In the United States Court of Federal Claims

No. 22-132C 

(Filed: April 22, 2022)

(Re-Issued: April 26, 2022)1

* * * * * * * * * * * * * * * * * * * * * 

FREEALLIANCE.COM, LLC, 

Plaintiff, 

v. 

THE UNITED STATES, 

Defendant.

* * * * * * * * * * * * * * * * * * * * * * *

Walter B. English, Huntsville, AL, for plaintiff, FreeAlliance.com, 

LLC, with whom were Jon D. Levin, Emily J. Chancey, Joshua B. Duvall, 

and Nicholas P. Greer, of counsel.

Jana Moses, Trial Attorney, United States Department of Justice, 

Civil Division, with whom were Brian M. Boynton, Principal Deputy

Assistant Attorney General, Patricia M. McCarthy, Director, and William J. 

Grimaldi, Assistant Director, for defendant. Jonathan D. Tepper, and 

Timothy G. Kelly, Internal Revenue Service, of counsel.

OPINION

BRUGGINK, Judge.

In this pre-award bid protest, Freealliance.com, LLC (“FreeAlliance”)

alleges that the decision of the United States Department of the Treasury, 

Internal Revenue Service (the “IRS”) to reject plaintiff’s proposal as late was 

arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. 

1 This opinion was originally issued under seal in order to afford the parties 

an opportunity to propose redactions of protected material. The parties agree 

that no redactions are necessary. The opinion thus appears in full. 

Bid protest; pre-award bid 

protest; the “late is late” rule.
2

Plaintiff filed its motion for judgment on the administrative record on March 

15, 2022. Plaintiff seeks a permanent injunction preventing the agency from 

commencing evaluation of proposals and making an award determination 

without consideration of plaintiff’s proposal and requiring the agency to 

include plaintiff’s proposal in the award analysis. The government filed its 

response to plaintiff’s motion, along with its cross-motion for judgment on 

the administrative record. All motions are fully briefed. 

Oral argument was held on April 20, 2022. Because the agency’s 

exclusion of plaintiff’s proposal was neither illegal nor arbitrary we deny 

plaintiff’s motion for judgment on the administrative record and grant the 

government’s cross-motion. 

BACKGROUND2

A. Solicitation

On November 24, 2020, the IRS issued a request for quotation 

(“RFQ” or “solicitation”), seeking to award a single Blanket Purchase 

Agreement (“BPA”) set aside for small business concerns presenting the best 

value to the government. The solicitation also explained that the acquisition 

would be conducted under FAR 8.405, and thus “the contracting techniques 

under FAR 15.3 do not apply.” Solicitation, Administrative Record (“AR”) 

at 1. The solicitation further states that “[a]s such, the government is not 

obligated to determine a competitive range, conduct discussions with all 

contractors, or solicit final revised quotes.” AR 1

The solicitation instructs that the “acquisition will be conducted 

utilizing a multi-phased down select approach.” AR 2. Vendors must meet 

requirements for Phase 1, rated on a pass/fail basis, to be considered for

Phase 2. If a bidder fails Phase 1, the solicitation states that the vendor will 

not be invited to participate in Phase 2. The solicitation also states that 

vendors will be notified via email whether they are invited to participate in 

Phase 2.

Phase 1 requires vendors to submit the following four factors: (1) 

Relevant Experience; (2) Commitment letters; (3) Active CMMI Level 3 

Certification; (4) Task Order #1 Rough Order of Magnitude (“ROM”). AR 

2 The facts in the background are derived from the administrative record 

(ECF No. 20).
3

2. Phase 2 evaluates vendors in light of four factors: (1) Technical Approach; 

(2) Management Approach; (3) Past Performance; (4) Cost/ Price. 

The solicitation instructs that Phase 1 vendor responses shall be 

submitted via GSA eBuy, and that submissions “must be prior to GSA eBuy 

submission date(s) stated in eBuy.” AR 3. For Phase 2, the solicitation states 

that “Quote(s) must be received by TBD.” AR 4.

B. Solicitation Amendments and Corrective Action

On December 10, 2020, the agency issued Amendment I, which set 

the deadline for Phase 1 submissions on December 21, 2020. On December 

18, 2020, the agency issued Amendment II to respond to questions and 

update the solicitation’s attachments.

On February 11, 2021, the agency emailed FreeAlliance and five other 

offerors, notifying them that their Phase 1 submittals were successful and 

inviting them to participate in Phase 2. The agency’s email states that the 

deadline for questions was February 18, 2021, and the deadline for quotations 

was February 25, 2021, at 3:00 pm. 

On June 14, the agency told FreeAlliance that it selected Cybermedia 

for award. FreeAlliance protested the award here. On July 15, 2021, the

agency sua sponte took corrective action and committed to cancel the award 

to Cybermedia, re-evaluate quotations and make a new best value 

determination. In light of the corrective action, FreeAlliance dismissed its 

protest, without prejudice.

As part of its corrective action, the agency sent an email enclosing

Amendment IV to the Phase 2 participants on December 9, 2021. On page 

one of the five-page amendment, the agency states that “[t]he purpose of this 

amendment is to provide revisions to the solicitation as listed herein.

Accordingly, IRS IRPD RFQ 8049 is revised as identified on the following 

pages.” AR 470. 

Page one of Amendment IV also states “[e]xcept as provided herein, 

all terms and conditions of the [solicitation] remain unchanged and in full 

force and effect.” Id. Page one of Amendment IV set a deadline for 

questions on December 15, 2021, and a deadline for revised quotes as

January 19, 2022. It also told vendors that they had to respond to the

amended solicitation: if responses were not “received by the deadline 

identified above, the vendor [will be] considered non-responsive and 
4

removed from consideration for award,” and “[a]ny proposal that does not 

fully comply with the amended solicitation will be ineligible for award.” Id.

In response to the agency’s amendment, FreeAlliance sent an email to 

the contracting specialist, Ms. Catherine Kennedy, with several questions. 

On January 18, 2022, the agency emailed vendors again, this time sending 

an Amendment IV “clarification statement.” AR 640. The clarification 

statement extended the quotation deadline to January 21, 2022, at 12:00 p.m.

EST. 

C. FreeAlliance’s Submission Attempt

FreeAlliance alleges that on January 21, 2022, at 11:51 a.m., it 

attached its revised quotation to an email to the contracting specialist and 

other government personnel. Because it did not receive a delivery receipt for 

its 11:51 a.m. email, Mr. Yash Gupta, an employee at FreeAlliance, sent a 

12:03 p.m. “test message” to the contracting specialist, without attachments, 

to determine if the earlier message had gone through, “Sending test message 

here to see if we receive delivery receipt.” AR 691. At 12:10 p.m., the 

contracting specialist responded to Mr. Gupta’s “test message” and wrote:

“Hello Yash, your email did not contain any attachments. Please zip the 

attachments and send or send in separate emails. Thank you, Catherine.” AR

691. The contracting specialist copied the contracting officer on her email. 

At 12:15 p.m. that same day, FreeAlliance sent its quotation in a zip 

file to everyone copied on the contracting specialist’s email. At 3:00 p.m.,

FreeAlliance wrote the contracting specialist for confirmation that the 

Agency had “received [FreeAlliance’s quotation] and will evaluate it.” AR

724. At 3:47 p.m., the contracting specialist asked the Agency’s IT 

department to provide “Urgent Email Tracking Assistance” by determining 

“the exact time [FreeAlliance’s 11:51 email] was initially received by the 

IRS server.” AR 737.

After IRS’s technology personnel confirmed that FreeAlliance’s 

email reached IRS’s server at 12:06 p.m., the contracting specialist emailed 

FreeAlliance to inform the company that its response “is ineligible for award 

per the instructions established in the solicitation and has been removed from 

consideration for award.” AR 748-51. In a letter attached to the same email, 

the agency explained that it made that determination because,

In accordance with the Federal Acquisition Regulations 

(FAR), the Agency is bound by the selection procedures set 

forth in the solicitation as well as the “late is late” rule, a
5

contractor’s proposal must be received by the Government by 

the time stated in the solicitation.

AR 749. The letter states that the agency did not receive FreeAlliance’s 

email until 12:06 p.m. which “per the express terms of the solicitation and 

the terms of the FAR,” meant that FreeAlliance could not participate in the 

competition. Id. This protest followed.

DISCUSSION

Our review is deferential in accordance with the standard set forth in 

the Administrative Procedures Act, 5 U.S.C. § 706 (2018), which is to say 

that we review agency action in a procurement for illegality and a lack of 

rationality. Impressa Construzioni Geom. Domenico Garufi v. United States, 

238 F.3d 1324, 1332-33 (Fed. Cir. 2001). So long as the agency’s decision 

was not irrational or otherwise illegal, we will leave it undisturbed. 

Plaintiff challenges the agency’s decisions in two respects: (1) the

“late is late”3 rule does not apply because the original solicitation did not 

incorporate any explicit FAR timing requirement and the amendment 

purporting to impose one was ineffective; (2) the agency’s decision not to

waive the quotation deadline for FreeAlliance was arbitrary and irrational.4

 

3 The colloquial expression of the notion that, if the solicitation contains a 

provision dictating that proposals must be submitted by a time certain, they 

can be excluded from consideration. See Criterion Sys., Inc. v. United 

States, 144 Fed. Cl. 409, 414-15 (2019) (internal citations omitted) 

(“Agencies must provide offerors with a common set of selection procedures, 

follow those procedures, and apply the procedures equally to all quotes.”); 

see also Advanced Decision Vectors, Inc., B-412307; 2016 WL 125354 (Jan. 

11, 2016) (“Where, as here, the RFQ contains a late submission provision 

that quotations must be received by a stated deadline to be considered, 

quotations cannot be considered if received after the deadline.”). “The ‘late

is late’ rule prohibits an agency from accepting a proposal, proposal 

modifications, or revisions after the deadline for proposals established by the 

agency in a solicitation.” Naval Sys. United States, 153 Fed. Cl. 166, 189

(2021) (internal citations omitted). The timeliness requirement is often 

incorporated into a solicitation by various FAR provisions. See FAR 52.212-

1(f); FAR 52.215-1(c)(3)(i). Here, there was no reference to a FAR 

timeliness provision.

4 Plaintiff withdrew counts one and two of its complaint, which alleged 
6

Plaintiff seeks permanent injunctive relief preventing the IRS from making 

an award determination without consideration of plaintiff’s quotation and 

requiring the agency to include plaintiff’s proposals in the award analysis.

When considering whether to grant a permanent injunction, the court 

must consider whether “(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 favors 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). Although an award of injunctive relief is based on consideration of 

this four-factor test, failure to achieve success on the merits is dispositive. 

See Career Training Concepts, Inc. v. United States, 83 Fed. Cl. 215, 219 

(2008) (“[A] permanent injunction requires actual success on the merits.”). 

For the reasons below, we find that plaintiff’s challenges lack merit and it is 

therefore unnecessary to consider the last three factors. 

A. The Late Proposal Provision in Amendment IV Modified the 

Solicitation 

Plaintiff asserts that because the agency did not include a late proposal 

provision in the original solicitation and because Amendment IV did not 

incorporate one or more of the FAR provisions of the late is late rule,

5 that

rule does not apply to the solicitation. See, e.g., Informatics Applications 

Grp., Inc. v. United States, 132 Fed. Cl. 519, 527 (2017) (government 

properly excluded a quote because it incorporated FAR 52.212-1 into the 

request for quotations); see also Vs Aviation Servs., LLC, B-416538, Oct. 3, 

2018, 2018 CPD ¶ 347.

Although page one of Amendment IV states on the first page that the

government will not consider late quotations, plaintiff asserts that this 

statement does not modify the solicitation because the timing reference is on 

page one, which also contains the language that the solicitation “is revised as 

identified on the following pages.” AR 470 (emphasis added). According to 

exceptions to the application of the late is late rule. 

5 Further, plaintiff points out that the solicitation incorporates FAR Part 8 

which disavows all of FAR Part 15’s contracting techniques.
7

plaintiff, it follows that only pages two through five of Amendment IV can 

modify the solicitation.

6

 

The government asserts that plaintiff’s interpretation of Amendment 

IV is unreasonable because it ignores the plain text of the amendment. We 

agree. When the amendment is read in its entirety, it is clear that the agency 

intended for all five pages of the amendment to modify the solicitation.

7

Plaintiff treats page one of the amendment as merely a cover page, whereas 

the amendment identifies the first page as page one of a five-page document. 

AR 470. Following page one are four additional pages of the amendment. 

Additionally, other language included on page one of the amendment 

demonstrates that page one itself amends the solicitation: “the purpose of 

this amendment is to provide revisions to the solicitation as listed herein.” 

AR 470.

8

 

6 Plaintiff argues that this case is similar to E.W. Bliss Co. v. United States, 

33 Fed. Cl. 123 (1995), in which the court found that, because an amendment 

specifically identified pages which it replaced in the solicitation, any pages 

which were not specifically identified in the amendment did not modify the 

solicitation. The facts in that case were very different, however, and we view 

plaintiff’s reliance as an overreading of Bliss. The purpose of the amendment 

in that case “was to direct bidders to enumerated changes.” Id. at 136. The

court found that the agency’s “failure to notify plaintiff that it was replacing 

page 40 of a 76-page document, while expressly notifying plaintiff that it was 

replacing pages 2, 11, 18, 34, and 76,” was improper. Id. It is important to 

note, in any event, that this issue was not determinative in that case.

7 Additionally, plaintiff contends that because the agency’s clarification 

statement restates the due date but does not repeat the late proposal statement 

on Amendment IV’s cover page, the late proposal provision is not part of the 

amendment. The clarification statement, sent via email, stated that “The 

response deadline has been extended to 12 NOON EST Friday, January 21.” 

AR 640. We find that there was no need for the agency to restate the late 

proposal provision in its clarification statement, because the agency did not 

intend to clarify or amend its position on accepting late quotations. The 

agency only clarified its position on the date of the deadline.

8 Defendant correctly notes that FreeAlliance considered page one as part of 

the amendment when it accepted the deadline for submission of questions in 

response to Amendment IV, as evidenced by its December 15, 2021, email 

to the contracting specialist. AR 492-93. 
8

Page one of Amendment IV states that “All vendors are required to 

submit a response to the amended solicitation. If responses are not received 

by the deadline identified above, the vendor is considered non-responsive 

and removed from consideration for award.” Id. These provisions 

demonstrate that the solicitation required a vendor to submit its response by 

the deadline for the submission to be deemed timely and to be considered for 

award. The fact that the original solicitation was not explicit in this respect, 

or that the amendment did not incorporate a specific FAR timing provision 

is irrelevant. The amendment was enforceable on its terms. 

B. It was Reasonable for the Agency not to Waive the Deadline for 

FreeAlliance 

Plaintiff next argues that, if the amendment was enforceable, it was 

nevertheless arbitrary for the IRS not to exercise its discretion to waive 

plaintiff’s late submission, and that in fact the contract specialist did so when 

she asked plaintiff, after the submission deadline, to “zip the attachments and 

send or send in separate emails. Thank you, Catherine.” AR 691.9

 Plaintiff 

argues that the agency waived the submission deadline because the 

contracting specialist knew that the deadline passed but still invited plaintiff 

to submit its attachment. 

FreeAlliance asserts that the government has the discretion to waive 

minor informalities, such as a delivery delay, even when the solicitation

includes a late proposal provision. See, e.g., 48 C.F.R. § 52.215-1(f)(3). 

Thus, plaintiff argues that it would be unreasonable for the government not 

to waive the submission deadline because it is a minor informality. Pl.’s Mot. 

at 13 (citing Electronic On-Ramp, Inc. v. United States, 104 Fed. Cl. 151

(2012) (finding that because the protestor timely submitted its proposal via 

email, the agency should have waived the late delivery of the paper copy as 

a minor informality). 10 FreeAlliance argues that if the agency did not waive 

9 Plaintiff references as support a GAO opinion, Robinson, B-417323 (May 

16, 2019) (“As a general matter, we have found that language in an RFQ 

requesting quotations by a certain date does not establish a firm closing date 

for receipt of quotations, absent a late submission provision expressly 

providing that quotations must be received by that date to be considered.”). 

Here, of course, there was an express late submission provision.

10 Although FreeAlliance cites to Electronic On-Ramp, Inc as support for its 

argument, in that case the agency “received a version of the proposal” from 

the offeror before the deadline, a critical fact that is not present here. Elec. 

On-Ramp, Inc., 104 Fed. Cl. at 166-67.
9

the deadline, then it was arbitrary and irrational for it not to do so. 

In its motion, the government correctly points out that the contracting

specialist’s 12:10 p.m. email was merely in response to FreeAlliance’s “test 

message,” and not a statement that the agency waived the deadline. AR 691. 

We agree that this one email response does not indicate that the agency 

waived the submission deadline for FreeAllaiance. The record shows that 

after FreeAlliance sent its quotation to the agency at 12:15 p.m., FreeAlliance 

asked the contracting specialist if the agency “received [FreeAlliance’s 

quotation] and will evaluate it.” AR 724. The contracting specialist then

asked the agency’s IT department to determine “the exact time 

[FreeAlliance’s 11:51 email] was initially received by the IRS server.” AR

737. After determining that FreeAlliance’s quotation came in after the 

deadline, the contracting specialist notified plaintiff that it was removed from 

consideration for award because,

In accordance with the Federal Acquisition Regulations 

(FAR), the Agency is bound by the selection procedures set 

forth in the solicitation as well as the “late is late” rule, a

contractor’s proposal must be received by the Government by 

the time stated in the solicitation.

AR 749. Thus, the record does not show that the agency waived the deadline 

for plaintiff, even assuming the contract specialist had authority to waive the 

requirement.

We disagree with plaintiff’s argument that the agency had authority 

to waive the deadline as a minor informality. That exception applies in 

procurements governed by FAR Parts 12 and 15. See 48 C.F.R. § 52.215-

1(f)(3); 48 C.F.R. § 52.212-1(g). This solicitation, however, is conducted 

under FAR Part 8.

While matters within an agency’s discretion are afforded deference, 

an agency is still required to enforce the terms of a solicitation. See IAP 

World Servs. v. United States, 152 Fed. Cl. 384, 397 (2021) (“Although this 

Court gives deference to agency determinations, that deference is not without 

limits, and agencies must follow the terms of their solicitation when 

awarding a contract.”)11

11 Plaintiff asserts that the government has incredible leeway and discretion 

because this solicitation was contracted under FAR Part 8’s simplified 

procurement procedures. It does not follow, however, that an agency can 

waive a solicitation’s late proposal provision simply because it is contracted 
10

Thus, because FreeAlliance’s quotation arrived after the submission 

deadline it was rational for the agency to follow the terms of the solicitation 

procedures and reject FreeAlliance’s submission as late. See Criterion Sys., 

Inc., 144 Fed. Cl. at 415 (“[n]inety seconds late may appear to be a minimal 

infraction, but deadlines are set for a reason, and an agency’s strict adherence 

to a deadline places all bidders on an equal footing and avoids the sorts of 

issues Criterion is seeking to raise here.”). 

CONCLUSION

We conclude that the IRS properly rejected plaintiff’s quotation as 

late pursuant to the terms of the solicitation. Not having shown success on 

the merits, we need not consider the other injunctive factors. No relief is 

warranted. Accordingly, plaintiff’s motion for judgment on the 

administrative record is denied and defendant’s cross-motion is granted. The 

Clerk of Court is directed to enter judgment for defendant. No costs. 

s/Eric G. Bruggink 

ERIC G. BRUGGINK

Senior Judge 

under FAR Part 8.