The latest updates and analysis from Morrison Foerster
August 17, 2020 - Defense

Clear Skies for Boeing After No-Waiver Ruling

Below is an excerpt from one of Morrison & Foerster’s newest blogs, Federal Circuitry, which takes a data-driven look at the Federal Circuit. In addition to analyzing Federal Circuit statistics, the blog publishes a “Last Week in the Federal Circuit” roundup and a monthly “Oral Argument Recap.”

To read this post in full on Federal Circuitry, please click here.


Case of the week:  The Boeing Co. v. United States, No. 19-2148 (Aug. 10, 2020)

Panel:  Judges Moore, Taranto, and Chen, with Judge Taranto authoring the opinion 

Read this case if:  you have a matter involving the Blue & Gold contract waiver doctrine.

This week’s featured case is about an issue the government often raises in contract cases—waiver, particularly under Blue & Gold Fleet, L.P. v. United States. In Blue & Gold, 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.” This week in Boeing, the Federal Circuit limited that rule’s reach when the contracting agency could not have granted any meaningful relief during the pre-award process.