T Square Logistics Services Corporation v. United States , 134 Fed. Cl. 550 ( 2017 )

In the United States Court of Federal Claims
No. 17-744C
(E-Filed October 16, 2017) 1
)
T SQUARE LOGISTICS SERVICES CORP., )
)
Plaintiff, ) Motion to Dismiss; Standing;
) Pre-award Bid Protest; Motion
v. ) for Judgment on the
) Administrative Record; Waiver
THE UNITED STATES, ) of Informality or Minor
) Irregularity
Defendant. )
)
Richard B. Oliver, Los Angeles, CA, for plaintiff. J. Matthew Carter, Los Angeles, CA,
of counsel.
Veronica N. Onyema, Trial Attorney, with whom were Chad A. Readler, Acting
Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Douglas K. Mickle,
Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, for defendant.
OPINION
CAMPBELL-SMITH, Judge
This pre-award bid protest involves a solicitation for a variety of support services
at Sheppard Air Force Base in Texas. See Pl.’s Compl., ECF No. 1 at 1. In particular,
plaintiff takes issue with the manner in which defendant applied the delivery
requirements for its proposal. See id. at 8-11. Plaintiff has moved for judgment on the
administrative record in its favor. See Pl.’s Mot. for J. on the Admin. R., ECF No. 19.
Defendant has moved the court to dismiss plaintiff’s complaint, or in the alternative to
1
This opinion was issued under seal on September 22, 2017. Pursuant to ¶ 5 of the
ordering language, the parties were invited to identify source selection, proprietary, or
confidential material subject to deletion on the basis that the material was
protected/privileged. No redactions were proposed by the parties. Thus, the sealed and
public versions of this opinion are identical, except for the publication date, this footnote,
and several typographical errors.
grant judgment on the administrative record in the government’s favor. See Def’s Mot.
to Dismiss, ECF No. 20. For the following reasons, plaintiff’s motion is GRANTED,
and defendant’s motions are DENIED.
I. Background
The facts of this case are largely undisputed. On March 17, 2017, defendant
issued a solicitation seeking bids for “a broad array of base supply, vehicle operations,
and vehicle maintenance services” at Sheppard Air Force Base in Texas. ECF No. 1 at 5.
All offerors were required to submit both paper copies of their bids, and an identical
electronic copy on a compact disc, no later than 4:00 p.m. on May 5, 2017. See id. at 6-7,
9. See Administrative Record, (AR) at 133 (“The electronic version shall be submitted
on a compact disc (CD).”).
Plaintiff’s proposal was scheduled to be delivered by Federal Express. See id. at
9. At approximately 12:00 p.m. on May 5, 2017, Federal Express notified plaintiff that
the delivery time was delayed due to inclement weather. See id. Upon learning of the
delay, plaintiff contacted a T Square employee located at Sheppard Air Force Base, and
informed her that, “pending further direction from the Air Force, she might be required to
print out paper copies” of plaintiff’s submission for timely delivery to the appropriate
office. See id. Plaintiff also contacted, by email, the contracting officer and the contract
specialist working on the solicitation to inform them of the anticipated FedEx delay and
to deliver, as an attachment to the email, an electronic copy of its proposal. See id. The
contract specialist responded to news of the delay, by email, stating that it was “not a
problem, we understand that FedEx deliveries are beyond your control. Your receipt
from FedEx shows that you shipped your proposal prior to the due date/time so we will
be able to accept the hard copies when they arrive, even if FedEx delivers them after 4:00
pm today.” See id. at 10 (citing to ECF No. 1, Ex. 1).
In reliance on the contract specialist’s assurances, plaintiff directed its employee
not to print and deliver the hard copies of the proposal. See id. 10-11. Federal Express
delivered plaintiff’s proposal at approximately 11:34 a.m. on May 8, 2017. See id. at 11.
On May 16, 2017, defendant rejected plaintiff’s proposal as untimely because the paper
copies and the compact disc were not delivered by 4:00 p.m. on May 5, 2017. See id.
The rejection letter read as follows:
1. This is to advise that your proposal was received by our office on
Monday 8 May 2017 at 11:35 AM; after the 5 May 2017 at 4:00 PM deadline
for receipt of proposals by 82 CONS.
2. An email containing an electronic copy of the proposal was received
5 May 2017 at 2:06 PM; however, the solicitation on page number 42,
concerning the format for proposal parts II, III, and IV, specifically stated,
2
“The electronic version shall be submitted on compact disc (CD). USB flash
drives, floppy disks, and zip disks are not acceptable.” Submission via email
was not authorized. Additionally, had email been authorized, the electronic
submission was not submitted in accordance with the solicitation
requirements as “Schedule B” was not submitted in the proper format.
3. Government email correspondence indicating that the electronic
submission discussed above would be acceptable was further reviewed by
the contracting officer and legal office. During the course of that review, it
was determined that, while good intentioned, that response lacked the
authority to materially alter the proposal submission requirements contained
in “ADDENDUM TO FAR 52.212-1—INSTRUCTIONS TO
OFFERORS—COMMERCIAL ITEMS (Jan 2017)”.
4. In the solicitation, FAR Provision 52.212-1(f)(2)(i) states that, with
three potential exceptions, “Any proposal, modification, or revision, that is
received at the designated Government office after the exact time specified
for receipt of proposals is “late” and will not be considered . . . “ In this
situation, FAR Provision 52.212-1(f)(2)(i) further describes the potential
exceptions, in which none of the exceptions apply; as the exceptions outline
(A) that the proposal was not transmitted through an electronic commerce
method authorized by the solicitation, (B) the proposal was not received at
Sheppard AFB, TX and under the government’s control prior to the time set
for receipt of proposals, and (C) this proposal was not the only proposal
received.
5. Therefore, FAR provision 52.212-1, contained in the solicitation,
precludes the government from accepting your late proposal. Your proposal
will not be further considered or evaluated.
AR at 502.
Following receipt of this rejection letter, plaintiff requested that defendant extend
the formal deadline in order to accommodate the late delivery of its proposal, particularly
in light of the representations made by the contract specialist that the late submission was
“not a problem” and would be accepted upon delivery. See ECF No. 1 at 13-14.
Defendant failed to respond to this request, and after numerous attempts to secure an
answer, plaintiff concluded that defendant would not extend the due date for receipt of
proposals. See id. at 14.
In light of that purported refusal, plaintiff filed this protest action. Plaintiff claims
that defendant misled plaintiff, improperly rejected its proposal, and unreasonably
3
refused to extend the deadline for submissions. See id. at 14-20. Specifically, plaintiff
seeks the following relief in its complaint:
T Square respectfully requests that the Court:
1. Declare that the Air Force’s rejection of T Square’s proposal as late is
arbitrary, capricious, and contrary to law;
2. Declare that the Air Force’s refusal to extend the deadline for receipt
of proposals for this Solicitation is arbitrary, capricious, and contrary to law;
3. Prohibit the Air Force from further evaluating proposals for this
Solicitation pending resolution of this protest;
4. Reinstate T Square’s proposal for consideration for award; and
5. Afford T Square such other and further relief as the Court may deem
just and proper.
See ECF No. 1 at 20-21. In the present motion, plaintiff asks the court to “grant the relief
requested in T Square’s Complaint dated June 6, 2017 along with such other relief that
the Court deems just and equitable.” ECF No. 19 at 1.
II. Legal Standards
Rule 52.1(c) of the Rules of the United States Court of Federal Claims (RCFC)
provides for judgment on the administrative record. In reviewing a motion or cross-
motions under RCFC 52.1(c), the court asks whether, given all the disputed and
undisputed facts, a party has met its burden of proof based on the evidence in the record.
Bannum, Inc. v. United States, 404 F.3d 1346, 1356-57 (Fed. Cir. 2005). The court must
make factual findings where necessary. Id. The resolution of RCFC 52.1(c) cross-
motions is akin to an expedited trial on the paper record. Id.
A. Evaluating Standing to Protest
The Tucker Act grants this court jurisdiction
to render judgment on an action by an interested party objecting to a
solicitation by a Federal agency for bids or proposals for a proposed contract
or to a proposed award or the award of a contract or any alleged violation of
statute or regulation in connection with a procurement or a proposed
procurement. . . . without regard to whether suit is instituted before or after
the contract is awarded.
4
28 U.S.C. § 1491(b)(1) (2012).
Under this section, a plaintiff must demonstrate that it has standing as an
“interested party,” in order to establish this court’s jurisdiction. See Myers Investigative
& Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002) (noting that
plaintiff bears the burden of establishing standing). In determining whether the court has
jurisdiction over a plaintiff’s claims, the court “must accept as true all undisputed facts
asserted in the plaintiff’s complaint and draw all reasonable inferences in favor of the
plaintiff.” Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir.
2011) (citing Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995)).
As the Federal Circuit has held, the “interested party” requirement under the
Tucker Act “imposes more stringent standing requirements than Article III.” Weeks
Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009). Though the term
“interested party” is not defined by the statute, courts have construed it to require that a
protestor “establish that it ‘(1) is an actual or prospective bidder and (2) possess[es] the
requisite direct economic interest.’” See id. (citing Rex Serv. Corp. v. United States, 448
F.3d 1305, 1308 (Fed. Cir. 2006)). In order to demonstrate economic interest in the pre-
award context a plaintiff must show that it suffered a “non-trivial competitive injury
which can be addressed by judicial relief.” Id. at 1362.
B. Evaluating the Merits of the Protest
Assuming that the plaintiff has standing to proceed with a bid protest, the court’s
analysis of a “bid protest proceeds in two steps.” Bannum, Inc. v. United States, 404
F.3d 1346, 1351 (Fed. Cir. 2005). The court first determines, pursuant to the
Administrative Procedure Act of 1946 (ADA), 5 U.S.C. § 706(2)(A), standard of review,
whether the “agency’s action was arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with [the] law.” Glenn Def. Marine (ASIA), PTE Ltd. v.
United States, 720 F.3d 901, 907-08 (Fed. Cir. 2013) (citing 28 U.S.C. § 1491(b)(4)
(adopting the standard of 5 U.S.C. § 706)). If the court finds that the agency acted in
error, the court then must determine whether the error was prejudicial. See Bannum, 404
F.3d at 1351.
Given the considerable discretion allowed contracting officers, the standard of
review is “highly deferential.” Advanced Data Concepts, Inc. v. United States, 216 F.3d
1054, 1058 (Fed. Cir. 2000). As the Supreme Court has explained, the scope of review
under the “arbitrary and capricious” standard is narrow. See Bowman Transp., Inc. v.
Arkansas-Best Freight System, Inc., 419 U.S. 281, 285 (1974). “A reviewing court must
‘consider whether the decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment,” and “[t]he court is not empowered to
substitute its judgment for that of the agency.’” Id. (quoting Citizens to Preserve Overton
Park v. Volpe, 401 U.S. 402, 416 (1971). See also Weeks Marine, 575 F.3d at 1368-69
5
(stating that under rational basis review, the court will “sustain an agency action evincing
rational reasoning and consideration of relevant factors”).
III. Analysis
A. Motion to Dismiss
Defendant argues that this case should be dismissed because plaintiff lacks
standing. See ECF No. 20 at 19. As noted above, in order to establish standing, a
plaintiff must be an actual or prospective bidder for the contract at issue, and must show
that it had direct economic interest in the award. Weeks Marine, 575 F.3d at 1359.
Here, defendant does not challenge plaintiff’s status as an actual bidder, but claims
that it cannot demonstrate the requisite economic interest to establish standing. See id. at
20. Defendant argues that “[i]n order to demonstrate prejudice, a protestor must show
that ‘but for the error, it would have had a substantial chance of securing the contract.’”
See id. (citing Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1378 (Fed. Cir.
2009)). Defendant concludes, that plaintiff “has not been prejudiced because as a late
offeror, it had zero chance of securing the contract.” See id.
Defendant’s argument widely misses the mark because it is premised on the wrong
standard for demonstrating direct economic interest in the pre-award context. As the
Federal Circuit has explained, the standard cited by defendant applies to post-award
protests, but does not work in the pre-award context because “there is no factual
foundation for a ‘but for’ prejudice analysis.” Weeks Marine, 575 F.3d at 1361. Instead,
in the pre-award context, to demonstrate direct economic interest a plaintiff must show it
suffered a “non-trivial competitive injury which can be addressed by judicial relief.” Id.
at 1361.
In the court’s view, the issue of standing here involves a relatively straight forward
application of the general pre-award rule. Indisputably, plaintiff was an actual bidder.
Moreover, plaintiff has alleged that defendant’s misconduct led to the rejection of
plaintiff’s proposal without any substantive consideration, and thus eliminated plaintiff
from the competition entirely. Should the court deem defendant’s actions to be improper,
it can provide redress to the plaintiff in the form of granting the relief requested in its
motion for judgment on the administrative record. For these reasons, the court finds that
plaintiff has shown—under the applicable legal standard—that it suffered a non-trivial
competitive injury that can be addressed by judicial relief.
Thus, the court finds that plaintiff has standing to bring this case, and defendant’s
motion to dismiss is DENIED.
6
B. Motion for Judgment on the Administrative Record
Plaintiff has moved for judgment on the administrative record, and in the
alternative to its motion to dismiss, defendant has cross-moved for such judgment. See
ECF Nos. 19, 20. Plaintiff advances three independent bases for its position that
defendant should have considered its proposal despite the late delivery of the paper
copies required by the solicitation: (1) that the government control exception applies,
excusing the late delivery, see ECF No. 19-1 at 26; (2) that defendant should have waived
the late delivery as a minor informality, see id. at 31; and (3) that defendant violated
several regulations when the contract specialist represented that the late delivery was
acceptable, but later changed course and rejected the proposal, see id. at 33. In response,
defendant counters each of plaintiff’s arguments, and claims that defendant is entitled to
judgment on the administrative record because it properly determined that plaintiff’s
proposal was ineligible for consideration due to its untimeliness. See ECF No. 20 at 20.
After a thorough review of the parties’ submissions, and careful consideration of
the applicable law, the court finds on this record that defendant erred in failing to
consider whether to waive late delivery of plaintiff’s paper copies as an informality or
minor irregularity. The court further finds that plaintiff was prejudiced by defendant’s
actions. The court’s reasoning is as follows.
As noted above, the court’s analysis of a “bid protest proceeds in two steps.”
Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005). The court first
determines, pursuant to the APA standard of review, whether the “agency’s action was
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with [the]
law.” Glenn Def. Marine, 720 F.3d at 907-08. In conducting this evaluation, the court
will look to whether the agency set forth a rational basis for its decision, and whether the
agency considered relevant factors in making that decision. See Bowman Transp., 419
U.S. at 285; Weeks Marine, 575 F.3d at 1368-69. If the court finds that the agency acted
in error, the court then must determine whether the error was prejudicial. See Bannum,
404 F.3d at 1351.
The solicitation at issue here incorporates the Federal Acquisition Regulation
(FAR) 48 C.F.R. § 52.212-1. Subsection (g) of that FAR provision provides that in
making a contract award decision: “The Government may reject any or all offers if such
action is in the public interest; accept other than the lowest offer; and waive informalities
and minor irregularities in offers received.” See AR 130-132. As plaintiff notes, the text
of the regulation does not define the terms “informalities” or “minor irregularities.” See
ECF No. 19-1 at 32.
In an attempt to define the contours of those terms, the parties cite various points
of authority. Plaintiff relies on this court’s decision in Electronic On-Ramp, Inc. (EOR)
v. United States, 104 Fed. Cl. 151, 166-168 (2012). In EOR, which was a pre-award
7
protest action, the solicitation required bidders to submit proposals both by email, on
paper, and on compact disc. See id. at 156. The plaintiff successfully submitted the
email version of the proposal, but its courier was unable to deliver the paper copies and
the compact disc on time because he was not allowed access to the office at which the
proposal was to be submitted. See id. at 156-157. The court concluded that the proposal
should have been considered for two, independent reasons. First, it found that the
government control exception applied. See id. at 162-166. And second, the court held
that even if the government control exception did not apply, the government should have
“waived the late delivery of the paper copy as a minor informality.” Id. at 166. In
coming to this conclusion the court reviewed the language of 48 C.F.R. § 52.215-1(f)(3),
which, similar to 48 C.F.R. § 52.212-1(g), provides that “[t]he Government may waive
informalities and minor irregularities in proposals received.” 48 C.F.R. § 52.215-1(f)(3).
As part of its waiver analysis, the court noted in EOR, that the applicable
regulations did “not provide any clarification on what types of ‘informalities’ or
‘irregularities’ can be waived.” EOR, 104 Fed. Cl. at 166. The court then looked to
similar language found in 48 C.F.R. § 14.405 for guidance. Section 14.405 states that
“[a] minor informality or irregularity is one that is merely a matter of form and not of
substance. It also pertains to some immaterial defect[s] in the bid . . . that can be
corrected or waived without being prejudicial to other bidders.” Id. On the basis of these
regulations, the court concluded that the government could properly waive the failure to
deliver timely copies of the proposal, so long as other offerors were not prejudiced. See
EOR, 104 Fed. Cl. at 167.
The court identified—as chief among its concerns with allowing the consideration
of a late proposal—an interest in the “fairness and the preservation of competition.” Id.
In analyzing whether accepting plaintiff’s proposal was fair, the court focused on whether
the submitted version of the proposal was complete, and whether the plaintiff had gained
an advantage through the late submission of the paper copies, such as extra time to
prepare the proposal. See id. at 167-68. Ultimately, the court concluded that the record
before it demonstrated that the plaintiff had not gained a competitive advantage from its
late delivery, and consideration of the proposal would not prejudice other offerors. See
id. at 168. Additionally, the court observed that considering the proposal “would further
the competitive process.” See id.
According to defendant, plaintiff’s reliance on EOR is misplaced. Defendant
distinguishes the instant record on the basis that the solicitation in EOR required that the
offerors submit electronic versions of proposals by email, while the solicitation at issue
here requires electronic versions to be submitted on compact discs. As such, defendant
argues, “T Square did not submit a timely version of its proposal through a delivery
method authorized in the solicitation—rendering its proposal nonresponsive.” ECF No.
20 at 25 (citing AR at 100, 139-140). Defendant maintains that, absent compliance with
the solicitation, the proposal cannot be considered for award.
8
In support of its position, defendant cites two cases in which the court dismissed
post-award protests for lack of standing when the disappointed bidder submitted a
proposal that did not comply with the solicitation. See A&D Fire Protection, Inc. v.
United States, 72 Fed. Cl. 126, 139 (2006) (holding that, in the post-award context, a
disappointed bidder lacked standing to bring a protest action when its submission was
nonresponsive to the solicitation); Bannum, Inc. v. United States, 2007 WL 5172433
(Fed. Cl. April 21, 2007) (holding that, in the post-award context, a protesting party
lacked standing to bring the protest action because it could not show a substantial chance
of receiving an award when its submission did not comply with the solicitation’s
substantive requirements).
The court finds defendant’s position unpersuasive. As an initial matter, the cases
cited by defendant are unhelpful to the court’s analysis. Neither A&D, 72 Fed. Cl. 126,
nor Bannum, 2007 WL 5172433, address the issue of “informalities” or “minor
irregularities.” The court also notes that it has previously held, at the government’s own
urging, that a procuring agency properly exercised its discretion under 48 C.F.R. 52.212-
1(g) when it waived the solicitation’s proposal format requirement and allowed the
ultimate awardee to submit its proposal on paper rather than on compact disc. See
Progressive Indus., Inc. v. United States, 129 Fed. Cl. 457, 473-74 (2016). As was the
case in Progressive, the court is satified that “waiving, as an informality, the submission
format requirement,” falls within the scope of a proper exercise of agency discretion.
Progressive Indus., 129 Fed. Cl. at 474.
The fact that an agency is permitted to waive the submission format requirement,
of course, does not mean it is required to do so. In order to make a determination of
whether defendant’s refusal to grant plaintiff a waiver had a rational basis, given the
relevant factors, the court must conduct a review of the facts at hand. See Bowman
Transp., 419 U.S. at 285 (stating that “[a] reviewing court must consider whether the
decision was based on a consideration of the relevant factors and whether there has been
a clear error of judgment”) (internal citation omitted); Weeks Marine, 575 F.3d at 1368-
69 (stating that under rational basis review, the court will “sustain an agency action
evincing rational reasoning and consideration of relevant factors”).
Both parties acknowledge in this case that the contract specialist had indicated, in
writing, that the late delivery of plaintiff’s paper copies and compact disc would be
waived as inconsequential. Specifically, the contract specialist wrote that the delayed
delivery of the paper copies and the compact disc was “not a problem, [as] we understand
that FedEx deliveries are beyond your control. Your receipt from FedEx shows that you
shipped your proposal prior to the due date/time so we will be able to accept the hard
copies when they arrive, even if FedEx delivers them after 4:00 pm today.” See ECF No.
1 at 10 (citing to ECF No. 1, Ex. 1). Based on this representation, plaintiff discontinued
efforts to have a local employee print and deliver paper copies to the designated office.
9
See id., Ex. 6. Defendant then, after conceding the contract specialist’s statements,
reversed course, and rejected plaintiff’s proposal specifically because of the late delivery.
See AR at 502.
The letter rejecting plaintiff’s proposal identified two problems. It stated:
“Submission via email was not authorized. Additionally, had email been authorized, the
electronic submission was not submitted in accordance with the solicitation requirements
as ‘Schedule B’ was not submitted in the proper format.” See id. Despite the mention
here of the nonconformity of Schedule B, the focus of the remainder of the letter makes
clear that the untimeliness of the physical submission was the primary basis for its
rejection. According to defendant, it had no choice but to reverse course because 48
C.F.R. § 52.212-1 required it to reject late proposals, and no permitted exceptions
applied.
The court recites, for ease of reference, the relevant part of the letter again here:
3. Government email correspondence indicating that the electronic
submission discussed above would be acceptable was further reviewed by
the contracting officer and legal office. During the course of that review, it
was determined that, while good intentioned, that response lacked the
authority to materially alter the proposal submission requirements contained
in “ADDENDUM TO FAR 52.212-1—INSTRUCTIONS TO
OFFERORS—COMMERCIAL ITEMS (Jan 2017)”.
4. In the solicitation, FAR Provision 52.212-1(f)(2)(i) states that, with
three potential exceptions, “Any proposal, modification, or revision, that is
received at the designated Government office after the exact time specified
for receipt of proposals is “late” and will not be considered . . . “ In this
situation, FAR Provision 52.212-1(f)(2)(i) further describes the potential
exceptions, in which none of the exceptions apply; as the exceptions outline
(A) that the proposal was not transmitted through an electronic commerce
method authorized by the solicitation, (B) the proposal was not received at
Sheppard AFB, TX and under the government’s control prior to the time set
for receipt of proposals, and (C) this proposal was not the only proposal
received.
5. Therefore, FAR provision 52.212-1, contained in the solicitation,
precludes the government from accepting your late proposal. Your proposal
will not be further considered or evaluated.
AR at 502.
10
The court finds that the contracting officer’s reasoning is, at best, incomplete.
While it is true that the exceptions listed by defendant do in fact appear in 48 C.F.R. §
52.212-1(f)(2)(i), defendant wholly failed to address the possibility of waiver which
appears in the very next subsection, 52.212-1(g). This omission from the articulated
reason for rejecting plaintiff’s proposal is particularly glaring in light of the email
correspondence from the contract specialist indicating that the agency would waive its
strict adherence to the submission format or the delivery deadline. And despite the fact
that the regulation does not explicitly define what an agency should consider as a
waivable “informality” or “minor irregularity,” the agency here made clear to plaintiff its
view of what constituted a minor—and thus an appropriately waivable—informality. As
plaintiff stated in its briefing, “the plain terms of the Contract Specialist’s written
assurance indicate[] that the contracting office had decided that the delivery of the written
copies was a ‘minor informality.’” ECF No. 21 at 16.
That an agency can permissibly waive its strict adherence to a submission format
as a minor informality comports with guidance previously set forth by this court. See
EOR, 104 Fed. Cl. at 166 (noting that 48 C.F.R. § 14.405 states that “[a] minor
informality or irregularity is one that is merely a matter of form and not of substance. It
also pertains to some immaterial defect in the bid . . . that can be corrected or waived
without being prejudicial to other bidders.”); Progressive Indus., 129 Fed. Cl. at 474
(concluding that “waiving, as an informality, the submission format requirement,” would
be a proper exercise of agency discretion). In addition, the court observes that waiving
the submission format requirement in this case would afford plaintiff no competitive
advantage. The record indicates that plaintiff’s email submission was complete, its paper
copies and the compact disc had already been shipped, and plaintiff had no opportunity to
make changes or improvements to its proposal. Furthermore, the award had not been
made prior to the delivery of plaintiff’s proposal, and the government’s consideration of
more proposals would tend to preserve the benefits gained from healthy competition. See
EOR, 104 Fed. Cl. at 167 (identifying “fairness and preservation of competition” as the
primary concerns as to whether informalities or irregularities should be waived to allow
consideration of an additional proposal). The court finds problematic here that defendant
apparently exercised its discretion in the first instance only to reverse its position without
an explanation of why it changed its view on the specific matter of the appropriateness of
a waiver. Accordingly, the court finds—on the facts of this case—that defendant erred in
failing to consider and document whether a waiver of the late delivery of plaintiff’s paper
copies as a mere informality or minor irregularity was proper in this circumstance.
Having found an error, the court proceeds to the second step of the bid protest
analysis to consider whether defendant’s action was prejudicial. See Bannum, Inc., 404
F.3d at 1351 (stating that “if the trial court finds that the government’s conduct fails the
APA review under 5 U.S.C. § 706(2)(A), then it proceeds to determine, as a factual
matter, if the bid protester was prejudiced by that conduct”). Here, plaintiff was denied
any ability to compete for the contract award; it did not simply suffer a compromised
11
opportunity. Because defendant’s failure to grant plaintiff a waiver resulted in the
outright disregard of its proposal, the court finds that prejudice against plaintiff is
established.
The court finds error in defendant’s failure to adequately consider and
document—in this particular circumstance—whether a grant of a waiver for the late
delivery of its paper copies and compact disc, as an informality or minor irregularity, was
proper. But the court makes no findings and draws no legal conclusions with regard to
plaintiff’s additional arguments relating to (1) the government control exception, see ECF
No. 19-1 at 26, and (2) the violation of various regulations that govern fair treatment of
offerors, see id. at 33.
For the reasons set forth above, plaintiff’s motion for judgment on the
administrative record is GRANTED, and defendant’s cross-motion for judgment on the
administrative record is DENIED.
C. Injunctive Relief
As noted above, in its motion for judgment on the administrative record, plaintiff
asks that the court “grant the relief requested in T Square’s Complaint dated June 6, 2017
along with such other relief that the Court deems just and equitable.” ECF No. 19 at 1. 2
Two of plaintiff’s requests involve injunctive relief. Specifically, plaintiff asks that the
court: (1) “Prohibit the Air Force from further evaluating proposals for this Solicitation
pending resolution of this protest,” and (2) “Reinstate T Square’s proposal for
consideration for award.” See ECF No. 1 at 20-21. As the Federal Circuit has stated,
In deciding whether a permanent injunction should issue, a court considers:
(1) whether, as it must, the plaintiff has succeeded on the merits of the case;
(2) whether the plaintiff will suffer irreparable harm if the court withholds
injunctive relief; (3) whether the balance of hardships to the respective
parties favors the grant of injunctive relief; and (4) whether it is in the public
interest to grant injunctive relief.
PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004) (citation
omitted).
2
The court previously denied plaintiff’s motion for temporary restraining order and
motion for permanent injunction, ECF No. 4, as moot, upon agreement of the parties that
the award would not be made before this protest action is resolved. See ECF No. 9. The
court now considers the propriety of granting injunctive relief on the basis of the relief
requested in the complaint, and carried forward to the motion for judgment on the
administrative record.
12
Here, plaintiff has succeeded on the merits of its case. In addition, plaintiff has
shown that absent injunctive relief, it will suffer irreparable harm in the form of a lost
opportunity to compete for the award at issue. See, e.g., Fed. Acquisition Servs. Team,
LLC v. United States, 124 Fed. Cl. 690, 708 (2016) (“It is well-established that the profits
lost by an offeror because of the government’s arbitrary or unlawful rejection of an offer
constitute irreparable injury for purposes of injunctive relief.”); Hosp. Klean of Tex., Inc.
v. United States, 65 Fed. Cl. 618, 624 (2005) (“Here, absent injunctive relief, [the
protestor] will lose the opportunity to earn the profit it would have made under this
contract. Such loss of profit, stemming from a lost opportunity to compete for a contract
on a level playing field has been found sufficient to constitute irreparable harm.”)
(citations omitted).
As to the balance of hardships, defendant voluntarily agreed that it would not
award the subject contract until this protest is resolved. See ECF No. 9 at 1. It appears,
then, that defendant would not labor under any specific or significant hardship in
reconsidering its rejection of plaintiff’s proposal. The only hardship defendant identifies
in its briefing is a general concern for compromising “an efficient, fair, and consistent
procurement process.” ECF No. 20 at 36. Plaintiff, on the other hand, stands to suffer an
immediate and considerable hardship if it is erroneously precluded from competing for
this award. Moreover, in the court’s view, addressing errors in the procurement process
serves the principles of efficiency, fairness, and consistency that are of such concern to
defendant. The balance of hardships here favors injunctive relief.
And finally, the court concludes that injunctive relief is in the public interest. As
plaintiff explains, this court “has long recognized that the public interest lies in honest,
open and fair competition in public procurement.” ECF No. 19-1 (citing Cincom Sys.,
Inc. v. United States, 37 Fed. Cl. 266, 269 (1997)). See also Alion Sci. & Tech. Corp. v.
United States, 74 Fed. Cl. 372, 376 (2006) (“It is well established that there is an
overriding public interest in preserving the integrity of the federal procurement process
by requiring government officials to follow procurement statutes and regulations.”)
(citation omitted); Metcalf Constr. Co. v. United States, 53 Fed. Cl. 617, 645 (2002)
(noting the twin goals of preserving “public confidence and competition in the federal
procurement process”) (citation omitted). Defendant contends that an injunction would
amount to “excessive judicial infringement upon the agency’s discretion,” and therefore,
would not serve the public interest. Defendant can be confident that the court has no
desire to unnecessarily involve itself in the agency’s procurement process. But where, as
here, defendant erred, it is both proper and in the public interest, for the court to step in
and protect the integrity of the procurement process.
For all of these reasons, plaintiff has demonstrated that injunctive relief is
appropriate.
13
IV. Conclusion
Plaintiff has demonstrated that it has standing to bring this case and that
defendant’s actions in rejecting its proposal were erroneous. Plaintiff has also shown that
it was prejudiced by defendant’s error. Plaintiff’s bid protest is, therefore, sustained. In
addition, plaintiff is entitled to injunctive relief. Accordingly, it is hereby ORDERED
that:
(1) Plaintiff’s motion for judgment on the administrative record, ECF No. 19,
is GRANTED;
(2) Defendant’s Motion to Dismiss, ECF No. 20, and defendant’s cross-motion
for judgment on the administrative record, ECF No. 20, are DENIED;
(3) Plaintiff’s request for injunctive relief is GRANTED, and defendant is
ENJOINED from awarding the contract at issue without first reevaluating the eligibility
of plaintiff’s proposal for consideration in light of this court’s ruling on the merits of this
protest action;
(4) The clerk’s office is directed to ENTER final judgment in favor of
plaintiff;
(5) On or before October 20, 2017, counsel for the parties shall CONFER and
FILE with the Clerk’s Office a redacted copy of this opinion, with any material deemed
proprietary marked out and enclosed in brackets, so that a copy of the opinion can then be
prepared and made available in the public record of this matter; and
(6) Each party shall bear its own costs.
IT IS SO ORDERED.
s/ Patricia E. Campbell-Smith
PATRICIA E. CAMPBELL-SMITH
Judge
14