The solicitation for a contract to provide ferry services to Alcatraz Island stated questions had to be submitted in writing 30 days in advance of the due date for proposals where B&G did not submit any questions or raise objections prior to submission of proposals.  After the government selected Hornblower for award, B&G protested arguing the government erred in determining that Hornblower was financially viable because its wages and benefits for its employees were not in accordance with the Service Contracts Act.  The GAO dismissed the protest and two appeals courts upheld the GAO ruling asserting that the solicitation did not include any requirement that bidders consider the SCA so B&G’s assertion the SCA should have been applied amounted to a challenge to the solicitation itself. The fact there was no mention of the SCA in the solicitation amounted to a “patent error” and the Court, in ruling against B&G, stated “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” (Blue & Gold Fleet LP v US, Fed.Cir., No. 2006-5064).

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