[00:00:00] Speaker 02:
We have four cases on the calendar this morning.

[00:00:08] Speaker 02:
A case from the Court of Federal Claims, a veteran's appeal.

[00:00:11] Speaker 02:
Two patent cases, one from the district court, one from the PTO.

[00:00:17] Speaker 02:
And the first case is the claims case, RLB contracting versus United States, 2015, 5031.

[00:00:27] Speaker 02:
Mr. Ruggieri?

[00:00:37] Speaker 01:
May I please the court?

[00:00:39] Speaker 01:
Good morning.

[00:00:40] Speaker 01:
My name is Robert Ruggieri.

[00:00:41] Speaker 01:
I'm the attorney for Appellant RLB Contracting Inc.

[00:00:46] Speaker 01:
This appeal is about two things today.

[00:00:48] Speaker 01:
The lower court's refusal to enforce its own injunction under the mistaken belief that it lacked jurisdiction to review the agency's actions, and also the lower court's finding that the agency satisfied the injunction based merely upon an appearance of compliance.

[00:01:04] Speaker 01:
These were errors of law and abuses of discretion.

[00:01:07] Speaker 01:
My client RLB is requesting that this court vacate the lower court's order denying RLB's motion for contempt and remands the lower court with direction to conduct a complete analysis of the agency's actions for compliance with the injunction and the applicable regulations.

[00:01:25] Speaker 03:
You started off by referring to the trial court's decision as being predicated on a finding that it lacked jurisdiction.

[00:01:34] Speaker 03:
As I read the court's

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I guess the last order in this case, which was entered on the motion for state pending appeal, particularly at, say, 254 of the clinics, the court seems to say that it did not base its ruling, at least not entirely, on a lack of jurisdiction, but rather on the merits of the question of whether the injunction was compliant or not.

[00:02:01] Speaker 03:
And I'm reading from the last full paragraph

[00:02:06] Speaker 03:
that 254 of the appendix.

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We did not deny Plaintiff's motion to enforce the injunction merely for want of jurisdiction.

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And then gone on to say that the injunction was, in the court's view, literally complied with.

[00:02:20] Speaker 03:
Yes, Your Honor.

[00:02:21] Speaker 03:
So jurisdiction really isn't a question, is it?

[00:02:23] Speaker 01:
Well, Your Honor, I believe it is.

[00:02:25] Speaker 01:
It merely means that in part it was based on jurisdiction.

[00:02:29] Speaker 01:
Right.

[00:02:29] Speaker 03:
But he ultimately says, you lose on the merit.

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So that's really the question before us, is it not?

[00:02:35] Speaker 01:
To what extent they looked at the merits is the question.

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And that was in the sense of discretion.

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To the extent that he relied on jurisdiction, he was wrong.

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That wouldn't help you.

[00:02:47] Speaker 01:
I think it was, Your Honor.

[00:02:49] Speaker 03:
Why would it help you since he also reached the merits?

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You need to win on the second question, right?

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The question whether he was correct or not on the merits of his decision that the injunction had been literally compliant.

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Correct?

[00:03:07] Speaker 01:
I respectfully disagree, Your Honor.

[00:03:08] Speaker 03:
Explain why that's wrong.

[00:03:11] Speaker 01:
Because the court made it clear in its initial order denying the motion

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that it lacked jurisdiction to get to the merits of the issue.

[00:03:19] Speaker 03:
So you think once he said that, he could not then say that that was not, in fact, the sole ground of his decision?

[00:03:26] Speaker 01:
He made it clear, and he continued that through his other orders on the motion for reconsideration and on the motion for state pending appeal.

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But you're correct, Your Honor.

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In that final order, he did say it wasn't merely lack of jurisdiction.

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but also because I found an appearance of compliance or literal compliance.

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So there are two questions.

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And we find there are two errors.

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And I believe they're independent grounds, Your Honor.

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So either one, I believe you could send back to the lower court.

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With respect to your second question, yes, the court does state that he performed a limited review for literal compliance, where for all it appears, there was compliance.

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And we believe that's an abuse of discretion under that standard.

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The court has a continuing obligation, the lower court has a continuing obligation to enforce its orders.

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That obligation is not satisfied by merely taking a quick look and finding an appearance or a literal appearance of compliance and not finding that the actions actually had a rational basis.

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Inherent in any order or injunction is that the subsequent actions directed to be taken

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not only comply with the regulations and the order, but have a rational basis.

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And the court did not do that.

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The court only, it never once looked to whether there was a rational basis or whether it complied with the actual specific direction.

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It merely said they did it.

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It was more of a, the court was only seen to be concerned with if a redetermination occurred, but not how that redetermination occurred.

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And that's a very big distinction.

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And I think that's an opportunity the court missed.

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And it should have reviewed for the merits as well, and abused discretion by not doing that.

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And one of the reasons why this is an important case is because this is about the application of a small business dredging exception.

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It's a unique exception.

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It's a unique part of the NAICS code for this type of work.

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It protects and promotes small business dredging contractors.

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And it does this by not only requiring a lower size standard,

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for annual receipts.

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But the most important part is that it requires that the contractor perform 40% of the dredging work with its own equipment.

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So it protects these small dredging contractors from other small businesses that would otherwise subcontract out a large portion or maybe all of the dredging work to a large dredging company that would get the benefit of all the money coming under that contract for that work.

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So this is a very important

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And the agency improperly devalued the dredging work in order to circumvent the application of that exception.

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And RLB is a small business.

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It does, it can and does perform dredging with its own equipment, and it was harmed by refusal.

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Do you have any idea why it is that SBA has this seemingly somewhat peculiar provision for dredging in particular?

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Was there some kind of policy basis for that?

[00:06:28] Speaker 01:
It was enacted back in the 70s, I believe 1974, Your Honor.

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And it's a very competitive industry, the dredging industry.

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And these small businesses have to invest a lot of money to buy these dredging equipment.

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So they're wanting to have extra protections for these small business, small dredging companies.

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When there is a set aside for small businesses, they want to make sure that the company that gets the contract for the work

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benefits from the contract.

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So they've invested all this money, they wouldn't be able to get the money for their investment thing.

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And the FDA regulations and the Federal Acquisition Regulations are clear that the exception should be applied when the principal service is dredging and put another way in the regulations specifically when dredging accounts for the greatest percentage of the value of the contract.

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When the dredging component is the greatest component.

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And it was here.

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Therefore, the judging reception should have been applied.

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The agency didn't do it.

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RLB post-tested, went to the Office of Hearing and Appeal before the SBA.

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They did not grant the request of relief.

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RLB then went to the Court of Federal Claims, and the Court of Federal Claims agreed.

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They found that the process undertaken by NRCS was improper, and it lacked a rational basis.

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And it told them to go back and do that process over again.

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in accordance with some specific directives, and of course inherent did that process be based on correct information, not mathematical errors, and based on the regulations.

[00:08:00] Speaker 01:
They did a determination, and it turns out the determination in that process was fraught with errors, fraught with mathematical errors based on factual errors, and really did not include a rational basis.

[00:08:12] Speaker 01:
What RLB did, they filed a motion for contempt of that order, and for the asking the lower court to enforce that order.

[00:08:18] Speaker 01:
really just asking the court to do the same thing that already did the first time, just review that process, make sure that process was rational and had a rational basis and was based on correct information.

[00:08:27] Speaker 01:
Because based on our review of that document, it was clear that it wasn't.

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And we presented that information to the lower court.

[00:08:33] Speaker 01:
The lower court unfortunately refused, saying that it lacked jurisdiction to take a look at the substance of their actions and merely said, well, they did a redetermination, so therefore they complied with it.

[00:08:43] Speaker 01:
But it didn't look at the merits.

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to see, OK, did they really comply with the regulations, the law, and did this determination was simply based on errors and manipulated data?

[00:08:53] Speaker 01:
And it's pretty clear.

[00:08:54] Speaker 01:
It's very clear in our papers that that's what happened.

[00:08:56] Speaker 01:
But the court declined to do that on jurisdictional reasons.

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And as I said, for prudential reasons, we're not sure exactly what that means.

[00:09:04] Speaker 01:
But it's really unclear why they refused to do that.

[00:09:06] Speaker 01:
And based on their obligation to enforce their own orders, we feel that the short shrift that they gave to the redetermination

[00:09:14] Speaker 01:
finding for all that appears there was compliance were that they found literal compliance, that that was not satisfying the obligation to enforce the order and therefore was an abuse of discretion.

[00:09:26] Speaker 03:
Well, let me ask you this.

[00:09:30] Speaker 03:
The court said that it would have been better if

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Instead of seeking to get relief through further pressing on the question of enforcement of the injunction, you had brought a new protest.

[00:09:48] Speaker 03:
Now, your briefs, you suggest that, well, that really wouldn't have been possible.

[00:09:52] Speaker 03:
Is there no avenue by which you could have gone via protest to challenge the redetermination that was made?

[00:10:00] Speaker 01:
We do not believe there was, Your Honor.

[00:10:02] Speaker 01:
First, or they had the right to do it.

[00:10:05] Speaker 01:
to enforce a judgment they get with the issuing court.

[00:10:08] Speaker 01:
But with respect to, well, could they have gone somewhere else?

[00:10:11] Speaker 01:
I still believe, no, Your Honor, that there have been substantial questions of timeliness and standing, not to mention a complete waste of judicial time and resources if a whole new protest had to be fought.

[00:10:23] Speaker 03:
We don't know.

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But waste of resources is not the same thing as that.

[00:10:28] Speaker 03:
You simply had no avenue to proceed.

[00:10:31] Speaker 03:
Let's assume away for the moment the time factor and the resources.

[00:10:36] Speaker 03:
Is there a mechanical means for seeking to get review of the second determination?

[00:10:43] Speaker 03:
Is there an avenue for a protest to be filed?

[00:10:46] Speaker 01:
Don't believe so, Your Honor, and here's why.

[00:10:47] Speaker 03:
There's no way you can protest in that situation.

[00:10:50] Speaker 01:
It was too late and the client did not have standing, Your Honor.

[00:10:54] Speaker 01:
The proper way to challenge a NAICS code determination

[00:10:58] Speaker 01:
is to file a challenge before the Small Business Association, OHA, office hearings and appeals, and then go on to court of federal claims if you don't like the result.

[00:11:07] Speaker 01:
But you have to file that challenge within 10 days of the issuance of the solicitation or an amendment.

[00:11:14] Speaker 01:
And it's important here that when the agency went back and did their re-determination, they could have issued a new solicitation or made an amendment, but they didn't.

[00:11:22] Speaker 01:
They issued the contract under the same solicitation without an amendment.

[00:11:26] Speaker 01:
Therefore, we were out of time

[00:11:28] Speaker 01:
We couldn't go back to OHA and ask for a new determination because we're well out of time.

[00:11:34] Speaker 01:
Now, could we have gone to the Court of Federal Claims?

[00:11:36] Speaker 01:
Same answer, no.

[00:11:38] Speaker 01:
We didn't have standing.

[00:11:40] Speaker 01:
The award had already, well, proposals had already been opened, and the award had already been given.

[00:11:46] Speaker 02:
Out of time?

[00:11:47] Speaker 02:
You're not out of time here, Mr. Ruggeri, but you're into your rebuttal time.

[00:11:51] Speaker 02:
You can continue or save it.

[00:11:53] Speaker 01:
I understand, unless the panel has any immediate questions, I'll reserve the remaining three and a half minutes or so to rebuttal.

[00:12:00] Speaker 02:
Thank you.

[00:12:09] Speaker 00:
Good morning, Your Honor, and may it please the Court.

[00:12:11] Speaker 00:
is clear that the government complied with the court's order to perform a new redetermination.

[00:12:17] Speaker 04:
Sorry, can we pick up where Judge Bryson left off with his question about what other potential avenues could there have been for RLD to review the merits of the redetermination?

[00:12:30] Speaker 00:
Your Honor, many of RLB's own problems are of its own fault.

[00:12:34] Speaker 00:
There's no reason why it couldn't have submitted a bid.

[00:12:36] Speaker 04:
Well, let's just take the fact pattern here.

[00:12:39] Speaker 04:
The agency issued a redetermination.

[00:12:43] Speaker 04:
It did the quantitative analysis.

[00:12:45] Speaker 04:
RLB is unhappy with it on the merits, thinks it's substantively flawed.

[00:12:50] Speaker 04:
in significant ways, what would their avenue of legal relief be if that juncture, given your position and the claims court's position that enforcing the injunction order is not the right way to go?

[00:13:06] Speaker 00:
Well, RLB would have first had to go to the Office of Hearing and Appeals, and if they had dismissed it, or they could have... Under what?

[00:13:13] Speaker 00:
Under what?

[00:13:14] Speaker 00:
Under the FDA regulations, which require protests to go.

[00:13:17] Speaker 00:
I believe it starts at 48 CFR 19.303, and there are other details... Would it be a post-award protest, or what would it...

[00:13:24] Speaker 00:
Well, Your Honor, they would be assumingly challenging the NACE co-determination, which would be most likely to get dismissed by the Office of Hearing and Appeals, but then they would have to... Alternatively, they could have asked the court to amend the complaint.

[00:13:38] Speaker 00:
It's unclear how Judge Brugink would have responded to that, or they could have...

[00:13:43] Speaker 00:
Or they could have argued it would have been futile to have exhausted their administrative remedies and attempted to seek relief with the court.

[00:13:54] Speaker 04:
Maybe I'm misunderstanding you.

[00:13:55] Speaker 04:
It sounds a little equivocal on whether there was actually an established way for them to get review of the redetermination.

[00:14:06] Speaker 04:
What's the concrete way to do it?

[00:14:08] Speaker 00:
Your honor, when the administrative process starts over again, the procedure is to go to the Office of Hearing and Appeals to review the side standard determination.

[00:14:17] Speaker 00:
They say they would have been out of time there.

[00:14:21] Speaker 00:
Is that true or not?

[00:14:22] Speaker 00:
Your Honor, there are timeliness requirements.

[00:14:25] Speaker 00:
The administrative exhaustion requirements would still require them to go to the Office of Hearing and Appeals or to make an argument before the court or federal claims that for some reason it would have been futile to have attempted to have exhausted those administrative remedies.

[00:14:37] Speaker 04:
But I think it's important to... I'm sorry.

[00:14:39] Speaker 04:
I didn't hear the answer.

[00:14:41] Speaker 04:
Would that have been out of time or would it have been timely?

[00:14:45] Speaker 04:
Your Honor, it's... It's just a yes or no.

[00:14:47] Speaker 00:
I don't really know exactly what the Office of Hearing... The Office of Hearing and Appeals does have strict time requirements and it's unclear how they would have... I can't speak for exactly how the Office of Hearing... What are those time requirements?

[00:14:59] Speaker 04:
You both in council said there's just a certain short time window after the solicitation issues.

[00:15:06] Speaker 00:
It says that an appeal from the... This is 19.303C.

[00:15:10] Speaker 00:
an appeal from a contracting officer's NACE code designation must be served and filed within 10 calendar days after the issuance of the initial solicitation or any amendment affecting the NACE code or size standard.

[00:15:21] Speaker 04:
Right, so we're way beyond that, at that juncture of the redetermination.

[00:15:25] Speaker 00:
Well, Your Honor, yes, but then that would provide the opportunity to go to the federal claims and say, look, it would have been administratively futile.

[00:15:32] Speaker 00:
But I think it's important to point out

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But even when you go through this administrative process under the Office of Hearing and Appeals, you are not actually guaranteed relief for your current solicitation.

[00:15:43] Speaker 00:
Under 19.3038, they specifically contemplate that if OHA's decision is received by the contracting officer

[00:15:51] Speaker 00:
before the date offers are due, it will be final.

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But it also says that if Ohai's decision is received after the due date of the initial offers, it doesn't apply to the pending solicitation, but shall apply to future solicitations for the same product or service.

[00:16:07] Speaker 00:
So they were never actually guaranteed any type of remedy.

[00:16:10] Speaker 00:
But the point is that to the extent that they claimed they would have had standing issues, they could have submitted a bid on

[00:16:19] Speaker 00:
The second solicitation, you know, they are not actually challenging the award of the contract to Coastal at this point, which was a small business set aside.

[00:16:29] Speaker 03:
Was there a second solicitation, or was this all part of a single solicitation?

[00:16:35] Speaker 00:
Your Honor, there was an initial solicitation, which was where the initial

[00:16:40] Speaker 00:
independent government estimate was performed.

[00:16:43] Speaker 00:
The NACE code issue was not protested at that point.

[00:16:46] Speaker 00:
The agency awarded it to Coastal.

[00:16:49] Speaker 00:
Then RLB protested at GAO and the agency took corrective action.

[00:16:54] Speaker 00:
And then the agency issued a second solicitation which the NACE code was protested.

[00:16:58] Speaker 03:
But that's the solicitation that is the subject of the current litigation, I take it.

[00:17:03] Speaker 03:
But there wasn't yet another solicitation following the redetermination.

[00:17:07] Speaker 03:
No, Your Honor.

[00:17:10] Speaker 03:
To continue, you say that they were not necessarily, in the bid protest situation, I take it that you're always entitled to protest an award and ultimately find your way to court, if you like, if the award is predicated on what you regard as error.

[00:17:32] Speaker 03:
There's judicial review available in the bid protest setting in all

[00:17:38] Speaker 00:
country's correct we get ready to have to be happy to meet the standing requirement okay what did what was their avenue for meeting the standing requirements i think you were about to their avenue for meeting right now we have a contract that has been awarded work started on the contract in march of twenty fifteen it will finish in april of two thousand sixteen it is fifty seven percent of the performance time has been complete and we're in louisiana so they work through the winter if they were for an awarded contract the way to protest that

[00:18:08] Speaker 00:
you don't have standing unless you submit a bid.

[00:18:11] Speaker 00:
And here they didn't submit a bid, which was their own.

[00:18:14] Speaker 00:
The papers here reflect that they took a gamble that they could protest the NAICS code.

[00:18:19] Speaker 00:
Also, to the extent they've objected to the trial court's orders, to the extent that they thought

[00:18:28] Speaker 00:
There are many ways that they objected to the language in the trial court's order that merely ordered the government to file a new, to perform a re-determination and the order specifically contemplated that the government could award the contract if it determined

[00:18:43] Speaker 00:
that if it determined that the dredging exception did not apply.

[00:18:47] Speaker 00:
If they had objections to that, the time to do that was to object when the court actually issued the order.

[00:18:54] Speaker 00:
As the court clearly determined, the government complied with the order.

[00:18:59] Speaker 00:
The court didn't take the government's word.

[00:19:02] Speaker 00:
that it was going to just perform, that it was just going to perform another size standard.

[00:19:07] Speaker 00:
The government initially just submitted a declaration and the court said, you know, I need to look at this.

[00:19:12] Speaker 00:
And the court clearly said that it looked at it and it determined that the government's enforcement or the government's compliance with the order was sufficient.

[00:19:22] Speaker 00:
I think it's notable that RLB hasn't cited

[00:19:24] Speaker 00:
a single case where a higher court has said, you should have held the government in contempt and you didn't.

[00:19:30] Speaker 00:
This is a highly discretionary area for the trial court.

[00:19:33] Speaker 00:
The trial court very clearly said, both in the initial order and in the redetermination, that the agency literally complied with our order.

[00:19:43] Speaker 00:
I think it's also important to note that the courts

[00:19:48] Speaker 00:
refusal to go into more substantively the merits of the protest, it is a different question between whether the government complied with the order and whether the government's evaluation was arbitrary and capricious.

[00:20:01] Speaker 00:
And another case that made that distinction, which is cited in the mission critical case,

[00:20:06] Speaker 00:
the Filtration Development Company versus the United States.

[00:20:09] Speaker 04:
Let me ask you kind of what I've been asking in a different way.

[00:20:13] Speaker 04:
Let's assume that you are RLB's lawyer and let's go back in time to when the agency issued the redetermination.

[00:20:23] Speaker 04:
It comes out, you read the redetermination, you're RLB's lawyer and you don't like what the agency did.

[00:20:31] Speaker 04:
that re-determination quantitative analysis is deeply flawed.

[00:20:36] Speaker 04:
And you want review of that.

[00:20:38] Speaker 04:
What do you do?

[00:20:41] Speaker 00:
We petition the court for compliance if the court determined it complied and seek to either ask the court to amend the initial complaint.

[00:20:47] Speaker 04:
Compliance with what?

[00:20:48] Speaker 04:
Compliance with the injunction?

[00:20:49] Speaker 00:
Compliance with the injunction which required a new... Which is what they did, right?

[00:20:54] Speaker 00:
Which is what, and they ran the risk again by not bidding on the solicitation.

[00:21:00] Speaker 04:
Let me stop you right there.

[00:21:02] Speaker 04:
Let's go slow step by step so I can make sure I follow you.

[00:21:09] Speaker 04:
You're RLB's lawyer at that juncture.

[00:21:11] Speaker 04:
You're saying that what RLB should have done is file a bid right then and there.

[00:21:19] Speaker 00:
And they could have either asked the court to amend the complaint

[00:21:22] Speaker 00:
Or the point is, their complaint does not actually cover this new side-standard determination.

[00:21:28] Speaker 04:
I'm sorry.

[00:21:29] Speaker 04:
I'm sorry.

[00:21:29] Speaker 04:
You're RLB's lawyer.

[00:21:30] Speaker 04:
Let's stay there.

[00:21:31] Speaker 04:
Don't walk away and start talking about other things.

[00:21:35] Speaker 04:
Just tell me exactly what are the two, three, four, or only one thing they could have done at the moment that the redetermination came out.

[00:21:43] Speaker 00:
They could have thought enforcement, they could have also... What does that mean enforcement?

[00:21:47] Speaker 00:
You file a motion for contempt and then you're somewhat running... They did that.

[00:21:51] Speaker 00:
Right, and the court says the government complied.

[00:21:53] Speaker 03:
Let's assume they did that.

[00:21:54] Speaker 03:
What do they do next?

[00:21:57] Speaker 03:
They have Judge Brugink's order in their hands.

[00:22:01] Speaker 03:
You do, as their lawyer.

[00:22:04] Speaker 03:
What do you say?

[00:22:05] Speaker 03:
OK, we are entitled ultimately to get some form of judicial review of this redetermination, I think.

[00:22:14] Speaker 03:
And how do I go about getting it?

[00:22:16] Speaker 03:
What's my next step?

[00:22:18] Speaker 00:
They could have either asked to file an amended complaint, and they could have said, one, I think it's important to note, they never expressed to the court.

[00:22:24] Speaker 00:
They expressed concerns about,

[00:22:26] Speaker 00:
the merits of the decision being wrong.

[00:22:28] Speaker 00:
They did not argue to the court that they were precluded from bringing a bid protest.

[00:22:32] Speaker 00:
That's nowhere in their papers.

[00:22:34] Speaker 00:
They could have raised the concern to the court that they were concerned they couldn't file another bid protest.

[00:22:39] Speaker 00:
They could have tried to amend the complaint.

[00:22:41] Speaker 00:
They could have filed another bid protest.

[00:22:43] Speaker 00:
I don't know how successful they have been.

[00:22:45] Speaker 00:
To the extent they were unsuccessful, I submit to the court that that was the result of the fact that they took a gamble on the protest.

[00:22:52] Speaker 04:
Did they file the bid protest without actually filing a bid themselves?

[00:22:56] Speaker 00:
They would be at risk for us.

[00:22:58] Speaker 00:
We would have challenged standing if the court, the government did... It's just a yes or no question.

[00:23:03] Speaker 00:
They can file a bid protest.

[00:23:05] Speaker 00:
Yes, Your Honor.

[00:23:05] Speaker 04:
I mean, but would it have been heard?

[00:23:07] Speaker 00:
I don't know the answer to that, Your Honor.

[00:23:09] Speaker 00:
I don't know if amending the complaint would have let them be heard, but plenty of times protesters file bid protests and do not get the relief that they want.

[00:23:17] Speaker 00:
In the Magnum Opus case that I cited in our brief,

[00:23:21] Speaker 00:
The court continued to let them use the solicitation for two years.

[00:23:24] Speaker 00:
In the Filtration Development case, the court said it was satisfied with the second determination that the agency made.

[00:23:33] Speaker 00:
In the Mission Critical case, they said that they were out of luck.

[00:23:36] Speaker 00:
And again, even with the OHA process, they were unlikely to have gotten, they ran the gamble anyway when they challenged it that OHA wouldn't have even issued a decision by the time bids were due.

[00:23:48] Speaker 00:
So many of these problems are of RLB's own making.

[00:23:52] Speaker 00:
And given that they didn't even attempt to file another bid protest, didn't raise these arguments to the court, and given the fact that they didn't even here seek an expedited briefing schedule or ask for a stay pending appeal with this court.

[00:24:07] Speaker 00:
The agency has gone on with this contract.

[00:24:10] Speaker 00:
RLB didn't challenge the award.

[00:24:12] Speaker 00:
There's absolutely no basis

[00:24:14] Speaker 00:
for disturbing the trial court's decision, given that it did not abuse its discretion in determining that the government complied, or just given the factors surrounding this bid protest.

[00:24:30] Speaker 00:
If the court has no further questions, we respectfully request that it affirm the decision of the lower court.

[00:24:36] Speaker 02:
Thank you.

[00:24:36] Speaker 02:
In respect, Mr. Ruggeri has three and a half minutes left.

[00:24:43] Speaker 01:
A lot of time was spent talking about what remedies RLD would have had.

[00:24:46] Speaker 01:
I think we made it clear, it was made clear that OHA would have been rejected.

[00:24:50] Speaker 01:
The regulations are clear that the judges at OHA do not have any discretion to extend the time period for filing.

[00:24:57] Speaker 01:
A lot was talked about RLD took the risk that RLD should have filed a proposal way back when and that would have gave it standing much later.

[00:25:07] Speaker 01:
RLB didn't believe there was a proper NAICS code.

[00:25:11] Speaker 01:
Why would it spend a lot of money and invest a lot of time preparing a proposal for a job that under that current NAICS code it didn't want?

[00:25:19] Speaker 01:
Because other small contractors would have an advantage knowing that they could hire a large contractor to do most of the work and they didn't have to do the dredging work.

[00:25:27] Speaker 01:
So it makes no sense to say that RLB could have

[00:25:32] Speaker 01:
should have fought way ahead of time and submitted a proposal when they weren't required to.

[00:25:36] Speaker 01:
They probably went through the proper process.

[00:25:38] Speaker 03:
How about amending the complaint to address the re-determination with the Court of Federal Courts?

[00:25:50] Speaker 01:
I've never heard of that being done.

[00:25:52] Speaker 01:
It's clear, first of all, under the circumstances, Your Honor.

[00:25:58] Speaker 01:
And we found many cases where an injunction was filed

[00:26:02] Speaker 01:
And the court looked at the merits of the action based on the injunction.

[00:26:06] Speaker 01:
Because that's exactly what the court did the first time.

[00:26:08] Speaker 01:
They looked at the process.

[00:26:10] Speaker 01:
And now we're just asking them.

[00:26:11] Speaker 01:
And they said, do the process over again, occasionally.

[00:26:13] Speaker 01:
And Arlie is asking, OK, they did another process.

[00:26:16] Speaker 01:
Just do the same thing and look at that process again.

[00:26:18] Speaker 03:
Well, the first complaint was the determination was flawed.

[00:26:22] Speaker 03:
And the trial court responded by saying, OK, do the determination again.

[00:26:31] Speaker 03:
And they did.

[00:26:32] Speaker 03:
It would seem to me that it's perhaps a natural course to follow to say, it's still flawed second time around, and go back to the adjudicator who said, yes, it was flawed the first time around.

[00:26:45] Speaker 03:
Why isn't that a sort of natural course of action to follow that doesn't put you back in before an agency that would say that you're too late?

[00:26:57] Speaker 01:
We're not sure what would have happened in that instance, Your Honor.

[00:27:00] Speaker 01:
We felt in their cases, I'd say,

[00:27:02] Speaker 01:
a party that was awarded a judgment had an interest in enforcing that judgment with the court that issued it.

[00:27:09] Speaker 01:
And that was the proper way to go, we felt, and the only way, really, to go.

[00:27:13] Speaker 01:
And so that's basically why.

[00:27:16] Speaker 01:
And the case law out there, in many other instances, that's exactly what the court did.

[00:27:20] Speaker 01:
It appeared that this was the proper avenue to go.

[00:27:23] Speaker 03:
Let's suppose Judge Brooking had been crystal clear about the injunction.

[00:27:27] Speaker 03:
And I think he's pretty clear.

[00:27:30] Speaker 03:
But let's assume that he had added to the injunction, the clause, and it said, I hereby direct the agency to do a redetermination.

[00:27:38] Speaker 03:
And my injunction is simply for them to do a redetermination.

[00:27:42] Speaker 03:
And I do not intend, following the redetermination, to examine the details of whether it was done to the satisfaction of RLB.

[00:27:55] Speaker 03:
That's the injunction.

[00:27:56] Speaker 03:
There'd be no question in that case, I take it, that what was done complied with that injunction, right?

[00:28:02] Speaker 01:
Well, Your Honor, if that was the case, then RLB certainly would have appealed that order saying, you can't just tell them to do it.

[00:28:08] Speaker 01:
You have to consider yourself with how they're doing it.

[00:28:10] Speaker 01:
And you have to get into the merits of it.

[00:28:12] Speaker 03:
And what would you have said?

[00:28:14] Speaker 03:
For the injunction, you would have said what?

[00:28:17] Speaker 03:
You would have said you can't have an injunction like that?

[00:28:22] Speaker 01:
Exactly, Your Honor.

[00:28:23] Speaker 01:
You can't issue an injunction and not

[00:28:24] Speaker 01:
keep jurisdiction to enforce the injunction or to review compliance with it.

[00:28:28] Speaker 03:
The courts have an obligation to... But he was reviewing compliance with the injunction that he granted, which is that he said they complied.

[00:28:35] Speaker 03:
And he would have been right, for sure, if that had been the injunction he'd given.

[00:28:40] Speaker 03:
Wouldn't it be the thing to do to go back and say, okay, now that they've done a re-determination per your injunction, we now amend the complaint to say the new determination is wrong.

[00:28:52] Speaker 01:
That may have been an option, Your Honor.

[00:28:54] Speaker 01:
I don't know.

[00:28:54] Speaker 01:
I don't think it was.

[00:28:55] Speaker 01:
But I think the proper way to do it, and Arley had a right to do the way that what it did, was go back to the issuing court and ask for compliance with that injunction, which was specific.

[00:29:06] Speaker 02:
Thank you, Counselor.

[00:29:10] Speaker ?:
Thank you.