United States Court of Appeals for the Federal Circuit ______________________

M.R. PITTMAN GROUP, LLC, Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee ______________________

2021-2325 ______________________

Appeal from the United States Court of Federal Claims in No. 1:21-cv-01397-CFL, Senior Judge Charles F. Lettow. ______________________

Decided: May 22, 2023 ______________________

JONATHAN S. FORESTER, Riess LeMieux, LLC, New Or- leans, LA, for plaintiff-appellant. Also represented by CHRISTOPHER K. LEMIEUX.

GALINA I. FOMENKOVA, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for defendant-appellee. Also represented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY. ______________________

Before DYK, TARANTO, and HUGHES, Circuit Judges. HUGHES, Circuit Judge. Case: 21-2325 Document: 33 Page: 2 Filed: 05/22/2023

2 M.R. PITTMAN GROUP, LLC v. US

M.R. Pittman Group, LLC appeals a decision of the United States Court of Federal Claims dismissing M.R. Pittman’s bid protest under Court of Federal Claims Rule 12(h)(3) for lack of subject matter jurisdiction. The Court of Federal Claims determined, pursuant to the Blue & Gold waiver rule, that M.R. Pittman waived its protest when it failed to object prior to the close of the bidding process. We hold that waiver under Blue & Gold does not deprive the Court of Federal Claims of subject matter jurisdiction, making dismissal of M.R. Pittman’s claim improper under Rule 12(h)(3). That error was harmless, however, because dismissal was proper under Court of Federal Claims Rule 12(b)(6). Consequently, we affirm. I M.R. Pittman Group, LLC filed suit in the United States Court of Federal Claims in May of 2021, protesting the United States Army Corps of Engineers’ (USACE) award of a contract for the repair of pump units in Louisi- ana. The USACE issued Solicitation No. W912P820B0063 on December 21, 2020 for the repair of pump units at Wil- kinson Canal Pump Station in Plaquemines Parish, Loui- siana. Pump stations, such as the one at issue, protect Louisiana residents and infrastructure during hurricane season and other times of significant flooding. At the time of the solicitation, the pump station was only operating at 50% capacity. The USACE posted the solicitation for the repair of these pump units on beta.SAM.gov, the government-wide point of entry providing electronic access to “[g]overnment business opportunities greater than $25,000.” The webpage with the link to the solicitation noted, “[t]his is a 100% Small Business Set Aside procurement. All Small Business concerns representing itself as Case: 21-2325 Document: 33 Page: 3 Filed: 05/22/2023

M.R. PITTMAN GROUP, LLC v. US 3

such . . . under NAICS Code: 811310 may submit offers.” 1 J.A. 2 (emphasis original); J.A. 256. The solicitation itself did not include a reference to NAICS Code 811310. It did, however, incorporate by reference Federal Acquisition Reg- ulation (FAR) 52.219-6—titled “Notice Of Total Small Business Set-Aside”—which warns that “[o]ffers are solic- ited only from small business concerns,” and “[a]ny award resulting from this solicitation will be made to a small busi- ness concern.” J.A. 2–3; J.A. 61. Bids were due on January 20, 2021. M.R. Pittman submitted a bid on that date and was the lowest bidder out of the four companies that submitted bids. The USACE informed M.R. Pittman that the contract was set aside for a small business under NAICS Code 811310 and requested that M.R. Pi