DocketNumber： No. 07-220C
Citation Numbers： 77 Fed. Cl. 157
Judges： Braden
Filed Date： 6/27/2007
Status： Precedential
Modified Date： 7/20/2022
MEMORANDUM OPINION AND FINAL ORDER
I. FACTUAL BACKGROUND AND PROTESTS AT THE GOVERNMENT ACCOUNTABILITY OFFICE.
On October 25, 2005, the United States Department of Homeland Security (“DHS”) awarded Plaintiff Contract No. HSHQDC-05-00036 (“Contract”) as a set-aside, pursuant to the Historically Underutilized Business Zone (“HUBZone”) Act, 15 U.S.C. § 657a.
On June 23, 2006, the Contracting Officer responsible for the consolidated transportation procurement issued a Request for Information (“RFI”) to ascertain interest in providing a DHS-wide transportation services contract. See AR at 21, 250. The RFI solicited “interested parties willing and capable of providing for DHS and component transportation needs of daily scheduled shuttle bus/van services over fixed routes, unscheduled group bus/van transportation, and VIP transport via executive sedan, to include provision of all labor and equipment.” Id. at 21. All interested firms were invited to submit a capability package, including: 1) core services, utilizing North American Industrial Classification Codes (“NAICS”) codes; 2) key personnel; 3) corporate experience and a listing of existing or previous contracts for similar types of services; 4) type of business; 5) current facility security clearance level for overnight parking of vehicles and buses; 6) principals and drivers with suitability determinations; and 7) handicapped/wheelchair accessible shuttle buses. Id. at 21-25. The RFI informed potential offerors that: “The determination as to whether or not it is practicable or feasible to use contractor proposed storage space or a particular type of storage space at a particular location shall be made by the Department of Homeland Security after considering the nature of program demands and special requirements at that location.” Id. at 23. DHS, however, discouraged Plaintiff from responding to the RFI, representing to Plaintiff that DHS already was aware of Plaintiffs interest in the proposed procurement. See AR at 276 (Jan. 18, 2007 Decl. of Lucretia Pearce, Plaintiffs Chief Operating Officer); see also id. at 283 (SBA Jan. 22, 2007 Comments).
In September 2006, the Commodity Council and the Contracting Officer announced the following acquisition strategy: 1) DHS executive sedan service would be consolidated into a single contract to provide on-call transportation and courier services for authorized DHS executives; 2) DHS would award two separate contracts for shuttle bus services; 3) contractors would provide all of the vehicles, including shuttle buses and executive sedans; and 4) contractors would be responsible for providing secure storage of the vehicles. See AR at 250.
Because of the increased scope of the proposed procurement, the Director of DHS’s Office of Small and Disadvantaged Business Utilization (“OSDBU”) consulted with the Director of DHS’s Office of Procurement Operations (“OPO”) to ascertain whether the procurements could be restricted to fewer contracts.
Accordingly, the Director of OSDBU and the Director of OPO concluded that “conducting this procurement under a HUBZone sole source or competitive set-aside presented a high degree of risk of the government not receiving adequate proposals.” AR at 251; see also id. at 247. Moreover, the procurement “would be too difficult and too expensive for a HUBZone company to fulfill," due to the increase in the scope and number of security requirements. Id. at 252; see also id. at 247. Nevertheless, the Director of OSDBU and the Director of OPO decided that small businesses were interested in the procurement and could fulfill the requirements. Id. at 252. On October 6, 2006, the Director of OPO convened a meeting of senior executives involved with the procurement and each concurred with the decision to set aside the procurement for small businesses. Id. at 252.
On October 10, 2006, DHS amended the RFI to inform potential offerors that the contract “will require that all interested parties have a Defense Industrial Security Clearance Office (‘DISCO’) cleared Contractor Owned facility at time of award” and “[a]ll Contractor principals and operations personnel are required to obtain a Security Clearance.” AR at 27.
On November 20, 2006, DHS posted Solicitation HSHQDC-07-R-00009 for DHS-wide transportation services contract (“Solicitation”) on the FedBizOps website. See AR at 29.
The Solicitation included a Standard Form 1449, designating in Box 15 the delivery address;
Department of Homeland Security
Office of Procurement Ops. (DO)
245 Murray Lane
Building 410
Washingtonf,] DC 20528
AR at 29.
In the Section entitled “Instructions To Offerors,” the Solicitation instructed:
Offers shall be received by December 12, 2006, 2:00 pm Eastern Standard Time (EST). Offers shall be submitted in a sealed envelope only to the Contract Specialist, at the address below.
Submissions must show the name and address of the Offeror. Mr. Frank Rumph’s phone number is 202-447-5588.
Frank Rumph, Contract Specialist
OPO Headquarters Procurement Division
7th & D Street, SW
*161 Washington, DC 20024
AR at 66 (emphasis in original).
The section of the Solicitation entitled, “Contract Administration Data,” provided the names of the Contracting Officer and Contract Specialists, with the following address underneath each name:
Office of Procurement Operations
7th and D
245 Murray Lane, SW
Bldg. 410
Washington, DC 20528.
AR at 42.
The Solicitation also provided offerors with the opportunity to submit questions:
Questions concerning this [Solicitation] must be sent in writing via email to the address listed below:
DHS.WideTransportation@dhs.gov
Any requests for additional information or explanations concerning this document must be received no later than (10:00 a.m. eastern standard time) on November 28,2006.
AR at 66 (emphasis in original).
In addition, the Solicitation provided that “[a]ll Managers and Operational personnel performing under the resulting contraet(s) will be required to meet the security requirements identified in Attachment 6 at the time of full performance.” AR at 38.
On November 28, 2006, DHS issued Solicitation Amendment 0001, regarding the pre-proposal conference and incorporating applicable Department of Labor wage determination for the Solicitation. See AR at 169.
On December 1, 2006, DHS held a pre-proposal conference “to provide potential of-ferors with the background of the requirement and the strategic source initiative, address information that potential offerors would need to know regarding the preparation of their proposals and provide an overview of the necessary security requirements.” AR at 3. Plaintiffs representatives attended the pre-proposal conference. Id; see also id. at 527 (Jan. 9, 2007 letter from Plaintiffs counsel to GAO and DHS counsel). Any questions that arose after the pre-proposal conference were to be submitted by December 5, 2006 at 10 a.m. EST. Id. at 3.
On December 4, 2006, DHS issued Solicitation Amendment 0002, providing slides from the pre-proposal conference and answers to questions submitted by prospective offerors, and informing offerors that a subsequent amendment would be issued to address additional questions. See AR at 2,193.
On December 7, 2006, Plaintiff filed a protest with the United States Government Accountability Office (“GAO”), alleging that the Solicitation violated the terms of the HUBZone Act, 15 U.S.C. § 657a (2004), and FAR § 19.1305 (2006), by failing to restrict competition to HUBZone small business concerns and because the facility requirements were unduly restrictive. See AR at 11.
On December 8,2006, DHS issued Solicitation Amendment 0003:
1. Question: Regarding solicitation. The SF 1449, 15. states “Deliver to Department of Homeland Security Office of Procurement ops (DO), 245 Murray Lane, Building 410, Washington DC 20528. @ page 38 the delivery address is 7th and D Street, SW. Please clarify.”
Government Response: Change the delivery address @ page 38 to read:
Department of Homeland Security Office of Procurement Operations, 245 Murray Lane, Building 410, Washington DC 20528. ATTN Frank Rumph.
AR 225 (emphasis in original).
In addition, Solicitation Amendment 0003 extended the deadline to December 19, 2006,
Around 9:46 a.m. on December 19, 2006, Plaintiffs Chief Operating Officer hand-delivered Plaintiffs proposal to Bid Room 1065, located within the General Services Administration (“GSA”) Building, at 7th and D Streets, identified by a sign at the entrance labeled “HSPD-12 Contractor Processing Center.”
By 10:30 a.m. on December 19, 2006, DHS had received nine proposals responding to the Solicitation that timely were delivered to the correct address. See TR at 41.
On January 8, 2007, DHS responded to Plaintiffs GAO protest challenging Plaintiffs standing on the grounds that Plaintiff did not submit a proposal in response to the Solicitation. See AR at 255-56.
On January 9, 2007, Plaintiffs Chief Executive Officer and Chief Operating Officer returned to the GSA bid room and discovered that the proposal was still there. See AR at 610 (Jan. 18, 2007 Deck of Lucretia Pearce, Plaintiffs Chief Operating Officer). They spoke with the Chief of GSA’s Operations Branch Procurement Division who assured them that the proposal would be delivered to DHS and that the GSA bid room had made the mistake. Id. at 610-11. After learning that DHS’s January 8, 2007 GAO report represented that Plaintiff never submitted a proposal, on January 10, 2007, Plaintiffs counsel sent a letter to DHS confirming that Plaintiff “hand delivered its proposal to DHS on December 19, 2006, at 9:46 a.m.” Id. at 529-30. On January 10, 2007, the Contracting Officer went to the GSA bid room, located at 7th and D Streets, and learned from the Chief of GSA’s Operations Branch Procurement Division that Plaintiffs proposal was submitted there, but the Contracting Officer left Plaintiffs proposal in the GSA bid room. Id. at 506 (DHS’s Jan. 11, 2007 Motion to Dismiss).
On January 10, 2007, Plaintiffs Chief Operating Officer contacted the Chief of GSA’s Operations Branch Procurement Division and was advised that Plaintiffs proposal was delivered to the wrong location and must be
On January 11, 2007, DHS’s counsel renewed a Motion to Dismiss Plaintiffs GAO protest for lack of jurisdiction and presented evidence that Plaintiff submitted the proposal to a location other than the one specified in the Solicitation. See AR at 506. On January 19, 2007, Plaintiff filed a second protest, challenging DHS’s rejection of the proposal as late. See AR at 539-19.
On February 8, 2007, GAO denied DHS’s Motion to Dismiss. See AR at 534 (e-mail from GAO counsel to DHS counsel stating: “GAO will dismiss a protest when no element of that protest need be considered on the merits. I see some merit to this protest, and so I will not grant the agency’s motion to dismiss.”).
On January 22, 2007, SBA filed a Comment in response to DHS’s Report:
Based upon our analysis of the facts, we believe that the [Solicitation], issued as a small business set aside, should have been set aside for HUBZone businesses and the protest should be sustained---- The evidence that is contained in the Agency report clearly shows that two or more HUBZone business concerns were interested in performing the requirement____ DHS ... argues that the HUBZone SBCs that responded were not capable of performing on the contract due to lack of a DISCO clearance; however DHS fails to provide the quantitative data to support its findings____ The information upon which DHS basis[sic] its conclusion not to set aside for HUBZone is inadequate and appears to be limited to the eleven SBCs that responded to the RFI despite the existence of thirty-three SBCs in the CCR database. Furthermore, a decision as to responsibility (capability) is decided by SBA and is based on the information the concerns submit in their offers, not in response to an RFI or based on information contained in an unidentified database. Additionally, DHS does not provide evidence of how it ascertained that the firms could not meet the requirement by time of award.
AR at 278, 283-84.
Nevertheless, on March 13, 2007, GAO denied Plaintiffs December 7, 2006 protest on the grounds that: DHS’s decision not to set aside the procurement for HUBZone businesses was reasonable, because there was not a reasonable expectation that offers would be received from two or more HUBZone businesses; and the Solicitation was not unduly restrictive, because the record established that the security requirements were reasonably designed to meet DHS’s needs. See AR at 433-42. On March 30, 2007, GAO denied Plaintiffs January 19, 2007 protest on the grounds that the Government did not cause Plaintiffs proposal to be late and the proposal was not received at the Government installation designated for receipt prior to the submission deadline. Id. at 598-602.
II. PROCEDURAL HISTORY IN THE UNITED STATES COURT OF FEDERAL CLAIMS.
On April 4, 2007, Plaintiff filed a Complaint in the United States Court of Federal Claims, together with a Motion for a Temporary Restraining Order, a Motion for a Preliminary Injunction, and a Memorandum of Points and Authorities in Support. Count I of the Complaint alleges that “DHS’s decision not to set aside the Solicitation for HUBZone small business concerns was arbitrary, capricious, and not in accordance with the law and regulation.” Compl. II13. Count II alleges that DHS erred in failing to accept Plaintiffs proposal, pursuant to the case law and FAR § 15.208(b)(l)(ii) exceptions for late proposals. Id. IN 36-56. Count III alleges that “DHS breached the implied duty of good faith and fair dealing in deciding to abrogate the Existing Contract and in conducting its research and analysis of potential HUBZone offerors when drafting the current Solicitation.” Id. II58. In addition, the Complaint requests that the court “[d]eclare that the Solicitation should be canceled and reissued as a HUBZone small business set-aside” or else “declare that DHS should be required to accept [Plaintiffs] proposal for the small business contract as time
On April 5, 2007, the court convened a telephone status conference with the parties. On April 6, 2007, Plaintiff filed a Memorandum on Jurisdiction. On April 9, 2007, the Government filed an Unopposed Motion for a Protective Order, that the court granted. On April 12, 2007, the court convened a telephone status conference and issued a Scheduling Order.
On April 17, 2007, the Administrative Record was filed. On April 18, 2007, Plaintiff filed a Motion for Leave to Supplement the Administrative Record, with Expanded Discovery, e.g., the Deposition of Frank Rumph, Contract Specialist. Plaintiff also moved for leave to file a Supplemental Brief to Plaintiffs Motion for Judgment on the Administrative Record, including testimony adduced during the Rumph Deposition. On April 27, 2007, the Government filed: a Response to Plaintiff’s April 18, 2007 Motion; a Motion to Strike the April 18, 2007 Declaration of Lucretia Pearce; and a Corrected Motion. On April 30, 2007, the court issued an Order granting Plaintiffs April 18, 2007 Motion for Leave to Supplement the Administrative Record. On the same date, the court issued an Order, denying the Government’s Corrected Motion to Strike the Pearce Declaration.
On April 30, 2007, Plaintiff filed a Motion for Judgment on the Administrative Record and Memorandum in Support (“PI. AR Mot.”) and a Motion for Leave to Supplement the Administrative Record with the following documents: January 31, 2007 Additional Comments of Protester in File No. B-299241; January 18, 2007 Declaration of Lucretia Pearce, Plaintiffs Chief Operating Officer; and January 18, 2007 Declaration of Christopher Baker, Plaintiffs Chief Executive Officer. On May 2, 2007, Plaintiff filed a Motion for Leave to Request Documents and an Extension of Time to File Supplemental Brief.
On May 4, 2007, the court convened a telephone status conference and issued an Order, granting Plaintiffs April 30, 2007 Motion for Leave to Supplement the Administrative Record and granting Plaintiffs May 2, 2007 Motion for Leave to Request Documents and Extension of Time to File Supplemental Brief. On May 7, 2007, the Government filed a Supplement to the Administrative Record with two e-mail messages, dated November 28, 2006 and December 5, 2006. On May 9, 2007, Plaintiff also supplemented the Administrative Record with: January 31, 2007 Additional Comments of Protester in File No. B-299241; January 18, 2007 Declaration of Lucretia Pearce, Plaintiffs Chief Operating Officer; and January 18, 2007 Declaration of Christopher Baker, Plaintiffs Chief Executive Officer.
On May 9, 2007, Plaintiff filed a Supplemental Brief to the Motion for Judgment on the Administrative Record (“Pl.AR.Mot. Supp.”). Plaintiff also filed a Consent Motion to Supplement the Administrative Record with the May 1, 2007 Deposition of Frank Rumph, which the court granted. On May 14, 2007, Plaintiff filed the Rumph Deposition as a Supplement to the Administrative Record, pages 614-58. On May 15, 2007, the Government filed a Motion to Dismiss or, in the Alternative, for Judgment Upon the Administrative Record and Opposition to Plaintiffs Motion for Judgment Upon the Administrative Record (“Gov’t AR Mot.”). On May 18, 2007, Plaintiff filed a Reply and Opposition to the Government’s Motion to Dismiss or, in the Alternative, for Judgment on the Administrative Record (“PI. AR Reply”). On May 18, 2007, Plaintiff filed a Motion to Supplement the Administrative Record with the April 18, 2007 Declaration of Lucretia Pearce, Plaintiffs Chief Operating Officer.
On May 23, 2007, the court held oral argument on all pending motions. See TR at 1-87. On that occasion, the court granted Plaintiffs May 18, 2007 Motion to Supplement the Administrative Record and Plaintiffs May 23, 2007 oral Motion for Leave to Supplement the Administrative Record, with the document marked “Sprint cellular services call detail.” Id.
III. DISCUSSION.
A. Jurisdiction.
The Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996 (“ADRA”), Pub.L. No. 104-320, §§ 12(a), (b), 110 Stat. 3870 (1996), authorizes the United States Court of Federal Claims 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.” 28 U.S.C. § 1491(b)(1); see also Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed.Cir.2004) (“The [United States] Court of Federal Claims has jurisdiction to review both pre-award and post-award bid protests pursuant to 28 U.S.C. § 1491(b), enacted as part of the Administrative Dispute Resolution Act of 1996[.]”).
The Complaint alleges that: DHS violated the HUBZone Act, 15 U.S.C. § 657a, and FAR § 19.1305 by failing to set aside the Solicitation for a HUBZone small business concern; DHS violated FAR § 15.208(b)(l)(ii) by failing to accept Plaintiffs late proposal; and DHS breached the implied duty of good faith and fair dealing by failing to conduct sufficient research and analysis of potential HUBZone offerors when drafting the Solicitation. See Compl. 111113, 51, 58. These allegations recite a sufficient basis for the court to exercise jurisdiction, pursuant to 28 U.S.C. § 1491(b)(1).
B. Standing.
As a threshold matter, a protester must establish that it is an “interested party.” 28 U.S.C. § 1491(b)(1). The United States Court of Appeals for the Federal Circuit has construed the term “interested party” to be synonymous with “interested party,” as defined by the Competition in Contracting Act, 31 U.S.C. § 3551.
As part of the “direct economic interest” requirement, a protestor must show that any alleged errors caused the protestor “prejudice.” See Galen Med. Assocs. v. United States, 369 F.3d 1324, 1330 (Fed.Cir.2004) (“ ‘[T]o prevail in a protest the protestor must show not only a significant error in the procurement process, but also that the error prejudiced it.’ ”) (quoting Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed.Cir.1996) (alterations in original)); see also Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1370 (Fed.Cir.2002) (“prejudice (or injury) is a necessary element of standing.”). The United States Court of Appeals for the Federal Circuit has advised that “because the question of prejudice goes directly to the question of standing, the prejudice issue must be reached before addressing the merits.” Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed.Cir.2003) (emphasis added); see also Myers, 275 F.3d at 1369 (“standing is a
The United States Court of Appeals for the Federal Circuit has held that a protestor can establish prejudice by showing a “substantial chance” that it would have received the award if the error was corrected. See Bannum, Inc. v. United States, 404 F.3d 1346, 1353 (Fed.Cir.2005) (“To establish prejudice [plaintiff] was required to show that there was a ‘substantial chance’ it would have received the contract award but for ... errors in the bid process.” (citations omitted)); see also Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.Cir.1996) (“To establish competitive prejudice, a protestor must demonstrate that but for the alleged error, there was a ‘substantial chance’ that [it] would receive an award-that is was within the zone of active consideration.” (citations omitted; emphasis and alterations in the original)).
The United States Court of Appeals for the Federal Circuit has held that prejudice depends on the relief sought by the plaintiff:
In Impresa [Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1333 (Fed.Cir.2001),] we considered the standard to be applied where the plaintiff claims that the government was obligated to rebid the contract (as contrasted with a situation in which the plaintiff claims that it should have received the award in the original bid process). [ ] To have standing, the plaintiff need only establish that it ‘could compete for the contract’ if the bid process were made competitive____[Plaintiff] need not show that it would have received the award in competition with other hypothetical bidders, [but rather] must show that it would have been a qualified bidder.
Myers, 275 F.3d at 1370 (emphasis added; citations omitted).
C. Standard For Decision On A RCFC 12(b)(1) Motion To Dismiss.
A challenge to the “court’s general power to adjudicate in specific areas of substantive law ... is properly raised by a [Rule] 12(b)(1) motion.” Palmer v. United States, 168 F.3d 1310, 1313 (Fed.Cir.1999); see also RCFC 12(b)(1) (“Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter[J”).
When considering whether to dismiss an action for lack of subject matter jurisdiction, the court is “obligated to assume all factual allegations to be true and to draw all reasonable inferences in plaintiffs favor.” Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995). Nonetheless, Plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (“[0]nce the [trial] court’s subject matter jurisdiction [is] put in question, it [is] incumbent upon [the plaintiff] to come forward with evidence establishing the court’s jurisdiction.”).
D. Plaintiff Does Not Have Standing To Seek An Adjudication Of This Bid Protest In The United States Court of Federal Claims.
1. As A Matter Of Law, Plaintiff Was Not A “Prospective Offeror.”
The court first examines the contention that the prior GAO filing established Plaintiffs status as a “prospective offeror.”
a. The Parties’ Arguments.
Plaintiff argues that it established prospective offeror status by filing a protest at GAO on December 7, 2006, well before the December 19, 2006 deadline for submission of proposals in response to the November 20, 2006 Solicitation. See PL AR Reply at 3-4 (citing AR at 11, 224). Plaintiff contends that MCI Telecomm. Corp. v. United States, 878 F.2d 362 (Fed.Cir.1989), stands for the proposition that “interested party status as a prospective bidder or offeror can be secured by either (1) filing a bid, or (2) filing a protest before the close of the solicitation, as [Plaintiff] did in this matter.” Id. at 3 (citing MCI Tele-comm. Corp., 878 F.2d at 362 (“[the question is] whether a would-be protestor wishing to bring about a resolicitation on which it says it
At oral argument, the Government emphasized that the United States Court of Appeals for the Federal Circuit’s ruling in Rex Serv. Corp. is dispositive of the standing issue in this case, because “the opportunity to become a prospective offeror passed with the deadline for receipt of proposals; and ... the fact that the plaintiff had timely challenged the solicitation before the GAO was irrelevant.” TR at 47-48 (quoting Rex Serv. Corp., 448 F.3d at 1308) (emphasis added). Since Plaintiff had a choice of forums, Plaintiff must bear the consequences of that choice—in this case, an unsuccessful protest at GAO. See TR at 48.
GOVERNMENT COUNSEL: [Plaintiff] lost before GAO. It now brings this protest, but it does so untimelyt,] [b]ecause it cannot qualify as a prospective offeror in this case, because in the interim between bringing that first protest, which was prior to the deadline and now, [it] ... failed to deliver the proposal to the correct address____ It cannot have a proposal under consideration, because that deadline is now past and, therefore, it cannot be a prospective offeror and does not have standing as an interested party.
TR at 48-49.
Plaintiff responds that Rex Serv. Corp. is not applicable, because the protest in that ease was filed after the award was made. See PL AR Reply at 5 n. 3. In contrast, the protest in this case was timely, because it was filed pre-award. Id. Moreover, “by filing a timely protest at GAO, before the closing date, [Plaintiff] had put the government on notice of defects in the Solicitation, and its filing [in the United States Court of Federal Claims] should be considered to ‘relate back’ to the pre-closing filing it made.” Id. (quoting Baltimore Gas & Elec. Co. v. United States, 133 F.Supp.2d 721, 730 (D.Md.2001) (“[The Government] argues that ADRA should be read to require that a federal court complaint must be filed prior to the closing of bids, even if the plaintiff is simultaneously pursuing agency-level and GAO protests. However, federal regulations specify that GAO ‘will dismiss any protest where the matter involved is the subject of litigation before a court of competent jurisdiction.’ ... Clearly, ADRA did not intend simultaneous protests to proceed in two fora. Thus, [the court] find[s] that [plaintiffs] suit is timely.” (citation omitted))).
b. The Court’s Resolution.
In this case, Plaintiff filed a protest at GAO prior to the December 19,2006 deadline for submission of proposals that was unsuccessful. See AR at 433-42. Since Plaintiff chose GAO as the forum of resolution, Plaintiff effectively relinquished the ability to file a timely protest in the United States Court of Federal Claims. See 4 C.F.R. § 21.11(b) (“GAO will dismiss any case where the matter involved is the subject of litigation before, or has been decided on the merits by, a court of competent jurisdiction. GAO may, at the request of a court, issue an advisory opinion on a bid protest issue that is before the court.”). Although Rex Serv. Corp involved a subcontractor’s attempt to bring a post-award bid protest in the United States Court of Federal Claims after making no effort to submit a proposal, those facts do not affect the relevant principle that a timely pre-award protest submitted to GAO does not confer plaintiff standing to later bring a protest in the United States Court of Federal Claims. As the Federal Circuit has held: “It is not relevant to [plaintiffs] status that it filed a pre-award agency protest[.]” See Rex Serv. Corp., 448 F.3d at 1308. Therefore, as a matter of law, Plaintiffs December 7, 2006 GAO protest does not confer “prospective offeror” status for purposes of standing in the United States Court of Federal Claims.
Accordingly, Plaintiff can only achieve “interested party” status as an “actual offeror.”
2. As A Matter Of Law, Plaintiff Was Not An “Actual Offeror.”
FAR 15.208(a) clearly advises prospective government contractors of their responsibility “for submitting proposals ... so as to reach the Government office designated in the solicitation by the time specified in the solicitation.” 48 C.F.R. § 15.208(a). In this case, the parties do not dispute that Plaintiffs proposal was filed at the wrong location. Plaintiff, however, argues that governing case law and FAR § 15.208(b)(1) excuse Plaintiffs failure to comply with the delivery requirements of the Solicitation.
a. Governing Case Law.
i. The Parties’ Arguments.
Plaintiff argues that DHS “was the paramount cause of the late submission and consideration of the late proposal will not compromise the integrity of the competitive procurement process.” See Pl. AR Mot. at 26 (citing Hosp. Klean of Texas, Inc. v. United States, 65 Fed.Cl. 618, 623 (2005)) (“As GAO explained in Wyatt and Assocs., [Comp. Gen. B-243349, July 1, 1991, 91-2 CPD H 5 at 2, 1991 WL 140260] ...: As a general rule, an offeror has the responsibility of assuring the timely arrival of its proposal at the place designated in the solicitation. However, a hand-carried offer that is received late may be accepted where improper government action was the paramount cause for the late delivery, and the integrity of the procurement process would not be compromised by acceptance of the offer.” (citations omitted; emphasis added)). In this case, DHS’s actions are asserted as the “paramount cause” of the late submission, because: the Solicitation was confusing, with two different addresses listed separately and as one address (AR at 29, 42, 66); the Contract Specialist gave directions to other prospective offerors, without amending the Solicitation in violation of FAR § 52.214-6 (AR at 559); and Plaintiff was assured by government personnel that the proposal properly was submitted (AR at 609-611). See Pl. AR Mot. at 26-28; see also TR at 29-31. Plaintiff also asserts that it attempted in good faith to ensure that the proposal properly was filed (including asking government personnel if the 7th and D Street bid room was the proper location prior to, at the time of, and after submission and receiving assurance that the proposal had been timely and properly submitted (AR at 609-611)). See Pl. AR Mot. at 28-29 (citing Hosp. Klean., 65 Fed.Cl. at 622) (“One of the fundamental principles underlying the rules for the consideration of late bids is that a bidder who has done all it could and should to fulfill its responsibility should not suffer if the bid did not arrive as required because the government failed in its own responsibility, and if that is otherwise consistent with the integrity of the competitive system. We therefore have held that a late hand-carried bid may be considered for award if to do so would not compromise the competitive system and either the government’s ‘affirmative misdirection’ made timely delivery impossible, Select, Inc., supra, or government mishandling after timely receipt by the agency was the sole or paramount cause for the bid’s late receipt at the designated location.” (quoting Palomar Grading & Paving, Inc., Comp. Gen. B-274885, Jan. 10, 1997, 97-1 CPD 1116 at 2, 1997 WL 8497) (emphasis added)).
The Government responds that it was not the “paramount cause” of Plaintiffs late proposal, because the delivery address was unambiguously set forth in Box 15 of the Solicitation (AR at 443) and the correct address was written on the cover sheet of Plaintiffs proposal (AR at 512). See Gov’t AR Mot. at 22; see also TR 38-40, 79. Moreover, no Government action prevented Plaintiff from calling DHS before the submission deadline to receive more explicit directions for delivering its proposal. Id. at 23.
ii. The Court’s Resolution.
The court has determined that governing “case law” does not apply to this case, because the Government was not the “para
Although the two different addresses on the Solicitation created ambiguity, the Government remedied this by Solicitation Amendment 0003 that specifically stated: “Change the delivery address @ page 38 to read: Department of Homeland Security Office of Procurement Operations, 245 Murray Lane, Building 410, Washington DC 20528. ATTN Frank Rumph.” See AR at 225. Amendment 0003 also extended the deadline for submission of proposals to December 19, 2006, at 10:00 a.m. Therefore, Plaintiff was not only on constructive notice of Amendment 0003, but must have actually read it, beeause Plaintiff knew that the submission deadline had been extended. Id. Moreover, Plaintiff was aware of the proper delivery address, because it was on the cover sheet of Plaintiff’s proposal. Id. at 512. In addition, the GSA contracting officer in the GSA bid room and any other non-DHS government personnel that Plaintiffs agents may have questioned were under no duty to know or inform Plaintiff that the correct location for submission of proposals for the Solicitation was 245 Murray Lane.
Moreover, Plaintiff has failed to explain why it sought no clarification of the delivery instructions by: submitting written questions in response to the Solicitation (AR at 66), asking oral questions at the pre-proposal conference that Plaintiffs agents attended and submitting written questions afterwards (AR at 3); or at least calling the Contracting Officer or the Contract Specialist the morning of the deadline, like several of the prospective offerors (AR at 559).
b. Federal Acquisition Regulation § 15.208(b)(1).
i. The Parties’ Arguments.
In the alternative, Plaintiff argues that DHS should accept the proposal under FAR § 15.208(b)(l)(ii):
(b)(1) 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 unless it is received before award is made, the contracting officer determines that accepting the late proposal would not unduly delay the acquisition; and—
(i) 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
(ii) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of proposals and was under the Government’s control prior to the time set for receipt of proposals; or
(iii) It was the only proposal received.
48 C.F.R. § 15.208(b)(1) (emphasis added).
Plaintiff asserts that the requirements of this exception were satisfied, because: Plaintiffs proposal was received by the Government at the 7th and D Street bid room before any award was made, therefore, accepting Plaintiffs proposal would not unduly delay the procurement process; and the proposal has been under the Government’s control since the time of submission. See Pl. AR Mot. at 31. Plaintiff further contends that the proposal “was received at the Government installation designated for receipt of proposals,” because the 7th and D Street bid room and the 245 Murray Lane location are part of the same government installation. Id. at 31-32 (quoting 48 C.F.R. § 15.208(b)(1); see also Cal. Marine Cleaning, Inc. v. United States, 42 Fed.Cl. 281, 298 n. 33 (1998) (“The distinction between ‘designated office’ and ‘government installation’ is thus critical, though regrettably the terms are not defined in the FAR. A careful review of past GAO decisions and the Federal Register preamble to the March 1997 amendment to the late bid rule reveals the following distinction: ‘designated office’ refers to the particular location designated for the receipt of bids in the IFB; ‘government installation’ refers to the entire government facility in which the ‘designated office’ is located.”)). Plaintiff argues that “[although the 7th and D Street Bid Office is not physically located in the immediate vicinity of the 245 Murray
The Government responds that Plaintiffs proposal was not “ ‘received at the Government office designated in the solicitation,’” because Plaintiff did not submit the proposal to the office designated in the Solicitation at 245 Murray Lane before the deadline and subsequently has made no effort to do so. See Gov’t AR Mot. at 23 (quoting 48 C.F.R. § 15.208(a) and citing Compl. 1141). The Government also contends that Plaintiffs proposal was not “ ‘received at the Government installation designated for receipt of proposals,’ ” because the GSA bid room at 7th and D Streets was not within or even near the government facility at the Anacostia Naval Station at 245 Murray Lane. Id. at 25-26 (quoting 48 C.F.R. § 15.208(b)(1)(ii) and citing Cal. Marine Cleaning, Inc., 42 Fed.Cl. 281 at 298 n. 33); see also TR at 70-75. Therefore, the Government concludes that “[following [Plaintiffs] argument to its logical conclusion, any Government office would be obligated to accept proposals, regardless of whether the office was designated as the delivery location in the [Solicitation.” See Gov’t AR Mot. at 26.
ii. The Court’s Resolution.
The court has also determined that FAR § 15.208(b)(1) is inapplicable in this case.
FAR § 15.208(b)(l)(ii)’s requirements that a proposal must be received at the “Government installation designated for receipt” pri- or to the deadline and remain under the “Government’s control,” until it is forwarded to the “designated Government office,” suggest that the regulation was designed as a “mail room” exception. See 48 C.F.R. § 15.208(b)(l)(ii). For this reason, the exception only makes sense if a proposal was sent from one part of a Government installation to the designated office by a Government agent in the ordinary course of business. Id. Because this is not what happened in this case, the exception does not apply. It would be a closer case if GSA had sent the proposal to the “designated Government office” at 245 Murray Lane, however, GSA was under no duty to do so, because the transmission of proposals from the GSA bid office, at 7th and D Streets, to DHS was not part of the ordinary course of business under the Solicitation. Indeed, Plaintiff not only delivered the proposal to the wrong office, but also to the wrong agency. See AR at 565-66.
Plaintiff explains that it cannot meet the requirement that the proposal was received at the “designated Government office,” because if Plaintiff removed the proposal from the GSA bid room to deliver it to the designated office, it would no longer remain “under the Government’s control.” See Pl. AR Reply at 13; see also 48 C.F.R. § 15.208(b)(1)(ii). Plaintiffs dilemma, however, illustrates that FAR § 15.208(b)(1)(ii) is inapplicable to the facts in this case.
Moreover, as matter of law, Plaintiff did not deliver the proposal to the “designated Government installation.” See 48 C.F.R. § 15.208(b)(1)(ii). In Cal. Marine Cleaning, Inc., the United States Court of Federal Claims stated that “ ‘designated office’ refers to the particular location designated for the receipt of bids” and “ ‘government installation’ refers to the entire government facility in which the ‘designated office’ is located.” 42 Fed.Cl. at 298 n. 33. First, contrary to Plaintiffs assertion, the Administrative Record evidences that only three out of more than 15,000 DHS procurement actions in the past three years have involved delivery to the GSA bid room at 7th and D Streets, which undercuts the argument that there was a relationship between the 245 Murray Lane location and GSA bid room. See AR at
Because Plaintiff did not timely submit a proposal, Plaintiff is not an “actual offeror” and cannot establish “interested party” status. Accordingly, Plaintiff does not have standing to bring the claims alleged in the April 4, 2007 Complaint in the United States Court of Federal Claims.
Although Plaintiff may perceive the court’s ruling as harsh, the prohibition against late bids “alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the deadline set for all competitors.” PMTech, Inc., Comp. Gen. B-291082, Oct. 11, 2002 CPD It 172 at 2, 2002 WL 31303100; see also TR 42-45.
IV. CONCLUSION.
For the aforementioned reasons, the court hereby grants the Government’s May 15, 2007 Motion to Dismiss. The Clerk of the United States Court of Federal Claims is directed to dismiss Plaintiffs April 4, 2007 Complaint.
IT IS SO ORDERED.
On June 27, 2007, a pre-publication draft of the Memorandum Opinion and Final Order was provided to the parties under seal, with instructions to propose any redactions, but no redactions were proposed.
. The facts herein recited were derived from the April 17, 2007 Administrative Record and 1 Supplements thereto (“AR 1-662”) and the May 23, 2007 oral argument ("TR 1-87”).
. In 1997, Congress enacted the HUBZone Act, 15 U.S.C. § 657a (1994 & Supp. V 1999), to “provide Federal contracting assistance for qualified small business concerns located in historically underutilized business zones, in an effort to increase employment opportunities, investment, and economic development in those areas.” 48 C.F.R. § 19.1301(b) (2000). The United States Small Business Association ("SBA”) is responsible for certifying qualified HUBZone small business concerns. Id. § 19.1303(a). Once HUBZone certified and listed on the SBA’s List of Qualified HUBZone Small Business Concerns, a firm is eligible for HUBZone preferences, either through set-asides, sole source awards, or price evaluation preferences. Id. §§ 19.1303(b), 19.1305-07.
. The Office of Management and Budget requires that all civilian agencies implement strategic sourcing initiatives to improve federal procurement practices. See AR at 1. The Director of DHS’s Office of Procurement Operations represented that "[t]he strategic sourcing process has been successfully used at DHS for several commercial commodities and services it currently uses (e.g., handguns, express mail services, copiers, acquisition and program management support services, etc).” Id. at 249.
. Under the proposed solicitation, DHS’s transportation services would be provided by three contractors, rather than seven utilized under the existing Contract. See TR at 61.
. The CCR is a database for searching all small businesses. See Central Contractor Registration, available at http://www.ccr.gov; see also 48 C.F.R. 13.102 (“Contracting officers should use the Central Contractor Registration database (see Subpart 4.11) at http://www.ccr.gov as their primary sources of vendor information.”). According to the SBA, the CCR and the Dynamic Small Business Search are "important sources for conducting market research on SBCs [small business concerns]. Although the CCR website was created primarily for the U.S. Department of Defense, COs from other agencies use CCR and now the Dynamic Small Business Search as part of their market research when determining whether to set-aside an acquisition for SBCs.” AR at 283.
. Section 8(a) of the Small Business Act, 15 U.S.C. § 637(a), authorizes the SBA to enter into procurement contracts with other federal agencies and to subcontract performance of these contracts to socially and economically disadvantaged small businesses. See Pub.L. No. 85-536, § 8(a), 72 Stat. 384, 389 (1958) (codified as amended at 15 U.S.C. § 637(a) (1988)). This is different than the HUBZone program.
. DHS uses the 245 Murray Lane location as the delivery address for procurements. See AR at 628-29 (May 1, 2007 Dep. of Frank Rumph, DHS Contract Specialist). DHS uses the 245 Murray Lane location, on the Anacostia Naval Station, to x-ray and screen incoming packages for security purposes, before they are delivered by courier to the Office of Procurement Operations Headquarters at 7th and D Streets. Id. at 630-31. Only three of the more than 15,000 procurement actions conducted by DHS in the past three years were delivered to the GSA bid room at 7th and D Streets. Id. at 560-61 (OPO Data Call). Plaintiff’s Chief Operating Officer, however, insisted that:
For the past three years, as the incumbent contractor, [Plaintiff] has understood that the*162 Murray Lane address and the 7th and Streets, SW address, are, for all intents and purposes, synonymous.... [Plaintiff] has delivered and received documents labeled 245 Murray Lane, Bid. 410 at the 7th and D Streets, SW address for the past three years ... Since that time, all documents that read 245 Murray Lane, including monthly invoices and procurement modifications, as well as contract renewal documents, have been hand delivered to the 7th an<i D Streets, SW.
Id. at 609-10.
. Plaintiff's Chief Operating Officer represented that this is the location where Plaintiff delivered the proposal for the existing Contract, even though that proposal had a different address, i.e., 745 Murray Drive [now Lane], See AR at 609-10.
. Plaintiff's Chief Operating Officer represented that in 2004 she was informed by the "Contracting Officer's Technical Representative ('COTR') ... that Murray Drive (later changed to Murray Lane) is 7th and D Streets, SW.” See AR at 609. Plaintiff's Chief Executive Officer represented that the security guards at 7th and D Streets "confirmed that responses to Solicitations and proposals that list 245 Murray Lane are routinely signed in and delivered to the HSPD-12 Bid Room at the 7th and d Streets, SW address.” Id. at 613. The GSA Contracting Officer that date/ time stamped Plaintiff’s proposal represented: "I do know that the GSA Bid Room routinely receives proposals for DHS and that had a customer approached me while I was present in the Bid Room, I would have accepted the customer and assisted them in any way possible.” Id. at 557 (Jan. 1, 2007 Deck of Aliza Brown).
. The term " 'interested parly,’ with respect to a contract or a solicitation or other request for offers described in paragraph (1), means an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” 31 U.S.C. § 3551(2)(A).
. At oral argument, Plaintiff's counsel argued the Baltimore Gas & Elec. Co. case is relevant because, it was decided when the United States District Courts had concurrent jurisdiction with the United States Court of Federal Claims over pre-award bid protests. See TR at 14.
. Plaintiff's Chief Operating Officer represented that she announced to a government employee that she was "delivering bids for the Homeland Security Transportation Contract," at which time the "bid” was registered and a "bid receipt” issued with the DHS Solicitation number, a December 19, 2006, 9:46 a.m. date/time stamp, and the government employee’s signature. See AR at 563, 609. Plaintiff's Chief Executive Officer represented that the security guards at 7th and D Streets "also confirmed that responses to Solicitations and proposals that list 245 Murray Lane routinely are signed in and delivered to the HSPD-12 Bid Room at the 7th and D Streets, SW address.” Id. at 613.
. Contrary to Plaintiff’s contention, FAR § 52.214-6 merely provides that “[o]ral explanations or instructions given before the award of a contract will not be binding. Any information given a prospective bidder concerning a solicitation will be furnished promptly to all other prospective bidders as an amendment to the solicitation, if that information is necessary in submitting bids or if the lack of it would be prejudicial to other prospective bidders.” 48 . C.F.R. § 52.214—6 (emphasis added). Responding to a telephone call from a prospective bidder with the direction that the bid office was located on "Anacostia Naval Station” was not "necessary in submitting bids” or “prejudicial to other prospective bidders,” especially because it had nothing to do with the content of the Solicitation and was merely a direction to a location already represented on the Solicitation and
. When the text of a statute does not provide a definition of a particular term or phrase, the court may consult dictionaries for interpretive guidance. See Rumsfeld v. United Tech. Corp., 315 F.3d 1361, 1369-70 (Fed.Cir.2003) ("We initially turn, therefore, to standard dictionary definitions and other pertinent regulations.”) (citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992) (relying on dictionary definition and related statutory provisions to interpret the text of a statute)); see also Wis. Dep’t of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 223, 112 S.Ct. 2447, 120 L.Ed.2d 174 (1992) (referring to Black’s Law Dictionary and Webster’s Third Int’l Dictionary to interpret the text of a statute).