[00:00:00] Speaker 03:
Before we begin, I'd just like to acknowledge briefly that this is the first sitting of our new colleague, Judge Kara Stowe.

[00:00:07] Speaker 03:
And on behalf of the panel and the court, I'd just like to let her know how thrilled and honored we are to have her with us, and what a pleasure it is to welcome her today to be with us.

[00:00:20] Speaker 03:
First case this morning is 155009, Gray Owl Services versus United States.

[00:00:27] Speaker 03:
Is it Ms.

[00:00:28] Speaker 03:
Dugan?

[00:00:28] Speaker 01:
Yes, Your Honor.

[00:00:29] Speaker 03:
Please proceed.

[00:00:31] Speaker 01:
Thank you, Your Honor.

[00:00:33] Speaker 01:
May it please the court, Mary Ann Dugan for the plaintiff gray owl services.

[00:00:38] Speaker 01:
I would like to reserve five minutes for a bottle if I may.

[00:00:43] Speaker 01:
There's a fairly narrow issue on appeal.

[00:00:46] Speaker 01:
The case was thrown out on a motion to dismiss on the pleadings.

[00:00:50] Speaker 01:
The court claims held that a regulation 48 CFR 42

[00:00:58] Speaker 01:
a set of regulations, 42.15 hundred effects were not incorporated into the contract that my client entered into with the Forest Service.

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And what is your view?

[00:01:11] Speaker 03:
Were they incorporated?

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If so, is everything incorporated?

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Is there something peculiar about these regs that we should infer that they were incorporated?

[00:01:20] Speaker 01:
no your honor I think that certainly not everything in the universe of regulations is incorporated into a federal contract but those that are relevant to the performance of the contract and here actually they were incorporated literally by reference by the reference to the fair opportunity to respond to performance evaluations that's in the record JA-68 that's part of the contract but even if

[00:01:49] Speaker 01:
And so that portion of the contract does not specifically reference the regs by number, by citation, but incorporates the concept of a fair opportunity to respond.

[00:02:02] Speaker 01:
The regulations themselves, which are relevant, are 48 CFR 42.1502 and 1503, which provide that when a contractor contracts with the Forest Service,

[00:02:17] Speaker 01:
The Forest Service is supposed to prepare a performance evaluation for the completed work at the time the work is completed.

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That's the wording of the regulation.

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And then as soon as practicable, it is to be provided to the contractor.

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And the contractor is to have a minimum of 30 days to respond, to rebut, to provide additional information.

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And what happened here was that the work was completed in December of 2010.

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The evaluation was completed in March of 2011 but not provided to the contractor until September, late September of 2011.

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So what is your problem here?

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What if the evaluation had not been completed until September?

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Is your issue with the fact that it was completed and not given to you or that just it was not given to you in a timely way, even if it had been completed, in other words, September, you would still be complaining that they didn't comply?

[00:03:11] Speaker 01:
I think if it hadn't been completed

[00:03:13] Speaker 01:
in a timely manner after the work was done, then we would have an issue with a violation of 42.1502, which says that the evaluation is to be completed when the work is completed.

[00:03:27] Speaker 01:
Obviously that's a little fuzzier than the language in 1503, which is as soon as practicable after that, give it to the contractor.

[00:03:36] Speaker 01:
And so we are not presented with the issue of whether the

[00:03:40] Speaker 01:
evaluation was prepared in a timely manner.

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If it had been provided to the contractor as soon as practicable after it was prepared in March, he certainly would have had time to rebut, to bring in his witnesses to say maybe this was a case of mistaken identity where you're saying I was rude to your workers, and to make matters worse even when

[00:04:04] Speaker 01:
The plaintiff, Foyad, he prepared a Freedom of Information Act request, and there was a response in April 2011, which was after the evaluation was prepared, and it didn't include the evaluation.

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And then the Forest Service solicited bids from him.

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He had been a long-time contractor with the Forest Service, doing wildlife restoration work, and they even went out of their way, this was in JA 23,

[00:04:28] Speaker 01:
in April after the evaluation to tell him that his work was appreciated.

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He had completed the project, quote, successfully and, quote, your continued interest and participation in the Forest Service Acquisition Program is welcome.

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And then, you know, he takes all this time to go out in the woods.

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It took him two or three days to go and look at the sites and make sure he knew what he was bidding on, prepare a bid.

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And then his bid was rejected.

[00:04:55] Speaker 02:
You said earlier that you thought that this clause was expressly incorporated at page 068, is that right?

[00:05:03] Speaker 00:
Correct.

[00:05:04] Speaker 00:
Yes ma'am.

[00:05:05] Speaker 02:
Where is that at page 068?

[00:05:13] Speaker 01:
So the contract at 68 says fair opportunity is the name of that section.

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Each contract holder will be given fair opportunity for the task order issued.

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Past performance, quality control and price prior to award and during contract performance will be considered on task orders.

[00:05:33] Speaker 01:
The past performance, and I would say even especially since it's capitalized, is a direct reference, I would argue, to 42-1502.

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which uses the phrase past performance evaluation.

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I admit it's not explicit, it doesn't cite the regulation, but there is a regulation on point that talks about past performance and that's the ones the regulations were discussing.

[00:06:05] Speaker 01:
Then the Christian doctrine states that law is to be read into the contract if it's required by the regulations.

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For example, in this court's decision in the Rockies,

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pipeline case versus Salazar, the court noted, for example, a termination for convenience, which is a common provision that the Forest Service invokes.

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For example, if there's an environmental lawsuit, there's an injunction, the Forest Service will terminate the contract for convenience.

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And in this court's decision in the Rockies case, they said, the court said even, so that provision, even if it's not in the contract, is incorporated by reference.

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Can I ask you a question about the Christian doctrine?

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How do you square your position with FAR Part 52, which is titled, solicitation provisions and contract clauses, whereas the Part 42 that you're relying on is titled, contract administrative

[00:07:01] Speaker 02:
and audit services.

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How do you square that position given that part 52 actually talks about provisions and contract clauses and expressly says they're required to be interpreted or read into the contract?

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Well, I think the Christian doctrine goes further than only requiring incorporation by reference of contract regulations that talk about how to write a contract.

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Here, there's regulations that are

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they're for the protection of the public.

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They're there to support, to make sure there's competition, fair competition.

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And it's also to be fair to the contractor.

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You know, you have a contractor who maybe, you know, their competitors making phone calls to the Forest Service saying terrible things about them.

[00:07:49] Speaker 01:
It's not true.

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The contractor should have an opportunity to respond.

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And all of that is in the public interest.

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And the Christian doctrine says that where there is a regulation that

[00:08:00] Speaker 01:
uh... you know is is well-established everyone's aware of it it's not like a little secret uh... rule as in the smithson case which the court of claims relied on uh... and nobody could say they weren't aware of these regulations neither side uh... and so where you know most of the case law under the christian doctrine is where contractors were arguing hey you know you can't enforce this contract against me because it's not in the contract and the courts have said

[00:08:30] Speaker 01:
Well, no, there's a big body of law that governs how government contracts work.

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And we're going to incorporate them by reference.

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So unlike the Smithson case, where it was just kind of this obscure internal guideline, which will not be incorporated by reference, we have a rule that's been promulgated.

[00:08:49] Speaker 01:
It's in the Federal Register.

[00:08:51] Speaker 01:
It's in the section.

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It's right next to the section about how to write it for a service contract.

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And then you talk about how to administer the contract.

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And here you have people who have contracts that go on for years and years and years and get renewed.

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And in fact, they reached out to him to bid because he was a valued contractor.

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So it's not just a one-time, we have a one-year contract, here's how to write it, goodbye.

[00:09:16] Speaker 01:
It's going to be administered, and then there's going to be an opportunity to respond to... Can I follow up on your point about Christian?

[00:09:23] Speaker 00:
I thought that it only applied to mandatory contract clauses.

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Am I wrong in my understanding of that doctrine?

[00:09:30] Speaker 01:
Well, I think, so it's mandatory that the government follow its own regulations.

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That's kind of a core.

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If that were logically true, then mandatory would have no meaning and every single government regulation would automatically be interpreted into the contract.

[00:09:46] Speaker 01:
Well, you have to have, obviously you have to have standing, for example, to enforce a contract provision.

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You can't be someone outside the contract and say, hey, you didn't

[00:09:55] Speaker 01:
You know, you didn't do that.

[00:09:56] Speaker 00:
No, but under your logic, then every person who is a party to the contract would be able to hold the government to every single regulation.

[00:10:04] Speaker 00:
They would all be incorporated in.

[00:10:06] Speaker 00:
I don't understand your argument about how mandatory, how this is a mandatory contract clause or what Christian means by mandatory contract clause.

[00:10:16] Speaker 01:
Well, I think the only way to really put that in context is to look at the cases that have distinguished such as the Smithson case where it wasn't deemed to be a binding mandatory clause because it wasn't a promulgated regulation.

[00:10:31] Speaker 00:
And you mentioned the Rockies case, and you said termination by convenience was not written in the contract, but it was nonetheless incorporated in.

[00:10:39] Speaker 00:
I have the Rockies case right here, and actually it rejects that argument.

[00:10:43] Speaker 00:
It comes out exactly the opposite way of what I thought I heard you represent a few minutes ago.

[00:10:48] Speaker 00:
Well, the Iraqi... The termination by convenience clause is not incorporated into it.

[00:10:57] Speaker 00:
It talks about Christensen, what Christensen came for, and it's only when a contract clause would be required by regulation.

[00:11:09] Speaker 01:
Well, what I was reading was a quote from page 1338, which says that Christian stands for the proposition that if the parties

[00:11:17] Speaker 01:
to a government contract neglect to include a clause in the contract that is otherwise required by regulation.

[00:11:22] Speaker 01:
For example, a termination for convenience.

[00:11:24] Speaker 00:
Oh, I see.

[00:11:25] Speaker 01:
Courts will read that clause into the contract.

[00:11:27] Speaker 00:
Now I understand what you were saying.

[00:11:28] Speaker 00:
That's not the clause that was at issue.

[00:11:30] Speaker 00:
No, you're right, Your Honor.

[00:11:31] Speaker 00:
The clause at issue in Rocky was actually rejected.

[00:11:35] Speaker 00:
I misunderstood.

[00:11:35] Speaker 00:
I thought you were saying in the Rocky case, we held that that clause that was at issue was under the Christian doctrine, something that had to be incorporated in.

[00:11:44] Speaker 00:
I totally understand the point you made.

[00:11:46] Speaker 01:
I was being unclear though and thank you.

[00:11:49] Speaker 01:
I see that I'm into my rebuttal time.

[00:11:52] Speaker 03:
Thank you.

[00:12:06] Speaker 04:
Good morning, Your Honor.

[00:12:07] Speaker 04:
May it please the court.

[00:12:09] Speaker 04:
The first thing I'd like to address is plaintiff's appellant's argument that there was expressed incorporation of FAR 42.1502 exec.

[00:12:16] Speaker 04:
Your honor, to accept Gray Owl's line of reasoning would diminish what St.

[00:12:21] Speaker 04:
Christopher said, would diminish what Smithson said, would diminish what Northrop Grumman said.

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And what those cases stated was that in order for regulatory provisions to be incorporated into contracts, there needs to be expressed intentional language of incorporation.

[00:12:36] Speaker 03:
Even if we accept that, is there any way in which a person on the other end of this case can ever enforce one of these provisions?

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If we agree with you that these regulations, unless they're explicitly put into the contract, they're not the subject of a breach of contract action.

[00:12:52] Speaker 03:
But does that mean that the government can go ahead and follow whatever regulations it wants or not, and there's no way for a contractor who's at the receiving end of this to

[00:13:02] Speaker 04:
The answer to that is no, Your Honor.

[00:13:05] Speaker 04:
There is a way to enforce it.

[00:13:06] Speaker 04:
I think this was actually addressed in the Todd construction case, which plaintiff appellant Gray Owl cites, which says in footnote six that the regulation applies of its own force.

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And I think this is significant.

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The regulation applies of its own force separate and apart from the contract.

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So with that decision,

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said was, we are not suggesting that a performance evaluation regulation should be read into the contract, but that it's an enforceable regulation, and it applies of its own force.

[00:13:33] Speaker 04:
It has the force in effect.

[00:13:35] Speaker 00:
What do you mean?

[00:13:35] Speaker 00:
Is it like an APA challenge to say, you didn't give me my past performance review in a timely fashion?

[00:13:40] Speaker 04:
That's conceivably one way it could be brought.

[00:13:42] Speaker 00:
Another way it could be brought.

[00:13:44] Speaker 03:
There's no money mandating.

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statute here.

[00:13:47] Speaker 03:
It couldn't be a Tucker Act claim.

[00:13:48] Speaker 04:
Right.

[00:13:49] Speaker 04:
And the other way it could be brought is under just a broad-based CDA claim, because the CDA is broader than just the restricted narrow interpretation of what qualifies as a breach of contract.

[00:13:58] Speaker 04:
When you're bringing a claim under the CDA, you can bring claims related to a contract action, related to the performance of a contract.

[00:14:06] Speaker 04:
And the most typical way that typically brought a reformation action.

[00:14:09] Speaker 04:
That's not a breach of contract action.

[00:14:11] Speaker 04:
That's an action saying we want to reform the contract.

[00:14:14] Speaker 04:
And under the CDA, you can bring that because that's related to the performance of a contract.

[00:14:18] Speaker 04:
And I think this gets directly to what Judge Stoll mentioned, which is how do you reconcile FAR 52 and then FAR 42, one regarding contract clause, one regarding administration?

[00:14:28] Speaker 04:
And I think that creates the distinction.

[00:14:30] Speaker 04:
Part of it can be brought as breach of contract actions, and that would align with what St.

[00:14:34] Speaker 04:
Christopher said, what Smithson said, what Northrop Grumman said.

[00:14:37] Speaker 04:
Those are breach of contract actions.

[00:14:39] Speaker 04:
Under FAR 42, when we're talking about performance evaluation regulations, that's a regulatory action.

[00:14:43] Speaker 04:
You can argue under the CDA that this is related to the performance of a contract and bring a separate independent action under that.

[00:14:50] Speaker 04:
That's not what's at issue here, because plaintiffs argued for a breach of contract action.

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And to make this point clear,

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We gave Graial multiple opportunities to exactly articulate what kind of claim they were bringing.

[00:15:00] Speaker 04:
Number one, their complaint.

[00:15:01] Speaker 04:
They said, this is a breach of contract action.

[00:15:03] Speaker 04:
We moved to dismiss.

[00:15:05] Speaker 04:
And we said, they haven't pled all the elements of a breach of contract claim, because there's no reference to FAR 40.

[00:15:10] Speaker 00:
Slow down.

[00:15:10] Speaker 00:
I can't hear as quick as you can talk.

[00:15:12] Speaker 00:
I'm sorry, Your Honor.

[00:15:14] Speaker 00:
Sure.

[00:15:15] Speaker 04:
I'm a little amped up right now.

[00:15:16] Speaker 04:
Sure, Your Honor.

[00:15:18] Speaker 04:
So in the complaint, Your Honor, they said, this is a breach of contract action.

[00:15:22] Speaker 04:
We moved to dismiss.

[00:15:23] Speaker 04:
And we said, you haven't pled all the necessary elements.

[00:15:26] Speaker 04:
Where is this supposed contract provision that has purportedly been breached?

[00:15:30] Speaker 03:
And then we also- Let me ask you, but if they were going to go the CDA route, does that- we have these cases few and far between.

[00:15:36] Speaker 03:
They'd have to bring it to a contracting officer, and is that a prerequisite?

[00:15:41] Speaker 03:
Yes, right.

[00:15:42] Speaker 03:
Are they time-barred from doing that at this point?

[00:15:46] Speaker 04:
I haven't done the math calculation.

[00:15:48] Speaker 04:
I think they might be time barred because it would be a year after the contracting officer's decision.

[00:15:54] Speaker 04:
I don't have a firm answer, unfortunately, Your Honor.

[00:15:56] Speaker 04:
I haven't looked into it.

[00:15:57] Speaker 04:
But I do think we gave them multiple opportunities to exactly articulate what claim they're bringing.

[00:16:02] Speaker 04:
We didn't just move to dismiss.

[00:16:03] Speaker 04:
We moved for a more definite statement.

[00:16:05] Speaker 04:
We said, we understand this to be a breach of contract action.

[00:16:08] Speaker 04:
All the elements of the claim have not been met.

[00:16:11] Speaker 04:
But if anything about what we are arguing, our articulation of the complaint is unclear, this is the opportunity.

[00:16:17] Speaker 04:
And at the motion to dismiss phase, it's not what conceivably could have been pleaded.

[00:16:21] Speaker 04:
It's what are you pleading?

[00:16:22] Speaker 04:
And what they stated in their opposition.

[00:16:24] Speaker 03:
But there's nothing they could have pled to make this a valid breach of contract.

[00:16:32] Speaker 04:
To make this a breach of contract claim.

[00:16:33] Speaker 04:
But they could have made this, I think, a standard standalone CDA claim, Your Honor.

[00:16:38] Speaker 04:
And that would have been permissible under Todd.

[00:16:40] Speaker 00:
And under the CDA claim, what would be the remedy that they would be entitled to?

[00:16:45] Speaker 04:
That would conceivably get into what types of remedies the regulation contemplated, I think.

[00:16:52] Speaker 04:
Again, it would be going far afield from the facts of this case.

[00:16:56] Speaker 04:
I'm not sure even that would go to a money damages type suit.

[00:16:59] Speaker 04:
I mean, the most conceivable situation is where one would argue, I got a performance evaluation.

[00:17:04] Speaker 04:
I didn't deserve this negative evaluation and directly challenge the merits of that evaluation.

[00:17:08] Speaker 04:
That's not an issue here.

[00:17:09] Speaker 04:
They're not even arguing about the fact that they got a negative result.

[00:17:13] Speaker 00:
But they are arguing about the fact that all indications that this contractor had received from the government was great job, we love you, come back again, we want you to keep bidding on our project, doors always open.

[00:17:25] Speaker 00:
Meanwhile, there was secretly behind the scenes this really negative

[00:17:28] Speaker 00:
performance evaluation, which was going to force his ability to get subsequent jobs, but he was unaware of it because under the regs he didn't give it to him.

[00:17:37] Speaker 00:
So then he wasted his time going out and spending days and putting together a bid.

[00:17:42] Speaker 00:
It's unfair.

[00:17:43] Speaker 00:
It doesn't feel like the way you want the government to act.

[00:17:47] Speaker 00:
I mean, I know sometimes it's hard to tell people when they don't do a good job, right?

[00:17:50] Speaker 00:
You just want to say, good job, and pass the buck along.

[00:17:53] Speaker 00:
But you know, I mean, in this case, it cost him a lot of time and money that he could have devoted to other projects.

[00:17:58] Speaker 00:
And so I'm wondering what can be done, if anything, about that so the government doesn't keep doing this and disadvantage these contracts in this manner.

[00:18:08] Speaker 04:
Well, Your Honor, I think the first thing we have to point out is that the case was decided at the pleading stage, so I understand that's what the plaintiff pleads.

[00:18:14] Speaker 04:
We need to do discovery, so we are going based on the... Right, right.

[00:18:20] Speaker 04:
So we can accept that to be the case.

[00:18:22] Speaker 04:
But the second thing I would state, Your Honor, is they're not contesting that they never got the evaluation.

[00:18:26] Speaker 04:
They got it.

[00:18:27] Speaker 00:
They got it, and they're not contesting that it should have been negative or that... No, but they got it really late, which they got it at a time which had caused them to already go forward and expend a lot of time and energy preparing contracts.

[00:18:38] Speaker 00:
They wouldn't have done had they gotten that evaluation earlier.

[00:18:41] Speaker 04:
That brings us to, I think, another point kind of critical to this case, which is the damages issue.

[00:18:46] Speaker 04:
In order to actually survive a 12b6 claim, you have to plead some type of articulable damages.

[00:18:52] Speaker 04:
And Wells Fargo expressly precludes the type of damages that they're seeking.

[00:18:55] Speaker 04:
Now they claim that they lost some business opportunities.

[00:18:57] Speaker 00:
I think you misunderstand my point.

[00:18:59] Speaker 00:
I'm not saying that you should lose.

[00:19:02] Speaker 00:
In fact, it's kind of hard for me to see how you will.

[00:19:06] Speaker 00:
However, I don't think the way the government behaved here is very good.

[00:19:09] Speaker 00:
And I know that you can't personally go back and find these people and say, don't tell people you did a good job if they actually did a bad job.

[00:19:15] Speaker 00:
And if they did do a bad job, give them their evaluation sooner.

[00:19:18] Speaker 00:
But that's sort of the heart of what I'm getting at.

[00:19:19] Speaker 00:
You brought up the idea that they could have pursued this under a CDA claim.

[00:19:23] Speaker 00:
And I'm thinking, yeah, I'm not to get the relief that they are seeking.

[00:19:27] Speaker 00:
And how is that at all?

[00:19:29] Speaker 00:
I mean, if the government created a reg that says we've got to give people their past performance evaluations as soon as practicable, and then it doesn't do it, well, that doesn't seem right.

[00:19:39] Speaker 00:
It doesn't seem right that they then don't do it and then people spend time and money and energy doing things unnecessarily.

[00:19:46] Speaker 04:
I'm not precisely sure that's irremediable under a standard CDA action.

[00:19:50] Speaker 04:
The CDA action could

[00:19:52] Speaker 04:
potentially contemplate some type of money damage situation.

[00:19:55] Speaker 04:
I'm just saying that the regulation, as I read it, wouldn't necessarily get there.

[00:19:59] Speaker 04:
And in fact, the remedy you would think might not be money damages.

[00:20:02] Speaker 04:
It's much broader than that.

[00:20:03] Speaker 04:
I think when you're articulating a breach of contract claim, you're restricted because automatically the presumptive remedy in that case is money damages.

[00:20:11] Speaker 04:
And so I think that's kind of the spectrum under which we have to evaluate how this claim was brought.

[00:20:16] Speaker 04:
They brought this as a breach of contract claim.

[00:20:18] Speaker 04:
And so the first question you ask is, well, where is this in the contract?

[00:20:22] Speaker 04:
We gave them multiple opportunities to rearticulate what their position was, what the theory is, through a motion for more definite statement.

[00:20:30] Speaker 04:
In multiple instances in their opposition, they said, this is a breach of contract action.

[00:20:33] Speaker 04:
This is a breach of contract action for jettisoning the other possible theories under which they could have brought the case.

[00:20:39] Speaker 04:
And it was on that basis the court decided, the trial court decided the case under St.

[00:20:44] Speaker 04:
Christopher.

[00:20:44] Speaker 04:
St.

[00:20:45] Speaker 04:
Christopher clearly controls in this instance.

[00:20:47] Speaker 04:
That case involved an agency regulation that says an agency must do this.

[00:20:51] Speaker 04:
And what the court said is we need express intentional language of incorporation and that is lacking in this instance.

[00:20:58] Speaker 04:
It is upon these grounds we think that the federal circuit should uphold the trial court's decision.

[00:21:02] Speaker 02:
I would like to ask you a question about the Christian doctrine.

[00:21:05] Speaker 02:
So is it your position that the clause has to be mandatory, or does it have to be both mandatory and express a significant or deeply ingrained strand of public procurement policy?

[00:21:18] Speaker 02:
Could it just be something that expresses a significant and deeply ingrained public procurement policy?

[00:21:24] Speaker 02:
Or does it also have to be mandatory?

[00:21:26] Speaker 02:
Yes, that's my question.

[00:21:27] Speaker 04:
That's a hard question, but I think we can look at the three cases using the Christian doctrine, SJ Amoroso, General Engineering, and Christian, that will kind of explain what that standard is.

[00:21:36] Speaker 04:
Number one, if you look at Christian, there was a provision of law that said the termination for convenience clause has to be incorporated.

[00:21:45] Speaker 04:
You look at General Engineering, again, there was a regulatory clause that said this provision has to be incorporated.

[00:21:50] Speaker 04:
And then you look at SJAM and ROSO, again, there was a regulation that said this provision, or I'm sorry, the Buy American Act has to be incorporated into a contract.

[00:21:58] Speaker 04:
And what it looks like is that the party's understanding that there was this law that said these had to be incorporated into contracts, that these were mandatory contract clauses, for some reason didn't put it into the contract.

[00:22:08] Speaker 04:
What the court did in that instance was incorporate it because there was a provision of law that required it.

[00:22:14] Speaker 04:
I think that's the way you have to read those cases.

[00:22:17] Speaker 04:
So my understanding is if there's a regulatory provision or some form of law that says this provision must be required in these types of contracts, then Christian would apply.

[00:22:30] Speaker 01:
I just want to clarify that the plaintiff did file a GAO complaint regarding the failure to award the new contracts and so he's pursued

[00:22:47] Speaker 01:
the remedies he can in separate venues.

[00:22:50] Speaker 03:
As far as the APA... Was the complaint before the GAO failure to get the new contracts, was that part and parcel of saying there wasn't a timely evaluation this?

[00:23:00] Speaker 03:
Or is that a separate issue?

[00:23:01] Speaker 01:
No, ironically, what happened was he didn't even know about the negative evaluation until after he filed the GAO complaint.

[00:23:09] Speaker 01:
And then as part of the record, the agency finally provided the evaluation.

[00:23:13] Speaker 01:
And that's when he finally got to respond.

[00:23:16] Speaker 03:
And what's the status of that issue?

[00:23:19] Speaker 01:
The GAO rejected the challenge.

[00:23:22] Speaker 03:
And do you have an appeal route?

[00:23:25] Speaker 01:
There was a second level of appeal within the GAO, I believe, but we didn't go beyond that.

[00:23:32] Speaker 01:
And as far as the APA, there's no damages available under the APA.

[00:23:35] Speaker 01:
It's unclear what kind of remedy would be available at this late a date.

[00:23:40] Speaker 01:
So, you know, when the Defense Council talks about a motion for a more definite statement,

[00:23:45] Speaker 01:
We're stuck with a breach of contract claim.

[00:23:47] Speaker 01:
We're in the court of claims.

[00:23:48] Speaker 01:
We're trying to argue for damages.

[00:23:50] Speaker 01:
There aren't other theories that can be created here.

[00:23:56] Speaker 01:
So you have to look at the contract itself.

[00:23:59] Speaker 01:
And the defendant's view deprives the fair opportunity clause in the contract of any meaning because that is the provision of the contract.

[00:24:10] Speaker 01:
So what does it mean?

[00:24:11] Speaker 01:
It's using language that is identical to the language in those regulations.

[00:24:17] Speaker 01:
And it has meaning only if the parties are assuming that there's going to be an ongoing relationship of rebidding and being evaluated fairly on that past performance.

[00:24:27] Speaker 01:
And I realize that this is different from other cases that have been before the court, but I think that it's a matter of public policy.

[00:24:35] Speaker 01:
It's fair, and it's the way to interpret this contract.

[00:24:39] Speaker 03:
Thank you, Your Honor.