22nd Century Networks, Inc. v. United States

In the United States Court of Federal Claims No. 26-718C Filed: September 14, 2026 Redacted Version Issued for Publication: October 3, 20261 * * * * * * * * * * * * * * * * ** * 22ND CENTURY NETWORKS, INC., * * * Protestor, * v. * * UNITED STATES, * * Defendant, * * v. * BY LIGHT PROFESSIONAL IT * SERVICES, LLC, * Defendant-Intervenor. * * * * * * * * * * * * * * * * * ** W. Brad English, Maynard Nexsen PC, Huntsville, AL, for protestor. With him were Hunter M. Drake, Emily J. Chancey, Kristopher B. Womack, and Taylor R. Holt, Maynard Nexsen PC, Huntsville, AL. Ioana C. Meyer, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, for defendant. With her were Douglas K. Mickle, Acting Deputy Director, Commercial Litigation Branch, Patricia M. McCarthy, Director, Commercial Litigation Branch, and Brett A. Shumate, Assistant Attorney General, Civil Division. Of counsel Susan Chagrin, Associate General Counsel, Defense Information Systems Agency, Washington, DC. Damien Specht, Morrison Foerster LLP, Washington, DC, for intervenor. With him were Brian E. Doll, Jr., James Tucker, and Jillian I. Stern, Morrison Foerster LLP, Washington, DC, of counsel. 1 This Opinion was issued under seal on September 13, 2026. The parties were asked to propose redactions prior to public release of the Opinion. This Opinion is issued with the some of the redactions that the parties proposed in response to the court’s request. Words which are redacted are reflected with the notation: “[redacted].”  OPINION HORN, J. Protestor, 22nd Century Networks, Inc. (22nd Century), filed the current post- award bid protest, Case No. 26-718C, in the United States Court of Federal Claims challenging the decision of the Defense Information Systems Agency (DISA) to award a contract to intervenor, By Light Professional IT Services LLC (By Light) in response to Request for Proposals (RFP) No. HC108426R0005 (the Solicitation). Protestor alleges that the DISA required the offerors to use Menlo Security, Inc.’s (Menlo) service agreements and licenses, and because Menlo quoted By Light a lower price than protestor, and By Light was awarded the contract, “DISA did not ensure that this procurement was conducted fairly.” FINDINGS OF FACT In DISA’s Combined Acquisition Strategy/Acquisition Plan, the agency explained: DISA requires a secure browser isolation solution to be delivered as a managed service for the purpose of providing all Department of War (DoW) users with safe and reliable access to web resources. The solution and managed service provider (MSP) is critical to mitigating cyber threats, enhancing information system security, and eliminating vulnerabilities in critical infrastructure that adversaries could exploit. The DoW allocates significant resources, tens of millions of dollars annually, to defend its networks against internet-based threats. Notably, approximately 36% of these threats originate from browser-based attacks. To address this challenge, the DoW has adopted the Cloud-Based Internet Isolation (CBII) service, leveraging Menlo Security Inc.’s Cloud Browser (MSCB) isolation capability. Delivered as a managed service by a primary integrator, this solution currently protects approximately 3.05 million DoW users. Based on a successful Other Transaction Authority (OTA) agreement, the DoW has selected MSCB as the solution for CBII. A brand-name Justification for other than Full and Open Competition (OTFAOC) has been executed to substantiate this decision. The purpose of this FAR-based follow-on contract action is to procure Menlo Security Inc.’s MSCB, the proprietary, commercial off-the-shelf (COTS) brand-name product, as a managed service, providing the DoW’s remote browsing isolation (RBI) solution for CBII. The Combined Acquisition Strategy/Acquisition Plan continued: Since 2020, DoW has leveraged the MSCB solution via the production OTA agreement to protect DoW users from evolving cyber threats. This five-year deployment has continually adapted to mitigate increasingly sophisticated malicious tactics, techniques, and procedures. The MSCB provides 2  significant value by transforming DoW’s web browsing experience, resulting in a safer, more efficient, and more resilient operation. By supporting major browsers (Google Chrome, Microsoft Edge, Mozilla Firefox, and Apple Safari), the MSCB offers increased flexibility, allowing organizations to leverage existing infrastructure, reduce training costs, and improve user productivity. The MSCB significantly enhances DoW’s security posture by masking user browsing activity, hindering intelligence gathering by threat actors. It provides robust, multi-layered protection against web-based threats by isolating online plug-ins and screening downloads, preventing malicious code from compromising DoW computers and networks. It also blocks access to known malicious websites and restricts access to inappropriate content, improving compliance and minimizing distractions. The Combined Acquisition Strategy/Acquisition Plan explained: Menlo Security, Inc. products have been crucial to DISA's mission, protecting millions of DoW users across major organizations, including the Office of the Secretary of War and the Defense Logistics Agency. As the DoW’s remote browsing isolation solution for five years, the MSCB has prevented billions of cyber threats, offloaded hundreds of petabytes of data, and improved responsiveness. From January to March 2025, the system detected and mitigated an average 25 million threats monthly and offloaded over 4 petabytes of data each month, reinforcing its critical role in defending the DoW in cyberspace. The CBII solution requires continuous operation within a secure, FedRAMP+ Level 2 compliant, unclassified Cloud Service Offering to protect DoW networks from online threats. This environment, supporting up to 3.4 million DoW users worldwide with 24/7 secure internet browsing, threat isolation, and bandwidth freeing, is already powered by Menlo Security, Inc. This follow-on effort focuses on maintaining and enhancing this system by continuing to utilize Menlo Security, Inc.’s cloud environment and adding smart, automated defenses (using artificial intelligence and machine learning (AI/ML)) to proactively block cyberattacks, ensuring a strong and reliable defense against web-based threats. For cost, the Combined Acquisition Strategy/Acquisition Plan included the following table: 3 The Combined Acquisition Strategy/Acquisition Plan explained the “estimated cost was determined through: Market research: Conducted in collaboration with the original equipment manufacturer (OEM), Menlo Security, Inc., to gather information on the current market prices and trends,” and “Review of current agreements: Analysis of existing contracts, including the existing OTA agreement HC10842090006 awarded by DISA, to determine the pricing structure and any discounts or terms that may be applicable.” (capitalization and emphasis in original). The Performance Work Statement for the Solicitation currently under review reflected that: The scope of this contract requires a managed service for the Government that provides a cloud environment utilizing MSCB [Menlo Security Inc.’s Cloud Browser]. This solution includes all hardware, software, and infrastructure components required to deliver to the Government a secured, flexible, cloud environment that is readily available, scalable, globally accessible, and provides enhanced cyber security protections in an isolated, secured cloud environment. Capabilities within the MSCB- engineered CBII platform will include but are not limited to destination- based whitelisting and blacklisting, web content filtering, site categorization and risk assessment, malware scanning and sandboxing, data loss prevention and web isolation within a secure container. The managed service, an essential requirement of the contract, will provide managed services to include program support, a tiered service desk infrastructure, engineering, migration support, user and administrator training, and accreditation & authorization (A&A) support. The Government may require surge support during the base or any option period, and surge modifications will be within the scope of the contract and provide increased support for the defined task areas of this PWS. Surge support over the life of the contract will not exceed 5% of the contractor’s total proposed cost/price for the base and all option periods, excluding any six-month extension of services pursuant to FAR 52.217-8. (alteration added). The Performance Work Statement for the Solicitation identified seven “Performance Requirements” for the contractor to meet: 4  Task 1 – Program Support Task 2 – Unclassified/NIPRNET [Non-classified Internet Protocol (IP) Router Network Net] Production Environment (engineered by Menlo Security, Inc.) Task 3 – Operational Service Support Task 4 – Accreditation & Authorization (A&A) Task 5 – Migration, Readiness Assessments, and Sustainment Support Task 6 – Training Task 7 – Engineering Support Services (alteration added). The Solicitation “Basis for Contract Award” explained: Award will be made to the responsible offeror whose proposal is determined to represent the overall best value to the Government using a lowest price technically acceptable (LPTA) evaluation process. The Government anticipates awarding to the lowest price technically acceptable respondent from initial contractor responses, without engaging in exchanges with respondents. Respondents are strongly encouraged to submit their best technical solution and price/cost in response to this solicitation. The technical proposal should include all information the offeror wants the Government to consider and evaluate regarding its ability to perform all work described in the evaluation subfactors. To be eligible for award, the offeror’s proposal must sufficiently address all aspects of the evaluation factors and subfactors. Failure to comply with the terms and conditions of the solicitation may result in the offeror being ineligible for award. The Solicitation informed offerors that [t]he Government intends to evaluate proposals and award a contract without exchanges. However, the Government reserves the right to conduct exchanges or seek clarifications if the KO [Contracting Officer] determines they are necessary. In the event issues pertaining to the solicitation cannot be resolved to the KO's satisfaction, the Government reserves the right to cancel the solicitation. In such event, offerors will be notified in writing. (alterations added). The Solicitation had two evaluation factors: Factor 1, “Technical/Management Approach,” and Factor 2, “Price.” Factor 1 had four subfactors: “Subfactor 1: Core Service Capability & Performance,” Subfactor 2: Tier II: Contractor Provided Infrastructure Support,” “Subfactor 3: Cybersecurity, A&A, Threat Mitigation, Data Protection, and ICAM [Identity, Credential, and Access Management] Interoperability,” “Subfactor 4: Engineering and Mobility Support.” (alteration added). According to the Solicitation: “The Technical/Management subfactors will be evaluated and rated either Acceptable or Unacceptable. In order for a proposal to be rated overall Technically Acceptable, each of the subfactors must be rated Acceptable.” The description for “Acceptable” was: “Proposal clearly meets the minimum requirements of the 5 solicitation,” and the description for “Unacceptable” was: “Proposal does not clearly meet the minimum requirements of the solicitation.” For “Factor 2: Price,” the Solicitation stated: The Offeror’s firm-fixed price proposal will be evaluated for award purposes based upon the total evaluated price which consists of the offeror’s proposed prices for the base period, all option periods, including option pricing for an additional 6-month period that may be authorized IAW [in accordance with] FAR 52.217-8, and surge pricing. Evaluation of the options shall not obligate the Government to exercise such options. The offeror’s price proposal will be evaluated, using one or more of the techniques defined in FAR 15.404, in order to determine if it is reasonable and complete. Normally, price reasonableness is established through cost and price analysis techniques as described in FAR 15.404. For a price to be complete, all solicitation requirements must be priced, figures correctly calculated and prices presented in in a clear and useful format. The Government reserves the right, but is not obligated, to conduct a realism analysis. (alteration added). The initial Independent Government Cost Estimate (IGCE) for the procurement was $322,415,559.02. In response to the Solicitation, four offerors submitted proposals on March 23, 2026: Protestor, 22nd Century, intervenor By Light, [redacted], and [redacted]. By Light proposed a price of $[redacted], [redacted] proposed a price of $[redacted], 22nd Century proposed a price of $[redacted], and [redacted] proposed a price of $[redacted]. After DISA issued Amendment 0004 to the Solicitation, all four offerors subsequently submitted revised price proposals on March 30, 2026: By Light’s revised price was $[redacted], 22nd Century’s revised price was $[redacted], [redacted] revised price was $[redacted], and [redacted] revised price was $[redacted]. DISA’s April 10, 2026 Memorandum for Record, titled: Independent Government Cost Estimate (IGCE) Increase After Release of Request for Proposal (RFP),” explained that The Defense Information Systems Agency (DISA) Program Executive Office Cyber (ID)/Internet Protection Branch (ID51) submitted their complete requirements package on January 12, 2026, including an IGCE of $322,415,559. The CBII RFP was posted to SAM.gov on February 23, 2026. Initial proposals received on March 23, 2026, were priced significantly higher than the IGCE. The Government determined this was due to the usage-based pricing model in the RFP. In response, the Government issued RFP Amendment 0004 to replace the usage-based model with enterprise- based pricing. Four revised proposals were received on March 30, 2026, with pricing more comparable to the IGCE. 6  After receipt of the revised proposals, DISA ID51 discovered that its original IGCE was based on historical pricing from the current contract, Other Transaction Agreement (OTA) HC10842090006, but it had failed to account for a recent cost increase in the current OTA extension and price increase related to managed services versus an annual subscription. To correct this, a revised IGCE was submitted in the amount of $340,040,271. Based upon the information documented above, this MFR supports the IGCE increase, and no further documentation is required. (capitalization in original). The same day, April 10, 2026, DISA issued Amendment 0006 to the Solicitation “to issue evaluation notices (ENs)” and to “request Final Proposal Revisions (FPRs).” In the evaluation notices to all four offerors, DISA asked that each offeror “review their proposal submission, provide justification and documentation to support proposed pricing, and/or submit a revised proposal reducing the proposed price.” On April 20, 2026, all four offerors submitted final revised proposals, including revised price proposals. In defendant’s submission to the court, defendant provided the following chart reflecting the offerors’ final evaluated prices: Total Evaluated Price for Base Year Price for Base Year Offeror Contract Price CBII Managed CBII HEAT Shield Service Managed Service By Light $344,654,988.32 $[redacted] $[redacted] 22nd Century $[redacted] $[redacted] $[redacted] [redacted] $[redacted] $[redacted] $[redacted] [redacted] $[redacted] $[redacted] $[redacted] The revised IGCE for the procurement was $340,040,271. In the April 27, 2026 Source Selection Decision Document, the Source Selection Authority explained: “After initial evaluation of the offerors, the Government conducted discussions with all offerors and requested Final Proposal Revisions (FPRs) from the four offerors,” and the Source Selection Evaluation Team “determined all offerors were technically acceptable with conclusion of the oral proposal presentations.” Regarding Price, the Source Selection Authority explained: All offerors’ prices were evaluated and determined to be complete and reasonable. The Contracting Officer determined that price competition existed and I concur. Price realism analysis was not performed. The price evaluation was based on the TEPs [Total Evaluated Prices] compared to the IGCE and proposed average price for the projected 5-year contract life (one-year base period and four, 1-year options). The TEP consisted of the offeror’s proposed prices for the base period, all option periods, and option pricing for an additional 6-month extension period that may be authorized IAW FAR 52.217-8. 7 (alteration added). The April 27, 2026 Source Selection Decision Document included the following price chart: Offeror Proposed April 20, 2026 Delta from IGCE Delta from Average TEP [Total Evaluated Price] By Light $344,654,988.32 [redacted]% [redacted]% TSCNI[2] $[redacted] [redacted]% [redacted]% [redacted] $[redacted] [redacted]% [redacted]% [redacted] $[redacted] [redacted]% [redacted]% IGCE $[redacted] Proposed Price Average $[redacted] (footnote and alteration added). The April 27, 2026 Source Selection Decision Document explained: By Light’s TEP is $344,654,988.32, which is the lowest of the four offerors. By Light is [redacted]% lower than the next lowest offeror, and [redacted]% lower than the average total proposed prices of all offerors, which is $[redacted]. Further, the TEP compares favorably to the IGCE and is [redacted]% higher than the IGCE amount of $[redacted] (including six- month extension). Although higher, By Light’s TEP is still within a reasonable range of the IGCE. A reasonable range is considered to be within 1 standard deviation. In a normal distribution, 1 standard deviation will include the data that is within [redacted]% of the average. By Light is considered reasonable in comparison to the IGCE. Therefore, the Source Selection Authority concluded: “Although no competitive range was determined to exclude any offerors, the evaluation of offerors, after receipt of FPRs, clearly shows By Light is the LPTA [Lowest Price Technically Acceptable] offeror. Accordingly, I direct the Contracting Officer to award the CBII contract to By Light.” (alteration added). After DISA’s decision to award the contract to By Light, protestor filed its bid protest complaint on May 14, 2026. Subsequently, on June 15, 2026, protestor filed an amended complaint.3 Protestor’s amended complaint contains a single count: “Count One - DISA 2 TSCNI refers to protestor “22nd Century Technologies Inc.” 3 In protestor’s original complaint, protestor indicated no actual knowledge that Menlo had offered By Light a different price than protestor and alleged: Because By Light’s price was substantially lower than the baseline price, DISA knew or should have known that it either did not propose to provide all required licenses, did not follow the pricing instructions by removing or manipulating the plug amounts for surge and pricing, or both. DISA should have found By Light Unacceptable because its proposal did not price all the Solicitation’s requirements. Alternatively, DISA should have removed By Light from the competition because it failed to follow the Solicitation’s pricing 8 did not ensure that this procurement was conducted fairly.” Protestor made the following allegations and arguments: DISA essentially abdicated its source selection decision in this LPTA procurement to its mandatory subcontractor, Menlo. And, in doing so, frustrated the Source Selection Plan by allowing Menlo’s charges to each bidder—not the contractor-provided services—to become the competitive difference. Among technically acceptable bidders, DISA knew price would be the deciding factor and that Menlo’s charges would make up the vast majority of offerors’ pricing. Indeed, DISA estimated Menlo’s charges were nearly [redacted]% of the cost in the base year of both of its IGCEs. DISA was in contact with Menlo during the acquisition process, working cooperatively to develop the IGCE. But DISA did nothing to ensure Menlo— the de facto source selection authority – treated offerors fairly. In fact, Menlo did not treat the offerors fairly or impartially. Menlo charged the other bidders $[redacted] for 5.5 years of CBII Managed Services and Heat Shield. DISA knew or should have known that by looking at [redacted] proposal. Similarly, it DISA knew or should have known by looking at By Light’s proposal and doing the math mentioned above, that Menlo charged By Light no more than $[redacted] for the same thing, a difference of $[redacted]. Even worse, Menlo lied to the other offerors, or at least 22nd Century, saying it could not negotiate its charges because it wanted to maintain a competitive process that was focused on technical acceptability. (footnote and internal references omitted). In protestor’s amended complaint, protestor proports to calculate Menlo’s charges to By Light as follows: By Light’s total price for CBII Managed Services was $[redacted] and its total price for Heat Shield was $[redacted], a grand total of $329,665,229.64. However, By Light’s proposal also included its [redacted], which were included in those CLIN prices. Adding those [redacted] shows that By Light’s [redacted] were $[redacted]. Adding [redacted]% of By Light’s [redacted], or $[redacted] and subtracting that total from By Light’s total [redacted] shows that Menlo charged By Light no more than $[redacted], without accounting for [redacted]. (footnote and internal references omitted). Protestor also alleges: As expected, Menlo’s charges to offerors were the deciding factor. All bidders were technically acceptable, so the award decision came down to the lowest price. By Light had the lowest price because Menlo offered it substantially lower charges than it offered the other bidders. In essence, requirements or otherwise manipulated them. In either event, as the Acceptable bidder with the second lowest price, 22nd Century would have received award. 9  there was no competition. Because Menlo controlled the outcome and gave By Light a sweetheart deal on the licenses that made up the majority of the proposed price, every other technically acceptable bidder was fighting for second place from the outset. Not only did this violate the Source Selection Plan’s intention to allow the contractor services to be the competition’s focus, but it eliminated all competition to start with. In protestor’s motion for judgment on the Administrative Record, protestor reiterates that “[b]y making Menlo a ‘required subcontractor’ and failing to establish guardrails or provide oversight to ensure it treated all bidders fairly, DISA essentially ceded source selection authority to Menlo and violated principals of fundamental fairness.” (alteration added). Protestor also argues that “[b]y unreasonably allowing Menlo to deceive bidders and manipulate this competition, DISA prejudice 22nd Century.” (alteration added). In response to protestor’s motion for judgment on the Administrative Record, defendant and intervenor both filed motions to dismiss protestor’s amended complaint, and, in the alterative, cross-motions for judgment on the Administrative Record. Defendant argues in its motion to dismiss that “by contesting the pricing, 22nd Century is merely mounting a challenge to the terms of the solicitation—a challenge that 22nd Century has waived by failing to raise it before bidding closed.” In intervenor’s motion to dismiss, intervenor argues that a “protest is not a vehicle for a disappointed offeror to complain that a vendor quoted a lower price to another offeror than to it. Yet that is exactly what 22nd Century’s protest does: it complains that its proposed supplier, Menlo Security, Inc. (‘Menlo’), quoted By Light a lower net price than it quoted 22nd Century.” In defendant’s cross-motion for judgment on the Administrative Record, defendant argues that “the record does not show that DISA treated offerors unfairly or ceded control of the procurement to Menlo. DISA established the same solicitation requirements for all offerors, allowed offerors to negotiate with Menlo, evaluated all proposals under the same criteria, and made the final award decision itself.” In intervenor’s cross-motion for judgment on the Administrative Record, intervenor argues that “the record demonstrates the Agency evaluated proposals and awarded the contract in a reasonable manner, in strict accordance with the LPTA terms of the Solicitation. 22nd Century fails to identify any Agency error in the evaluation and award process.” In its response to the motions to dismiss, protestor argues that its post-award bid protest “is not a solicitation protest but a timely challenge to DISA’s unreasonable conduct,” and “nothing in the Solicitation indicated that DISA planned to cede source selection authority to its mandatory subcontractor by allowing it to pick the winner simply by offering different prices for required products.” In response to the cross-motions for judgment on the Administrative Record, protestor contends: While it may be true that DISA made the award, Menlo certainly picked the winner. DISA made Menlo a mandatory subcontractor, knowing its costs would make up nearly [redacted]% of the proposed price. Yet DISA did 10  nothing to ensure Menlo treated bidders fairly. That meant Menlo had the unimpeded ability to pick the winner in this LPTA procurement by giving it a better deal than the other bidders. Nobody disputes that is what happened here. DISA’s award decision was a predetermined formality once Menlo gave By Light a substantially better deal than everyone else. Defendant’s reply brief argues that “[i]n its response, 22nd Century still fails to demonstrate that the Defense Information Systems Agency (DISA) conducted an irrational procurement,” which intervenor echoes by contending “Plaintiff fails to establish any error in the evaluation or award decision.” (alteration added). After the parties’ motions were fully briefed, the court held oral argument. At oral argument defendant counsel argued that “there’s nothing in the record that would show that the contracting officer knew” that Menlo did not offer the same prices to each offeror, and, after conferring with the contracting officer, represented that the agency “did not know that there were different prices charged by Menlo.” Protestor also filed a motion to supplement the Administrative Record, which defendant and intervenor oppose, and which is discussed below. DISCUSSION Initially, defendant and intervenor both argue that protestor has waived its ability to bring a bid protest challenge in its court. Defendant argues that “[t]he Court should dismiss this complaint for failure to state a claim because 22nd Century waived its objection to the terms of the Solicitation,” (alteration added), and intervenor argues the court should dismiss plaintiff’s protest “as an untimely Solicitation challenge that Plaintiff waived under Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007).” In Blue & Gold, the United States Court of Appeals for the Federal Circuit addressed whether 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 United States Court of Appeals for the Federal Circuit noted that the protestor in Blue & Gold had failed to challenge the terms of the solicitation until after the agency had made a contract award. See id. at 1311. When considering if the protestor had waited too long to challenge the solicitation, the Federal Circuit noted that decisions of the Court of Federal Claims had concluded “that 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.’” Id. 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 Trillion ERP Venture Tech LLC v. United States, 161 Fed. Cl. 531, 542 (2022). In Blue & Gold, the United States Court of Appeals for 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 11  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 (alteration in original); see also Oak Grove Techs., LLC v. United States, 116 F.4th 1364, 1378 (Fed. Cir. 2024) (“The applicability of the ‘Blue & Gold rule’ turns on the existence of a patent error.”); M.R. Pittman Grp. v. United States, 68 F.4th 1275, 1283 (Fed. Cir. 2023) (“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.” (citing Blue & Gold Fleet, L.P. v. United States, 492 F.3d at 1313)); Mitchco Int’l, Inc. v. United States, 26 F.4th 1373, 1380 (Fed. Cir. 2022) (citing Harmonia Holdings Grp. v. United States, 20 F.4th 759, 766 (Fed. Cir. 2021) (citing Blue & Gold, Fleet, L.P. v. United States, 492 F.3d at 1313)); Per Aarsleff A/S v. United States, 829 F.3d 1303, 1312 (Fed. Cir. 2016); Toota Grp., LLC v. United States, No. 25-1956, 2026 WL 1971080, at *11 (Fed. Cl. June 24, 2026); Revelations Counseling & Consulting, LLC v. United States, 180 Fed. Cl. 721, 740 (2026); Telesto Grp., LLC v. United States, 176 Fed. Cl. 711, 740 (2025); Trace Sys. Inc. v. United States, 165 Fed. Cl. 44, 62 (2023); Eagle Techs., Inc. v. United States, 163 Fed. Cl. 692, 706 (2022), appeal dismissed, No. 2023-1473, 2023 WL 2820095 (Fed. Cir. Apr. 7, 2023); Land Shark Shredding, LLC v. United States, 142 Fed. Cl. 301, 311 (2019); MSC Indus. Direct Co. v. United States, 140 Fed. Cl. at 641; Phoenix Mgmt., Inc. v. United States, 125 Fed. Cl. 170, 181 (2016); 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.” (alteration added) (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; alteration added). The Federal Circuit also explained in Blue & Gold: “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)). 12  Furthermore, as described above, a “solicitation is ambiguous only if its language is susceptible to more than one reasonable interpretation,” and “[i]f the provisions of the solicitation are clear and unambiguous, they must be given their plain and ordinary meaning; we may not resort to extrinsic evidence to interpret them.” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1353 (Fed. Cir. 2004) (alteration added); see also Per Aarsleff A/S v. United States, 829 F.3d at 1309; AccelGov, LLC v. United States, 170 Fed. Cl. 508, 516 (2024);(citing Banknote Corp. of Am. v. United States, 365 F.3d at 1353). The court in Blue & Gold Fleet found that “‘[t]he doctrine of patent ambiguity is an exception to the general rule of contra proferentem, which courts use to construe ambiguities against the drafter.’” Blue & Gold Fleet, L.P. v. United States, 492 F.3d at 1313 (quoting E.L. Hamm & Assocs., Inc. v. England, 379 F.3d 1334, 1342 (Fed. Cir. 2004)); see also HPI/GSA 3C, LLC v. United States, 364 F.3d 1327, 1334 (Fed. Cir. 2004) (“The general rule is contra proferentem, which requires ambiguities in a document to be resolved against the drafter.”); Triax Pac., Inc. v. West, 130 F.3d 1469, 1475 (Fed. Cir. 1997) (“More subtle ambiguities are deemed latent and are accorded an interpretation favorable to the contractor under the doctrine of contra proferentem.”); Ekagra Partners, LLC v. United States, 163 Fed. Cl. 189, 208 (2022); T.W. Laquay Marine, LLC v. United States, 127 Fed. Cl. 748, 762 (2016) (“A latent ambiguity should be construed against the Government in accordance with the recognized contract interpretation principle of contra proferentum [sic].” (alteration added)). According to the United States Supreme Court, “as between two reasonable and practical constructions of an ambiguous contractual provision . . . . the provision should be construed less favorably to that party which selected the contractual language.” United States v. Seckinger, 397 U.S. 203, 216, reh’g denied, 397 U.S. 1031 (1970) (omission added). This doctrine of contra proferentem “‘pushes the drafters toward improving contractual forms and it saves contractors from hidden traps not of their own making.’” Fry Commc’ns, Inc. v. United States, 22 Cl. Ct. 497, 503 (1991) (quoting Sturm v. United States, 190 Ct. Cl. 691, 697, 421 F.2d 723, 727 (1970)). Similarly, according to the United States Court of Appeals for the Federal Circuit: “When a dispute arises as to the interpretation of a contract and the contractor’s interpretation is reasonable, we apply the rule of contra proferentem, which requires that ambiguous or unclear terms that are subject to more than one reasonable interpretation be construed against the party who drafted the document.” Turner Constr. Co. v. United States, 367 F.3d 1319, 1321 (Fed. Cir. 2004) (citing United States v. Turner Constr. Co., 819 F.2d 283, 286 (Fed. Cir. 1987)); see also States Roofing Corp. v. Winter, 587 F.3d 1364, 1372 (Fed. Cir. 2009); Gardiner, Kamya & Assocs. v. Jackson, 467 F.3d 1348, 1352 (Fed. Cir. 2006); HPI/GSA-3C, LLC v. Perry, 364 F.3d 1327, 1334 (Fed. Cir. 2004). The Federal Circuit in Blue & Gold Fleet further held that “[u]nder the doctrine, where a government solicitation contains a patent ambiguity, the government contractor has ‘a duty to seek clarification from the government, and its failure to do so precludes acceptance of its interpretation’ in a subsequent action against the government.” Blue & Gold Fleet, L.P. v. United States, 492 F.3d at 1313 (alteration added) (quoting Stratos Mobile Networks USA, LLC v. United States, 213 F.3d at 1381 (quoting Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996))); see also Premier Off. Complex of 13 Parma, LLC v. United States, 134 Fed. Cl. 83, 88 (2017) (“A patent ambiguity is one that is ‘obvious, gross, [or] glaring.’” (alteration in original) (quoting H & M Moving, Inc. v. United