Utech, Inc., Dba Endosoft v. United States, Provation Software, Inc.

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
UTECH, INC., DBA ENDOSOFT,
Plaintiff-Appellant
v.
UNITED STATES, PROVATION SOFTWARE, INC.,
Defendants-Appellees
______________________
2024-1586
______________________
Appeal from the United States Court of Federal Claims
in No. 1:22-cv-01452-MBH, Senior Judge Marian Blank
Horn.
______________________
Decided: June 24, 2026
______________________
ALAN G RAYSON, Indialantic, FL, argued for plaintiff-ap-
pellant.
G EOFFREY M. L ONG, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee United States.
Also represented by BRIAN M. BOYNTON, P ATRICIA M.
MCCARTHY , D OUGLAS K. MICKLE; ALEIA B ARLOW , SHAWN
L ARSON, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
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UTECH , INC. v. US 2
ALEX P. HONTOS , Dorsey & Whitney LLP, Minneapolis,
MN, argued for defendant-appellee Provation Software,
Inc.
______________________
Before P ROST , CUNNINGHAM , and STARK, Circuit Judges.
CUNNINGHAM , Circuit Judge.
Utech, Inc., d/b/a EndoSoft (“Utech”) appeals a decision
of the United States Court of Federal Claims dismissing all
claims of Utech’s bid protest complaint. Utech, Inc.
v. United States, 171 Fed. Cl. 58 (2024) (“Decision”). For
the reasons discussed below, we affirm.
I. BACKGROUND
This appeal concerns a post-award bid protest chal-
lenging a decision by the United States Department of Vet-
erans Affairs (“VA”) to award a contract for an endoscopy
information system (“EIS”) to appellee Provation Software,
Inc. (“Provation”). Decision at 60; J.A. 12342.
In January 2021, the VA issued Solicitation
No. 36C10G20Q0050 (“Solicitation”) seeking offers for an
“Indefinite Delivery-Indefinite Quantity (IDIQ) Brand
Name or Equal contract for an [EIS].” J.A. 10918; Decision
at 60. The Solicitation described the award as “VA-wide”
and “national.” J.A. 10926. Relevant to this appeal, the
Solicitation required submissions of proposed pricing for
various contract line items listed in a Price/Cost Schedule
(“Schedule”), J.A. 10945–59, explaining:
This is a Requirements contract for the supplies or
services specified, and effective for the period
stated, in the Schedule. The quantities of supplies
or services specified in the Schedule are estimates
only and are not purchased by this contract. Ex-
cept as this contract may otherwise provide, if the
Government’s requirements do not result in orders
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UTECH , INC. v. US 3
in the quantities described as “estimated” or “max-
imum” in the Schedule, that fact shall not consti-
tute the basis for an equitable price adjustment.
J.A. 10975; Decision at 62. The estimated quantities listed
in the Schedule are multiples or factors of 24.
J.A. 10945–59. The Solicitation also included a list of at
least 1481 VA medical facilities throughout the United
States. See J.A. 10914–15.
During bidding, the VA addressed questions posed by
potential bidders. J.A. 10905–08. Several questions re-
quested clarification about the number of sites and quanti-
ties required per the Schedule. Id. The VA responded to
one question, for example, that the Schedule was based off
of “[t]wenty-four (24) [sites] annually. The quantities pro-
vided are estimates only, and VA makes no guarantee re-
garding the actual quantities that may be purchased.”
J.A. 10905; Decision at 63–64.
Proposals were due on February 16, 2021. Decision
at 64. The VA received four proposals from: (1) Summit
Imaging Inc.; (2) Thundercat Technology, LLC; (3) Prova-
tion; and (4) Namtek Corp.2 Id. Utech did not submit its
1 The list of facilities included with the Solicitation
includes 148 facilities. J.A. 10914–15. Utech notes that
the entire VA health network has 151 locations and refers
to that number in its arguments. Appellant’s Br. 12 (citing
J.A. 10160–61, 10165); see Oral Arg. 08:13–08:28,
https://www.cafc.uscourts.gov/oral-arguments/24-1586_01
072026.mp3. The exact number makes no difference for
the purposes of this appeal other than the fact that both
148 and 151 are significantly more than 24.
2 Namtek submitted a bid offering the Utech brand
EIS, but Utech informed the VA prior to selection that
Namtek had been debarred and was thus no longer a viable
offeror. Decision at 64; J.A. 68 ¶¶ 21–22.
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UTECH , INC. v. US 4
own bid as a prime contractor. Id.; J.A. 68 ¶ 20. The VA
ultimately made an award to Provation effective Septem-
ber 29, 2022. Decision at 64; J.A. 12342.
After the bidding deadline but before the award, on
April 1, 2022, Utech filed an agency-level protest with the
VA, J.A. 71 ¶ 32, which was dismissed without reaching
the merits on May 6, 2022, id.; Decision at 65. Utech then
filed a protest at the United States Government Accounta-
bility Office, which was likewise dismissed on July 29,
2022. In re Utech, Inc.- dba EndoSoft, B-420755, 2022 WL
3026804, at *1 (Comp. Gen. July 29, 2022). On October 5,
2022, Utech filed a protest at the Court of Federal Claims
asserting three counts in its complaint. J.A. 53, 57–76.
In Count I, Utech argued that “[t]he agency decision to
characterize the contract award [ ] as universal and exclu-
sive throughout the VA health system . . . is: (a) contrary
to the terms of the Solicitation, or (b) a change so substan-
tial as to require re-solicitation, or (c) an out-of-scope or
‘cardinal’ change.” J.A. 72–73 ¶ 34. In Count II, Utech ar-
gued that “[t]he agency [ ] changed the evaluation proce-
dures in mid-stream . . . without amending the
Solicitation” or “allowing new offerors” and that the change
“would have had a material effect on [Utech’s] decision on
whether to submit a proposal.” J.A. 74 ¶ 38. In Count III,
Utech argued that “the ‘tier’ provision in the Solicitation
was no longer appropriate,” and “there was no rational ba-
sis to determine the contract price to be fair and reasona-
ble” because there was not “adequate competition to
support a contract award.” J.A. 75 ¶ 42.
The government and Provation filed motions to dismiss
Utech’s complaint under Court of Federal Claims Rules
12(b)(1)3 and 12(b)(6) on October 14, 2022. J.A. 53–54;
3 Following this court’s decision in CACI, Inc.-Fed-
eral v. United States, 67 F.4th 1145, 1151–52 (Fed. Cir.
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UTECH , INC. v. US 5
Decision at 66. The Court of Federal Claims determined
that (1) Utech was not an “interested party” under
28 U.S.C. § 1491(b)(1) because it chose not to submit a pro-
posal or protest the terms of the Solicitation before the due
date for proposals, Decision at 73–78, 93; (2) Utech failed
to sufficiently plead its cardinal change claim, id. at 78–80;
and (3) Utech had waived its opportunity to challenge the
language of the Solicitation under the Blue & Gold Fleet,
L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007)
waiver rule because Utech did not raise its challenge before
proposals were due, Decision at 80–93. The court accord-
ingly granted the government’s and Provation’s motions to
dismiss and dismissed all counts of Utech’s complaint for
failure to state a claim. Decision at 93.
Utech timely appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(3).
II. STANDARD OF REVIEW
We review de novo dismissal of a complaint for failure
to state a claim. Taylor v. United States, 959 F.3d 1081,
1086 (Fed. Cir. 2020) (citation omitted). “The complaint
must allege facts plausibly suggesting (not merely con-
sistent with) a showing of entitlement to relief.” Id. (inter-
nal quotation marks omitted) (quoting Palmyra Pac.
Seafoods, L.L.C. v. United States, 561 F.3d 1361, 1366–67
(Fed. Cir. 2009)). “[A]t this stage of the proceedings we
must accept the facts alleged in the complaint and draw all
2023), which held that the issue of statutory standing and
whether a party is an “interested party” under the Tucker
Act is not a jurisdictional question, the Court of Federal
Claims sua sponte considered the “motion[s] to dismiss on
standing grounds as motions to dismiss for failure to state
a claim.” Decision at 73.
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UTECH , INC. v. US 6
reasonable inferences in favor of the plaintiff[.]” Palmyra,
561 F.3d at 1366 (citation omitted).
We review de novo the legal conclusions of the Court of
Federal Claims. Stearns Co. v. United States, 396 F.3d
1354, 1357 (Fed. Cir. 2005). “We review determinations of
standing under the Tucker Act de novo.” Oak Grove Techs.,
LLC v. United States, 116 F.4th 1364, 1374 (Fed. Cir.
2024). Likewise, “[w]hether an ambiguity or defect is pa-
tent is an issue of law reviewed de novo.” M.R. Pittman
Grp., LLC v. United States, 68 F.4th 1275, 1283 (Fed. Cir.
2023) (quoting Per Aarsleff A/S v. United States, 829 F.3d
1303, 1312 (Fed. Cir. 2016)).
III. D ISCUSSION
Before this court, Utech argues that the Court of Fed-
eral Claims erred in dismissing its complaint for failure to
state a claim because (1) Utech is an “interested party” un-
der the Tucker Act and accordingly has statutory standing
to challenge the contract award, Appellant’s Br. 29–37; and
(2) Utech did not waive its opportunity to challenge the So-
licitation under Blue & Gold. Appellant’s Br. 37–52. We
address each argument in turn.
A.
Utech argues that it is an “interested party,” and there-
fore has statutory standing to challenge the contract award
under 28 U.S.C. § 1491(b)(1), because Utech is an “actual
or prospective offeror in the procurement of [EIS]” with the
“50+ VA locations it currently serves” and Utech indicated
that “it will bid on any reopening of this procurement.” Ap-
pellant’s Br. 30. We disagree.
Under the Tucker Act, the Court of Federal Claims has
“jurisdiction to render judgment on an action by an inter-
ested party objecting to a solicitation by a Federal agency
for bids or proposals for a proposed contract or to a pro-
posed award or the award of a contract . . . .” 28 U.S.C.
§ 1491(b)(1); see CACI, 67 F.4th at 1151. Only an
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UTECH , INC. v. US 7
“interested party” has “statutory standing” to challenge the
award of a contract at the Court of Federal Claims. CACI,
67 F.4th at 1152. An “interested party” is an “actual or pro-
spective bidder[ ] or offeror[ ] whose direct economic inter-
est would be affected by the award of the contract or by
failure to award the contract.” Id. at 1151 (alterations in
original) (quoting Rex Serv. Corp. v. United States,
448 F.3d 1305, 1307 (Fed. Cir. 2006)). “To prove a direct
economic interest, a party must show that it had a substan-
tial chance of winning the contract.” Id. (internal quotation
marks omitted) (quoting Digitalis Educ. Sols., Inc.
v. United States, 664 F.3d 1380, 1384 (Fed. Cir. 2012)).
The Court of Federal Claims did not err in its determi-
nation that Utech was not an “interested party.” It is un-
disputed that Utech “did not bid, and therefore, it is not an
‘actual bidder.’” Rex Serv., 448 F.3d at 1307; see Appel-
lant’s Br. 14; Government Br. 5; Provation Br. 3; Decision
at 64. Utech likewise is not a prospective bidder. “[T]he
opportunity to qualify either as an actual or prospective
bidder ends when the proposal period ends[.]” MCI Tele-
comms. Corp. v. United States, 878 F.2d 362, 365 (Fed. Cir.
1989) (construing “interested party” under 40 U.S.C.
§ 759(f)(9)(B) (repealed 1996)); see Rex Serv., 448 F.3d
at 1307 (applying the definition of “interested party” from
MCI to the Tucker Act). “[I]n order to be eligible to protest,
one who has not actually submitted an offer must be ex-
pecting to submit an offer prior to the closing date of the
solicitation.” MCI, 878 F.2d at 365 (emphasis omitted).
Thus, a “prospective bidder . . . does not include one who
only intends to bid in the event of a reprocurement.” Fed.
Data Corp. v. United States, 911 F.2d 699, 704 (Fed. Cir.
1990) (internal quotation marks omitted) (interpreting
40 U.S.C. § 759(f)(9)(B) (repealed 1996)). Utech neither bid
on the Solicitation nor filed a protest before the deadline to
submit proposals. See Appellant’s Br. 45; J.A. 71–72 ¶ 32;
Decision at 78 (noting Utech “did not file its protest at the
agency, and subsequently at the GAO, until approximately
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UTECH , INC. v. US 8
one year after the Solicitation’s stated deadline for pro-
posals”). Despite arguing it was “prevented from bidding,”
Appellant’s Br. 32, Utech had the opportunity to submit an
offer before the proposal period ended and chose not to do
so. See J.A. 67–68 ¶ 20 (Utech stating that its decision not
to submit its own proposal was due to weighing competitive
considerations and perceived limited scope of the contract).
Utech “believed that its limited competitive interest was
served by subcontracting to SDVOSBC Namtek, not by
submitting what appeared to be a futile proposal to seize
the prime contract.” Appellant’s Br. 14 n.20. “[B]ecause
[Utech] could have bid, but chose not to, it cannot be con-
sidered a prospective bidder.” Rex Serv., 448 F.3d at 1308.
To the extent that Utech argues it is a prospective bidder
because “it will bid on any reopening of this procurement,”
Appellant’s Br. 30, Utech’s “stated intention to submit a
proposal in response to any resolicitation . . . can do noth-
ing to create the necessary interested party status.” MCI,
878 F.2d at 365; see Fed. Data Corp., 911 F.2d at 704.
In sum, the Court of Federal Claims did not err in its
determination that Utech was not an “interested party”
and lacked statutory standing to assert Counts II and III
of its complaint.4 Decision at 78.
B.
Utech argues that Blue & Gold waiver does not apply
for two reasons: (1) Utech raised its protest at the appro-
priate time, Appellant’s Br. 45–50; and (2) the Solicitation
4 Regardless of Utech’s statutory standing to bring
Count I, Utech has waived its opportunity to bring the
Count I claim under Blue & Gold, as discussed infra. We
need not resolve statutory standing before addressing the
waiver issue because statutory standing is not a jurisdic-
tional issue. See CACI, 67 F.4th at 1152.
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was not patently ambiguous, id. 37–45. We address each
argument in turn.
i.
Utech argues that Blue & Gold waiver does not apply
because it filed its protest after the close of bidding but be-
fore an award was made. Appellant’s Br. 45. We disagree.
Blue & Gold waiver can apply when a party files its
protest after the close of bidding but before an award was
made. In Blue & Gold, we held:
[A] party who has the opportunity to object to the
terms of a government solicitation containing a pa-
tent 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.
492 F.3d at 1313. Blue & Gold involved a protestor who
filed a protest after award of the contract. Id. at 1311–12.
However, the subsequent “extension” of Blue & Gold to “all
situations in which the protesting party had the oppor-
tunity to challenge a solicitation before the award and
failed to do so” indicates that the “close of the bidding pro-
cess” means the deadline to submit bids. COMINT Sys.
Corp. v. United States, 700 F.3d 1377, 1382 (Fed. Cir.
2012). Rather than curtailing Blue & Gold’s applicability
by holding that a protest is not waived if it is filed between
the close of bidding and the award, COMINT expanded
Blue & Gold’s applicability even to situations in which a
party may not have had the opportunity to challenge a pro-
vision in a solicitation before the close of bidding but nev-
ertheless delayed post-closing of the bidding process.
COMINT, 700 F.3d at 1382–83.
Unlike COMINT, in which an amendment issued be-
tween the close of bidding and award of the contract, id.
at 1380, 1382–83, Utech had the opportunity to object to
the Solicitation prior to the close of bidding but did not. See
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UTECH , INC. v. US 10
J.A. 67–68 ¶ 20. Because we hold that Blue & Gold waiver
can apply, we turn to whether it does, namely, whether the
Solicitation “contain[s] a patent error.” Blue & Gold,
492 F.3d at 1313.
ii.
Utech’s Count I “[c]hange in [s]cope,” J.A. 72, or “cardi-
nal change” claim5 relies on its argument that the scope of
the contract was limited to 24 VA medical centers but was
later extended to 151 locations across the country. Appel-
lant’s Br. 39. Utech argues that it did not waive its claim
under Blue & Gold because: (1) the Solicitation is either
“unambiguously [ ] not universal and exclusive;”6 or, alter-
natively, (2) there is a “latent ambiguity” and not a “patent
ambiguity.” Appellant’s Br. 38. We disagree.
Any ambiguity in the Solicitation was patent, and
Utech waived its claim under Blue & Gold. Waiver based
on the patent ambiguity doctrine applies “against [the
party] challenging the terms of a government solicitation.”
5 A cardinal change “is a drastic modification beyond
the scope of the contract.” Krygoski Constr. Co. v. United
States, 94 F.3d 1537, 1543 (Fed. Cir. 1996). Similarly, in
the bid protest context, modifications exceed the scope of
the contract when “[g]overnment modifications change[ ]
the contract enough to circumvent the statutory require-
ment of competition.” AT & T Commc’ns Inc. v. Wiltel, Inc.,
1 F.3d 1201, 1205 (Fed. Cir. 1993). The inquiry focuses on
“whether the modification is within the scope of the compe-
tition conducted to achieve the original contract.” Id.
6 Utech argues that there is no error in the contract
because the Solicitation was unambiguously limited to 24
VA centers and “not universal and exclusive.” Appellant’s
Br. 38–39; id. at 41–42. Utech is incorrect. As discussed
below, the Solicitation is ambiguous (and, we find, patently
so) as to the quantity of sites to be served.
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Blue & Gold, 492 F.3d at 1314. “Under the doctrine, where
a government solicitation contains a patent ambiguity, the
[party challenging the solicitation] has a duty to seek clar-
ification from the government, and its failure to do so pre-
cludes acceptance of its interpretation in a subsequent
action against the government.” Id. at 1313 (cleaned up).
“Solicitation language is ambiguous if its language is sus-
ceptible to more than one reasonable interpretation.” Per
Aarsleff A/S v. United States, 829 F.3d 1303, 1310
(Fed. Cir. 2016) (cleaned up). “A patent ambiguity is pre-
sent when the contract contains facially inconsistent provi-
sions that would place a reasonable contractor on notice
and prompt the contractor to rectify the inconsistency by
inquiring of the appropriate parties.” Stratos Mobile Net-
works USA, LLC v. United States, 213 F.3d 1375, 1381
(Fed. Cir. 2000). By contrast, a “latent ambiguity is a hid-
den or concealed defect which is not apparent on the face of
the document, could not be discovered by reasonable and
customary care, and is not so patent and glaring as to im-
pose an affirmative duty on [a contractor] to seek clarifica-
tion.” Per Aarsleff, 829 F.3d at 1312 (quoting Analytical &
Rsch. Tech., Inc. v. United States, 39 Fed. Cl. 34, 46
(1997)). If the ambiguity in the Solicitation were latent,
then waiver does not apply. COMINT, 700 F.3d at 1382
& n.5. If the ambiguity were patent, then Utech waived its
protest ground by failing to raise the issue before the close
of the bidding process. Blue & Gold, 492 F.3d at 1313.
We conclude that any ambiguity was patent, and thus
Utech waived its claim under Blue & Gold. Utech specifi-
cally argues that, although the Solicitation allows for the
contract to be extended from one year up to four more
years, J.A. 10928 § 3.2; J.A. 10928–29 § 3.6, the services
provided for those five years would be limited to the same
24 legacy sites, Oral Arg. 01:50–02:28. In other words,
Utech argues that the 24 legacy sites are the ceiling of what
is covered by the contract. Oral Arg. 04:54–05:44 (explain-
ing that the Solicitation only allows for “[u]p to that many”
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UTECH , INC. v. US 12
sites). In support of this interpretation, the Schedule in-
cluded items in factors and multiples of 24, J.A. 10945–59,
and several provisions in the Solicitation involved migra-
tion of existing endoscopy data from legacy sites, see Appel-
lant’s Br. 8–10. Section 4.3, for example, required support
for migration for those sites using the Olympus EndoWorks
system, J.A. 10622–23 § 4.3, which Utech argues was only
potentially necessary at 24 locations, Appellant’s Br. 5–
6 n.6; id. at 42. Salient Characteristic 6 for potential con-
tractors likewise required data migration capabilities.
J.A. 10926–27 § 2.0.
However, even though some of the Solicitation pointed
to 24 sites, other language was facially inconsistent with
Utech’s interpretation of the Solicitation as establishing a
maximum of 24 sites and would have put a reasonable con-
tractor on notice to inquire about those inconsistencies.
The Solicitation described the EIS as “VA-wide” and “na-
tional,” J.A. 10926, and the Solicitation included as an at-
tachment a list of 148 or 151 centers across the country,
Oral Arg. 08:13–34 (discussing 151 centers); J.A. 10914–15
(identifying 148 centers). The Solicitation also indicated
that the contract was a “Requirements contract” and quan-
tities listed in the Schedule were “estimates,” J.A. 10975,
as explained in the Q&A incorporated into the Solicitation.
J.A. 10905–08; see, e.g., J.A. 10908 (“You should provide a
proposal that meets the requirement for Twenty[-]four (24)
VA Facilities annually. The quantities provided are esti-
mates only[.]”). Additionally, the government’s answers in
the Q&A stated that the quantity for one item (CLIN 0021)
“increases by 24 each year,” J.A. 10907, and that the Sched-
ule was based off “[t]wenty[-]four (24) annually,”
J.A. 10905. The combination of the Solicitation’s inclusion
of four additional option years, J.A. 10928–29, with lan-
guage about annual estimates of 24 leads to an alternative
reasonable interpretation of the estimated quantity to be
potentially 120 sites (24 × 5). Put another way, the Solici-
tation could reasonably be read to cover an estimate of 24
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UTECH , INC. v. US 13
different sites for each of the option years, not merely the
same 24 sites repeatedly. Other than pointing to the 24
legacy facilities on the facilities list, Utech was unable to
provide a citation to a section of the Solicitation that indi-
cated unambiguously that the 24 sites were meant to be a
maximum limiting the government rather than a mini-
mum annual estimated capability required of the contrac-
tor. Oral Arg. 50:26–52:11.
A reasonable contractor would have been on notice of
the parts of the Solicitation that were inconsistent with an
interpretation that the contract was limited to exclusively
the 24 legacy locations and would have been
“prompt[ed] . . . to rectify the inconsistency by inquiring of
the appropriate parties.” Stratos, 213 F.3d at 1381. In-
deed, multiple potential offerors did inquire about the
number of sites to be served, J.A. 10905–08, a fact support-
ing a determination that the Solicitation contained a pa-
tent ambiguity, see Per Aarsleff, 829 F.3d at 1312–13.
Because any ambiguity in the Solicitation was patent, and
because Utech did not raise its protest ground before the
close of the bidding process, Utech waived its right to assert
Count I.7 Blue & Gold, 492 F.3d at 1313.
IV. CONCLUSION
We have considered Utech’s remaining arguments and
find them unpersuasive. For the foregoing reasons, we af-
firm.
AFFIRMED
7 As to Utech’s argument that Blue & Gold should
not apply when “a challenge rests on a statute or regulation
that is protective of the contractor,” Appellant’s Br. 50–51,
Utech fails to cite any controlling authority for this propo-
sition, and we decline to create an exception to Blue & Gold
in this case.
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