Esimplicity, Inc. v. United States

United States Court of Appeals
for the Federal Circuit
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ESIMPLICITY, INC.,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellant
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2023-1216
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Appeal from the United States Court of Federal Claims
in No. 1:22-cv-00543-SSS, Judge Stephen S. Schwartz.
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Decided: December 16, 2024
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ERIC VALLE, PilieroMazza PLLC, Washington, DC,
argued for plaintiff-appellee. Also represented by ISAIAS
(CY) ALBA, IV, PATRICK TRENT ROTHWELL; KATHERINE
BAUER BURROWS, Annapolis, MD.
JANA MOSES, Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Washington, DC, argued for defendant-appellant. Also
represented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY,
DOUGLAS K. MICKLE.
______________________
Before DYK, CHEN, and CUNNINGHAM, Circuit Judges.
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ESIMPLICITY, INC. v. US 2
CHEN, Circuit Judge.
The government appeals the United States Court of
Federal Claims (Claims Court) decision concluding that the
United States Department of the Navy (Navy) erred by
deeming untimely—and therefore not considering—a
proposal that eSimplicity, Inc. (eSimplicity) submitted in
response to a solicitation. See eSimplicity, Inc. v. United
States, 162 Fed. Cl. 372 (2022) (Decision). For the following
reasons, we dismiss this appeal.
I.
The Navy issued Solicitation No. N0018922RZ011
(Solicitation I) requesting technical support for the Navy’s
electromagnetic spectrum resources. Solicitation I
required offerors to submit their proposals as email
attachments by 5:00 PM EST on April 25, 2022.
Solicitation I incorporated by reference Federal
Acquisition Regulation (FAR) 52.212-1, which provides in
relevant part that a late-submitted offer “will not be
considered unless it is received before award is made, the
Contracting Officer determines that accepting the late offer
would not unduly delay the acquisition[,] and” the offer
meets one of three exceptions. FAR 52.212-1(f)(2)(i). One
of those exceptions is the so-called “government control
exception,” under which an untimely offer can be
considered if “[t]here is acceptable evidence to establish
that it was received at the Government installation
designated for receipt of offers and was under the
Government’s control prior to the time set for receipt of
offers.” FAR 52.212-1(f)(2)(i)(B); see Decision, 162 Fed. Cl.
at 377.
The Navy’s Contracting Officer received six timely
proposals and an additional timely email from one of the
offeror’s subcontractors. eSimplicity’s proposal was not one
of those submissions. Although eSimplicity emailed its
proposal approximately an hour and a half before the
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ESIMPLICITY, INC. v. US 3
deadline, the Contracting Officer never received
eSimplicity’s proposal. A subsequent investigation
revealed that eSimplicity’s proposal had been received by a
Defense Information Systems Agency server and queued
for delivery, but the proposal was “bounced back by the
destination server because it exceeded the maximum file
size.” Decision, 162 Fed. Cl. at 377 (quoting J.A. 201). The
Navy then sent to eSimplicity a letter explaining that the
Navy would not consider eSimplicity’s untimely proposal.
eSimplicity filed a pre-award bid protest with the
Claims Court, which ruled in favor of eSimplicity. The
Claims Court concluded that file size was an unstated
evaluation criterion and that the government control
exception can apply to electronically submitted proposals,
but it did “not resolve whether [the] elements [of the
government control exception] [we]re met.” Decision, 162
Fed. Cl. at 386. The Claims Court remanded the case for
60 days for the Navy to “reconsider its decision that
eSimplicity’s proposal was untimely.” Id. at 387. It also
noted that the “Navy may, in the alternative, cancel the
Solicitation, revise the Solicitation to include a file size
limit and new proposal deadlines, or take other action
consistent with” the Claims Court’s opinion. Id. at 388.
On November 22, 2022, the Navy issued an amended
solicitation (Solicitation II), reopening the competition and
seeking receipt of initial proposals by 5:00 PM EST on
December 6, 2022. eSimplicity submitted a proposal in
response to Solicitation II, and the Navy awarded the
contract to eSimplicity on June 29, 2023.
II.
The government appeals the Claims Court’s rulings
that file size was an unstated evaluation criterion in
Solicitation I and that the government control exception
can apply to eSimplicity’s proposal submitted for
Solicitation I. But first we must determine whether we
may reach the merits of this appeal because eSimplicity
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ESIMPLICITY, INC. v. US 4
contends that this appeal is moot. The government
disagrees that the appeal is moot and argues in the
alternative that the appeal meets the “capable of repetition
yet evading review” exception to mootness.
“[I]t is axiomatic that a federal court may not address
‘the merits of a legal question not posed in an Article III
case or controversy,’ and that ‘a case must exist at all the
stages of appellate review.’” Aqua Marine Supply v. AIM
Machining, Inc., 247 F.3d 1216, 1219 (Fed. Cir. 2001)
(quoting U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,
513 U.S. 18, 21 (1994)). This case or controversy
requirement “underpins both our standing and our
mootness jurisprudence.” Friends of the Earth, Inc. v.
Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180 (2000).
Mootness “addresses whether an intervening
circumstance has deprived the plaintiff of a personal stake
in the outcome of the lawsuit.” West Virginia v. EPA, 597
U.S. 697, 719 (2022) (cleaned up). “Simply stated, a case is
moot when the issues presented are no longer ‘live’ or the
parties lack a legally cognizable interest in the outcome.”
Powell v. McCormack, 395 U.S. 486, 496 (1969). A case
should generally be dismissed as moot “[w]hen, during the
course of litigation, it develops that the relief sought has
been granted or that the questions originally in controversy
between the parties are no longer at issue.” Chapman L.
Firm Co. v. Greenleaf Constr. Co., 490 F.3d 934, 939 (Fed.
Cir. 2007); see also Kingdomware Techs., Inc. v. United
States, 579 U.S. 162, 169 (2016) (noting a case is generally
moot when “no live controversy in the ordinary sense
remains because no court is now capable of granting the
relief petitioner seeks”).
This case is moot because there is no longer a live issue.
The issues presented on appeal are whether the Claims
Court erred in concluding that Solicitation I contained an
unstated file-size criterion or erred in concluding that the
government control exception can apply to eSimplicity’s
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ESIMPLICITY, INC. v. US 5
proposal submitted for Solicitation I. But the government
does not dispute that Solicitation I no longer exists, that
Solicitation I’s accompanying offers are now expired, or
that the Navy has awarded a contract to eSimplicity for
Solicitation II, which requested the same services as
Solicitation I. Thus, “the questions originally in
controversy between the parties are no longer at issue”
because those questions concern the now-expired
Solicitation I. Chapman L. Firm, 490 F.3d at 939.
Indeed, the Navy’s conduct caused those issues to no
longer be live. It is well settled that “a party’s voluntary
action can render moot a case or controversy.” Kaw Nation
v. Norton, 405 F.3d 1317, 1322 (Fed. Cir. 2005); see also City
News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278,
284 n.1 (2001) (dismissing an appeal as moot when “it is
[the petitioner], not its adversary, whose conduct saps the
controversy of vitality”); Aqua Marine, 247 F.3d at 1220
(“As a general matter, a case becomes moot if, through the
action of the party seeking review, the immediate
controversy is terminated.”). Here, following the Claims
Court’s decision, the Navy was given the choice either to
reconsider the timeliness of eSimplicity’s proposal for
Solicitation I or to issue a revised solicitation. If the Navy
chose the first option, then it could have continued to
litigate the timing of eSimplicity’s proposal, including by
appealing the Claims Court’s decision to this court. But
that is not what happened. Instead, the Navy chose to
issue and award a contract for Solicitation II, and it
allowed Solicitation I to expire.
Nonetheless, the government contends this case is not
moot because we can still provide effective judicial relief to
the Navy. Appellant’s Br. 16. The relief the government
seeks is “a reversal” so that the Navy may “exercise its
right to terminate eSimplicity’s contract upon the basis
that it should not have been awarded in the first place.”
Appellant’s Reply Br. 3. But the government is appealing
a decision concerning Solicitation I, and eSimplicity was
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ESIMPLICITY, INC. v. US 6
awarded a contract for Solicitation II. Thus, even if we
were to find that the Claims Court erred in its decision
regarding Solicitation I, our decision would not affect the
separate award of eSimplicity’s contract for Solicitation II.
That we cannot provide effective judicial relief to the
Navy is bolstered by the fact that the government wavers
on the effect a ruling by this court would have. The
government has phrased its requested relief as the “ability
to execute the available contract mechanisms,” Appellant’s
Br. 17, and the “option to ameliorate” awarding eSimplicity
a contract for Solicitation II, Appellant’s Reply Br. 4. At
oral argument, we pressed the government on whether the
Navy would cancel eSimplicity’s contract for Solicitation II
if the government prevailed in this appeal. See Oral Arg.
at 1:52–4:07 (available at https://oralarguments.cafc.us
courts.gov/default.aspx?fl=23-1216_09052024.mp3). The
government refused to state that the Navy would cancel
the contract—instead saying that “it very well may”
terminate the contract but “there are no guarantees.” Id.
at 3:24–4:07. This hedging by the government further
confirms our doubts that any decision by our court would
provide effective judicial relief to the parties; rather, it
makes it more likely that our decision would be an advisory
opinion answering the two questions the government poses
on appeal without resolving a case or controversy.
In the alternative, the government contends that we
should hear this appeal under the exception to the
mootness doctrine for a controversy that is capable of
repetition, yet evading review. “That exception applies
only in exceptional situations, where (1) the challenged
action is in its duration too short to be fully litigated prior
to cessation or expiration, and (2) there is a reasonable
expectation that the same complaining party will be
subject to the same action again.” Kingdomware, 579 U.S.
at 170 (cleaned up). We decline to invoke this exception
because the issues raised by the government are not
evading review.
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ESIMPLICITY, INC. v. US 7
As discussed, it was the Navy’s own choice to issue and
award a contract for Solicitation II that prevented review
of the Claims Court’s decision concerning Solicitation I.
The government counters that doing so was the “only
practical option.” Appellant’s Reply Br. 3. But this
argument concedes that reconsidering the timeliness of
eSimplicity’s proposal for Solicitation I was an option, just
not the Navy’s preferred option.
The government also could have appealed at least the
government-control-exception issue in other cases yet did
not do so. In Watterson Construction Co. v. United States,
98 Fed. Cl. 84, 95–97 (2011), and Insight Systems Corp. v.
United States, 110 Fed. Cl. 564, 581 (2013), the Claims
Court ruled that the government control exception can
apply to proposals submitted by e-mail. Though the
government argued the opposite position in those cases,
Watterson, 98 Fed. Cl. at 95; Insight Sys., 110 Fed. Cl. at
575, it did not appeal those decisions. That the government
could have appealed the government-control-exception
issue in those cases yet chose not to do so suggests that the
government merely wants to appeal this issue now—not
that the issue has evaded review.
We also find unpersuasive the government’s argument
for why these issues meet the evading review prong. The
government contends that the “evading review element is
met in this case because . . . the time constraints imposed
by the trial court’s 60-day remand and the agency’s need to
procure those engineering support services affected the
Government’s opportunity to obtain ‘complete’ appellate
resolution of the challenged agency action.” Appellant’s
Reply Br. 7. This argument suffers from two main flaws.
First, it is unsupported. The government has provided
no evidence that the time constraints affected the
government’s decision—let alone that choosing to
reconsider its decision would have taken longer than
choosing to amend the solicitation. We also note that if the
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ESIMPLICITY, INC. v. US 8
time constraints were as critical as the government claims,
then the government could have sought an expedited
appeal, which it did not seek here.
Second, this argument applies an incorrect standard.
Just about anything can “affect” a party’s opportunity to
appeal. But the proper standard requires that “the
challenged action is in its duration too short to be fully
litigated prior to cessation or expiration.” Kingdomware,
579 U.S. at 170 (cleaned up). Under that standard, even if
the government is correct that its opportunity to appeal
was affected, it does not follow that the appeal evaded
review.
III.
We have considered the parties’ remaining arguments
and find them unpersuasive. For the foregoing reasons, we
dismiss this appeal.1
DISMISSED
COSTS
No costs.
1 The parties do not address whether the underlying
decision should be vacated. See, e.g., Kaw Nation, 405 F.3d
at 1323–26 (describing when it is appropriate to vacate a
decision that has become moot on appeal). Accordingly, we
also do not address that issue.
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