Federal Judge Schools VA On Timeliness, Alice In Wonderland

For a procuring agency, is there anything worse than being schooled on principles of timeliness and fairness by a federal judge?

As the Department of Veterans Affairs found out in a recent decision by the U.S. Court of Federal Claims, there is something that may be worse: being schooled by a federal judge repeatedly quoting from Alice’s Adventures in Wonderland, the 1865 book by Lewis Carroll.

The Court’s decision in Laboratory Corporation of America v. United States, No. 12-622C (2013) involved a solicitation to provide laboratory testing services to the VA in the great state of Kansas, as well as in Missouri and Illinois.  The solicitation indicated the due date for offers as “OFFER DUE DATE/LOCAL TIME 05-31-2012 2:00 pm CST.”

The solicitation did not specify a method for submitting offers to the VA, but a subsequent amendment directed offerors to use the GSA’s eBuy system.

On the day proposals were due, an employee of Laboratory Corporation of America began uploading the company’s proposal onto eBuy.  At that time, the employee noticed that eBuy listed the closing time for receipt of proposals as 2:00 p.m. Eastern time.

Although LabCorp began uploading its proposal at 11:30 Central/12:30 Eastern, it experienced technical difficulties and was uncertain whether it could upload the entire proposal by 1:00 Central/2:00 Eastern.  LabCorp then called the contracting officer, who confirmed that proposals were due at 2:00 Central.

LabCorp finally succeeded in uploading the full proposal at 1:03 Central/2:03 Eastern.  However, when LabCorp attempted to submit the proposal, eBuy refused to accept it.

The VA subsequently refused to accept LabCorp’s proposal, contending that the proposal should have been uploaded to eBuy before 2:00 Eastern.  The VA took the position that the amendment directing offerors to use eBuy created a 2:00 Eastern deadline for submitting proposals to eBuy, although proposals were not due at the VA until 2:00 Central.

LabCorp filed a bid protest with the Court of Federal Claims.  The protest was assigned to Judge Francis M. Allegra, who apparently has been boning up on his classic literature lately.

Judge Allegra’s opinion began not with a recitation of the facts, but with a five-paragraph quote from Chapter 7 of Alice, in which Alice and the Mad Hatter carry on a discussion about the nature of time.  Quoting the Hatter, Judge Allegra wrote in part, “For instance, suppose it were nine o’clock in the morning, just time to begin lessons: you’d only have to whisper a hint to Time, and round goes the clock in a twinkling!  Half-past one, time for dinner!”

Judge Allegra followed the Alice quote by stating that the VA “has injected an Alice-in-Wonderland quality into this preaward bid protest case.”  Judge Allegra continued, “[i]n arguments worth of the Mad Hatter, defendant now admits (begrudgingly) that the VA made a mistake–that the contracting officer never intended to adjust the time for proposals when he filed the amendment to the solicitation.”

Leaving Alice aside momentarily, Judge Allegra first held that “evidence relevant to this case was destroyed when the e-Buy website automatically purged the data that would have allowed GSA to recreate the webpages seen by LabCorp at critical points during the procurement in question.”  (This issue of spoliation of evidence was also addressed by Judge Allegra in an earlier opinion in the same case).  Judge Allegra sanctioned the government by refusing to admit certain secondary evidence the government had attempted to introduce regarding what the eBuy website looked like in the days leading up to the closing of the procurement.

Judge Allegra then rejected the VA’s argument that the eBuy website incorporated a separate deadline of 2:00 Eastern.  Reviewing the amendment directing offerors to use eBuy, Judge Allegra wrote, “there is no hint in the language of the amendment that the VA intended to incorporate information on the website into the solicitation.”  Noting that the VA itself admitted that the 2:00 Eastern deadline was a mistake, Judge Allegra continued, “[t]he court cannot conceive why it ought to construe the amendment in a way that its language does not admit in order to give effect to an intent that the contracting officer never had.”

Judge Allegra conclude that LabCorp’s proposal submission at 1:03 p.m. Central was timely and should not have been rejected.  Judge Allegra summed up his holding with a return to Wonderland:

“Unlike someone on good terms with the Mad Hatter’s Time, the officials at the VA could not whisper a hint to Time and make the clock on this procurement go round, in a twinkling, to a time different than that listed in the solicitation.  There is nothing on this side of the looking glass to support the VA’s rejection of plaintiff’s offer.  It is time, via an injunction, for defendant to return to reality.”

Judge Allegra granted LabCorp’s motion for judgment and issued an injunction prohibiting the VA from making an award under the solicitation unless LabCorp’s proposal was treated as timely and evaluated fairly alongside the proposals of other offerors.

The Laboratory Corporation protest should never have been necessary.  After realizing that the GSA eBuy system contained a mistake, the VA should have treated LabCorp’s proposal as timely.  It it disappointing, to say the least, that the VA fought so hard to support the unfair results of its own error.  Judge Allegra, with an assist from Alice and the Mad Hatter, got it right.

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