[00:00:00] Speaker 03:
A consolidate for oral argument are two zero one five five zero seven seven and two zero one five five one oh one coastal professional the U.S.

[00:00:13] Speaker 03:
Mr. is it Neckenberg?

[00:00:16] Speaker 03:
Am I saying it right?

[00:00:18] Speaker 03:
Neckenberg please proceed.

[00:00:28] Speaker 02:
May it please the court.

[00:00:30] Speaker 02:
honors this case about the single legal question.

[00:00:34] Speaker 02:
Is this a Tucker Act fixed protest?

[00:00:37] Speaker 02:
And the answer must be yes.

[00:00:40] Speaker 02:
The Tucker Act provides a substantive right to contractors to challenge the award of new contracts.

[00:00:46] Speaker 07:
It states, and I quote, Well, your appeal rests entirely upon us accepting that when the department grants award term extensions, it executes a new contract.

[00:00:57] Speaker 07:
Right?

[00:00:58] Speaker 02:
In this circumstance, yes, your honor.

[00:00:59] Speaker 07:
So

[00:01:01] Speaker 07:
I agree that technically the department does issue a new instrument under these circumstances.

[00:01:08] Speaker 07:
But when the department grants an award term extension, doesn't it depend upon an analysis of factors found in the underlying task order?

[00:01:22] Speaker 02:
Yes, Your Honor, to an extent.

[00:01:23] Speaker 02:
There is an analysis.

[00:01:25] Speaker 07:
But doesn't that mean that these disputes concern, since you said yes,

[00:01:30] Speaker 07:
Concerned disagreement over the terms of an existing contract, that is, the original task orders.

[00:01:37] Speaker 02:
No, Your Honor, it does not.

[00:01:38] Speaker 02:
This is few concerns.

[00:01:40] Speaker 02:
Here is an exercise of its substantive right provided by the Tucker Act.

[00:01:43] Speaker 07:
Does the Department derive the material terms of any award term extension from the original task order?

[00:01:53] Speaker 02:
I understand the question correctly, Your Honor.

[00:01:55] Speaker 02:
In this case, some of the terms, if not the majority, the terms of the new contracts may be similar to or reflect the terms of the old contract.

[00:02:04] Speaker 07:
Well, they reflect the material terms.

[00:02:05] Speaker 07:
Do they not?

[00:02:06] Speaker 03:
Well, do they, for example, dictate the term of the contract, or is that open-ended under the new task order?

[00:02:13] Speaker 02:
The term of the contract is open-ended.

[00:02:15] Speaker 03:
So we have no idea.

[00:02:16] Speaker 03:
So the new task order will specify how long this new contract is going to be for, correct?

[00:02:21] Speaker 03:
Correct, Your Honor.

[00:02:23] Speaker 03:
H4 doesn't dictate, unlike H3, which is 6 months, and H1, which is 60 months, this doesn't dictate any time.

[00:02:31] Speaker 03:
That's going to be completely decided as between the government and the new contractor, correct?

[00:02:36] Speaker 02:
Yes, Your Honor, that is entirely correct.

[00:02:37] Speaker 02:
And that is an important distinguishing point.

[00:02:39] Speaker 03:
And can I ask another question?

[00:02:40] Speaker 03:
What about pricing and terms?

[00:02:43] Speaker 03:
Doesn't this extension under H4 give the contractor the right to not accept the government's pricing and terms under this new task order that would be issued?

[00:02:53] Speaker 02:
Correct, Your Honor.

[00:02:54] Speaker 02:
The new task order under H4 provides some of the provisions and really the eligibility criteria characteristics

[00:03:00] Speaker 02:
just as any ordinary solicitation would provide the characteristics for a new award or the criteria for the award.

[00:03:06] Speaker 02:
These are new awards.

[00:03:07] Speaker 02:
And just as with any challenge to an award under a typical solicitation, there would be some analysis of the solicitation.

[00:03:14] Speaker 05:
What's new about the award?

[00:03:17] Speaker 02:
The award is going to be a new contract executed under the contractor's GSA schedule contract.

[00:03:22] Speaker 05:
It's got the, you know, let's say extension or contract, whatever you want to call it.

[00:03:31] Speaker 05:
It's basically the same terms, isn't it, of the existing contracts?

[00:03:37] Speaker 02:
It is very similar in terms, Your Honor, yes.

[00:03:40] Speaker 05:
Is it very similar or is it almost identical or identical?

[00:03:44] Speaker 02:
I think it's very similar.

[00:03:46] Speaker 02:
As Judge Moore mentioned, these new contracts are... What's the difference?

[00:03:49] Speaker 02:
What are the differences?

[00:03:51] Speaker 02:
The differences are that the contract is open-ended, and the difference may be that there may be different terms under the new contract, given that the contract... In a way, even under the existing contracts, those were open-ended too, right?

[00:04:02] Speaker 05:
Because the contract is always subject to performance evaluation.

[00:04:10] Speaker 05:
slightly on the tree without your honor the terms were not open-ended they were they had a set base period of two years and then available option extension during that time the government is reviewing the performance or can review has a right to review and has a right to terminate on the basis of their review yes your honor the government always has a right to terminate the contracts with which engages it has a terminated really there's the that it was open-ended isn't

[00:04:37] Speaker 05:
even under the existing contracts, those are subject to termination.

[00:04:44] Speaker 02:
Yes, all contractors subject to termination.

[00:04:46] Speaker 02:
I think we have a completely different contractor vehicle, a new contract execute under a GSA schedule contract.

[00:04:52] Speaker 05:
I think it's important to... What's new though?

[00:04:54] Speaker 05:
I mean you have the same contractors, minus five or four, you have the same contractors doing the same task, collecting on student loan delinquencies.

[00:05:09] Speaker 05:
I'm asking you again, what's new?

[00:05:13] Speaker 02:
The terms may be different, but the period of the contract is materially different.

[00:05:17] Speaker 05:
Francis, Your Honor, if I went around my neighborhood... Is that what you're protesting, that the new contract has a different term?

[00:05:26] Speaker 02:
No, no.

[00:05:27] Speaker 02:
We are protesting the department's arbitrary and capricious award of new contracts, which is the substantive right that we have under the Tucker Act.

[00:05:34] Speaker 07:
The fact that... Which of your duties changed when the government considered the audit results?

[00:05:40] Speaker 02:
Which of our duties changed?

[00:05:42] Speaker 02:
When the government considered the audit results, it took three steps.

[00:05:45] Speaker 02:
One, as we're discussing here, is it chose not to award us a new contract.

[00:05:49] Speaker 02:
Two, it chose to recall certain accounts under our existing contract.

[00:05:52] Speaker 02:
And three, it chose not to place new accounts

[00:05:55] Speaker 02:
for the last two months of our last contract.

[00:05:57] Speaker 02:
We agree with the government, the interveners in the court, that challenges those second two actions, which involve performance under the existing contract, the old contract, those are subject to a CDA challenge.

[00:06:07] Speaker 02:
No dispute.

[00:06:08] Speaker 02:
Those are clearly performance under the old contract.

[00:06:10] Speaker 02:
Here, though, the third action is the award of a new contract, which the Tucker Act provides us a substance of right to challenge.

[00:06:16] Speaker 03:
Now, let me ask you a couple quick questions, because the one thing I didn't understand is when the H4 says awarding a new task order,

[00:06:24] Speaker 03:
So for me, you don't have these cases, bid protest cases every single day.

[00:06:28] Speaker 03:
I wasn't sure, well, what's a task order?

[00:06:30] Speaker 03:
I know what an option is.

[00:06:31] Speaker 03:
That's what H1 and H3 define.

[00:06:34] Speaker 03:
And I know what a contract is, like the general schedule contract.

[00:06:38] Speaker 03:
But I wasn't sure what a task order is, vis-a-vis those two alternatives.

[00:06:43] Speaker 03:
And when I looked, the FAR defines a new task order as a contract, doesn't it?

[00:06:48] Speaker 03:
Yes, that's right.

[00:06:49] Speaker 03:
The FAR expressly defines it that way.

[00:06:51] Speaker 03:
And I looked at all of the Court of Federal Claims cases, and they all consistently, I'd say the best one is data management service, say any new task order is a new contract subject to procurement process and law, so to say.

[00:07:04] Speaker 03:
Yes, Your Honor.

[00:07:04] Speaker 03:
I couldn't find any Court of Federal Claims case that suggested a new task order, if issued, would not amount to a new contract or wouldn't be subject to procurement law.

[00:07:13] Speaker 03:
Are you aware of any cases to the contrary?

[00:07:15] Speaker 02:
We are aware of no cases to the contrary.

[00:07:17] Speaker 03:
But I found a lot of cases that say every new task order when issued under a GSA contract, and they're quite specific about that, which is what this is,

[00:07:25] Speaker 03:
constitute a new contract and are subject to procurement law.

[00:07:29] Speaker 03:
Now, of course, we're not bound by that large volume of Court of Federal Claims consistent precedent, though, are we?

[00:07:35] Speaker 03:
We could go awry and ignore that giant mountain of Court of Federal Claims precedent that says new task orders, whenever issued, are always subject to procurement laws.

[00:07:45] Speaker 03:
We could do that if we wanted to, right?

[00:07:47] Speaker 03:
Certainly, Your Honor.

[00:07:50] Speaker 02:
Your Honor, I would just repeat that these are new contracts, and the Tucker Act gives us the substantive right to challenge those new contract awards.

[00:07:56] Speaker 02:
That is the right we have exercised.

[00:07:58] Speaker 02:
I'll reserve my remaining time for questions.

[00:07:59] Speaker 07:
Well, no.

[00:08:00] Speaker 07:
I want to go back to what I was asking you before, because I was working backwards at it.

[00:08:04] Speaker 07:
And that is, as I understand your argument, you're saying the department violated the Cardinal Change Doctrine.

[00:08:14] Speaker 02:
That is not our argument here.

[00:08:16] Speaker 02:
I believe Appellant pioneer.

[00:08:18] Speaker 02:
Okay, that's great.

[00:08:20] Speaker 02:
Yeah argument is these are the award of a new contract We alleged as our complaint makes clear and then a complaint particular that this is Okay, you've already exceeded your time.

[00:08:30] Speaker 03:
So why don't we hear from mr. Schaefer?

[00:08:32] Speaker 03:
Chaffer Schaefer That way mr. Judge Wallach will be able to direct his question I think you're the proper person for his question.

[00:08:41] Speaker 03:
I

[00:08:41] Speaker 01:
Your Honor, may it please the court.

[00:08:43] Speaker 01:
First, I want to address a point that Judge Moore was making.

[00:08:46] Speaker 01:
I really think this case is a lot simpler than the government's trying to have it.

[00:08:49] Speaker 01:
And I think this court is bound.

[00:08:50] Speaker 01:
Judge Moore mentioned the cases from the Court of Federal Claims about whether a GSA task order is a contract.

[00:08:57] Speaker 01:
I think that's already been answered.

[00:08:59] Speaker 01:
I think if you look closely at this court's decision in CGI Federal, that was a dispute concerning a GSA scheduled task order.

[00:09:07] Speaker 01:
And the court was being asked, CGI Federal,

[00:09:11] Speaker 01:
If you take a close look at that case, every time they talk about the task order, they say the task order is a contract.

[00:09:21] Speaker 01:
On page 1348 of the decision, the court refers to the contracts at issue.

[00:09:26] Speaker 01:
There was a question whether the protester had standing, and the court said yes, they have standing because their economic interests are affected by the award of the contract.

[00:09:36] Speaker 01:
And that contract they were talking about was a GSA scheduled task order, just like here.

[00:09:40] Speaker 03:
I don't think this court can find... And I want to be really clear about one thing, because you're speaking very broadly, and I was as well about task orders.

[00:09:49] Speaker 03:
I think that there's actually a footnote in the Court of Federal Claims decision in data management.

[00:09:53] Speaker 03:
They claim there are certain task orders which are expressly exempted as not contracts, but those are under express statutory provision.

[00:10:02] Speaker 03:
Those are different from the one here.

[00:10:05] Speaker 03:
These contracts are different from GSA schedule contracts.

[00:10:10] Speaker 03:
I just want to be clear so that no one misunderstands, there are certain kinds of task orders, even if new, which wouldn't amount to a contract for which you could

[00:10:21] Speaker 03:
bring a big protest under procurement law.

[00:10:23] Speaker 03:
But those are clearly explained and delineated by statute, and they are not this case.

[00:10:29] Speaker 03:
This case is the one that falls into the general rule the CFC has consistently held about task orders.

[00:10:35] Speaker 01:
Correct?

[00:10:35] Speaker 01:
Absolutely, Your Honor.

[00:10:35] Speaker 01:
There are two kinds of task orders.

[00:10:37] Speaker 01:
There are 8.4 task orders, which are GSA scheduled task orders, and that's the type of task order that was addressed in the CGI federal case.

[00:10:45] Speaker 01:
And it's the kind of task order we're talking about here.

[00:10:47] Speaker 01:
It's a task order under a GSA schedule contract.

[00:10:50] Speaker 07:
Now, you had a pending question for me when you stood up.

[00:10:55] Speaker 01:
Good job.

[00:10:56] Speaker 01:
I apologize, Your Honor.

[00:10:57] Speaker 01:
Let me address that directly.

[00:10:59] Speaker 01:
We did have a cardinal change argument, but that was really our third or our tertiary alternative argument.

[00:11:06] Speaker 01:
Our first argument is the court has jurisdiction because this is a contract.

[00:11:09] Speaker 07:
And under the second problem, the top... Cardinal change applies when the department materially changes the duties that a contract owes.

[00:11:18] Speaker 01:
That's correct, Your Honor, but that's our third alternative argument.

[00:11:21] Speaker 07:
What are the duties that materially changed?

[00:11:24] Speaker 01:
The duty under the evaluation criteria as to how they were going to award the new contract.

[00:11:29] Speaker 01:
The H-4 clause is the same thing as a solicitation that says... Your duties?

[00:11:35] Speaker 01:
The government's duties.

[00:11:36] Speaker 01:
The government changed the procedures.

[00:11:38] Speaker 01:
that applied to the new awards.

[00:11:41] Speaker 01:
The government said, we're going to evaluate your past performance.

[00:11:44] Speaker 01:
And Pioneer had exemplary past performance.

[00:11:46] Speaker 01:
And then they were told, but you're still not going to get a contract.

[00:11:49] Speaker 01:
They changed the fundamental ground rules.

[00:11:51] Speaker 05:
That's really your complaint is that your performance evaluation was not just.

[00:11:58] Speaker 01:
Well, it's more than that.

[00:11:59] Speaker 01:
It's that our performance evaluation was just.

[00:12:02] Speaker 01:
We were exceptional.

[00:12:05] Speaker 01:
Our complaint is that they changed the rules.

[00:12:08] Speaker 01:
They said, we're not going to use that performance evaluation anyway.

[00:12:10] Speaker 01:
We're going to use something completely different.

[00:12:12] Speaker 01:
And if you look in the appendix, we have Mr. Fraser's declaration under oath about how shocked they were when they found out they were being excluded.

[00:12:22] Speaker 05:
Are you challenging the interpretation of the existing terms of the old contracts?

[00:12:29] Speaker 01:
Well, we're challenging the way in which the government evaluated

[00:12:34] Speaker 01:
the competitors for the 2015 awards, the contract awards.

[00:12:39] Speaker 05:
And if a court of law looks at that issue that you're raising, it has to go back and interpret the terms of the existing contract in order to resolve your problem.

[00:12:51] Speaker 01:
It has to look at the terms of the existing contract as part of the evaluation process, the analysis process.

[00:12:56] Speaker 01:
But that's often true when you're evaluating for a GSA scheduled task order.

[00:13:02] Speaker 01:
You have to look to the master GSA contract, the pre-existing contract.

[00:13:06] Speaker 01:
All these task orders, it's very common to have follow-on,

[00:13:09] Speaker 01:
Task force that come under a single GSA contract and that's right.

[00:13:13] Speaker 05:
I see that there is there's a lot of confusion even among cases We have a term task order use or contract So let me ask you a question Any time that that a a contract is extended by the terms of the contract the resulting

[00:13:31] Speaker 05:
instrument.

[00:13:32] Speaker 05:
Is that a new contract or an extension?

[00:13:34] Speaker 01:
No.

[00:13:35] Speaker 01:
If the contract is extended under the terms of the existing contract under the option clauses, then it's not a new contract at all.

[00:13:44] Speaker 01:
It's an option.

[00:13:45] Speaker 05:
That's contract administration.

[00:13:46] Speaker 05:
So there can be extensions

[00:13:48] Speaker 05:
And what's extended can also be called a new task order, a task order, correct?

[00:13:52] Speaker 01:
Well, in this case, it is, and that's the sharp distinction.

[00:13:56] Speaker 01:
I would say that almost everything.

[00:13:58] Speaker 03:
To be clear, under H1 and H3, the options clauses, and when you typically have options clauses in these contracts, those are never issued as new task orders.

[00:14:08] Speaker 03:
They're always under the existing task order, and that's what makes H4 so unusual and different.

[00:14:14] Speaker 01:
That's right, and if you look closely at

[00:14:17] Speaker 01:
Judge Allegra's decision, the trial court's decision, he distinguished between that, just like H4 distinguishes it, and said that's not an option clause.

[00:14:25] Speaker 01:
So the option clause is basically extend the existing contract.

[00:14:29] Speaker 01:
H4 awards a new contract.

[00:14:32] Speaker 01:
And that's a sharp and fundamental difference.

[00:14:34] Speaker 01:
And it's in the language of H4.

[00:14:36] Speaker 01:
It's very clear.

[00:14:37] Speaker 01:
It talks about, in addition to the ordering periods stated in clause B5 and any option terms,

[00:14:45] Speaker 05:
exercise pursuant to each one the contractor may earn these additional uh... new contract awards and those new orders you're going to do that new contract were not or your complaint also is not that h four was not uh... applied here your complaint is that you weren't chosen

[00:15:07] Speaker 01:
Well, no, our complaint is that these other companies were chosen instead of us based on terms that were not included in the evaluation criteria.

[00:15:16] Speaker 05:
That's a fundamental violation of CECA.

[00:15:20] Speaker 05:
The extensions that did occur, there were 17 companies, right?

[00:15:24] Speaker 05:
And I believe that 12 of them were extended and five were not.

[00:15:27] Speaker 05:
Is that?

[00:15:28] Speaker 01:
There were 22 and it was reversed.

[00:15:31] Speaker 01:
Nine were eligible for new contract awards and five got new awards and that's what we're here for.

[00:15:37] Speaker 05:
But the initial process, there never was an exercise of a termination clause of the existing contract.

[00:15:44] Speaker 05:
And there never was a new bid protest or a new solicitation for bids.

[00:15:52] Speaker 01:
Well, in effect, there was under H4 is a new solicitation.

[00:15:55] Speaker 01:
And these contracts expire.

[00:15:57] Speaker 01:
The new awards, the H4 orders, cannot be

[00:16:01] Speaker 01:
part of the original contract because those contracts expired.

[00:16:04] Speaker 01:
They're out of time.

[00:16:05] Speaker 01:
It would be fundamentally a violation of law for them to be extended because the six months are gone.

[00:16:09] Speaker 01:
All the options are gone.

[00:16:10] Speaker 01:
That contract, they're still being wrapped up, closed down work, but the contracts are essentially finished and there's going to be a new task work.

[00:16:17] Speaker 01:
And that's a separate legal instrument.

[00:16:20] Speaker 01:
And it's a new

[00:16:21] Speaker 01:
contract, and that's what the Tupper Act provides jurisdiction for, a contract award.

[00:16:25] Speaker 03:
It can't be part of the old contract.

[00:16:27] Speaker 03:
And a lot of the arguments that you're discussing with Judge Raina really go to the merits, which is what you weren't allowed to present below because your case was dismissed at the stage it was dismissed at, right?

[00:16:37] Speaker 03:
So we don't have to decide that you win or that we even think there's a likelihood that you should win at this stage.

[00:16:45] Speaker 03:
We don't have to endorse anything about any of those merits-based arguments.

[00:16:49] Speaker 03:
We just have to decide whether you have the right to walk through the door and protest.

[00:16:53] Speaker 01:
Yes, and to be very clear, we don't need to reach the Cardinal Change issue at all.

[00:16:56] Speaker 01:
All this court has to do is say that a GSA task order is a contract.

[00:17:00] Speaker 07:
Are you abandoning the Cardinal Change?

[00:17:03] Speaker 01:
We're not abandoning it.

[00:17:04] Speaker 01:
It's really a third stage argument.

[00:17:05] Speaker 01:
There's no need for this court to get to that issue.

[00:17:07] Speaker 07:
Well, need or not, you've left me totally confused, and I want to clarify it.

[00:17:13] Speaker 07:
The Cardinal Change doctrine applies when I'm quoting from ATT v. Wiltell.

[00:17:18] Speaker 07:
applies when the government affects an alteration in the work so drastic that it effectively requires the contractor to perform duties materially different from those originally bargained for.

[00:17:30] Speaker 07:
Leaving aside that that ends the sentence in a preposition, except it is finding authority.

[00:17:37] Speaker 07:
And so my question is, your answer to me seemed to be, will the government change its duties?

[00:17:46] Speaker 01:
Well, the government changed the ground rules so that these other contractors were getting contracts that were beyond the original expectation.

[00:17:54] Speaker 07:
What are the duties that you have to perform that are materially different?

[00:18:01] Speaker 07:
Your duties are still to give accurate information over the phone, is that not correct?

[00:18:07] Speaker 01:
Well, that's correct, but the new contractors, really, that's what we're protesting, these new contractors, they're performing a contract that they're receiving under different grounds.

[00:18:16] Speaker 01:
The duties are that they now have a contract that was awarded under criteria different than what everyone was bidding on in effect.

[00:18:27] Speaker 01:
So the ground rules changed.

[00:18:28] Speaker 01:
And I think if you look at the trial court's decision, it talks about changes in the scope or the procedures.

[00:18:34] Speaker 01:
And if the procedures have changed.

[00:18:35] Speaker 03:
OK, Mr. Schaffer.

[00:18:36] Speaker 03:
I think we need to move on.

[00:18:39] Speaker 03:
Mr. Snyder, you're first.

[00:18:41] Speaker 03:
And we've gone way over with the two appellants.

[00:18:46] Speaker 03:
So you can use your time.

[00:18:48] Speaker 03:
And if you need more, certainly we'll be generous.

[00:18:51] Speaker 08:
Yes, Your Honor.

[00:18:52] Speaker 08:
I'll try to keep it brief.

[00:18:55] Speaker 08:
May it please the court.

[00:18:58] Speaker 08:
Each of the extensions here is an issue of contract administration made in accordance with the explicit terms of the task orders.

[00:19:05] Speaker 08:
The Contract Disputes Act provides the exclusive mechanism to resolve these claims.

[00:19:10] Speaker 08:
Therefore, the trial court correctly concluded that it did not possess jurisdiction to assess these claims as bid protests.

[00:19:18] Speaker 08:
Each of the contractors agreed in 2009 that education had broad discretion to administer the extensions.

[00:19:24] Speaker 08:
The fact that the extensions will take the form of a new task order does not give rise to bid protest jurisdiction in and of itself.

[00:19:31] Speaker 08:
You have to look at the substance of the contract and look at the language of the statute.

[00:19:37] Speaker 08:
The case from this court, resource conservation, explains that in order to be protestable, something has to be in connection with a procurement.

[00:19:46] Speaker 08:
That language, in that case, it was found that that language applied to all

[00:19:52] Speaker 08:
three so-called prongs of the Tucker Act, including the second prong regarding award of a contract.

[00:19:57] Speaker 08:
So the question is, are these extensions in connection with the procurement?

[00:20:02] Speaker 08:
And the procurement here occurred in 2009.

[00:20:04] Speaker 08:
At that time, under FAR Part 8, there was a request for quotes.

[00:20:10] Speaker 08:
There was an evaluation of all the documentation submitted by the various private collection agencies.

[00:20:18] Speaker 08:
Four volumes were submitted.

[00:20:19] Speaker 08:
It was the best value determination.

[00:20:21] Speaker 05:
That... So the public council says that these extensions are in connection with the procurement, because the ground rules for the initial solicitation were changed.

[00:20:34] Speaker 08:
Yes, your honor.

[00:20:34] Speaker 08:
And that is incorrect.

[00:20:37] Speaker 08:
The ground rules here, the initial solicitation that occurred, now we are looking at what is in the task orders, which was of course also in that initial solicitation, the language of these task orders.

[00:20:49] Speaker 08:
It gave the department

[00:20:50] Speaker 08:
broad discretion to administer the extensions.

[00:20:53] Speaker 08:
It says that, for example, in Clause H4 and H7, those are the primary clauses that inform this issue.

[00:21:00] Speaker 08:
It says that a contractor may earn a performance extension, that there is a threshold performance rating you have to achieve.

[00:21:08] Speaker 08:
But even if you achieve that rating, that education will base the decision on a total range of issues completely within education's discretion.

[00:21:17] Speaker 08:
The task orders also explain that federal law does apply.

[00:21:21] Speaker 08:
The Fair Debt Collection Practices Act is explicitly referenced in the task orders.

[00:21:25] Speaker 08:
And the task orders are also clearly for a transitionary period.

[00:21:30] Speaker 08:
It states in clause H4B that the extensions will coincide with the next round of task orders that are coming up.

[00:21:38] Speaker 08:
And so the question is whether these task orders should be treated as the award of a contract for the purpose of the Tucker Act.

[00:21:47] Speaker 08:
you correctly pointed out that some task orders are barred from Tucker Act jurisdiction by statute.

[00:21:52] Speaker 08:
These task orders don't fall under that bar, but

[00:21:56] Speaker 03:
The question here is, in the FAR... When I look at these task orders not fall under the BAR, but every Court of Federal Claims case, and there really are a lot of them, say any time a new task order is issued under the GSA schedule contracts, as opposed to those two little exception ones that are delineated by statute, that those are always subject to the process of impairment laws.

[00:22:20] Speaker 03:
I can't find it.

[00:22:21] Speaker 03:
I found lots of cases that say that.

[00:22:23] Speaker 03:
Every new task order issued under a GSA schedule contract is subject to procurement law.

[00:22:29] Speaker 03:
Do you have any disagreement with my understanding?

[00:22:32] Speaker 08:
Absolutely not, Your Honor.

[00:22:33] Speaker 08:
Those cases are not in dispute here because

[00:22:37] Speaker 08:
This extension provision is a provision that could be in a task order.

[00:22:43] Speaker 08:
This could be in a government contract that's not a task order.

[00:22:46] Speaker 08:
This extension provision here happens to be in a task order.

[00:22:48] Speaker 03:
But the question is... Well, it's not just in a task order.

[00:22:52] Speaker 03:
The extension provision distinguishes itself from the option in H4, right?

[00:22:56] Speaker 03:
It uses both words repeatedly.

[00:22:58] Speaker 03:
And it says, in addition to any option terms, and then it goes on to explain this extension,

[00:23:06] Speaker 03:
will be in the form of a new task order only if funds are available, only if the contractor accepts whatever terms the government provides with regard to pricing and term.

[00:23:18] Speaker 03:
And unlike the option, this new task order doesn't have any duration at all, right?

[00:23:24] Speaker 03:
The option terms are six months, 60 months.

[00:23:27] Speaker 03:
This is going to start, we don't know when, the new task order will start, and we don't know when the new task order will finish.

[00:23:34] Speaker 03:
Those are, in fact, as my understanding of contract law, and I'm no contract guru, but the term of a contract is generally viewed as a material term, right?

[00:23:43] Speaker 03:
Yes, Your Honor.

[00:23:43] Speaker 03:
The duration of a contract is a material term.

[00:23:49] Speaker 03:
This leaves that term open to negotiation between the parties.

[00:23:53] Speaker 08:
It does.

[00:23:54] Speaker 08:
That, in and of itself,

[00:23:56] Speaker 08:
If we look at the definition of the word contract in the FAR, that word contract in the FAR, which is a FAR clause 2.102.

[00:24:04] Speaker 07:
You're going to say it's not a contract because it's indefinite.

[00:24:07] Speaker 08:
No, I'm not, Your Honor.

[00:24:08] Speaker 07:
Actually, no.

[00:24:10] Speaker 08:
I'm going to say that the term contract in the FAR includes a lot of things, including bilateral modifications.

[00:24:17] Speaker 08:
Bilateral modifications typically are not protestable.

[00:24:21] Speaker 08:
At AT&T there was a bilateral modification.

[00:24:27] Speaker 03:
Isn't it possible that you could have done the same thing you did here through, what do you call them, a task order amendment or a task order modification?

[00:24:37] Speaker 03:
I found evidence of both of those in case law.

[00:24:40] Speaker 03:
And those, unlike this, are never considered a new task order.

[00:24:44] Speaker 03:
Task order amendments and task order modifications are amendments or modifications to the existing task order, correct?

[00:24:50] Speaker 03:
Yes, Your Honor.

[00:24:52] Speaker 03:
And your argument, which I probably didn't even let you finish because I knew where you were going, doesn't seem to work in this situation because H4 doesn't allow for a task order modification or amendment.

[00:25:04] Speaker 03:
It says it will be executed in the form of a new task order.

[00:25:08] Speaker 03:
You couldn't be clearer.

[00:25:10] Speaker 08:
It does say that.

[00:25:11] Speaker 08:
I think if you look at the entirety of clause H4, H7, and the surrounding provisions in the contract and look at it as a whole,

[00:25:18] Speaker 08:
it is illogical to think that the parties anticipated and reasonably concluded at the time in 2008-2009 when these contracts were completed initially that they intended for this clause to give rise to bid-process jurisdiction now.

[00:25:34] Speaker 08:
There is no criteria explicitly stated in this clause except for the threshold

[00:25:41] Speaker 08:
CPCS score of 85, that you have to have a certain CPCS score in order to be even eligible.

[00:25:46] Speaker 08:
But that eligibility isn't enough.

[00:25:48] Speaker 08:
It's necessary, but not sufficient to get.

[00:25:51] Speaker 08:
And the rest of it is very open-ended as to what the department can consider.

[00:25:55] Speaker 08:
That is very different than what you see in whether you have a solicitation.

[00:25:58] Speaker 08:
And there's terms that have to be applied.

[00:26:00] Speaker 08:
There has to be explicit documentation that shows that the agency applied the terms of the solicitation to the proposals it received.

[00:26:09] Speaker 08:
And here that was done in 2008.

[00:26:12] Speaker 03:
So to look at... I spent a lot of time on this case trying to learn about GSA scheduling contracts.

[00:26:20] Speaker 03:
I didn't know anything about them before this.

[00:26:23] Speaker 03:
And so tell me if I understand the facts right.

[00:26:25] Speaker 03:
Basically in 1990 there was a broad GSA contract that was given and it was under this broad contract that the Department of Education was allowed to select contractors to whom task orders could be awarded.

[00:26:38] Speaker 03:
Is that right?

[00:26:39] Speaker 03:
Yes, Your Honor.

[00:26:39] Speaker 03:
Okay.

[00:26:41] Speaker 03:
And how many people were under that GSA contract?

[00:26:43] Speaker 03:
There were 22 private collection agencies.

[00:26:46] Speaker 03:
Okay, so we've got a contract, a GSA scheduling contract, and now the Department of Education, all those 22 have qualified under that contract as eligible, much like the people in this extension qualify as eligible if they meet certain predicate criteria, right?

[00:27:03] Speaker 08:
It was a lot more complicated.

[00:27:05] Speaker 08:
The eligibility criteria for H4 is very simple.

[00:27:07] Speaker 03:
Certainly, but we've also dwindled the universe now.

[00:27:10] Speaker 03:
The criteria for the 1990 would have been much more complicated, but now we're only talking about 22 people who are generally eligible for these things.

[00:27:18] Speaker 08:
And even here, this criteria in H4, it's only a threshold.

[00:27:21] Speaker 08:
It says may earn, so it still isn't.

[00:27:25] Speaker 08:
Unlike for the other clauses that are

[00:27:28] Speaker 08:
related to the CPCS scores.

[00:27:30] Speaker 08:
H5 says that if you have a certain score, you will earn a performance fee.

[00:27:35] Speaker 08:
You will earn more accounts.

[00:27:37] Speaker 03:
Let me finish where I was going.

[00:27:38] Speaker 03:
Because then in 2009, pursuant to this general scheduling contract, the Department of Education gave task orders to the 22 private collection agencies, right?

[00:27:50] Speaker 03:
Each of those task orders is a new contract, correct?

[00:27:54] Speaker 03:
That is correct, yes.

[00:27:55] Speaker 03:
And each of those new task orders would absolutely be subject to big protest laws in the process, like the same process that people want access to now.

[00:28:03] Speaker 08:
Generally, that's correct, yes, ma'am.

[00:28:07] Speaker 03:
But back then, you would have made, I don't know, RFQs or something?

[00:28:13] Speaker 03:
Would there have been something?

[00:28:15] Speaker 03:
I mean, this is different.

[00:28:16] Speaker 03:
Look, I'm not saying this is by any means exactly like the 2009 issuance of the tax quarters, because back then, wouldn't there have been something the government put out in the solicitation, or?

[00:28:26] Speaker 08:
Exactly.

[00:28:27] Speaker 08:
I mean, there was the RFQ, which is in the record.

[00:28:30] Speaker 08:
And in the ERS record, I believe it's at page 127.

[00:28:37] Speaker 08:
And that's the beginning of it.

[00:28:39] Speaker 08:
And in the other record for Pioneers at 1058,

[00:28:43] Speaker 08:
That RFQ, the sections L and M of that RFQ tell you what the four criteria are for the best value determination.

[00:28:50] Speaker 08:
There's past performance, technical evaluation, commitment to small business, and I believe price is the last one.

[00:28:57] Speaker 08:
The pricing was, the umbrella contract had a ceiling price, and then the price was lowered by the RFQ and the Statement of Work.

[00:29:07] Speaker 08:
So all of those things were considered, those four factors.

[00:29:10] Speaker 08:
There were four volumes submitted by each of the

[00:29:12] Speaker 08:
private collection agencies at the time.

[00:29:14] Speaker 03:
And so if somebody thought the government had done something squirrely in awarding those contracts, they hadn't followed their criteria, or their criteria wasn't fair or appropriate, or was there some problem with it, they could have been brought up in protest.

[00:29:27] Speaker 08:
They could have.

[00:29:28] Speaker 08:
And I think here, there's a language in the form of a new task order.

[00:29:32] Speaker 08:
Our view is that you have to look at what you've got to be.

[00:29:34] Speaker 03:
That's unfortunate.

[00:29:35] Speaker 03:
That was unfortunate language.

[00:29:39] Speaker 08:
I think that our view is that it doesn't give rise in and of itself to bid-produce jurisdiction, just like a bilateral modification, which is defined as a contract in the FAR doesn't give rise to bid-produce jurisdiction unless it should, unless the substance in the context gives rise to bid-produce jurisdiction.

[00:29:55] Speaker 08:
A bilateral modification in AT&T did not give rise to bid-produce jurisdiction because adding work to an existing contract in and of itself, unless there's a cardinal change, doesn't give rise to bid-produce jurisdiction.

[00:30:07] Speaker 08:
This court explained in that case what the court considers in determining that.

[00:30:12] Speaker 03:
The difference between that and this is really the Grand Canyon because the difference between that and this is that was a modification to an existing contract to add new work and here you wrote this.

[00:30:24] Speaker 03:
The government generated this contract.

[00:30:27] Speaker 03:
and you decided instead to say it had to be a new task order and the terms are not fully defined and they're less open to negotiation between the parties, material terms.

[00:30:40] Speaker 03:
It's a big difference.

[00:30:43] Speaker 03:
I understand the bilateral notification.

[00:30:45] Speaker 03:
I'm just trying to wrap my head around why I should extend that to this, which feels so different.

[00:30:52] Speaker 08:
Well, I guess bilateral modifications are not unilateral, so they require both parties to agree to the terms.

[00:30:58] Speaker 08:
So in that sense, the fact that here pricing was an issue, all the parties agreed to the price.

[00:31:04] Speaker 08:
In fact, did all the protesters want to perform these extensions?

[00:31:08] Speaker 08:
There's no question that they're going to accept the price.

[00:31:13] Speaker 08:
To the extent that makes it bilateral, not unilateral, it's not dispositive as to whether it... As I said, bilateral modifications are generally not protestable.

[00:31:23] Speaker 08:
So that aspect of bilateral isn't dispositive.

[00:31:27] Speaker 03:
So are you saying that we should assume this is bilateral because you know they'll accept the price, whatever price you give them?

[00:31:33] Speaker 03:
Is that your argument for why it's bilateral?

[00:31:37] Speaker 08:
My argument is simply that it being bilateral in and of itself isn't enough to give rise to bid protest jurisdiction.

[00:31:42] Speaker 08:
It has to be in connection with a procurement.

[00:31:44] Speaker 08:
And so to be a procurement, this court, in distributed solutions, this court used the definition of procurement.

[00:31:53] Speaker 08:
It's a broad definition, but explained that and cited to the decision of AT&T, also from this court, that there are situations where work is added to a contract that doesn't give rise to a bid protest.

[00:32:07] Speaker 08:
case is much more like AT&T than like Distributed Solutions.

[00:32:12] Speaker 08:
Another case, which is from the trial court, Magnum Opus, is a case where there were a series of contracts, some of which options were extended, some of which options were not extended.

[00:32:24] Speaker 08:
And the trial court, in that case, found it to address jurisdiction because a price cap had been lifted.

[00:32:29] Speaker 08:
And so it was, and it determined a price.

[00:32:31] Speaker 03:
And because of that... You represent the government, right?

[00:32:33] Speaker 03:
Yes, Your Honor.

[00:32:35] Speaker 03:
So let me ask you a question.

[00:32:36] Speaker 03:
Is there a floodgate problem here?

[00:32:38] Speaker 03:
I've never seen, I've seen a lot of government contracts come through my court, and I've seen lots of them include options.

[00:32:45] Speaker 03:
I've never seen one that includes this language about an extension that would be subject to a new task order.

[00:32:52] Speaker 03:
Is this a provision that is routinely in your experience used?

[00:32:56] Speaker 03:
Have you seen lots of contracts written this way?

[00:32:58] Speaker 03:
I kind of felt like it might be anomalous, and that's why I said before, unfortunate choice of words in the contract, unfortunate drafting.

[00:33:06] Speaker 03:
I didn't see this to be a standard.

[00:33:08] Speaker 03:
I've never seen this clause before in any contract.

[00:33:11] Speaker 03:
Is this a standard clause?

[00:33:13] Speaker 03:
Is this a standard thing?

[00:33:15] Speaker 08:
My understanding is that there's at least one other agency that has used this clause, perhaps more, of the Department of Energy, and that our position in the case is that the court below talked about that the general parameters of a protest jurisdiction should not be eroded because it can lead to policy implications that

[00:33:39] Speaker 08:
administration of contract matters can become protestable if the court finds that too many things are in connection with the procurement.

[00:33:48] Speaker 08:
And we feel that this case falls on the side of the line that is not a procurement for all the reasons I've stated.

[00:33:54] Speaker 08:
And that while it may be different in some ways than your typical option, for sure it is.

[00:34:00] Speaker 08:
that it does erode that line.

[00:34:03] Speaker 08:
When this is a contractual mechanism, everyone agreed.

[00:34:07] Speaker 08:
Blue and Gold tells us when you agree in a contract to the terms, and we follow the terms in the contract, which are very vague and very broad, but we follow them.

[00:34:17] Speaker 08:
And we have cases that you can under the CDA, which provides you the recourse to attack the decision or challenge it from the government.

[00:34:26] Speaker 08:
And even when they have broad discretion,

[00:34:28] Speaker 08:
and abusive discretion standard applied under the CDA to these types of decisions.

[00:34:32] Speaker 08:
So it's not the case that they have no recourse or no ability to seek and challenge and overturn the decision.

[00:34:41] Speaker 03:
But at this point they don't, right?

[00:34:42] Speaker 03:
They're time bars from the CDA claim at this point.

[00:34:46] Speaker 03:
So they may have been able to bring one, but they wouldn't be able to now, would they?

[00:34:50] Speaker 08:
a CDA claim for damages.

[00:34:52] Speaker 03:
Now if they were to bring some sort of CDA claim, I mean, isn't it too late?

[00:34:58] Speaker 03:
I assume there's a statute of limitations on those.

[00:35:01] Speaker 08:
I don't believe it would be too late.

[00:35:03] Speaker 08:
I don't believe it would be too late, Your Honor.

[00:35:08] Speaker 05:
Would it be too late for them to follow a claim with the GAO, as one of the defendants did?

[00:35:19] Speaker 08:
I believe it would be, Your Honor.

[00:35:22] Speaker 08:
And one of them did here in that case was dismissed because the cases in the trial court.

[00:35:30] Speaker 05:
It was dismissed because under statute they had to dismiss it because there was a case before the Court of Federal Claims.

[00:35:36] Speaker 05:
Yes, Your Honor.

[00:35:36] Speaker 05:
But if there's no case before the Court of Federal Claims or pending here, do they still have recourse to the GAO?

[00:35:45] Speaker 05:
I mean, I'm asking because I don't know.

[00:35:48] Speaker 08:
I don't know with the GAO.

[00:35:49] Speaker 08:
I mean, the GAO here at Denver decided whether or not it had jurisdiction.

[00:35:53] Speaker 08:
So I mean, our view is that there is no bid protest jurisdiction for this type of dispute because of the CDA.

[00:35:59] Speaker 05:
How operative is the circumstance of the existence of a solicitation or a bid process to the interpretation of the cases that apply to this particular issue?

[00:36:15] Speaker 08:
It's not necessary to always have a solicitation to be able to protest.

[00:36:19] Speaker 08:
That's clear.

[00:36:20] Speaker 08:
There are cases, specifically the outside the scope cases that usually give rise to that type of situation.

[00:36:28] Speaker 05:
You can have a pre-solicitation protest.

[00:36:31] Speaker 08:
And you can have a pre-solicitation protest as well, yes.

[00:36:35] Speaker 08:
And so solicitations aren't necessary.

[00:36:37] Speaker 05:
It seems that the Court of Federal Claims based its jurisdiction analysis and decision

[00:36:43] Speaker 05:
on whether this involved a bid process or not.

[00:36:47] Speaker 05:
And it said the extensions did not involve a bid process.

[00:36:51] Speaker 05:
It's all with respect to the administration of the existing contracts.

[00:36:55] Speaker 05:
Therefore, we lack jurisdiction.

[00:36:58] Speaker 05:
Was the Court of Federal Claims correct in narrowing the issue in that manner?

[00:37:06] Speaker 08:
I think the Court of Federal Claims was correct in narrowing the issue in that way.

[00:37:12] Speaker 08:
There is more to be said about it.

[00:37:13] Speaker 08:
But I do think as far as the court went, it was correct.

[00:37:16] Speaker 08:
And it was succinct.

[00:37:19] Speaker 08:
Now that we've had more time, and the parties have been two rounds of briefing, there's a lot of arguments that have been developed further at this level.

[00:37:26] Speaker 08:
But in the end, it still all goes back essentially to what the trial court says.

[00:37:30] Speaker 08:
And that the parties all agreed, as the trial court said in the footnote, that this is how these extensions would be administered.

[00:37:40] Speaker 08:
and they were administered in accordance with the contract that was agreed to.

[00:37:45] Speaker 08:
The mere fact that it said in the form of a new task order to use that as the linchpin for jurisdiction when this is a contractual mechanism.

[00:37:55] Speaker 08:
It's not to say that clause H4 is a solicitation, as I think my counsel said here.

[00:38:03] Speaker 08:
We don't agree with that, that clause H4 is a solicitation.

[00:38:05] Speaker 08:
It has none of the indicia of a solicitation.

[00:38:09] Speaker 08:
It has no criteria, only a threshold performance rate that isn't even enough.

[00:38:15] Speaker 03:
Perhaps that's exactly why they want to protest it.

[00:38:19] Speaker 03:
Our view would be they should have protested.

[00:38:21] Speaker 03:
You're going to issue a new contract, a new task order, which is by definition a new contract, and you're going to award it without having articulated the precise criteria under which it should be awarded.

[00:38:32] Speaker 03:
Maybe that actually goes to the merits of why they want to protest.

[00:38:37] Speaker 08:
Perhaps.

[00:38:38] Speaker 08:
Our view is A, if they wanted to have more criteria, they should have protested the solicitation and added that criteria.

[00:38:44] Speaker 08:
I sought to add it, A. And B, we know now the facts in the record show, this is at the appendix at pages 2106 to 2115 and 3344, that these are two-year extensions.

[00:39:02] Speaker 08:
So that was established at the trial court.

[00:39:05] Speaker 08:
While that's not a contractual term, the contract doesn't provide a time limit.

[00:39:09] Speaker 08:
If you're going to look at whether this was an outside the scope modification that the trial court in AT&T explains here, the Federal Circuit explains, that what the trial court should do is look at the type of work, the quantity,

[00:39:21] Speaker 08:
and the price, how much, how drastic was the change?

[00:39:24] Speaker 03:
I don't think that we need to go there at this point.

[00:39:27] Speaker 03:
I don't think that was one of their stronger arguments.

[00:39:29] Speaker 03:
So I don't think you have to probably spend a lot more time, because we are way over.

[00:39:33] Speaker 03:
And we have to give Mr. Marwell a chance.

[00:39:36] Speaker 03:
He's got three minutes.

[00:39:38] Speaker 08:
Yes, Your Honor.

[00:39:38] Speaker 08:
Thank you very much.

[00:39:39] Speaker 03:
You've been very helpful.

[00:39:40] Speaker 03:
Thank you, Mr. Snyder.

[00:39:45] Speaker 04:
Good morning, Your Honor.

[00:39:47] Speaker 04:
Jeremy Marwell for the Private FOE.

[00:39:50] Speaker 04:
Even if you think the award term extensions here were task orders and that task orders are contracts, there also has to be a procurement under the Tucker Act, and that's this Court's decision in resource conservation.

[00:40:03] Speaker 04:
So you can decide this case and affirm the judgment without saying anything at all.

[00:40:07] Speaker 05:
Well, you can bring a protest before them.

[00:40:11] Speaker 05:
You can do a precondition, correct?

[00:40:13] Speaker 04:
That's right.

[00:40:14] Speaker 04:
But there still has to be this Court's decision in resource conservation said that that tag at the end of

[00:40:19] Speaker 04:
1491B1 in connection with procurement.

[00:40:22] Speaker 04:
applied back to prompts two and prompts three.

[00:40:25] Speaker 05:
So what would be one of the definitions of a solicitation?

[00:40:29] Speaker 05:
Would it be that the process is opened up to other interests?

[00:40:36] Speaker 05:
For example, other companies could have, if this was a new contract and it should be viewed as a solicitation of some kind, would other companies have been able to have competed for the work?

[00:40:52] Speaker 04:
Well, so we do know that, and I don't mean to not answer your question, but we do know that adding work within the scope of an existing contract is not a procurement, right?

[00:41:01] Speaker 04:
A dictionary definition or the broadest possible reading of the word procurement would sweep in things that this board and the trial court have said are not a procurement.

[00:41:09] Speaker 05:
But I'm asking the absence of other companies being able to compete for the worker or not.

[00:41:15] Speaker 04:
Does that make a difference?

[00:41:18] Speaker 04:
In the 2008-2009 period, there was a request for quotes.

[00:41:23] Speaker 04:
There were submissions of proposals by numerous potential contractors.

[00:41:27] Speaker 04:
There was an award.

[00:41:28] Speaker 04:
All of those things were associated with issuance of a task order.

[00:41:31] Speaker 04:
And I think when you look at all the cases, Judge Moore, from the trial court

[00:41:35] Speaker 04:
Those are all cases involving task orders in that context.

[00:41:38] Speaker 04:
And so the fact the parties agreed upfront and that the award term extensions were issued within the scope of the H4 extension and that they were repeatedly called extensions.

[00:41:50] Speaker 04:
I mean, in all capital letters at the top, award term extension.

[00:41:53] Speaker 04:
I might also point out that at Pioneer Appendix 1615, the award term extensions, quote, will be subject to the terms and conditions of the existing task orders.

[00:42:05] Speaker 04:
The government, this continues, the government's target prices for the current PCA task orders will apply to the award term extension.

[00:42:13] Speaker 04:
So all of those things show that, are exactly what happened here.

[00:42:19] Speaker 04:
With respect to the characteristics of the... How do you respond to your opponent's argument that

[00:42:25] Speaker 05:
Um, the, the landscape was changed and there was a, there was a change that modified the, the prior, I guess the 2009 solicitation.

[00:42:35] Speaker 05:
The game rules had been changed and that change affects the prior solicitation and therefore this doesn't bother solicitation.

[00:42:43] Speaker 05:
We have a new contract.

[00:42:45] Speaker 04:
So with respect, I don't think that's a fair reading of the H-4 provision.

[00:42:51] Speaker 04:
When you look at the task order as a whole, it says that the award term extension would be issued within the discretion of the department, that the numerical scores would only be a prerequisite, a necessary but not sufficient.

[00:43:03] Speaker 04:
The task order repeatedly refers to the exact same federal laws that the Department of Education looked at, the Fair Debt Collection Practices Act, which is what you would expect in a task order involving collection of student loan debt.

[00:43:15] Speaker 04:
and that the audits could occur, they could be announced or unannounced, and so all of those things are exactly what happens here.

[00:43:24] Speaker 04:
So I think to say that that was a cardinal change, a material change, is a high bar and I don't think that the appellants have crossed it.

[00:43:33] Speaker 04:
One piece that...

[00:43:42] Speaker 07:
the department can determine the adequacy of the contractor's performance on all accounts.

[00:43:48] Speaker 04:
Certainly agree.

[00:43:49] Speaker 04:
Which is what they're doing.

[00:43:50] Speaker 04:
Certainly agree.

[00:43:52] Speaker 04:
And with respect to another case, I think it is significant when you are interpreting.

[00:43:57] Speaker 03:
Isn't it relatively routine, especially under these GSA contracts, when you're deciding to award a new contract or a new task order to someone to consider their past performance under the other contracts that they've managed?

[00:44:09] Speaker 03:
Isn't that almost in every

[00:44:12] Speaker 03:
single award part of the criteria that the government uses?

[00:44:17] Speaker 04:
So you could characterize, I suppose, it that way.

[00:44:19] Speaker 03:
Yes or no question, yes?

[00:44:20] Speaker 03:
Yes, past performance is a characteristic.

[00:44:24] Speaker 03:
Exactly like what they did here, they would look at your performance under your most recent, like suppose this was clear, suppose this wasn't an extension, wasn't even an award term extension.

[00:44:34] Speaker 03:
So this is a clear case where the task order ended

[00:44:37] Speaker 03:
And the government issued a new solicitation and said, OK, we're going to issue a new task order for the same stuff we previously did.

[00:44:47] Speaker 03:
Wouldn't it naturally, the criteria for those being considered, part of it would be your performance under the most recent task order, which is otherwise identical?

[00:44:56] Speaker 04:
I think that could be the case, but it's also the case that these provisions were set up as incentives to encourage good performance by a contractor who held the task order in the first place.

[00:45:06] Speaker 04:
I think it's important not to equate a past performance evaluation in the context of a

[00:45:12] Speaker 04:
the government trying to create incentives within the scope of existing contract administration for high performing contractors to be able to earn additional money or additional contracts, or here, may earn performance extensions based on the quality of performance during the period.

[00:45:28] Speaker 03:
Well, thank you very much, Mr. Marwell.

[00:45:30] Speaker 03:
There's a little bit of rebuttal time for appellants.

[00:45:36] Speaker 03:
Mr. Sneckenberg, a minute.

[00:45:47] Speaker 02:
Thank you.

[00:45:48] Speaker 02:
I just want to be very clear that this is a question of statutory interpretation, and that must start with the text of the Tucker Act.

[00:45:53] Speaker 02:
The Tucker Act says that a contractor may challenge the award of a new contract.

[00:45:57] Speaker 02:
That is it.

[00:45:57] Speaker 02:
That is what it says.

[00:45:58] Speaker 02:
It does not require a formal solicitation.

[00:46:00] Speaker 02:
It does not require any trappings.

[00:46:02] Speaker 02:
It does not prohibit a contract from having similar terms to a prior contract.

[00:46:07] Speaker 02:
All it says is that you can protest a new contract award.

[00:46:10] Speaker 02:
It is undisputed that we have a new contract award here, and that is what we're protesting under the Tucker Act.

[00:46:15] Speaker 02:
The government, the interveners, would read in additional requirements to the Tucker Act, but that's not what it says.

[00:46:19] Speaker 02:
And this court and the Supreme Court have repeatedly said that when interpreting statutes, you apply the plain meaning of those statutes.

[00:46:25] Speaker 02:
Do not read additional requirements into the statutes, as the government has you do here.

[00:46:29] Speaker 02:
I'd also like to be clear that this was a new contract.

[00:46:33] Speaker 02:
This was not an extension.

[00:46:35] Speaker 02:
This was not a bilateral modification.

[00:46:36] Speaker 02:
It was a new contract.

[00:46:37] Speaker 02:
And the fact that it was similar to the old contract, as Judge Moore stated, you can always award a new contract that is essentially identical for the identical services as an old contract.

[00:46:46] Speaker 02:
You can always do that.

[00:46:47] Speaker 02:
In a GSA task order situation, as we have here, that's not surprising at all.

[00:46:51] Speaker 02:
All GSA task orders reflect the terms and conditions of the schedule under which they're issued.

[00:46:56] Speaker 02:
That's not at all surprising here.

[00:46:58] Speaker 02:
This is a new contract.

[00:46:59] Speaker 02:
And on the flip side, the position is also that this isn't a tougher act case because it's a CDA claim.

[00:47:05] Speaker 02:
It's not a CDA claim.

[00:47:06] Speaker 02:
The CDA does not apply to challenges to new award decisions.

[00:47:09] Speaker 02:
They have not cited a single case where a contractor was allowed to bring a CDA claim to challenge a new contract award.

[00:47:15] Speaker 02:
We are not aware of any such case in existence.

[00:47:18] Speaker 02:
They have not cited one, we have not found one.

[00:47:20] Speaker 02:
You can't, you bring a CDA claim to challenge a contract award.

[00:47:23] Speaker 05:
So tell me again, what's the basis of your challenge to the award?

[00:47:26] Speaker 05:
Is it that the government did not conduct the performance evaluation correctly?

[00:47:36] Speaker 05:
Or that you were somehow discriminated against?

[00:47:41] Speaker 05:
That you had better scores than others and yet you were not selected?

[00:47:44] Speaker 02:
The basis of our challenge, Your Honor, is that when the government made a single determination, it looked at a particular audit and said, you did better on this audit, you did worse on this audit.

[00:47:52] Speaker 02:
Our challenge is that, looking at the results of that audit, the government was arbitrary and precarious in comparing the specific numerical results and using that audit as good numerical results.

[00:48:00] Speaker 06:
The numerical results were the number of actionable misrepresentations.

[00:48:05] Speaker 02:
on a given audit.

[00:48:06] Speaker 02:
And we did not dispute that they could conduct that audit, but the manner in which they relied on that audit and used it to create fine distinguishing between who would get an award and who would not, that was a contract award decision.

[00:48:16] Speaker 05:
So the dispute is grounded on the audit?

[00:48:19] Speaker 02:
The dispute is grounded on the application of the audit results to determine new contract awards.

[00:48:22] Speaker 05:
Why is that not administration of the contract then?

[00:48:25] Speaker 02:
If I could, there was a case set in our brief.

[00:48:28] Speaker 02:
It's an older decision from this court, close to the corporation.

[00:48:31] Speaker 02:
I think that provides a good example.

[00:48:33] Speaker 02:
So in that case, they were not a protest, let me be clear.

[00:48:38] Speaker 02:
The contractor brought a fugitive CDA claim.

[00:48:41] Speaker 02:
There was a formal solicitation.

[00:48:45] Speaker 02:
The contractor submitted a proposal.

[00:48:47] Speaker 02:
Before any awards were made,

[00:48:48] Speaker 02:
the agency canceled the solicitation, said we're not going to make any awards.

[00:48:51] Speaker 02:
The contractor attempted to bring a CDA claim to recover bid and proposal costs for competing in that solicitation for the new work.

[00:48:58] Speaker 02:
The Energy Board of Contract Appeals, where it was initially brought, considered the case on the merits, and this court vacated and reversed.

[00:49:04] Speaker 02:
This court held that there is no CDA jurisdiction to challenge matters that are, quote, preliminary and ancillary to a contract award.

[00:49:12] Speaker 02:
That's exactly what we have here.

[00:49:13] Speaker 02:
That involves a bid, a solicitation.

[00:49:16] Speaker 02:
Yes, Your Honor, but the Tucker Act is not a distinguished one.

[00:49:18] Speaker 05:
Tell me where there was a solicitation involved in extending these new contracts.

[00:49:27] Speaker 02:
There was no solicitation involved, but that is not required.

[00:49:29] Speaker 02:
The Tucker Act is clear that the proposed award or award of a contract gives jurisdiction.

[00:49:33] Speaker 05:
If there was a solicitation, there'd be a slam dunk for you, right?

[00:49:36] Speaker 02:
Certainly, Your Honor, as Judge Moore said.

[00:49:38] Speaker 02:
And the intervener says that there is going to be this in connection with the procurement prong.

[00:49:41] Speaker 02:
I would direct your attention to resource conservation and the treatment of that in our briefs.

[00:49:44] Speaker 03:
And is it true that our case law says, quote, procurement starts with identification of need for services and includes that?

[00:49:51] Speaker 03:
So just the government's identification of services or a need for services is actually enough to meet the procurement part of 1491B1?

[00:50:01] Speaker 02:
Yes, Your Honor.

[00:50:02] Speaker 03:
And that would be, you know, there would be no solicitation.

[00:50:05] Speaker 03:
Correct, Your Honor.

[00:50:07] Speaker 02:
A sole source award, there are many types of ways that a government can make an award that would not involve a solicitation.

[00:50:11] Speaker 02:
And a solicitation is not required under the Tucker Act to file a bid protest.

[00:50:16] Speaker 02:
With that, if there are no further questions, thank you for your time.

[00:50:20] Speaker 03:
Do you have anything you need to add, Mr. Schaefer?

[00:50:28] Speaker 01:
Just one point, Your Honor.

[00:50:31] Speaker 01:
The court cannot reconcile the trial court's decision below with this court's decision in CGI federal and this court's decision in resource conservation and in plain language with the statute.

[00:50:42] Speaker 01:
In CGI federal, it's clear if you look at the case that GSA orders are contracts.

[00:50:47] Speaker 01:
And if you look at resource conservation, it's a very broad definition of what is a procurement contract.

[00:50:53] Speaker 01:
And these orders here are procurement contracts.

[00:50:56] Speaker 03:
And then if you look at the plan language of the Tupper Act, it says... Just out of curiosity, these new task orders, did they ever get issued or are they still on hold?

[00:51:06] Speaker 01:
The new orders were issued.

[00:51:07] Speaker 03:
The new task orders were issued, and so if you want to

[00:51:12] Speaker 03:
appeal or complain about those, the government says you should take that complaint to the CDA.

[00:51:17] Speaker 03:
But my reading of the CDA jurisdiction is that you wouldn't have a jurisdiction to complain about the award of those new task orders.

[00:51:24] Speaker 01:
That's correct.

[00:51:25] Speaker 01:
We cited cases in our briefs including the coastal case from this court, but you cannot challenge a contract award at the Board of Contract Appeals or the Court of Federal Claims under the CDA.

[00:51:36] Speaker 01:
You can only challenge a contract award under the Tucker Act with big protesters.

[00:51:41] Speaker 05:
Given the

[00:51:43] Speaker 05:
Let's call it mild confusion in the state of the law on this particular issue.

[00:51:49] Speaker 05:
Why didn't you preserve your right by taking the challenge initially to the contracting officer?

[00:51:55] Speaker 05:
Because had they denied you at that point, you still could have, at that point, you would have had jurisdiction at the Court of Federal Claims.

[00:52:03] Speaker 01:
Well, I think it's important to remember the pioneer credit.

[00:52:05] Speaker 01:
We filed a protest at the Government Accountability Office.

[00:52:08] Speaker 01:
We saw this as a very routine bid protest that the court, the GAO, has

[00:52:12] Speaker 01:
down select jurisdiction.

[00:52:14] Speaker 01:
They have jurisdictions over protests, challenging awards of GSA task orders.

[00:52:18] Speaker 05:
If you go and look at the jail cases... Yeah, but that road was pulled out from under you when this case was filed at the Court of Federal Claims.

[00:52:25] Speaker 05:
Understood, but all along... Why didn't you file before the contracting office?

[00:52:31] Speaker 01:
Well, there was no, I mean, an agency-level protest, I mean, there isn't really a mechanism that would have had a different result at the agency.

[00:52:39] Speaker 01:
We're entitled to get an automatic stay by filing a GAO under the Contract, Competitive Contracting Act.

[00:52:47] Speaker 01:
We were seeking a stay.

[00:52:48] Speaker 01:
When they took that away from us, we then went to the Court of Federal Claims under their Tuckraff bid process jurisdiction because we're challenging a contract award.

[00:52:56] Speaker 01:
Our competitors have five contracts.

[00:52:59] Speaker 05:
I mean, it seems like you took a risk in challenging this as a new contract.

[00:53:03] Speaker 05:
And you could have taken this initially before the contracting officer, under the terms of the contract.

[00:53:09] Speaker 05:
For some reason, you chose not to.

[00:53:11] Speaker 00:
I see this as a way of judging that.

[00:53:13] Speaker 05:
If you're telling us that you're out of luck,

[00:53:16] Speaker 05:
because, you know, you can't, now you can't go back and I wonder about that and I ask you, you brought it up, I ask you, you know, why didn't you go there first?

[00:53:25] Speaker 05:
You could have gone there first and won or you could have lost, if you'd have lost, you definitely would have had jurisdiction before the court of federal court.

[00:53:34] Speaker 01:
I misunderstood your point.

[00:53:35] Speaker 01:
The problem is that if we'd gone to the contracting officer under a claim theory,

[00:53:39] Speaker 01:
The contracting officer doesn't and the court and the board of contract appeals don't have authority to grant us what we want, which is the award of a contract.

[00:53:47] Speaker 01:
It's a big protest.

[00:53:48] Speaker 01:
We want a contract award.

[00:53:49] Speaker 01:
We don't want to fight with the contracting officer for some sort of money damages or something like that.

[00:53:54] Speaker 01:
This is a protest challenging a contract award.

[00:53:57] Speaker 01:
We want the injunctive relief that only the court can get.

[00:54:00] Speaker 03:
Okay.

[00:54:00] Speaker 03:
Well, thank you all for counsel, for the participation.

[00:54:04] Speaker 03:
You all did a great job and it was very helpful to the court.

[00:54:07] Speaker 03:
Thank you.