[00:00:00] Speaker 06: by Federal VUS. [00:00:31] Speaker 06: Mr. McKellips, please proceed. [00:00:39] Speaker 07: Thank you, Your Honor. [00:00:40] Speaker 07: May it please the court? [00:00:41] Speaker 07: The Court of Federal Claims judgment in this pre-award protest should be reversed because the trial court committed two legal errors. [00:00:48] Speaker 07: First, while the court properly found that the solicited RAC services were indeed commercial items, and second, that the new payment terms that they introduced in the following solicitations were inconsistent with customary commercial practice, [00:01:01] Speaker 07: The court aired as a matter of law in concluding that CMS did not violate FAFSA or FAR Part 12 by including those terms in the following solicitations without obtaining a waiver. [00:01:12] Speaker 03: Can we go to jurisdiction first? [00:01:13] Speaker 07: Absolutely, Judge Shen. [00:01:15] Speaker 02: Why didn't you file in the Court of Federal Claims while the solicitation period was still open? [00:01:22] Speaker 07: Well, we filed at the Government Accountability Office. [00:01:26] Speaker 07: There's no doubt that we filed a timely protest at the Government Accountability Office. [00:01:31] Speaker 07: We filed before the submission of proposals and we have continued to diligently pursue that line that our protest rights to try and vindicate. [00:01:44] Speaker 02: Was there something stopping you from filing at the Court of Federal Claims? [00:01:47] Speaker 07: You have an election of remedies and of course Congress in enacting the ADRA and conferring jurisdiction on the Court of Federal Claims made plain that those remedies can be sequentially. [00:02:00] Speaker 07: You can go to GAO and then you can go to the Court of Federal Claims afterwards on a bid protest and then ultimately up to the circuit and you can even start out before you go to GAO at the agency level by submitting an agency level protest. [00:02:13] Speaker 02: But by the time you've filed at the Court of Federal Claims [00:02:16] Speaker 02: the solicitation period was over, right? [00:02:20] Speaker 07: By the time we submitted it to the Court of Federal Planning. [00:02:23] Speaker 07: The complaint, yeah. [00:02:23] Speaker 07: Sure. [00:02:24] Speaker 07: By the time, yes, we had submitted it to the Government Accountability Office before the submission of proposals, which is exactly the process that is longstanding and prescribed. [00:02:34] Speaker 07: So we submitted our protest. [00:02:36] Speaker 07: There was, at the time, what we viewed, and I think all parties viewed as controlling law at the GAO, a case called Verizon Wireless, [00:02:43] Speaker 07: on the topic. [00:02:44] Speaker 07: We filed it at the government accountability office. [00:02:48] Speaker 07: When the government accountability office rejected our protest and overruled Verizon Wireless and said it wasn't going to follow Verizon Wireless anymore, we immediately, within a couple of days, were here at the Court of Federal Claims. [00:03:03] Speaker 05: Was there any kind of stay of anything as a result of the GAO filing? [00:03:09] Speaker 07: Yes, there is, Your Honor. [00:03:11] Speaker 07: Yes, under the Competition and Contracting Act, if you file a free award protest, as we did here, prior to the submission of proposals, then the government is prohibited from awarding the contract until the protest is resolved. [00:03:28] Speaker 05: But that doesn't somehow extend the closing of the bid submission period, just the actual issuance of the award. [00:03:40] Speaker 07: That's right. [00:03:40] Speaker 07: The agency sets the proposal submission deadline. [00:03:44] Speaker 07: And as long as you submit before that, then you are timely. [00:03:48] Speaker 07: And then once you come to the Court of Federal Claims, as we did here at that point in time, you have to either argue for injunctive relief and get an injunction, a preliminary injunction or a TRO, in order to continue to stay [00:03:59] Speaker 07: the award of any contract under the solicitation, or the government had to agree, or there is no enjoyment of the government's ability to award a contract. [00:04:11] Speaker 07: Here, what happened is we had the automatic stay at GAO. [00:04:14] Speaker 07: We filed at the Court of Federal Claims in response to our motion for temporary injunctive relief. [00:04:21] Speaker 07: The government agreed not to award a contract until the protests had been resolved. [00:04:26] Speaker 07: They extended that at the request of the trial court. [00:04:29] Speaker 07: And then once the trial court entered its decision here, we then moved for an injunction pending appeal, which the trial court granted. [00:04:37] Speaker 06: Why are you a prospective bidder to have standing at the time you filed in the CFC, at that moment, not some earlier period, not some later period, but the moment of your filing, you had to be a prospective bidder, right, under the law? [00:04:54] Speaker 07: Standing is... Am I correct about the law? [00:04:57] Speaker 06: Do you have to be a prospective bidder at the time of your CFC filing in order to file? [00:05:03] Speaker 07: You have to have standing. [00:05:05] Speaker 07: Yes, standing is assessed at the time of filing of the complaint. [00:05:10] Speaker 06: And have in our cases, for better or worse, adopted the standards that in order to be an interested party and therefore have standing, you have to be either an actual or a prospective bidder. [00:05:21] Speaker 07: Yes, the test is, are you an actual or prospective bidder who's direct economic interest? [00:05:26] Speaker 07: Right. [00:05:26] Speaker 02: So which one are you, an actual bidder or a prospective bidder? [00:05:29] Speaker 07: No, no, no. [00:05:30] Speaker 07: We very intentionally did not bid. [00:05:32] Speaker 07: You're a prospective bidder. [00:05:33] Speaker 07: That's right. [00:05:33] Speaker 07: We are a prospective offeror. [00:05:35] Speaker 07: There's no doubt that we were a prospective offeror for GAO under the GAO test. [00:05:41] Speaker 07: The government admits that we meet the GAO test. [00:05:43] Speaker 07: What the government argues is that this court somehow, in rec services, [00:05:48] Speaker 07: created a jurisdictional chasm between the GAO's Interpretation of Interest Party and the Court of Federal Claims. [00:05:55] Speaker 07: There is no jurisdictional chasm. [00:05:57] Speaker 07: The test is the same, or we have a perspective all forward with it. [00:06:01] Speaker 05: Is there argument that there's a different test, or that as the clock ran, the test is applied differently, so that when you went to the GAO, the bidding period was open. [00:06:14] Speaker 05: When you went to the CSC, it wasn't, because you wanted [00:06:17] Speaker 05: actually get an answer from the GAO, and you didn't want to essentially cut short that period, which I get, I mean, cut short the GAO process, which I gather would have happened if you went to the CSC first. [00:06:28] Speaker 07: Not first, but if you... If we had gone to the, under the GAO's rule, if we had decided to go to the Court of Federal Claims, the GAO would automatically dismiss its protests under its rules. [00:06:39] Speaker 07: To answer your, the first part of your question, they have said that there is a different test, that the test that applies is different [00:06:47] Speaker 07: as interpreted by, they claim, this court's case law versus the GAO test. [00:06:54] Speaker 07: Their position is based on what is a plain misreading of four cases, the rec service case, the MCI case, the digitalis case, and federal data. [00:07:04] Speaker 07: Those four cases. [00:07:06] Speaker 07: In each of those four cases, all of those cases are instances [00:07:10] Speaker 07: where a protester failed to diligently pursue its protest options. [00:07:15] Speaker 07: Every single one of them. [00:07:16] Speaker 07: And I can go through each of them if the court would like we address them in our briefing and we'd be happy to address them further. [00:07:24] Speaker 07: But in each of those four cases, the protester did not diligently pursue its rights. [00:07:31] Speaker 07: And we have the exact opposite situation here. [00:07:33] Speaker 06: Would you say that REX didn't diligently pursue its rights because there was a nearly three months delay after the agency rejected the protest and before it then filed its court of federal claims challenge? [00:07:46] Speaker 06: Is it the three months that reflects the non-diligent pursuit? [00:07:50] Speaker 07: It's the three months. [00:07:52] Speaker 07: There are two aspects to it. [00:07:53] Speaker 07: One, it's the three months coupled with the fact that they did not pursue once the agency denied their agency-level protest [00:08:00] Speaker 07: either a GAO protest or a Court of Federal Claims protest. [00:08:04] Speaker 07: They just let it go. [00:08:05] Speaker 07: And as the Court of Federal Claims... Wait, so they didn't let it go. [00:08:07] Speaker 06: They ultimately did file a Court of Federal Claims protest. [00:08:10] Speaker 06: They just did so three months later. [00:08:12] Speaker 07: Yes, Your Honor. [00:08:13] Speaker 07: Completely distinct and completely separate and on wholly separate grounds than the grounds in the initial protest. [00:08:20] Speaker 06: The initial protest... Well, I could see that issue going to waiver, right? [00:08:26] Speaker 06: you appealed in one form or brought an issue to one form, you can't much much later in time bring a whole different issue to a different form. [00:08:34] Speaker 06: I could see how that could go to a waiver theory like a blue and gold waiver theory. [00:08:38] Speaker 06: But what I'm having trouble with is how that would affect the definition of perspective bidder. [00:08:43] Speaker 06: I understand that that is a distinction between this case and Rex and you want to capitalize on every distinction. [00:08:47] Speaker 06: I'm not sure you need that distinction but I'm also not sure it's a relevant distinction that we ought to import into [00:08:53] Speaker 06: the law of what the definition of perspective bidder is. [00:08:57] Speaker 06: Because you're a perspective bidder, if you're somebody who would have bid, does it really matter which of the reasons you argued before the agency is the reason you didn't bid? [00:09:06] Speaker 06: And does it really matter whether you argue a slightly different reason before the court of federal claims? [00:09:11] Speaker 06: Does that really affect the notion that you are, at all times, nonetheless a perspective bidder? [00:09:18] Speaker 06: I see the time lag. [00:09:19] Speaker 07: But I don't know about that argument. [00:09:21] Speaker 07: Two answers to your question, Judge Moore. [00:09:23] Speaker 07: I don't think that it matters. [00:09:26] Speaker 07: The real question is, are you a qualified bidder who would be in a position to bid in the event that the remedy that you've requested in your pre-award protest is granted? [00:09:37] Speaker 07: And you look at the cases, you look at each of those cases, [00:09:41] Speaker 06: and they all are consistent with that test and ultimately... I hear you that they're consistent with that test but many of them have absolutely unequivocal language like federal data that says you are not [00:09:53] Speaker 06: a prospective bidder if you are simply someone who would have bid on a re-procurement if the agency part of the solicitation you didn't like were corrected. [00:10:04] Speaker 06: You cannot be considered a prospective bidder. [00:10:06] Speaker 06: So is that the definition you're seeking, or am I misunderstanding the definition you're seeking? [00:10:10] Speaker 06: Because I feel like I'm bound by those other cases. [00:10:15] Speaker 07: As the court wrote in Digitalis, and it was very specific, you can't analyze standing in a vacuum. [00:10:21] Speaker 07: And you can't analyze the test in a vacuum. [00:10:24] Speaker 07: and they are fact-bound considerations. [00:10:28] Speaker 07: And the test that was applied in each of those four cases made utter sense, made complete and wholesale sense in the context of those cases. [00:10:37] Speaker 06: OK, I'm a little scared because you didn't answer my question. [00:10:40] Speaker 06: I'm trying. [00:10:40] Speaker 06: I know. [00:10:41] Speaker 06: But my question is precise. [00:10:44] Speaker 06: Is your definition of prospective bidder broad enough to encompass someone who claims they would have bid if the solicitation [00:10:54] Speaker 06: resulted in a re-procurement to their liking. [00:10:57] Speaker 07: Our definition of a prospective offeror is a qualified bidder who is challenging the terms of a solicitation in a pre-award context. [00:11:06] Speaker 07: And if the court had the authority to and did grant the remedy requested, would be in a position to bid. [00:11:13] Speaker 07: That is consistent with the GAO test. [00:11:16] Speaker 07: That is wholly consistent with the WEEKS test, which is the pre-award test. [00:11:20] Speaker 07: The four cases that [00:11:21] Speaker 07: that we're off on a lark and it's a complete distraction. [00:11:25] Speaker 07: The four cases that the government relies on are not pre-awarded cases. [00:11:30] Speaker 07: Federal data gets a little bit confused because there was an award and then everything happened during negotiations over settlements. [00:11:37] Speaker 06: I think all these cases are somewhat confusing to be honest with you and I don't have any objection in a vacuum to the definition you proposed. [00:11:45] Speaker 06: It's possibly [00:11:47] Speaker 06: a much better one than the one I feel like we've adopted, but I do feel nonetheless bound by these four cases, so I've got to be able to weave my way through them. [00:11:56] Speaker 06: But particularly, federal data, this is the quote, when it's talking about what it means to be an interested party, and in particular, prospective bidder, it says, reference to a quote, prospective bidder, and the definition of interested party in the statute does not include one who only intends to bid in the event of a re-procurement. [00:12:14] Speaker 06: I'm finding, and there's another case which actually quotes that language of ours, so I'm finding it a little difficult to circumvent that as limited to the facts of federal data or ignore it as non-holding. [00:12:27] Speaker 06: It isn't that I disagree with you, it's that I'm feeling a little confined. [00:12:30] Speaker 07: And you're not. [00:12:31] Speaker 07: And here's why you're not. [00:12:33] Speaker 07: Number one, again, these are all, what we're looking at are cases with [00:12:38] Speaker 07: just very unique factual circumstances and that are largely in the post-award context. [00:12:46] Speaker 07: Weeks is right on point. [00:12:48] Speaker 07: Weeks is a pre-award protest case. [00:12:51] Speaker 07: In Weeks, the test that the court mentions in Weeks is [00:12:57] Speaker 07: that you have to show non-trivial competitive injuries that can be addressed by judicial release. [00:13:02] Speaker 07: That's totally consistent with the GAO's test. [00:13:05] Speaker 07: And that was met where Weeks intended to bid as a capable contractor and has relevant experience just like CGI. [00:13:11] Speaker 03: So remind me, federal data post-award case and then your case is a pre-award pre-bid? [00:13:18] Speaker 07: Yes. [00:13:20] Speaker 07: Fed data of the four, the other three are plainly post award. [00:13:24] Speaker 07: Fed data operates after an award had been made and then they're trying to figure out in the context of correction action how to move forward. [00:13:33] Speaker 07: But I want to give Judge Moore a really clear answer. [00:13:37] Speaker 07: Two things. [00:13:37] Speaker 07: First of all, federal data, if you go to the last page of federal data, it says what federal data could have done, it could have continued to compete for the contract award as the other bidders did. [00:13:48] Speaker 07: and could have utilized the protest procedures available to an interested party to correct any deficiencies are perceived in the procurement process. [00:13:56] Speaker 07: The problem with fed data is it didn't choose to do the latter. [00:14:00] Speaker 07: It did not choose to avail itself of the protest processes to correct the deficiencies in the solicitation. [00:14:06] Speaker 07: And if you look at the language in MCI and RECS, both RECS and MCI say that an interested party [00:14:15] Speaker 07: If someone, for example, in the context of Rex, Rex says, Rex isn't in this party because they didn't submit nor did they file a timely vid protest in the Court of Federal Claims. [00:14:26] Speaker 07: MCI says the same thing. [00:14:28] Speaker 07: An interested party is one who actually submitted a proposal or filed a timely protest. [00:14:33] Speaker 07: There is no argument that we filed a timely protest here. [00:14:36] Speaker 07: We did. [00:14:37] Speaker 07: We filed in the GAO before the proposal submission. [00:14:40] Speaker 07: And as Judge Williams correctly and aptly addressed the government's argument that basically, because the protest process was going on at GAO, at the time Offords had to submit the bid, that doesn't somehow automatically divest us of interest to party status. [00:14:57] Speaker 06: So whether I think I could go all the way with the definition that you seek, that you say is the one the GAO adopted, or whether I feel confined by this precedent in some manner, [00:15:08] Speaker 06: isn't there a narrow ground for you, which would be we were a prospective bidder, undisputedly, until at least the day GAO issued its decision. [00:15:23] Speaker 06: Did we mystically cease to be a prospective bidder in the day and a half it took us to file in the CFC? [00:15:28] Speaker 06: Isn't that possibly [00:15:29] Speaker 06: a way that this case gets resolved that doesn't require me to do battle with other presidents. [00:15:34] Speaker 06: And it goes to the heart of your diligently pursued... It is, Your Honor, and that's what Judge Williams did. [00:15:40] Speaker 07: That's precisely what Judge Williams found. [00:15:43] Speaker 07: And the way that we look at it, and it's completely consistent with what you just said, is that our protest here at the Court of Federal Claims was part and parcel of our, and now we go to the language of the cases, [00:15:57] Speaker 07: effort to utilize protest procedures available to an interested party to correct efficiencies in the procurement process. [00:16:04] Speaker 07: And that's precisely what we did. [00:16:06] Speaker 02: What am I supposed to think of that process as? [00:16:09] Speaker 02: By filing the GAO, do you somehow toll the timing for getting to the Court of Federal Acclaims on time? [00:16:16] Speaker 02: Or is it more like a preservation of rights? [00:16:19] Speaker 02: What's the right way to characterize this? [00:16:22] Speaker 07: The right way to characterize this is that Congress set up a scheme. [00:16:27] Speaker 07: And the scheme is that you can submit a protest to an agency. [00:16:31] Speaker 07: You can then submit a protest to a court of federal claim to a GAO and be timely. [00:16:35] Speaker 07: You can then go to the court of federal claims. [00:16:37] Speaker 07: And then you can ultimately come here. [00:16:40] Speaker 07: And that's seriatim. [00:16:41] Speaker 07: This is sequential. [00:16:42] Speaker 01: You can also file at the same time in all three places. [00:16:46] Speaker 07: No, you can't. [00:16:48] Speaker 07: The agency protests, they're divested of jurisdiction once you go to GAO, and GAO is divested of jurisdiction once you go to the Court of Federal Claims. [00:16:58] Speaker 07: But you can go straight to the Court of Federal Claims? [00:17:00] Speaker 07: Sure you can. [00:17:01] Speaker 07: Of course you can. [00:17:02] Speaker 07: Yes. [00:17:03] Speaker 07: You can always go straight to the Court of Federal Claims. [00:17:05] Speaker 06: I think we have your argument, Mr. McHale. [00:17:07] Speaker 05: Oh, did you want to ask a question? [00:17:12] Speaker 05: question that we've been spending some time on, on interpreting the language in federal data. [00:17:21] Speaker 05: I'm not entirely sure whether you said that your position comes within the literal language of the quote that was read to you or whether you're saying that that quote has to be read or modified or softened or [00:17:40] Speaker 05: in some way not given its literal effect by virtue of the context. [00:17:50] Speaker 05: Is it possible that the declaration that an interest in a repercurement alone isn't enough can be understood, not in a technical sense of repercurement, but to mean that as long as this [00:18:07] Speaker 05: procurement is open and you are aggressively pressing your right that what you're trying to do is to get into this procurement. [00:18:18] Speaker 07: The answer to your question, I think, as I understand it, is yes and it is [00:18:24] Speaker 07: consistent. [00:18:25] Speaker 07: You can't just read that one sentence in federal data without reading the other two sentences that I read in the last paragraph of federal data that say that what you really have to do is look at the, is to either submit an offer or pursue your protest remedies that are available to an interested party. [00:18:44] Speaker 07: And so I think it fits [00:18:46] Speaker 07: within a the context of federal data and be the general have to go there to follow up on that. [00:18:54] Speaker 06: And I also think this is a helpful question. [00:18:57] Speaker 06: So please try to take it as such. [00:18:59] Speaker 06: But I think to follow up on that could be that this sentence I read to you mean if this is all you're bringing to the table. [00:19:07] Speaker 06: you're coming to the table after bidding is closed and the only thing that you've done nothing and the only thing you're saying at that point in time is I'm a prospective bidder because if I can get you to unravel this process and offer a re-procurement, I'm in. [00:19:23] Speaker 06: The answer to your question is yes, but it's even worse for the government's position that we're not an interested party. [00:19:40] Speaker 07: because you have to actually read the Federal Circuit's decision in light of the Board of Contract Appeals decision that was an issue on appeal. [00:19:49] Speaker 07: What these guys did in federal data was they expressly said, we are not interested, we're not going to compete in this second competition, period. [00:19:59] Speaker 07: When they say that they're interested in a resolicitation, all they were saying is, if for some reason the government decides to cancel the solicitation down the road and conduct a new competition, then we would be interested in participating. [00:20:12] Speaker 07: It has nothing to do with their protest allegations or the protest grounds for which the board and the federal circuit was trying to assess, are they an interested party? [00:20:24] Speaker 06: I understand your argument, but your argument [00:20:27] Speaker 06: wants me to conclude the language is simply dicta under the facts of the case, and I'm trying to give the language meaning and nonetheless find a way in which the protest part at the end has meaning too. [00:20:40] Speaker 07: And I think you can give that language meaning by the context of the case. [00:20:45] Speaker 07: As Digitalis expressly said, you cannot on these standing issues, on these inter-party issues, [00:20:52] Speaker 07: do the analysis in a vacuum, they are fundamentally informed and animated by the factual context in which they arrive. [00:20:59] Speaker 05: Can I ask you one question that's almost a merits question? [00:21:04] Speaker 07: Yes. [00:21:05] Speaker 07: I'd love to get there. [00:21:06] Speaker 05: I know you would. [00:21:08] Speaker 05: If we were to agree with you on your customary terms argument, do we need to reach the unduly restricted competition? [00:21:18] Speaker 00: No, you do not. [00:21:19] Speaker 06: okay let's hear from the government we'll restore your three minutes of rebuttal time. [00:21:24] Speaker 00: Thank you. [00:21:24] Speaker 06: Mr. is it Rael? [00:21:28] Speaker 06: How do you say it? [00:21:28] Speaker 06: Rael. [00:21:29] Speaker 06: Rael, okay. [00:21:30] Speaker 06: Mr. Rael please proceed. [00:21:32] Speaker 04: May I please report. [00:21:33] Speaker 04: CGI does not have standing to protest the procurement issue because it's not an actual perspective bidder. [00:21:38] Speaker 04: CGI could have submitted quotes for the procurement issue but simply chose not to. [00:21:42] Speaker 05: Instead CGI protested at the government accountability office which did not simply choose not to get [00:21:49] Speaker 05: immediately took aggressive action to try to correct what it saw as an illegality in the solicitation. [00:21:58] Speaker 04: It protested at the Government Accountability Office. [00:22:01] Speaker 04: That's correct. [00:22:02] Speaker 04: And the CGI has the right to do that. [00:22:04] Speaker 04: Which held up the award. [00:22:07] Speaker 04: It held up the award. [00:22:08] Speaker 04: It didn't hold up the deadline for submitting bids, though. [00:22:10] Speaker 04: And that's been the focus of this court's president. [00:22:12] Speaker 06: But do you agree that they were a prospective bidder at the time they filed the GAO protest? [00:22:17] Speaker 04: At the time they filed the GAO protest? [00:22:19] Speaker 06: Were they a prospective bidder throughout the GAO protest? [00:22:22] Speaker 06: Because I imagine if they weren't, standing would be removed. [00:22:24] Speaker 06: Like suppose they came out and said, we've decided we have no interest in this contract. [00:22:29] Speaker 06: This contract, we won't bid for it no matter what. [00:22:31] Speaker 06: Well, jurisdiction in the GAO would no longer exist, right? [00:22:34] Speaker 06: So they have to, in order to have standing, you've got to stand throughout the whole case. [00:22:38] Speaker 06: So they had to have been a prospective bidder at all times in the GAO protest, correct? [00:22:43] Speaker 04: Well, standing is determined at the time, at the time the, at least in court, standing is determined at the time the case is filed. [00:22:50] Speaker 06: I sue you over a contract and then I sell the rights to Judge Toronto. [00:22:56] Speaker 06: Am I allowed to continue to pursue you for continuing to breach the contract even though I no longer own it? [00:23:02] Speaker 06: I had standing at the time I brought the suit, but I ceased to be the owner of the contract. [00:23:06] Speaker 04: No, I wouldn't think so. [00:23:08] Speaker 06: Standing has to actually, yes, you're right, it's judged at the time of the suit. [00:23:11] Speaker 06: But you have to have standing throughout the proceeding. [00:23:13] Speaker 06: If something causes you to no longer have standing, doesn't that move the proceeding? [00:23:19] Speaker 04: Yes. [00:23:20] Speaker 04: As a general matter, yes. [00:23:21] Speaker 04: The mootness and standing test can be a little different. [00:23:23] Speaker 04: There's additional factors to be considered in mootness that aren't present in standing. [00:23:27] Speaker 05: Is it your position that on February 7, 2014, which I gather was the closing date for the bids, [00:23:35] Speaker 05: At that point, even though this was a couple of months away from completion of the GAO proceeding, CGI lost its status as a prospective bidder. [00:23:47] Speaker 04: It lost its ability to be a prospective bidder in the Court of Federal Claims because it had not filed its suit yet. [00:23:53] Speaker 05: Why did it not lose its prospective bidder status in the GAO? [00:23:57] Speaker 05: Isn't that governed by a statute, in fact, which unlike the CSC statute actually has that language in it? [00:24:05] Speaker 04: Under this court's precedent, I would say yes, it will lose its prospective bidder status at that time in the GAO as well. [00:24:16] Speaker 05: Is the GAO process one that's adversarial or at least one in which the agency is participating? [00:24:24] Speaker 04: Yes, it is. [00:24:25] Speaker 05: Did the agency suggest to the GAO on February 8th that CGI was no longer a prospective bidder because the date had [00:24:35] Speaker 05: just come where bidding was closed? [00:24:37] Speaker 04: No, it didn't. [00:24:38] Speaker 04: And the GAO test has developed differently than the test in this court. [00:24:46] Speaker 05: I'm sorry. [00:24:47] Speaker 05: How could that be? [00:24:48] Speaker 05: Am I wrong in thinking that the CFC test, the 1491 test, which actually doesn't even have the language in it? [00:24:57] Speaker 05: We've imported the language from two other statutes, one in the GAO statute. [00:25:03] Speaker 04: Yes, that's correct. [00:25:04] Speaker 04: So how could there be a different test? [00:25:06] Speaker 04: This court did import the language from CICA into the definition of interest departing in 1491 B1. [00:25:14] Speaker 04: It didn't import every single GAO interpretation of the term prospective bidder or actual bidder or direct economic interest from the GAO's case law. [00:25:27] Speaker 04: In fact, in ASCII, the case that plaintiffs cite several times, one of the things that court relied on in importing the definition from CECA rather than from the APA was the need to construe the term interest to party narrowly as a waiver of sovereign immunity. [00:25:47] Speaker 06: I really don't understand. [00:25:48] Speaker 06: I'm completely perplexed by your answer to Judge Toronto's question. [00:25:55] Speaker 06: Are you saying [00:25:56] Speaker 06: that when they file the GAO protest, they're a prospective bidder, but throughout the length of the GAO protest, during which time they are vigilantly fighting the solicitation as being improper, that they are not a prospective bidder throughout that process. [00:26:14] Speaker 04: Under the court's precedent, once the date for filing has passed, or for submitting bids has passed, if they could have submitted a bid and chosen not to, then they are not a prospective bidder. [00:26:29] Speaker 06: Can't they demonstrate their prospective bidder status by filing a protest? [00:26:33] Speaker 06: Doesn't our case law say by filing a protest, they establish their protective bidder status? [00:26:39] Speaker 04: No, the case law doesn't say that. [00:26:41] Speaker 04: In fact, rec service says quite the opposite. [00:26:43] Speaker 04: Rec service said it was not relevant that the plaintiff filed a pre-award protest, a pre-award protest that was timely. [00:26:50] Speaker 04: Nor was it relevant that they were saying that illegality prejudiced their ability to bid. [00:26:55] Speaker 04: What was relevant was that when they came to the court of federal claims, the time for bidding had passed, and they had not submitted a bid. [00:27:02] Speaker 02: The nature of the protest in rec services was different from the grounds of the post-award [00:27:09] Speaker 02: big protest challenge, right? [00:27:11] Speaker 04: It was different, but the federal data protest was in fact essentially a pre-award protest. [00:27:20] Speaker 04: It occurred after an award and then going into corrective action, but that is effectively a pre-award protest. [00:27:26] Speaker 02: Tell me, how long did these GAO processes last? [00:27:30] Speaker 02: 100 days. [00:27:31] Speaker 02: 100 days? [00:27:32] Speaker 02: Yes. [00:27:32] Speaker 02: And are, I don't know, are they like an administrative proceeding? [00:27:36] Speaker 04: Essentially, yes. [00:27:38] Speaker 02: So why wouldn't it be appropriate to look at that as, you know, under background principles of administrative law, one ought to try to exhaust your administrative remedies before going to federal court? [00:27:53] Speaker 04: Because there's no exhaustion requirement. [00:27:56] Speaker 04: It's not a mandatory administrative remedy. [00:27:59] Speaker 04: as Plains Council stated correctly, they could have come straight to the Court of Federal Claims at any time prior to it. [00:28:04] Speaker 05: It may not be mandatory, but in trying to give some sensible concrete meaning to a term that, to put it mildly, doesn't have a clear and immediately apparent definition, what it means to be a prospective bidder, why doesn't it make sense to say that Congress [00:28:25] Speaker 05: more or less encouraged use of the GAO process. [00:28:29] Speaker 05: There's something that might be described as some deference in the CFC once the GAO has said what it has to say as essentially part of an interpretation of prospective bidder that when the GAO process encouraged to be used is being vigilantly used [00:28:55] Speaker 05: and then there's no material delay, Wednesday to Friday, Wednesday to Monday or something in going to the CFC, that the prospective bidder status that existed at the beginning of the GAO process hasn't been lost. [00:29:13] Speaker 04: Because there's no basis in the law for stating that the GAO told the ability to become a prospective bidder. [00:29:23] Speaker 04: The case law is clear that once the time for submitting bids has passed, if the plaintiff could have submitted a bid and did not, that it's not a prospective bidder at that time. [00:29:35] Speaker 05: And so the more onerous the condition that's being challenged in the solicitation, [00:29:42] Speaker 05: the harder it is for somebody to say, well, I'm going to roll the dice, take a chance that I'll actually win this thing under this onerous condition, rather than challenge the condition without subjecting oneself to the risk of being bound by it. [00:30:03] Speaker 05: That that's the regime that you have in mind? [00:30:08] Speaker 04: Well, the way to avoid that is to come straight to the Court of Federal Plans. [00:30:11] Speaker 05: And bypass the GAO process, which plays a, I guess, a congressionally encouraged role. [00:30:21] Speaker 04: It plays a role, but Congress certainly didn't mandate protesters to go to the GAO before. [00:30:27] Speaker 02: Right, but if we follow your rule, then one could never, as a practical matter, [00:30:33] Speaker 02: go to the GAO for this type of bid protest, right? [00:30:37] Speaker 02: You'd always run out of time to get a final answer from the GAO and still have time before the solicitation period ends to get to the Court of Federal Claims. [00:30:48] Speaker 04: Well, not if you submit a bid as HDI did, the other protestor. [00:30:51] Speaker 02: That's for actual bidders, but I'm talking about for prospective bidders. [00:30:56] Speaker 02: Do you realistically think that a prospective bidder [00:31:00] Speaker 02: who wanted to protest that the GAO could get a resolution from the GAO in time to still file a court of federal claims complaint, bid protest action before the end of the solicitation period? [00:31:11] Speaker 04: No, that's not likely. [00:31:13] Speaker 06: I guess based on the discussion you just had with Judge Chen, one question it brings to my mind is, do you believe that there's anything in the statute or in regulations or anything that suggested that Congress meant to have [00:31:30] Speaker 06: multiple forms of red dress for actual bidders available to them, and single forms of red dress available or not in series forms of red dress available for prospective bidders. [00:31:42] Speaker 06: My question to you is, it seems quite clear an interested bidder could absolutely go in series, agency, GAO, CFC, and have three bites at the apple. [00:31:53] Speaker 06: That's what Congress intended and that's what is allowed to happen. [00:31:56] Speaker 06: The universe of the way that you've defined prospective bidders would absolutely in practice create a circumstance where they would definitely not have the availability of three bites at the apple and is there anything that would suggest that Congress meant for differing treatment between actual bidders and prospective bidders in some way in terms of the red dress available to them. [00:32:19] Speaker 04: If the plaintiff chose not to insert itself into the competition by submitting a bid, then at the very least that's the interpretation that's been given by this court of the term prospective bidder. [00:32:35] Speaker 04: Prospective bidder, to my understanding, is not defined in the statutes, but it's been interpreted by this court as closing off once the [00:32:43] Speaker 04: time period for submitting bids has ended. [00:32:46] Speaker 06: To establish yourself as a prospective bidder. [00:32:51] Speaker 06: You can't establish yourself as a prospective bidder after the time period has expired. [00:32:57] Speaker 06: But why didn't they establish themselves as a prospective bidder by virtue of filing the GAO protest? [00:33:04] Speaker 04: Because that doesn't toll the period by which they... No, they're not tolling. [00:33:08] Speaker 06: They established it. [00:33:09] Speaker 06: They had to establish themselves as a prospective bidder by the time the bidding period ended. [00:33:14] Speaker 06: They did. [00:33:14] Speaker 04: Why isn't that enough? [00:33:15] Speaker 04: Well, they didn't establish that they were prevented from bidding. [00:33:19] Speaker 04: That's the language in rec service. [00:33:21] Speaker 06: Well, that's a footnote in rec, but I don't actually think that that footnote's relevant. [00:33:25] Speaker 06: Why aren't they a prospective bidder by virtue of having pursued the protest prior to the bid period expiring? [00:33:32] Speaker 04: Because when it came time to submit bids, they didn't put themselves into the competition. [00:33:38] Speaker 04: They could have. [00:33:39] Speaker 04: They did. [00:33:39] Speaker 06: They put themselves into the competition by virtue of protesting with the GAO. [00:33:43] Speaker 06: Why doesn't that establish their status? [00:33:45] Speaker 04: That didn't put them into the competition. [00:33:46] Speaker 04: They simply said, we have a problem with the terms of the solicitation. [00:33:52] Speaker 04: Not one that has to stop us from, not one that they've demonstrated stops them from bidding, but one that they don't like those terms. [00:34:01] Speaker 04: They prefer to go under different terms. [00:34:02] Speaker 06: Not that they don't like those terms. [00:34:04] Speaker 06: They actually think those terms are illegal. [00:34:06] Speaker 06: It's a slight little tweak of a difference. [00:34:09] Speaker 06: I don't understand. [00:34:11] Speaker 06: I just don't understand your argument about why that doesn't establish. [00:34:14] Speaker 06: I can understand your argument that concluding that might run into our rec case law. [00:34:20] Speaker 06: I can understand that already, but I don't understand how it doesn't establish them as prospective bidders at that point. [00:34:26] Speaker 04: Because they need to establish that they're a prospective bidder on the date they file suit in the court of federal claims. [00:34:31] Speaker 04: At that time, the period had passed for submitting bids. [00:34:35] Speaker 04: They did not submit a bid under rec service, under federal data, under MCI, all those cases. [00:34:42] Speaker 04: They're not a prospective bidder at that time. [00:34:44] Speaker 04: The fact they want a resolicitation, that doesn't matter. [00:34:48] Speaker 04: They did not submit a bid prior to the deadline. [00:34:52] Speaker 04: And that's the relevant inquiry in this court. [00:34:59] Speaker 05: Can I ask you a merits question? [00:35:01] Speaker 04: Yes, absolutely. [00:35:02] Speaker 05: Do you disagree that the consequence [00:35:09] Speaker 05: of your position about their first merits issue is that in the master contract under the Federal Supply Schedule you can leave out significant terms and then in orders under the master contract insert highly non-commercial customary terms [00:35:38] Speaker 05: And there would be no objection to that. [00:35:44] Speaker 04: In the master contract, yes. [00:35:48] Speaker 05: So you're not changing anything in the master contract. [00:35:50] Speaker 05: There are just certain terms that you're going to have to have once you actually have an order. [00:35:57] Speaker 05: And you're now adding them in the order. [00:36:00] Speaker 05: And those would not, by assumption of my question, [00:36:03] Speaker 05: constitute commercially customary, or whatever the proper term is, terms. [00:36:09] Speaker 05: You're saying that the relevant FAR and statute permit that to take place. [00:36:16] Speaker 04: Yes, it is conceived as the FAR and the statute permit that. [00:36:19] Speaker 04: to take place. [00:36:20] Speaker 04: It's conceivable that that could happen and that's something that plaintiff needs to address at the, or the contractor needs to address at the master contract level but has a problem with that because that's the purpose of these indefinite delivery contracts, the FSS in particular. [00:36:34] Speaker 04: My time is, can I finish this? [00:36:36] Speaker 04: Of course. [00:36:37] Speaker 04: Thanks. [00:36:38] Speaker 04: That's the purpose of these indefinite delivery contracts is to provide for a simplified process at the order level. [00:36:43] Speaker 04: You take care of the [00:36:45] Speaker 04: the hard work of the contracting upfront, you comply with part five, part six, part 13, 14, or 15, whichever is applicable, small business analysis. [00:36:54] Speaker 04: And then when you get to part 12 as well, the commercial item section, and then when you get to the order level, you follow a simplified process. [00:37:02] Speaker 04: You don't have to go through all this again at that level. [00:37:06] Speaker 04: If plaintiff had a problem with the fact that the order could include this term consistent with [00:37:12] Speaker 04: the GSA contracts, they should have addressed that at the master contract level. [00:37:16] Speaker 05: What was the mechanism for addressing that? [00:37:20] Speaker 05: Say you left price terms or something quite obviously of economic significance in the ultimate decision to supply something and get paid for it. [00:37:33] Speaker 05: out of the master contract. [00:37:35] Speaker 05: What's procedurally were they supposed to do? [00:37:37] Speaker 04: They could seek a modification with GSA. [00:37:39] Speaker 04: If that failed, they could have protested the terms of the GSA contract. [00:37:46] Speaker 06: Is it correct on the Mayor's point that there isn't a dispute that the waiting until the second review to [00:37:56] Speaker 06: pay compensation or commission is contrary to customary commercial practices. [00:38:03] Speaker 06: Am I to understand correctly that that isn't really in dispute? [00:38:06] Speaker 04: That's not in dispute for purposes of this appeal. [00:38:09] Speaker 04: We don't agree that that's something the court should have addressed. [00:38:12] Speaker 04: It addressed that. [00:38:13] Speaker 04: The agency didn't address that because it didn't believe it needed to. [00:38:17] Speaker 04: Both the GIO and the Court of Federal Claims have found that it didn't need to. [00:38:22] Speaker 04: But ultimately, that's a decision the agency should be making. [00:38:25] Speaker 04: But for purposes of the appeal, no. [00:38:27] Speaker 04: It doesn't matter. [00:38:28] Speaker 06: So for purposes of this appeal, you are agreeing that it was not a customary commercial practice. [00:38:40] Speaker 06: But you are, I want to be very clear, you are not relinquishing the agency's right to change its position on that below. [00:38:47] Speaker 06: You're saying you stipulated to it solely for what purpose? [00:38:51] Speaker 06: I'm trying to understand. [00:38:52] Speaker 06: I want to understand the context. [00:38:53] Speaker 06: I was understanding that this was not an issue that was in dispute. [00:38:59] Speaker 04: I wouldn't say we stipulated to it. [00:39:02] Speaker 04: We've never disputed it because it's not relevant to the issues. [00:39:06] Speaker 04: What's relevant is whether the agency was required to go through this process of obtaining market research, determining whether terms are consistent with customary and commercial practice, and then obtaining a waiver. [00:39:17] Speaker 04: If they're not, it's undisputed. [00:39:18] Speaker 04: They didn't do that. [00:39:20] Speaker 04: That's the relevant point. [00:39:21] Speaker 04: The relevant issue is whether the statutes and regulations required them to do that. [00:39:26] Speaker 05: It would have been highly relevant to defeating a critical factual premise for their legal contention, defeating their argument to say, you don't have to decide any of this legal stuff. [00:39:41] Speaker 05: The fact is the term that they're complaining about was perfectly customary as a commercial matter. [00:39:48] Speaker 04: I suppose it's a matter of prejudice that could have come into play. [00:39:51] Speaker 04: We didn't make that argument, so we're not saying the court should decide this case based on the fact that these terms are, in fact, consistent with testimony in commercial practice or anything like that. [00:40:04] Speaker 06: But by failing to dispute the argument, haven't you effectively conceded it? [00:40:09] Speaker 06: Aren't we supposed that we don't agree with you? [00:40:12] Speaker 06: when your construction argued about the statutory terms, and suppose we absolutely think that this falls within this section of the FAR, this acquisition solicitation, and we conclude that you're wrong on the legal points, once we get to that point, what do we do? [00:40:34] Speaker 06: You have not disputed that it's not consummary, so isn't that the end of the inquiry? [00:40:38] Speaker 06: If we think they're right on the legal points, you [00:40:42] Speaker 06: seem to have acquiesced on the factual point. [00:40:46] Speaker 04: For purposes of deciding the appeal, yes, I believe that's correct. [00:40:49] Speaker 04: We would still say it's the agency's ultimate role to do the market research. [00:40:53] Speaker 05: I'm sorry, but in the litigation, suppose, again, my assumption, we got to the point that Judge Moore just recited, do we remand, and in such a remand, does it remain open to you as a litigation procedure matter? [00:41:12] Speaker 05: to say this term is actually commercially customary or for purposes, not just of the appeal, but of the litigation, is that issue settled? [00:41:24] Speaker 04: For purposes of litigation, we would say yes. [00:41:27] Speaker 05: For purposes of litigation... I'm sorry. [00:41:28] Speaker 05: Yes doesn't... I don't know what you just said yes to. [00:41:33] Speaker 05: Because I had to ask an or question. [00:41:35] Speaker 04: Oh, I'm sorry. [00:41:36] Speaker 04: For purposes of the litigation, yes, we're not disputing that these were not consistent with customary commercial practice. [00:41:44] Speaker 04: If for some reason this had to go back to the agency, we believe the agency should be permitted to do the market research and make that determination itself not simply rely on the limited declarations that have been supplied by CGI. [00:41:57] Speaker 06: One more question. [00:42:01] Speaker 06: At this point, suppose we agree completely with them on the merits. [00:42:06] Speaker 06: You haven't disputed it. [00:42:07] Speaker 06: It's not customary. [00:42:08] Speaker 06: What's left to be done? [00:42:11] Speaker 04: Well, at that point, if the trial court agreed that injunctive relief were appropriate, it would presumably enjoin the agency from proceeding with awards of the task orders at issue unless and until it [00:42:26] Speaker 04: it makes a, it goes through the process it's supposed to in doing the market research, determining whether these are consistent with customary commercial practice, and if not, obtaining the waiver necessary. [00:42:37] Speaker 02: So you're saying there wouldn't necessarily be a resolicitation with these particular terms stripped out? [00:42:44] Speaker 04: Not necessarily. [00:42:45] Speaker 04: Not if the agency obtained, not if the agency either made a rational determination that they are not consistent with, that they are consistent with customary commercial practice or obtained a waiver if they are in fact not. [00:42:55] Speaker 04: There's no bar on including terms that are inconsistent with customary commercial practice. [00:43:01] Speaker 04: The bar under the FAR provision is only on you have to obtain a waiver if you're going to do it. [00:43:06] Speaker 06: I don't understand why that ship hasn't already sailed. [00:43:09] Speaker 06: I mean, you had a chance throughout this litigation. [00:43:12] Speaker 06: They clearly put this issue an issue. [00:43:15] Speaker 06: You chose not to dispute it. [00:43:17] Speaker 06: I don't understand what set of circumstances on remand allows you to reopen that issue, take it back to the agency, and allow them to potentially proffer an argument about whether it is or isn't customary. [00:43:29] Speaker 04: It's because of the limited nature of the APA review at issue here. [00:43:34] Speaker 04: The court's determining whether the agency followed the law here. [00:43:38] Speaker 04: Did it conduct the market research or make the determination to obtain a waiver if [00:43:43] Speaker 04: necessary. [00:43:44] Speaker 04: There's no dispute they didn't do that because our position, the agency's position all along, is that they didn't have to. [00:43:49] Speaker 04: So it wasn't, we shouldn't have been having a dispute de novo about whether or not these terms are in fact consistent with customer and commercial practice. [00:43:58] Speaker 04: That should not be a part of the APA review here. [00:44:01] Speaker 04: That's why we didn't go out and do research or submit any contrary evidence on that point. [00:44:07] Speaker 04: That's what the agency should do if it's required to. [00:44:09] Speaker 06: I don't understand why that's not part of the APA review. [00:44:13] Speaker 06: The agency took an action that they're saying is illegal. [00:44:16] Speaker 06: The action would not have been illegal if in fact the action the agency took was consistent with commercial customary practices. [00:44:25] Speaker 04: But in order to demonstrate that it was consistent with customary and commercial practice, we would have to go outside the administrative record, start seeking, we basically have to do the market research that we don't believe the agency's required to do under statutes and regulations, then move the supplemental record to include that in the administrative record so the court can essentially make a de novo determination of whether or not these terms are consistent with customary and commercial practice. [00:44:52] Speaker 04: That's not the court's role in this type of [00:44:54] Speaker 04: in this type of proceeding. [00:44:57] Speaker 04: It was simply whether, it's simply for purposes of this issue, what the agency required to follow these statutes and regulations that CGI says they were. [00:45:06] Speaker 04: If they were, they didn't do that, and that's for purposes of this case, the end of that issue. [00:45:13] Speaker 06: Okay. [00:45:13] Speaker 06: Thank you. [00:45:14] Speaker 06: Thank you. [00:45:14] Speaker 06: Mr. McHalef, you have... I'll be quick, Your Honor. [00:45:20] Speaker 06: Well, I mean, it says eight minutes and 40 seconds. [00:45:23] Speaker 06: What? [00:45:24] Speaker 05: well what what is this a recounting time zero okay why don't we give him five minutes and he went over by eight minutes and forty seconds think I should be able to be quicker if you can I just ask you can you respond to government council's answer to my question about why basically you shouldn't have been required at the master contract [00:45:53] Speaker 05: stage of things to insist on all the terms that are of significance so that there wouldn't be a meaningful dispute at the order stage. [00:46:07] Speaker 07: It has to be a fair question because Judge Williams asked the same one below and commented on an unheard decision. [00:46:14] Speaker 07: The assignment of blame that the trial court placed on CGI for not [00:46:18] Speaker 07: anticipating countless terms. [00:46:20] Speaker 05: I don't mean in this case specific term. [00:46:22] Speaker 05: I mean this is a question about interpreting the statute. [00:46:26] Speaker 05: I think the government's position is something like in general when you read this statute the way that it sensibly is supposed to work is that everything significant should be done at stage one [00:46:38] Speaker 05: so that it makes perfect sense to say at stage two, we won't have a worry about application of the commercial customary. [00:46:48] Speaker 07: Because the federal supply schedule, which is really the source of your question, is a vehicle that is intended to take advantage of the government's bulk buying power for commercial items by getting the best pricing on commercial items using commercial terms. [00:47:05] Speaker 07: So you start with that premise. [00:47:06] Speaker 07: The overall Federal Supply Scheduled Contracts are largely, and this isn't in the record, but I think Kingdom Aware may address it at some level, they're largely the Part 12 clauses, 52.212-4-5, the clauses that are consistent with customary commercial practice and that are required by law. [00:47:32] Speaker 07: So there are lots and lots of [00:47:36] Speaker 07: unanswered issues in a federal supply schedule contract about an individual ordering agency and what they may need to what they may need in their orders. [00:47:49] Speaker 05: So if I thought it was relevant to try to get a realistic assessment of whether the empirical assertion that you just made about normal practice, lots and lots of [00:48:04] Speaker 05: contractually significant terms that are not in supply. [00:48:08] Speaker 05: Where would I go to look for that? [00:48:11] Speaker 07: You might go on the GSA website looking for federal supply schedule manuals, but if that's the way it came out, that's not what I intended to say, Your Honor. [00:48:22] Speaker 07: What I intended to say is that [00:48:24] Speaker 07: You have the basic terms. [00:48:27] Speaker 07: You can almost think of it as a charge account. [00:48:31] Speaker 07: You're putting together the basic core terms. [00:48:34] Speaker 07: If there's something different, the FAR specifically says how you deal with that. [00:48:41] Speaker 07: And what the FAR says is that in any commercial item contract, you cannot submit or put in any contract or solicitation. [00:48:51] Speaker 07: And that's key because this is the undisputed part about what they violated. [00:48:56] Speaker 07: You cannot contain in any solicitation, this is for 12.301A and 12.302C, cannot include in any solicitation four commercial items, additional terms that are inconsistent with customary commercial practice. [00:49:15] Speaker 07: Solicitation is defined in FAR 2.101 to include RFQs, which is the form of solicitation that operated here. [00:49:24] Speaker 07: There can be no serious dispute. [00:49:26] Speaker 07: They violated that. [00:49:28] Speaker 07: They included terms that the trial court found as fact. [00:49:32] Speaker 07: And they are not subject to clear error, getting to the other point you were discussing, Judge Moore, with Mr. Rail. [00:49:38] Speaker 07: The trial court found as fact. [00:49:40] Speaker 07: that these terms are inconsistent with customary commercial practice. [00:49:44] Speaker 05: What was the basis? [00:49:47] Speaker 05: Tell me if I've understood what you've just said right. [00:49:49] Speaker 05: That the existence of the particular regulation that you just cited implies contemplation of the possibility that there will be contractually significant, which is to say that the parties care about this term. [00:50:09] Speaker 05: that might be contrary to commercial, customary commercial terms, and it says you can't, you the government, can't ask for those. [00:50:20] Speaker 05: You cannot put them in equal position. [00:50:22] Speaker 05: I don't understand why you're fighting me. [00:50:24] Speaker 07: Well I'm not, we're in violent agreement, I believe. [00:50:27] Speaker 07: Okay, then this made me... Okay, well I apologize to her honor. [00:50:31] Speaker 07: 12.302C is exactly on point here, yes. [00:50:36] Speaker 07: You cannot, if there are additional terms that you want to include government in a solicitation for commercial items, which is exactly what we have here, you cannot include them if they are inconsistent with customary commercial practice without going out and doing market research and obtaining a waiver and GSA prescribes the person from whom they have to get the waiver, which is the senior administrator for procurement way up here. [00:51:01] Speaker 06: As a practical matter, what happens now if you prevail in this appeal? [00:51:08] Speaker 06: What goes next? [00:51:10] Speaker 07: It sounds like we may have a disagreement. [00:51:12] Speaker 07: Our position would be that the court having already found as fact based on unrebutted evidence that we submitted and the government did not oppose or submit countervailing evidence, that the court has found as fact [00:51:25] Speaker 07: that the terms are inconsistent with customary commercial practice. [00:51:29] Speaker 07: As a result, our position would be that we would tell Judge Williams, if this court didn't do it and just remanded, we would tell Judge Williams, you need to enjoin them from any awards based on the current form of solicitation. [00:51:45] Speaker 07: They have got to eliminate the offending terms, and if they replace them with some other terms, then they [00:51:51] Speaker 07: we'll look at the new terms once they are issued and see if they're offending. [00:51:59] Speaker 06: Presenting an argument or evidence related to the fact question of whether this is part of or is not part of the customary practice below, you think they've effectively waived, at the agency level, the ability to go back ex post and justify an identical solicitation in a repercurement that would nonetheless contain those terms? [00:52:22] Speaker 07: We think it's very struticata. [00:52:24] Speaker 07: This has been found. [00:52:25] Speaker 07: The court found this. [00:52:27] Speaker 07: and it is not subject to the clear error test because it's an unrebutted test. [00:52:33] Speaker 07: It's based on unrebutted declarations. [00:52:34] Speaker 05: So what they could do is pursue a resolicitation with the same terms after securing a waiver. [00:52:46] Speaker 05: That wouldn't be inconsistent with the determination that these terms are definitively and finally and preclusively determined to be contrary to customer commercial practice, they would say, but we can do it if we get the right approval. [00:53:05] Speaker 07: That may be the case, yes. [00:53:07] Speaker 07: That may be. [00:53:10] Speaker 07: I'm way over my time, Judge. [00:53:12] Speaker 06: Do you have a final thought you'd like to make? [00:53:13] Speaker 06: Go ahead. [00:53:14] Speaker 07: At the end of the day, what the government is asking for here is this court to bless a scheme by which Congress set out in FAFSA to attract commercial companies that were not in the government marketplace to the government marketplace by dealing with them solely on commercial terms. [00:53:33] Speaker 07: And their argument is [00:53:35] Speaker 07: Well, while that prohibition, that prescription may apply to the overriding federal supply schedule contract themselves, they don't apply to the underlying orders themselves. [00:53:47] Speaker 07: That construction, A, would violate the entire purpose of FASTA, but B, the exception that they advocate would swallow the rule, because you can't get a good or a service under a federal supply schedule contract [00:54:02] Speaker 07: without placing an order. [00:54:04] Speaker 07: The only way you can get a good or a service is to place an order. [00:54:08] Speaker 07: So if the idea is you can't include it up here in the Federal Supply Schedule contract, but you can include it in the order, which is the only way to get a good or a service, that would swallow the prescription itself. [00:54:20] Speaker 07: The last point, Your Honor, goes back to jurisdiction for just one second. [00:54:26] Speaker 07: And I have to comment on this, because the government is making the argument that we had to somehow, by the time of proposal submission, submit a bid. [00:54:39] Speaker 07: And that obviously would be a completely futile act under Dolan's. [00:54:46] Speaker 07: The act of submitting a bid would be one where we would have to submit a non-compliant quote that takes exception to the offending terms that we believe are unlawful. [00:54:57] Speaker 07: And then in a period when the government cannot, by statute, award a contract at any rate. [00:55:08] Speaker 07: the definition of futility. [00:55:09] Speaker 07: That is a futile act, but yet that's what the government says. [00:55:12] Speaker 07: That's not what the cases say. [00:55:14] Speaker 07: And MCI, and I'll just say it one more time, MCI and rec services say... Yeah, I think we have your argument firmly. [00:55:20] Speaker 06: Thank you, Your Honor. [00:55:21] Speaker 06: Thank you. [00:55:21] Speaker 06: Thank both counsel cases taken under submission.