQ awarded Task Order No. HHSA290201500001G to Knight Point on 

November 5, 2014. Subsequently, Visual Connections filed a protest with the United 

States Government Accountability Office (GAO). On February 13, 2015, the GAO denied 

the protest.4 Thereafter, on February 19, 2015, Visual Connections filed its protest in the 

United States Court of Federal Claims. Before this court, protestor claims:

This Civil Action is brought to obtain a Declaration that the United States 

Department of Health & Human Services, Agency for Healthcare Research 

and Quality's (AHRQ's) decision to award to Knight Point the labor-hour 

GSA Task Order Contract proposed by Request for Quotations Number 

AHRQ-15-10003 lacks a rational basis and is neither reasonable nor lawful 

because Request for Quotations Number AHRQ-15-10003 does not 

disclose, as required by 41 U.S.C. § 3306(c)(1)(C), the relative importance 

of the announced Price and non-Price evaluation factors.

Protestor claims that “AHRQ's noncompliance with the Statutory mandate of 41 U.S.C. 

§ 3306(c)(1)(C) left these Offerors guessing about the weighting of all of the announced 

Evaluation Factors relative to evaluated total Prices.”

On February 27, 2015, defendant filed a motion to dismiss5 protestor’s complaint 

pursuant to Rule 12(b)(6) (2014) of the Rules of the United States Court of Federal Claims 

(RCFC). Defendant claims that “Visual Connections acknowledges that it did not raise its 

 

4 The GAO decision denied the protest on the merits. In a footnote, the GAO indicated, 

“Visual also complains that the RFQ did not indicate the relative importance of the price 

and non-price evaluation factors. This complaint, submitted after quotations were 

submitted, is not timely filed and will not be considered.” (citing 4 C.F.R. § 21.2(a)(1) 

(2014)).

5 Although defendant filed a motion to dismiss, it did not seek dismissal on the ground 

that protestor was challenging the award of a task order. As defendant indicated in a 

notice to the court, “GSA FSS task order purchases, such as the RFQ here, are distinct 

from contracts entered into by executive agencies under FASA [Federal Acquisition 

Streamlining Act]. FASA provisions do not affect or apply to acquisitions conducted under 

the GSA FSS, FAR Part 8.4.” As indicated in Innovative Management Concepts, Inc. v. 

United States, 119 Fed. Cl. 240 (2014), “FASA confines the court's jurisdiction to 

adjudicate claims that challenge the underlying procurement vehicle, not any subsequent 

specific task order or award.” Id. at 245 (citing SRA Int'l, Inc. v. United States, 766 F.3d 

1409, 1413 (Fed. Cir. 2014)). Visual Connections agrees with defendant, indicating that 

“[t]his Court's jurisdiction to hear and consider this Post-Award Procurement Protest is 

not precluded by 41 U.S.C. § 4106(f) which vests with the United States Government 

Accountability Office (GAO) exclusive jurisdiction to hear and consider Procurement 

Protests concerning Competitions for individual Task Orders conducted under Task Order 

Contracts.”
6

challenge to the terms of the RFQ prior to the deadline for the submission of quotes.” 

Therefore, defendant argues, “[b]y failing to file its protest prior to AHRQ’s receipt of

quotes, Visual Connections waived its right to challenge the terms of the RFQ.” In 

response, protestor argues that the “Acquisition was unlawful,” and, therefore, waiver 

does not apply. Alternatively, protestor argues that the RFQ was facially ambiguous and 

did not trigger a duty to inquire before submission of proposals. 

DISCUSSION 

Defendant’s motion to dismiss for failure to state a claim alleges that “Visual 

Connections failed to make a timely objection to the terms of the RFQ, and, consequently, 

waived its challenge.” (footnote omitted). It is well established that “‘subject-matter 

jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or 

waived.’” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (quoting United States v. 

Cotton, 535 U.S. 625, 630 (2002)). “[F]ederal courts have an independent obligation to 

ensure that they do not exceed the scope of their jurisdiction, and therefore they must 

raise and decide jurisdictional questions that the parties either overlook or elect not to 

press.” Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011); see also

Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) (“When a requirement goes to subjectmatter jurisdiction, courts are obligated to consider sua sponte issues that the parties 

have disclaimed or have not presented.”); Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010) 

(“Courts have an independent obligation to determine whether subject-matter jurisdiction 

exists, even when no party challenges it.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 

514)); Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed. Cir. 2001) (“[A] court 

has a duty to inquire into its jurisdiction to hear and decide a case.” (citing Johannsen v. 

Pay Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed. Cir. 1990))); View Eng’g, Inc. 

v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed. Cir. 1997) (“[C]ourts must always 

look to their jurisdiction, whether the parties raise the issue or not.”). “Objections to a 

tribunal’s jurisdiction can be raised at any time, even by a party that once conceded the 

tribunal’s subject-matter jurisdiction over the controversy.” Sebelius v. Auburn Reg’l Med. 

Ctr., 133 S. Ct. 817, 824 (2013); see also Arbaugh v. Y & H Corp., 546 U.S. at 506 (“The 

objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a party, 

or by a court on its own initiative, at any stage in the litigation, even after trial and the 

entry of judgment.”); Cent. Pines Land Co., L.L.C. v. United States, 697 F.3d 1360, 1364 

n.1 (Fed. Cir. 2012) (“An objection to a court’s subject matter jurisdiction can be raised by 

any party or the court at any stage of litigation, including after trial and the entry of 

judgment.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506–07)); Rick’s Mushroom Serv., 

Inc. v. United States, 521 F.3d 1338, 1346 (Fed. Cir. 2008) (“[A]ny party may challenge, 

or the court may raise sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh 

v. Y & H Corp., 546 U.S. at 506; Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), 

reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); and 

Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998))); Pikulin v. United 

States, 97 Fed. Cl. 71, 76, appeal dismissed, 425 F. App’x 902 (Fed. Cir. 2011). In fact, 

“[s]ubject matter jurisdiction is an inquiry that this court must raise sua sponte, even 

where . . . neither party has raised this issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am. 

Holdings, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods., Inc. v. Mead Corp., 134 

F.3d 1481, 1485 (Fed. Cir.), reh’g denied and en banc suggestion declined (Fed. Cir.), 
7

cert. denied, 525 U.S. 826 (1998)), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert.

granted in part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 546 U.S. 

975 (2005), cert. dismissed as improvidently granted, 548 U.S. 124 (2006); see also Avid 

Identification Sys., Inc. v. Crystal Import Corp., 603 F.3d 967, 971 (Fed. Cir.) (“This court 

must always determine for itself whether it has jurisdiction to hear the case before it, even 

when the parties do not raise or contest the issue.”), reh’g and reh’g en banc denied, 614 

F.3d 1330 (Fed. Cir. 2010), cert. denied, 131 S. Ct. 909 (2011).

In examining what must be pled in order to state a claim, a plaintiff need only state 

in the complaint “a short and plain statement of the claim showing that the pleader is 

entitled to relief.” RCFC 8(a)(2) (2014); Fed. R. Civ. P. 8(a)(2) (2015); see also Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 555 (2007). The United States Supreme Court stated:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not 

need detailed factual allegations, [Conley v. Gibson, 355 U.S. 41, 47 

(1957)]; Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 

247, 251 (7th Cir. 1994), a plaintiff’s obligation to provide the “grounds” of 

his “entitle[ment] to relief” requires more than labels and conclusions, and a 

formulaic recitation of the elements of a cause of action will not do, see

Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss, courts 

“are not bound to accept as true a legal conclusion couched as a factual 

allegation”). Factual allegations must be enough to raise a right to relief 

above the speculative level, see 5 C. Wright & A. Miller, Federal Practice 

and Procedure § 1216, pp. 235-36 (3d ed. 2004) (hereinafter Wright & 

Miller) (“[T]he pleading must contain something more . . . than . . . a 

statement of facts that merely creates a suspicion [of] a legally cognizable 

right of action”), on the assumption that all the allegations in the complaint 

are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N.A., 

534 U.S. 506, 508, n.1 (2002); Neitzke v. Williams, 490 U.S. 319, 327 

(1989) (“Rule 12(b)(6) does not countenance . . . dismissals based on a 

judge’s disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes, 

416 U.S. 232, 236 (1974) (a well-pleaded complaint may proceed even if it 

appears “that a recovery is very remote and unlikely”) . . . . [W]e do not 

require heightened fact pleading of specifics, but only enough facts to state 

a claim to relief that is plausible on its face.

Bell Atl. Corp. v. Twombly, 550 U.S. at 555–56, 570 (footnote and other citations omitted; 

omissions in original); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. 

Corp. v. Twombly, 550 U.S. at 555–57, 570); A&D Auto Sales, Inc. v. United States, 748 

F.3d 1142, 1157 (Fed. Cir. 2014); Bell/Heery v. United States, 739 F.3d 1324, 1330 (Fed. 

Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2014); Kam-Almaz v. United States, 682 

F.3d 1364, 1367 (Fed. Cir. 2012) (“The facts as alleged ‘must be enough to raise a right 

to relief above the speculative level, on the assumption that all the allegations in the 

complaint are true (even if doubtful in fact).’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 

at 557)); Totes-Isotoner Corp. v. United States, 594 F.3d 1346, 1354–55 (Fed. Cir.), cert.

denied, 131 S. Ct. 92 (2010); Bank of Guam v. United States, 578 F.3d 1318, 1326 (Fed. 

Cir.) (“In order to avoid dismissal for failure to state a claim, the complaint must allege 
8

facts ‘plausibly suggesting (not merely consistent with)’ a showing of entitlement to relief.” 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 557)), reh’g and reh’g en banc denied

(Fed. Cir. 2009), cert. denied, 561 U.S. 1006 (2010); Cambridge v. United States, 558 

F.3d 1331, 1335 (Fed. Cir. 2009) (“[A] plaintiff must plead factual allegations that support 

a facially ‘plausible’ claim to relief in order to avoid dismissal for failure to state a claim.” 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570)); Cary v. United States, 552 F.3d 

1373, 1376 (Fed. Cir.) (“The factual allegations must be enough to raise a right to relief 

above the speculative level. This does not require the plaintiff to set out in detail the facts 

upon which the claim is based, but enough facts to state a claim to relief that is plausible 

on its face.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 570)), reh’g denied (Fed. 

Cir.), cert. denied, 557 U.S. 937 (2009); Vargas v. United States, 114 Fed. Cl. 226, 232 

(2014); Fredericksburg Non-Profit Housing Corp. v. United States, 113 Fed. Cl. 244, 253 

(2013), aff’d, F. App’x 1004 (Fed. Cir. 2014); Peninsula Grp. Capital Corp. v. United 

States, 93 Fed. Cl. 720, 726–27 (2010), appeal dismissed, 454 F. App’x 900 (Fed. Cir. 

2011); Legal Aid Soc’y of New York v. United States, 92 Fed. Cl. 285, 292, 298, 298 n.14 

(2010). 

When deciding a case based on a lack of subject matter jurisdiction or for failure 

to state a claim, this court must assume that all undisputed facts alleged in the complaint 

are true and must draw all reasonable inferences in the non-movant’s favor. See Erickson 

v. Pardus, 551 U.S. 89, 94 (2007) (“In addition, when ruling on a defendant’s motion to 

dismiss, a judge must accept as true all of the factual allegations contained in the 

complaint.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555–56 (citing Swierkiewicz v. 

Sorema N. A., 534 U.S. 506, 508 n.1 (2002)))); Scheuer v. Rhodes, 416 U.S. 232, 236 

(1974) (“Moreover, it is well established that, in passing on a motion to dismiss, whether 

on the ground of lack of jurisdiction over the subject matter or for failure to state a cause 

of action, the allegations of the complaint should be construed favorably to the pleader.”), 

abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982), recognized by

Davis v. Scherer, 468 U.S. 183, 190 (1984); United Pac. Ins. Co. v. United States, 464 

F.3d 1325, 1327–28 (Fed. Cir. 2006); Samish Indian Nation v. United States, 419 F.3d 

1355, 1364 (Fed. Cir. 2005); Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 

(Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2002), cert. denied, 538 U.S. 906 

(2003). 

Defendant indicates that protestor’s “sole challenge” is that the RFQ did not 

disclose the “‘relative importance of the announced Price and non-Price factors.’” 

Defendant alleges that “[b]y failing to file its protest prior to AHRQ’s receipt of quotes, 

Visual Connection waived its right to challenge the terms of the RFQ,” because, citing to 

Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007), “[a]n 

offeror must challenge the terms of the RFQ prior to the due date for quote submission 

or else the plaintiff waives such an argument.”

In Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, the United States Court 

of Appeals for the Federal Circuit addressed if an offeror had the opportunity to object to 

a patent error in the terms of a solicitation, but failed to do so, did the offeror waive the 

right to challenge that same error in a subsequent bid protest. See id. at 1313. The 

Federal Circuit noted that decisions of the Court of Federal Claims had concluded “that 
9

where there is a ‘deficiency or problem in a solicitation . . . the proper procedure for the 

offeror to follow is not to wait to see if it is the successful offeror before deciding whether 

to challenge the procurement, but rather to raise the objection in a timely fashion.’” Blue 

& Gold Fleet, L.P. v. United States, 492 F.3d at 1314 (quoting N.C. Div. of Servs. for the 

Blind v. United States, 53 Fed. Cl. 147, 165 (2002), aff’d, 60 F. App’x 826 (Fed. Cir. 2003)) 

(omission in original); see also Draken Int’l, Inc. v. United States, No. 14-1005C, 2015 

WL 644055, at *7 (Fed. Cl. Feb. 13, 2015). In Blue & Gold, the Federal Circuit held: 

[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. 

Blue & Gold Fleet, L.P. v. United States, 492 F.3d at 1313; see also Universal Marine 

Co., K.S.C. v. United States, No. 14–1115C, 2015 WL 545861, at *8 (Fed. Cl. Feb. 10, 

2015); Northeast Constr., Inc. v. United States, 119 Fed. Cl. 596, 609 (2015); Innovative 

Mgmt. Concepts, Inc. v. United States, 119 Fed. Cl. 240, 245 (2014); CliniComp Int’l, Inc. 

v. United States, 117 Fed. Cl. 722, 737-38 (2014) (“The rule in Blue and Gold Fleet thus 

bars a protester from raising objections to patent errors or ambiguities in the terms of a 

solicitation after the closing of bidding if such errors or ambiguities were apparent on the 

face of the solicitation,” and “[w]hen a solicitation contains a patent ambiguity, the offeror 

has ‘“a duty to seek clarification from the government, and its failure to do so precludes 

acceptance of its interpretation”’ in a subsequent court action.” (quoting Blue & Gold Fleet 

L.P. v. United States, 492 F.3d at 1313 (quoting Stratos Mobile Networks USA, LLC v. 

United States, 213 F.3d 1375, 1381 (Fed. Cir. 2000)))). The Federal Circuit in Blue & Gold

reasoned that such a waiver rule, “requir[ing] that a party object to solicitation terms during 

the bidding process,” furthered the mandate in 28 U.S.C. § 1491(b) that, “‘the courts shall 

give due regard to the interests of national defense and national security and the need 

for expeditious resolution of the action.’” Blue & Gold Fleet, L.P. v. United States, 492 

F.3d at 1313 (quoting 28 U.S.C. § 1491(b)(3)) (emphasis in original). 

The Federal Circuit also explained:

“It would be inefficient and costly to authorize this remedy after offerors and 

the agency had expended considerable time and effort submitting or 

evaluating proposals in response to a defective solicitation. Vendors cannot 

sit on their rights to challenge what they believe is an unfair solicitation, roll 

the dice and see if they receive award [sic] and then, if unsuccessful, claim 

the solicitation was infirm.”

Id. at 1314 (alteration in original) (quoting Argencord Mach. & Equip., Inc. v. United States, 

68 Fed. Cl. 167, 175 n.14 (2005)); see also Bannum, Inc. v. United States, 115 Fed. Cl. 

257, 274 (2014).

The Federal Circuit in COMINT Systems Corp. v. United States, 700 F.3d 1377 

(Fed. Cir. 2012), extended the logic of Blue & Gold to all pre-award situations, as follows:
10

In Blue & Gold Fleet, L.P. v. United States, this court 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 afterwards in a 

§ 1491(b) action in the Court of Federal Claims.” [Blue & Gold Fleet, L.P. v. 

United States,] 492 F.3d 1308, 1315 (Fed. Cir. 2007). Comint points out that 

Blue & Gold's holding does not explicitly apply to this case since Comint 

had no opportunity to challenge the solicitation before “the close of the 

bidding process,” Amendment 5 having been adopted after the bidding 

process closed. Amendment 5 was, however, adopted before the award, 

and we think the reasoning of Blue & Gold applies to all situations in which 

the protesting party had the opportunity to challenge a solicitation before 

the award and failed to do so.

There is no question that Comint could have challenged the solicitation 

before the award. The Federal Acquisition Regulations require that agency 

contracting officers “consider all protests . . . whether protests are submitted 

before or after award.” 48 C.F.R. § 33.102(a) (emphasis added). If efforts 

to obtain relief from the contracting officer fail, the Tucker Act specifically 

authorizes pre-award challenges. The statute gives the Claims Court 

“jurisdiction to render judgment on an action by an interested party objecting 

to a solicitation by a Federal agency,” and further provides that the Claims 

Court has jurisdiction “without regard to whether suit is instituted before or 

after the contract is awarded.” 28 U.S.C. § 1491(b)(1).

The same policy underlying Blue & Gold supports its extension to all preaward situations. In Blue & Gold, we explained:

In the absence of a waiver rule, a contractor with knowledge 

of a solicitation defect could choose to stay silent.... If its [ ] 

proposal loses to another bidder, the contractor could then 

come forward with the defect to restart the bidding process, 

perhaps with increased knowledge of its competitors. A 

waiver rule thus prevents contractors from taking advantage 

of the government and other bidders, and avoids costly afterthe-fact litigation.

[Blue & Gold Fleet, L.P. v. United States,] 492 F.3d at 1314.

To be sure, where bringing the challenge prior to the award is not 

practicable, it may be brought thereafter. But, assuming that there is 

adequate time in which to do so, a disappointed bidder must bring a 

challenge to a solicitation containing a patent error or ambiguity prior to the 

award of the contract.
11

COMINT Sys. Corp. v. United States, 700 F.3d at 1382 (footnote omitted; first alteration 

in original); see also Comm’n Constr. Servs., Inc. v. United States, 116 Fed. Cl. 233, 261-

62 (2014) (“[P]arties who have the opportunity to object to the terms of a solicitation 

containing patent errors or ambiguities and fail to do in a timely fashion waive their ability 

to subsequently raise the same objections. . . . The Blue & Gold waiver rule as extended 

by COMINT is simple: if there is a patent ambiguity or error in the solicitation, a plaintiff 

must seek redress in court prior to award.”).

The Federal Circuit more recently indicated that:

Our waiver rule implements Congress’s directive in the Administrative 

Dispute Resolution Act (ADRA) of 1996, Pub. L. No. 104-320, § 12, 110 

Stat. 3870, 3874, that courts “shall give due regard to . . . the need for 

expeditious resolution” of protest claims. 28 U.S.C. § 1491(b)(3); see Blue 

& Gold, 492 F.3d at 1313. A waiver rule implements this statutory mandate 

by reducing 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 proposals in response to a defective 

solicitation.” Blue & Gold, 492 F.3d at 1314 (internal quotation marks and 

citation omitted). In this context, clarity is not just readily achievable but 

important. Requiring that the prescribed formal routes for protest be 

followed (to avoid waiver) reduces uncertainty about whether the issue is 

joined and must be resolved, and thereby helps prevent both the wasted 

and duplicative expenses (of all bidders and the government) and the 

delayed implementation of the contract that would likely follow from laxer 

standards of timely presentation of solicitation challenges.

Bannum, Inc. v. United States, 779 F.3d 1376, 1380 (Fed. Cir. 2015).

Visual Connections tries to distinguish its case from the Blue & Gold line of cases, 

by arguing that because of statutory requirements, Blue & Gold is not applicable. In the 

complaint, protestor notes that although

the Federal Circuit concluded that Blue & Gold Fleet was a Case of noharm, no-foul, that “there appear[ed] to be no harm to the intended

beneficiaries of the Service Contract Act.” This Post-Award Procurement 

Protest is not a Case of no-harm, no-foul. AHRQ's noncompliance with the 

Statutory mandate of 41 U.S.C. § 3306(c)(1)(C) left these Offerors guessing 

about the weighting of all of the announced Evaluation Factors relative to 

evaluated total Prices, Prices which depended on each Offeror's proposed 

staffing levels.

To explain why this RFQ is not in compliance with the applicable statutes, protestor 

first argues that: “Title 41 U.S. Code Chapter 1, Subchapter I-SUBTITLE DEFINITIONS, 

sets out at 41 U.S.C. § 111 the definition of the term ‘Procurement.’ This Acquisition being 

conducted by the United States Department of Health & Human Services is such a 
12

‘Procurement.’ Title 41 U.S. Code Chapter 33-PLANNING AND SOLICITATION, at 41 

U.S.C. § 3305(a)(2) allows the use of Simplified Procedures for small dollar-value 

commercial purchases.” (capitalization in original). Protestor, citing 41 U.S.C. 

§ 3305(a)(2) (2012), claims that “[t]hese Simplified Procedures Acquisitions may not be

greater than $5,000,000 and they may require only ‘Commercial Items.’” Section 3305 of 

Title 41, “Simplified procedures for small purchases” provides in part:

(a) Authorization.--To promote efficiency and economy in contracting and 

to avoid unnecessary burdens for agencies and contractors, the Federal 

Acquisition Regulation shall provide for special simplified procedures for 

purchases of property and services for amounts--

(1) not greater than the simplified acquisition threshold; and

(2) greater than the simplified acquisition threshold but not greater than 

$5,000,000 for which the contracting officer reasonably expects, based on 

the nature of the property or services sought and on market research, that 

offers will include only commercial items.

41 U.S.C. § 3305(a).

Protestor argues that “this Acquisition is greater than $5,000,000, the statutory 

ceiling for Simplified Procedures Acquisitions. Included in this Acquisition is an unfunded 

Option for Application Development and this unfunded Option has a labor-hour ceiling 

Price of $7,500,000.”6 Therefore, protestor claims “[t]he terms of this Request for 

Quotations themselves demonstrate this Acquisition does not qualify as a Simplified 

Procedures Acquisition.” It is not disputed that the AHRQ acquisition was not a simplified 

acquisition. Defendant correctly argues that “FSS acquisitions are not simplified 

acquisitions under 41 U.S.C. § 3305.” As noted in Systems Plus, Inc. v. United States, 68 

Fed. Cl. 206 (2005), FAR “subpart 13.303–5(b)(1) states that neither the simplified

acquisition threshold for the entire contract ($5 million), nor the limitation for individual 

purchases against BPAs (also $5 million) apply to FSS contracts.” Sys. Plus, Inc. v. 

United States, 68 Fed. Cl. at 210.7

 

6 Protestor refers to CLIN #2, which states, “CLIN 2 is an Optional Line item for Application 

Development work. This effort is not funded at this time. Should AHRQ need application 

development projects, an option will be exercised through the issuance of a modification 

under CLIN 2 (creating additional sub-CLINs). The ceiling amount shown applies to the 

entire order period.” 

7 FAR 13.303–5(b)(1) provides that “[t]he simplified acquisition threshold and the $6.5 

million limitation for individual purchases ($12 million for purchases entered into under 

the authority of 12.102(f)(1)) do not apply to BPAs established in accordance with 13.303–

2(c)(3).” FAR 13.303–5(b)(1) (2014). FAR 13.303–2(c) provides that “BPAs may be 

established with . . . (3) Federal Supply Schedule contractors, if not inconsistent with the 

terms of the applicable schedule contract.” FAR 13.303–2(c) (2014).
13

Protestor alleges that the requirements of 41 U.S.C. § 3306 (2012) apply to the 

RFQ and asserts, “[h]ad this Acquisition instead publicized, as required by 41 U.S.C. 

§ 3306(c)(1)(C), the relative importance of the announced Price and non-Price evaluation 

factors, Offerors would have had the opportunity promised them by Statute.”

The statute at 41 U.S.C. § 3306 provides, in part:

(b) Contents of solicitation.--In addition to the specifications described in 

subsection (a), each solicitation for sealed bids or competitive proposals 

(other than for a procurement for commercial items using special simplified 

procedures or a purchase for an amount not greater than the simplified 

acquisition threshold) shall at a minimum include--

(1) a statement of--

(A) all significant factors and significant subfactors that the 

executive agency reasonably expects to consider in 

evaluating sealed bids (including price) or competitive 

proposals (including cost or price, cost-related or price-related 

factors and subfactors, and noncost-related or nonpricerelated factors and subfactors); and

(B) the relative importance assigned to each of those factors 

and subfactors[.]

. . . 

(c) Evaluation factors.--

(1) In general.--In prescribing the evaluation factors to be 

included in each solicitation for competitive proposals, an 

executive agency shall--

(A) establish clearly the relative importance assigned to the 

evaluation factors and subfactors, including the quality of the 

product or services to be provided (including technical 

capability, management capability, prior experience, and past 

performance of the offeror); 

(B) include cost or price to the Federal Government as an 

evaluation factor that must be considered in the evaluation of 

proposals; and 

(C) disclose to offerors whether all evaluation factors other 

than cost or price, when combined, are--

(i) significantly more important than cost or price; 
14

(ii) approximately equal in importance to cost or price; or 

(iii) significantly less important than cost or price. 

41 U.S.C. § 3306.

8 Protestor also argues that:

Agency noncompliance with the Statutory mandate of 41 

U.S.C. § 3306(c)(1)(C) is more than an alleged impropriety which can be 

waived by categorical application of the prudential timeliness Bid Protest 

Regulation devised by GAO and then subsequently considered in Blue & 

Gold Fleet. There is a difference between Agency noncompliances with 

Agency Requirements and Regulations, noncompliances, which can be 

considered as alleged improprieties, and Agency noncompliances with 

Statutes, Statutory mandates which cannot be waived.

(emphasis in original).9

 

8 Defendant indicates that “it is worth noting that 41 U.S.C. § 3306(c)(1)(C), the statute 

relied upon by Visual Connections, specifically applies to ‘competitive proposals,’” and 

defendant argues, citing to Systems Plus, Inc. v. United States, 68 Fed. Cl. at 209-10, 

that the Court of Federal Claims “recognized that FSS procurements conducted under 

FAR Part 8.4 are not ‘competitive proposals’ like negotiated procurements under FAR 

Part 15.” Defendant also argues that “unlike FAR Part 15, FAR Part 8.4 contains no 

requirement that agencies disclose the relative importance of the price and non-price 

factors.”

9 Protestor also claims that the RFQ did not address the relative importance of the 

technical and price factors. As noted above, the parties agree that RFQ did not address 

the relative importance of the price and the non-price factors. Although the court does 

not address the merits of the protest, even if the court agreed with protestor that the 

relative importance of the terms was not clear, the court notes that the RFQ indicated that 

“[t]he quote(s) representing the best value will be selected.” As indicated by the Federal 

Circuit, “[i]t is well-established that contracting officers have a great deal of discretion in 

making contract award decisions, particularly when, as here, the contract is to be awarded 

to the bidder or bidders that will provide the agency with the best value.” Banknote Corp. 

of Am. Inc. v. United States, 365 F.3d 1345, 1355 (Fed. Cir. 2004) (citations omitted); see

also E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (“Procurement 

officials have substantial discretion to determine which proposal represents the best value 

for the government.”); Akal Sec., Inc. v. United States, 103 Fed. Cl. 310, 329 (2011); 

Brooks Range Contract Servs., Inc. v. United States, 101 Fed. Cl. 699, 707 (2011) (“[A] 

plaintiff’s burden ‘is elevated where the solicitation contemplates award on a “best value” 

basis.’” (internal citations omitted)); PlanetSpace Inc. v. United States, 96 Fed. Cl. 119, 

125 (2010) (citing Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. 

Cir.), reh’g denied (Fed. Cir. 2004) (“An agency's contract award is thus least vulnerable 

to challenge when based upon a best value determination.”)). 
15

With reference to protestor’s argument that Blue & Gold’s waiver analysis does not 

apply to statutory violations, defendant claims “[t]his position is wholly unsupported by the 

law.” Defendant correctly notes that “[i]n Blue & Gold Fleet, the Federal Circuit did not 

exclude errors based upon statutory requirements from the waiver rule.” Moreover, as 

indicated by defendant, “Blue & Gold Fleet itself involves an alleged statutory violation, 

there the applicability of the Service Contract Act.” (citing Blue & Gold Fleet, L.P. v. United 

States, 492 F.3d at 1315).

In Blue & Gold Fleet, L.P. v. United States, the plaintiff challenged the National 

Park Service’s award of a contract to Hornblower Yachts, Inc. (Hornblower) for ferry 

services to Alcatraz Island. See Blue & Gold Fleet, L.P. v. United States, 492 F.3d at 

1310-11. The plaintiff argued that Hornblower’s proposal did not include employee wage 

and benefits information required by the Service Contract Act, thus making the Park 

Service’s evaluation of the cost of Hornblower’s proposal flawed. See id. at 1312. The 

Federal Circuit acknowledged that “[b]y statute, the Park Service must 

‘evaluate . . . proposals and make an award based solely on the factors specified in the 

solicitation.’” Id. at 1313 (quoting 10 U.S.C. § 2305(b)(1)). Moreover, the Federal Circuit 

acknowledged that “[i]n this case, it is true that the decision not to apply the Service 

Contract Act to the contract may have influenced the evaluation of the proposals; 

however, the Park Service made this decision during the solicitation, not evaluation,

phase of the bidding process.” Id. The Federal Circuit noted that the solicitation “did not 

include any requirement that the bidders consider the Service Contract Act,” id., and that

the plaintiff had not raised any objection to the exclusion of Service Contract Act 

requirements from the Solicitation prior to the submission of proposals. Therefore, the 

United States Court of Appeals for the Federal Circuit found that the plaintiff actually was 

challenging the terms of the solicitation, not the agency’s evaluation of Hornblower’s 

proposal. See id.

Therefore, it appears that the Federal Circuit did not limit its decision in Blue & 

Gold to non-statutory violations. Moreover, in the years since the Blue & Gold decision, 

the Federal Circuit has expanded the waiver rule. In COMINT, the Federal Circuit 

expanded the waiver rule, noting that “[t]he same policy underlying Blue & Gold supports 

its extension to all pre-award situations,” COMINT Sys. Corp. v. United States, 700 F.3d 

at 1382, and indicated that “assuming that there is adequate time in which to do so, a 

disappointed bidder must bring a challenge to a solicitation containing a patent error or 

ambiguity prior to the award of the contract.” Id. Recently, in Bannum, the Federal Circuit

found waiver applied even when the protestor had previously indicated its dissatisfaction 

with the solicitation. See Bannum, Inc. v. United States, 779 F.3d at 1380. The Federal 

Circuit in Bannum indicated that “[i]t is undisputed that the government received notice of 

Bannum's dissatisfaction with the PREA-compliance requirement before awards were 

made. We conclude, however, that mere notice of dissatisfaction or objection is 

insufficient to preserve Bannum's defective-solicitation challenge.” Id. As the Federal 

Circuit in Bannum explained, “[h]aving failed to follow any of the various protest 

procedures available to bidders for swiftly resolving objections to the terms of the 

solicitation, Bannum cannot raise the same challenge in the Court of Federal Claims now 

that an award has been made. Bannum waived the solicitation challenge by not properly 
16

raising it before the close of bidding.” Id. at 1381 (citing Blue & Gold Fleet, L.P. v. United 

States, 492 F.3d at 1314).

Protestor also cites to Missouri Pacific Railroad Co. v. United States, 214 Ct. Cl. 

623, 558 F.2d 596 (1977), for the proposition that “[t]he requirements imposed by 

Treasury regulations must be distinguished from those imposed by statute; the former 

requirements may be waived while the latter may not.” 214 Ct. Cl. at 623, 558 F.2d at 

599. Defendant claims that “Visual Connections’s reliance on Missouri Pacific Railroad 

Co. v. United States, 558 F.2d 596 (Ct. Cl. 1977) is also misplaced.” In Missouri Pacific 

Railroad, the United States Court of Claims determined that a statutory requirement of 

filing a timely claim for income tax refund “cannot be waived.” Missouri Pac. R.R. Co. v. 

United States, 214 Ct. Cl. at 623, 558 F.2d at 599. From this 1977 tax case, protestor 

asserts that “[t]here is a difference between Agency noncompliances with Agency

Requirements and Regulations, noncompliances which can be considered as alleged 

improprieties, and Agency noncompliances with Statutes, Statutory mandates which 

cannot be waived.” (emphasis in original). Defendant claims that “[s]imply put, the 

distinction between an agency’s ability to waive statutory requirements and its own 

regulations is not relevant in any way to the waiver rule announced in Blue & Gold Fleet.”

Defendant explains, had Visual Connections timely protested the terms of the RFQ, and 

if protestor had been successful in its challenge, “AHRQ would have been required to 

amend its RFQ such that the alleged statutory violation was eliminated from the RFQ.”

The remedy, as articulated by defendant, would have been a timely challenge to the RFQ.

The court finds no difference in Visual Connections’ case and the series of waiver 

cases decided by the Federal Circuit. Moreover, as defendant notes, if protestor believed 

that there may have been a statutory violation with the RFQ, the time for raising that 

challenge would have been before the proposals were due. The court determines that 

an offeror, such as Visual Connections, which has the opportunity to object to the terms 

of a government solicitation containing an alleged patent error, including a statutory 

violation, and fails to do so prior to award, waives the ability to raise the same objection 

in a bid protest case filed in this court. See Blue & Gold Fleet, L.P. v. United States, 492 

F.3d at 1314.

Alternatively, protestor asserts that the RFQ is “facially ambiguous,” and, 

“therefore it was a latent ambiguity which triggered no duty to inquire.” Protestor argues 

the RFQ was facially ambiguous because “[t]he Evaluation Factors and Evaluation 

Schema announced by Defendant United States Department of Health & Human 

Services’ AHRQ’s Request for Quotations entirely follow the precepts set out for a 

Simplified Procedures Acquisition competed among the many holders of Multiple Award 

Schedule Contracts,” while protestor also argues, “[b]ut it is equally reasonable to have 

concluded that the announced conditions for this Request for Quotations (an Acquisition 

greater than $5,000,000 set-aside and restricted only to those Offerors which also are 

Service-Disabled, Veteran-Owned Small Business Concerns) precluded the use of 

Simplified Acquisition Procedures.” Protestor quotes from States Roofing Corp. v. Winter

for the proposition that:
17

We agree with States Roofing that any ambiguity in the contract was latent, 

rather than patent. As precedent explains, there must be a glaring conflict 

or obvious error in order to impose the consequences of misunderstanding 

on the contractor. See HPI/GSA 3C, LLC v. Perry, 364 F.3d 1327, 1334 

(Fed. Cir. 2004) (“Where an ambiguity is not sufficiently glaring to trigger 

the patent ambiguity exception, it is deemed latent and the general rule of 

contra proferentem applies.”); Blount Bros. Const. Co. v. United States, , 

346 F.2d 962, 973, 171 Ct. Cl. 478 (Ct. Cl. 1965) (“[Contractors] are not 

expected to exercise clairvoyance in spotting hidden ambiguities in the bid 

documents, and they are protected if they innocently construe in their own 

favor an ambiguity equally susceptible to another construction, for . . . the 

basic precept is that ambiguities in contracts drawn by the Government are 

construed against the drafter.”).

States Roofing Corp. v. Winter, 587 F.3d 1364, 1372 (Fed. Cir. 2009).10

“A solicitation term is ambiguous if ‘more than one meaning is reasonably 

consistent with [its] language.’” Furniture by Thurston v. United States, 103 Fed. Cl. 505, 

511 (2012) (quoting Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 977 (Fed. Cir. 

1996) (modification in original). The United States Court of Appeals for the Federal Circuit 

has stated that, “[t]o show an ambiguity [in contract language,] it is not enough that the 

parties differ in their respective interpretations of a contract term.” NVT Techs., Inc. v. 

United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004). In order to demonstrate ambiguity, 

the interpretations offered by both parties must “‘fall within a “zone of reasonableness.”’” 

Id. (quoting Metric Constructors, Inc. v. NASA, 169 F.3d 747, 751 (1999) (citations 

omitted)); see also Ace Constructors, Inc. v. United States, 499 F.3d 1357, 1361 (Fed. 

Cir. 2007) (“[I]n interpreting a solicitation, ‘[it] is ambiguous only if its language is 

susceptible to more than one reasonable interpretation. . . . If the provisions of the 

solicitation are clear and unambiguous, they must be given their plain and ordinary 

meaning.’” (quoting Banknote Corp. of Am., Inc. v. United States, 365 F.3d at 1353)).

As noted in a bid protest decision, “[a] patent ambiguity in a solicitation ‘is one that 

is “obvious, gross, [or] glaring.”’” CliniComp Int’l, Inc. v. United States, 117 Fed. Cl. at 738 

(quoting NVT Techs., Inc. v. United States, 370 F.3d 1153, 1162 (Fed. Cir. 2004) (quoting 

H & M Moving, Inc. v. United States, 499 F.2d 660, 671 (Ct. Cl. 1974))) (alteration in 

original); see also States Roofing Corp. v. Winter, 587 F.3d at 1372. “A latent ambiguity 

‘is not apparent on the face of the solicitation and is not discoverable through reasonable 

or customary care.’” J.C.N. Constr., Inc. v. United States, 107 Fed. Cl. 503, 512 (2012) 

(quoting Guzar Mirbachakot Transp. v. United States, 104 Fed. Cl. 53, 65 (2012)). “‘An 

ambiguity is latent if it is not apparent on the face of the solicitation and is not discoverable 

through reasonable or customary care.’” AM Gen., LLC v. United States, 115 Fed. Cl. 

653, 670 (2014) (quoting Linc Gov't Servs. v. United States, 96 Fed. Cl. 672, 708 (2010)).

The distinction between a latent ambiguity and a patent ambiguity is “critical for the 

 

10 The court notes that States Roofing, like the other cases cited by protestor in its brief 

regarding this issue, are not bid protest cases, but are Federal Circuit decisions which 

have been appealed from the Board of Contract Appeals.
18

purpose of waiver, since ‘“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 afterwards[.]”’” Archura 

LLC v. United States, 112 Fed. Cl. 487, 500 (2013) (quoting Lab. Corp. of Am. v. United 

States, 108 Fed. Cl. 549, 565–66 (2012) (quoting Blue & Gold Fleet, L.P. v. United States, 

492 F.3d at 1315) (alteration in original). As noted in Archura, “[w]hether an ambiguity is 

patent or latent is a question of law, and a determination to be made on a case-by-case 

basis.” Id. (citing Interstate Gen. Gov't Contractors, Inc. v. Stone, 980 F.2d 1433, 1435 

(Fed. Cir. 1992)); see also CBY Design Builders v. United States, 105 Fed. Cl. 303, 327 

(2012) (“Whether a provision in a solicitation is ambiguous, and whether an ambiguity is 

latent or patent, are also questions of law over which courts exercise independent review 

on a case-by-case basis.”).

Although protestor argues that “[w]here conflicting interpretations are equally 

reasonable, then the ambiguity is latent, not patent,” as noted above, and as pointed out 

by defendant, “[i]dentification of a contract term with ‘more than one meaning [] 

reasonably consistent with the contract language,” is merely the first step in identifying an 

ambiguity; the court must then determine if the ambiguity is patent or latent.’” (quoting 

Grumman Data Systems Corp. v. Dalton, 88 F.3d at 997) (alteration in original). Indeed, 

it is the court’s role to determine if the ambiguity is patent or latent. See Archura LLC v. 

United States, 112 Fed. Cl. at 500; see also J.C.N. Constr., Inc. v. United States, 107 

Fed. Cl. at 512 (“If the court determines that an ambiguity exists, it must then determine 

whether the ambiguity is patent or latent.”).

Defendant correctly notes that protestor’s claim of “conflicting interpretations” “just 

two sides of the same coin: Visual Connections contends that an offeror could have 

reasonably concluded (1) that the terms of the RFQ precluded the use of are really

simplified acquisition procedures; or (2) that the RFQ was subject to simplified acquisition 

procedures, even though this result would violate Statute.” (internal citations and 

quotation omitted). Therefore, defendant argues that “[u]nder either interpretation 

proffered by Visual Connections, the alleged violation of 41 U.S.C. § 3305(a)(2) was 

apparent on the face of the RFQ. Accordingly, Visual Connections is alleging a patent 

error to the terms of the RFQ which must have been challenged prior to AHRQ’s receipt 

of quotes.”

Moreover, protestor undermines its own argument that the ambiguity was latent. 

In its conclusion to its response to defendant’s motion to dismiss, protestor seeks a 

declaration that the award to intervenor “is unlawful because Request for Quotations 

Number AHRQ-15-10003 makes use of Simplified Acquisition Procedures in violation of

41 U.S.C. § 3305(a)(2),” and claims that “[t]he terms of this Request for Quotations 

themselves demonstrate this Acquisition does not qualify as a Simplified Procedures 

Acquisition.”

11 As noted above, when arguing that AHRQ was not in compliance with the 

relevant statutes, protestor claims AHRQ committed an “obvious Statutory violation 

 

11 Defendant argues that, “[p]utting aside the fact that FSS acquisitions are not simplified 

acquisitions under 41 U.S.C. § 3305, Visual Connections is alleging a patent error with 

the terms of the RFQ, not a latent ambiguity or defect.” 
19

before July 28th, 2014, the date set for receipt of Quotations.” (emphasis added). If the 

violation was obvious, it would be a patent ambiguity, not a latent one, and should have 

been raised before proposals were submitted. Any ambiguity in the RFQ was patent, and 

the waiver analysis discussed above applies.

CONCLUSION

As determined above, Visual Connections failed to challenge the terms of the RFQ 

before submitting its proposal, and, the alleged ambiguity in the RFQ should be classified 

as a patent one. Therefore, protestor has waived its right to subsequently challenge the 

relative importance of the announced price and non-price evaluation factors in this court. 

Defendant’s motion to dismiss is GRANTED. Protestor’s complaint is DISMISSED. The 

Clerk of the Court shall enter JUDGMENT consistent with this opinion.

IT IS SO ORDERED.

s/Marian Blank Horn 

MARIAN BLANK HORN

 Judge