describing in this situation that “this first canon is also the last.”
How later courts described this case
- describing in this situation that “this first canon is also the last.”
- requiring more than de minimis errors to obtain relief
- noting that the court’s discussion in that case addressed statutory standing
- noting that unlike a motion under RCFC 56, “proceeding under RCFC [52.1] merely restricts the evidence to the agency record. . . .”
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
No. 25-1604
(Filed Under Seal: June 1, 2026)
Reissued: June 17, 2026∗
)
RICK AVIATION, INC., )
)
Plaintiff, )
)
v. )
)
UNITED STATES, )
)
Defendant, )
)
)
AVFUEL, INC., )
)
Defendant-Intervenor )
)
John Bradley Reaves, and Jacob Daniel Noe, Reaves PLLC, Chesapeake, Virginia, for plaintiff.
Jana Moses, Senior Trial Counsel, United States Department of Justice, Civil Division,
Commercial Litigation Branch, Washington, D.C., for defendant.
Jill McDowell, Impresa Legal Group, Arlington, Virginia, for defendant-intervenor.
OPINION AND ORDER
SMITH, Senior Judge
Government procurement law imposes strict deadlines and doles out harsh consequences
toward late offers. Under the “late is late rule,” federal agencies are prohibited from considering
proposals that are received after the deadline in a solicitation expires. Consequently, federal
agencies reject proposals submitted by contractors mere minutes—or even seconds—after a
deadline lapses. Agencies also reject offers that are transmitted before a deadline but are received
after the deadline passes. There are narrow circumstances under which agencies will consider late
offers. Those narrow circumstances, however, must meet specific requirements. One of those
requirements provides that late offers must be received before an award decision.
∗
An unredacted version of this Opinion was issued under seal on June 1, 2026. See ECF No. 56.
The Court provided the parties with the opportunity to submit proposed redactions. See Joint Status Report,
ECF No. 58. The Court accepted the parties’ proposed redactions.
1
In this post-award bid protest, the Court considers whether a late offer should have been
considered when an offeror’s electronic submission never reached the designated email inbox in a
solicitation before an agency made its award. Plaintiff Rick Aviation, Inc. (“RAI”) challenges the
Defense Logistics Agency’s (“DLA”) decision to exclude its proposal from consideration for a
contract to procure jet fuel to support Department of Defense (“DoD”) activities. RAI argues that
the Government Control and Electronic Commerce exceptions to the “late is late” rule apply such
that DLA arbitrarily and capriciously excluded its proposal from competition. RAI also claims
that DLA evaluated proposals by using unstated criteria when it failed to include information
regarding an offeror’s email-authentication protocols in the solicitation. Finally, RAI contends
that DLA abused its discretion by awarding the contract to defendant-intervenor Avfuel, Inc.
(“Avfuel”) when Avfuel allegedly failed to secure a valid fixed-based operator in connection with
carrying out the contract.
Among other things, RAI seeks injunctive relief and an order requiring DLA to re-consider
its proposal. Before the Court are the are the parties’ cross-motions for judgment on the
administrative record. See Pl.’s Mot. for J. on the Administrative R., ECF No. 36; Def.’s Cross-
Mot. for J. on the Administrative R. and Resp. to Pl.’s Mot for J. on the Administrative R., ECF
No. 45; Intervenor’s Cross-Mot. for J. on the Administrative Record and Resp. to Pl.’s Mot. for J.
on the Administrative R., ECF No. 46. For the following reasons, the Court GRANTS defendant
and Avfuel’s cross-motions, ECF Nos. 45 and 46, and DENIES RAI’s motion, ECF No. 36.
I. BACKGROUND
A. The Solicitation.
On April 21, 2025, DLA issued Solicitation No. SPE607-25-R-0201 (the “Solicitation”) as
part of its Energy FEPEA Into-Plan (Purchase Program 2.3 EAST) Fuel Program. See
Administrative Record (“AR”), ECF No. 32 at 31, 43. Under the Solicitation, DLA sought
procurement of petroleum fuel products to support ongoing DoD and civilian agency activities at
commercial airports across the United States and North America. Id. at 3. Offerors could bid
between 122 line items, with each item representing a different airport. Id. at 45–81. Each airport
location would “be evaluated and awarded independently from all other [] locations.” Id. at 7–8.
DLA encouraged prospective offerors to submit proposals for multiple line items. Id. at 234.
Awards would operate as long-term requirements contracts with economic price adjustments to
protect against fluctuations in labor or material costs. Id. at 11, 13.
The Solicitation also provided that DLA would award contracts to those “whose offer
conforming to the solicitation will be most advantageous” by considering a proposal’s technical
acceptability and price. Id. at 38–39 (citing 48 C.F.R. § 52.212-2). To meet or exceed technical
acceptability, DLA required offerors to “submit a Certificate of Analysis or Certificate of Quality
demonstrating that the Offeror can meet the application specification for the product offered” based
on DoD standards. Id. at 39. Price would be “based upon the lowest estimated total price for the
requirements as solicited for the particular airport.” Id. at 39, 96. In sum, contracts would be
awarded to offerors “represent[ing] the best value from selection of the lowest priced proposal that
is technically acceptable.” Id. at 9 (citing 48 C.F.R. § 15.101-2). DLA intended to make awards
without discussions. Id. at 96. It further cautioned offerors that failure to provide required
documentation or information could render a proposal technically unacceptable. Id. Jamika Forde
2
was designated as the Contracting Officer and served as the primary point of contact for all
communications and inquiries. Id. at 6, 20, 35, 97.
The Solicitation set a deadline for offerors to submit their proposals for May 23, 2025, at
1:00 p.m. Eastern Standard Time (“EST”). Id. at 96. DLA advised contractors to ensure their
offers are “sent with enough time to be processed through the server.” Id. Offerors also
“assume[d] all risk for any delay in transmission of their proposals.” Id. (emphasis added). Any
offer received after the due date would be considered late and would generally not be considered.
Id. at 96, 234–35. To submit their proposals, DLA requested that offerors submit their bids to Ms.
Forde’s email at: Jamika.forde@dla.mil. Id. Elsewhere in the Solicitation, contractors could send
their offers to: DLA-Energy-PH.Reqiurements@dla.mil. Id. at 240. In that section, DLA warned
that its email filtration system would scan for viruses and key words that could delay delivery of a
bid. Id. Contractors, then, were “encouraged to verify receipt of e-mail offers by contacting the
Contracting Officer prior to the solicitation closing time.” Id.
DLA also instructed offerors to submit a Certificate of Analysis or Certificate of Quality
from each supplier that verified its delivery of aviation fuel would satisfy DLA energy standards.
Id. at 7, 241. Offerors who were not the Refueler or Fixed-Based Operator (“FBO”) were also
required to submit a Commitment Letter from its FBO. Id. By signing the letter, FBOs committed
themselves to render refueling services on behalf of an offeror for the period of performance. Id.
at 263.
B. RAI and Avfuel Submit Their Offers and DLA Issues Award.
On May 22, 2025, RAI emailed its proposal to DLA-Energy-PH.Requirements@dla.mil at
1:27 p.m. EST. Id. at 322. RAI bid on Line Item 75, which required 32,292,000 gallons of “Jet A
w/FSII Fuel” and “Jet A w/o FSII” Fuel delivered to Newport News Williamsburg International
Airport in Virginia (“KPHF”). Id. at 67, 318. The performance period would begin on October 1,
2025 and last until March 31, 2029. Id. at 6. One minute after its submission, RAI received an
email from a Mail Delivery System stating that its proposal was successfully delivered to DLA-
Energy-PH.Requirements@dla.mil. Id. at 321. RAI did not receive any communications from
DLA after sending its offer.
Avfuel also submitted an offer for Line Item 75 that proposed services worth
$96,404,219.88. Id. at 264–73, 300–01, 308. In its proposal, Avfuel listed Atlantic Aviation PHF
(“Atlantic”) as its FBO. Id. at 270. Avfuel also provided a signed commitment letter from Atlantic
that pledged it would perform refueling services on behalf of Avfuel for the entire contract period.
Id. at 270–71. Additionally, Avfuel attached a certificate of analysis that represented that its
proposal would meet defendant’s standards. Id. at 272–73. After the May 23, 2025, deadline
passed, Ms. Forde checked both email inboxes. AR 318. She only found Avfuel’s proposal for
Line Item 75 and noted that “[t]here was no offer from [RAI] . . . in either inbox, nor any other
email received from [RAI] between April 22, 2025 and May 23, 2025.” Id. at 318–19.
DLA accepted Avfuel’s proposal and awarded it the contract on August 19, 2025. AR at
299. In her letter, Ms. Forde wrote that Avfuel “submitted the lowest price technically acceptable
proposal for [] CLIN [75].” Id. As part of its evaluation, DLA recommended a “complete award”
3
to Avfuel following pre-award technical and quality assurance surveys. Id. at 290–92. 1 DLA noted
that Atlantic maintained a lease with KPHF “that is currently valid through end of FY 2026.” Id.
at 290. But its evaluators commented that Atlantic signed its commitment letter before a pre-award
survey visit “stating support would be provided if the contract is awarded” to Avfuel for the entire
performance period. Id. at 290–91. Both surveys concluded that Avfuel possessed the requisite
equipment, personnel, and capability to fulfill Line Item 75. Id. RAI received no award notice.
C. RAI Files Its Notice of Bid Protest and DLA’s Subsequent Investigation of the
Missing Proposal.
On September 23, 2025, DLA received a notification that RAI intended to file a bid protest
challenging the award of Line Item 75. Id. at 319. In response, Ms. Forde checked both email
inboxes again and did not find RAI’s proposal in either inbox. Id. DLA then initiated an
investigation by requesting assistance from the Defense Information Systems Agency (“DISA”).
Id. DISA is a mission partner of DLA who provides information technology services, including
email services. Id. at 316. DLA’s emails are processed by DISA’s Enterprise Email Messaging
Secure Gateway (“EEMSG”) “where they are validated by verifying the Sender Policy Framework
(SPF) configuration.” Id. SPF “is an email authentication standard that uses DNS TXT records to
specify which mail servers are authorized to send email on behalf of a domain.” Id. DISA blocks
emails that fail SPF configuration. Id.
After opening an inquiry, DISA located RAI’s proposal. Id. According to DISA EEMSG
and ZND Lead Engineer Quang Trinh, DISA quarantined RAI’s May 22, 2025, email “due to error
by the sender.” Id. Specifically, the “Header information” concluded that RAI’s email did “not
designate[] as permitted sender.” Id. Mr. Trinh then determined that RAI’s
“domain SPF record was not properly configured” which caused its proposal to be quarantined.
Id. Thus, RAI’s proposal was “never relayed to DLA-Energy-PH.Requirements@dla.mil.” Id.
Based on DISA’s findings, Ms. Forde concluded that RAI’s proposal was late because “it
was not received at the Government office designated in the solicitation before the closing date.”
Id. at 319. Since DISA quarantined RAI’s email due to a SPF error by the sender, RAI’s offer
never reached either email inbox specified in the Solicitation. Id. at 319–20. Under these
circumstances, Federal Acquisition Regulations (“FAR”) “prohibit[ed] DLA Energy from
accepting [RAI’s] late proposal because it was not received at the Government office designated
in the solicitation before the award.” Id. at 320. Ms. Forde also opined that RAI “could have
avoided this situation by verifying DLA Energy’s receipt of the email prior to the closing date, as
encouraged by the Solicitation.” Id. at 320.
1
DLA’s general pre-award survey recommended a “no offer” of Avfuel’s proposal. Id. at 287. In
that survey, DLA noted that while Avfuel satisfied technical and quality assurance requirements, it could
not sufficiently provide into-truck capabilities. Id. Specifically, DLA concluded that Atlantic’s “truck rack
meter is not calibrated for POS” which made its Into-Truck operations infeasible. Id. at 289. A DLA
evaluator also opined that Avfuel could not meet its delivery requirements due to Atlantic’s available assets,
which included its trucks and storage tanks. Id. at 288. However, the survey requested that an on-site pre-
award survey be performed and that separate Into-Truck and Into-Plane surveys be conducted “so as to not
interfere with the overall recommendation.” Id. at 287.
4
in support of its own motion. See Pl.’s Reply Br., ECF No. 48. Written briefing concluded when
defendant and Avfuel filed their reply briefs in April 2026. See Intervenor’s Reply in support of
Intervenor’s Cross-Mot. for J. on the Administrative R., ECF No. 51; Def.’s Reply in support of
Cross-Mot. for J. on the Administrative R., ECF No. 53. On April 29, 2026, the Court held oral
argument on the parties’ pending motions. See generally Oral Arg. Tr., ECF No. 55.
III. LEGAL STANDARDS
A. Scope of Review Under Bid Protest Actions.
The Tucker Act confers jurisdiction on this Court “to render judgment on an action by an
interested party objecting to . . . the award of a contract or any alleged violation of statute or
regulation in connection with [a] procurement . . . ” 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.” CS 321 East 2nd Investors, LLC v.
United States, 178 Fed. Cl. 471, 483 (2025) (citing Percipient.AI v. United States, 153 F.4th 1226,
1235 (Fed. Cir. 2025)). This Court may award “any relief that [it] considers proper, including
declaratory and injunctive relief.” 28 U.S.C. § 1491(b)(2).
Bid protests are reviewed under the Administrative Procedure Act (“APA”), 5 U.S.C. §
706. See 28 U.S.C. § 1491(b)(4). Under the APA, a court will set aside a federal agency’s decision
that is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A); see Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005);
Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1329 (Fed. Cir. 2004). Agency action is
arbitrary and capricious when “(1) the procurement official’s decision lacked a rational basis; or
(2) the procurement procedure involved a violation of regulation or procedure.” Banknote Corp.
of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004). Such conduct lacks a rational
basis when an agency failed to provide a “coherent and reasonable explanation of its exercise of
discretion.” Id. When challenging an award on the second ground, a plaintiff must show “a clear
and prejudicial violation of applicable statutes or regulations.” Id. Examples of arbitrary and
capricious conduct include when a federal agency “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 [the decision] is so implausible that it could not be ascribed to a difference in view or
the product of agency expertise.” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d
1372, 1375 (Fed. Cir. 2009) (alteration in original) (quoting Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
In addition, a Court must find that the challenged agency action was prejudicial to the
contractor. Bannum, 404 F.3d at 1351. “The second step is always required before setting aside a
bid award, regardless of whether the error identified at the first step was arbitrary and capricious
action or, instead, a violation of law.” Sys. Stud. & Simulation, Inc. v. United States, 22 F.4th 994,
997 (Fed. Cir. 2021). A protester suffers prejudice upon a showing “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) (citation omitted).
This Court will “interfere with the government procurement process only in extremely
limited circumstances.” CACI, Inc.-Fed. v. United States, 719 F.2d 1567, 1581 (Fed. Cir. 1981).
6
In application, the “arbitrary and capricious standard . . . is highly deferential.” Advanced Data
Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000); see Grumman Data Sys.
Corp. v. Dalton, 88 F.3d 990, 1000 (Fed. Cir. 1996) (requiring more than de minimis errors to
obtain relief). Disappointed bidders bear “a heavy burden of showing that the award decision had
no rational basis.” 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)). If there is “a reasonable basis for the agency’s action, the court should stay its
hand even though it might, as an original proposition, have reached a different conclusion. . . .”
Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989). In sum, a court will not
substitute its judgment for that of the agency. Bowman Transp., Inc. v. Ark.-Best Freight Sys.,
Inc., 419 U.S. 281, 285–86 (1974) (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402, 416 (1971)).
B. Motion for Judgment on the Administrative Record.
Under Rule 52.1 of the Court of Federal Claims (“RCFC”), “a motion for judgment on the
administrative record examines whether the administrative body, given all the disputed and
undisputed facts appearing in the record, acted in a manner that complied with the legal standards
governing the decision under review.” Supreme Foodservice GmbH v. United States, 109 Fed. Cl.
369, 382 (2013). Courts are required “to make factual findings from the record evidence as if it
were conducting a trial on the record.” Bannum, 404 F.3d at 1356. Unlike a motion for summary
judgment, genuine issues of material fact do not preclude the Court from entering judgment. Id.
at 1355–56; see id. at 1356 (noting that unlike a motion under RCFC 56, “proceeding under RCFC
[52.1] merely restricts the evidence to the agency record. . . .”). Thus, courts must determine
whether a party satisfied its burden of proof based on the record. Palantir USG, Inc. v. United
States, 904 F.3d 980, 989 (Fed Cir. 2018).
C. Permanent Injunctions.
Courts may grant injunctive relief upon a showing that “(1) the plaintiff has succeeded on
the merits; (2) the plaintiff will suffer irreparable harm if the court withholds injunctive relief; (3)
the balance of hardships to the respective parties favor[] the grant of injunctive relief; and (4) the
public interest is served by a grant of injunctive relief.” Centech Grp., Inc. v. United States, 554
F.3d 1029, 1037 (Fed. Cir. 2009) (citing PGBA, LLC v. United States, 389 F.3d 1219, 1228–29
(Fed. Cir. 2004)). While injunctive relief “is based on [the] four-factor test, a plaintiff’s failure to
achieve success on the merits is dispositive.” Kingfisher Sys., Inc. v. United States, 145 Fed. Cl.
22, 34 (2019) (citing PGBA, 389 F.3d at 1228–29; Career Training Concepts, Inc. v. United States,
83 Fed. Cl. 215, 219 (2008)).
IV. DISCUSSION
Much of RAI’s lawsuit depends on whether DLA should have considered its late proposal.
Submissions of late offers “after all other parties are required to do so” presents “inherent
competitive advantages . . . such as access to post-deadline news and market information that could
result in last minute changes to the proposal.” Labatt Food Serv., Inc. v. United States, 577 F.3d
1375, 1381 (2009) (citation omitted). Under the late is late rule, federal agencies are prohibited
“from accepting a proposal, proposal modifications, or revisions after the deadline for proposals
7
established by the agency in a solicitation.” Naval Sys., Inc. v. United States, 153 Fed. Cl. 166,
172 n. 1 (2021). Courts adhere “to the plain text of the regulation” and its mandate “that offerors
submit their proposals on time is a strict rule with very limited exceptions.” Geo-Seis Helicopters,
Inc. v. United States, 77 Fed. Cl. 633, 640 (2007) (citations and quotations omitted). 3 In doing so,
an “untimely submission becomes a stranger to the process, and is disqualified from the
procurement.” Labatt, 577 F.3d at 1381. Thus, late offers have “no ‘substantial chance’ of award,
and no more standing to sue than the proverbial man on the street.” Id.
As discussed below, FAR 52.212-1(f)(2)(i) provides limited exceptions to the late is late
rule. Those include the Government Control and Electronic Commerce exceptions which impose
additional requirements. FAR 52.212-1(f)(2)(i)(A)–(B) (codified at 48 C.F.R.). Under the
arbitrary and capricious standard of review, this Court cannot substitute its own judgment for that
of Ms. Forde’s just because it may have reached a different conclusion. Honeywell, Inc., 870 F.2d
at 648. Rather, the Court must address whether Ms. Forde lacked a rational basis when she
concluded that DLA could not accept RAI’s proposal at the time she made her decision. IAP
Worldwide Servs., Inc. v. United States, 160 Fed. Cl. 57, 76 (2022) (citing Michigan v. EPA, 576
U.S. 743, 758 (2015)).
A. RAI Failed to Demonstrate that It Satisfied Threshold Requirements for the Court
to Consider whether an Exception to the Late Is Late Rule Applies.
Defendant and Avfuel asserted that RAI failed to comply with certain prerequisite
conditions under FAR 52.212-1(f)(2)(i). See ECF No. 45 at 7–11; ECF No. 46 at 9–12. In their
opinion, the Court need not address whether the Government Control and Electronic Commerce
exceptions apply. Resolving this issue turns on principles of statutory interpretation.
It is well-established that rules of statutory construction apply to interpreting regulations.
Goodman v. Shulkin, 870 F.3d 1383, 1386 (Fed. Cir. 2017). These “canons” are “no more than
rules of thumb that help courts determine the meaning of [a regulation].” Connecticut Nat. Bank
v. Germain, 503 U.S. 249, 253 (1992). Nonetheless, courts should “should always turn first to
one, cardinal canon before all others.” Id. Under that fundamental canon, “unless otherwise
defined, words will be interpreted as taking their ordinary, contemporary, common meaning.”
Sanifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014) (quoting Perrin v. United States, 444 U.S.
37, 42 (1979); New York & Presbyterian Hosp. v. United States, 881 F.3d 877, 882 (Fed. Cir. 2018).
If words to a regulation are clear and unambiguous, “the inquiry ends with plain meaning.” Hanser
v. McDonough, 56 F.4th 967, 970 (Fed. Cir. 2022) (citation omitted); see Connecticut Nat. Bank,
503 U.S. at 253 (describing in this situation that “this first canon is also the last.”).
1. A Plain Reading of FAR 52.212-1(f)(2)(i) Shows a Series of Steps Must be Met for
an Agency to Consider an Otherwise Late Proposal.
In relevant part, FAR 52.212-1(f)(2)(i), along with the two exceptions at issue, appear as
follows:
3
Application of the late is late rule also “alleviates confusion” and promotes “equal treatment of all
offerors.” Argencord Mach. & Equip., Inc. v. United States, 68 Fed. Cl. 167, 173 (2005).
8
Any offer, modification, revision, or withdrawal of an 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 it is received before award is made, the Contracting
Officer determines that accepting the late offer would not unduly delay the acquisition;
and—
(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
(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. . .
FAR 52.212-1(f)(2)(i)(A)–(B). Going line by line, the regulation provides a framework for Courts
to follow. First, “[a]ny offer . . . received at the Government office designated in the solicitation
after the exact time specified for receipt of offers is ‘late’ . . .” FAR 52.212-1(f)(2)(i) (emphasis
added). In plain English, this opening clause defines what constitutes a late offer: one that is
received by the Government office after the deadline expired as stated in a solicitation. Next, late
offers “will not be considered unless. . .” Id. Traditionally, the word “shall” represents mandatory
language, while “may” refers to permissive language. See Antonin Scalia & Bryan A. Garner,
Reading Law 112–15 (2012). Although “shall” presents “a semantic mess,” it has been interpreted
to be “essentially equivalent to will.” Id. at 112–13 (emphasis in original). In this case, the Court
finds that “will” in § 52.212-1(f)(2)(i) connotes a similar effect to “shall.” Under this reading, late
offers shall not be considered unless certain conditions are met.
Those conditions include: (1) that a late offer be “received before award is made;” and (2)
the “Contracting Officer determines that accepting the late offer would not unduly delay the
acquisition.” FAR 52.212-1(f)(2)(i) (emphasis added). Section 52.212-1(f)(2)(i) also ends with
the word “and” before listing specific requirements for the Government Control and Electronic
Commerce exceptions. See FAR 52.212-1(f)(2)(i)(A)–(B). As a tenet of statutory interpretation,
the word “and” joins a conjunctive list which requires all items to be satisfied. See Scalia & Garner,
supra, at 116 (citing Harmelin v. Michigan, 501 U.S. 957, 967 (1991)). Therefore, a late offer
must satisfy the first two conditions in § 52.212-1(f)(2)(i) and then meet the criteria in one of its
exceptions to overcome the late is late rule. 4 Indeed, this Court previously described FAR 52.212-
1(f)(2)(i)’s express requirements as “qualifying conditions for the application of an exception to
the ‘late is late’ rule.” Fed. Acquisition Servs. Team, LLC v. United States, 124 Fed. Cl. 690, 702
(2016).
4
The Government Control Exception separates itself from its Electronic Commerce Exception
counterpart with an “or.” See FAR 52.212-1(f)(2)(i)(A)–(B). “Or” creates a disjunctive list, which becomes
satisfied upon completion of one item. See Scalia & Garner, supra, 116 (2012). Therefore, late offers need
only satisfy one exception in addition to the two qualifying conditions for such offers to be considered.
9
2. DLA Reasonably Concluded that It Could Not Consider RAI’s Late Proposal
Because It Did Not Receive the Offer Before Awarding Avfuel the Contract.
Conceptually, both parties and the Court agree on how RAI’s late proposal should be
analyzed. Compare ECF No. 36 at 6, 8–9, 12; with ECF No. 45 at 7–11; ECF No. 46 at 9–12.
However, the parties disagree on how that framework should apply under these circumstances.
RAI argues that its offer “was received before award was made.” ECF No. 36, at 9. It claimed
that DISA’s receipt and quarantine of its proposal satisfied FAR 52.212-1(f)(2)(i)’s first condition.
Id.; ECF No. 48 at 6–7. By contrast, defendant asserts that RAI’s proposal did not reach “the
designated Government office in the Solicitation” before DLA made its award which “leaves no
room for discretion” under the late is late rule. ECF No. 45 at 7 (emphasis added). Avfuel sided
with defendant’s interpretation and urges this Court to find that RAI’s “reliance on the auto-
generated receipt” it received after sending its offer did not prove receipt “at the email designated
in the Solicitation.” ECF No. 46 at 9–10.
This matter turns on two clauses in § 52.212-1(f)(2)(i). First, an offer becomes late when
it is “received by the Government office designated in the Solicitation after the exact time specified
for receipt of offers.” FAR 52.212-1(f)(2)(i). Second, late offers “will not be considered unless it
is received before award is made.” Id. The “received before award is made” requirement lacks a
destination. See id. Defendant interprets subparagraph (f)(2)(i) as “prescrib[ing] an integrated
condition: [that a late] offer must be received at the Government office designated in the
solicitation before award is made.” ECF No. 53 at 3. Meanwhile, RAI posits that “the crux of this
case” depends on “the distinction, if any, between the definitions of ‘Government office,” ‘initial
point of entry to the Government infrastructure,’ and ‘Government installation.’” ECF No. 48 at
6. The latter two terms appear in the Government Control and Electronic Commerce exceptions.
FAR 52.212-1(f)(2)(i)(A)–(B). RAI claims that terminology from both exceptions modify
Government office, depending upon which exception to the late is late rule applies. ECF No. 48
at 8. After careful consideration, the Court agrees with DLA and Avfuel’s interpretation.
At the outset, when different parallel words appear “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). In cases involving physical delivery of offers, a
designated Government office means the “particular location designated for the receipt of bids in
the [Solicitation].” Cal. Marine Cleaning, Inc. v. United States, 42 Fed. Cl. 281, 298 n. 33 (1998).
A Government installation, by contrast, “refers to the entire government facility in which the
‘designated office’ is located.” Id. When applied together, the Government Control exception
“only makes sense if a proposal was sent from one part of a Government installation to the
designated office by a Government agent in the ordinary course of business.” Shirlington
Limousine & Transp., Inc. v. United States, 77 Fed. Cl. 157, 171 (2007). As for electronic
submissions, one Court defined Government office as “the e-mail address identified in the
solicitation for receipt of proposals.” Conscoop-Consorzia Fra Coop. Di Prod. E Lavoro v. United
States, 62 Fed. Cl. 219, 238 (2004); see also Watterson Const. Co. v. United States, 98 Fed. Cl. 84,
93 n. 14 (recognizing that lateness is determined based on “when it reaches or is received by the
responsible government official’s email.”). And courts have defined Government installation in
this context as “the first server designated by the government to receive e-mails directed to the
address contained in a solicitation.” Fed. Acquisition, 124 Fed. Cl. at 704 (emphasis added).
10
Applying a similar logic to email submissions, some initial server would pass along an offer to the
inbox listed in the Solicitation. Thus, each term carries its own distinct meaning.
RAI contends that interpreting each term independently “is contradictory” because it would
impose “some added substantive hurdle.” Id. But RAI’s argument runs afoul of another canon of
statutory construction: the “Scope of Sub-Parts Canon.” This canon provides that “[m]aterial
within an indented subpart relates only to that subpart; material contained in unindented text relates
to all the following or preceding indented subparts.” See Scalia & Garner, supra, at 156; see also
Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 334 (2005). Here, FAR 52.212-
1(f)(2)(i) appears as unindented text while the Government Control and Electronic Commerce
exceptions appear in subsections (A) and (B) which are indented. 5 Taken together, § 52.212-
1(f)(2)(i) and its two qualifying conditions apply to all indented exceptions. At the same time,
indented language found in subsections (A) and (B) do not interact with each other, nor do they
modify FAR 52.212-1(f)(2)(i) above. Nowhere does § 52.212-1(f)(2)(i) allow for these terms to
replace or modify each other’s meaning either. Therefore, RAI cannot use language found in the
Government Control and Electronic Commerce exceptions to read-in a favorable interpretation of
FAR 52.212-1(f)(2)(i)’s conditions. See ECF No. 48 at 8. 6
As observed by defendant, RAI conflates FAR 52.212-1(f)(2)(i) with criteria found in the
Government Control exception. ECF No. 45 at 7. Indeed, RAI believes that its offer was received
before DLA made its award because it “was within the government’s control but [] was not
forwarded to [the] intended recipient.” ECF No. 36 at 9.7 RAI relies on the Court’s decision in
Fed. Acquisition for support. There, DISA attempted to transmit a contractor’s offer to a federal
agency, but the email “bounced back as ‘undeliverable’” because it exceeded the file size limit
outlined in the Solicitation. Fed. Acquisition, 124 Fed. Cl. at 693–94. That case concerned
whether a proposal “was received at the Government installation designated for receipt of offers .
. . for purposes of the Government Control exception.” Id. at 703–04. However, “the two
qualifying conditions for the application of an exception to the ‘late is late’ rule” were not disputed.
Id. at 702 (emphasis added). An order mandated that the federal agency accept the contractor’s
“proposal for evaluation [which] resulted in the agency receiving the proposal before award and
the procurement was not unduly delayed.” Id. These facts do not appear here.
Furthermore, RAI claims that its offer was received “at the Government office before an
award was made” because DISA intercepted and quarantined its email. ECF No. 48 at 7
(quotations omitted). By flagging its email, RAI’s proposal “was physically present in the
government’s email infrastructure . . . long before any award decision was ever made.” Id. Again,
“Government office designated in the Solicitation” relates to Ms. Forde’s and DLA Energy’s email
addresses, not DISA servers. AR at 96, 240. Next, RAI argues that it “can hardly be held
responsible for knowing that a different agency might nevertheless intercept [its] proposal.” Id. at
5
See 52.212-1 Instructions to Offerors—Commercial Products and Commercial Services,
Acquisition.Gov, https://www.acquisition.gov/far/52.212-1, (last visited Mar. 13, 2026).
6
“[L]ittle or no heed should be given” to the Scope of Sub-Parts Canon if circumstances suggest
“that the formatting was not something that the drafters of the text enacted.” See Scalia & Garner, supra,
at 156. The Court finds no compelling reason to support a contrary finding.
7
This assertion further proves that RAI implicitly recognized that a difference exists between
Government office and Government installation. It also shows that RAI acknowledged that its offer never
reached the email address listed in the Solicitation.
11
8. Neither FAR 52.212-1(f)(2)(i), nor its exceptions, contemplate a contractor’s knowledge of
potential obstacles to receipt. FAR also does not incorporate any fairness considerations and
Courts are instructed to strictly interpret the late is late rule. RAI then discusses perceived
analogous facts in Fed. Acquisition and distinguishes this matter from Kropp Holdings, Inc. v.
United States, 176 Fed. Cl. 512 (2025), reconsideration denied, 180 Fed. Cl. 233 (2026). ECF
No. 48 at 8–10. Once more, RAI combines concepts from the Government Control exception’s
specific criteria to FAR 52.212-1(f)(2)(i)’s general conditions. While it may be a “crystal [sic]
clear distillation” under that exception, RAI’s analysis stops short of convincing the Court that its
proposal was received at the “Government office designated in the Solicitation” before an award
was made. Id. at 9. Finally, RAI contends that DLA designated DISA as “the first server to receive
emails directed to the addresses contained in the Solicitation.” ECF No. 48 at 9. On these lines,
DISA served as an “agent, or functional equivalent, of DLA itself.” Id. RAI failed to develop this
argument, nor did it offer any supporting evidence that DLA arranged for DISA to serve as its
agent. These “[c]onclusory assertions and speculation” do not satisfy RAI’s high burden. VSolvit,
LLC v. United States, 151 Fed. Cl. 678, 690 (2020); Impresa, 238 F.3d at 1332.8
Whether a late offer was received by a federal agency before award does not appear to be
a highly litigated issue. Indeed, most cases address the application of, or distinction between, the
Government Control, Electronic Commerce, and other exceptions to the late is late rule. But this
precedent helps confirm the Court’s conclusion. 9 It reasonably follows that disappointed
contractors cannot graft language from separate exceptions to a main provision to suit their
individual needs. That would favor an overly expansive interpretation of the late is late rule which
past Courts have confined to narrow circumstances. See Insight Sys., 110 Fed. Cl. at 574. When
reading FAR 52.212-1(f)(2)(i), “received before award is made” relates back to the general rule
8
RAI also argued that considering its offer “would not have unduly delayed the acquisition because
[its] offer was received by 5:00 p.m. one working day before offers were due.” ECF No. 36 at 11 (emphasis
omitted). It later notes that DLA and Avfuel offered no response to this point. ECF No. 48 at 13. While
DLA and Avfuel did waive their opportunity to address RAI’s argument, the Court also believes that RAI
failed to develop this assertion such that it waived this point as well. See SmartGene, Inc. v. Advanced
Biological Lab’ys, SA, 555 F. App’x 950, 954 (Fed. Cir. 2014). RAI glossed over the fact that Ms. Forde
and DLA did not become aware of its proposal until September 2025, almost a month after DLA had
awarded the contract. AR at 319. Ms. Forde also did not make her decision until January 2026, or almost
five months post-award.
9
Many cases that applied the late is late rule arose from pre-award bid protests. See Insight Sys.
Corp. v. United States, 110 Fed. Cl. 564, 570–72 (2013); Watterson Const., 98 Fed. Cl. at 87; Cal. Marine,
42 Fed. Cl. at 286–87; Conscoop-Consorzia, 62 Fed. Cl. at 222–23; KGL Food Servs. WLL v. United States,
153 Fed. Cl. 497, 505 (2021); Elec. On-Ramp, Inc. v. United States, 104 Fed. Cl. 151, 157 (2012); Syncon,
LLC v. United States, 154 Fed. Cl. 442, 448 (2021); FreeAlliance.com, LLC v. United States, 159 Fed. Cl.
506, 509 (2022). Other Courts reviewed late proposals in post-award bid protests. Kropp Holdings, 176
Fed. Cl. at 512; Competitive Innovations, LLC v. United States, 177 Fed. Cl. 717, 726–27 (2025); HII
ShipCycle, LLC v. United States, 180 Fed. Cl. 315, 320–21 (2026). Those cases largely shared a similar
quality—that a late offer eventually reached the Government office designated in the Solicitation. It seems
noteworthy that whether an offer was received before award was not discussed. Two cases involved
proposals that never reached their final destination. See Fed. Acquisition, 124 Fed. Cl. at 694; Naval Sys.,
Inc. v. United States, 153 Fed. Cl. at 187. But the federal agencies either conceded or were ordered to
accept the contractor’s late proposals, thereby receiving those offers before award. Id. RAI also conceded
this point as well. Oral Arg. Tr. at 10:13–16.
12
that late offers are those received by the Government office designated in a solicitation.
Accordingly, a contractor must show that their bid arrived at the email address designated in the
Solicitation before award.
Here, the Solicitation designated Ms. Forde’s and a DLA Energy email address for offerors
to submit their proposals. AR 96, 240. The Solicitation also listed May 23, 2025, at 1:00 p.m.
EST as the deadline to submit offers. Id. at 96. DLA did not award Line Item 75 to Avfuel until
August 19, 2025. Id. at 299. Thus, DLA must have received RAI’s offer at DLA-Energy-
PH.Requirements@dla.mil on or before that date. Id. at 240. When reviewing Ms. Forde’s January
2026 decision, RAI failed to demonstrate that she lacked a rational basis to exclude its offer.
On May 23, 2025, Ms. Forde checked both email inboxes listed in the Solicitation after the
deadline for offers expired. Id. at 318. For Line Item 75, she only found Avfuel’s offer. Id. When
DLA awarded Avfuel the contract, Ms. Forde recalled that DLA “had not received the proposal
from Rick Aviation, nor any other email or phone call.” Id. at 319. When RAI notified DLA that
it intended to file a bid protest on September 23, 2025, Ms. Forde checked both inboxes again and
found no proposal from RAI. Id. As incorporated into her decision, Mr. Trinh determined that
RAI’s “May 22 email was quarantined by DISA’s network due to an SPF error by the sender.” Id.
at 316 (emphasis added). According to Mr. Trinh, DISA blocked RAI’s email and never relayed it
to DLA because the email failed SPF verification. Id. The “message Header” reflected this result
by characterizing RAI’s offer as “Received-SPF: Fail.” AR at 316, 322. With this information,
Ms. Forde concluded that RAI’s offer “was not received at the Government Office designated in
the solicitation before the award” which prohibited DLA from accepting RAI’s late proposal. Id.
at 320.
Against this backdrop, DLA did not receive RAI’s bid before award, and it arguably did
not receive RAI’s offer at all. See ECF No. 51 at 3. Mr. Trinh did not clarify whether he forwarded
RAI’s proposal to DLA in December 2025. Regardless, a “late proposal is tantamount to no
proposal at all.” Labatt, 577 F.3d at 1381. Ms. Forde and DLA also did not become aware of
RAI’s offer until over a month after Avfuel had received award and approximately a week before
performance began. AR at 319. All of DLA’s actions with respect to RAI’s offer took place after
it awarded Avfuel Line Item 75. Therefore, under a plain reading of FAR 52.212-1(f)(2)(i), RAI’s
late offer could not have been received prior to award and could not be considered.
In response, RAI presented one contradicting piece of evidence. After it submitted its
proposal, RAI received a “delivery confirmation at 1:28 p.m. on May 22, 2025.” ECF No. 36 at
11; AR at 321. According to RAI, defendant sent that confirmation receipt. ECF No. 48 at 1, 12;
Oral Arg. Tr. at 5:11–25, 14:2–4. However, the confirmation came from “the mail system at host
dispatch . . .” AR at 321. RAI did not establish the identity of “host dispatch1” or prove that DLA
or DISA originated this email. And aside from its assertion, RAI did not provide any evidence that
substantiates its point. See also Oral Arg. Tr. at 21:8–18 (providing defendant’s position that host
means RAI’s server). At best, RAI’s confirmation email could show that its offer reached DISA’s
servers. See AR at 321. But this does not establish that DLA Energy’s email address received its
proposal. While this Court ordered defendant to admit RAI’s confirmation email, the Court also
must reconcile this evidence with its standard of review. Ms. Forde did not possess, nor was she
aware of, RAI’s confirmation email. This Court will not substitute its own judgment for that of
Ms. Forde’s, and it will consider the facts before her at the time DLA made its procurement
13
decision. IAP Worldwide, 160 Fed. Cl. at 76. Still, evaluating RAI’s confirmation email did not
overcome its heavy burden to set aside the procurement. Impresa, 238 F.3d at 1332.
In addition, Mr. Trinh determined that RAI’s SPF error occurred because it failed to
designate “ as permitted sender.” AR at 316. Such SPF configuration “is a
sender-side security measure” that is implemented to “prevent unauthorized use of an email
domain for sending spam, phishing emails, and other malicious messages.” ECF No. 45 at 11
(emphasis added). DISA’s EEMSG system verifies inbound emails “before messages reach a
user’s inbox for firewall purposes.” Kropp Holdings, 176 Fed. Cl. at 536 (emphasis in original).
When DISA catches a suspicious email, “[t]here is no guarantee that an email that enters the
EEMSG will be delivered to the recipient’s inbox, or even be retrievable by the recipient, because
the vast majority of emails sent through the EEMSG are blocked for firewall purposes.” Id. at 537
(emphasis added). In fact, “[o]ver 85% of Inbound email is dropped due to sender reputation” by
DISA. Id. at 538. Indeed, the “black hole effect is a symptom of the sending party’s []. The
vendor sends an email, DLA never receives it, it never hits our email servers, and the vendor does
not receive an indication that their message was not delivered.” KGL Food Servs., 153 Fed. Cl. at
504.
DISA’s gateway logs indicate that it blocked RAI’s email which means it never reached a
DLA server. AR at 316, 322–25. RAI’s confirmation email also said its message was delivered
but not received. AR at 321. In ordinary terms, delivery contemplates a transfer of title or
relinquishing control, whereas receipt entails coming into possession of something.10 As
evidenced when DISA quarantined RAI’s email, delivery is a necessary but insufficient condition
to receive an email. RAI also admitted that DISA “set aside” its proposal and never forwarded it
to DLA’s email inbox. Oral Arg. Tr. at 9:3–7. Semantics aside, RAI’s email fails to defeat Ms.
Forde’s testimony that she never found RAI’s proposal in either inbox. Since contracting officers
must evaluate proposals before making award, it seems reasonable that they should actually
receive a late offer before they make their decision.
On a broader level, Courts have grappled with construing the late is late rule too narrowly,
“particularly where some government failure or breakdown is the evident cause of the lateness of
a submission, [which] introduces its own discomforting unfairness and arbitrariness.” Insight Sys.,
110 Fed. Cl. at 575. Those concerns do not exist here. RAI failed to explain why its SPF protocols
failed. It proffered no evidence that DISA caused its authentication protocols to become defective,
nor did it show that its SPF framework was properly configured. As for its offer, Ms. Forde lacked
knowledge that RAI would bid on Line Item 75, and it was unreasonable for her to ask DISA to
check for quarantined bids. Unwinding procurements when a contracting officer and agency never
received, were notified, or were placed in a position to consider an otherwise late proposal, after
making award would also introduce “its own discomforting unfairness and arbitrariness.” Id.
10
Deliver, The Britannica Dictionary, https://www.britannica.com/dictionary/deliver, (last visited
May 1, 2026) (characterizing deliver as “to give control (someone or something) to another person or
group.”); see also Watterson Const., 98 Fed. Cl. at 93 n. 14 (suggesting that timing of late is late rule should
be determined when offeror relinquishes control of their offer); Receive, Black’s Law Dictionary (12th ed.
2024) (defining receive as “[t]o take (something offered, given, sent, etc.); to come into possession of or
get from some outside source.”).
14
Therefore, RAI’s confirmation email does not prove that DLA received its proposal before it
awarded Avfuel the contract.
This result may seem harsh. Another Court commented that disputes like this one have
arisen “with disturbing frequency” that “painfully illustrate” how FAR provisions enacted long
ago conflict with modern technology. See Insight, 110 Fed. Cl. at 568 (2013). But “[o]ccasional
errors in computer systems are a fact of life.” Conscoop-Consorzia, 62 Fed. Cl. 219. While
electronic submissions may provide greater convenience for contractors, “this perceived advantage
may create a false sense of security, resulting in problems” due to technical glitches. Id. And for
a protocol as ubiquitous as SPF configuration, the same holds true.11 FAR also expressly places
responsibility on offerors to ensure their proposals reach “the Government office designated in the
solicitation by the time specified in the solicitation.” FAR § 52.212-1(f)(1). DLA encouraged
offerors to verify that their bids had been received with the Contracting Officer too. AR at 96,
240. It further cautioned that offerors “assume[d] all risk for any delay in transmission of their
proposals.” Id. at 96. Unlike other cases, RAI never followed up with Ms. Forde or an official at
DLA to confirm receipt of its offer. It therefore assumed the risk that its offer would not be received
by DLA Energy’s email address due to delays and technical defects. Defendant even conceded
that its offer may have been timely that had RAI followed up with Ms. Forde. Oral Arg. Tr. at
22:11–14, 25:3–9.
Therefore, the Court concludes that DLA did not receive RAI’s proposal before it awarded
Avfuel the contract and Ms. Forde’s decision to not consider RAI’s late proposal was not arbitrary
nor capricious. Since DLA did not receive RAI’s offer before it awarded Avfuel the contract, RAI
cannot succeed under the Government Control of Electronic Commerce exceptions. Accordingly,
the Court GRANTS defendant and Avfuel’s motion for judgment on the administrative record and
DENIES RAI’s motion for judgment on the administrative record on this issue.
B. An Offeror’s SPF Configuration Does Not Qualify as Unstated Evaluation
Criteria that DLA Omitted from the Solicitation.
Next, RAI claims that DLA implemented unstated evaluation criteria when it failed to
provide an SPF requirement in its Solicitation. ECF No. 36 at 13–14. According to RAI, “if
offerors were never notified of this SPF configuration requirement, how could they reasonably be
excluded from the competition based on a given SPF configuration?” Id. at 13.
“It is hornbook law that agencies must evaluate proposals and make awards based on the
criteria stated in the solicitation.” NEQ, LLC v. United States, 88 Fed. Cl. 38, 47 (2009) (citations
and quotations omitted); 41 U.S.C. § 3701; 48 C.F.R. § 15.305. Procurement decisions that apply
unstated evaluation criteria not found in a solicitation are arbitrary and capricious. Samsara Inc.
v. United States, 169 Fed. Cl. 311, 319 (2024) (citing NVE, Inc. v. United States, 121 Fed. Cl. 169,
180 (2015)). To establish this claim, a plaintiff must show that an agency “used a significantly
different basis in evaluating the proposals than was disclosed.” Wellpoint Mil. Care Corp. v. United
11
See Andrew Bonar, Unmasking Lazy Gatekeepers: What 12 Million SPF Records Reveal About
Email Security, emailexpert, https://emailexpert.com/unmasking-lazy-gatekeepers-what-12-million-spf-
records-reveal-about-email-security/, (June 12, 2025) (describing SPF as a “longstanding standard in email
authentication” and discussing growing trends with issues related to SPF misconfiguration).
15
States, 144 Fed. Cl. 392, 404 (2019), aff’d, 953 F.3d 1373 (Fed. Cir. 2020). However, a solicitation
“need not identify each element to be considered by the agency during the course of the evaluation
where such element is intrinsic to the stated factors.” Samsara, 169 Fed. Cl. at 319.
Courts have addressed unstated evaluation criteria claims regarding substantive
requirements in a solicitation. See Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1357
(Fed. Cir. 2004); Frawner Corp. v. United States, 161 Fed. Cl. 420, 446 (2022); Centerra Sec.
Servs. GmbH v. United States, 176 Fed. Cl. 219, 235 (2025); Sterling Med. Assocs., Inc. v. United
States, 177 Fed. Cl. 550, 569 (2025); Golden IT, LLC v. United States, 165 Fed. Cl. 676, 686
(2023), aff’d, No. 2023-1992, 2024 WL 4100253 (Fed. Cir. Sept. 6, 2024). Defendant argues that
“SPF configuration is not a substantive requirement for proposals in any sense.” ECF No. 45, at
18. Because it disregarded RAI’s proposal, “DLA could not have applied unstated evaluation
criteria to a proposal it never received.” Id. at 16. Similarly, Avfuel asserts that SPF authentication
serves as “a pre-inbox, gateway delivery event,” not a “criterion used to ‘evaluate’ the contents of
RAI’s proposal.” ECF No. 46 at 18.
This Court has previously held that unstated evaluation criteria claims apply to non-
substantive requirements. See eSimplicity, Inc. v. United States, 162 Fed. Cl. 372, 379–81 (2022).
RAI did not discuss eSimplicity in its briefing and instead waited until oral argument to raise it.
ECF No. 36 at 13–14; ECF No. 48 at 19–20. There, a solicitation listed formatting requirements
for offers, but not a file size limit. eSimplicity, 162 Fed. Cl. at 377. A contractor then submitted
its proposal by email, but it never reached its destination server because it was “bounced back”
after exceeding the maximum file size. Id. The Court held that the agency used unstated
evaluation criteria when it failed to disclose a file size limit because it was “plainly a factor . . .
that . . . affect[ed] contract award.” Id. at 380 (quotations omitted) (citing 48 C.F.R. § 15.304(d)).
When reaching its decision, eSimplicity cited FAR 15.304(d). That subsection mandates
that “[a]ll factors and significant subfactors that will affect contract award and their relative
importance shall be stated clearly in the solicitation.” 48 C.F.R. § 15.304(d). A broad reading
could support a finding that a SPF requirement qualifies as a “factor” that would affect contract
award. But upon closer examination, FAR provides further guidance. Within § 15.304, another
provision describes evaluation factors and significant subfactors as those that: (1) “[r]epresent the
key areas of importance and emphasis to be considered in the source selection; and (2) [s]upport
meaningful comparison and discrimination between and among competing proposals.” 48 C.F.R.
§ 15.304(b)(1)–(2). As provided by the Solicitation, technical acceptability and price represent the
key areas of importance and emphasis. AR at 38–39. Under FAR’s criteria, an offeror’s SPF
framework does not represent any area that DLA would consider. SPF configuration would also
not help DLA determine whether RAI provided “the best value from selection of the lowest priced
proposal that is technically acceptable.” AR at 9. Additionally, SPF configuration does not support
any meaningful comparison between proposals because DLA could not compare a proposal that it
never received. Broadening FAR’s definition of evaluation factors in this instance does not
comport with analyzing an unstated evaluation criteria claim. Therefore, the Court finds
eSimplicity inapplicable to this matter.
Without RAI’s bid, DLA “could not lawfully consider” the “late, undelivered proposal.”
ECF No. 45 at 17. The Court agrees that SPF configuration was not “a basis in evaluating []
proposals within the meaning of the unstated-criteria legal test.” ECF No. 46 at 18–19. While
16
SPF configuration does not qualify as evaluation criteria, it arguably amounts to an intrinsic
element to electronically submitted offers. As a sender-side, security tool, SPF “improves email
deliverability, strengthens domain reputation, and protects recipients from spoofed emails.” ECF
No. 45 at 11–12. It seems logical that DLA expected offerors to have functioning email systems
that send non-suspicious or deceptive-looking communications. And amid an environment in
which phishing and malicious emails have become rampant, it seems imputed that recipients like
defendant would quarantine inbound communications based on a standard security tool used by
senders like SPF. See Kropp Holdings, 176 Fed. Cl. at 537–38. A common protocol like SPF
configuration is something that RAI could have anticipated. See eSimplicity, 162 Fed. Cl. at 377.
In opposition, RAI asserts that DLA first disclosed the defects in its SPF configuration
through Mr. Trinh’s declaration. ECF No. 48 at 19. By failing to notify RAI “of any supposed
defect in its email transmission,” 12 DLA’s quarantine justification “is a classic post hoc
rationalization, and should be entitled no weight.” Id.; see Jacobs Tech. Inc. v. United States, 100
Fed. Cl. 198, 208; IAP Worldwide, 160 Fed. Cl. at 76. This argument fails on its face. On January
13, 2026, Ms. Forde wrote her determination letter in which she represented that DLA would not
consider RAI’s proposal. AR at 319. She incorporated Mr. Trinh’s declaration, which concluded
that DISA quarantined its proposal. Id. at 316. That declaration was dated December 19, 2025, or
before Ms. Forde acted. Id. at 317. And as noted by Avfuel, Ms. Forde’s use of DISA’s findings
“corroborate and explain why RAI’s proposal was never received.” ECF No. 46 at 20 (emphasis
omitted).
Therefore, the Court concludes that DLA’s failure to include an SPF configuration
requirement in the Solicitation does not constitute unstated evaluation criteria.
C. This Court Lacks Article III Standing to Hear RAI’s Remaining Claim Regarding
DLA’s Evaluation of Avfuel’s Proposal.
Finally, RAI alleges that DLA’s evaluation of Avfuel’s offer fails to comply with the terms
of the Solicitation. ECF No. 36 at 14–15; ECF No. 48 at 20–21. Since Atlantic’s lease with KPHF
expires in 2026, Atlantic allegedly does not qualify as an FBO such that DLA abused its discretion
in awarding Avfuel Line Item 75. ECF No. 36 at 15. However, RAI lacks standing to bring this
claim which now deprives the Court of subject-matter jurisdiction.
Subject-matter jurisdiction, “because it involves a court’s power to hear a case, can never
be forfeited or waived.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). Accordingly, a court
“may raise sua sponte, subject matter jurisdiction at any time.” Rick’s Mushroom Serv., Inc. v.
United States, 521 F.3d 1338, 1346 (Fed. Cir. 2008). If the Court determines it lacks subject-
matter jurisdiction, then it must dismiss the claim. RCFC 12(h)(3).
Article III, section 2 of the United States Constitution limits “federal judicial power to the
resolution of actual ‘cases’ or ‘controversies.’” Anderson v. United States, 344 F.3d 1343, 1359
12
RAI questioned the validity of DISA’s finding that its SPF configuration failed such that DISA
quarantined its offer. ECF No. 48 at 19. In doing so, RAI provided no response to DISA’s declaration that
could be construed as a developed argument. It also neglected to cite any evidence in the record that would
yield a different conclusion. Therefore, RAI waived this argument. SmartGene, 555 F. App’x at 954.
17
(Fed. Cir. 2003); Flast v. Cohen, 392 U.S. 83, 94–95 (1968). In other words, courts retain
jurisdiction over matters that affect “the legal relations of parties having adverse legal interests.”
Id. (citing Aetna Life Ins. v. Haworth, 300 U.S. 227, 240–241 (1937)). “[I]t is axiomatic that a
federal court may not address the merits of a legal question not posed in an Article III case or
controversy, and that a case must exist at all stages of” litigation. eSimplicity, Inc. v. United States,
122 F.4th 1373, 1376 (Fed. Cir. 2024). This Court, though an Article I court, “applies the same
standing requirements enforced by other federal courts created under Article III.” Anderson, 344
F.3d at 1350 n. 1 (citing Glass v. United States, 258 F.3d 1349, 1355–56 (Fed. Cir. 2001)). Like
other justiciability precepts, standing is jurisdictional and cannot be waived. Media Techs.
Licensing, LLC. v. Upper Deck Co., 334 F.3d 1366, 1370 (Fed. Cir. 2003) (citations omitted).
While courts address standing at the start of a lawsuit, a plaintiff must maintain standing “at all
stages of review.” Id. (citing Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 67 (1997);
see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
Standing under Article III requires a showing of: “(1) an injury-in-fact; (2) that is causally
linked to the challenged action; and (3) redressable by a favorable ruling.” Monbo v. United States,
175 Fed. Cl. 440, 455 (2025) (citing Lujan, 504 U.S. at 560–61). Put differently, a plaintiff must
establish “a personal stake in the alleged dispute.” Raines v. Byrd, 521 U.S. 811, 819 (1997). To
do that, plaintiffs “must be able to sufficiently answer the question: What’s it to you?” Associated
Energy Grp., LLC v. United States, 131 F.4th 1312, 1318 (Fed. Cir. 2025) (citations and quotations
omitted). An injury-in-fact “is an invasion of a legally protected interest that is both (1) concrete
and particularized as well as (2) actual or imminent, not conjectural or hypothetical.” Bos. Edison
Co. v. United States, 64 Fed. Cl. 167, 179 (2005) (citations and quotations omitted). A redressable
injury is one that is “likely, as opposed to merely speculative, that will be redressed by a favorable
decision.” Lujan, 504 U.S. at 561 (quotations omitted).13 Standing “is not dispensed in gross;
rather, plaintiffs must demonstrate standing for each claim that they press and for each form of
relief that they seek.” TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021) (citations omitted).
This Court already held that DLA’s decision to reject RAI’s late proposal was not arbitrary
and capricious. It also concluded that DLA did not implement unstated evaluation criteria by
failing to include a SPF configuration requirement in the Solicitation. RAI’s remaining claim
relates to DLA’s evaluation of Avfuel’s bid. ECF No. 36 at 14–17; ECF No. 48 at 20–22. After
finding RAI’s proposal constituted a late offer, its “submission becomes a stranger to the process,
13
A disappointed bidder must also establish statutory standing when bringing a bid protest under 28
U.S.C. § 1491(b)(1). Acetris Health, LLC v. United States, 949 F.3d 719, 727 (Fed. Cir. 2020). Statutory
standing imposes more “stringent requirements” than its constitutional counterpart. Weeks Marine, Inc. v.
United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009). First, a plaintiff must show that it is an “interested
party.” Diaz v. United States, 853 F.3d 1355, 1358 (Fed. Cir. 2017) (citations and quotations omitted).
There, a plaintiff must demonstrate (1) that it is “an actual or prospective bidder;” and (2) “has a direct
economic interest in the procurement or proposed procurement.” Id. (citations and quotations omitted). In
this context, a party has a direct economic interest upon a showing that it “had a substantial chance of
winning the contract.” Id. Second, a plaintiff must establish that it was prejudiced by a significant error in
the procurement. Labatt, 577 F.3d at 1378. In 2023, the Federal Circuit held that statutory standing “does
not implicate a court’s subject-matter jurisdiction.” CACI, Inc-Fed. v. United States, 67 F.4th 1145, 1151
(Fed. Cir. 2023). Instead, challenges to statutory standing must be brought under RCFC 12(b)(6). Monbo,
175 Fed. Cl. at 451. Defendant and Avfuel do not argue that RAI lacks statutory standing in this case, so
the Court will only address Article III standing.
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and is disqualified from the procurement.” Labatt, 577 F.3d at 1381 (noting that the court’s
discussion in that case addressed statutory standing). Thus, RAI no longer possesses a personal
stake in the outcome of its lawsuit. Raines, 521 U.S. at 819. Because it cannot be awarded the
contract, RAI lacks a concrete and particularized injury-in-fact as it relates to Avfuel’s award.
Monbo v. United States, 175 Fed. Cl. at 455 (finding bid protestor lacked standing because its sole
proprietorship was “debarred” and therefore precluded from receiving award). RAI also cannot
demonstrate that it suffered a redressable injury because it again cannot be awarded the contract
even if the Court ruled in its favor. Id.
Therefore, the Court holds that it lacks standing to hear RAI’s remaining claim such that it
must dismiss the claim for lack of subject-matter jurisdiction.
D. RAI’s Failure to Succeed on The Merits Obviates the Need to Evaluate the
Remaining Factors for Granting Injunctive Relief.
While each factor for granting injunctive relief is not dispositive, the Federal Circuit has
held that a movant is not entitled to such relief “if he fails to demonstrate a likelihood of success
on the merits.” Nat’l Steel Car, Ltd. v. Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1325 (Fed. Cir.
2004); see Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed. Cir. 2001);
Argencord, 68 Fed. Cl. at 176–77; Career Training, 83 Fed. Cl. at 219. Courts may not use “an
exceptionally weighty showing on one of the other three factors” to grant a permanent injunction
if the movant cannot succeed on the merits. Nat’l Steel, 357 F.3d at 1325. Because RAI cannot
prevail on the merits, the Court need not address the other permanent injunction factors. Therefore,
the Court holds that enjoining performance of Line Item 75 would be improper.
V. CONCLUSION
For the foregoing reasons, the Court concludes that RAI’s proposal was never received by
DLA before it awarded Avfuel the contract. Accordingly, DLA’s decision to not consider its
untimely submission under the late is late rule was not arbitrary nor capricious. In addition, DLA’s
omission of any SPF configuration requirement in the Solicitation did not subject RAI to unstated
evaluation criteria. And since RAI cannot recover or receive relief from setting aside DLA’s
procurement decision, it therefore lacks standing to challenge DLA’s evaluation of Avfuel’s
proposal.
Therefore, the Court GRANTS defendant and Avfuel’s cross-motions for judgment on the
administrative record, ECF Nos. 45, 46. The Court also DENIES RAI’s cross-motion for
judgment on the administrative record, ECF No. 36. The Clerk of the Court is further directed to
ENTER JUDGMENT in favor of defendant and Avfuel consistent with this Order. The parties
are directed to FILE a joint status report on or before June 15, 2026, that proposes redactions to
this Opinion to allow the Court to file a public version of the Opinion.
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IT IS SO ORDERED.
s/ Loren A. Smith
Loren A. Smith,
Senior Judge
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