“[Plaintiff] failed to raise this argument in his opening brief, so it is waived.”
How later courts described this case
- “[Plaintiff] failed to raise this argument in his opening brief, so it is waived.”
- explaining that failure to raise an argument in an opening brief results in that argument being waived
- “A reply brief, which should ‘reply to the brief of the appellee,’ is 7 not the appropriate place to raise, for the first time, an issue[.]” (citation omitted)
- “[U]se of dictionaries as interpretive aids (e.g., ‘lexicography’) is not considered ‘extrinsic’ aids the use of which violates the plain meaning doctrine.” (citations omitted)
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
No. 24-2155
(Filed Under Seal: February 10, 2026)
Reissued: March 5, 2026 *
* * * * * * * * * * * * * * * * * * * * * *
*
KROPP HOLDINGS, INC., *
*
Plaintiff, *
*
v. *
*
THE UNITED STATES, *
*
Defendant, *
*
and *
*
ASSOCIATED ENERGY GROUP, LLC, *
*
Defendant-Intervenor. *
*
*
* * * * * * * * * * * * * * * * * * * * * *
Craig A. Holman, with whom were Kara L. Daniels, Thomas A. Pettit, Roee Talmor, and
Nicole A. Williamson, Arnold & Porter Kaye Scholer LLP, all of Washington, D.C., for Plaintiff.
John H. Roberson, Senior Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, with whom were Douglas K. Mickle, Acting Deputy Director,
Patricia M. McCarthy, Director, Brett A. Shumate, Acting Assistant Attorney General, all of
Washington, D.C., for Defendant, and Steven Sosko, Senior Counsel, Defense Logistics Agency,
of Fort Belvoir, VA, of counsel.
Todd J. Canni, with whom were Ariella M. Cassell of Los Angeles, CA, and Kevin
Barnett, Stephen Ruscus, Kevin N. Dorn, and Kaitlyn E. Toth, Baker & Hostetler LLP, all of
Washington, D.C., for Defendant-Intervenor.
*
Pursuant to the protective order entered in this case, this opinion was filed initially
under seal. The parties provided proposed redactions of confidential or proprietary information,
which the Court adopted in addition to making minor typographical and stylistic edits.
OPINION AND ORDER
SOMERS, Judge.
Associated Energy Group, LLC’s (“AEG”) motion for reconsideration is akin to an
unsuccessful challenge by an NFL coach in football. Assume, after a wide receiver catches the
football, the referee deems the pass “incomplete” for two separate reasons. First, the receiver’s
foot was out of bounds when he made the catch. Second, the receiver did not have sufficient
control of the ball for the catch to be ruled complete. The coach challenges the play, arguing at
length that the receiver did have sufficient control of the ball. The coach emphasizes that the ball
was not bobbling in the receiver’s hands, the receiver had two hands on the ball, the ball was
tucked firmly under the receiver’s arm, the ball never touched the turf, and the receiver
maintained control of the ball long enough to make a football move. See 2025 NFL RULEBOOK,
Rule 8, § 1, arts. 3–4. While these arguments, if true, may prove that the receiver did, in fact,
have control of the ball, the pass is still incomplete because the coach failed to address the fact
that the receiver’s foot was out of bounds. See id.
Much like the hypothetical NFL coach’s futile arguments regarding the receiver’s control
of the football, no matter how many new arguments AEG asserts regarding whether there was
timely government control of its proposal, AEG’s motion cannot prevail because—just as the
coach did not address the fact that the receiver’s foot was out of bounds—AEG does not address
its insufficient merits argument that its proposal was received by, 1 and not prior to, the deadline
for proposal submission. However, just as the Court held in its merits opinion, in order for the
government control exception to the late-is-late rule to apply, the proposal must be received prior
to the time set for receipt of offers. For this reason, and others discussed below, the Court’s call
stands.
Before the Court is AEG’s 37-page motion for reconsideration of an issue it devoted just
five paragraphs to in its motion for judgment on the administrative record (“MJAR”). Compare
ECF No. 92-1, with ECF No. 65-1 at 21–22. In its motion, AEG contends that the Court should
reconsider its determination that the government control exception did not apply to its otherwise
late submissions. See ECF No. 92-1 at 1; Kropp Holdings, Inc. v. United States, 176 Fed. Cl.
512, 533–39 (2025). However, notwithstanding myriad arguments that AEG asserts justify
reconsideration, at bottom AEG fails to address the Court’s actual holdings on this issue and
instead emphasizes less important portions of the Court’s opinion with which it disagrees. In
addition to missing the Court’s holdings, AEG asserts new theories not raised in AEG’s merits
briefing and attempts to reassert arguments that the Court already found unpersuasive the first
time around. Neither these new theories nor rehashed arguments justify reconsideration.
For the reasons that follow, the Court agrees with Plaintiff Kropp Holdings, Inc. (“KHI”)
and the government that reconsideration is not warranted; accordingly, the Court denies AEG’s
motion.
1
As is explained later in this opinion, AEG’s use of “by,” when read in context, clearly
meant “at” and not “before.”
2
BACKGROUND
A. Factual Background and Procedural History
The facts and procedural history of this case are largely set forth in the Court’s original
opinion in this bid protest. See Kropp Holdings, Inc., 176 Fed. Cl. at 524–26. For the sake of
brevity, the Court only recounts here the factual background and procedural history salient to
AEG’s motion.
KHI brought suit alleging eight reasons why the Court should overturn the Defense
Logistics Agency’s (“DLA”) decision to award an aviation into-plane fuel contract, known as the
AIR Card contract (“AIR Card”), to AEG. Id. at 523–24. The Court issued an opinion on May
9, 2025, finding that KHI was successful on four of its protest grounds. Id. at 524. Therefore,
the Court permanently enjoined DLA from “continuing transition activities or obtaining
performance from AEG” under the contract. Id. at 564. One of the grounds upon which KHI
was successful was its argument that AEG’s proposal was not timely submitted. It is this holding
that AEG challenges here. The Court’s holding on this point was two-fold. First, the Court
determined that:
the [Request for Proposals (“RFP”)] establishes 10:00 a.m. as the submission
deadline and states that “timeliness of an offer will be based upon the receipt time
stamp on the submission inbox.” The receipt time stamps on the
Energyfuelcards@dla.mil submission inbox show that AEG’s Volumes 1 and 2
were received after 10:00 a.m. Because DLA did not timely receive AEG’s
proposal, AEG’s proposal is late and thus “tantamount to no proposal at all.”
Id. at 533 (citations omitted). Second, the Court held that the government control exception to
the late-is-late rule did not apply to AEG’s proposal submission: “Because AEG argues that
acceptable evidence in the form of email screenshots establishes that its Volume 1 submission
was received at 10:00 a.m., and not prior to 10:00 a.m., AEG’s argument fails, and its submission
cannot fall under the government control exception.” Id. at 534 (citing ECF No. 65-1 at 21; FAR
52.212-1(f)(2)(i)(B)). The Court also observed that “[e]ven if metadata could cure AEG’s
argument (it cannot, as AEG waived any such argument by not raising it in its motion), AEG’s
Volume 1 submission was still late according to the metadata for purposes of the government
control exception.” Id. (emphasis added) (footnote omitted). And, in a footnote to the preceding
quotation, the Court further noted that “AEG does not develop this argument in briefing.
Instead, AEG tried to argue this point at oral argument. Although AEG waived any metadata
argument because it did not make such argument in its MJAR, the Court will discuss the
argument anyway, as the discussion further demonstrates the lateness of AEG’s proposal.” Id. at
534 n.7 (citations omitted).
Accordingly, for these two reasons, and several other reasons not relevant to AEG’s
motion for reconsideration, the Court issued a permanent injunction and required the agency to
reconsider its decision awarding the fuel card contract to AEG. See id. at 538, 564. AEG
subsequently filed its own bid protest challenging DLA’s re-award of the AIR Card contract to
KHI in accordance with the Court’s opinion. See Complaint, Associated Energy Grp. v. United
3
States, No. 25-917 (Fed. Cl. May 29, 2025), ECF No. 1. At a status conference held on June 4,
2025, the parties agreed that, to come to the most efficient resolution of this case, the Court
should stay the new bid protest, and AEG should file a motion for reconsideration of the Court’s
opinion in the instant case. Accordingly, the Court stayed AEG’s protest the next day. See Order
Staying Case, Associated Energy Grp., No. 25-917 (Fed. Cl. June 5, 2025), ECF No. 29.
Five days after the status conference, on June 9, 2025, AEG filed its motion for
reconsideration pursuant to Rule 59(a) of the Rules of the U.S. Court of Federal Claims
(“RCFC”). ECF No. 92. The government filed its response to AEG’s motion on June 27, 2025.
ECF No. 98. KHI filed its response to AEG’s motion on July 1, 2025. ECF No. 100. AEG filed
a reply in support of its motion on July 18, 2025. ECF No. 102. The motion is now ripe for
adjudication.
DISCUSSION
A. Legal Standard
RCFC 59(a) provides the grounds for reconsideration. The decision whether to grant
such a motion lies within the sound discretion of the Court. Yuba Nat. Res., Inc. v. United States,
904 F.2d 1577, 1583 (Fed. Cir. 1990). To establish that reconsideration is warranted, the moving
party must make “a showing of extraordinary circumstances which justify relief.” Caldwell v.
United States, 391 F.3d 1226, 1235 (Fed. Cir. 2004) (quoting Fru-Con Constr. Grp. v. United
States, 44 Fed. Cl. 298, 300 (1999), aff’d, 250 F.3d 762 (Fed. Cir. 2000)). To meet this high
standard, the moving party typically must show either “an intervening change in the controlling
law, newly discovered evidence, or a need to correct clear factual or legal error or prevent
manifest injustice.” Biery v. United States, 818 F.3d 704, 711 (Fed. Cir. 2016). Where a movant
seeks reconsideration “on the ground of manifest injustice, it cannot prevail unless it
demonstrates that any injustice is ‘apparent to the point of being almost indisputable.’” Griffin v.
United States, 96 Fed. Cl. 1, 7 (2010) (quoting Pac. Gas & Elec. Co. v. United States, 74 Fed. Cl.
779, 785 (2006), rev’d on other grounds, 536 F.3d 1282 (Fed Cir. 2008)).
Importantly, a movant for reconsideration under RCFC 59(a) will not be successful by
citing to evidence that “was manifestly available at [the] time of the hearing,” Parsons ex rel.
Linmar Prop. Mgmt. Tr. v. United States, 174 F. App’x 561, 563 (Fed. Cir. 2006) (alteration in
original) (quoting Gelco Builders & Burjay Constr. Corp. v. United States, 177 Ct. Cl. 1025,
1036 n.7 (1966)), or by merely recapitulating “cases and arguments considered by th[e] court
before rendering its original decision,” Fru-Con Const. Corp., 44 Fed. Cl. at 301 (alteration in
original) (quoting Carteret Sav. Bank, F.A. v. Shushan, 721 F. Supp. 705, 706 (D.N.J. 1989)).
Similarly, a motion for reconsideration is an inappropriate vehicle for litigants to attempt to
assert new arguments or raise legal theories not asserted or raised before the original decision.
E&I Glob. Energy Servs., Inc. v. United States, 152 Fed. Cl. 524, 533 (2021) (“[U]nder RCFC
59(a), litigants are forbidden from asserting new arguments or raising legal theories for the first
time in a motion for reconsideration.”).
4
B. Analysis
AEG seeks reconsideration of the Court’s disposition of one subpart of the Court’s
decision on one of seven errors KHI alleged in its MJAR. Specifically, AEG contends that (1)
the Court erred in its analysis of whether the government control exception applied to rectify
AEG’s otherwise late proposal submission by “reaching a conclusive ruling against control,” and
(2) by failing to remand this question to the agency, “the Court got out ahead of DLA and
usurped its role.” ECF No. 92-1 at 3. AEG’s remand argument, however, sidesteps crucial
aspects of the Court’s holding, ignores what AEG actually argued on the merits, and introduces
new arguments in seeking reconsideration that AEG could have raised on the merits but did not.
For these reasons and others explained below, AEG’s motion for reconsideration is denied.
1. The Late-is-Late Rule.
Before turning to why AEG’s motion fails, it is important to recount the Federal
Acquisition Regulation’s (“FAR”) late-is-late rule. As the Court observed in its merits opinion,
in accordance with the FAR, the Federal Circuit has made clear that proposals for government
contracts that are submitted after the deadline for proposal submission are unawardable:
All errors are not equal. There are inherent competitive advantages to submitting
a proposal after all other parties are required to do so . . . . To avoid this potential
for abuse, submission deadlines are strictly enforced across the board. When the
rules and procedures of a bid process are applied equally to all parties, but one party
submits a proposal past the deadline for doing so, the untimely submission becomes
a stranger to the process, and is disqualified from the procurement. A late proposal
is tantamount to no proposal at all. Such a party has no “substantial chance” of
award, and no more standing to sue than the proverbial man on the street.
Kropp Holdings, Inc., 176 Fed. Cl. at 527 (omission in original) (quoting Labatt Food Serv., Inc.
v. United States, 577 F.3d 1375, 1381 (Fed. Cir. 2009)); see also 48 C.F.R. § 52.212-1(f)(2)(i)
(“Any offer . . . received at the Government office designated in the solicitation after the exact
time specified for receipt of offers is ‘late’ and will not be considered.”). “Put more succinctly,
‘late is late’ and late submissions are not awardable.” Kropp Holdings, Inc., 176 Fed. Cl. at 527.
As also was observed in the Court’s merits opinion, the FAR contemplates exceptions to
the late-is-late rule that can excuse an offeror’s late submission if certain criteria are met. Under
the FAR, “[a]ny offer . . . received at the Government office designated in the solicitation after
the exact time specified for receipt of offers is ‘late’ and will not be considered” unless the offer
was “received before [the] award [was] made, the Contracting Officer determines that accepting
the late offer would not unduly delay the acquisition,” and one of the following circumstances
exists:
(A) 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 offers; or
5
(B) There is acceptable evidence to establish that it was received at the Government
installation designated for receipt of offers and was under the Government’s control
prior to the time set for receipt of offers; or
(C) If this solicitation is a request for proposals, it was the only proposal received.
48 C.F.R. § 52.212-1(f)(2)(i)(A)–(C). The first exception listed above is referred to as the
“electronic commerce” exception, and the second exception listed above is referred to the as the
“government control” exception. Kropp Holdings, Inc., 176 Fed. Cl. at 533.
Most relevant here, as it is the exception AEG invoked to attempt to cure its otherwise
late proposal, is the government control exception. Of secondary importance is the electronic
commerce exception and how that exception relates to the government control exception in the
regulatory scheme. With all this in mind, the Court can now address, in turn, what AEG argued
on the merits, what the Court held on the merits, and AEG’s new arguments on reconsideration.
2. AEG’s Merits Arguments and the Court’s Actual Holding on Government
Control.
While recounting the arguments that a party made on the merits is important in
considering any motion for reconsideration, it is especially important here, because AEG makes
new arguments in its motion for reconsideration that it did not raise in its pre-judgment merits
briefing and selectively overemphasizes portions of the Court’s opinion with which it disagrees.
Leaving aside for now three legal arguments that AEG made in its MJAR related to the
government control exception—a discussion of Watterson Construction Company v. United
States, an undeveloped argument that the contracting officer’s declaration is entitled to the
presumption of regularity, and an argument that KHI was not prejudiced by AEG submitting a
late proposal—the entirety of AEG’s argument on the government control exception in its MJAR
is as follows:
Moreover, even in the presence of conflicting timestamps, DLA acted
rationally because acceptable evidence exists showing that, in any event, the
government control exception to the “late-is-late” rule applies. Under this
exception, set forth at FAR 52.212-1(f)(2)(i), DLA has the discretion to accept a
proposal received if:
(1) the offer was received before award is made; (2) the CO
determines that accepting the offer would not unduly delay the
acquisition; and (3) there is at least acceptable evidence to establish
that the offer was received at the Government’s installation
designated for receipt of offers and was under the Government’s
control prior to the time set for receipt of offers.
[eSimplicity, Inc. v. United States, 162 Fed. Cl. 372, 386 (2022)] (quoting FAR
52.212-1(f)(2)(i)). All three boxes are checked in this case.
6
First, AEG’s proposal was “received before award was made.” In fact, by
any measure, AEG’s proposal was received on August 19, 2021, and the relevant
award was not made until October 2024. See Tab 260, Screenshots of AEG Offer
at AR 9589–91.
Second, the contracting officer (“CO”) accepted the proposal and thus
determined that accepting the proposal would not unduly delay the acquisition. See
ECF No. 50-2, Decl. of CO at 1 (“I determined AEG’s initial proposal was
submitted timely based on the time stamped that showed on the emails received in
Outlook, which showed all 4 required volumes were received on or before 10:00
a.m. EDT on August 19, 2021.”).
Third, the offer was received at the government installation designated for
receipt of offers, as shown by the submission inbox screenshots, and was under
DLA’s control by 10:00 a.m. See Tab 260, Screenshots of AEG Offer at AR 9589–
91.
Finally, the Court need not conclusively resolve conflicting screenshots.
The government control exception’s low threshold referred to as the “acceptable
evidence” standard obviates the need for further inquiry into this point. The FAR
confirms that “acceptable evidence to establish the time of receipt at the
Government installation includes . . . other documentary evidence of receipt
maintained by the installation, or oral testimony or statements of Government
personnel.” FAR 15.208(c). DLA has provided both—documentary screenshots
showing receipt by no later than 10:00 a.m., see Tab 260, Screenshots of AEG Offer
at AR 9589–91, and sworn statements by the contracting officer. This matter need
not be debated further as the record contains “acceptable evidence” to support
DLA’s determination.
ECF No. 65-1 at 21–22 (emphasis in original; over-emphasis removed).
The Court emphasizes the arguments raised in AEG’s MJAR because what a party argues
in its opening brief is what controls, and AEG’s MJAR was its opening brief in the pre-judgment
merits phase of this litigation. Abbott Lab’ys v. Syntron Bioresearch, Inc., 334 F.3d 1343, 1355
(Fed. Cir. 2003) (explaining that failure to raise an argument in an opening brief results in that
argument being waived); Hynix Semiconductor Inc. v. Rambus Inc., 645 F.3d 1336, 1354 (Fed.
Cir. 2011) (“To the extent [defendant] relies on other arguments in its reply brief, those
arguments are waived as not presented in its opening brief.”); Walker v. Health Int’l Corp., 845
F.3d 1148, 1156 (Fed. Cir. 2017) (“[Plaintiff] failed to raise this argument in his opening brief, so
it is waived.”); Shimano, Inc. v. Rea, 527 F. App’x 1002, 1004 n.1 (Fed. Cir. 2013) (“In post-
argument submissions, the parties have debated whether particular arguments were made . . . .
Rather that [sic] address those issues, we address the arguments made in the parties’ opening
briefs on appeal and cross-appeal. Arguments not made in the [parties’] opening briefs are
ordinarily deemed waived . . . .” (citation omitted)); see Amhil Enters. Ltd. v. Wawa, Inc., 81 F.3d
1554, 1563 (Fed. Cir. 1996) (“A reply brief, which should ‘reply to the brief of the appellee,’ is
7
not the appropriate place to raise, for the first time, an issue[.]” (citation omitted)); Corrigan v.
United States, 70 Fed. Cl. 665, 668 (2006) (“[B]y failing to raise an issue when it is first
available to be litigated, a party waives consideration by the court of the issue on
reconsideration, even when the party is pro se.” (emphasis added)). In short, what truly matters
is what AEG argued in its MJAR. And in terms of what was in dispute at the merits stage of this
litigation, the Court can further boil the above five paragraphs down to one:
Third, the offer was received at the government installation designated for receipt
of offers, as shown by the submission inbox screenshots, and was under DLA’s
control by 10:00 a.m. See Tab 260, Screenshots of AEG Offer at AR 9589–91. . . .
The FAR confirms that “acceptable evidence to establish the time of receipt at the
Government installation includes . . . other documentary evidence of receipt
maintained by the installation, or oral testimony or statements of Government
personnel.” FAR 15.208(c). DLA has provided both—documentary screenshots
showing receipt by no later than 10:00 a.m., see Tab 260, Screenshots of AEG Offer
at AR 9589–91, and sworn statements by the contracting officer. This matter need
not be debated further as the record contains “acceptable evidence” to support
DLA’s determination.
ECF No. 65-1 at 21–22 (emphasis in original; over-emphasis removed). In essence, this one
paragraph of argument is what AEG’s 37-page motion for reconsideration is about (or at least
should be about). The Court addressed this argument in one subsection in its merits opinion but,
for ease, will divide its explanation here into two subsections.
a. The Court held that for the government control exception to apply,
AEG’s proposal needed to be received prior to 10:00 a.m.
As can be seen from the regulatory text above, the government control exception is two-
pronged. For the exception to apply, a party must show that its offer was: (1) “received at the
Government installation designated for receipt of offers”; and (2) “under the Government’s
control prior to the time set for receipt of offers.” 48 C.F.R. § 52.212-1(f)(2)(i)(B) (emphasis
added). It is important in relation to AEG’s merits arguments to note the precise language used
within these two prongs. For the first prong, it is not enough that any federal official or any
federal installation received the otherwise late proposal; rather, the proposal must be received at
the “Government installation designated for receipt.” And for the second prong, the proposal
must be under the government’s control prior to the deadline for submitting proposals—not at
that deadline.
In its merits opinion, the Court plainly held that “AEG’s argument that ‘acceptable
evidence’ in the form of email time stamp screenshots showing ‘10:00 AM’ for receipt of AEG’s
Volume 1 fails because a 10:00 a.m. time stamp does not show that the email was in the
government’s control ‘prior to the time set for receipt of offers,’ which was 10:00 a.m.” Kropp
Holdings, Inc., 176 Fed. Cl. at 534 (emphasis in original) (citing ECF No. 65-1 at 20–21 (citing
Tab 260 at AR 9589)). Moreover, the Court noted that
8
[n]either the government nor AEG proffered evidence or moved to supplement the
administrative record with any other information indicating that DLA had control
of AEG’s proposal prior to the 10:00 a.m. deadline. Without more, the Court cannot
conclude that the Energyfuelcards@dla.mil submission inbox, or even DLA servers
for that matter, received AEG’s proposal before the deadline.
Id. at 538. But even more importantly, AEG did not even argue in its MJAR that its proposal
was received and under the government’s control prior to 10:00 a.m. Rather, AEG argued that its
“offer was received at the government installation designated for receipt of offers,
as shown by the submission inbox screenshots, and was under DLA’s control by 10:00 a.m.”
ECF No. 65-1 at 22 (emphasis added) (citing Tab 260 at AR 9589–91). Although the word “by”
as used in this sentence encompasses both prior to 10:00 a.m. and at 10:00 a.m., this is because
AEG’s proposal was transmitted in multiple emails. The cited screenshots purportedly show
Volumes 3 and 4 being received at 9:53 a.m., Volume 2 being received at 9:58 a.m., and
Volume 1 being received at 10:00 a.m. See Tab 260 at AR 9589–91. Thus, when AEG argued its
proposal was received “by 10:00 a.m.”—which generally means “not later than” 10:00 a.m.—it
is clear from the documents in the administrative record to which this sentence cites that AEG is
arguing that Volume 1 of its proposal was received at 10:00 a.m. See By, MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY (10th ed. 1993) (“3 . . . b : not later than”). Stated differently, the only
linguistically logical reading of AEG’s MJAR is that AEG is arguing that the first volume of its
proposal was received at 10:00 a.m., not prior to 10:00 a.m., as the cited evidence shows a 10:00
a.m. timestamp on Volume 1. Furthermore, this reading is entirely consistent with AEG’s
argument that, “because all four volumes of AEG’s initial proposal were received by the
submission inbox on time and prior to 10:01 AM, AEG’s initial proposal was timely.” ECF No.
65-1 at 21 (emphasis added) (citing Castle-Rose, Inc. v. United States, 99 Fed. Cl. 517, 525–26
(2011)). And it is further consistent with AEG’s statement, which included the time not only in
italics but in bold font as well, that “Volume 1 reached Energyfuelcards@dla.mil at 10:00 AM.”
Id. (emphasis in original) (citing Tab 260 at AR 9589).
Therefore, the Court’s holding was that, because AEG argued that the evidence showed
that its proposal was received at 10:00 a.m., the government control exception could not apply as
a matter of law because application of the government control exception would require receipt
prior to 10:00 a.m. Kropp Holdings Inc., 176 Fed. Cl. at 534. 2 This is all the Court had to hold.
To apply, the government control exception requires submissions to be received “prior to the
time set for receipt of offers.” 48 C.F.R. § 52.212-1(f)(2)(i)(B). Because AEG argued that its
offer was received at the time set for receipt of offers, AEG’s government control exception
2
As the Court explained, “to fall under the government control exception, AEG’s Volume
1 must have been received at 9:59:59 a.m. or earlier to have been received ‘prior to’ 10:00 a.m.,
which was the ‘time set for receipt of offers.’” Id. at 534 (quoting 48 C.F.R. § 52.212-
1(f)(2)(i)(B)). But because AEG argued “that acceptable evidence in the form of email
screenshots establishes that its Volume 1 submission was received at 10:00 a.m., and not prior to
10:00 a.m.,” the Court found that “AEG’s argument fails, and its submission cannot fall under
the government control exception.” Id. (citing ECF No. 65-1 at 21; FAR 52.212-1(f)(2)(i)(B)).
9
argument failed at the outset. 3 AEG could have included in its MJAR an argument that the
submission was received prior to 10:00 a.m.; proffered evidence to that effect or moved the
Court to supplement, correct, or complete the administrative record with such evidence; or
moved for a remand to the agency to see if acceptable evidence existed. But AEG did none of
these things. Instead, AEG rested its argument on its legally insufficient assertion that the
submission was received at 10:00 a.m. To look at this issue slightly differently, if AEG had made
this argument in a complaint instead of an MJAR, the Court would be forced to find that AEG
failed to state a claim upon which relief can be granted. This is because even if the Court read
AEG’s “alleged fact” of a 10:00 a.m. receipt in the light most favorable to AEG, AEG would still
not be entitled to relief as a matter of law because an email received at 10:00 a.m. does not fall
under the government control exception.
Turning to its merits reply brief, AEG again asserted that the agency received its
submission at, and not prior to, the deadline. AEG argued that the record on which the
contracting officer relied “supports her decision to accept AEG’s proposal as timely submitted, as
each of the initial proposal volumes were received on-time according to the inbox timestamps:
Volume 1—10:00 a.m.” ECF No. 74 at 7 (emphasis in original) (citing Tab 260 at AR 9589).
Again, this argument did not properly invoke the government control exception, which requires
that the proposal be received prior to, and not at, the deadline. AEG further contended in its
reply brief that the late-is-late rule “exists to prevent one offeror from gaining a competitive
advantage—not to render untimely a proposal transmitted and received within the Government’s
control by the due date and time.” Id. at 9. The Court agrees. The problem, though, is that
while AEG may have transmitted its proposal “by the due date and time” by clicking “send”
before 10:00 a.m., AEG did not even argue (much less prove) that the government received that
proposal prior to that “due date and time.” Id. Regardless of when AEG transmitted its proposal,
without even an argument that the government received that proposal prior to 10:00 a.m., the
Court could not find that the government control exception spares AEG’s otherwise late
submission.
Ultimately, AEG made an argument in its MJAR that was bad for its case and, in
furtherance of that argument, cited evidence of a late arrival time (for purposes of the
government control exception) that further damaged its position. The Court need not reconsider
this argument. Even assuming all facts in AEG’s favor, AEG still loses in this bid protest
because, in AEG’s own words, “the offer was received at the government installation designated
for receipt of offers, as shown by the submission inbox screenshots, and was under DLA’s
control by 10:00 a.m.” ECF No. 65-1 at 22 (citing Tab 260 at AR 9589 (showing a 10:00 a.m.
time stamp)). Receipt at 10:00 a.m. is not receipt prior to 10:00 a.m., as required for the
government control exception to apply.
3
The Court notes that AEG appears to correctly formulate, but not develop, an argument
regarding the applicability of the government control exception in the introduction section of its
MJAR. See ECF No. 65-1 at 4–5 (“As the completed record illustrates, each volume of AEG’s
initial proposal was . . . at a minimum, timely received by DLA’s email server prior to the time
set for receipt of proposals.” (emphasis omitted)). However, that same sentence cites Tab 260 at
AR 9589–91, which demonstrates that AEG’s Volume 1 submission was not received prior to the
10:00 a.m. deadline. See Tab 260 at AR 9589 (showing a time stamp of 10:00 a.m.).
10
b. Even assuming the government control exception can apply, it could not
apply here and be consistent with regulatory construction principles.
Although by arguing that its proposal was received at 10:00 a.m. instead of prior to 10:00
a.m. AEG’s merits argument that the government control exception applied to its late proposal
submission necessarily failed, in its merits opinion the Court nonetheless addressed (1) whether
the government control exception can apply to electronic submissions generally, and (2) whether,
assuming the government control exception can apply, it could apply in this case.
AEG contends in its motion for reconsideration that the Court, in its merits opinion,
agreed with AEG that the government control exception applies to electronic submissions. ECF
No. 92-1 at 4–5 (“AEG did not have the burden to prove ‘acceptable evidence’ of control, but
needed solely to establish that the exception, as a legal matter, may apply to electronic
submissions, which the Court found . . . .” (emphasis omitted)). But AEG overstates the Court’s
holding, as the Court never held that the exception applies to electronic submissions. See Kropp
Holdings, Inc., 176 Fed. Cl. at 535–36. Rather, the Court stated:
A more interesting question regarding the applicability of the government control
exception to electronic submissions is whether an email server is a ‘Government
installation’ . . . . Although the undersigned is disinclined to believe that an internet
server is a ‘Government installation’ because a natural reading suggests that a
‘Government installation’ is a physical location, such as a building or military base,
the Court need not reach a definitive conclusion on that point here.
Id. (emphasis added) (footnote omitted). For this reason, the Court notes that AEG’s entire
argument on this point misstates the Court’s holding. Moreover, even if the Court had
definitively found that the government control exception can apply to electronic
communications, it still would not mean that it necessarily applied to the facts of this case. In
attempting to show that the government control exception applied here, AEG asserted a plain
language argument and a policy argument. See ECF No. 74 at 10–11. The Court discusses each
in turn.
First, AEG’s plain meaning argument—found not in its MJAR, but in its reply brief—is
as follows:
Applying the plain meaning of the government control exception, DLA properly
considered AEG’s timely proposal. At a minimum, AEG’s initial proposal reached
the Defense Information Systems Agency (“DISA”) servers before the proposal
deadline. See ECF No. 64-1 (“Decl. of S. Wallace”) at 2. Indeed, per the
Declaration, under penalty of perjury, of the government’s experienced declarant,
DISA’s Chief Technology Officer, Mr. Stephen Wallace declared: “Per the provided
message headers I observed initial contact (TLS handshake) with [DOD’s
Enterprise Email Message Security Gateway] at the following times (UTC):
Message titled “Air Card Volume 1”: 8/19/2021 1:59:59 PM (Hop 9)—Translates
to 09:59:50 AM EST; Message titled “Air Card Volume 2”: 8/19/2021 1:58:31 PM
11
(Hop 5)—Translates to 09:58:31 AM EST”. Id. Based on this “acceptable
evidence,” “the Court’s inquiry ends.” Tesoro, 405 F.3d at 1346.
ECF No. 74 at 10 (alterations and emphasis in original). Leaving aside the fact that this
argument was waived because it was made for the first time in AEG’s reply brief, as the Court
explained in its merits opinion, this plain meaning argument is flawed because it conflates a key
term used in the electronic commerce exception with a key term used in the government control
exception. See Kropp Holdings, Inc., 176 Fed. Cl. at 535–36.
The electronic commerce exception covers proposals that are “received at the initial point
of entry to the Government infrastructure”; whereas the government control exception covers
proposals that are received at the “Government installation designated for receipt of offers.” As
long as these two terms are read to have different meanings, a harmonious reading of the
electronic commerce and government control exceptions, as it relates to electronic transmissions
of proposals, can be accomplished. Id. However, as discussed below, AEG’s conflation of these
two terms would impermissibly read the electronic commerce exception out of the regulation.
As a starting point, it is important to note that the “rules of statutory interpretation apply
when interpreting an agency regulation,” such as the FAR. Roberto v. Dep’t of Navy, 440 F.3d
1341, 1350 (Fed. Cir. 2006) (citing Wronke v. Marsh, 787 F.2d 1569, 1574 (Fed. Cir. 1986)).
Thus, like statutory construction, regulatory interpretation begins with the language of the
regulation, see Williams v. Taylor, 529 U.S. 420, 431 (2000) (citing United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 241 (1989)), and the Court derives the plain meaning of a regulation
from its text and structure, Norfolk Dredging Co. v. United States, 375 F.3d 1106, 1110 (Fed. Cir.
2004) (citing Alexander v. Sandoval, 532 U.S. 275, 288 (2001)). Additionally, it is a cardinal
principle of statutory construction “to give effect, if possible, to every clause and word of a
statute,” Duncan v. Walker, 533 U.S. 167, 174 (2001) (quoting United States v. Menasche, 348
U.S. 528, 538–39 (1955)), and when “Congress uses different parallel words in the alternative in
the same statutory provision, it is reasonable to assume that the words have different meanings,”
Walton v. United States, 551 F.3d 1367, 1370 (Fed. Cir. 2009) (citing Bowers v. N.Y. & Albany
Lighterage Co., 273 U.S. 346, 349–50 (1927)). This is because “courts must presume that a
legislature says in a statute what it means and means in a statute what it says there.” Barnhart v.
Sigmon Coal Co., Inc., 534 U.S. 438, 461–62 (2002) (quoting Conn. Nat. Bank. v. Germain, 503
U.S. 249, 253–54 (1992)).
In its reply brief, AEG emphasized that, because the Wallace declaration establishes that
AEG’s proposal made initial contact with a DISA server prior to the deadline, its proposal was
within the government’s control in a timely manner. ECF No. 74 at 10. The Court rejected this
argument, stating that contact with a DISA server is akin to contact with the “initial point of
entry to the Government infrastructure” under the electronic commerce exception than receipt at
“the Government installation designated for receipt of offers” under the government control
exception. Kropp Holdings, Inc., 176 Fed. Cl. at 536–37. This is because the
Energyfuelcards@dla.mil email inbox, which was designated as the government installation 4 for
4
This assumes, arguendo, that the government control exception applies to electronic
submissions and that an inbox can serve as a “government installation” under that exception.
12
receipt of offers for this procurement, see Tab 10 at AR 210, is housed in a DLA server which
itself is housed in a DISA server, see Kropp Holdings, Inc., 176 Fed. Cl. at 536. Therefore,
because an email would first have to pass through a DISA server before reaching the designated
email inbox on a DLA’s server, evidence that an email reached a DISA server prior to the
deadline for proposal submissions may be sufficient to show that the email reached the “initial
point of entry to the Government infrastructure” for electronic commerce exception purposes.
However, such evidence would be legally insufficient to show that the email reached the
“Government installation designated for receipt of offers,” and would thus fall short of
establishing the applicability of the government control exception. See Kropp Holdings, Inc.,
176 Fed. Cl. at 536 (“AEG relies on the DISA chief technology officer’s declaration to argue that
its proposal was received at a ‘Government installation’ because all four of its volume
submissions ‘reached [DISA] servers before the proposal deadline.’ However, alleging receipt
by DISA servers is not enough, as DLA, not DISA, is the procuring entity.” (alterations in
original) (citations omitted)).
This is a necessary distinction because, if evidence that a proposal “made initial contact”
with a DISA server could suffice for government control exception purposes, the government
control exception would swallow the electronic commerce exception. Under AEG’s
interpretation, for electronic submissions, all that would have to be shown to establish
government control is that an offeror clicked “send” and a government server (in this case, a
DISA server) initiated contact with the sent email file. But under the plain meaning of FAR
52.212-1(f)(2)(i), this is not enough for the government control exception to apply.
Instead, the FAR provision at issue already contemplates such a rule for electronic
submissions: the electronic commerce exception. 48 C.F.R. § 52.212-1(f)(2)(i)(A). Under that
exception, evidence that an offeror clicked “send” and that a DISA server initiated contact with
the email file would satisfy the exception as long as “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 offers.” Id. But if clicking “send” and making initial contact with a
government server was sufficient to meet the requirements of both the electronic commerce and
the government control exceptions, the electronic commerce exception would be rendered
superfluous and thereby violate the canon against surplusage: there would be no reason to invoke
an exception that required initial contact at 5:00 p.m. the day before the deadline if an offeror
could simply rely on an exception that permitted initial contact up to one second prior to the
deadline. Frank v. United States, 171 Fed. Cl. 392, 413 (2024) (“The canon against surplusage
instructs that ‘statutes should be read to avoid superfluity.’” (quoting Marx v. Gen. Revenue
Corp., 568 U.S. 371, 392 (2013) (Sotomayor, J., dissenting))); see Marx, 568 U.S. at 386 (“[T]he
canon against surplusage is strongest when an interpretation would render superfluous another
part of the same statutory scheme.” (citing United States v. Jicarilla Apache Nation, 564 U.S.
162, 185 (2011))).
13
Here, AEG essentially argues that, because its proposal was sent to the designated email
inbox and reached 5 a DISA server prior to the deadline, it was within the government’s control.
But this cannot be without rendering the electronic commerce exception “inoperative or
superfluous, void or insignificant . . . .” Hibbs v. Winn, 542 U.S. 88, 101 (2004). DLA did not
designate “a DISA server” as the government installation for receipt of offers; it designated the
Energyfuelcards@dla.mil email address for that purpose. See Tab 10 at AR 210. As in the
physical world, where merely dropping off a bid for a DLA procurement at DISA headquarters
just before the deadline is insufficient to establish government control, merely initiating contact
with a DISA server seconds before the deadline cannot, without more, establish government
control in the electronic world.
Second, AEG’s policy argument, also found only in its reply brief, similarly missed the
mark. AEG contended that “[b]eyond meeting the plain language of the exception, accepting
AEG’s proposal as timely is also consistent with the late-is-late rule’s stated purpose—ensuring
no offeror obtains extra time after the due date and time and creating a competitive advantage.”
ECF No. 74 at 11 (citing Geo-Seis Helicopters v. United States, 77 Fed. Cl. 633 (2007)). 6 AEG
continued, stating that it “gained no unfair competitive advantage because AEG submitted its
proposal before the deadline—and thus had no more time than the amount allotted to work on its
proposal.” Id.
AEG’s argument is simply incorrect. In procurements involving sensitive technologies,
like the AIR Card contract at issue here, it should come as no surprise to experienced military
contractors that their electronic proposals would undergo security screening to protect DLA
information technology systems from viruses or other risks. Indeed, the RFP explicitly warned
prospective offerors that the “closing time . . . is intentionally set to avoid any potential receipt
issues due to electronic transmission delays such as fire walls” and encouraged offerors “to
submit proposals as early as possible to the closing time to ensure a timely proposal and to allow
system transmission time.” Tab 10 at AR 208. Knowing that this was the case, it behooved
offerors to set aside additional time within their proposal preparation window to ensure that their
proposals had ample time to be electronically transmitted to DLA prior to the deadline. Whether
an offeror set aside a whole day or just an hour is of no moment. The point is, when other
offerors set aside time to ensure a seamless transmission before the deadline, and thereby forego
using that time to modify their proposals, those offerors are prejudiced if the agency selects a
competitor’s bid that was sent on time but received late because that competitor failed to ensure a
seamless transmission and sent its proposal minutes or seconds before the deadline. That
competitor would enjoy the very “inherent competitive advantages” warned of in Labatt Food
Services: the ability to access news and market information that “could result in last minute
changes to the proposal” not available to the contractor who already submitted its bid. See 577
5
The Court again notes that the Wallace declaration, on which AEG relies to argue that
its submission “reached” a DISA server, only states that the precursor to any transmission of
information—a “TLS Handshake with EEMSG”—occurred ten seconds before the deadline. See
Kropp Holdings, Inc., 176 Fed. Cl. at 537 (citation modified) (citing ECF No. 78-1 at 2).
6
The Court surmises that the citation to “Geo-Seis, 77 Fed. Cl. at 64,” is in error, as the
opinion does not appear on page 64 of the reporter.
14
F.3d at 1381 (citation omitted). For these reasons, AEG’s policy argument was also
unpersuasive.
The remaining arguments in AEG’s MJAR on the government control exception did
nothing to revive its above-discussed failure to make an argument that would make the
government control exception applicable. Despite this failure, the Court outlines the remainder
of AEG’s argument in its MJAR on this point. First, AEG argued that, under Watterson
Construction Company v. United States, 98 Fed. Cl. 84 (2011), “timeliness is determined by
when the submission reaches the agency’s servers regardless of when it arrives to the end
destination inbox.” ECF No. 65-1 at 22–23. But AEG’s invocation of that case misses the mark,
as Watterson does not address the particular requirement that submissions must arrive “prior to
the time set for receipt of offers” but rather more generally discusses whether the government
control exception can apply to proposals sent by email and at what point in the transmission
chain timeliness is determined. See 98 Fed. Cl. at 93–97. Unlike here, however, in Waterson,
the protestor argued its proposal was received prior to the deadline, not at the deadline. Id. at 97
(“It is particularly appropriate that the ‘Government Control’ exception be available to offerors
where there is ‘acceptable evidence’ to establish that the offeror’s e-mail proposal ‘was received
at the Government installation designated for receipt of offers and was under the Government's
control prior to the time set for receipt of offers,’ as was the case here.” (emphasis added)).
Because AEG argued that its proposal was received at 10:00 a.m., Watterson offers AEG no help
on this crucial point. 7
AEG next very briefly asserts that the contracting officer’s “sworn statement is entitled to
the presumption of regularity and KHI has failed to provide ‘clear and convincing evidence’ to
overcome that presumption.” ECF No. 65-1 at 24. This argument is completely undeveloped in
AEG’s MJAR and amounts to nothing more than a legal conclusion. See Rodriguez v. Dep’t of
Veterans Affs., 8 F.4th 1290, 1305 (Fed. Cir. 2021) (“An issue that is merely alluded to and not
developed as an argument in a party’s brief is deemed waived.” (citing cases)).
Finally, AEG argued that, because KHI “is not prejudiced by the finding that AEG’s
proposal was timely submitted or within the government’s control,” the Court cannot find in
KHI’s favor on this point. ECF No. 65-1 at 24–25. This argument is also off-base. It is beyond
peradventure that KHI would have a substantial chance of receiving the AIR Card contract if
AEG’s proposal was disqualified for being submitted late. Indeed, KHI was the only other
offeror to submit a technically acceptable proposal. See Tab 91 at AR 2739–42. Accordingly,
this prejudice argument cannot revive AEG’s fatal argument that its submission was received by,
and not prior to, the deadline.
7
Additionally, the analysis of the government control exception in Watterson is at odds
with the above analysis of how to harmonize the electronic commerce and government control
exceptions, because Watterson improperly conflates “the Government installation designated for
receipt of offers” and “the initial point of entry to the Government infrastructure.” See 98 Fed.
Cl. at 97.
15
3. AEG’s Post-Judgment Reconsideration Arguments Are Unavailing.
As established above, the Court held that the government control exception did not
excuse AEG’s late proposal because AEG argued that its proposal was received at, and not prior
to, the time set for receipt of offers. See ECF No. 65-1 at 21; Kropp Holdings, Inc., 176 Fed. Cl.
at 533. Despite this holding, AEG expends much effort and many pages in its motion for
reconsideration challenging the Court’s discussion of how a reading of the government control
exception that does not render the electronic commerce exception surplusage also means that the
government control exception cannot apply here. See ECF No. 92-1 at 2, 14–23, 27–30. But this
effort is futile, as AEG never addresses in its motion for reconsideration the fatal deficiency in its
original argument. For this reason, the Court finds that reconsideration is not warranted in this
case. Nonetheless, the Court will briefly discuss the arguments raised in AEG’s motion for
reconsideration, all of which are unavailing.
In its motion, AEG asserts four reasons why the Court should reconsider its decision.
First, AEG contends that DLA did not have the opportunity to determine whether the government
control exception spared AEG’s late proposal; therefore, contrary to what AEG argued on the
merits, AEG now for the first time maintains that the Court should have remanded this question
to the agency for resolution. ECF No. 92-1 at 12–17. Second, AEG asserts that the Court
created a “heightened standard” for “acceptable evidence” of government control by finding that
DISA servers were insufficient for control purposes, not accepting DLA’s “reasonable”
interpretation of the Wallace declaration, making use of “extrinsic information” for definitions,
and finding no government control despite there being “time left on the clock” to establish such
control. Id. at 17–27. Third, AEG argues that the Court made a mistake of fact in finding that
AEG’s proposal did not timely enter DLA servers because, according to AEG’s reading of the
declaration (which it only now cites for the first time on reconsideration), such entrance
was timely made. Id. at 27–30. Finally, AEG argues that it did not waive any arguments related
to metadata, requests for agency remand, or the insufficiency of the record to establish the
applicability of the government control exception. Id. at 31–37. The Court discusses each
argument in turn.
a. AEG explicitly argued in its prejudgment merits briefing that the Court
should not remand.
AEG essentially contends that reconsideration is warranted because once the Court
“found that the [government control] exception ‘may’ apply, but that the evidence was
inadequate due to its identified inadequacies, it should have remanded the issue to DLA decision-
makers and not conclusively ruled out government control.” Id. at 16. Because the Court did not
remand to the agency, AEG maintains that the “Court inserted itself into DLA’s shoes” by
evaluating “the very limited information before it on control.” Id. After all, according to AEG,
due to its role in this case as a defendant-intervenor, AEG did not have “the ‘burden’ to
demonstrate that the [government control exception] applied to AEG’s initial Volumes 1 and 2.”
See id. at 12.
It is axiomatic that a party, in furtherance of a motion for reconsideration, may not
“reassert the same arguments [ ] made in earlier proceedings” or “raise new arguments that could
16
have been made earlier.” Lee v. United States, 130 Fed. Cl. 243, 252 (2017), aff’d, 895 F.3d
1363 (Fed. Cir. 2018) (citing Freeman v. United States, No. 01–39L, 2016 WL 943859, at *2
(Fed. Cl. Mar. 1, 2016); Stueve Bros. Farms, LLC v. United States, 107 Fed. Cl. 469, 475
(2012)). In other words, “[m]otions for reconsideration are not a vehicle for parties to present
arguments that they should have made during the regular briefing.” Seldovia Native Ass’n, Inc.
v. United States, 36 Fed. Cl. 593, 598 (1996) (citing Gen. Elec. v. United States, 189 Ct. Cl. 116,
117–18 (1969) (per curiam)).
In its motion for reconsideration, AEG advances an argument regarding remand that it did
not raise on the merits and that directly contradicts its merits’ position. AEG’s reconsideration
argument that the Court should have remanded the question of whether the government control
exception applies is particularly misplaced considering that AEG emphasized in its MJAR that
“acceptable evidence” existed for the Court to determine whether the exception applied without
need for a remand. See ECF No. 65-1 at 20 (“In sum, the record contains acceptable evidence
that AEG’s initial proposal was timely received by DLA and within DLA’s control.”); id. at 21
(“[E]ven in the presence of conflicting timestamps, DLA acted rationally because acceptable
evidence exists showing that, in any event, the government control exception to the ‘late-is-late’
rule applies.”); id. at 22 (“The government control exception’s low threshold referred to as the
‘acceptable evidence’ standard obviates the need for further inquiry into this point . . . . This
matter need not be debated further as the record contains ‘acceptable evidence’ to support DLA’s
determination.”).
AEG continued this argument in its merits reply brief as well.
At a minimum, AEG’s initial proposal reached [DISA] servers before the proposal
deadline. Indeed, per the [Wallace] Declaration . . . Mr. Stephen Wallace declared:
“Per the provided message headers I observed initial contact (TLS handshake) with
[DOD’s Enterprise Email Message Security Gateway] at the following times
(UTC): Message titled ‘Air Card Volume 1’: 8/19/2021 1:59:59 PM (Hop 9) –
Translates to 09:59:50 AM EST; Message titled ‘Air Card Volume 2’: 8/19/2021
1:58:31 PM (Hop 5) – Translates to 09:58:31 AM EST.” Based on this “acceptable
evidence,” “the Court’s inquiry ends.”
ECF No. 74 at 10 (citation modified) (first quoting ECF No. 64-1 at 2, then quoting Tesoro, 405
F.3d at 1346) (emphasis added). Nowhere in its merits briefing did AEG even hint that it thought
remand was necessary. Indeed, as KHI points out in its brief in response to AEG’s motion for
reconsideration, the word “remand” appears “forty-four times in AEG’s [motion for
reconsideration], yet the word does not appear in AEG’s MJAR or its Reply.” ECF No. 100 at 2
(citing ECF Nos. 65-1, 74).
The Court conducted a trial (on the paper record), throughout which AEG urged that
acceptable evidence existed for the Court to conclusively determine that the government control
exception applied. See, e.g., ECF No. 65-1 at 2, 5, 20–22. The sole reason that the Court even
engaged in depth with AEG’s merits arguments on this point was because AEG adamantly
insisted that the record was sufficient for the Court to make a ruling on government control. As
discussed in the preceding section, because AEG only argued that its complete proposal was
17
received at (and not prior to) 10:00 a.m., the Court did not need to engage in the discussion for
which AEG now seeks reconsideration. But the Court engaged in this discussion nonetheless,
observing that “[a]lthough AEG waived any metadata argument because it did not make such
argument in its MJAR, the Court will discuss the argument anyway, as the discussion further
demonstrates the lateness of AEG’s proposal.” Kropp Holdings, 176 Fed. Cl. at 534 n.7.
Now, on reconsideration, only after the Court decided against AEG on an issue that AEG
urged the Court to decide in its merits reply brief, AEG argues that the Court erred by deciding
the question rather than remanding this question to the agency. This is an unacceptable basis on
which to argue for reconsideration. See Lee, 130 Fed. Cl. at 252 (finding that a plaintiff may not
“raise new arguments that could have been made earlier” (citing cases)). If AEG wanted the
Court to remand the question for agency determination, AEG should have argued that before the
Court’s ruling on the merits. See Seldovia Native Ass’n, Inc., 36 Fed. Cl. at 598 (“The purpose of
a motion for reconsideration is not to reargue the case.” (citing Roche v. District of Columbia, 18
Ct. Cl. 289, 290 (1883))). AEG’s attempt to do so now cannot succeed, not only because it was
nonessential to the Court’s ruling but also because it contradicts AEG’s merits argument.
Prejudgment hearings are not to be treated by litigants as some sort of experimental
laboratory in which they can test their original hypotheses and, after learning that the Court
disagrees with those hypotheses in its ruling on the merits, come afresh with new theories to
prove its point on reconsideration or appeal. Litigation is not a science experiment. Unlike how
a scientist engages in multiple trial runs to test his or her theories over time, litigants have one
opportunity to develop and assert their arguments to convince the Court to rule in their favor.
And once the Court rules, the time to assert new arguments has long passed.
Moreover, to the extent AEG asserts that its post-judgment remand argument will
uncover new evidence of government control under RCFC 59(a), the Court agrees with the
government’s contention that AEG has the standard backwards. See ECF No. 98 at 6. Newly
discovered evidence is the predicate that warrants reconsideration—not the other way around.
See id. Therefore, to the extent that AEG asserts that a remand may uncover new evidence
proving the applicability of the government control exception to its late proposal, AEG has the
standard wrong.
Because AEG argued in its merits briefing that remand was not warranted, the Court is
not convinced by AEG’s about-face argument in its motion for reconsideration that the Court
should have remanded to the agency.
b. The Court did not create a heightened standard for “acceptable
evidence” of government control.
AEG next asserts that the Court created a “heightened standard” for “acceptable
evidence” of government control by finding DISA servers insufficient for control purposes,
rejecting DLA’s “reasonable” interpretation of the Wallace declaration, making use of “extrinsic
information” for definitions, and finding no government control despite there being time left on
the clock to establish such control. ECF No. 92-1 at 17–27.
18
Taking these arguments one at a time, the Court did not create a heightened standard as
AEG alleges. Specifically, AEG contends that the FAR “defines ‘acceptable evidence,’ and
makes clear that the [government control exception] does not require ‘conclusive’ evidence or
evidence beyond a reasonable doubt.” Id. at 17 (citing 48 C.F.R. § 52.212-1(f)(3)). However, as
the Court did not require either conclusive evidence or evidence beyond a reasonable doubt,
AEG’s arguments are inapposite.
Under the FAR, “acceptable evidence to establish the time of receipt at the government
installation includes the time/date stamp of that installation on the offer wrapper, other
documentary evidence of receipt maintained by the installation, or oral testimony or statements
of Government personnel.” 48 C.F.R. § 52.212-1(f)(3). AEG stresses that the Wallace
declaration, which is a “statement of Government personnel,” is acceptable evidence that the
government control exception applies. See ECF No. 92-1 at 18–19. The Court agrees that the
declaration fits the bill for “acceptable evidence” in that it is indeed a “statement of Government
personnel.” However, just because an agency proffers a declaration containing a “statement of
Government personnel,” it does not automatically mean that the statement’s content establishes
or even addresses the relevant question for application of the government control exception.
Rather, the substance of that statement may or may not provide sufficient information for the
Court to conclude that such exception applies.
Here, the Court concluded that the substance of Mr. Wallace’s statements did not confirm
whether the government control exception applied to AEG’s submission for two reasons. First,
Mr. Wallace only testified that he “observed initial contact” of AEG’s Volume 1 submission with
DISA servers ten seconds prior to the deadline. See ECF No. 78-1 at 2. The Court’s conclusion
that testimony recounting an observation of the “precursor to the transmission of data between
servers” is insufficient to establish government control does not by any means create a
“heightened standard” for acceptable evidence. See Kropp Holdings, Inc., 176 Fed. Cl. at 537.
To the contrary, the Court merely found that the information that the declaration provided did not
establish government control because the contact discussed in the Wallace declaration was
insufficient to “establish that it was received at the Government installation designated for
receipt of offers and was under the Government’s control prior to the time set for receipt of
offers.” 48 C.F.R. § 52.212-1(f)(2)(i)(B) (emphasis added). Recall that the FAR lists the
“time/date stamp of that installation on the offer wrapper” as a form of acceptable evidence. 48
C.F.R § 52.212-1(f)(3). If the Court had rejected a time/date stamp as establishing receipt at the
relevant government installation or government control because the stamp was from the wrong
installation or because the timestamp was after the deadline for receipt of proposals, the Court
would not be creating a “heightened standard” for acceptable evidence. It would simply be
pointing out that the stamp does not, in fact, establish that the requirements of the government
control exception are met. That is exactly what the Court did here regarding the Wallace
declaration. The Court need not reconsider this conclusion.
Second, far from requiring “conclusive evidence” or evidence “beyond a reasonable
doubt,” the Court applied basic principles of regulatory interpretation to determine that the
declaration did not provide acceptable evidence to establish government control. While cautious
to not entirely belabor the point discussed in detail above, the Court recognized that “the initial
point of entry to the Government infrastructure” under the electronic commerce exception and
19
the “Government installation designated for receipt of offers” under the government control
exception must have two different definitions. If they did not, the two exceptions would cover
the same field, and the electronic commerce exception would be rendered superfluous in
contravention of the canon against surplusage. See Frank, 171 Fed. Cl. at 413 (“The canon
against surplusage instructs that statutes should be read to avoid superfluity.” (citations
omitted)); see also Kropp Holdings, Inc., 176 Fed. Cl. at 535. Thus, under the plain meaning of
the FAR language at issue, a DISA server, through which emails must first pass before reaching
DLA servers or the Energyfuelcards@dla.mil email address, is best read to be the “initial point of
entry to the Government infrastructure” as used in the electronic commerce exception. 48 C.F.R.
§ 52.212-1(f)(2)(i)(A). Having established this, a DISA server cannot also be the “Government
installation designated for receipt of offers” because such a reading would render the two phrases
synonymous and, therefore, the electronic commerce exception superfluous. For this reason, Mr.
Wallace’s declaration that he only observed contact with AEG’s proposal and a DISA server,
without more, cannot establish government control of AEG’s proposal prior to the deadline.
Turning to its next argument, AEG contends that “the Court endeavored to find extrinsic
evidence—outside the record and not presented to any party—to aid in its efforts to discredit the
Wallace Declaration further.” ECF No. 92-1 at 24. Specifically, AEG asserts that the Court
“became hyper-focused on the technical jargon used by Mr. Wallace, including the ‘TLS
Handshake’ and ‘EEMSG’ terms, and went on to utilize third-party, extra-record evidence to
define the terms rather than remand the issue to DLA for additional information.” Id. In other
words, AEG is arguing that the Court’s use of what are essentially dictionaries to define a few
technical terms was impermissible. Were it correct, this argument would come as quite a shock
to judges throughout the country.
Consulting a dictionary for the definition of a technical term is not considered an
impermissible resort to extrinsic evidence, especially when the judge, as here, is simply using a
dictionary for its intended purpose: to define a word. As the undersigned’s Legal Research &
Writing professor has explained, courts regularly use dictionaries for definitions “when the Court
simply does not know (or believes that the reader may not know) the accurate definition of a
word that it is using; these are typically technical terms or foreign terms. Needless to say, [use of
a dictionary] is completely appropriate when ‘definition’ is the Court’s sole objective.” Craig
Hoffman, Parse the Sentence First: Curbing the Urge to Resort to the Dictionary When
Interpreting Legal Texts, 6 N.Y.U.J. LEGIS. & PUB. POL’Y 401, 415 (2002) (footnotes omitted);
see also Travelers Cas. & Sur. Co. of Am. v. United States, 75 Fed. Cl. 696, 708–09 (Fed. Cl.
2007) (“[U]se of dictionaries as interpretive aids (e.g., ‘lexicography’) is not considered
‘extrinsic’ aids the use of which violates the plain meaning doctrine.” (citations omitted)).
Moreover, any contention that the Court erred by using dictionaries to define certain
terms used in the declaration instead of remanding the issue to the agency to define the terms is
undermined by AEG’s repeated assertion that the Court could rule on the applicability of the
government control exception based on the complete record before it. See ECF No. 65-1 at 20–
22; ECF No. 74 at 10. AEG insisted that “acceptable evidence” existed and that the record was
sufficiently supplied for the Court to make its ruling. As explained above, AEG cannot now
reverse course and claim that the Court should have remanded to the agency to define technical
terms. See ECF No. 92-1 at 25.
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d. AEG has waived any arguments related to metadata, requests for remand,
and the insufficiency of the record to establish applicability of the
government control exception.
Despite AEG’s efforts to recharacterize its arguments before the Court’s merits ruling by
stating in its motion for reconsideration that it “relied upon the very limited information before
the Court,” see ECF No. 92-1 at 32, in actuality, AEG repeatedly urged on the merits that the
record was complete and that “acceptable evidence” of government control existed for the Court
to make a ruling regarding applicability of the exception, see ECF No. 65-1 at 20–22; ECF No.
74 at 10. Perhaps AEG made that argument because it was originally selected for the AIR Card
contract and wanted to go full steam ahead to preserve its contract without the delay of an
agency remand or additional proceedings before this Court. Regardless of AEG’s motivation to
make such an argument, as the Court has thoroughly explained above, AEG cannot now ask the
Court to go back in time, ignore the arguments AEG made on the merits, and order remand for
issues AEG either did not address on the merits or previously argued were ripe for resolution.
See Fru-Con Const. Corp., 44 Fed. Cl. at 301 (“Put simply, the rulings of a court are not ‘mere
first drafts, subject to revision and reconsideration at a litigant’s pleasure.’” (quoting Quaker
Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988))).
Although GAO decisions are not binding on this Court, the Court notes the similarity of
the protestor’s situation in In re ALJUCAR, LLC to AEG’s predicament here. See B-401148,
2009 WL 1588827 (Comp. Gen. June 8, 2009). That case involved an untimely delivery of a
hard-copy proposal to a physical government installation. Id. at *2. The protester there argued
that the “sole cause” of its untimely proposal was “delay caused by the guard at the security
checkpoint” who erroneously failed to “allow the [protestor’s] representative who lacked
adequate identification to either wait at the checkpoint or leave the checkpoint, unescorted, to
exit the base.” Id. at *3. The GAO stated that, even if the guard’s actions were in error, it could
not conclude that such actions were “the sole or paramount cause of the proposal being received
late,” since the protestor, who “had the primary responsibility for delivering its proposal on
time[,] significantly contributed to the lateness of the proposal.” Id. This is because, as the GAO
explained, “[d]espite numerous RFP instructions emphasizing [an] offeror’s responsibility for
timely submission, including that [an] offeror should anticipate it taking up to an hour to
complete the required security screening for proposal submissions, the [protestor] arrived on the
base only 8 minutes before closing.” Id. All in all, the GAO, in concluding that the protestor’s
proposal was late, remarked that the protestor “simply did not allow sufficient time to fulfill its
responsibility to deliver its proposal by the proper time.” Id.
Here, AEG similarly waited until the last minute to submit its proposal for the AIR Card
contract. Determining whether its strategy in doing so was to make last-minute improvements to
its proposal or for other reasons is beyond the scope of this Court’s review. Nonetheless, the
Court must observe that, like the protestor in ALJUCAR, AEG took a gamble by waiting until the
last minute to submit its proposal, especially in light of the clear warnings given in the RFP for
offerors to submit their proposals as early as possible to prevent this exact situation. See Tab 10
at AR 208. AEG’s counsel even conceded the riskiness of his client’s gamble in submitting its
proposal so close to the deadline. See ECF No. 85 at 93:3–8. Unfortunately, his gamble did not
pay off, and the Court must deny AEG’s motion for reconsideration.
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CONCLUSION
Although the Court acknowledges that it may seem unfortunate that AEG was eliminated
from competition due to the untimeliness of its proposal, the law is clear that the government
control exception to the late-is-late rule is inapplicable to spare AEG’s otherwise untimely
submission. For the foregoing reasons, the Court hereby DENIES AEG’s motion for
reconsideration.
IT IS SO ORDERED.
s/ Zachary N. Somers
Zachary N. Somers
Judge
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