Per Aarsleff A/s v. United States, Exelis Services A/s

United States Court of Appeals
for the Federal Circuit
______________________
PER AARSLEFF A/S,
Plaintiff-Appellee
COPENHAGEN ARCTIC A/S, GREENLAND
CONTRACTORS I/S,
Plaintiffs-Cross-Appellants
v.
UNITED STATES, EXELIS SERVICES A/S,
Defendants-Appellants
______________________
2015-5111, 2015-5112, 2015-5135, 2015-5143
______________________
Appeals from the United States Court of Federal
Claims in Nos. 1:15-cv-00215-CFL, 1:15-cv-00272-CFL,
1:15-cv-00330-CFL, Judge Charles F. Lettow.
______________________
Decided: June 23, 2016
______________________
J AMES Y. BOLAND, Venable LLP, Tysons Corner, VA,
argued for plaintiff-appellee. Also represented by P AUL A.
D EBOLT , Washington, DC.
K EVIN J OSEPH COSGROVE, Hunton & Williams LLP,
Norfolk, VA, argued for plaintiff-cross-appellant Copen-
hagen Arctic A/S.

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PER AARSLEFF A/S v. US 2
MICHAEL J. A NSTETT , Fried, Frank, Harris, Shriver &
Jacobson LLP, Washington, DC, argued for plaintiff-cross-
appellant Greenland Contractors I/S. Also represented by
J AMES J. MCCULLOUGH , AARON T. T UCKER.
WILLIAM P ORTER RAYEL , Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellant
United States. Also represented by BENJAMIN C. M IZER,
ROBERT E. K IRSCHMAN, J R., SCOTT D. AUSTIN.
K EVIN P. CONNELLY , Vedder Price P.C., Washington,
DC, argued for defendant-appellant Exelis Services A/S.
Also represented by K ELLY E. BUROKER ; CAROLINE A.
K ELLER , Jenner & Block LLP, Washington, DC.
______________________
Before REYNA, WALLACH , and HUGHES , Circuit Judges.
Opinion for the court filed by Circuit Judge WALLACH .
Concurring opinion filed by Circuit Judge R EYNA.
WALLACH , Circuit Judge.
In this government contract bid protest appeal, three
unsuccessful bidders challenged the decision of the United
States Department of the Air Force Space Command (“Air
Force”) to award a contract to the successful bidder,
Exelis Services A/S (“Exelis”), for the operation and
maintenance of an Air Force base in Greenland. The
United States Court of Federal Claims (“Claims Court”)
granted the challengers’ motions for judgment on the
administrative record and enjoined the Air Force from
proceeding under the contract with Exelis. The Claims
Court found the award to Exelis—a wholly-owned subsid-
iary of a U.S.-based company—was contrary to the terms
of the bid solicitation, which required that bidders “not be
registered as a subsidiary of [a] foreign [i.e., non-Danish]

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PER AARSLEFF A/S v. US 3
company.” Per Aarsleff A/S v. United States, 121 Fed. Cl.
603, 612 (2015) (capitalization omitted). Because we
conclude Exelis satisfied the disputed eligibility term of
the bid solicitation, as properly interpreted, we reverse.
BACKGROUND
Thule Air Base is a United States Air Force base situ-
ated in a remote area of northwestern Greenland, a
largely self-governing entity of the Kingdom of Denmark
(“Denmark”). Exceptions to Greenland’s self-governance
include foreign policy and defense, which remain under
the control of the Danish government. In 1951, the Unit-
ed States and Denmark entered into an agreement that
led to the establishment of the Thule Air Base and pro-
vided the United States rent-free use of the land on which
the base is situated. A 1991 Memorandum of Under-
standing between the United States and Denmark, as
amended following discussions in 2008 and 2009, provides
that “either [p]arty may award contracts to commercial
enterprises for goods and services, including construction
projects, in Greenland, and shall procure directly from
Danish/Greenlandic sources” whenever “feasible.” Id. at
609 (citation omitted).
In 2013, the Air Force and United States Department
of State (“State Department”) entered into negotiations
with the Danish Ministry of Finance to consider what
criteria would be used to appropriately classify an entity
as “Danish/Greenlandic” for the Thule Air Base bid solici-
tation. Following an expression of concern by the Danish
Ministry of Foreign Affairs that an eligibility determina-
tion by the Danish government could be problematic
under European Union procurement regulations,1 it was
1 The Air Force’s Contracting Officer explained, in
his Statement of Facts, his understanding that [[confiden-
tial information redacted]]. J.A. 100673.

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PER AARSLEFF A/S v. US 4
suggested that Greenland, which was not a European
Union member, take the lead in eligibility criteria formu-
lation. However, because the government of Greenland
was a partial owner of Greenland Contractors I/S (“Green-
land Contractors”), the incumbent contractor supporting
Thule Air Base, an eligibility determination by the gov-
ernment of Greenland would create a conflict of interest.
Id. The State Department therefore decided to itself
establish a “simple, transparent checklist of require-
ments” to determine eligibility. Id. at 610 (internal
quotation marks and citation omitted).
During the course of this effort, [[name redacted]], a
State Department employee stationed at the U.S. Embas-
sy in Denmark, informed the Air Force contracting officer
by email that “[i]n the searchable part of the CVR [Det
Central Virksomhedsregister, i.e., the Danish central
business register] there is an information point called
‘type of company/virksomhedsform’ that [has] ‘subsidiary
of foreign company’ as a possibility, so there is a way to
see if the company is fully registered as Danish or acting
as a foreign subsidiary in Denmark.” J.A. 25, 128251. As
a result, the Air Force was under the belief, later shown
to be mistaken, that the CVR provided a ready means for
determining whether a company was a subsidiary of a
foreign company. According to Copenhagen Arctic A/S
(“Copenhagen Arctic”), one of the three unsuccessful
bidders, the CVR contained an option to indicate whether
a firm was registering as “[f]ilialer af udenlandske aktie-
selskaber (in English: [b]ranch of a foreign owned public
limited company).” Per Aarsleff, 121 Fed. Cl. at 610 n.8
(emphasis added). Greenland Contractors asserts the
State Department employee, [[name redacted]], “appears
to have mistranslated the word ‘filial’ in Danish to mean
‘subsidiary,’ when that word in fact means ‘branch’ or
‘branch office.’” Corrected Confidential Opening and
Response Brief of Cross-Appellant Greenland Contractors
I/S (“Greenland Contractors Br.”) 10 (footnote omitted).

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PER AARSLEFF A/S v. US 5
The Air Force issued a draft solicitation specifying, as
a condition of eligibility, that bidders provide a
[c]orporation certificate (Selskabscertifikat m. ob-
lat) verifying that your company is registered as a
business in the Kingdom of Denmark. (Det Cen-
tral Virksomhedsregister (CVR); Det Grønlandske
Erhervsregister (GER); Skráseting Føroya (Skrás.
Nr.)) NOTE: THE REGISTERED OFFICE OF
THE ENTERPRISE SHALL BE IN THE
KINGDOM OF DENMARK AND SHALL NOT
BE REGISTERED AS A SUBSIDIARY OF
FOREIGN COMPANY.
Per Aarsleff, 121 Fed. Cl. at 611–12. The draft solicitation
further required a “[s]igned letter from an officer of a
bank within the Kingdom of Denmark verifying that your
company conducts business with that institution.” Id. at
612.
When a potential bidder asked “[w]hat do you mean
by ‘not be registered’?,” id., the Air Force posted the
following answer, which echoed the email of the State
Department employee, [[name redacted]]: “In the search-
able part of the CVR [] there is an information point
called ‘type of company/virksomhedsform’ that has ‘sub-
sidiary of foreign company’ as a possibility, so there is a
way to see if the company is fully registered as Danish or
acting as a foreign subsidiary in Denmark.” Per Aarsleff
A/S (Per Aarsleff (GAO)), B-41 0782 et al., 2015 WL
1004252, at *8 (Comp. Gen. Feb. 18, 2015). When an
Exelis partner asked whether a company would be eligible
to bid if it is a “Danish registered company . . . owned by a
foreign company but” can show “[i]n the CVR register [it]
is registered as a[n] A/S[2] (limited company),” the Air
2 “A/S” is an abbreviation for “Aktieselskab,” or
Danish limited company. J.A. 32.

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PER AARSLEFF A/S v. US 6
Force replied by copying the eligibility requirements set
forth in the draft solicitation and did not answer the
question directly. Per Aarsleff, 121 Fed. Cl. at 612 (foot-
noted added). The final solicitation contained the same
requirements set forth in the draft solicitation.
Four bidders—Per Aarsleff A/S (“Per Aarsleff”), Co-
penhagen Arctic, Exelis, and incumbent Greenland Con-
tractors—each submitted a bid in response to the final
solicitation. Exelis, a wholly-owned Danish subsidiary of
United States-based Vectrus Systems Corporation (“Vec-
trus”), submitted the lowest bid and was awarded the
contract. The three unsuccessful bidders each filed pro-
tests with the Government Accountability Office (“GAO”),
asserting Exelis “was incorporated in Denmark only
shortly before proposal submission and is a wholly-owned
subsidiary of Excelis Systems Corporation [now known as
Vectrus], a United States based company.” Per Aarsleff
(GAO), 2015 WL 1004252, at *6. The GAO denied the
protests, id. at *16, concluding the solicitation “was clear
on its face as to the issue of registration” and that “noth-
ing in the solicitation provides for consideration of [own-
ership or control],” id. at *8. It noted the Air Force’s
answers to the questions posed by prospective bidders
made clear “that the Air Force believed that there was
within the CVR a place for a firm to indicate that a firm
was a subsidiary of a foreign firm.” Id. The GAO further
stated that “[e]ven if the solicitation was ambiguous as to
the registration requirement” it would have had to have
been challenged “prior to the solicitation of bids,” and the
protesters challenge was therefore untimely. Id. at *9
n.11.
Following the GAO decision, the three unsuccessful
bidders filed separate complaints in the Claims Court,
challenging the Air Force’s award of the contract to Ex-
elis. Per Aarsleff, 121 Fed. Cl. at 620. The Claims Court
granted the plaintiffs’ motions for judgment on the admin-
istrative record. Id. at 636. It found the eligibility crite-

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PER AARSLEFF A/S v. US 7
ria specified in the final solicitation “defect[ive]” and
further found the GAO’s interpretation contrary to the
“evident intent of the procuring agency.” Id. at 625. The
Claims Court concluded that “[s]ome recasting of the
[solicitation] language” was “necessary” in order to avoid
an interpretation that would allow a foreign company to
qualify by creating a Danish subsidiary. Id. Such an
outcome, the Claims Court found, would render the
registration provision “illusory” and was therefore unrea-
sonable. Id. To the extent the provision was ambiguous
or reflected a lack of clarity, the Claims Court noted, the
doctrine of contra proferentem (“against the offeror”)
places the risk of such drafting errors on the drafter and
“‘saves contractors from hidden traps not of their own
making.’” Id. at 628 (quoting Metcalf Const. Co. v. United
States, 53 Fed. Cl. 617, 629 (2002)). The Claims Court
concluded the only reasonable interpretation of the solici-
tation language was “that Danish subsidiaries of foreign
entities did not qualify as eligible.” Id. at 627. According-
ly, the Claims Court set aside the contract with Exelis
and enjoined the Air Force from “proceeding with th[e]
contract.” Id. at 636.
On appeal, Exelis argues the Air Force “rationally de-
termined that Exelis [] was eligible for award of the Thule
[Air Base contract] under the [solicitation’s] plain and
unambiguous eligibility requirements,” and that the
Claims Court erred in concluding otherwise. Non-
Confidential Opening Brief of Defendant-Appellant Exelis
Services A/S 33 (capitalization omitted). The United
States takes a similar position, arguing the Claims Court
“erred by re-writing the unambiguous language of the
solicitation to add a non-existent ownership requirement.”
Brief for Defendant-Appellant United States (“United
States Br.”) 24 (capitalization omitted). By contrast, the
three unsuccessful bidders argue the Claims Court cor-
rectly interpreted the solicitation language and found that
Exelis did not meet the eligibility requirements. See, e.g.,

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PER AARSLEFF A/S v. US 8
Greenland Contractors Br. 24 (“The trial court properly
determined that the Air Force failed to comply with the
[solicitation’s] eligibility requirement.” (capitalization
omitted)); Copenhagen Arctic A/S’ Confidential Principal
Cross-Appeal and Response to Defendants-Appellants’
Opening Briefs (“Copenhagen Arctic Br.”) 20 (“The trial
court’s decision to excise the ‘registered as’ language from
the solicitation was not only correct—it was required.”
(capitalization omitted)); Brief of Plaintiff-Appellee Per
Aarsleff (“Per Aarsleff Br.”) 19 (“The Claims Court cor-
rectly interpreted [the solicitation] and properly held that
the Air Force’s award violated the eligibility restriction.”
(capitalization modified)). This court has jurisdiction over
final decisions of the Claims Court pursuant to 28 U.S.C.
§ 1295(a)(3) (2012).
D ISCUSSION
I. Standards of Review
Protests of agency procurement decisions are re-
viewed under the standards set forth in the Administra-
tive Procedure Act (“APA”), see 28 U.S.C. § 1491(b)(4)
(citing 5 U.S.C. § 706), “by which an agency’s decision is to
be set aside only if it is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” NVT
Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed.
Cir. 2004) (internal quotation marks omitted); see also
PAI Corp. v. United States, 614 F.3d 1347, 1351 (Fed. Cir.
2010) (A court “must sustain an agency action unless the
action does not evince rational reasoning and considera-
tion of relevant factors.” (internal quotation marks, cita-
tion, and alterations omitted)). “This court reviews the
trial court’s determination on the legal issue of the gov-
ernment’s conduct, in a grant of judgment upon the
administrative record, without deference.” Bannum, Inc.
v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005).
That is, we review anew the question of whether the
procurement decision of the Air Force was arbitrary and

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PER AARSLEFF A/S v. US 9
capricious under the APA. See PAI Corp., 614 F.3d at
1351. “Interpretation of [a bid] solicitation is a question
of law” that is reviewed de novo. Banknote Corp. of Am. v.
United States, 365 F.3d 1345, 1353 (Fed. Cir. 2004).
II. The Claims Court Erred in Its Interpretation of the
Solicitation Language
The Air Force issued a final solicitation, including an
eligibility provision which stated:
L–3. OFFEROR ELIGIBILITY
Participation in this acquisition is limited to Dan-
ish/Greenlandic enterprises. Enterprises must
possess a corporation certificate (Selskabscertif-
ikat m. oblat) verifying the company is registered
as a business in the Kingdom of Denmark . . . .
NOTE: THE REGISTERED OFFICE OF THE
ENTERPRISE SHALL BE IN THE KINGDOM
OF DENMARK AND SHALL NOT BE
REGISTERED AS A SUBSIDIARY OF FOREIGN
COMPANY. . . .
Per Aarsleff, 121 Fed. Cl. at 613–14. The Claims Court
interpreted this language to mean “that Danish subsidiar-
ies of foreign entities did not qualify as eligible.” Id. at
627. It noted the acknowledgment by the Air Force that
“there is not, in fact, a way to register as a subsidiary of
[a] foreign company in the CVR,” id. at 625 (internal
quotation marks and citations omitted), and reasoned
that because “it was impossible to register as a foreign-
owned subsidiary in the CVR,” id. at 629, the eligibility
provision would lack “any significant meaning” if it were
interpreted to allow “foreign entities [to] create Danish
subsidiaries prior to submission of a proposal and then
qualify for an award,” id. at 625.
We have previously explained the legal framework
when interpretation of a term in a bid solicitation is
contested:

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PER AARSLEFF A/S v. US 10
We begin with the plain language of the docu-
ment. The solicitation is ambiguous only if its
language is susceptible to more than one reasona-
ble interpretation. If the provisions of the solicita-
tion are clear and unambiguous, they must be
given their plain and ordinary meaning; we may
not resort to extrinsic evidence to interpret them.
Finally, we must consider the solicitation as a
whole, interpreting it in a manner that harmoniz-
es and gives reasonable meaning to all of its pro-
visions.
Banknote Corp. of Am., 365 F.3d at 1353 (emphases
added) (citations and footnote omitted). It is to this
framework that we now turn.
A. The Eligibility Provision Itself Is Ambiguous
Solicitation language “is ambiguous . . . if its language
is susceptible to more than one reasonable interpreta-
tion.” Id. Here, the phrase “shall not be registered as a
subsidiary of a foreign company,” Per Aarsleff, 121 Fed.
Cl. at 614 (capitalization omitted), could reasonably be
interpreted to have at least two meanings. First, it could
mean that bidders are ineligible if the registration in the
CVR facially indicates that the business is a subsidiary of
a foreign company. Under this interpretation, “registered
as” indicates the registrant actively indicated, such as by
checking a box in the CVR, that it was a subsidiary of a
foreign company. Second, a company could be “registered
as a subsidiary of a foreign company” if it is registered in
the CVR and also a subsidiary of a foreign company,
whether or not subsidiary status was affirmatively indi-
cated at the time of registration and whether or not that
status is apparent from inspecting the CVR after registra-
tion.
The presence of ambiguity is demonstrated by the
inquiries received during the solicitation process. See Per
Aarsleff (GAO), 2015 WL 1004252, at *8 (“What do you

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PER AARSLEFF A/S v. US 11
mean by ‘not be registered’?”); id. (“Please provide further
clarification as to what a ‘Danish Enterprise’ is as will be
interpreted by the US Air Force?”). These inquiries show
that potential bidders were uncertain as to how the Air
Force intended to interpret the eligibility language. Both
the GAO and the Claims Court concluded, incorrectly, the
eligibility provision was not ambiguous, but each recog-
nized the language was problematic. See id. (concluding
“the [solicitation] was clear on its face as to the issue of
registration in the CVR” but noting that “[e]ven if there
was some doubt as to the meaning of this [solicitation]
provision . . . , the Air Force provided two Q & As that
removed all doubt as to how the agency interpreted the
provision”); Per Aarsleff, 121 Fed. Cl. at 628 & n.35 (find-
ing “[t]he language in the [s]olicitation was not ambigu-
ous but rather was defective,” but also discussing the
doctrines of patent ambiguity and contra proferentem,
which address situations where ambiguity is present). To
the extent the Claims Court concluded the language of the
eligibility provision itself was not ambiguous, it erred.3
3 In reaching its decision, the Claims Court consid-
ered two documents that were not before the Air Force
when it awarded the contract to Exelis on October 31,
2014: (1) the declaration of Ambassador Jonas Bering
Liisberg, Danish Under–Secretary for Legal Affairs (Mar.
2, 2015) (“Liisberg Declaration”) (J.A. 220–31); and (2)
and the Joint Statement of the United States and the
Kingdom of Denmark on the Resolution of the Thule Base
Maintenance Contract Acquisition Matter (Mar. 2015)
(“Joint Statement”) (J.A. 690). See, e.g., Per Aarsleff, 121
Fed. Cl. at 611, 618, 626 (citing the Liisberg Declaration);
id. at 608–09 & n.6, 618, 626 n.32 (citing the Joint State-
ment). Notably, the Claims Court considered these doc-
uments without first “determin[ing] whether
supplementation of the record was necessary in order not

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PER AARSLEFF A/S v. US 12
B. A Question and Answer Clarified the Meaning of the
Eligibility Provision
One question and answer removed the ambiguity
present in the eligibility provision of the solicitation
agreement. When the Air Force was asked “‘What do you
mean by ‘not be registered’?,” it posted a response stating
“[i]n the searchable part of the CVR there is an infor-
mation point called ‘type of company/virksomhedsform’
that has ‘subsidiary of foreign company’ as a possibility,
so there is a way to see if the company is fully registered
as Danish or acting as a foreign subsidiary in Denmark.”
Id. at 612. This answer directly resolved the ambiguity,
clarifying that the provision refers to whether the CVR
facially indicates the company is a subsidiary of a foreign
company. See J.A. 101535 (showing a drop-down menu in
the CVR where registrants could select from among, e.g.,
“A.M.B.A.” (share company with limited liability), “Inter-
essentskab” (partnership) or “Filial af udenlandsk virk-
somhed” (branch of a foreign company)). Because the
relevant question and answer was incorporated into the
final March 2014 solicitation, it is part of the final solici-
‘to frustrate effective judicial review.’” Axiom Res. Mgmt.,
Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009)
(quoting Camp v. Pitts, 411 U.S. 138, 142–43 (1973)); see
also id. at 1380 (“The purpose of limiting review to the
record actually before the agency is to guard against
courts using new evidence to ‘convert the “arbitrary and
capricious” standard into effectively de novo review.’”
(quoting Murakami v. United States, 46 Fed. Cl. 731, 735
(2000))). Although we reverse the Claims Court based
upon its erroneous interpretation of the contract lan-
guage, we note this court has previously found abuse of
discretion where a trial court allowed supplementation of
the record without first making the required determina-
tion. Id. at 1381.

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PER AARSLEFF A/S v. US 13
tation.4 See BayFirst Sols., LLC v. United States, 102
Fed. Cl. 677, 689 n.15 (2012) (“[A]nswers [to bidder’s
questions], when circulated to all [bidders] as an attach-
ment to an amendment signed by the contracting officer,
constitute an amendment of the solicitation.”).
We have stated that “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 interpreta-
tion in a subsequent action against the government.”
Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308,
1313 (Fed. Cir. 2007) (internal quotation marks and
citation omitted). Under Blue & Gold Fleet, the questions
and answers posed during an agency solicitation therefore
play a central role in the interpretation of the solicitation
provisions. In the present matter, they are controlling.
We hold the disputed eligibility provision, when properly
interpreted, refers to whether the CVR facially indicates
the company is a subsidiary of a foreign company.
III. Exelis Was Eligible Under the Terms of the Solicita-
tion
Given that the eligibility provision, as clarified in
the Air Force’s answer to a potential bidder’s question,
refers to whether the CVR facially indicates the company
is a subsidiary of a foreign company, Exelis was eligible.
4 There appears to be no dispute that the question
and answer were incorporated into the final solicitation.
See, e.g., United States Br. 11 (“These questions and
answers were included verbatim in the March 2014
solicitation.” (citing J.A. 105469.38–.39)); Greenland
Contractors Br. 9 (“The Q&A response was also published
as part of the [solicitation] and, thereby, incorporated into
the [solicitation].” (citing J.A. 105469.38)).

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PER AARSLEFF A/S v. US 14
The Claims Court found, and the unsuccessful bidders do
not contest, that Exelis’s
proposal included: (1) a certificate from the Dan-
ish Business Authority certifying Exelis Services
as a legally registered public limited company in
Denmark with a report documenting its registra-
tion; and (2) a letter signed by a Danish bank con-
firming a business relationship with Exelis
Services and stating that the account was satis-
factorily maintained.
Per Aarsleff, 121 Fed. Cl. at 617 n.21. These are the
documents required under the eligibility provisions. See
id. at 614. As the GAO correctly noted, although the
unsuccessful bidders seek “to add the issue of ownership
or control to the [solicitation], nothing in the solicitation
provides for consideration of these criteria.” Per Aarsleff
(GAO), 2015 WL 1004252, at *8. Critically, there is
nothing in the CVR that facially indicates Exelis is a
subsidiary of a foreign company because, as the three
unsuccessful bidders concede, it was impossible for the
CVR to facially indicate such status. See Copenhagen
Arctic Br. 30–31; Greenland Contractors Br. 9; Per
Aarsleff Br. 14.
While it is true that any company could meet the eli-
gibility criterion by simply registering in Denmark, the
record indicates the Danish Ministry of Foreign Affairs
was aware of the relative ease of corporate registration.
According to an email by [[name redacted]], a State De-
partment employee, [[the Danish government was aware
of the ease of corporate registration and its relevance to
the bidder eligibility criteria]]. J.A. 111631. The unsuc-
cessful bidders cite no authority suggesting that if eligibil-
ity criteria are easily met they are invalid. Accordingly,
Exelis met the disputed eligibility criterion.

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PER AARSLEFF A/S v. US 15
IV. Copenhagen Arctic and Greenland Contractors
Waived Their Objections to the Eligibility Provision
“[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 [§ 1491(b)] bid protest action in the
[Claims Court].” Blue & Gold Fleet, 492 F.3d at 1313
(emphasis added). The present matter is a bid protest
action under § 1491(b), and it is undisputed that the
parties did not object to the eligibility provision prior to
the close of bidding. See, e.g., Copehagen Arctic Br. 40
(Copenhagen Arctic “was not required to file a pre-award
protest . . . .”); Greenland Contractors Br. 39–44 (failing to
argue that a pre-award protest was made). Per Aarsleff
asserts that it “did not object to the terms of the [solicita-
tion]” and instead challenged the Air Force’s award as
“inconsistent with the [solicitation].” Per Aarsleff Br. 35
(second emphasis added).
Greenland Contractors and Copenhagen Arctic argue
they did not waive their objections to the eligibility provi-
sion because any ambiguity or defect in the provision was
latent rather than patent. See Copenhagen Arctic Br. 36
(“The trial court’s decision that the mistake in the solici-
tation was latent was correct.” (capitalization omitted));
Greenland Contractors Br. 39 (“The [solicitation] defect
was not patent . . . .” (capitalization omitted)); see also Per
Aarsleff Br. 35 (“The CVR’s inability to register subsidiar-
ies was not patent.”). Whether an ambiguity or defect is
patent is an issue of law reviewed de novo. Stratos Mobile
Networks USA, LLC v. United States, 213 F.3d 1375, 1380
(Fed. Cir. 2000). A defect is patent if it is “an obvious
omission, inconsistency or discrepancy of significance.”
E.L. Hamm & Assocs., Inc. v. England, 379 F.3d 1334,
1339 (Fed. Cir. 2004); see also Stratos, 213 F.3d at 1381
(“A patent ambiguity is present when the contract con-
tains facially inconsistent provisions that would place a

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PER AARSLEFF A/S v. US 16
reasonable contractor on notice and prompt the contractor
to rectify the inconsistency by inquiring of the appropriate
parties.”). By contrast, “[a] latent ambiguity is a hidden
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
impose an affirmative duty on plaintiff to seek clarifica-
tion.” Analytical & Research Tech., Inc. v. United States,
39 Fed. Cl. 34, 46 (1997) (internal quotation marks and
citation omitted).
Here, the ambiguity in the solicitation was patent, as
reflected in the questions received by the Air Force and
the two plausible interpretations indicated above. Follow-
ing clarification during the question and answer period,
the ambiguity was removed, and so there was at that time
neither a patent nor a latent ambiguity.
The question then becomes whether the solicitation
language, as properly interpreted in light of the questions
and answers, contained a possible defect, and if so,
whether the possible defect was patent or latent. A
patent defect triggers the obligation to challenge the
solicitation language and failure to do so generally consti-
tutes waiver. See Bannum, Inc. v. United States, 779 F.3d
1376, 1380 (Fed. Cir. 2015) (“A bidder that challenges the
terms of a solicitation in the [Claims Court] generally
must demonstrate that it objected to those terms prior to
the close of the bidding process” or it “waives its ability to
raise the same objection afterwards in a § 1491(b) action.”
(internal quotation marks and citation omitted)); E.L.
Hamm & Assocs., 379 F.3d at 1339 (“[W]hen a contractor
is faced with an obvious omission, inconsistency or dis-
crepancy of significance, he is obligated to bring the
situation to the government’s attention if he intends
subsequently to resolve the issue in his own favor.”).
Without resolving the issue of whether the eligibility
provision is defective, we conclude any purported defect is

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PER AARSLEFF A/S v. US 17
patent, and that the failure of the unsuccessful bidders to
challenge the potentially defective provision prior to the
close of bidding prevents them from doing so now. See
E.L. Hamm & Assocs., 379 F.3d at 1339. To the extent
there is a defect, it is a patent one because it could have
been “discovered by reasonable and customary care,”
Analytical & Research Tech., 39 Fed. Cl. at 46, such as by
examining the CVR to determine whether one could
facially indicate status as a subsidiary of a foreign com-
pany when registering, see J.A. 101535. Such an effort is
particularly reasonable in light of the attention drawn to
the registration issue during the question and answer
period. Moreover, by the terms of the solicitation, each
eligible bidder had to be registered as a business in Den-
mark, Per Aarsleff, 121 Fed. Cl. at 611–12, and so would
have had to proceed through the registration process.
Even if this were not the case, “[t]he parties are charged
with knowledge of law and fact appropriate to the subject
matter . . . .” Turner Constr. Co. v. United States, 367
F.3d 1319, 1321 (Fed. Cir. 2004). Here, knowledge of the
CVR is appropriate to the subject matter of the solicita-
tion, which requires registration in the CVR as a condi-
tion of eligibility.
Furthermore, the record demonstrates that whether
the CVR facially indicated foreign subsidiary status could
have been “discovered by reasonable and customary care.”
Analytical & Research Tech., 39 Fed. Cl. at 46. When Per
Aarsleff sought to challenge the bid award to Exelis, its
own declarant noted the CVR is “made publicly available,”
J.A. 100441, and that it is “evident from the attached
screenshot” that “‘subsidiary of a foreign company’” is not
an option, J.A. 100442. An associate of the same declar-
ant telephoned the Danish Business Authority, which
confirmed the CVR does not have an option for registering
as a foreign subsidiary. J.A. 100442–43. This testimony
suggests no great effort was required to determine wheth-
er it was possible to register as a subsidiary of a foreign

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PER AARSLEFF A/S v. US 18
company, and that Per Aarsleff did in fact make such a
determination after the bid protest was initiated.
The purpose of the waiver rule is to avoid just such af-
ter-the-fact litigation, where the issue could have been
raised prior to the close of bidding. As we explained in
Blue & Gold Fleet:
In the absence of a waiver rule, a contractor with
knowledge of a solicitation defect could choose to
stay silent when submitting its first proposal. If
its first proposal loses to another bidder, the con-
tractor could then come forward with the defect to
restart the bidding process, perhaps with in-
creased knowledge of its competitors. A waiver
rule thus prevents contractors from taking ad-
vantage of the government and other bidders, and
avoids costly after-the-fact litigation.
492 F.3d at 1314. Although the record does not indicate
that the unsuccessful bidders knew it was impossible to
register as a subsidiary of a foreign company, they could
reasonably have known and in any event are “charged
with knowledge of law and fact appropriate to the subject
matter . . . .” Turner Constr. Co., 367 F.3d at 1321.
Greenland Contractors and Copenhagen Arctic therefore
waived any objection that the eligibility provision of the
contract was defective.
V. Cross-Appeals by Greenland Contractors and Copen-
hagen Arctic
In Greenland Contractors’ cross-appeal, it argues that
“[e]ven if this [c]ourt were to find Exelis eligible to com-
pete in this procurement, there is another basis for set-
ting aside the award to Exelis.” Greenland Contractors
Br. 56. That basis, Greenland Contractors explains, is
that “the Air Force unreasonably failed to evaluate the
[other bidders’] compliance with the [solicitation] re-
quirement to maximize subcontracts from Danish and

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PER AARSLEFF A/S v. US 19
Greenlandic sources.” Id. (capitalization omitted); see also
id. (citing J.A. 105279, ¶ 3.1.16).
Greenland Contractors notes that bidders were re-
quired to “‘[d]ocument and justify any exceptions’” to the
requirement of maximizing procurement from Danish and
Greenlandic sources. Id. at 57 (quoting J.A. 105279,
¶ 3.1.16)). It further notes that under section H-6 of the
solicitation, the obligations to maximize contract-related
purchases and subcontracts from Danish and Greenlandic
sources and justify any exceptions were to “‘take[] prece-
dence in the performance of th[e] contract.’” Id. (quoting
J.A. 105227, sec. H-6).
According to Greenland Contractors, the proposals of
Exelis, Copenhagen Arctic, and Per Aarsleff “made clear”
these bidders “would not maximize subcontracts from
Danish and Greenlandic sources,” id. at 58 (capitalization
omitted), and the Air Force’s failure to evaluate compli-
ance with the solicitation requirement constitutes an
arbitrary action requiring reversal, id. at 56–57. Specifi-
cally, Greenland Contractors asserts the other bidders
“made clear in their proposals that they intended to rely
heavily on their respective U.S.-based partners to perform
significant portions of th[e] contract” and that “[n]one of
these [bidders] made any effort to document or justify
their use of primarily non-Danish and non-Greenlandic
sources.” Id. at 58.
Copenhagen Arctic also cross-appeals, similarly as-
serting the Claims Court erred in failing to evaluate
whether Per Aarsleff’s bid proposal satisfied the material
terms of the solicitation. See Copenhagen Arctic Br. 47;
see also id. at 54 (“[Per] Aarsleff’s proposal flouted the
material terms of the [s]olicitation . . . .”). Copenhagen
Arctic limits its cross-appeal to Per Aarsleff and does not
extend its argument to the remaining two bidders. See id.
at 47, 50–54.

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PER AARSLEFF A/S v. US 20
According to Copenhagen Arctic, sections L and M of
the solicitation “conditioned the acceptability of a proposal
[on] demonstrating the ability to comply with the terms of
the [Performance Work Statement].” Id. at 49. Specifical-
ly, it notes that “Section 3.1.16 of the [Performance Work
Statement] required all [bidders] to ‘maximize and docu-
ment contract-related purchases and subcontracts from
Danish and Greenlandic sources.’” Id.; see J.A. 105279. It
argues Per Aarsleff’s proposal “clearly did not,” Copenha-
gen Arctic Br. 50, meet this requirement because “[Per]
Aarsleff teamed up with . . . an American company,” id.
(footnote omitted), which would “perform every single one
of the performance obligations of Section 3 of the [Perfor-
mance Work Statement],” id. at 50–51.
The Claims Court correctly rejected the arguments of
Greenland Contractors and Copenhagen Arctic. See Per
Aarsleff, 121 Fed. Cl. at 634. By their own terms, the
statements in section H-6 of the solicitation and para-
graph 3.1.16 of the Performance Work Statement refer to
contract performance, not eligibility criteria. See J.A.
105227 (“H-6. Statutory Restrictions on Foreign Acquisi-
tions. The requirements at [Performance Work State-
ment] [section] 3.1.16 to maximize and document contract
related purchases and subcontracts for Danish and
Greenlandic sources . . . take precedence in the perfor-
mance of this contract.” (emphasis added) (capitalization
omitted)); J.A. 105279 (“3.1.16 Maximize and document
contract-related purchases and subcontracts from Danish
and Greenlandic sources. . . . Performance Standards[:]
a) . . . Compliance with clause H-6 . . . . b) . . . Purchases
made from the [U.S.] will comply with [Federal Acquisi-
tion Regulation] 52.223-2 . . . .” (emphases added)).
The Air Force did not act arbitrarily in declining to
evaluate, as a condition of eligibility, whether each bidder
would during the course of performance comply with these
Danish/Greenlandic sourcing requirements. Each bidder
agreed to comply with the requirements of para-

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PER AARSLEFF A/S v. US 21
graph 3.1.16. See Per Aarsleff, 121 Fed. Cl. at 632.
Exelis, for example, stated it “will comply with all of the
Performance Work Statement [] requirements and takes
no exception to any of the terms, conditions, representa-
tions, certifications or provisions in this solicitation.” J.A.
55, 106314. As we have explained:
Where a[] [bidder] has certified that it meets the
technical requirements of a proposal, the Con-
tracting Officer is entitled to rely on such certifi-
cation in determining whether to accept a bid, and
the [bidder’s] potential failure to comply with the
proposal requirements is ordinarily “a matter of
contract administration,” which does not go to the
propriety of accepting the bid.
Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320,
1330 (Fed. Cir. 2011).
Allied sets forth an exception to the general rule that
an agency may rely upon an offeror’s certification of
compliance with a solicitation’s technical requirements.
The exception states that “‘where a proposal, on its face,
should lead an agency to the conclusion that [a bidder]
could not and would not comply with the [applicable
requirement],’” it “affect[s] the propriety of accepting the
[bidder’s] offer.” Id. (quoting Centech Grp., Inc. v. United
States, 554 F.3d 1029, 1039 (Fed. Cir. 2009)). Here, the
requirement to “[m]aximize and document contract-
related purchases and subcontracts from Danish and
Greenlandic sources,” J.A. 105279, is not so inflexible that
proposals contemplating the involvement of United States
“teaming partner[s],” Per Aarsleff, 121 Fed. Cl. at 631, see
also Copenhagen Arctic Br. 50–51, should have necessari-
ly led the Air Force to the conclusion that the bidders
“could not and would not comply” with paragraph 3.1.16
of the Performance Work Statement or section H-6 of the
solicitation, Allied, 649 F.3d at 1330, contrary to those
bidders’ express certifications. The Claims Court noted,

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PER AARSLEFF A/S v. US 22
for example, that Exelis and Per Aarsleff “appear to have
been planning to” [[perform the agreement in a manner
consistent with the solicitation requirements]]. Per
Aarsleff, 121 Fed. Cl. at 633. Indeed, Greenland Contrac-
tors concedes that bidders were not “per se prohibited
from using any U.S. subcontractors.” Greenland Contrac-
tors Br. 69.
Moreover, paragraph 3.1.16 of the solicitation con-
templates exceptions to the requirement to maximize and
document contract-related purchases and subcontracts
from Danish and Greenlandic sources, so long as those
exceptions are “document[ed] and justif[ied].” J.A.
105279. Greenland Contractors fails to explain how the
face of Exelis’s proposal (or those of the other bidders)
establishes that it will be unable to “document and justi-
fy” any exceptions that might arise during performance,
asserting only that Exelis has not yet offered any justifi-
cations. See, e.g., Greenland Contractors Br. 58 (“None of
[the other bidders] made any effort to document or justify
their use of primarily non-Danish and non-Greenlandic
sources.”).
In short, Greenland Contractors has failed to estab-
lish that the decision of the Air Force to award the con-
tract to Exelis “‘lacked a rational basis,’” which is the
relevant showing when seeking to set aside a procure-
ment decision as arbitrary or capricious under section
706(2)(A) of the APA. Centech, 554 F.3d at 1037 (quoting
Impresa Construzioni Geom. Domenico Garufi v. United
States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)); see also id.
(noting a procurement decision may also be set aside
“‘if . . . the procurement procedure involved a violation of
regulation or procedure’” (quoting Garufi, 238 F.3d at
1332)).
CONCLUSION
In light of the foregoing, the Claims Court erred in
“recasting” an eligibility provision for which the meaning

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PER AARSLEFF A/S v. US 23
was clarified during the question and answer period, and
erred in its conclusion that any defect was latent. Be-
cause Exelis satisfied the terms of the eligibility provision
as properly construed, and because Greenland Contrac-
tors has not established that Exelis’s proposal on its face
should have led the Air Force to conclude Exelis could not
and would not comply with the obligation to maximize
subcontracts from Danish and Greenlandic sources, the
Air Force did not act arbitrarily in its award of the con-
tract to Exelis. The decision of the United States Court of
Federal Claims is
REVERSED

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United States Court of Appeals
for the Federal Circuit
______________________
PER AARSLEFF A/S,
Plaintiff-Appellee
COPENHAGEN ARCTIC A/S, GREENLAND
CONTRACTORS I/S,
Plaintiffs-Cross-Appellants
v.
UNITED STATES, EXELIS SERVICES A/S,
Defendants-Appellants
______________________
2015-5111, 2015-5112, 2015-5135, 2015-5143
______________________
Appeals from the United States Court of Federal
Claims in No. 1:15-cv-00215-CFL, 1:15-cv-00272-CFL,
1:15-cv-00330-CFL, Judge Charles F. Lettow.
______________________
REYNA, Circuit Judge, concurring.
This case is the culmination of three post-award bid
protests of a solicitation’s eligibility requirements, all of
which should have been dismissed as untimely by the
Court of Federal Claims. There is no need for this Court
to make determinations of patency, latency, and ambigui-
ty.
Per Aarsleff, Greenland, and Copenhagen knew there
were unresolved questions about the solicitation’s eligibil-

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PER AARSLEFF A/S v. US 2
ity requirements well before they submitted their pro-
posals. Offerors questioned the Air Force about eligibility
of competitors owned by non-Danish entities during the
Question and Answer session, specifically raising the
issue of whether a foreign-owned company could be eligi-
ble for award. The Air Force’s response did not answer
this question, it merely restated the same language that
question sought to have clarified.
Despite notice of uncertainty as to whether competi-
tors owned by a Non-Danish entity would be eligible for
award, none of the prospective bidders filed a bid protest
before submitting their proposals. Instead, they waited
until they learned that they lost the competition to an
American-owned company to protest the eligibility crite-
ria.
This Court’s decision in Blue & Gold mandates dis-
missal of protests like these. Blue & Gold Fleet, L.P. v.
United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007).
When a prospective offeror knows about problems in a
solicitation before proposals are due, any protest of those
solicitation provisions must be dismissed as untimely,
unless it is filed before the close of the bidding process.
Bannum, Inc. v. United States, 779 F.3d 1376, 1380 (Fed.
Cir. 2015). Dismissal is mandatory, not discretionary.
Contract Services, Inc., v. United States, 104 Fed. Cl. 261,
272 (2012); Unisys Corp. v. United States, 89 Fed. Cl. 126,
139 (2009).
This rule furthers the Tucker Act’s statutory mandate
to give due regard to the need for expeditious resolution of
legal actions. 28 U.S.C. § 1491(b)(3); Blue & Gold, 492
F.3d at 1313. Without such a timeliness bar, a contractor
with knowledge of a solicitation defect could choose to
stay silent when submitting its proposal only to protest an
award to its competitors, perhaps allowing the disap-
pointed offeror to restart the competition with increased

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PER AARSLEFF A/S v. US 3
knowledge of its competitors’ proposals. See Blue & Gold,
492 F.3d at 1314.
The disappointed bidders in this case knew there were
unresolved questions about the solicitation’s eligibility
requirement prior to submitting their proposals, but they
failed to protest that issue until after award. As such,
their protests of the eligibility requirement were untimely
and should have been dismissed by the Court of Federal
Claims.
We need not determine whether the solicitation was
in fact ambiguous or defective. Nor is there need to
determine whether any defect or ambiguity was patent or
latent, because the offerors in this case knew about the
unresolved questions regarding eligibility of competitors
owned by non-Danish entities prior to submitting their
proposals.1 Given the purpose of the timeliness bar to
solicitation protests, a protester with actual knowledge of
a defective solicitation provision cannot sidestep the Blue
& Gold timeliness bar by asserting that the defect is
latent.
By analyzing ambiguity, latency, and patency, the
majority unnecessarily creates precedential analysis that
is likely to cause unpredictable second and third order
effects in future bid protest timeliness determinations and
contract interpretations. While I concur with the Majori-
ty’s decision to reverse, I do so for a different reason.
1 See Blue & Gold, 492 F.3d at 1314 (foregoing de-
termination of whether the protested solicitation defect
was patent or latent when it was established that the
protester knew of the defect prior to submitting its pro-
posal); Bannum, 779 F.3d at 1380−81 (foregoing determi-
nation of patency and latency where protester had
informally voiced its dissatisfaction with the protested
solicitation terms prior to submitting its proposal).

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