[00:00:01] Speaker 02: And we will hear argument. [00:00:04] Speaker 02: I gather you all want to argue the first two cases together as a single argument. [00:00:10] Speaker 02: Is that understanding correct? [00:00:13] Speaker 06: That is my intention, Your Honor. [00:00:15] Speaker 02: OK. [00:00:15] Speaker 02: So two cases, both called Bannum Inc. [00:00:19] Speaker 02: against the United States, 145085 and 145086. [00:00:26] Speaker 02: Mr. Huffman. [00:00:33] Speaker 06: Good morning. [00:00:34] Speaker 06: May it please the court. [00:00:36] Speaker 06: My name is Justin Huffman of the Camardo law firm, and I am representing Bannon, Inc., the appellant in these two matters. [00:00:44] Speaker 06: The issue in these two appeals is virtually identical. [00:00:49] Speaker 06: Both protests were dismissed on standing grounds on the basis that Bannon improperly conditioned its bids based upon uncertainties relating to the [00:01:01] Speaker 06: corporation of PREA, the prison rape. [00:01:05] Speaker 03: It wasn't so much that improperly conditions its bid. [00:01:11] Speaker 03: The condition of its bid had an adverse effect on understanding. [00:01:14] Speaker 04: Yes, Your Honor. [00:01:15] Speaker 03: I mean, there's nothing wrong in what they did, right? [00:01:17] Speaker 04: Yes, Your Honor. [00:01:18] Speaker 02: And can I just be clear? [00:01:21] Speaker 02: You have not disputed in this litigation that your proposal was in fact [00:01:30] Speaker 02: conditioned, that is to say, you do not, you never told the CFC, and I don't think you have told us, that there's been a misunderstanding about what your bid was. [00:01:44] Speaker 02: And in fact, this was a bid that, if accepted, would have committed you for the fixed price to do everything necessary to comply with PREA. [00:01:58] Speaker 06: Yes, you're right. [00:01:59] Speaker 06: That's exactly what you just said is exactly correct. [00:02:04] Speaker 06: Had BANNUM bid been accepted, it would have been bound by its bid. [00:02:09] Speaker 02: Oh, OK. [00:02:10] Speaker 02: I realize I think I maybe built too many conditions. [00:02:13] Speaker 02: And I thought that it was agreed below that your bid did not offer a fixed price that included PREA compliance. [00:02:25] Speaker 02: But in fact, your bid [00:02:27] Speaker 02: said, here's our price. [00:02:30] Speaker 02: PRE compliance is going to be extra. [00:02:34] Speaker 02: Did you ever tell the CSC that your bid, in fact, was a fixed price, including PREA compliance? [00:02:44] Speaker 06: The statement made in Bannon's letter did state that the PREA may or may not cost extra. [00:02:56] Speaker 06: they could not determine that because at the time there was no discussion as to what the PREA would entail because Bannum had repeatedly raised various concerns throughout the course of the bidding or throughout the course of the procurement. [00:03:20] Speaker 06: And in the 5086 matter, the Florence matter, I believe it was, [00:03:27] Speaker 06: BOP had even come back and said that we will provide you more information when it becomes available. [00:03:33] Speaker 02: Here's why, at least in my current way of thinking, this seems really quite critical. [00:03:39] Speaker 02: Put aside your challenge to the term of the solicitation. [00:03:44] Speaker 02: You say, PREA compliance duties should not have been included because we don't know what they were, et cetera. [00:03:56] Speaker 02: Put aside that, you also have, and let's just assume, and we'll get back to this, that you've waived that challenge. [00:04:04] Speaker 02: So we now have one more challenge, which is taking the PREA compliance included term of the solicitation as part of the solicitation. [00:04:14] Speaker 02: Nevertheless, there was a defective evaluation of the bids. [00:04:20] Speaker 02: And on that question, the CFC said, the bid you submitted [00:04:25] Speaker 02: was not fixed price, it did not promise to eat all PREA compliance costs without additional money. [00:04:36] Speaker 02: And so unless you told the CFC to the contrary, we actually would have eaten all those costs, then it seems to me there's a real question whether you're just non-responsive. [00:04:50] Speaker 02: Yes. [00:04:51] Speaker 06: Yes, your honor. [00:04:52] Speaker 06: I believe we did. [00:04:53] Speaker 06: Banham did make that exact argument below. [00:04:55] Speaker 06: They did argue that had it been accepted, it would have been bound by it. [00:05:00] Speaker 02: Do you happen to have a record citation for that? [00:05:02] Speaker 02: Because I did not see that. [00:05:05] Speaker 06: I do not have that handy. [00:05:07] Speaker 06: I can get that for you. [00:05:13] Speaker 06: OK. [00:05:15] Speaker 06: Banham first contends that [00:05:17] Speaker 06: It did not lack standing because it suffered a non-trivial competitive injury. [00:05:23] Speaker 06: Bannon contends that a protesting party has the standing to challenge an award when a prospective bidder challenges the terms of the solicitation prior to submitting a bid. [00:05:34] Speaker 02: Do you agree that one needs to divide your challenges into two, namely the challenge to the inclusion of the [00:05:46] Speaker 02: P.R.E. [00:05:47] Speaker 02: compliance requirement in the solicitation and then separately you've got some other challenges about the allegedly defective evaluation of the two competitors in each of the South Carolina and the Mississippi situations. [00:06:03] Speaker 06: Well, at this point, Your Honor, I don't believe that the Court of Federal Claims addressed, got to that secondary, that second point. [00:06:16] Speaker 02: Right, but in terms of our analysis, your principal complaint is over the solicitation. [00:06:22] Speaker 02: Why is it that our waiver cases do not bar that claim? [00:06:28] Speaker 02: On the ground that while you, in a very loose and informal sense, complained about this term, objected to it, used the word protest in one of the cases, didn't use the word protest in another, you didn't diligently pursue [00:06:45] Speaker 02: a formal response and resolution from the Bureau of Prisons. [00:06:49] Speaker 02: Why shouldn't that be how we interpret our blue and gold waiver standard for an adequate pre-award objection? [00:07:00] Speaker 06: Well, Your Honor, I believe that the blue and gold and the Komen case pretty clearly address that issue, saying that a [00:07:14] Speaker 06: that a challenge to the solicitation does not necessarily have to take the form of a formal bid. [00:07:24] Speaker 03: Where does Coment say that? [00:07:26] Speaker 03: Where in Coment do you derive that comfort? [00:07:32] Speaker 04: What was that, your Honor? [00:07:33] Speaker 03: Where in Coment do you find the comfort that you are claiming now, which is that the [00:07:41] Speaker 03: The protest that is well short of a formal protest relieves you of the blue and gold problem. [00:07:50] Speaker 06: I do not recall the page citation. [00:07:52] Speaker 06: I can, again, I can get that... Well, it's pretty crucial, isn't it? [00:07:57] Speaker 03: I believe we did cite to that portion in our briefs and in addition... You have a disagreement for federal claims from the judges down there about how much of a protest is required. [00:08:09] Speaker 03: in order to avoid blue and gold waiver. [00:08:14] Speaker 03: I mean, you have Judge Costa Williams thinking that your protest was adequate. [00:08:22] Speaker 03: And on the other hand, Judge Firestone seems to think that a formal protest is required. [00:08:31] Speaker 03: I don't mean to be harsh, but I would defy you to find anything in our precedent that has answered the question. [00:08:38] Speaker 03: of what kind of protest is required in order to avoid waiver under blue and gold. [00:08:46] Speaker 03: The government argues that a bright line test is appropriate. [00:08:52] Speaker 03: The point being that in cases like this, if there were a requirement that a bright line actual protest pursuant to the terms of the contract, which here clearly laid out what your protest mechanism was, [00:09:08] Speaker 03: that unless you proceed along that course, there should be waiver. [00:09:12] Speaker 03: And the policy reason is that we will avoid cases like this. [00:09:16] Speaker 03: In the future, if cases like this come along where it's uncertain whether you put in a real strong complying bid or not, those cases won't come up. [00:09:28] Speaker 03: Because you will have made your protest in advance, and you will have gotten an answer to your question. [00:09:36] Speaker 03: What's your strongest argument against a bright line rule in the blue and gold setting? [00:09:45] Speaker 06: Well, Your Honor, I believe that in a case especially such as this one where Bannon repeatedly challenged the terms of the solicitation and repeatedly requested guidance from the BOP, and no such guidance was ever forthcoming. [00:10:01] Speaker 03: None was required. [00:10:04] Speaker 03: Right. [00:10:05] Speaker 03: The law doesn't require any? [00:10:07] Speaker 06: I don't believe so, Your Honor. [00:10:09] Speaker 03: Where do you find a source of authority that required the agency or the Department of Justice here to respond to you not having made a formal request? [00:10:21] Speaker 06: I don't believe there is any formal such procedure. [00:10:25] Speaker 06: However, I do believe that in a negotiated procurement such as this one, [00:10:34] Speaker 06: the BOP, it would be, for one, in the best interest of the BOP to communicate with potential bidders. [00:10:46] Speaker 06: In this case, BANUM went all the way through the entire bidding process and never once received any notice whatsoever that its bid was insufficient in any way. [00:11:03] Speaker 01: In the solicitation, in the term, isn't there a provision in there that describes what a would-be bidder should do if it wants to protest the terms of the solicitation? [00:11:15] Speaker 06: Yes, Your Honor. [00:11:18] Speaker 06: There is a formal bid protest provision in the solicitation. [00:11:22] Speaker 01: Right. [00:11:22] Speaker 01: And then the FAR also indicates that if a would-be bidder has some problems with the terms of the solicitation, they should first try to work it out [00:11:32] Speaker 01: contracting officer, contracting specialist, and that appears to be what you were trying to do with those couple of letters. [00:11:43] Speaker 01: But at the same time, there was never a protest submitted to that Washington, D.C. [00:11:49] Speaker 01: address. [00:11:51] Speaker 06: No, Your Honor, Bannon did not submit a formal protest, but it did, as you indicated, [00:11:58] Speaker 06: multiple times asked for guidance. [00:12:00] Speaker 03: But if they wanted, if you made a formal protest, you would be entitled to an answer, I believe, within 20 days. [00:12:06] Speaker 03: Isn't that what the regulations provide for? [00:12:09] Speaker 01: Yes, Your Honor. [00:12:11] Speaker 01: And it also provides that you'll hear from someone from the Justice Department within five days to schedule a conference. [00:12:20] Speaker 06: Yes, Your Honor. [00:12:24] Speaker 06: Again, Bannon was never aware that [00:12:29] Speaker 03: it's been was improper well as you know not so much because man has been in this position before uh... the blue and gold case uh... which you know uh... and in the blue and gold case uh... the the ruling of the court federal claims which was the same as it was in our court was based upon one of your cases ban case earlier yes you're right there had been a yes this is [00:12:57] Speaker 03: a question about what the government wanted from a contract and there had been a failure of your client to speak up? [00:13:06] Speaker 06: Yes, Your Honor. [00:13:06] Speaker 06: That was a disness was the protester in that case. [00:13:10] Speaker 06: And I believe that case is distinguishable because in that case, there was a clear, unambiguous [00:13:20] Speaker 06: contract term while here Bannon contends that it was a vague and ambiguous contract term. [00:13:31] Speaker 02: Can I ask, you have as your principal complaint the challenge to the inclusion of the PREA obligations. [00:13:43] Speaker 02: Assume for purposes of this question that that complaint is waived. [00:13:50] Speaker 02: Do you still press your other challenges to the ultimate award to the rival in the two cases, or do you give those up? [00:14:02] Speaker 02: No, your honor, because for- I'm sorry, a no is not a good answer to an or question. [00:14:09] Speaker 06: Oh, sorry. [00:14:11] Speaker 06: I believe that Bannon would not be waiving its rights on its other arguments, because it contends that it was the [00:14:21] Speaker 06: It was the higher bidder in one of the two procurements at negligible price difference. [00:14:27] Speaker 03: Have you preserved that complaint in this appeal? [00:14:32] Speaker 03: I didn't see anything in the briefs about that. [00:14:38] Speaker 06: I believe so because I don't believe the Court of Federal Claims ever reached the merits of that issue. [00:14:45] Speaker 01: Right. [00:14:46] Speaker 01: When the Justice Department offered as an alternative grounds for affirming the judgment below this notion of waiver, I understand you taking the position that, well, the Justice Department needed to file a cross appeal in order to preserve that argument. [00:15:03] Speaker 01: But assuming we disagree with you on that, I didn't see anything, at least in the briefing, to suggest that, nevertheless, if we were to consider and agree with the [00:15:15] Speaker 01: the Justice Department's argument that you waived the right to challenge the solicitation term. [00:15:20] Speaker 01: Nevertheless, you would still have recourse on the other side. [00:15:26] Speaker 01: I didn't see anything in the briefs that said that. [00:15:28] Speaker 01: Am I wrong? [00:15:30] Speaker 06: I believe it was very briefly mentioned, because again, it was our position that the federal claims never reached that issue. [00:15:43] Speaker 06: And I believe my time is up. [00:15:45] Speaker 06: Thank you. [00:15:46] Speaker 02: And we will restore your three minutes of rebuttal. [00:15:57] Speaker 00: May I please support? [00:15:58] Speaker 00: Thank you. [00:15:59] Speaker 00: The court should affirm the trial court's ruling that Bannon lacks standing to bring in the big protest. [00:16:05] Speaker 00: The trial court correctly concluded that Bannon did not have a substantial chance of contract arrears because it did not submit a firm fixed price proposal. [00:16:15] Speaker 00: in response to the solicitation. [00:16:17] Speaker 00: The solicitation expressly requires offerors to provide a firm six price contract proposal. [00:16:23] Speaker 02: I'm not quite sure I understand how that ground would apply to an objection to the terms of the solicitation. [00:16:35] Speaker 02: I see quite readily the waiver argument for the challenge to the terms of the solicitation. [00:16:41] Speaker 02: But then that leaves the evaluation of the competitors as a question of standing, which seems to me to turn on whether their bid was or was not one that, if accepted, would have bound them to comply with the PREA without any more money than the dollar amount in the contract. [00:17:04] Speaker 00: Your Honor, the issue of the PREA is not relevant to the issue of standing. [00:17:10] Speaker 00: the issue of standing turns on whether the proposal that Banham provided reflected a firm fixed-price contract. [00:17:18] Speaker 00: As this court recognized in U.S. [00:17:22] Speaker 00: VIBM, a non-responsive proposal is the epitome of a scenario in which a offeror or a protester does not face direct... But what happened here on the back? [00:17:35] Speaker 01: Did the contracting officer actually consider Banham's [00:17:39] Speaker 01: I understand you have a position that it's a noncompliant offer. [00:17:44] Speaker 01: BANUM is telling us that if the offer had been accepted, they would have been bound by their own bid. [00:17:51] Speaker 01: And it appears, at least to me, but you can correct me if I'm wrong, that the contracting officer in both cases very much did consider those bids from BANUM and didn't make any indication of removing BANUM from the process due to some kind of noncompliant bid. [00:18:09] Speaker 01: Am I wrong? [00:18:11] Speaker 00: Your Honor, we disagree with Your Honor. [00:18:15] Speaker 00: The issue of jurisdiction is a legal issue. [00:18:19] Speaker 01: I'm just trying to understand what actually happened. [00:18:21] Speaker 00: Sure, Your Honor. [00:18:22] Speaker 01: Am I wrong about what actually happened? [00:18:24] Speaker 00: Well, the idea that the BOP did not make a determination during the course of this procurement about [00:18:34] Speaker 00: the ban on proposal being non-compliant. [00:18:37] Speaker 00: Your Honor is correct about that. [00:18:38] Speaker 00: But what the agency decision-making process entailed or involved is not relevant to this court's legal determination about whether or not the proposal was compliant, whether it met the FAR requirement for a firm fixed-price contract. [00:18:54] Speaker 00: Remember, Your Honor? [00:18:54] Speaker 02: What was in the trial court, in the papers on this, what were the two parties' positions [00:19:02] Speaker 02: about whether their last offer, their proposal, their bid, would have committed them to complying with PREA without any more money than the dollar amount in their bid. [00:19:15] Speaker 00: Governor, I could point, Your Honor, to the record where BANUM indicates that its pricing was conditioned on its coming up with cost information. [00:19:25] Speaker 03: Well, we know what their submission was when we were talking about their protest. [00:19:32] Speaker 02: In the litigation in the CFC, what did they say? [00:19:34] Speaker 02: Some of it is sealed, and I haven't been able to get access to it. [00:19:38] Speaker 02: I've looked at, in one of the cases, their preliminary injunction motion or their opposition to preliminary injunction. [00:19:45] Speaker 02: I don't remember. [00:19:46] Speaker 02: And I don't see this point in there. [00:19:48] Speaker 02: That is, I asked Mr. Huffman, was his position in the CFC [00:19:56] Speaker 02: that they actually did submit a firm fixed price offer. [00:20:00] Speaker 02: And it's just a misunderstanding to say that they didn't, or was his position in the CFC. [00:20:09] Speaker 02: No, our bid really was conditional. [00:20:14] Speaker 02: We expected more money than the number in our bid if we had to comply with PREA. [00:20:20] Speaker 02: And what did they say? [00:20:23] Speaker 00: It was undisputed in the trial court that they did not provide a firm fixed price proposal. [00:20:30] Speaker 00: It was undisputed, Your Honor. [00:20:34] Speaker 02: I think he directly answered my question saying, no, his position in the trial court was that that was a firm fixed price, because if it had been accepted, they would have been stuck with that dollar amount and all the PRE obligations. [00:20:50] Speaker 00: That was not their position in the trial court. [00:20:52] Speaker 00: their position in the trial court, and it's reflected in the record, is that we're giving you pricing, but we have not factored in the cost information because we cannot. [00:21:00] Speaker 00: And I can point, Your Honor, to a document in the record. [00:21:03] Speaker 00: This is going to be in the 5085 record, which falls at JA 11109. [00:21:11] Speaker 00: and this is the famous explanatory footnote one. [00:21:15] Speaker 00: And that position that they've taken, footnote one, is not any different from what they took and the position they took in the trial court, which was we could not, we Banham, their position in the trial court was we could not provide that pricing that included the express requirements of amendment five in this particular. [00:21:34] Speaker 01: Do you have something in the record you can point us to that says, that indicates that Banham's position in front of [00:21:41] Speaker 01: Judge Koster Williams or Judge Firestone very clearly stated that the offer that they did present and that was actually evaluated was not actually an offer that anyone could be bound by. [00:21:54] Speaker 00: Your Honor, I believe it's in their briefing before the trial court. [00:21:59] Speaker 01: Do you have the record page number? [00:22:03] Speaker 00: The record page number in which, I mean, I'm pointing to the record page number because 11109. [00:22:09] Speaker 00: Right, we know about the letter. [00:22:10] Speaker 00: Right. [00:22:11] Speaker 01: Now we're on to the stage of the litigation of the Court of Federal Claims in both cases. [00:22:16] Speaker 01: And that's where I'm interested in knowing. [00:22:19] Speaker 00: Right, we do, they do make the position, take the position in the trial court conceding that they did not provide firm fixed pricing. [00:22:29] Speaker 01: Do you have a record site for that? [00:22:32] Speaker 00: In terms of the record, the briefing, I don't have a site in front of me, but it is in the trial court briefing. [00:22:42] Speaker 01: Maybe one of your friends has it. [00:22:44] Speaker 00: Yes, Your Honor. [00:22:45] Speaker 03: Sealed? [00:22:47] Speaker 03: A lot of the materials are sealed. [00:22:49] Speaker 00: Well, no, it should be in the actual brief. [00:22:52] Speaker 00: I mean, their position in the briefing was that they did not provide. [00:22:56] Speaker 00: Recall, Your Honor, their basic argument. [00:22:58] Speaker 00: Their basic argument is that they could not provide complete pricing that incorporated the PREA requirement because of the cost entails, because they were unaware of the cost that PREA would entail. [00:23:13] Speaker 03: Well, there's a difference between saying, I'm unable to make any pricing because of this [00:23:18] Speaker 03: On the one hand, on the other hand, it doesn't matter, please take my offer as firm and fixed. [00:23:25] Speaker 03: That's what the competitor said will eat the cost, if there are any. [00:23:29] Speaker 00: Yes. [00:23:29] Speaker 00: Dismiss may have said that, and AWS may have said that in 5086, but Bannon never said that. [00:23:35] Speaker 00: Your Honor, and if I'll point to the language in 11109, it says, and this is no different from the position it took in the trial court, it indicates in footnote one, [00:23:43] Speaker 00: It is not remotely possible to begin to attempt to formulate a cost or price proposal for the addition of prayer. [00:23:49] Speaker 00: There was no disconnect in their briefing before either Judge Costa Williams or Firestone related to this position. [00:23:56] Speaker 00: They simply could not reach the extra issue of the prayer requirement. [00:24:01] Speaker 02: Can I just come back to the doctrinal question, which you wanted to talk about early. [00:24:08] Speaker 02: What case of ours holds on facts [00:24:13] Speaker 02: and not just states more broadly than the facts may have warranted, but actually holds that a nonconforming, nonresponsive bid by an actual bidder disqualifies that bidder from a post-award protest of the terms of the solicitation. [00:24:37] Speaker 00: I would say you ask the IBM. [00:24:41] Speaker 00: And in its holding, this court indicated a non-responsive bidder is the epitome of one who lacks a direct economic interest and essentially standing. [00:24:50] Speaker 02: Was that challenging the terms of the solicitation or challenging the evaluation? [00:24:55] Speaker 00: Well, it went to that case involved a non-responsive bidder, Your Honor. [00:24:59] Speaker 00: And it's a non-compliant. [00:25:01] Speaker 02: I think I haven't made my question clear enough. [00:25:05] Speaker 02: In a post-award protest, can complain [00:25:10] Speaker 02: Two different things. [00:25:12] Speaker 02: The terms of the solicitation were illegal, bad, in some way defective. [00:25:18] Speaker 02: The other is we're not complaining about the terms of the solicitation. [00:25:21] Speaker 02: We're complaining about how the agency evaluated the bidders. [00:25:25] Speaker 02: Now, was IBM a case in which the challenge was to the terms of the solicitation? [00:25:32] Speaker 00: I'm trying to recall your honor. [00:25:35] Speaker 02: Or is there any other case? [00:25:37] Speaker 02: Because it seems to me this world is divided. [00:25:40] Speaker 02: And it truly depends on the challenge, on the nature of the challenge. [00:25:45] Speaker 02: And again, the waiver issue is all about challenging the terms of the solicitation. [00:25:56] Speaker 02: But if that's true and if you're right about waiver, that still leaves the question whether the challenge to the evaluation of the two, in each case, the two bidders [00:26:09] Speaker 02: was actionable. [00:26:12] Speaker 00: Your honor, if I may, in putting aside the waiver issue, the standing issue stands on whether or not the proposal was responsive, was compliant with the requirements of the solicitation. [00:26:27] Speaker 00: That requirement, whether or not a firm fixed price was provided, is governed by the FAR. [00:26:33] Speaker 00: The FAR, as a legal matter, defines what a firm fixed price contract is. [00:26:38] Speaker 00: Under part 16.202-1, the FAR defines a firm fixed price contract as one that doesn't take into account the contractor's cost experience. [00:26:49] Speaker 00: here, what Bannon is trying to do is upending that requirement by saying, I'll give you a price, but it's not a full price because we don't know what our cost experience is going to be here. [00:27:00] Speaker 03: Isn't your argument that the standing issue is the same in your view with regard to both the issues, both of the terms of the contract and the evaluation, namely, that because Bannon didn't submit a firm fixed offer, it can't be a competitor who could possibly have won the contract? [00:27:19] Speaker 03: Exactly, Your Honor. [00:27:20] Speaker 03: And therefore, there is no jurisdiction under a case law. [00:27:23] Speaker 00: Exactly, Your Honor. [00:27:25] Speaker 02: Yes. [00:27:25] Speaker 03: It's still the same. [00:27:25] Speaker 03: And isn't that at the bottom your argument? [00:27:27] Speaker 00: Yes. [00:27:27] Speaker 00: Yes. [00:27:28] Speaker 00: So the juncture. [00:27:29] Speaker 02: And my question is, have we ever so held when the challenge is to the terms of the solicitation? [00:27:36] Speaker 02: An actual bidder who submits a bid that violates the terms of the solicitation [00:27:43] Speaker 02: and then complains, saying, I can't submit a bid that is within the terms of the solicitation. [00:27:50] Speaker 02: And I shouldn't have to, because it's illegal what you demanded of me. [00:27:54] Speaker 02: Have we ever said, you can't bring that? [00:27:56] Speaker 00: I can't recall that there is precedent on that. [00:27:58] Speaker 00: I would imagine we would have cited it if we had found it, Your Honor. [00:28:02] Speaker 03: If you take out of the equation the argument that [00:28:09] Speaker 03: Banham failed to submit a compliant offer and therefore can't be considered to have even been there to play. [00:28:17] Speaker 03: If you take that aside, then you would concede, would you not, that Banham meets the substantial chance of winning the contract test? [00:28:32] Speaker 03: It does not meet the... Well, what do you mean if you take that aside? [00:28:35] Speaker 03: If you lay that issue aside? [00:28:38] Speaker 03: Bannum clearly had a chance to win the contract. [00:28:48] Speaker 03: What I'm trying to do is to isolate. [00:28:51] Speaker 03: I mean, your whole case hangs on, does it not, the decision by the Court of Federal Claims that this offer was noncompliant. [00:29:00] Speaker 03: And because it was noncompliant, Bannum is treated as though it never appeared. [00:29:07] Speaker 00: Yes, Your Honor. [00:29:09] Speaker 00: So we would, I mean, if it were compliant, then they would fail under the waiver doctrine because they did not bring a pre-award protest under the rules governing agency protests under the FAR and the justice acquisition regulations, as well as the express terms of this solicitation. [00:29:30] Speaker 02: But just as to the challenge to the solicitation, the waiver rule does not apply to [00:29:36] Speaker 02: the evaluation. [00:29:38] Speaker 00: Of course you are. [00:29:39] Speaker 00: How could it, right? [00:29:40] Speaker 00: Yeah, of course. [00:29:41] Speaker 02: It only applies to the... What is your position about whether in their briefing here, whether in their reply brief in response to your waiver argument or otherwise, they have preserved their challenge to the evaluation of the competitors as opposed to the inclusion of the PRE obligations in the solicitation? [00:30:04] Speaker 00: We don't believe they've preserved these issues, Your Honor. [00:30:06] Speaker 00: I mean, the issue that they isolate in both 5085 and 5086 is a standing issue. [00:30:12] Speaker 00: I mean, they may throw in random comments to the merits, but that is not the issue that they place before the court. [00:30:22] Speaker 03: Well, they challenge the merits below, right, in both cases? [00:30:27] Speaker 03: The trial court didn't reach those issues. [00:30:29] Speaker 03: So they set up exactly what happened. [00:30:32] Speaker 03: They came in and they said, well, we've got an argument on the terms of the contract. [00:30:36] Speaker 03: We've got an argument also on the evaluation. [00:30:40] Speaker 03: And the Court of Federal Plan has decided the entire standing issue on the terms of the evaluation, the terms of the contract, right? [00:30:49] Speaker 03: Yes, Your Honor. [00:30:50] Speaker 03: So why would it be inappropriate [00:30:55] Speaker 03: to say that the court of law claims as required limit the waiver doctrine to the terms of the solicitation as opposed to the evaluation? [00:31:07] Speaker 00: Well, the waiver doctrine goes to patent defects in the solicitation. [00:31:13] Speaker 00: And what Bannon, in its conceited issue, Bannon is raising a challenge to the term of the solicitation, the incorporation of prior. [00:31:24] Speaker 00: that is a patent defect, that it should have been brought pre-award. [00:31:29] Speaker 03: I think what we're talking about is, say, for purposes of argument that the court were to agree with you that there's a bright line real here, and they didn't make a sufficient protest in order to avoid the rule of blue and gold, namely that their challenge to the terms of the solicitation are out. [00:31:46] Speaker 03: They lose on that. [00:31:47] Speaker 03: But we have pending, hanging here, an argument that man would make say even so. [00:31:54] Speaker 03: Even if we can't upset the apple cart in our protest on that ground, we think that we should have won the contract. [00:32:05] Speaker 00: Yes, Your Honor. [00:32:05] Speaker 00: But again, the trial court did not reach those issues. [00:32:09] Speaker 00: It only reached the jurisdictional. [00:32:11] Speaker 00: The courts only reached the jurisdictional issue. [00:32:14] Speaker 00: So the idea that, I mean, what Your Honor is suggesting is that this court take up the merits? [00:32:22] Speaker 00: Is that what Your Honor is suggesting? [00:32:24] Speaker 03: Well, the merits haven't been addressed by the court below, right? [00:32:28] Speaker 03: Right, Your Honor. [00:32:31] Speaker 02: You'll remember the last little subsection of comment in talking about the compliance says basically same issue merits and standing. [00:32:39] Speaker 00: Right, but I mean, I guess we should define terms. [00:32:41] Speaker 00: When we talk about the merits, in 5085, they raised an additional issue about the 120 days, the compliance issue related to distances 120 days. [00:32:51] Speaker 00: And the merits issue in 5086 had to do with whether the contract awardee could comply with the requirements that sex offenders be housed in a particular way. [00:33:02] Speaker 00: So that's what I assumed Your Honor was addressing when you were addressing the merits issues. [00:33:07] Speaker 00: Those issues were not reached by the trial courts below because they made a jurisdictional ruling. [00:33:15] Speaker 00: So those are the, I'm sorry, perhaps we were talking about different issues. [00:33:19] Speaker 01: Right, so if we were to reverse the lower courts on the standing, but then at the same time say we agree with you on waiver of the challenge to the solicitation terms, then in each case there would still be a piece [00:33:36] Speaker 01: that would go back to the trial court? [00:33:39] Speaker 01: I guess that's what we're trying to find. [00:33:40] Speaker 00: Right. [00:33:41] Speaker 00: But those, again, I agree, as we discussed earlier, those issues were not preserved. [00:33:45] Speaker 00: The only issue that Bannum raised in these two appeals relates to the standing, as reflected in the appellate, its opening briefs, in both appeals in this court. [00:33:57] Speaker 02: I think maybe we should give Mr. Tomasek, Thomas, sorry. [00:34:06] Speaker 02: No chance. [00:34:13] Speaker 05: May it please the court, I represent Dismas Charities, Inc., the intervener in case number 14-5085. [00:34:19] Speaker 05: I have five points I would like to make. [00:34:25] Speaker 05: Number one, the RFP specifically required the offerors to provide firm fixed unit prices. [00:34:31] Speaker 02: Can you address this? [00:34:33] Speaker 02: question that we've been trying to nail down about what was said in the CFC litigation, particularly by Banham, about the nature of the FID that it submitted, whether it really was firm fixed price or wasn't, which I take it, and you can correct me if I'm wrong, to be equivalent to saying [00:35:01] Speaker 02: If that had been accepted, would they have been bound by the dollar number in that bid to do all the PREA compliance? [00:35:10] Speaker 05: I think the answer, Your Honor, is their proposal was equivocal and their arguments before the lower court were equivocal. [00:35:16] Speaker 05: However, Judge Williams, in the record at Joint Appendix 30016, states... I'll let the court get there. [00:35:26] Speaker 05: Which record? [00:35:28] Speaker 05: I'm sorry, the Joint Appendix in 14-5085, which is the only case with which I'm familiar. [00:35:37] Speaker 05: Okay. [00:35:39] Speaker 02: 3-0-0 what? [00:35:40] Speaker 05: 1-6, Your Honor. [00:35:41] Speaker 05: Okay, thank you. [00:35:44] Speaker 05: And Judge Williams in the third paragraph states, Bannum contends that its bid was not qualified [00:35:53] Speaker 05: as it submitted a specific prize that would have found Bannon had it been signed. [00:35:56] Speaker 02: And by not qualified there, they mean not conditioned as opposed to not meeting the qualifications. [00:36:04] Speaker 02: I believe that is a terrible word qualified on this point. [00:36:08] Speaker 05: And Judge Williams considered that argument. [00:36:11] Speaker 05: I think in fairness to Judge Williams, Bannon's argument was equivocal before the court as its proposal was equivocal. [00:36:18] Speaker 05: Look at the joint appendix, the same joint appendix. [00:36:22] Speaker 05: government council. [00:36:23] Speaker 03: What is equivocal about saying that it submitted a price that would have bound it? [00:36:28] Speaker 03: It had been selected. [00:36:29] Speaker 03: Isn't that saying that it [00:36:32] Speaker 03: It did not intend its bid to be somehow impaired by its earlier contentions that it was unable to know what the pre-cost would be. [00:36:41] Speaker 05: That's a fair comment, Your Honor. [00:36:42] Speaker 05: I was characterizing the arguments. [00:36:44] Speaker 03: But doesn't that answer what the presiding judge has been asking several times, which is what was BAM's position in front of that court and why we would have been bound? [00:36:52] Speaker 05: That's what I pointed out, but Judge Williams specifically took that point on in the text which follows. [00:36:59] Speaker 03: She went on, didn't she, to say in essence that it would have been against the law for the government to have accepted their bid. [00:37:05] Speaker 05: Yes. [00:37:06] Speaker 05: She concluded, number one, that it wasn't an appropriate argument because it was belied by the record. [00:37:12] Speaker 05: And it's belied by the record not once, not twice, but three times. [00:37:15] Speaker 05: In the joint appendix at 11109, in the joint appendix at 11152, [00:37:22] Speaker 05: in the joint appendix at 11116. [00:37:24] Speaker 05: There are three instances in the record where BANDM is taking issue with the RFP requirement that you submit a firm fixed price. [00:37:32] Speaker 02: Here's, I guess, part of what I'm concerned about that. [00:37:37] Speaker 02: This is all on summary judgment, right? [00:37:43] Speaker 02: And what we have in the agency record is [00:37:48] Speaker 02: their various statements and their proposals, which do tend to suggest that their bid was conditioned. [00:38:01] Speaker 02: On the other hand, there is this fact that the agency appeared to have treated it as meeting the solicitation requirements. [00:38:14] Speaker 02: How does that record not present a [00:38:17] Speaker 02: factual question as opposed to one that can be determined on summary judgment? [00:38:23] Speaker 05: I think to the extent it is a factual question, Judge Williams considered it and resolved it. [00:38:28] Speaker 05: On summary judgment? [00:38:30] Speaker 05: On motions for judgment on the administrative record. [00:38:32] Speaker 05: This was an expedited temporary restraining order preliminary injunction hearing. [00:38:37] Speaker 05: She was trying to get this case resolved before the turnover of the contract. [00:38:41] Speaker 05: And she considered it, and I would respectfully submit that this court should apply a clear error standard to that finding of fact. [00:38:48] Speaker 05: And there is absolutely no error in Judge Williams' decision that the proposal that Bannon submitted was non-responsive, non-compliant, and that deprived her of standing to consider the arguments on the merits, which I will note, if you turn to the very next page of the record which I cited, Judge Williams then goes on [00:39:11] Speaker 05: And I'm at the joint appendix at 30017. [00:39:15] Speaker 05: She goes on to state in the last sentence of the first full paragraph, the court deems it prudent to examine Bannum's protest grounds and assess their likelihood of success on the merit. [00:39:28] Speaker 05: And then in the next three pages, she proceeds to assess the likelihood of success on the merits because she's considering injunctive relief. [00:39:35] Speaker 05: And of course, that's one of the requirements. [00:39:37] Speaker 05: So Judge Williams, number one, was required to consider whether she had jurisdiction. [00:39:41] Speaker 05: And in doing so, she made findings of facts which we respectfully submit are perfectly appropriate and justified by the record and are not clear error. [00:39:49] Speaker 05: Nonetheless, she went on to consider the merits of Bannon's protest, which she concluded would not pass muster. [00:39:55] Speaker 05: And accordingly, she denied the protest and there's no error in that. [00:39:59] Speaker 05: I would submit on this point, and in response to one of the questions that Judge Clevenger raised, this case is very much akin to the facts presented in comment. [00:40:08] Speaker 05: What happened in Komet? [00:40:10] Speaker 02: I think I've got Komet, and you're almost three minutes over your time. [00:40:13] Speaker 02: So I think it's time to hear from Mr. Huffman on rebuttal. [00:40:19] Speaker 02: Very well. [00:40:19] Speaker 02: Thank you. [00:40:27] Speaker 02: Give him five minutes, please. [00:40:32] Speaker 06: To address a couple of questions that you had asked previously, whether or not there was any citation for blue and gold stating that just some sort of protest has to be submitted, that was not actually in blue and gold of COVID. [00:40:50] Speaker 06: It was in a court of federal claims case called DGR Associates v. United States. [00:40:56] Speaker 06: It was cited in our brief, and it says that [00:40:58] Speaker 06: All Blue and Gold says is that a party must have done something prior to the closing date to protest the solicitation error before raising the same objection. [00:41:08] Speaker 03: In TGR, there was a formal protest. [00:41:14] Speaker 06: Well, Your Honor, I believe DGR was intentionally general. [00:41:21] Speaker 03: In TGR, there was a formal Stop the Eyes and Cross the Tears protest. [00:41:24] Speaker 03: There was a protest. [00:41:26] Speaker 03: at the agency and not at the GAO, according to the book. [00:41:32] Speaker 06: That's right, Your Honor. [00:41:33] Speaker 06: I believe that Judge Williams determined that Bannon had not waived its rights in the protest. [00:41:38] Speaker 06: And I would direct your attention to the 5085 record at 30,019. [00:41:45] Speaker 02: Can I ask you a question about, if I could explore just a little bit about whether there was anything [00:41:56] Speaker 02: I'll use the term procedurally improper or premature or jumping the gun in making a factual finding. [00:42:06] Speaker 02: And the answer may be no, this is the way it's supposed to work. [00:42:08] Speaker 02: And I'd like you to explain that to me in deciding whether your bid, I think Judge Coster-Williams simply rejected your position. [00:42:23] Speaker 02: which she describes, which I've forgotten. [00:42:25] Speaker 02: So she says, you actually did say, no, no, we offered a fixed price, made a fixed price offer. [00:42:34] Speaker 02: And she says, no, you didn't. [00:42:36] Speaker 02: And then we have the words you used in the various offering letters. [00:42:40] Speaker 02: And then you have the fact that the agency treated it as in compliance with their solicitation request. [00:42:47] Speaker 02: Was it proper for her to make that finding in the procedural context? [00:42:51] Speaker 02: And can you explain why yes or no? [00:42:53] Speaker 06: Well, Your Honor, I don't believe it. [00:42:56] Speaker 06: Bannum obviously contends that. [00:42:58] Speaker 02: I know you disagree with the finding. [00:42:59] Speaker 02: My question was whether it was proper in the procedural context for her to make that finding. [00:43:09] Speaker 06: Can you repeat that question again, sir? [00:43:13] Speaker 02: If this were summary judgment, which I gather it was not, findings back would not be appropriate on [00:43:20] Speaker 02: a record that contains evidence pointing both ways. [00:43:25] Speaker 02: So what was the context here? [00:43:27] Speaker 02: A motion for judgment on the administrative record, a motion for preliminary injunction, et cetera. [00:43:34] Speaker 02: What is it that allowed the finding that your offer really, really, really was not a firm fixed price offer, even though the Bureau of Prisons seems to have treated that as sufficient? [00:43:50] Speaker 06: In 5085, Your Honor, it was a motion for a preliminary injunction. [00:43:57] Speaker 02: And that's all we have in front of us, is the denial of the motion for a preliminary injunction, or was the case closed? [00:44:03] Speaker 06: The case was subsequently closed on, I believe it was a cross motion to dismiss, if I recall correctly. [00:44:10] Speaker 02: And what about the other case? [00:44:12] Speaker 06: And the other case was a motion for judgment on the administrative record. [00:44:16] Speaker 02: OK, so let's take the motion for judgment on the administrative record. [00:44:20] Speaker 02: Did you agree that the case should be fully resolved on that motion, even if factual findings were necessary to resolve it? [00:44:32] Speaker 06: Well, Your Honor, in that case, I believe there was also a cross-motion to dismiss. [00:44:40] Speaker 06: So I believe Judge Firestone had made the decision to dismiss the case [00:44:50] Speaker 06: the standing issue before reaching that issue. [00:44:55] Speaker 06: That issue. [00:44:58] Speaker 03: I think there's an argument here that the issue that the judge was considering below was a jurisdictional issue. [00:45:05] Speaker 03: Because at the absent standing, there's no jurisdiction in the Court of Federal Claims to proceed. [00:45:10] Speaker 03: Isn't that correct? [00:45:11] Speaker 03: Yes. [00:45:12] Speaker 03: OK. [00:45:12] Speaker 03: So isn't a court entitled to make jurisdictional fact findings as a general proposition? [00:45:20] Speaker 06: In general, Your Honor, yes. [00:45:22] Speaker 06: In this. [00:45:25] Speaker 03: OK, let me ask the next question, which is, is there anything else that could have been added to the record on this question of the chief judge that presiding judges pursued, which is, was the bid qualified or not? [00:45:41] Speaker 03: What else would go into the mix to decide that case other than what was in front of the judge? [00:45:47] Speaker 06: I believe, Your Honor, that the record was substantially complete. [00:45:53] Speaker 03: So, assuming that you often have back-finding hearing, we have no reason to believe the judge would have reached a different conclusion. [00:46:02] Speaker 03: The question that's being debated here is whether or not there was a procedural defect in the proceedings below. [00:46:10] Speaker 03: That is to say that Judge Costa-Williams made a fact finding she shouldn't have made in that setting, meaning she could have made it in a different setting. [00:46:21] Speaker ?: Right? [00:46:22] Speaker 06: I believe so. [00:46:23] Speaker 03: And so if the record was complete, nothing else would be added. [00:46:28] Speaker 03: Isn't it harmless error that she made the fact-finding in this proceeding as opposed to in some other more proper proceeding? [00:46:36] Speaker 06: Oh, I apologize, Your Honor. [00:46:37] Speaker 06: I misunderstood the question. [00:46:40] Speaker 06: In 1585, because it was dismissed prior to [00:46:49] Speaker 06: in the course of the motion for preliminary injunction, I don't believe that we received a full, there was no full administrative record, so I don't believe, so I believe a full administrative record would have been helpful. [00:47:04] Speaker 03: I was asking you, what else? [00:47:06] Speaker 03: I mean, that she had the things that have been cited by your adversary, 11109, 11152, 11106, those are they all supposedly the conditions that have to do with PREA? [00:47:19] Speaker 03: So there's nothing else in the record that's adverse to your client on the issue. [00:47:25] Speaker 03: And what else would there besides plaintiffs respond to additional authority February 25, 2014, where you contended the bid was not qualified? [00:47:37] Speaker 06: Well, Your Honor, I believe that in the source selection decision, at least on the 5086 matter, I don't [00:47:46] Speaker 06: recall, I believe it was also in the 5085 source selection decision, there were clear indications that the BAMS bid was deemed acceptable. [00:48:02] Speaker 02: Okay, Mr. Huffman, I think we've had your rebuttal, and we will take it to case on the advisor. [00:48:09] Speaker 04: Thank you, Your Honor.