Naval Sys. v. United States

NAVAL SYSTEMS, INC., Plaintiff, v. THE UNITED STATES, Defendant.

No. 20-1539C

United States Court of Federal Claims

March 26, 2021

John R. Tolle, Baker, Cronogue, Tolle & Werfel, LLP, McLean, VA, for Plaintiff.

Russell J. Upton, Trial Attorney, Commercial Litigation Branch, United States Department of Justice, Washington, DC, for Defendant. With him on the briefs were Elizabeth M. Hosford, Assistant Director, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, and Brian M. Boynton, Acting Assistant Attorney General, Civil Division, United States Department of Justice. Of counsel on the briefs was Christopher Erly, Office of the General Counsel, United States Department of the Navy, Patuxent River, MD.

ORDER AND OPINION

SOLOMSON, Judge.

This matter presents a different twist on the "late is late" line of cases regarding proposal timeliness,¹ although perhaps a more accurate characterization of the issuehere is whether the proverbial teacher - as opposed to the dog - ate the plaintiff's homework. Specifically, Plaintiff, Naval Systems, Inc. ("NSI"), alleges that, on October 19, 2020, NSI submitted a timely proposal in response to Solicitation No N00421-20-R-0003 ("the Solicitation"), but that Defendant, the United States - acting by and through the Department of the Navy ("the Agency") - somehow lost NSI's proposal in the electronic ether. The government, in turn, responds that NSI failed to submit its proposal by the deadline and in the manner the Solicitation specified. Accordingly, the Court is called upon to decide what should be a simple factual question: did NSI submit a timely proposal or not? The answer to that question, however - while not involving any complex government contracting statutes or regulations - does require this Court to analyze and properly consider the applicable standard of review as well as the proper construction of the administrative record.

As explained below, the Court grants in-part, and denies in-part, NSI's request to supplement the administrative record. The record supplementation the Court permits, however, does not ultimately get NSI where it wants to go. Indeed, on the merits, the Court grants the government's motion for judgment on the administrative record ("MJAR"), denies NSI's MJAR, and directs the entry of judgment for the government.

I. Factual Background²

On September 2, 2020, the Agency issued the Solicitation, a small business set-aside, contemplating a single-award indefinite delivery/indefinite quantity contract. AR 166-67. The Solicitation's statement of work covers "Maintenance and Materiel Management (3M); the development of logistics packages; software engineering,development, and integration; engineering support; and technical support to Naval Air Warfare Center Aircraft Division . . . and its customers." AR 185. The Solicitation provided specific instructions for proposal submissions:

The Offeror shall submit all volumes of its proposal electronically via DoD Safe (https://safe.apps.mil/). All proposal documents must be compatible with Microsoft Office 2016 and/or the latest Adobe Acrobat Reader Portable Document Format (PDF), where applicable. An email shall be submitted to cheri.swailes@navy.mil and amy.g.davis@navy.mil no later than 10 days prior to the proposal due date requesting a "Drop-Off Request Code." The "Drop-Off Request Code" email must specify a point of contact name and email address for the Prime contractor and for each individual Subcontractor. The Prime and Subcontractor(s) will each be provided a unique "Drop-Off Request Code" which will allow them to submit proposal documents to the Government independently as needed. The Prime and Subcontractor points of contact will receive an email that contains their unique "Drop-Off Request Code" no less than 3 days prior to the proposal due date. This code authorizes access to submit proposal documents securely via DoD SAFE.

AR 272 at 2.3.³ The Solicitation incorporates by reference FAR 52.215-1, "Instructions to Offerors-Competitive Acquisition." AR 290.⁴ FAR 52.215-1(c)(3), in turn, addresses "[s]ubmission, modification, revision, and withdrawal of proposals," and provides that "[o]fferors are responsible for submitting proposals . . . so as to reach the Government office designated in the solicitation by the time specified in the solicitation." The Solicitation set a proposal deadline of October 19, 2020 at 12:00 PM EST. AR 166.

FAR 52.215-1(c)(3)(ii)(A) specifically addresses proposal timeliness, and provides:

Any proposal . . . received at the Government office designated in the solicitation after the exact time specified for receipt of offers is "late" and will not be considered unless it is received before award is made, the Contracting Officerdetermines that accepting the late offer would not unduly delay the acquisition, and

(1) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals; or

(2) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government's control prior to the time set for receipt of offers; or

(3) It is the only proposal received.

AR166, AR290. FAR 52.215-1(c)(3)(iii) defines "[a]cceptable evidence to establish the time of receipt at the Government installation" to include "the time/date stamp of that installation on the proposal wrapper, other documentary evidence of receipt maintained by the installation, or . . . statements of Government personnel."

According to NSI, "on the morning of Monday, October 19, 2020, at between 10:00 a.m. and 10:30 a.m. EST, NSI employees Diana M. Waldorf and Thomas M. Bock both entered the office of Mr. Bock for the purpose of uploading NSI's proposal." ECF No. 1 ("Compl.") ¶ 10. NSI contends that Mr. Bock logged into the DoD SAFE system, dragged-and-dropped 10 proposal-related files from his computer into the upload section of the SAFE system website, entered a description for each document, and had Ms. Waldorf confirm that all of the files comported with Solicitation requirements. Id. ¶¶ 11-13. Mr. Bock then purportedly clicked a button to commence the upload of NSI's files, and soon after, a screen appeared that indicated "Drop Off Completed" and included some language to the effect of "Your files have been sent successfully." Id. ¶¶ 14-17.

On October 20, 2020, Agency Contract Specialist Cheri Swailes emailed Mr. Bock to ask why NSI had decided not to submit a proposal. AR 745. Mr. Bock and Ms. Swailes then spoke on the phone, at which time Mr. Bock informed Ms. Swailes that a "successful upload of NSI's proposal had been confirmed by DoD SAFE[,]" but that he had not received any confirmation email. Compl. ¶ 28. Concerned that something had gone wrong or perhaps to prompt the Agency to investigate the apparent problem, NSI contacted the DoD SAFE Help Desk to open an incident ticket, the resolution of which both NSI and Ms. Swailes diligently pursued.⁵ AR 749-51; Compl. ¶¶ 29, 31. NSIbelieved, and continues to believe, that it successfully uploaded its proposal via the DoD SAFE system. The DoD SAFE Help Desk escalated the incident several times to higher priority levels in an attempt to investigate and address the issue. AR 752, 758.

While awaiting the resolution of the incident tickets, NSI made several attempts to deliver physical copies of the proposal to the Agency, albeit after the Solicitation's October 19 deadline for the receipt of proposals. On October 20, 2020, NSI unsuccessfully attempted to physically drop off with the Agency a CD-ROM containing the proposal files, but found the Agency's office door locked and received no answer to knocking. AR 755-57. On October 24, 2020, NSI sent the CD-ROM to the Agency via mail. Id.

After investigating NSI's concern, the DoD Help Desk ultimately determined that NSI's proposal was never uploaded to the DoD SAFE website and closed the incident tickets. AR 783. The Agency determined that while NSI itself had not submitted any files via the DoD SAFE system in response to the Solicitation, NSI's planned subcontractors did successfully manage to utilize the SAFE system to upload their proposal files. See, e.g., AR 742-744. In an email to Ms. Swailes, a Help Desk representative who was tasked to the matter included a screenshot of the DoD SAFE database during the time period between 10:00 AM and 11:00 AM EST, when NSI purports to have uploaded its proposal. AR 780-81. That screenshot shows that while there were 1,540 successful drop-offs using the SAFE system during that hour, there were no recorded drop-offs from NSI.⁶ AR 780-81, 783. The Agency thus reasonably concluded that: (1) NSI failed to submit its proposal in a timely manner via the SAFE website; (2) NSI could not submit its proposal late via CD-ROM; and (3) as a result of NSI's failure to submit a timely proposal, NSI could not participate in the competition.

II. Procedural History

On November 6, 2020, NSI filed a complaint in this Court. Compl. In the complaint, NSI alleged that: (1) the Agency improperly rejected NSI's proposal; (2) assuming NSI's proposal was late, the so-called "government control" exception, see FAR § 52.212-1(f)(2)(i)(B), excused NSI's lateness; (3) assuming NSI's proposal was late, the lateness should be waived as a minor formality; and (4) assuming NSI's proposal was late, the Agency should have given NSI an extension to submit its proposal. Id. at 7. In support of NSI's complaint, NSI filed a joint affidavit from its employees, Mr. Bock and Ms. Waldorf, attesting that NSI's proposal had been submitted to the Agency in a timely manner via the SAFE system in compliance with the Solicitation's instructions. ECF No. 1-1. Accordingly, NSI requests that the Court find that NSIsubmitted a timely proposal and thus...