CASTLE-ROSE,INC. v. USA

Filing 31

PUBLISHED OPINION. Published reissued version of 27 opinion issued in sealed form. Parties have indicated no redactions are required. Signed by Judge Charles F. Lettow. (cm)

In the United States Court of Federal Claims
No. 11-163C
(Filed Under Seal: June 23, 2011)
(Reissued: June 28, 2011)

CASTLE-ROSE, INC.,
Plaintiff,
v.
UNITED STATES,
Defendant.

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Standing in bid protests; timeliness under
F.A.R. § 15.208; exceptions to late-is-late
rule; notice of lateness under F.A.R.
15.208(f); nonprejudicial errors; jurisdiction
to consider in bid protests claims based upon
the implied contractual covenant of good
faith and fair dealing

Cyrus E. Phillips IV, Albo & Oblon LLP, Arlington, Virginia, for plaintiff.
Joshua A. Mandlebaum, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him on the briefs
were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Bryant G. Snee,
Deputy Director, Commercial Litigation Branch, Civil Division, United States Department of
Justice, Washington, D.C. Of counsel was Virginia K. Ryan, Office of Counsel, United States
Army Corps of Engineers, Seattle District, Seattle, Washington.
OPINION AND ORDER 1
Lettow, J.
In this post-award bid protest, plaintiff Castle-Rose, Inc. challenges the United States
Army Corps of Engineers’ (“Corps” or “USACE”) determination that Castle-Rose’s bid
responding to solicitation request W912DW-19-R-0045 was received by the government too late
to be considered for an award.
The proposal was turned over to the procurement technician at 2:06 p.m. — six minutes
after the deadline. Castle-Rose’s proposal was not considered, and the Corps awarded the
contract to Advanced Technology Construction Corporation (“Advanced Technology”). Castle1

Because this opinion and order might have contained confidential or proprietary
information within the meaning of Rule 26(c)(1)(G) of the Rules of the Court of Federal Claims
(“RCFC”) and the protective order entered in this case, it was initially filed under seal. The
parties were requested to review this decision and to provide proposed redactions of any
confidential or proprietary information on or before June 28, 2011. No redactions were
requested.

Rose now contests the award on the grounds that its proposal was not late, that the Corps should
have considered Castle-Rose’s proposal even if it was late, and that Castle-Rose was prejudiced
because it was not informed that its proposal would not be considered until approximately two
months had passed from the delivery of its proposal.
BACKGROUND 2
A. Castle-Rose’s Proposal
On June 4, 2010, the United States Army Corps of Engineers’ Seattle District issued
solicitation request W912DW-19-R-0045. See AR 15-84 (RFP No. W912DW-10-R-0045). 3
The solicitation sought demolition and disposal services for a decommissioned groundwater
treatment plant and other items located at the Wykoff/Eagle Harbor Superfund Site at Bainbridge
Island, Washington. AR 15-92.
Item eight of the solicitation instructed bidders to address their offers to the location in
item seven, “USA Engineer District, Seattle[;] ATTN: CECT-NWS-CT[;] PO Box 3755[;]
Seattle, WA 98124-3755.” AR 15-92. Item eight alternatively specified that “[h]and[]carr[ied]” offers should be brought to “Seattle District, USACE[;] 4735 E. Marginal Way
South.” AR 15-92. Item nine of the solicitation added, “Sealed offers . . . will be received at the
place specified in Item 8, or if hand[-]carried, in the depository located in Contracting Division,
2nd Floor, Col C-5 until 2:00 PM local time July 7, 2010.” AR 15-92.
The proposal was amended four times, and each amendment noted, “The proposal
submittal time and date of Wednesday, July 7, 2010 at 2:00 p.m. LOCAL TIME remains the
same.” AR 16-437 (First Amendment to Solicitation); AR 17-439 (Second Amendment to
Solicitation) (“The proposal submittal time and date of July 7, 2010 at 2:00 p.m. LOCAL TIME
remains the same.”); AR 18-493 (Third Amendment to Solicitation); AR 19-550 (Fourth
Amendment to Solicitation).

2

The recitations that follow constitute findings of fact by the court drawn from the
administrative record of the procurement, see Bannum v. United States, 404 F.3d 1346, 1356
(Fed. Cir. 2005) (noting that bid protest proceedings “provide for trial on a paper record,
allowing fact finding by the trial court”), and the parties’ submissions related to prejudice and
equitable relief, see Vanguard Recovery Assistance, J.V. v. United States, __ Fed. Cl. __, __ &
n.9, 2011 WL 2120796, at *7 & n.9 (May 27, 2011); PGBA, LLC v. United States, 60 Fed. Cl.
196, 204 n.11 (2004) (observing that the court, not the agency, is the initial fact finder as to
prejudice and equitable issues), aff’d, 389 F.3d 1219 (Fed. Cir. 2004).
3

“AR __” refers to the administrative record filed with this court in accord with RCFC
52.1(a). The administrative record has been subdivided into tabs. The first number in a citation
to the administrative record refers to a particular tab, and the number after the hyphen refers to
the particular page number of the administrative record, e.g., “AR 5-26.” The pages of the
administrative record are paginated sequentially without regard to the tabs.
2

“It is the standard practice for a contracting employee to await last-minute hand-delivered
proposals in the main lobby on the first floor [of the building in which the Contracting Division
is housed], as non-Corps personnel require an escort to access the second floor.” AR 2.1-6
(Mem. of Scott Britt, Contract Specialist (Sept. 28, 2010) (“Britt Mem.”)); AR 2.3-9 (Mem. of
Sonia Frees, Procurement Technician (Sept. 28, 2010) (“Frees Mem.”)). Accordingly, Ms. Frees
averred that on July 7, 2010, from 1:30PM to 2:00PM, “I was in the lobby of the USACE
building awaiting proposals by offerors. At 2:00 PM by the lobby clock, since there were no
additional offerors in the lobby and the time for receipt of the bids had ended, I returned to my
desk and reported to the Contract Specialist, Scott Britt, that there were no additional proposals
received.” AR 2.3-9 (Frees Mem.); see also AR 2.1-6 (Britt Mem.) (stating the same).
After Ms. Frees left the lobby, a messenger from Castle-Rose, Raymond Kessler, arrived
in the lobby to deliver Castle-Rose’s proposal for the solicitation. See AR 1-2 (Contracting
Officer’s Finding and Recommendation: Agency Protest (Oct. 20, 2010)); AR 5-30 (CastleRose’s Agency Protest). A security guard gave Mr. Kessler a four-digit telephone number to call
Ms. Frees using the lobby telephone. AR 1-2; AR 5-30. Mr. Kessler misinterpreted this number
as Ms. Frees’ room number, proceeded to enter the elevator, and was stopped by the security
guard. AR 1-2; AR 5-30. The government represents that Mr. Kessler also tried to climb up the
stairs and was stopped again. AR 1-2. The security guard then called Ms. Frees and told her that
a representative from Castle-Rose had arrived in the main lobby with a proposal. AR 1-2.
Ms. Frees states she received the call at 2:06 p.m. and returned to the lobby to meet with
Mr. Kessler. AR 2.3-9 (Frees Mem.); see also AR 1-2. She says she told Mr. Kessler that
Castle-Rose’s “proposal would be marked late and that it would be up to the Contracting Officer
to accept it or not.” AR 2.3-9. Ms. Frees then brought the boxes to Mr. Britt’s desk. The boxes
in which the proposals arrived were marked as arriving at 14:06, 2:06 p.m. in military time. See
AR 3.1-10 to 3.6-15 (Photographs of Castle-Rose’s Unopened Proposals). Mr. Britt also wrote
“LATE” across the two boxes. See AR 2.1-6; AR 3.1-10 to 3.6-15. He put the boxes in a secure
area, but “did not remember” to send Castle-Rose a written confirmation that the proposal was
late. AR 2.1-6 (Britt Mem.).
On September 8, 2010, Castle-Rose’s vice president, Jason Smith, sent an email to
Mr. Britt asking when the contract award would be made. AR 2.1-6 (Britt Mem.). Mr. Britt
answered, saying an award was expected prior to September 30, 2010. AR 4.1-16 (E-mail from
Britt to Smith (Sept. 8, 2010)). He then sent a follow-up e-mail stating, “By the way, Jason —
you realize that your proposal was late and was not evaluated, right?” AR 4.2-20 (E-mail from
Britt to Smith (Sept. 8, 2010)). Mr. Smith answered,
From what we were [told] by our bid runner — he
was inside the building at the bid due time — but he
wasn’t sure where to go. It did get clocked in 6
minutes late — but we were anticipating that the bid
would still be accepted due to the fact we were in
the building on time.
AR 4.2-20 (E-mail from Smith to Britt (Sept. 28, 2010)). Mr. Britt replied, “No, the proposal is
not acceptable even one minute after the proposal due date time. . . . In the future, your courier

3

should arrive with ample time to spare in case he [or] she does not know [his or her] way to the
front door of Federal Central South.” AR 4.2-19 to 20 (E-mail from Britt to Smith (Sept. 8,
2010)). Mr. Smith replied again,
I appreciate the feedback. If we could double
check what actually happened — I believe our
courier was inside the front door at East Marginal
Way (we’ve delivered many proposals there) on
time.
If he wasn’t, we certainly take responsibility for
that. His version of events is that he was inside the
door at bid time, had to be redirected through
security a second time, was then directed to a room
for delivery and redirected to another individual
[who] then stamped the proposal in (after the due
time).
I apologize for only addressing this now, but I
wasn’t aware that our bid had not been accepted.
AR 4.2-19 (E-mail from Smith to Britt (Sept. 8, 2010)). Mr. Britt did not respond to this e-mail.
B. Procedural History
Castle-Rose learned through a notice published on the FedBizOpps website that the
demolition and disposal services contract had been awarded to Advanced Technology on
September 24, 2010. See AR 21-557 (FedBizOpps Notice of Contract Award). On September
28, 2010, Castle-Rose submitted an agency-level protest of the award to Contracting Officer
Bonilie L. Lackey, arguing that its proposal should have been considered timely, that it had never
received notice that the proposal was late as required by 48 C.F.R. (“F.A.R.”) § 15.208(f), and
that if it had received prompt notice, “Castle-Rose would have immediately obtained the
necessary oral testimony from security guards and contracting representatives” that would show
the proposal had been delivered on time. AR 5-30 to 31.
The Corps issued a decision on Castle-Rose’s agency protest on October 8, 2010, ruling
that Castle-Rose’s protest had been untimely. The Corps noted that F.A.R. § 33.103 provided,
“[P]rotests shall be filed no later than 10 days after the basis of the protest is known or should
have been know, whichever is earlier” but that “[t]he agency, for good cause shown, or where it
determines that a protest raises [significant] issues . . . , may consider the merits of any protest
not timely filed.” AR 6-36 (Agency Protest Decision). The Corps explained that Castle-Rose
should have known its basis for protest on September 8, after receiving the email from Mr. Britt
stating Castle-Rose’s proposal was late and would not be evaluated, and that Castle Rose’s
agency protest thus had been filed outside of the ten-day protest window. AR 6-36.
Nonetheless, the agency noted that Castle-Rose’s protest would have still “fail[ed] on the merits”
because the “proposal was correctly determined to be late and ineligible for consideration for
award.” AR 6-37.

4

On October 18, 2010, Castle-Rose filed a protest with the Government Accountability
Office (“GAO”), arguing that its agency-level protest should have been considered timely and
that its contract proposal should have been considered by the Corps. AR 7.1-47 (Castle-Rose’s
GAO Protest (Oct. 18, 2010)). GAO dismissed Castle-Rose’s protest on November 1, 2011,
explaining, “Castle-Rose’s agency-level protest was not timely under our [r]egulations, and
therefore its subsequent protest to [GAO] will not be considered.” AR 10-63 (Castle-Rose Inc.,
B-404265 (Nov. 1, 2010)). Castle-Rose requested reconsideration of GAO’s decision, AR 11-66
to 69 (Castle-Rose’s Request for Reconsideration of GAO’s Decision (Nov. 10, 2010)); and
GAO denied the request, stating “the protester merely repeats arguments it made in its protest,
disagrees with the decision, and has not presented any error of law to warrant reconsideration.”
AR 12-73 (Castle-Rose Inc., B-404265.2 (Jan. 18, 2011)). Castle-Rose then wrote a letter urging
the Corps to reconsider its protest decision, AR 13-75 to 81 (Letter from Smith to Lackey (Feb.
8, 2011)), which the Corps declined, AR 14-82 (Letter from Patricia A. Blackwood, District
Contracting Chief, to Smith (Feb. 10, 2011)).
On March 17, 2011, Castle-Rose filed a complaint in this court, protesting the award of
the demolition and disposal services contract to Advanced Technology. Castle-Rose asks the
court to issue a declaration that its proposal submission was timely, that the Corps failed to
provide appropriate notice that the proposal had been deemed late, that the Corps’ justification
for rejecting Castle-Rose’s proposal was arbitrary and capricious, and that awarding the contract
to Advanced Technology despite Castle-Rose’s lower bid price was contrary to the terms of the
solicitation. Compl. at 23-24. Castle-Rose further requests that the court remand this matter to
the Corps, with instructions to consider Castle-Rose’s proposal as timely submitted and directing
the Corps to render a new decision on the award. Compl. at 25. 4 Finally, Castle-Rose requests
that the court issue a “[d]eclaration that Castle-Rose is entitled to equitable relief, and money
damages” for the Corps’ failure to consider Castle-Rose’s proposal as timely submitted. Compl.
at 25.
JURISDICTION (STANDING)
The government first contests Castle-Rose’s standing to challenge the Corps’ award to
Advanced Technology. To establish standing in a bid protest action in this court, a petitioner
must be an “interested party.” 28 U.S.C. § 1491(b)(1). Interested parties are “actual or
prospective bidders or offerors whose direct economic interest would be affected by the award of
the contract or by failure to award the contract.” American Fed’n of Gov’t Emps. v. United
States, 258 F.3d 1294, 1302 (Fed. Cir. 2001); see also Distributed Solutions, Inc. v. United
States, 539 F.3d 1340, 1344 (Fed. Cir. 2008); Rex Serv. Corp. v. United States, 448 F.3d 1305,
1307 (Fed. Cir. 2006). To establish a direct economic interest as a putative prospective bidder, a
plaintiff must prove that it had a “substantial chance” of being awarded the contract. Labatt
Food Serv., Inc. v. United States, 577 F.3d 1375, 1378 (Fed. Cir. 2009); Weeks Marine, Inc. v.
United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009); Rex Serv. Corp., 448 F.3d at 1308. The
government claims that Castle-Rose does not qualify as an interested party “[b]ecause [i]ts
[p]roposal [w]as [l]ate.” Def.’s Mot. at 21 (heading). Quoting Labatt Food Service, the

4

Castle-Rose withdrew the request for a remand on June 21, 2011.
5

government argues, “‘A late proposal is tantamount to no proposal at all. Such a party has no
“substantial chance” of award.’” Id. at 22 (quoting 577 F.3d at 1381).
Castle-Rose’s position is readily distinguished from the posture of the Labatt protestor.
In Labatt, the protester alleged errors in the procurement process but did not dispute that it had
belatedly responded to a solicitation amendment. The Federal Circuit found that the plaintiff
lacked standing because, having submitted its response to the amendment late, it no longer had a
substantial chance — or any chance — of winning the contract. Labatt Food Serv., 577 F.3d at
1381.
The government wrongly attempts to apply Labatt’s reasoning to Castle-Rose by begging
the question before the court, in effect saying that Castle Rose cannot dispute whether its
proposal was late, because its proposal was late. Here, Castle-Rose is disputing the very point
upon which the government relies to try to eliminate its standing. Whether or not the submission
was late is a question to be resolved on the merits, and the answer to that question should not be
presumed in the defendant’s favor to deny a plaintiff the substantive review to which it is
entitled. See Information Handling Servs., Inc. v. Defense Automated Printing Servs., 338 F.3d
1024, 1030 (D.C. Cir. 2003) (“[A] plaintiff's non-frivolous contention regarding the meaning of a
statute must be taken as correct for purposes of standing. . . . Were that not the case, we would
effectively be deciding the merits under the guise of determining the plaintiff's standing.”)
(internal citations omitted); Systems Plus, Inc. v. United States, 69 Fed. Cl. 757, 763-69 (2006)
(concluding that a protestor has standing to contest its exclusion from a competition for a
procurement); Client Network Servs., Inc. v. United States, 64 Fed. Cl. 784, 788-89 (2005)
(same); cf. Claybrook v. Slater, 111 F.3d 904, 907 (D.C. Cir. 1997) (“Whether a plaintiff has a
legally protected interest (and thus standing) does not depend on whether he can demonstrate that
he will succeed on the merits. Otherwise, every unsuccessful plaintiff will have lacked standing
in the first place.”).
Castle-Rose unquestionably has standing to challenge the Corps’ elimination of its
proposal from the competition for an award. Castle-Rose has pled sufficient facts to raise the
question of whether its submission was properly deemed as late, and but for the determination of
lateness, Castle-Rose would have been eligible for an award. It is undisputed that Castle-Rose’s
bid was “substantially lower” than the $1,310,271 contract awarded to Advanced Technology.
See Compl. ¶ 9. The solicitation announced, “The basis of [the] contract award will be [a]
tradeoff analysis between technical factors and price to determine the best value to the
[g]overnment. Selection will be on the basis of the responsible offer, which conforms to the
[Request for Proposal] and represents the most advantageous offer to the [g]overnment.” AR 15199 (Solicitation). Although price was not the only factor on which the contract would be
awarded, Castle-Rose’s substantially lower bid illustrates that Castle-Rose’s bid would have
likely been competitive had it been evaluated by the Corps. If its proposal was timely received,
Castle-Rose had a substantial chance of award and qualifies as an interested party. The
government’s standing argument fails.

6

STANDARDS FOR DECISION
Under 28 U.S.C. § 1491(b)(4), this court’s review of an agency’s decision regarding a
contractual solicitation or award is governed by the standards set forth in the Administrative
Procedure Act, 5 U.S.C. § 706. 5 Given this incorporation by reference, the court may set aside
an agency contracting decision that is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law,” 5 U.S.C. § 706(2)(A), subject to application of factors governing
equitable relief. See PGBA, LLC v. United States, 389 F.3d 1219, 1224-28 (Fed. Cir. 2004).
Judicial review is limited to determining whether the agency’s “decision was based on a
consideration of the relevant factors and whether there has been a clear error of judgment.”
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated in part by
Califano v. Sanders, 430 U.S. 99, 105 (1977) (abrogating Overton Park to the extent it
recognized the APA as an independent grant of subject matter jurisdiction).
An agency’s decision will be upheld even if the court might have applied the
procurement regulations in a different fashion had the court been in the agency’s position. See
Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (quoting M. Steinthal & Co.
v. Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971)); Lumetra v. United States, 84 Fed. Cl. 542,
549 (2008) (“[T]he court ‘will not second guess the minutiae of the procurement process in such
matters as technical ratings and the timing of various steps in the procurement.’” (quoting E.W.
Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996))). A court must not “‘substitute its
judgment for that of the agency,’” Keeton Corrs., Inc. v. United States, 59 Fed. Cl. 753, 755
(2004) (quoting Overton Park, 401 U.S. at 416), and it may overturn an agency’s decision only
“if ‘(1) the procurement official’s decision lacked a rational basis; or (2) the procurement
procedure involved a violation of regulation or procedure.’” Centech Grp., Inc. v. United States,
554 F.3d 1029, 1037 (Fed. Cir. 2009) (quoting Impresa Construzioni Geom. Domenico Garufi v.
United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)).
When a court reviews a challenge to agency action that is alleged to be arbitrary or
capricious or an abuse of discretion, it is obliged to “determine whether the contracting agency
provided a coherent and reasonable explanation of its exercise of discretion.” Impresa
Construzioni, 238 F.3d at 1332-33 (quotation marks and citations omitted). “[T]he disappointed
bidder thus bears a heavy burden of showing that the award decision had no rational basis.” Id.
at 1333 (quotation marks and citations omitted). An agency’s decision lacks a rational basis if
the contracting officer “‘entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view or the product of agency
expertise.’” Keeton Corrs., 59 Fed. Cl. at 755 (quoting Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). “When a challenge is brought on [a claimed
contravention of law], the disappointed bidder must show a clear and prejudicial violation of
applicable statutes or regulations.” Impresa Construzioni, 238 F.3d at 1333 (quotation marks
and citations omitted).
5

Section 1491(b)(4) of Title 28 provides: “In any action under [28 U.S.C. § 1491(b)], the
courts shall review the agency’s decision pursuant to the standards set forth in section 706 of title
5.”
7

ANALYSIS
A. Untimeliness
The crux of Castle-Rose’s case is its argument that its proposal should not have been
considered late and should have been evaluated by the Corps. F.A.R. § 15.208(a) explains,
“Offerors are responsible for submitting proposals . . . so as to reach the [g]overnment office
designated in the solicitation by the time specified in the solicitation.” Lateness is governed by
F.A.R. § 15.208(b)(1), the so-called “late is late” rule. Subsection 15.208(b)(1) provides,
Any proposal, modification, or revision, that is
received at the designated [g]overnment 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 [g]overnment
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 [g]overnment installation designated for
receipt of proposals and was under the [g]overnment’s
control prior to the time set for receipt of proposals; or
(iii) It was the only proposal received.
Exceptions (i) and (iii) are plainly inapplicable to this protest. Only exception (ii) is disputed.
Castle-Rose makes four arguments that its proposal should not have been have been
considered late. Principally, Castle-Rose argues that its courier reached the proper location to
submit proposals on time. Additionally, Castle-Rose argues that its proposal should have been
accepted under the “government control” exception of F.A.R. § 15.208(b)(1)(ii), that its proposal
was delayed due to unanticipated events, and that its proposal was delayed due to improper
governmental action.
1. Place and time of proposal delivery.
Castle-Rose argues that the solicitation was ambiguous as to the location to which handdelivered proposals had to be delivered and that “the place for submission of hand-carried
[c]ompetitive [p]roposals in response to the [s]olicitation was . . . the first-floor lobby of . . .
4735 East Marginal Way South.” Pl.’s Br. at 11-12. Item eight of the solicitation specified that

8

“[h]and[-]carr[ied]” offers should be brought to “Seattle District, USACE[;] 4735 E. Marginal
Way South.” AR 15-92. Correspondingly, item nine of the solicitation specified, “Sealed
offers . . . will be received at the place specified in Item 8, or if hand[-]carried, in the depository
located in Contracting Division, 2nd Floor, Col C-5 until 2:00 PM local time July 7, 2010.” AR
15-92. Castle-Rose maintains that, because it was the practice of the Corps to accept proposals
in the lobby of the building, all that should have been required of its courier was reaching the
lobby of 4735 E. Marginal Way by 2:00 p.m., in accord with the requirement of item eight.
However, items eight and nine of the solicitation must be read together. Castle-Rose was
required to deliver the proposal to the second floor of 4735 E. Marginal Way, although F.A.R.
§ 15.208(b)(1)(ii) would permit the proposal to be turned over to a government official in the
lobby. However, the government was not obliged to accept proposals in the lobby.
Notwithstanding whether the courier had to physically turn over Castle-Rose’s proposal
to the government by 2:00 p.m. or merely reach the lobby by 2:00 p.m., Castle-Rose has failed to
establish the single fact crucial to its success in this case — that its courier arrived in the lobby
on time.
Castle-Rose maintains its courier arrived in the lobby before 2:00:59 p.m. and argues that
the decision by GAO in Haskell Co., B-292756, 2003 CPD ¶ 202, 2003 WL 22740610 (Comp.
Gen. Nov. 19, 2003), supports the argument that a proposal due at “2:00 p.m.” is not late until
after 2:00:59 p.m. In Haskell, a protestor challenged an award to its competitor, arguing that the
competitor’s proposal should have been rejected as late. 2003 WL 22740610, at *1. The
solicitation had stated that the deadline for receipt of proposals was 2:00 p.m., and the challenged
award had been granted to a proposal accepted between 2:00:00 p.m. and 2:00:59 p.m. Id., at *2.
Haskell held,
[T]he [Request for Proposal]’s reference to a
closing time of 14:00 hours could reasonably be
interpreted either as requiring that proposals be
received by 14:00:00, or as requiring that they be
received by 14:00:59. To the extent that is viewed
as an ambiguity in the solicitation, it was one that
was obvious from the face of the [Request for
Proposal], and we have repeatedly held that an
offeror who chooses to compete under a patently
ambiguous solicitation does so at its peril and
cannot later complain when the agency proceeds in
a manner inconsistent with one of the possible
interpretations. . . .
Accordingly, if the record
establishes that [the allegedly late] proposal was
received prior to 14:01:00, we think that the agency
need not have rejected it as late.

9

Id., at *3. Haskell explains that a 2:00 p.m. deadline could reasonably be interpreted as either
2:00:00 p.m. or 2:00:59 p.m. Because either deadline is reasonable, Haskell does not stand for
the proposition that the government must hold open a 2:00 p.m. solicitation period until 2:00:59
p.m., but rather that it may.
But regardless of whether a proposal arriving during the specified minute of a relatively
precise deadline is late, Castle-Rose’s position that the courier arrived before 2:01 p.m. is
unsupported by the facts in the administrative record. Ms. Frees, the procurement technician,
avers that she left the lobby when the lobby clock struck 2:00 p.m. and that she received the
phone call from the security guard to meet with Castle-Rose’s courier, Mr. Kessler, at 2:06 p.m.
AR 2.3-9 (Frees Mem.). The boxes in which the proposals arrived were marked as arriving at
2:06 p.m. as well. See AR 3.1-10 to 3.6-15. There is no evidence in the administrative record
supporting the claim that Mr. Kessler arrived before 2:00:59 p.m. other than hearsay. Mr. Smith
wrote in emails, “[W]e were [told] by our bid runner — he was inside the building at the bid due
time.” AR 4.2-20; see also AR 4.2-19 (“[The courier’s] version of events is that he was inside
the door at bid time.”). 6
Ms. Frees states she was called from the lobby at 2:06 p.m. and received Castle-Rose’s
proposal at that time. When the proposal was brought to Mr. Britt’s desk, he marked the
proposals as “LATE.” See AR 2.1-6; AR 3.1-10 to 3.6-15. Mr. Britt determined that the
proposal had arrived late. Given the facts in the administrative record, the court cannot say that
this determination was an error in judgment. Castle-Rose bears the burden of showing its
proposal arrived on time and that the Corps should have determined its arrival was timely.
Based on the factual record in hand, Castle-Rose has failed to meet this burden.
2. Government-control exception.
Castle-Rose relatedly contends that the “government control” exception of F.A.R.
§ 15.208(b)(1) indicates that its proposal should have been evaluated. This regulatory provision
states, in pertinent part:
Any proposal . . . that is received at the designated
[g]overnment 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 . . . [t]here is acceptable
evidence to establish that it was received at the
[g]overnment installation designated for receipt of
6

F.A.R. § 52.215-1(c)(3)(iii) specifies, “Acceptable evidence to establish the time of
receipt at the [g]overnment installation includes the time/date stamp of that installation on the
proposal wrapper, other documentary evidence of receipt maintained by the installation, or oral
testimony or statements of [g]overnment personnel.” No evidence of this nature, nor of any
another nature, supports Castle-Rose’s contention.
10

proposals and was under the [g]overnment’s
control prior to the time set for receipt of proposals.
F.A.R. § 15.208(b)(1)(ii); see also F.A.R. § 52.215-1(c)(3)(ii)(A) (same).
Castle-Rose argues that the proposal was “received” and “under the [g]overnment’s
control prior to the time set for receipt of proposals.” Pl.’s Br. at 40. As explained in the
previous section, there is not sufficient evidence that Castle-Rose’s courier, Mr. Kessler, arrived
at the lobby before 2:01 p.m., and Castle-Rose’s argument that the proposal was received before
2:01 p.m. resultingly fails.
However, even if Castle-Rose’s courier had arrived on time, Castle-Rose’s argument
regarding the government-control exception still fails to be persuasive. Castle-Rose avers that
the court should find the proposal was under government control the moment Mr. Kessler
stepped into the lobby. Castle-Rose cites no law or precedent supporting the proposition that a
proposal can be under government control while it physically remains in the hands of the bidder.
To the contrary, “[i]n non-electronic commerce cases, the GAO has determined that the
[g]overnment receives a bid at the time the bidder relinquishes control.” Watterson Constr. Co.
v. United States, __ Fed. Cl. __, __, 2011 WL 1137330, at *6 (Mar. 29, 2011) (citing Weeks
Marine, Inc., B- 292758, 2003 CPD ¶ 183, 2003 WL 22383046 (Comp. Gen. Oct. 16, 2003)).
To “relinquish control” of a hand-delivered proposal, the offeror must permanently transfer
control of the proposal to the government. See Immediate Sys. Res., Inc., B-292856, 2003 CPD ¶
227, 2003 WL 22922370, at *3 (Comp. Gen. Dec. 9, 2003); Weeks Marine, 2003 WL 22383046,
at *3.
Castle-Rose’s courier did not relinquish control of the proposal until 2:06 p.m., past the
deadline for receipt of proposals. Had Castle-Rose’s courier given its proposal to the guard
when he entered the lobby, the result of this analysis might have been different. But under the
facts before the court, Castle-Rose cannot rely on the government control exception to prevail. 7
3. Unanticipated-events exception.
Castle-Rose also argues its proposal should be considered under the “unanticipated
events” exception to the late-is-late rule. F.A.R. § 15.208(d) provides, “If an emergency or
unanticipated event interrupts normal [g]overnment processes so that proposals cannot be
received at the [g]overnment office designated for receipt of proposals by the exact time
specified in the solicitation, and urgent [g]overnment requirements preclude amendment of the
solicitation closing date, the time specified for receipt of proposals will be deemed to be
extended.” See also F.A.R. § 52.215-1(c)(3)(iv). This exception “focuses upon whether
7

The government argues that F.A.R. § 15.208(b)(1)(ii) should be read as limited to what
it terms a “mail room” exception. Quoting Shirlington Limousine & Transp., Inc. v. United
States, 77 Fed. Cl. 157, 171 (2007), it argues that the government-control exception “only makes
sense if a proposal was sent from one part of a [g]overnment installation to the designated office
by a [g]overnment agent in the ordinary course of business.” Def.’s Mot. at 17. The court sees
no reason to construe F.A.R. § 15.208(b)(1)(ii) solely in this way.
11

unforeseen events prevent the government from receiving proposals at the site designated, not on
whether unforeseen events prevent the offeror from transmitting its proposal.” ConscoopConsorzia Fra Coop. Di Prod. E Lavoro v. United States, 62 Fed. Cl. 219, 241 (2004), aff’d, 159
Fed. Appx. 184 (Fed. Cir. 2005). Castle-Rose contends that Ms. Frees’ leaving the lobby when
the clock struck 2:00 p.m., rather than at 2:00:59 p.m., was an “unanticipated event.” See Pl.’s
Br. at 43-44.
Ms. Frees’ leaving the lobby at 2:00 p.m. would be expected and reasonable when she
was sitting in the lobby to collect proposals which were due at 2:00 p.m. See Haskell Co., 2003
WL 22740610, at *3 (“[A] closing time of 14:00 hours could reasonably be interpreted either as
requiring that proposals be received by 14:00:00, or as requiring that they be received by
14:00:59.”). Additionally, F.A.R. § 15.208(d) only applies when “urgent [g]overnment
requirements preclude amendment of the solicitation closing date.” There is no indication, nor
has Castle-Rose argued, that urgent requirements precluded amendment of the solicitation. As a
result, Castle-Rose cannot succeed in applying the “unanticipated events” exception.
4. Improper-government-action exception.
Finally, Castle-Rose alleges that improper government action caused Castle-Rose’s
timing of delivery. When “improper government action was the paramount cause for the late
submission, and where consideration of the proposal would not compromise the integrity of the
competitive process,” a late, hand-carried proposal may be considered for a contract award.
ALJUCAR LLC, B-401148, 2009 CPD ¶ 124, 2009 WL 1588827, at *2 (Comp. Gen. June 8,
2009); see also Shirlington Limousine, 77 Fed. Cl. at 168-69. Improper government action is
“affirmative action that makes it impossible for the offeror to deliver the proposal on time.”
ALJUCAR, 2009 WL 1588827, at *2; see also Shirlington Limousine, 77 Fed. Cl. at 170 (citing
Hospital Klean of Tex., Inc. v. United States, 65 Fed. Cl. 618, 622-24 (2005)). The government’s
action does not qualify as the “paramount” cause for late submission where “the offeror or its
agent contributed significantly to the late receipt by not acting reasonably in fulfilling its
responsibility to deliver a hand-carried proposal to the proper place by the proper time, even
though late receipt may have been caused in part by erroneous government action.” Shirlington
Limousine, 77 Fed. Cl. at 169 (quoting Hospital Klean, 65 Fed. Cl. at 622) (internal quotation
marks omitted).
Castle-Rose claims that a 2:00 p.m. deadline is really a 2:00:59 p.m. deadline and that it
was improper for Ms. Frees to leave the lobby of the building before 2:00:59 p.m. Ms. Frees was
not under any legal obligation to wait in the lobby to accept proposals. Although the government
concedes that it is standard practice for one of its employees to accept hand-delivered proposals
in the lobby near the proposal deadline, Ms. Frees’ stated decision to leave the lobby when the
clock struck 2:00 p.m. cannot be deemed “improper.” Indeed, Ms. Frees did not have to be
standing in the lobby at all because the terms of solicitation specified that proposals had to be
delivered to the second floor of 4735 E. Marginal Way South, not to the lobby.

12

B. Notice of Lateness
Castle-Rose separately alleges that the Corps violated that portion of F.A.R. § 15.208(f)
which requires “[t]he contracting officer [to] promptly notify any offeror if its proposal . . . was
received late, and [to] inform the offeror whether its proposal will be considered, unless contract
award is imminent and the [post-award] notice prescribed in 15.503(b) would suffice.” CastleRose did not learn that its proposal had not been considered until September 8, 2010, when
Mr. Britt emailed Castle-Rose’s vice-president asking, “[Y]ou realize that your proposal was late
and was not evaluated, right?” AR 4.2-20. Mr. Britt admits that after he wrote “LATE” on the
proposal, he “put the box in a secure area . . . . [W]ith the box out of sight[] (and out of mind)[,]
[he] did not remember to send [Castle-Rose] a written confirmation that [the] proposal
was . . . late” until his e-mail exchange with Castle-Rose’s vice-president, Mr. Smith, on
September 8, 2010. AR 2.1-6.
The government argues that Ms. Frees’ comment to Castle-Rose’s courier sufficed as
notice. When Ms. Frees accepted Castle-Rose’s proposal, she told the courier that Castle-Rose’s
“proposal would be marked as late and that it would be up to the Contracting Officer to accept
[it] or not.” AR 2.3-9. This statement, however, is not sufficient for two reasons. First,
Ms. Frees did not inform the courier that the proposal would not be considered, as required by
the language of F.A.R. § 15.208(f). She stated that “it would be up to the Contracting Officer to
accept [the proposal] or not.” AR 2.3-9. This statement explicitly leaves the question of
consideration open. Second, Ms. Frees is not the contracting officer. F.A.R. § 15.208(f)
specifies that notice must be given by the contracting officer, in this case, Ms. Bonilie Lackey.
See AR 15-92 (identifying the contracting officer). The government argues that the contracting
officer can delegate this duty. In this respect, F.A.R. § 2.101 provides, “The term [contracting
officer] includes certain authorized representatives of the contracting officer acting within the
limits of their authority as delegated by the contracting officer.” Nonetheless, although the
contracting officer can delegate her duties, there is no indication that Ms. Lackey did delegate
her duty to notify bidders when their proposals were late and would not be accepted.
The government violated its duty under F.A.R. § 15.208(f) to notify Castle-Rose that its
proposal was late and would not be considered. However, “to prevail in a protest the protester
must show not only a significant error in the procurement process, but also that the error
prejudiced it.” Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996). To
demonstrate prejudice, “the protestor must show ‘that there was a substantial chance it would
have received the contract award but for that error.’” Alfa Laval Separation, Inc. v. United States,
175 F.3d 1365, 1367 (Fed. Cir. 1999) (quoting Statistica, Inc. v. Christopher, 102 F.3d 1577,
1582 (Fed. Cir. 1996)). Had the contracting officer immediately notified Castle-Rose that its
proposal was late and would not be considered, the result of the procurement would have been
the same.
Castle-Rose argued in its agency protest, and again argues here, that “[b]ut for the
government delay in notification, Castle-Rose would have immediately obtained the necessary
oral testimony from security guards and [the] contracting representative that constitutes
acceptable evidence of on-time delivery.” AR 5-31; see also Pl.’s Br. at 21, 45. This contention,
however, is not convincing. Castle-Rose learned that its proposal was not considered on

13

September 8, 2010, and it filed its agency protest on September 28, 2010. See AR 5-31. In the
twenty days between receiving notice and filing its protest, there is no indication that CastleRose attempted to “obtain the necessary . . . testimony” from the security guard on duty July 7 or
the courier it used to deliver the proposal. Because Castle-Rose did not take measures to obtain
the evidence it wanted after receiving notice, the court does not accept that learning of the
proposal’s lateness in July rather than September would have enabled Castle-Rose to develop a
more favorable evidentiary record.
The government’s failure to provide prompt notice to Castle-Rose was, therefore, not
prejudicial and does not justify overturning the contractual award to Advanced Technology.
C. Written Justification
Castle-Rose also contends that the government’s written justification, required by F.A.R.
§ 15.208(h)(2), for finding Castle-Rose’s proposal late was “arbitrary and capricious.” F.A.R.
§ 15.208(h)(2) requires that “the contracting office files for each late proposal . . . [must include]
(1) [t]he date and hour of receipt[,] (2) [a] statement regarding whether the proposal was
considered for award, with supporting rationale[, and] (3) [t]he envelope, wrapper, or other
evidence of date of receipt.” Castle-Rose argues that the only plausible “statement . . . with
supporting rationale” is the contracting officer’s “Finding and Recommendation[:] Agency
Protest” dated October 20, 2010, twelve days after the agency protest decision was rendered. See
AR 1-1 (Contracting Officer’s Finding and Recommendation: Agency Protest (Oct. 20, 2010)).
The contracting officer’s report largely copies verbatim portions of the agency protest decision.
Compare, e.g., AR 1-4 to 5 (¶¶ 1-2) with AR 6-39 (¶¶ 17-18). Apart from that circumstance, and
the result, Castle-Rose does not specify what it finds “arbitrary and capricious” about the report.
To the extent that Castle-Rose argues the timing or copying of the report to be in violation of
F.A.R. § 15.208(h)(2), any error is nonprejudicial, and would not have affected the outcome of
the procurement.
D. Implied-in-Fact Contract, F.A.R. § 1.102(b)(3) and F.A.R. § 1.102-2(c)(3)
Finally, Castle-Rose argues that the government has violated an implied covenant of fair
dealing and honest consideration attendant to an implied-in-fact contract to consider its proposal.
Pl.’s Br. at 44. This allegation raises a question of whether the Court of Federal Claims has
jurisdiction to hear a claim for breach of the implied covenant of good faith and fair dealing in a
bid protest action.
Prior to the enactment of the Administrative Dispute Resolution Act of 1996 (“ADRA”),
Pub. L. No. 104-320, 110 Stat. 3870, Section 1491(a)(1) of the Tucker Act was construed as
conferring jurisdiction on the Court of Federal Claims to hear bid protests based on an alleged
breach of “‘an implied contract to have the involved bids fairly and honestly considered’” during
the procurement process. Resource Conservation Grp., LLC v. United States, 597 F.3d 1238,
1242 (Fed. Cir. 2010) (quoting Central Ark. Maint., Inc. v. United States, 68 F.3d 1338, 1341
(Fed. Cir. 1995) (quoting in turn United States v. John C. Grimberg Co., 702 F.2d 1362, 1367
(Fed. Cir. 1983) (en banc)), and citing Heyer Prods. Co. v. United States, 140 F. Supp. 409, 41415 (Ct. Cl. 1956)). The ADRA expanded the jurisdiction of the Court of Federal Claims to hear

14

“the full range of procurement protest cases previously subject to review in the federal district
courts and the Court of Federal Claims.” H.R. Rep. No. 104-841, at 10 (1996) (Conf. Rep.).
The ADRA added to Section 1491 of title 28 a new subsection which included the following
paragraph:
(1) Both the United States Court of Federal Claims and
the district courts of the United States shall have 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.
Both the United States Court of Federal Claims and the district
courts of the United States shall have jurisdiction to entertain
such an action without regard to whether suit is instituted before
or after the contract is awarded.
Pub. L. No. 104-320, 110 Stat. at 3874 (codified as 28 U.S.C. § 1491(b)(1)). 8
Whether jurisdiction to consider claims based upon the implied covenant of good faith
and fair dealing survived the enactment of the ADRA had been for some time an open question
in this court. The Federal Circuit recently addressed that question and held that, “[i]mplied-infact contract jurisdiction [under 28 U.S.C. § 1491(a)] does survive as to claims where the new
statute [28 U.S.C. § 1491(b)] does not provide a remedy. . . . Congress intended the 1491(b)(1)
jurisdiction to be exclusive where 1491(b)(1) provided a remedy (in procurement cases). The
legislative history makes clear that the ADRA was meant to unify bid protest law in one court
under one standard.” Resource Conservation, 597 F.3d at 1245-46.
This language of Resource Conservation might be interpreted to suggest that the passage
of the ADRA eliminated the Court of Federal Claims’ jurisdiction to hear a claim for breach of
the implied covenant of good faith and fair dealing under Section 1491(a). However, Resource
Conservation has been applied in varying ways. Some decisions have held that the ADRA
eliminated this court’s jurisdiction to render judgment on an implied covenant of good faith and
fair dealing in a bid protest action. See, e.g., Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl.
672, 693 (2010) (“[T]he ADRA added subsection [] 1491(b)(1) . . . displacing the implied
contract theory with an explicit statutory grant of jurisdiction to adjudicate bid protest actions.”);
Metropolitan Van & Storage v. United States, 92 Fed. Cl. 232, 249-50 n.7 (2010) (“The present
case involves a bid protest of a procurement . . . . [Section 1491(b)] provides exclusive
jurisdiction in this court . . . and exclusive remedies . . . . Under these circumstances, the
implied-in-fact contract theory . . . [in] the complaint is not operative, and will not be further
addressed in this opinion.”). However, other decisions subsequent to that in Resource
8

Section 12(d) of the ADRA, 110 Stat. 3875, provided in part that “[t]he jurisdiction of
the district courts of the United States over the actions described in section 1491(b)(1) of title 28,
United States Code (as amended by subsection (a) of this section) shall terminate on January 1,
2001 unless extended by Congress.” No such extension was made.
15

Conservation have held that this court maintained jurisdiction to adjudicate implied covenant of
good faith and fair dealing claims in bid protests under Section 1491(a). See, e.g., L-3
Commc’ns Integrated Sys., L.P. v. United States, 94 Fed. Cl. 394, 398 (2010) (“[A]n implicit
repeal of [Section] 1491(a)’s procurement jurisdiction would run counter to the longstanding
principle of statutory construction which recognizes a strong presumption against an implied
repeal of a jurisdictional statute. . . . Without an express repeal . . . , the common law developed
under [Section] 1491(a) permitting bid protests of procurements and [the] ADRA should be
interpreted ‘in a manner which gives harmonious operation and effect to both.’”) (citing
Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 808 (1976); United
States v. Lahey Clinic Hosp. Inc., 399 F.3d 1, 9 (1st Cir. 2005), and quoting United States v.
Kenaan, 557 F.2d 912, 917 (1st Cir. 1977)).
There is yet a third possible interpretation of Resource Conservation, hinted at in L-3
Communications and adopted in Bilfinger Berger AG Sede Secondaria Italiana v. United States,
97 Fed. Cl. 96 (2010). Bilfinger Berger held that Section 1491(b) granted this court jurisdiction
to hear an implied contract claim brought in the context of a bid protest. The court stated: “[T]he
Federal Circuit did not determine that the ADRA precludes a protester from alleging a breach of
an implied contract of fair dealing in a procurement case brought pursuant to [S]ection
1491(b). . . . [A] protester may challenge arbitrary and capricious conduct based upon an
implied-in-fact contract to consider bids fairly theory as part of a procurement protest in which
Tucker Act jurisdiction is based upon 28 U.S.C. § 1491(b)(1).” Bilfinger Berger, 97 Fed. Cl. at
151-52. 9
Whether or not this court has jurisdiction to hear an implied-contract claim under Section
1491(a) in a bid protest action, the court agrees with Bilfinger Berger that it surely has
jurisdiction to hear such a claim under Section 1491(b) as added by the ADRA. Resource
Conservation indeed stated, “Congress intended the [Section] 1491(b)(1) jurisdiction to be
exclusive where [Section] 1491(b)(1) provided a remedy (in procurement cases).” 597 F.3d at
1246. The court interprets this language to state that a protester can bring a claim for violation of
the implied covenant of good faith and fair dealing; the jurisdiction for bringing the claim arises
under Section 1491(b), not Section 1491(a). Accordingly, Castle-Rose has stated a viable claim.
To recover under the implied covenant for bids to be fairly and honestly considered, a
plaintiff has to establish arbitrary and capricious action by the government. Keco Indus., Inc. v.
United States, 492 F.2d 1200, 1203-04 (Ct. Cl. 1974). One factor to address in this regard is a
9

Although the court in Bilfinger Berger stated it “adopt[ed] the reasoning set forth in L-3
Communications Integrated Systems L.P.,” it appears that the holdings of L-3 Communications
and Bilfinger Berger rest on somewhat different grounds. The court in L-3 held that the Court of
Federal Claims’ jurisdiction to hear implied contract of fair dealing claims remained under
Section 1491(a). See 94 Fed. Cl. at 397 (“Section 1491(a)(1) continues to allow any plaintiff,
including a disappointed bidder, to invoke this [c]ourt’s general contract jurisdiction to recover
money damages, including bid preparation and proposal costs.”). However, in the final sentence
of the opinion, the court added that the ADRA did not “affect a protestor’s ability to argue
breach of the implied contract of fair dealing in a bid protest where jurisdiction is predicated on
[Section] 1491(b).” Id. at 398.
16

proven violation of pertinent statutes or regulations. Id. In any action arising under Section
1491(b), the court is instructed to review the agency’s decision pursuant to the “arbitrary,
capricious, and abuse of discretion” standard set forth in 5 U.S.C. § 706(2)(A). This standard is
essentially the same as that established for the implied contract requiring fair and honest bid
consideration. FAS Support Servs., LLC v. United States, 93 Fed. Cl. 687, 694 (2010).
Castle-Rose alleges that the Corps breached the implied covenant by failing to abide by
F.A.R. § 1.102(b)(3) and F.A.R. § 1.102-2(c)(3). Compl. at 22-23. Section 1.102(b)(3) states,
“The Federal Acquisition System will . . . [c]onduct business with integrity, fairness, and
openness.” Section 102-2(c)(3) states, “The [g]overnment shall exercise discretion, use sound
business judgment, and comply with applicable laws and regulations in dealing with contractors
and prospective contractors. All contractors and prospective contractors shall be treated fairly
and impartially but need not be treated the same.” Castle-Rose claims, “These two procurement
[r]egulations . . . define the reach and scope of the implied-in-fact [c]ontract of fair and honest
consideration.” Pl.’s Br. at 44 (citing FFTF Restoration Co., LLC v. United States, 86 Fed. Cl.
226, 237-38 (2009)).
Castle-Rose claims that these sections were contravened in three ways. First, CastleRose maintains that the Corps should have revealed earlier that Mr. Britt forgot about the
proposals for a period of time. Pl.’s Br. at 45. Second, Castle-Rose argues that the Corps “never
gave Castle-Rose the opportunity” to develop evidence that the proposal was under the
government’s control on time. Id. at 45. And finally, Castle-Rose claims that because the Corps
“persisted in vesting the [a]gency’s designated [c]ontract [s]pecialist with authority he never has
had, USACE’s Seattle District has wasted” the sum to be paid to Advanced Technology that
exceeded Castle-Rose’s bid. Id. at 46.
These supposed errors focus on Castle-Rose’s lack of prompt notice from the contracting
officer that its proposal would not be considered and the results of that delay. As the court
discussed when addressing Castle-Rose’s notice claim, the contracting officer’s failure to give
Castle-Rose prompt notice is a nonprejudicial error.
Additionally, Sections 1.102 and 1.102-2 of the F.A.R. have no binding legal force. They
are directory, not mandatory. Section 1.102 is titled “Statement of guiding principles for the
Federal Acquisition System.” As the court explained in Information Scis. Corp. v. United States,
85 Fed. Cl. 195, 202 (2008): “F.A.R. § 1.102[(b)(3)] . . . does not ‘impose explicit requirements,
but merely indicates appropriate courses for [agency] officials to follow.’ . . . This text . . .
imposes no specific substantive obligations on the [g]overnment, and therefore is not judicially
enforceable.” (citing Carolina Tobacco Co. v. Bureau of Customs and Border Prot., 402 F.3d
1345, 1349 (Fed. Cir. 2005)). Similarly, F.A.R. § 1.102-2(c) only provides “internal government
direction” and “does not impose a specific, substantive obligation on the [g]overnment.”
Information Sciences, 85 Fed. Cl. at 202 (citing American Tel. and Tel. Co. v. United States, 307
F.3d 1374, 1380 (Fed. Cir. 2002)); see also Farrell v. Department of Interior, 314 F.3d 584, 59192 (Fed. Cir. 2002) (“In this case, the document is called a ‘Guide’ . . . . It contains no
mandatory language. . . . The [government] w[as] not bound by the [document].”); Weston v.
United States Dep’t of Hous. & Urban Dev., 724 F.2d 943, 950 (Fed. Cir.1983) (“It is clear,
therefore, that the penalties set forth in the guide are not inflexible outer limits.”). Although

17

FFTF Restoration interpreted F.A.R. § 1.102(b)(3) and F.A.R. § 1.102-2(c)(3) as encompassing
the requirements of the implied contract of fair dealing, FFTF Restoration predated Resource
Conservation and was decided under the belief that the ADRA eliminated claims based upon the
implied contract of fair dealing in bid protest cases. In light of the Resource Conservation
decision, the reasoning of Information Sciences is more persuasive.
Castle-Rose cannot base a claim involving implied contract of fair dealing on alleged
contravention of F.A.R. §§ 1.102(b)(3), 1.102-2(c)(3), and Castle-Rose has not established that
any arbitrary and capricious government action prejudiced its ability to receive a contract award.
Its implied contract claim is therefore denied. 10
CONCLUSION
For the stated reasons, the government’s motion to dismiss is DENIED. The plaintiff’s
motion for judgment on the administrative record is also DENIED, but the government’s motion
for judgment on the administrative record is GRANTED. 11 The Clerk shall enter judgment
accordingly.
No costs.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Judge

10

Castle-Rose further alleged that the award to Advanced Technology was “not made on
the factors specified in the Solicitation” in violation of 10 U.S.C. § 2305(b)(1) and was “made in
violation of 10 U.S.C. § 2305(b)(4)(C) [because] the substantially lower [p]rice offered in
Castle-Rose’s initial [c]ompetitive [p]roposal [wa]s ignored.” Compl. at 21-22. Having
concluded that the Corps did not err in marking Castle-Rose’s proposal late, claims concerning
how Advanced Technology’s and Castle-Rose’s proposals should have been evaluated cannot be
considered.
11

Plaintiff’s motion for leave to withdraw a single request for relief, i.e., a remand, is
GRANTED.
18