Ksend v. United States

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-5033
KSEND,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
DECIDED: June 6, 2006
__________________________
Before SCHALL, Circuit Judge, CLEVENGER, Senior Circuit Judge, and BRYSON,
Circuit Judge.
PER CURIAM.
Plaintiff-Appellant KSend appeals the decision of the United States Court of
Federal Claims granting judgment on the administrative record to Defendant-Appellee
the United States. KSend v. United States, No. 05-822C (Fed. Cl. Dec. 8, 2005).
KSend filed a post-award bid protest in connection with a solicitation for a Job Corps
Services contract with the United States Department of Labor (Labor), alleging that it
was improperly eliminated from the competition, that Labor failed to adhere to
solicitation procedures, and that it was treated unfairly when Labor failed to answer its
pre-bid questions. However, the court found that the United States properly rejected
KSend's bid as nonresponsive to the solicitation and granted judgment on the
administrative record to the United States. For the reasons set forth below, we affirm.

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I
On March 25, 2005, Labor issued solicitation number DOL051RP20027 for
support services for Job Corps Centers nationwide. The solicitation required that
offerors make an oral presentation to Labor's evaluation panel and participate in a
question and answer period. Section L.9, part 8 of the solicitation, which discussed the
oral presentation, informed offerors that Labor would provide a flip pad and an overhead
projector during the presentation. However, this section of the solicitation also stated
that:
Each offeror shall use black and white overhead transparencies (slides) to
document key points of its presentation. . . . "The offeror shall submit its
set of overhead transparencies and five (5) paper copies to the
Government in a sealed package with its offer" (see L.10). Failure to
submit the overhead transparencies and paper copies by the date
established for receipt of offers will cause the offer to be rejected as
non-responsive.
App. at 136 (emphasis added).
Part 2, subsection (3) of Section L.10 of the solicitation, titled "Submission of
Proposal," stated that "[o]fferors shall submit seven (7) paper copies of overhead
transparencies in a sealed package. The transparencies shall form the basis of the
offeror's Oral Presentation." App. at 137. On April 19, 2005, Labor issued
Amendment 1 to the solicitation, which states that "[o]fferors are to submit seven (7)
paper copies and one (1) original set of the overhead transparencies." App. at 133. On
April 26, 2005, Labor extended the due date for receipt of proposals to May 6, 2005.
KSend submitted a proposal on May 5, 2005. However, as KSend admitted in its
complaint, the proposal did not include any overhead transparencies. Thus, on May 9,
2005, Labor rejected KSend's proposal as unacceptable under the solicitation because
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of the absence of the overhead transparencies. Labor further informed KSend that,
pursuant to 48 C.F.R. § 15.503, it would not consider further revision of the proposal.
Nevertheless, on May 11, 2005, KSend submitted the overhead transparencies.
On May 17, 2005, KSend filed an agency protest, alleging that the solicitation
was unclear regarding the requirement for overhead transparencies and that Labor had
not properly responded to its requests for clarification. Labor denied that protest.
KSend subsequently filed a protest with the General Accountability Office (GAO), which
dismissed the protest as untimely. The GAO also denied KSend's request for
reconsideration.
On August 15, 2005, KSend filed a bid protest with the Court of Federal Claims,
seeking equitable relief and unspecified bid preparation and court costs. After cross
motions for judgment on the administrative record and oral argument on the motions,
the court concluded that the solicitation was not ambiguous regarding the requirement
to submit transparencies, that KSend had not submitted the required transparences,
and that Labor had thus properly rejected KSend's bid.
II
We review the Court of Federal Claims' decision to award summary judgment on
the administrative record de novo, applying the same standard of review as the Court of
Federal Claims. Dysart v. United States, 369 F.3d 1303, 1310 (Fed. Cir. 2004). Thus,
we will not disturb a decision of the agency unless it was "arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2000);
Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005).
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III
Labor rejected KSend's proposal because the May 5, 2005, submission did not
include the overhead transparencies. KSend admitted in its complaint that it did not
include the overhead transparencies in its May 5, 2005, proposal or otherwise submit
the transparencies before the bid proposal deadline. See App. at 7 ("Plaintiff does not
dispute the fact that it failed to include . . . overhead transparencies with its proposal . . .
[or] that it sent . . . [the] overhead transparencies to [Labor] after the closing date of
proposal submission."). Nonetheless, before the Court of Federal Claims, KSend
attempted to demonstrate that it had submitted the transparencies by producing
shipping receipts indicating the weight of its May 5 packages and comparing those
weights to a recreation of the May 5 package. However, it is impossible to tell from the
weight of a package what documents are included therein; further, KSend admitted that
it included documents in its recreation of the May 5 package that were not in the original
May 5 package. In addition, KSend repeatedly admitted that it did not include the
overhead transparencies in its May 5, 2005, proposal. Thus, the court correctly
concluded that KSend did not include the overhead transparencies in its May 5, 2005,
proposal.
KSend also argues that the solicitation was unclear with regard to whether
overhead transparencies were required to be submitted with the proposal. However,
the solicitation clearly stated, in several places, that each offeror was to submit
overhead transparencies and that these transparencies were to be included with the
offeror's proposal. Further, the solicitation explicitly stated that "[f]ailure to submit the
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overhead transparencies and paper copies by the date established for receipt of offers
will cause the offer to be rejected as nonresponsive."
KSend additionally argues that it requested further clarification from Labor
regarding overhead transparencies and that Labor failed to adequately respond.
However, KSend did not ask whether overhead transparencies were required to be
included with the proposal. Rather, KSend asked whether offerors were required to use
both oral presentation media, the flip chart and the overhead transparencies, or whether
simply using the flip chart was sufficient. Further, after KSend and other prospective
offerors requested clarification of the solicitation, Labor filed Amendment 1, which
clarified that "[o]fferors are to submit seven (7) paper copies and one (1) original set of
the overhead transparencies." Thus, to the extent that any clarification of the solicitation
was necessary, Labor provided the requisite clarification.
Finally, KSend argues that the Court of Federal Claims should have permitted
supplementation of the record with all of the requests for clarifications submitted by
other offerors, which it claims would establish that the solicitation was unclear.
However, as noted above, the solicitation was not ambiguous.
We have considered KSend's additional arguments and we consider them
unavailing. Thus, because the solicitation clearly required that offerors submit overhead
transparencies with their proposals, and because KSend did not do so, Labor did not
act arbitrarily or capriciously in rejecting KSend's proposal. As such, we affirm.
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