In the United States Court of Federal Claims

No. 21-1035C 

(Filed: July 2, 2021)

(Re-issued: July 15, 2021)1

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

SYNCON, LLC, 

Plaintiff, 

v. 

THE UNITED STATES, 

Defendant.

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

HOURIGAN CONSTRUCTION CORP., 

Plaintiff,

v. 

THE UNITED STATES,

Defendant.

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

Shomari B. Wade, Washington, DC, for plaintiff, Syncon, LLC, with 

whom were Michael J. Gardner, Brett A. Castellat, and Christopher M. 

O’Brien, of counsel.

Robert E. Korroch, Norfolk, VA, for plaintiff, Hourigan Construction 

Corp., with whom was Anthony H. Anikeeff, Esq., of counsel.

1 This opinion was originally filed under seal to afford the parties an 

opportunity to propose redactions of protected information. The parties 

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

typographical error has been corrected. 

Bid protest; pre-award bid 

protest; FAR 13.106-3(a)

(2008); the “late is late” rule; 

best value determination.
2

Steven M. Mager, Senior Trial Counsel, United States Department of 

Justice, Civil Division, with whom were Brian M. Boynton, Acting Assistant 

Attorney General, Martin F. Hockey, Jr., Acting Director, and Douglas K. 

Mickle, Assistant Director, for defendant. David Nimmich, United States

Department of the Navy, of counsel.

OPINION

BRUGGINK, Judge.

In this pre-award bid protest, Syncon, LLC (“Syncon”) and Hourigan 

Construction Corp. (“Hourigan”) allege that the decision of the United States

Department of the Navy2 (the “Navy”) to reject plaintiffs’ proposals as late 

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

Plaintiffs filed their respective motions for judgment on the administrative 

record on May 7, 2021. They seek a permanent injunction preventing the 

agency from commencing evaluation of proposals and making an award 

determination without consideration of plaintiffs’ proposals and requiring the 

agency to include plaintiffs’ proposals in the source selection and award 

analysis. The government filed its responses to plaintiffs’ respective 

motions, along with its cross-motions for judgment on the administrative 

record. All motions are fully briefed. 

Oral argument was held on June 28, 2021. Because the agency

properly documented its decision and its analysis was reasonable, we deny 

plaintiffs’ motions for judgment on the administrative record and grant the 

government’s cross-motions. 

BACKGROUND3

A. Solicitation

On November 6, 2020, the Navy issued a solicitation for an Indefinite 

Delivery Indefinite Quantity (“IDIQ”) Multiple Award Construction 

Contract (“MACC”), seeking proposals from contractors to perform 

construction services for “Large General Construction Projects” primarily in 

2 Naval Facilities Engineering Systems Command Mid-Atlantic (“NAVFAC 

MIDLANT”).

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

(ECF No. 22, 25, 34).
3

the Hampton Roads, Virginia area. The solicitation indicated that the agency

anticipates awarding no more than six Firm Fixed Price (“FFP”) IDIQ 

Design-Build (“DB”)/Design-Bid-Build (“DBB”) contracts to offerors with 

proposals presenting the best value to the government. The solicitation also 

explained that each basic contract will contain one base year with four oneyear option periods. After the agency awards basic contracts, the solicitation 

stated that awardees will compete for task orders “based on best value, using 

the tradeoff process or lowest price technically acceptable (to include lowest 

price).” Solicitation, AR 23. Proposals would be rated based upon price and 

five non-price factors. 

The solicitation required offerors to submit two proposals: a technical

proposal as well as a price proposal. For each, the Navy required offerors to 

submit one copy electronically, two hard copies, and two CD-Roms. The 

solicitation stated that a complete proposal includes both the technical and 

price proposals.

Electronic versions of the proposals had to be sent to Ms. Holly Snow, 

Contract Specialist, via the Department of Defense (“DOD”) Secure Access 

File Exchange (“SAFE”) site.

4

 DOD SAFE site is a web-based application 

managed by the Defense Information Security Agency (“DISA”) which 

allows files to be sent securely to various government entities and employees. 

The solicitation directs that:

a. The contractor shall send the contract specialist, Holly 

Snow, the contractor’s email address who will be receiving the 

Drop-Off invitation to upload proposals to the DOD Safe Site 

no later than 5 days prior to the submission due date. Note: only 

two email addresses may be provided per Offeror.

b. The Contractor will then follow the invitation drop off link 

sent to those specified email addresses to upload their 

electronic proposal submission by the stated due date and time, 

unless the date and time are changed via Solicitation 

Amendment, using the reference code sent by the contract 

specialist via DOD Safe.

4 The DOD SAFE site is effectively the government’s “installation 

designated for receipt of offers.” See FAR 52.212-1(f)(2)(i)(B).
4

c. The maximum file size of a package is 8 GB. Up to 25 

packages may be uploaded per link.

Solicitation, AR 39. Section 5.2.5 of the solicitation specified that 

“Electronic Proposals not received by the time and date specified shall be 

treated in accordance with FAR 52.215-1 ‘Instruction to Offerors -

Competitive Acquisitions’ and may be rejected.” AR 40.

The solicitation provides instructions to offerors regarding the use of 

DOD SAFE for submission of the electronic versions of proposals. Offerors 

were told that after sending files through DOD SAFE, an offeror would 

“receive a notification on the site ‘Drop-Off Completed’ ‘Your files have 

been sent successfully.’” AR 128. Offerors were informed that they should 

keep a copy of this notification for their records, and that the agency would 

receive an email notification of the upload. The solicitation warns that “the 

submission of any proposal must be completed no later than the due date and 

time, unless the date and time are changed via Solicitation Amendment, using 

the link sent by the contract specialist.” Id. Finally, the solicitation provides

that “[t]he DoD SAFE system will record the date and time of package

submittal. The date and time of package submittal recorded in DoD SAFE 

shall govern the timeliness of any proposal submission.” AR 129.

B. Solicitation Amendments

The solicitation’s original deadline for proposals was November 23, 

2020 at 2:00 p.m. Eastern Standard Time (“EST”). The Navy issued sixteen 

amendments to the solicitation, which extended proposal deadlines, 

established separate due dates for the technical and price proposals, answered

pre-proposal inquiries, and made other changes. Amendment 0009, issued 

on December 15, 2020, modified language throughout the solicitation and 

added additional instructions regarding use of DOD SAFE. The amendment 

states that offerors must request a DOD SAFE Drop Link for both proposals 

“no later than 5 days prior to the respective submission due date.” AR 128.

The amendment instructs offerors to “utilize the link provided in the 

automated email to take you to DOD SAFE” to submit each proposal. Id. 

Additionally, the instructions state that the DOD SAFE

system will allow for inclusion of a short note to the Recipient 

and then the offeror will click to add files or drag and drop 

them. Click “Drop-Off Files” to send the files to the recipient. 

You should receive a notification on the site “Drop-Off 

Completed” “Your files have been sent successfully.” Please 

keep this for your records. The file(s) are uploaded and an 
5

email will be sent to the recipient notifying them of the “dropoff.”

Id.

The amendment also provides additional instructions regarding the

timeliness of proposal submission, stating that submission of a proposal must 

be completed prior to the deadline, “unless the date and time are changed via 

Solicitation Amendment.” Id. The DOD SAFE system, it adds, will record 

the date and time of each proposal submission, and this record will govern 

the timeliness of an offeror’s submission. 

The amendment further advises that offerors must “allow adequate 

time to upload files which may be slower for non-DOD users and to avoid 

other technical difficulties that may be encountered,” and that offerors are 

required to submit files in the format specified in the solicitation. AR 129. 

The amendment warns that “[f]iles that cannot be opened, or are otherwise 

missing the required content are the responsibility of the Offeror.” Id.

Amendment 0009 reiterates that pre-proposal inquiries (“PPIs”) are 

“due 14 days prior to their respective due dates,” which “will correlate with 

any changes in proposal due date.” AR 134-35. Amendment 0009 also 

established the following deadlines:

Electronic Submission of Technical Proposal December 22, 2020 by 1400 EST

Hard Copy Submission of Technical Proposal December 30, 2020 by 1400 EST

Electronic Submission of Price Proposal January 8, 2020 by 1400 

EST

Hard Copy Submission of Price Proposal January 15, 2020 by 1400 EST

AR 128.

On January 7, 2021, the Navy issued Amendment 0012, which 

extended the price proposal due date for electronic submissions to Friday, 

January 15, 2021 and hard copies to Friday, January 22, 2021. On January 

11, 2021, the Navy provided responses to approximately 85 PPIs through 

Amendment 0013. These responses provided information on work 

specifications necessary for the preparation of proposals and accurate 

pricing. 

On January 13, 2021, the Navy issued Amendment 0014, which 

provided answers to approximately 33 additional PPIs. It further extended 

the price proposal electronic copy deadline by one business day, from Friday 

January 15, 2021 to Tuesday January 19, 2021 by 1400 EST, and extended 
6

the hard copies deadline from January 22, 2021 to January 26, 2021 by 1400 

EST. 

The agency timely received several technical and price proposals, but

the Contracting Officer (“CO”), Ms. Sidnia Finke, wrote a memorandum on 

January 21, 2021, explaining that three offerors which submitted timely 

technical proposals via DOD SAFE did not timely submit their price

proposals:

It appears there may have been technology issues with the 

DOD Safe site, though that cannot be confirmed conclusively. 

Enclosure (1) provides a timeline and description of the 

proposal delivery with each of the three Offerors: Hourigan, 

Korte, and SYNCON.

a. Two of the three Offeors, SYNCON and Korte, stated that 

neither received a confirmation of upload screenshot after they 

submitted their proposals. Both ultimately submitted their 

proposals late in the day using their original links. Of note, the 

DODSafe links can only be used one time and the Offerors 

used their DODSafe links after the due date and time.

b. Hourigan let their DODSafe link expire 4 minutes before 

proposal due date and time and did not request another link 

prior to submission and ultimately submitted their proposal via 

email the next morning. Of note, Hourigan did not express an 

issue with their DOD Safe link until after the due date and time 

of proposals. Also of note, the email drop request sent to 

Offerors states, “This link expires 14 days from the time of this 

email.”

AR 5325. 

The CO determined, however, that the agency was not prohibited 

from amending the closing time for proposals after the time passed to 

“accommodate even one offeror, where the motivation for the extension is 

enhanced competition.” AR 5325 (citing Geo-Seis Helicopters, Inc., B–

299175, B–299175.2, 2007 CPD ¶ 135 (Comp. Gen. Mar. 5, 2007) (“GeoSeis I”)). Ultimately, she decided to extend the deadline based on “the best 

interest of enhancing competition,” and “to allow for the maximum 

competition possible” by accepting the three offerors who already timely 

submitted technical proposals. Id.
7

On January 22, 2021, the CO’s memorandum was implemented 

through Amendment 0015, which extended the deadline for electronic price

proposals to January 25, 2021 at 1600 EST and hard copy proposals to 

February 1, 2021 at 1600 EST. The Contracting Specialist sent an email to 

all offerors on January 22, 2021, explaining that a new DOD SAFE link 

would be provided to each offeror and that, while resubmission was not 

required, offerors could modify their previously submitted proposals and 

resubmit. Thereafter, nine offerors, including Syncon and Hourigan, 

resubmitted proposals before the new January 25, 2021 deadline. 

On January 25, 2021, the Navy received an agency-level protest from 

an offeror, B.L. Harbert International (“Harbert”) challenging the Navy’s 

decision to extend the deadline for submission of price proposals. Harbert 

cited to FAR provisions governing the treatment of late proposals (48 C.F.R. 

§ 52.215-1), and noted that this court had determined in a different bid protest 

that an agency’s post-hoc extension of a solicitation deadline to 

accommodate late offerors was a violation of regulations. Geo-Seis 

Helicopters, Inc. v. United States, 77 Fed. Cl. 633 (2007) (“Geo-Seis II”).

On February 23, 2021, the Navy sustained Harbert’s agency level 

protest, relying on this court’s decision in Geo-Seis II. On February 24, 2021, 

the Navy issued Amendment 0016, notifying offerors that Amendment 0015 

was “issued in error and was null and void,” AR 171-72, because it was 

published after the closing date set by the last amendment, January 19, 2021 

at 2:00 p.m. 

The agency then sent letters to Syncon and Hourigan that it was 

sustaining the Harbert protest and that their proposals were “rejected due to 

late submission.” AR 5441-42, 5436-37. The letters explain that the decision 

in Geo-Seiss II had the effect of overruling GAO decisional law upon which 

the agency relied in issuing Amendment 0015. See AR 5441, 5436 

(“[Amendment 0015 was] based upon a series of GAO rulings indicating that 

agencies were permitted to extend closing dates for solicitations, even after 

the existing date for receipt of proposals had passed, in order to increase 

competition for the procurement.”). 

The letter sent to Syncon concludes that because the agency did not 

receive Syncon’s price proposal via DOD SAFE until January 19, 2021, 4:26

p.m., after the closing date set by Amendment 0014, and because the 

circumstances surrounding the receipt of Syncon’s proposal did not meet 

exceptions to the “late is late” rule under FAR Clause 52.215-1(3)(ii), 

Syncon’s proposal would be rejected as late. Hourigan received a similar 

letter.
8

C. Syncon’s Submissions and Submission Attempts

Syncon timely submitted its technical proposal through DOD SAFE

of December 22, 2020 at 11:45 AM EST and received a “Drop-Off 

Completed” “Your files have been sent successfully” notification upon 

submission. AR 1884, 5528. DOD SAFE sent an automated message to Ms.

Snow informing her of the submission. 

The agency found, however, that Syncon did not submit its price 

proposal through DOD SAFE prior to the 2:00 p.m. EST January 19, 2021

deadline. On January 19, 2021, Ms. Mary Morris, Syncon’s employee, 

emailed Ms. Snow at 1:56 p.m., seeking confirmation that Syncon’s proposal 

had been received. At 3:19 p.m., Ms. Snow responded, “I did not receive a 

DOD Safe link email yet. Please send me a screenshot or otherwise 

confirmation of your submission. Some have been delayed coming through.” 

AR 5317. At 3:55 p.m., Ms. Morris responded “I don’t see what I can screen 

shot. The DOD safe sites don’t go in the sent file. Please help. Can I try to 

resend? Can I send through email?” AR 5316. At 4:10 p.m., Ms. Snow 

responded, “I would attempt to contact the DOD Safe help [desk], or see if 

there is any kind of outbox record of sending. On my end, the request sent to 

Syncon has not been fulfilled.” AR 5316. Ms. Morris responded, “I just 

attempted to call DOD Safe help and can not get through without a pin 

number. There’s nothing else I can do? I’m kind of begging here. You see 

the email I sent you asking for confirmation. We did send.” AR 5315. 

Ms. Snow replied that she “received a DOD Safe link at 4:26 p.m.

with the price proposal.” Id. Ms. Morris then asked Ms. Snow if she could 

confirm that she received Syncon’s “initial DOD SAFE submission that was 

sent yesterday (1/19/21) before the 2 p.m. deadline” and advised Ms. Snow 

that Syncon had a pending support ticket with the DOD SAFE Site Help 

Desk. AR 5314. In the same email chain, Ms. Morris wrote that she 

attempted to upload Syncon’s price proposal to DOD SAFE on January 19, 

2021 at 1:47 p.m. EST, but did not receive the “Drop-Off Completed” “Your 

files have been sent successfully” messages that Amendment 0009 indicates

should be provided. Id. She also stated that on January 19, 2021 at 1:49 p.m.

EST, she attempted to upload the documents to DOD SAFE a second time, 

but again, did not receive the automated messages from DOD SAFE. 

In the same email, Ms. Morris attached an image, entitled “relevant 

chrome history,” of six different occasions on which she accessed the DOD 

SAFE site, times that she states correspond to her submission attempts: 1:47 

p.m., 1:49 p.m., 4:08 p.m., 4:13 p.m., 4:16 p.m., 4:29 p.m. She never, 

however, received a “successful submission” notification for any of these 
9

submissions. Ms. Snow also provided screen shots of her January 19, 2021 

browser history, email inbox, deleted emails, and clutter emails. None of

these images show a confirmation from DOD SAFE for any of Syncon’s 

submissions. Ultimately, the agency rejected Syncon’s proposal because the 

electronic price proposal was received after 2:00 p.m. on January 19, 2021.

D. Hourigan’s Submissions and Submission Attempts

Hourigan timely submitted its technical proposal through DOD SAFE

on December 22, 2020, and DOD SAFE sent an automated message to Ms.

Snow informing her of the submission. On January 5, 2021 at 12:43:16 p.m.

EST, at the request of Hourigan and Ms. Snow, the DOD SAFE site created 

an additional link for Hourigan to use for submission of its price proposal. 

At 2:00 p.m. EST on January 19, 2021, Mr. Phillip Hodges, an 

employee of Hourigan emailed Ms. Snow asking her to confirm that she had 

received their submission. She responded that she had not yet received 

Hourigan’s submission and that “[s]ome have been coming through delayed, 

or not at all.” AR 5294-95. On January 20, 2021, Mr. Hodges responded by 

providing the price proposal that it had attempted to submit using the DOD 

SAFE Site link the previous day and a screenshot of a time stamp showing 

that the files were last saved at 1:51 p.m. EST, prior to the deadline. He also 

attached a screen shot to the email showing a message that its link “could not 

be found or has already been used” as proof that it submitted its proposal on 

time. AR 5295. She responded that this was insufficient proof of timely 

submission as the solicitation requires the following notification: “Drop-Off 

completed” “Your files have been sent successfully.” AR 5296. As with 

respect to Syncon, Hourigan’s proposal was also rejected as untimely. 

E. The Protests

Syncon filed a protest with this court on March 5, 2021. On March 

15, 2021, we granted the government’s unopposed motion for a partial 

remand to the Navy, to determine whether plaintiffs’ proposals were received 

at the DOD SAFE site prior to the January 19, 2021 deadline, or whether the 

site was experiencing technical issues which may have impacted offerors 

(ECF No. 14). 

Hourigan had previously filed a protest with the Government 

Accountability Office (the “GAO”) on March 3, 2021, contesting the 

rejection of its proposal. On March 12, 2021, the GAO dismissed Hourigan’s 

protest due to the pendency here of Syncon’s related protest. Hourigan filed 

its protest here on March 16, 2021, after which we consolidated the actions.
10

On March 16, 2021, in compliance with our order granting a partial 

remand, the Navy sent a letter to DISA inquiring about the time of receipt of 

the price proposals from Syncon, Hourigan and Korte, a third bidder whose 

proposal had been rejected as untimely. Todd Edgall, DISA’s representative,

responded that Syncon submitted its proposal on January 19, 2021 at 16:21 

EST, Hourigan did not submit its proposal on January 19, 2021, and Korte 

submitted its proposal on January 19, 2021 at 15:30 EST. 

Mr. Edgall noted that there was no indication that DOD SAFE was 

experiencing issues at that time, as the database entries did not have large 

gaps between submissions or drop-offs.5

 Further, he stated:

In full disclosure -- please note, this only indicates that DOD 

SAFE was operating properly. There may be any number of 

external factors that could have affected the companies’ ability 

to upload files to DOD SAFE by the deadline -- including their 

own Internet service provider, as well as any circuit, router or 

security stacks along the way. DOD SAFE has no insight or 

control over those factors.

AR 5530-31.6

After reviewing the information provided by DISA, the CO issued a 

memorandum on March 25, 2021, which reaffirmed her original decision to 

reject plaintiffs’ proposals as late as well as her finding that “that none of the 

referenced proposals met any of the exceptions to the ‘late is late’ rule set 

5 DISA explained that

For the two-hour period ((1700 – 1900 (12:00 – 2:00 EST))), 

there were no dropoff gaps greater than 21 secs -- and that was 

only one. For the [two] hour time-frame there were 3840 

dropoffs ((avgs out to be 32 per minute)): 17xx (12:xx EST)--

1898 dropoffs [and]18xx (13:xx EST)-- 1942 dropoffs

AR 5531. The court understands the term “drop-offs” to mean proposal 

submissions, although the recorded submissions are not necessarily related 

to this procurement. 

6 Mr. Edgall added that “Any additional error messages or behavior from the 

browser during the upload could be helpful. Internet upload speeds vary, 

however, it does not appear as though those were big files.” AR 5531.
11

forth in FAR 52.215-1.” See AR 5670-78. She explained that the first

exception to the “late is late rule” provides that a proposal transmitted

through electronic means is not late if it is received at the “initial point of 

entry to the Government infrastructure no later than 5:00 [p.m.] one working 

day prior to the date specified for receipt of proposals.” 48 C.F.R. § 52.215-

1(c)(3)(iii)(A)(1). The CO found that because “it is undisputed that none of 

the relevant proposals were received at the DOD SAFE point of entry by 5:00 

p.m. EST on January 18, 2021 . . . [n]one of the proposals, therefore, meet 

the requirements of exception 1 to the ‘late is late’ rule.” AR 5672.

The CO explained that the second exception, often referred to as the 

government control exception to the “late is late” rule allows for 

consideration of an otherwise late proposal where there is sufficient evidence 

to indicate that the proposal “was received at the Government installation

designated for receipt of offers and was under the Government’s control prior 

to the time set for receipt of offers.” 48 C.F.R. § 52.215-1(c)(3)(ii)(A)(2). 

The CO determined that “the information provided by DISA appears to 

clearly establish that none of the proposals from Syncon, Hourigan, or Korte 

were under the Government’s control prior to the time designated for receipt 

of offers.” AR 5673.

The CO found that the third exception, that a proposal “is the only one 

received,” did not apply, as none of the proposals were the “only proposal 

received” in response to the solicitation. She also found that the fourth 

exception, commonly referred to as the “unanticipated event exception,” did 

not apply. She explained that this exception applies when “an emergency or 

unanticipated event interrupts normal Government processes” so as to 

prevent proposals from being received “at the office designated for receipt 

of proposals” at the exact time specified in the solicitation and “urgent 

Government requirements preclude amendment of the solicitation,” the time 

for the receipt of proposals is automatically “extended to the same time of 

day specified in the solicitation on the first work day on which normal 

Government processes resume.” 48 C.F.R. § 52.215-1(c)(3)(iv). She 

determined that this exception did not apply to any of the late proposals 

because

the information provided by DISA indicates that the DOD 

SAFE system did not suffer any type of interruption in service 

(neither emergency, unanticipated event, or otherwise) during 

the time period that Syncon, Hourigan, and Korte all allege 

they attempted to upload their proposals to the system. 

Specifically, all three offerors alleged that they attempted to 

upload their proposals to DOD SAFE during the period 
12

between 1:30p.m.-2:00p.m. EST. The DISA Declaration 

indicates that DISA has no information indicating DOD SAFE 

suffered any problems during that time period. In fact, to the 

contrary, DISA reports that DOD SAFE received just under 

2,000 successful uploads/submissions during the hour 

preceding the soliciation’s closing time. The information 

provided by the Declaration is also consistent with information 

Contract Specialist Holly Snow was previously provided

directly by the DOD SAFE system regarding request codes she 

had distributed for this solicitation. That information indicated 

that more than 15 uploads/submissions were made successfully 

during the time period of 1:30p.m.-2:00p.m. EST utilizing the 

request codes. While Contract Specialist Holly Snow 

previously had observed that DOD SAFE emails informing her 

a request code had been used by an offeror to upload a 

submittal were not transmitted to NAVFAC MIDLANT 

immediately upon use of the request code, in light of the 

information from DISA this delay did not reflect a problem 

with DOD SAFE receipt of uploads/submittals.

AR 5673. In conclusion, the CO found that none of the exceptions to the 

“late is late” rule applied to any of the late proposals. 

On April 13, 2021, the parties filed a joint motion for a second partial 

remand to the Navy to obtain additional information from DISA regarding 

the DOD SAFE site for the agency to determine whether reconsideration was 

warranted (ECF No. 31). The motion states that

On April 2, 2021, counsel for Syncon contacted the counsel for 

the Government, alleging that DISA’s remand declaration had 

failed to address several important matters. Counsel for Syncon 

sought consent to supplement the administrative record with 

additional information from DISA. To resolve this dispute 

without Court involvement, all parties conferred on April 7, 

2021, at which time, counsel for Hourigan also raised several 

other questions that it requested that the agency consider. 

Although the United States objected to Syncon’s proposed 

approach and contended that the Navy’s decision was rational, 

because many of these questions fell within DISA expertise, 

and in the interests of efficiency and to permit the agency to 

review its conclusion in light of DISA’s response to the 

plaintiffs’ proposed questions, the parties agreed to jointly seek 
13

a limited remand on specific matters in order to resolve their 

dispute.

AR 5679-81. In the motion, the parties agreed upon eleven additional 

questions that the agency would pose to DISA seeking clarifications 

regarding some of the statements made in DISA’s original March 24, 2021 

declaration, as well as additional information regarding DOD SAFE “request 

codes” that had not been part of the Navy’s first inquiry. Id.

On April 14, 2021, we granted the parties’ motion. Thereafter, 

defendant sent a letter to DISA which included eleven questions regarding 

operation of the DOD SAFE site and the efforts made by DISA to investigate 

the allegations made by Hourigan and Syncon. DISA responded to the letter 

by submitting two declarations, one from the DOD SAFE Database 

Administrator, Michael Clark and the second from Ethan Miller, the DOD 

SAFE Program Manager. 

Mr. Clark confirmed that none of DISA’s notification tools indicated 

a problem with DOD SAFE on January 19, 2021. Mr. Clark notes that seven 

DOD SAFE “trouble tickets” were opened between January 19-20, 2021.

AR 5723. He added that one trouble ticket “was for Ms. Morris’ upload 

issue.” Id. He also stated that DOD SAFE does not track attempted or failed

uploads, and thus he was unable to answer which attempt resulted in a 

successful upload. He stated that although Syncon provided screenshots of 

its browser history accessing the site, the screenshots only prove that Syncon 

visited the site and do not prove that Syncon attempted or succeeded in

uploading. He explained that only a successful upload will be recorded on 

the database tables, and thus only Syncon’s upload at 4:26 EST was recorded. 

Mr. Miller stated that “a SAFE request code can be used as many 

times as necessary until it is expired by the system.” AR 5714. Further, he 

stated that “there is a daily cleanup script that runs once daily. It is typically 

done early in the morning.” AR 5715. He explained that a link only expires 

after the script runs and identifies which request codes are older than fourteen 

days. Mr. Clark further stated that “the Request Code will remain usable 

until the system registers the request code as expired.” AR 5715.

On April 22, 2021, after reviewing the declarations provided by 

DISA, the CO reaffirmed her position that plaintiffs’ proposals were not 

timely submitted and did not qualify for an exception to the “late is late” rule. 

She stated that “Ethan Miller’s Declaration reveals that Hourigan’s request 

code was still available for use at the time Hourigan alleges it attempted to 

upload its proposal” and that the system “did not record Hourigan’s request 
14

code as expired until 1:54 p.m. EST that same day.” AR 5730. She also 

noted that although plaintiffs allege that their IT systems were functioning 

properly on January 19, 2021, “that fact, even if true, still does not establish 

that the DOD SAFE system was malfunctioning or was otherwise the cause 

for the protesters’ unsuccessful uploads.” AR 5731. After reviewing the 

information regarding DOD SAFE, she found that DOD SAFE “was 

operating properly on January 19, 2021” and it did not appear that it “was the 

reason that Syncon and Hourigan did not have their respective uploads 

transmitted to DOD SAFE by the required deadline.” Id.

On April 23, 2021, the government filed a status report regarding the 

second remand, stating that after receiving further information from DISA, 

the agency determined that its original decision should stand (ECF No. 33 at 

1). In sum, plaintiffs’ proposals were subject to three separate rejections on 

timeliness grounds by the CO: the first on February 24, 2021, after 

Amendment 0015 was rescinded, the second on March 25, 2021, after the 

first remand, and the third on April 22, 2021, after the second remand. 

Plaintiffs challenge all three determinations, as well as the decision to rescind 

Amendment 0015. 

DISCUSSION

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

the Administrative Procedures Act, 5 U.S.C. § 706, 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. 

After oral argument, it is apparent that plaintiffs challenge the 

agency’s decisions in two respects: (1) the agency’s decision to rescind 

Amendment 0015 was arbitrary, capricious, an abuse of discretion, or 

otherwise contrary to law; (2) the agency three times improperly rejected 

their proposals as not meeting the exceptions to FAR Clause 52.215-1. 

Plaintiffs seek permanent injunctive relief preventing the Navy from 

commencing evaluation of proposals and making an award determination 

without consideration of plaintiffs’ proposals and requiring the agency to 

include plaintiffs’ proposals in the source selection and 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 
15

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 all of plaintiffs’ challenges lack merit and 

it is therefore unnecessary to consider the last three factors. We consider 

each of plaintiffs’ arguments in turn.

As a preliminary matter, Syncon argues that the court should not 

consider the documents gathered during both remands as part of the 

administrative record, on the basis that our review should be limited to the 

agency’s contemporaneous rationale for its decisions. Instead review should 

be limited to the record before the agency at the time of its decision, Citizens 

to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971), and “not some 

new record made initially in the reviewing court.” Axiom Res. Mgmt. v. 

United States, 564 F.3d 1374, 1379 (Fed. Cir. 2009) (quoting Camp v. Pitts, 

411 U.S. 138, 142 (1973)). Plaintiff asserts that the government’s argument, 

which uses materials from both remands, is effectively a post hoc

rationalization of the Navy’s decisions and that our consideration of such 

materials would improperly convert the arbitrary and capricious standard to 

a de novo review. 

While we agree that this court may not engage in a de novo review of 

a bid protest action, consideration of supplemental materials gained during a 

remand is not improper and does not transform the arbitrary and capricious 

standard to a de novo review. The Tucker Act grants this court the authority 

“to remand appropriate matters to any administrative or executive body or 

official with such direction as it may deem proper and just.” 28 U.S.C. 

§1491(a)(2) (2012); see RCFC 52.2. Remand is a procedure that permits this 

court to give “due regard” to “the need for expeditious resolution of the 

action,” 28 U.S.C. § 1491(b)(3), while permitting the agency to reconsider 

its decision after further development of the factual record. Rollock Co. v. 

United States, 115 Fed. Cl. 317, 334 (2014). After a remand, this court 

considers the whole record before the agency, not merely the record as it 

existed before the remand. See, e.g, Knowledge Connections, Inc. v. United 

States, 79 Fed. Cl. 750, 761 (2007), dismissed, 321 F. App’x 948 (Fed. Cir. 

2008). Plaintiff has not shown any support for its argument that after

exercising our statutory authority to remand, we must then ignore the results 

of the remands, particularly in view of the fact that Syncon consented to the 

first and sought the second.
16

A. The Navy’s Decision to Rescind Amendment 0015 was Reasonable.

Plaintiffs argue that if the agency’s rescission of Amendment 0015 

was in error, then plaintiffs’ proposals were timely as the amendment was 

still active when their electronic filings were received by DOD SAFE. 

Plaintiffs contend that the agency’s rescission of Amendment 0015 was 

erroneous, and thus the Navy cannot retroactively invalidate their timely 

submissions. 

The protestors argue that the Navy’s rescission of Amendment 0015 

was in error because it was based upon this court’s holding in Geo-Seis II,

77 Fed. Cl. 633 (2007), which conflicted with the GAO’s position that a CO 

can extend the closing date of a solicitation with a post-hoc amendment.

Geo-Seis I, B–299175, B–299175.2, 2007 CPD ¶ 135 (Comp. Gen. Mar. 5, 

2007). Plaintiffs assert that what matters is that Geo-Seis I was still good law 

at the GAO at the time of the CO’s decision. Even after publication of this 

court’s decision in Geo-Seis II, the GAO specifically cited its Geo-Seis I

decision and held: “[T]here is no prohibition against a procuring agency 

issuing an amendment to extend the closing time for receipt of proposals after 

that time has passed to accommodate even one offeror, where the motivation 

for the extension is enhanced competition.” National Disability Rights 

Network, Inc., B- 413528, 2016 CPD ¶ 333 (Comp. Gen. Nov. 16, 2016) 

(quoting Geo-Seis I., B–299175, B–299175.2, 2007 CPD ¶ 135 at 5 (Comp. 

Gen. Mar. 5, 2007)). 

The government argues that because the agency later concluded that

Amendment 0015 was not based on the relevant FAR regulations or the “late 

is late” rule but was contrary to these regulations, it was proper for the agency 

to rescind the amendment as it was not legal under FAR. We agree. The 

Navy’s decision to rescind was rational and in accordance with law, as the 

CO reasonably determined that her prior amendment did not comport with 

the FAR, consistent with this court’s decision in Geo-Seis II, which rejected 

the GAO’s holding in Geo-Seis I, characterizing the opinion as “not 

persuasive,” because it failed to reference or analyze the relevant FAR 

provisions governing late proposals. Geo-Seis II, 77 Fed. Cl. at 645 n. 28 at 

645. 

It was proper for the agency to rely on this court’s decision as GeoSeis II, as we conclude that it correctly interprets FAR’s “late is late” rule. 

As Judge Lettow noted, issuing a post hoc amendment would “render the 

‘late is late’ rule a nullity.” Geo-Seis II, 77 Fed. Cl. at 645. While contracting

officers are properly afforded considerable discretion “that discretion does 

not extend to violating the FAR,” Info. Scis. Corp. v. United States, 73 Fed. 
17

Cl. 70, 115 (2006), on reconsideration in part, 75 Fed. Cl. 406 (2007), nor 

does an agency have “discretion regarding whether or not to follow 

applicable law and regulations.” Blue & Gold Fleet, LP v. United States, 70 

Fed. Cl. 487, 512 (2006), aff’d, 492 F.3d 1308 (Fed. Cir. 2007).

Further, we agree with the analysis in Geo-Seis II, adopted by the CO 

here,7 that even though the GAO decisions cited by plaintiffs support their 

position “as to the nunc pro tunc effect of post-hoc amendments, those GAO 

precedents reflect ‘one of those Comptroller-General-created rules that is not 

reflected in the FAR,’ . . . . Those GAO decisions are not persuasive and they 

will not be adopted.” Geo-Seis II, 77 Fed. Cl. at 645 (citation omitted)

(quoting Ralph C. Nash & John Cibinic, Late Final Proposal Revisions: The 

Final Straw!, Nash & Cibinic Report, Vol. 18, No. 4, P 16 (1997)).

Because the agency was reasonable in relying on this court’s decision 

in Geo-Seis II, it was not arbitrary and capricious for the Navy to rescind the 

amendment.8

 See Dell Fed. Sys., L.P. v. United States, 906 F.3d 982, 992 

(Fed. Cir. 2018) (“we have consistently reviewed agencies’ corrective 

actions under the APA’s ‘highly deferential’ ‘rational basis’ standard”).

7 The CO cited this court’s decision in Geo-Seis II in its letter rejecting 

plaintiffs’ proposals as late: “There is simply no basis in the FAR for the 

view that the Contracting Officer had discretion to render the ‘late is late’

rule a nullity.” Geo-Seis II, 77 Fed. Cl. at 645; AR 5436, 5441. 

8 Syncon also asserts that this case is analogous to Taahut v. United States, 

in which the Federal Circuit upheld a CO’s decision to extend the proposal 

deadline through an amendment posted after the deadline where multiple 

offerors experienced technical difficulties with a government submission 

portal. Taahut v. United States, No. 20-1726, 2021 U.S. App. LEXIS 7164 

(Fed. Cir. March 11, 2021). Like Taahut, it argues, the CO here properly 

issued Amendment 0015, extending the deadline, because multiple offerors 

that had already submitted their technical proposals experienced “technology 

issues with the DODSafe site.” AR 5325. Syncon incorrectly characterizes 

the facts in Taahut. The agency in that case “extended the deadline prior to 

the expiration of the time for proposal” and not after the deadline. Id. at *4. 

The formal amendment was not posted to the government server until after 

the deadline, but the trial court held (and the Federal Circuit agreed) that this 

was not dispositive because the “contracting officer had made the decision 

and communicated it to all offerors prior to the deadline.” Id. 
18

Next, Hourigan argues that the Navy’s rescission of Amendment 

0015 after an agency-level protest was arbitrary and capricious because the 

protestor, Harbert, failed to demonstrate how it was prejudiced by the Navy’s 

extension of the solicitation’s deadline. Hourigan asserts that a showing of 

prejudice is a necessary element of an agency protest, as FAR requires that 

an agency protest include a “[d]etailed statement of the legal and factual 

grounds for the protest, to include a description of resulting prejudice to the 

protester.” FAR § 33.103(d)(2)(iii). Further, Hourigan points out that this 

court has found that a protestor “failed to carry its burden to demonstrate that 

it has suffered a nontrivial competitive injury, and therefore, has failed to 

show that it was prejudiced by the contracting officer’s procurement error.” 

KGL Food Services WLL v. United States, 2021 U.S. Claims LEXIS 679, at 

*38 (Fed. Cl. Apr. 22, 2021). It is true that, although Harbert stated in its 

protest that it was an interested party, it failed to offer any description of the 

anticipated prejudice. From this, Hourigan argues that Harbert was not an 

interested party because the protestor’s direct economic interests were not 

affected by the Navy’s actions, as it did not suffer a “‘non-trivial competitive 

injury which can be redressed by judicial relief.’” Orion Tech., Inc. v. United 

States, 704 F.3d 1344, 1348 (Fed. Cir. 2013) (quoting Weeks Marine, Inc. v. 

United States, 575 F.3d 1352, 1362-63 (Fed. Cir. 2009)). 

In its response, the government points out that an agency has the 

independent discretion to take corrective action to remedy its own perceived 

errors in response to an agency level protest.9

 We agree. An agency need 

only have a rational basis to take action to remedy its perceived errors. Dell 

Fed. Sys., L.P. v. United States, 906 F.3d 982, 992 (Fed. Cir. 2018). In 

addition, a CO generally possesses broad discretion to exercise “personal 

initiative in procurement matters,” so long as these actions are not otherwise 

prohibited by law. Tyler Const. Grp. v. United States, 570 F.3d 1329, 1333 

(Fed. Cir. 2009). Thus, it was reasonable for the agency to exercise its 

discretion in rescinding the amendment to correct its perceived errors. 

B. The Agency Reasonably Found that Plaintiffs’ Proposals Failed to 

Meet the Exceptions to FAR 52.215-1. 

Plaintiffs both argue that the agency erred all three times it rejected 

their proposals as late because the circumstances surrounding their late 

9 The government argues in the alternative that the protestor was an interested 

party, but we do not need to address this question, as we find that the agency 

had discretion to address its perceived errors. 
19

submissions meet the exceptions to FAR 52.215-1. FAR 52.215-1(c)(3), also 

referred to as the “late is late” rule, provides in relevant part:

(i) Offerors are responsible for submitting proposals, and 

any modifications or revisions, so as to reach the 

Government office designated in the solicitation by the 

time specified in the solicitation . . . .

(ii) Any proposal, modification, or revision 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 certain specified 

conditions are met].

When interpreting the “late is late” rule, courts “have adhered to the 

plain text of the regulation, commenting that its requirement that offerors 

submit their proposals on time is a ‘strict rule with very limited exceptions.’”

Geo-Seis II, 77 Fed. Cl. at 640 (quoting Argencord Mach. & Equip., Inc. v. 

United States, 68 Fed. Cl. 167, 173 (2005)). Both plaintiffs argue that the 

unanticipated event exception applies in this case, and Syncon argues that 

the government control exception also applies to its submission. For the 

reasons given below, we find that neither applies.

1. Unanticipated Event Exception

The unanticipated event exception to the “late is late” rule under FAR 

§ 52.215-1(c)(3)(iv) applies when:

[A]n emergency or unanticipated event interrupts normal 

Government processes so that proposals cannot be received at 

the office designated for receipt of proposals by the exact time 

specified in the solicitation, and urgent Government 

requirements preclude amendment of the solicitation, the time 

specified for receipt of proposals will be deemed to be 

extended to the same time of day specified in the solicitation 

on the first work day on which normal Government processes 

resume.

FAR § 52.215-1(c)(3)(iv). The crux of plaintiffs’ arguments is that, despite 

the agency’s investigation, which shows that DOD SAFE operated without 

problems on January 19, 2021, some unanticipated event must have occurred 

because there is no other explanation for their inability to upload their price 

proposals. In addition, they point to various allegedly inconsistent 
20

statements made by the agency and DISA, which they argue should prompt 

the court’s skepticism about the agency’s explanations. 

First, Hourigan points out that although the Navy notified offerors in 

the email drop request that the request link10 expires fourteen days after 

issuance, DISA gave a conflicting response on request link expiration. 

Following the second remand, DISA’s Ethan Miller explained that a daily 

cleanup script initiates the process of link expiration: the script “runs once 

daily” and “typically . . . early in the morning,” and the link only expires after 

the script runs and identifies which request links are older than fourteen days. 

AR 5714. Mr. Clark also stated that the request link “will remain usable until 

the system registers the request code as expired.” Id.

After the second remand, the CO concluded “Hourigan’s request code 

was still available for use at the time Hourigan alleges it attempted to upload 

its proposal” and that the system “did not record Hourigan’s request code as 

expired until 1:54 p.m. EST that same day.” AR 5730. This conclusion, 

Hourigan argues, is inconsistent with DISA’s statement on link expiration, 

as Hourigan’s link should not have expired until the script was run the 

morning of January 20, 2021.11 

Hourigan argues that the agency’s expiration of its link is the 

unanticipated event that occurred which prevented it from successfully

submitting its price proposal when it attempted to submit at 1:51 p.m. on 

January 19, 2021.12

Hourigan’s suggestion that its difficulties in uploading its proposal are 

traceable to link expiration are of no avail. Although the agency was not 

aware of the inner workings of the DOD SAFE site’s link expiration process 

prior to the remands, i.e., that the server runs a script which identifies links 

as expired, this does not amount to an agency error.13 The issue was not fully 

10 Also referred to by DISA as “the request code.”

11 Hourigan points to Mr. Clark’s statement that “the Request Code will 

remain usable until the system registers the request code as expired.” AR 

5715. Hourigan also uses Mr. Miller’s statement that link expiration via the 

script is typically run in the morning, as support for this statement.

12 As support for its alleged attempted submission, Hourigan cites to an email showing files had been last saved at 1:51:05 p.m. 

13 In fact, the agency’s original statement that the code expires 14 days after 
21

developed, but even if Hourigan’s link expired prior to the submission 

deadline, that could not be characterized as error on the part of the agency.

14

Offerors were made aware that link expiration would occur 14 days after 

receiving the email with the DOD SAFE link and thus, expiration of the link 

was not an unanticipated event. Hourigan was on notice of the risk and could 

have timely sought a renewed link. In addition, the asserted inconsistencies

are irrelevant. If, in fact, the link was not deactivated until the following day, 

it was kept available beyond the 14-day period. We find that the Navy 

reasonably determined that there was no emergency or unanticipated event 

which interrupted normal government processes to prevent proposals from 

being received by DOD SAFE. 48 C.F.R. § 52.215-1(c)(3)(iv); see also id.

§ 15.208(d). 

Plaintiff argues that the agency is responsible for its late submission 

because something appeared to be amiss on the government servers during 

the time Syncon attempted its submission, and the agency’s statements to the 

contrary are untrustworthy.

15 First, DISA could not explain why the DOD 

SAFE data purportedly recording Syncon’s successful upload at 4:26 p.m.

issuance is still accurate, even though DISA later clarified that the link only 

expires after the script runs and identifies which request codes are older than 

fourteen days.

14 This exception only applies when an unanticipated event prevents the 

government from receiving proposals at the site designated within the 

solicitation, rather than when such events prevent the offeror from 

transmitting its proposal. Conscoop - Consorzia FRA Coop. Di Prod. E 

Lavaro v. United States, 62 Fed. Cl. 219, 240-41 (2004). 

15 Plaintiff asserts that it is skeptical about DISA’s response to an inquiry 

submitted during remand. In response to the question of why an offeror 

might not receive an email or notification after a proposal was uploaded 

successfully, DISA explained that it could have been “flagged as spam.” AR 

5724. Syncon asserts that this answer is contrary to DISA’s response in 

Naval Systems Inc. v. United States, that “it would be impossible for any user 

. . . to receive a ‘Drop-Off Completed’ webpage without all of the preceding 

steps . . . haven taken place successfully.” Naval Sys. v. United States, 2021 

U.S. Claims LEXIS at *38. This statement, even if credited, would not 

establish that a protestor had successfully and timely completed its 

submission. In any event, it would be improper to import here a DISA 

statement from a different case with different facts and a different 

administrative record. 
22

EST on January 19, 2021, does not correspond with Syncon’s attempted

submission times. But that observation merely repeats what the agency 

found—there was no proof at its end of receipt and it has no way of tracking 

failed efforts. 

Next, plaintiff contends that the agency did not conduct a thorough 

investigation of the issues raised by offerors.16 Instead, it asserts that the 

Navy incorrectly relied on the fact of successful submissions by other 

offerors as proof that the DOD SAFE site operated without issue on January 

19, 2021. The latter fact is, however, relevant. As Judge Solomson noted, 

evidence that other bidders were able to access a system at the same time is 

strongly suggestive that a submission problem was not at the government’s 

end. Naval Sys. v. United States, 2021 U.S. Claims LEXIS at *39. 

In sum, Syncon’s arguments amount to nothing more than mere 

conjecture that the agency is withholding the truth.17 While we recognize 

inconsistencies between responses given by the Navy and DISA, plaintiff’s 

concerns “are not a sufficient basis to support judgment in plaintiff’s favor.” 

Id. at *37. It was reasonable for the CO to rely on DISA to investigate 

whether DOD SAFE operated correctly on January 19, 2021. She considered 

the fact that DOD SAFE had 3,840 successful uploads/submissions during 

the referenced two hours preceding the 2:00 p.m. EST, January 19, 2021

submission deadline. AR 5518. Because the CO had no basis for questioning 

16 As support for this argument, Syncon points out that according to the 

record, the Navy did not contact DISA until the first remand in March 2021. 

Further, plaintiff refers again to two comments made by a DISA attorney, 

Ms. LaTonya McFadden, who served as an initial point of contact and 

subsequent conduit of information between the Navy and DISA, which it 

believes show bad faith on the government’s part. We discussed this 

allegation in plaintiff’s motion to supplement the record (ECF No. 43) and 

found that these comments do not rise to the level of bad faith. 

17 Syncon also disagrees with DISA’s statement that it does not “track link 

access/utilization unless it resulted in a successful upload” and that “[it does] 

not track attempted or failed uploads,” AR 5724-25, because it asserts DISA 

has shown the capability to determine whether a proposal arrived at its 

servers by providing screenshots showing the “upload time” and “scan time”

of successfully uploaded proposals and the DOD site had certain notices 

stating that data stored on the website is subject to monitoring. AR 5528. 

Even crediting plaintiff’s statements as accurate, we do not believe that this 

demonstrates an inconsistency in DISA’s representations. 
23

DISA’s assertion that it could not track unsuccessful uploads to DOD SAFE, 

it was reasonable for the agency to rely on the information which the site did 

record. 

Finally, Syncon concludes that because it did not experience any IT 

issues on its end and two other offerors also experienced issues uploading 

their submissions within a 20-minute time span, an unanticipated event must 

have occurred on the government’s servers. Even presuming that Syncon 

experienced no internal IT issues, this does not mean that “an emergency or 

unanticipated event” interrupted “normal Government processes” so as to 

prevent proposals from being received “at the office designated for receipt 

of proposals.” 48 C.F.R. § 52.215-1(c)(3)(iv). To illustrate this point, DISA 

observed in an e-mail, 

There may be any number of external [to DOD SAFE] factors 

that could have affected the companies’ ability to upload files 

to DOD SAFE by the deadline – including their own Internet 

service provider, as well as any circuit, router or security stacks 

along the way. DOD SAFE has no insight or control over those 

factors.

AR 5531. The lack of any other explanation has never been found, by itself, 

sufficient to overcome the “late is late” rule. Naval Sys. v. United States, 

2021 U.S. Claims LEXIS 487, at *15, *36-37 (Fed. Cl. March 26, 2021). 

Thus, even though the CO was willing to presume that Syncon had no 

internal issues with its IT systems, she reasonably concluded that this “still 

does not establish that the DOD SAFE system was malfunctioning or was 

otherwise the cause for the protestors’ unsuccessful uploads.” AR 5731. 

This determination was “within the bounds of reasoned decision making.”

Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 

105 (1983). Therefore, we find that it was reasonable for the agency to reject 

Syncon’s proposal as late, as the unanticipated event exception to the “late is 

late” rule does not apply here.

2. Government Control Exception

Syncon goes on to argue that the agency’s decision to reject its 

proposals as late was arbitrary and capricious, as the government control 

exception to the “late is late” rule applies to its submission. The evidence it 

relies on is much the same as what we have addressed above. The exception 

provides a safe harbor for an otherwise late proposal when four requirements 

are met: “(i) the offer is received before the award is made; (ii) consideration 

of the offer would not unduly delay the acquisition; (iii) the offer was 
24

received at the government installation designated for receipt of offers; and 

(iv) the offer was under the government’s control prior to the time set for 

receipt of offers.” Naval Sys., 2021 U.S. Claims LEXIS at *37 (quoting FAR 

52.212-1(f)(2)(i)). 

Syncon asserts that the record contains sufficient evidence that it 

timely submitted its proposal to DOD SAFE and that its proposal was within 

the government’s control prior to the proposal deadline. It relies on the 

screenshots showing that it accessed DOD SAFE six different times. 

Additionally, though not part of the record, Syncon points to declarations of 

its employees who witnessed the attempt to upload its proposal.

In its response, the government retreats to the fact that there is no

affirmative evidence that Syncon’s proposal was received at the government 

installation designated for receipt of offers and was under the government’s 

control prior to the deadline. We agree. As Mr. Clark determined after the 

second remand, the screenshots do not show a successful submission, but 

instead merely depict “browser history artifacts that show they had visited 

the site. In addition, the screenshots do not show a confirmation email from 

the DOD SAFE site. A successful upload results in a return message to the 

user stating the upload as successful.” AR 5519.

18

Aside from the statements of Syncon’s employees19 to the effect that 

Syncon tried to submit its files, there is no other evidence supporting the 

conclusion that plaintiff successfully uploaded its proposal in a timely 

manner or that the government received it before the solicitation’s 

submission deadline. To the contrary, the government presents significant 

evidence that Syncon’s proposal was not, in fact, timely uploaded and

received by the DOD SAFE site. 

18 We disagree with Syncon that proof of an attempt to upload a proposal to 

DOD SAFE is sufficient to establish that the government had control of the 

proposal. The FAR indicates that the receipt of a proposal is a pre-requisite 

for this exception. 48 C.F.R. § 52.215-1(c)(3)(iii)(A)(2).

19 Although we denied plaintiff’s motion to supplement the administrative 

record with its employee’s declarations, the record still includes allegations 

regarding Syncon’s attempt to submit its proposal and of its IT systems 

functionality on January 19, 2021. See AR 5451-65 (describing statements 

from Ms. Morris who alleges that she timely attempted submission of the 

proposal on DOD SAFE); AR 5731 (showing Syncon’s claim that its IT 

system ran properly on January 19, 2021). 
25

The solicitation provides that “[t]he DOD SAFE system will record 

the date and time of package submittal. The date and time of package 

submittal recorded in DOD SAFE shall govern the timeliness of any proposal 

submission.” AR 129. The site did not record a submittal from Syncon on

or before the January 19, 2021 at 2:00 p.m. EST deadline. Rather, DOD 

SAFE recorded the submission of Syncon’s price proposal at 4:26:13 p.m.

EST, more than two hours after the deadline had passed. During both

remands, DISA confirmed that DOD SAFE had not timely received Syncon’s 

price proposal. Thus, it was reasonable for the CO to conclude that Syncon’s 

price proposal was not received by DOD SAFE before the exact time

specified for receipt of offers and was therefore late and could not be 

considered. 

Next, Syncon argues that the agency did not undertake a good faith 

investigation to produce “acceptable evidence.” FAR 52.215-

1(c)(3)(ii)(A)(2). Syncon argues that the Navy did not investigate relevant 

data such as emails, IP addresses, or information about offerors’ activities on 

DOD SAFE.

20

The government contends that Syncon’s allegations that DISA’s and

the Navy’s responses were not in good faith and cannot be trusted are

rebutted by the record. We agree. It is important to note that government 

officials are presumed to operate in good faith. Am-Pro Protective Agency,

Inc. v. United States, 281 F.3d 1234, 1239 (Fed. Cir. 2002). Bad faith and 

bias have long been likened to “specific intent to injure” the plaintiff. Kalvar 

Corp. v. United States, 543 F.2d 1298, 1302 (U.S. Ct. Cl. 1976). Here, rather 

than demonstrating any intent to injure Syncon, the Navy and DISA have 

shown a willingness to accommodate Syncon. The Navy amended the 

20 Plaintiff asserts that DISA has done more to investigate the facts in other 

bid protests, citing KGL Food Services WLL, 2021 U.S. Claims LEXIS at *6-

16 (Fed. Cl. Apr. 22, 2021) (describing a search for emails that did not reach 

DISA’s server), Federal Acquisition Services Team, LLC. v. United States, 

124 Fed. Cl. 690, 702-08 (2016) (detailing a record of when an offeror’s 

email was received by a DISA server), and Naval Sys. v. United States, 2021 

U.S. Claims LEXIS at *44 (“[DISA] conducted a search of the DOD SAFE 

database for [the offeror’s] IP address, which demonstrated that while [the] 

IP address had connected to DOD SAFE seventeen times in 2020, it did not 

connect to the system at all in [the relevant time period . . .]”). None of the 

cases are precisely on point, however, and it would in any event be improper 

to rely on DISA’s investigations in protests with distinct facts and 

administrative records. 
26

solicitation to permit Syncon and two other offerors to submit a late proposal, 

and only withdrew its amendment after determining that it did not comport 

with the “late is late” rule. Then the agency and DISA requested two 

remands to determine whether Syncon’s proposal was late or might fall 

within an exception to the “late is late” rule. The fact that the remands did 

not produce the evidence that Syncon expected does not mean the 

investigations were performed in bad faith.

The record supports the determination that Syncon’s proposal was not 

timely submitted. Thus, we conclude that the agency’s decision to reject its 

proposal as late was reasonable. Plaintiff’s motion for judgment on the 

administrative record based on the government control exception is denied. 

CONCLUSION

For the reasons given above, we find that the Navy reasonably

rescinded Amendment 0015 and did not err in finding that plaintiffs’ 

proposals failed to meet the established exceptions to FAR Clause 52.215-1. 

Not having shown success on the merits, we need not consider the other 

injunctive factors. No relief is warranted. Accordingly, plaintiffs’ motions

for judgment on the administrative record are denied. Defendant’s crossmotions are granted. The Clerk of Court is directed to enter judgment for 

defendant. No costs. 

s/Eric G. Bruggink 

ERIC G. BRUGGINK

Senior Judge