[00:00:00] Speaker 02:
SBK Solutions versus United States.

[00:00:30] Speaker 02:
Mr. Henry, whenever you're ready.

[00:01:01] Speaker 03:
Good morning, Your Honors.

[00:01:02] Speaker 03:
I'm Ron Henry for the appellate STK.

[00:01:04] Speaker 03:
And with me is Robert Wagman, also a paid shoulder.

[00:01:08] Speaker 03:
I'll reserve a few moments for the end for rebuttal.

[00:01:11] Speaker 03:
We believe that this is a rather simple and narrow case.

[00:01:15] Speaker 03:
The parties agree that the so-called rule of two applies here.

[00:01:18] Speaker 03:
The parties agree that the government needs a reasonable basis to not do a set-aside for small businesses.

[00:01:26] Speaker 03:
And we're here because we believe the government lacked such a reasonable basis.

[00:01:30] Speaker 02:
What is our standard of refugue, whether or not?

[00:01:33] Speaker 03:
It is a deferential standard.

[00:01:34] Speaker 03:
They have a range of discretion.

[00:01:36] Speaker 03:
And we're not denying the opportunity for the government to discharge its burden in a variety of means.

[00:01:43] Speaker 03:
But when you look at what they did in this particular case, we think they failed to provide the reasonable basis.

[00:01:50] Speaker 03:
And in fact, I'll cite to one of the cases they put in their own brief, because these are very fact-determinative cases.

[00:01:57] Speaker 03:
We know what the standard is.

[00:01:58] Speaker 03:
The standard is not in dispute.

[00:02:00] Speaker 03:
And the case I'm going to quote from actually is a case they cited where the court agreed that a set aside was not necessary.

[00:02:07] Speaker 03:
But the court said the standard it has to look at, and this is the MCS management case.

[00:02:13] Speaker 03:
The court said the standard it has to look at arises because gaps in logic and reason

[00:02:20] Speaker 03:
lead to arbitrary conclusions.

[00:02:22] Speaker 03:
And that's what we've got here.

[00:02:23] Speaker 03:
We have gaps in logic and reason.

[00:02:26] Speaker 01:
Is your argument affected or impacted by this court's decision in Kingdom War?

[00:02:31] Speaker 01:
I don't believe so, Your Honor.

[00:02:34] Speaker 03:
Why?

[00:02:37] Speaker 03:
I will confess that my familiarity with that particular case is limited.

[00:02:42] Speaker 03:
I have focused on the facts that we have here because

[00:02:47] Speaker 03:
we believe that what we're talking about is an unambiguous standard of judicial review, and that under all the case law, this court will find that there was a lack of a reasonable basis for what this agency did here.

[00:03:00] Speaker 01:
In a kingdom where this court held that the CEO is not required to apply the two-step analysis, the rule of two analysis, in every solicitation, every bid.

[00:03:15] Speaker 03:
Certainly, Your Honor, there can be situations where the rule of two does not apply.

[00:03:21] Speaker 03:
It has not been argued by any party that there have been exception to the rule of two in this case.

[00:03:27] Speaker 03:
All of the briefs from all the parties below and in this court have acknowledged the applicability of the rule of two.

[00:03:33] Speaker 03:
That has never been raised as an issue by any party.

[00:03:38] Speaker 03:
We believe that the rule of two is fully applicable here.

[00:03:41] Speaker 03:
We don't have any reason to believe that there would be an exception to the rule of two.

[00:03:44] Speaker 01:
You're arguing that the CO was in error in its rule of two analysis.

[00:03:52] Speaker 01:
That's correct, Your Honor.

[00:03:53] Speaker 01:
We believe that the rule of two... In the keynote where we said that the CO is not even required, that they have discretion to decide when to apply the rule of two analysis or not.

[00:04:03] Speaker 03:
Well, we understand that, Your Honor, but what we understand also is when we look at

[00:04:08] Speaker 03:
the FAR provision that's applicable here, 19502 I believe it is, that the requirement does apply in this case and that all of the parties have proceeded completely through this entire process.

[00:04:23] Speaker 02:
But the government found here that the rule of two was satisfied, right?

[00:04:30] Speaker 03:
What happened in this case, Your Honor, was that we first filed a bid protest at the Government Accountability Office.

[00:04:38] Speaker 03:
And we argued that they had not done a proper rule of two analysis in that first process.

[00:04:43] Speaker 02:
OK, tell us in English what a rule of two is.

[00:04:46] Speaker 02:
Oh, I'm sorry.

[00:04:46] Speaker 02:
Yes, of course.

[00:04:47] Speaker 03:
Discussing this as a... Yes, I'm quite sorry.

[00:04:50] Speaker 03:
What happened under the Competition and Contracting Act under the Small Business Act is there's an obligation for the agency to conduct competitive procurements.

[00:04:59] Speaker 03:
Right.

[00:05:00] Speaker 03:
And one of the requirements that comes out of the Small Business Act and is laid out in the Federal Acquisition Regulations at 19502

[00:05:08] Speaker 03:
is that there's a requirement to set aside for small businesses those procurements where the agency finds or has a reasonable basis to determine that two or more small businesses will submit acceptable proposals at a reasonable price.

[00:05:25] Speaker 02:
Okay, and here the market research that they did indicated that the rule of two cannot be satisfied?

[00:05:31] Speaker 03:
That's exactly the problem we have here, Your Honor, that in this case

[00:05:35] Speaker 03:
This agency followed a process that, in the words of the MCS management decision, had gaps, had logical fallacies in it that caused them to reach an arbitrary conclusion.

[00:05:46] Speaker 03:
And that's why we're here.

[00:05:48] Speaker 03:
That their decision to not set aside violated their obligation because the rule of two properly applied was satisfied here.

[00:05:56] Speaker 02:
OK, why don't you give us the heart then?

[00:05:58] Speaker 02:
I mean, this is a deferential standard.

[00:06:00] Speaker 02:
Where were they wrong?

[00:06:01] Speaker 03:
Exactly so.

[00:06:03] Speaker 03:
And we have this in the brief.

[00:06:05] Speaker 03:
To this day, they have not identified a single item, a single set of salient characteristics that would be unavailable from multiple small businesses.

[00:06:16] Speaker 03:
That is the definition of satisfying the rule of two.

[00:06:18] Speaker 03:
If you have two or more small businesses who are capable of meeting the government's need at a reasonable price, the agency is supposed to do a set-aside for small businesses.

[00:06:30] Speaker 03:
In this case, we have at every stage of these proceedings, at GAO, at the Court of Federal Claims, in our briefs here to this court, we have said and challenged them over and over again, tell us, is there a single product within your needs, is there a single thing you have identified that you want to buy, a single thing within your actual minimum requirements for which you don't find the availability of two or more small businesses?

[00:06:56] Speaker 03:
They have not found, have not identified a single thing.

[00:06:59] Speaker 02:
And let me put this in terms of what you might call... Well, I mean, there's like 20 pages of analysis, right?

[00:07:07] Speaker 02:
And the contracting officer, I mean, reached that conclusion, right?

[00:07:12] Speaker 03:
It did reach a conclusion, but if I may be...

[00:07:15] Speaker 02:
So I'm asking you to tell me, point me to something and say they said this, and that's contrary to what the facts are in the record.

[00:07:24] Speaker 03:
Absolutely.

[00:07:24] Speaker 03:
And that is the beginning point, Your Honor.

[00:07:26] Speaker 03:
They have an obligation to set aside for small businesses if two or more small businesses are available to do the work.

[00:07:34] Speaker 03:
Where is there, in that 18 or 20 pages,

[00:07:38] Speaker 03:
Where is there anything where they found a single identifiable product that is not available from two or more small businesses?

[00:07:47] Speaker 03:
That is the standard.

[00:07:48] Speaker 03:
They have got to review and do market research in order to determine whether there is any product that cannot be supplied by two or more small businesses at a reasonable price.

[00:08:01] Speaker 03:
They did not do that.

[00:08:01] Speaker 02:
Well, I mean, you say that, but look, I mean, I've got the site for JA302 where

[00:08:08] Speaker 02:
They've got a 20 page analysis, and then the conclusion says that based on this analysis, there's significant demand offered by large businesses for which no small business has shown the ability to produce.

[00:08:20] Speaker 02:
And there you go.

[00:08:21] Speaker 02:
And then they go on to give some examples.

[00:08:24] Speaker 03:
Exactly so.

[00:08:25] Speaker 03:
That was a different case because they did find some examples of situations where there were not an availability of small business.

[00:08:33] Speaker 03:
We don't have that here.

[00:08:34] Speaker 03:
There is no product.

[00:08:36] Speaker 03:
for which they have identified a need of the government and an unavailability of multiple small businesses.

[00:08:43] Speaker 03:
That is precisely why they have not met the standard here.

[00:08:46] Speaker 03:
They did not find a single product that was unavailable from multiple small businesses.

[00:08:52] Speaker 03:
Let's take this from the best possible perspective from the government standpoint, because they had some offers in hand.

[00:08:59] Speaker 03:
some offers from large businesses.

[00:09:01] Speaker 03:
And let's say that they looked at those offers from a large business and they found a tent that they liked from one of the large businesses.

[00:09:10] Speaker 03:
Did they identify the salient characteristics of that tent?

[00:09:14] Speaker 03:
No.

[00:09:15] Speaker 03:
And that's an obligation because you can't just pluck a sole source product and say, give me.

[00:09:21] Speaker 03:
They have an obligation under the Competition and Contracting Act

[00:09:24] Speaker 03:
to allow competition to identify the salient characteristics of the product that they want to buy and determine if competition and other sources are available.

[00:09:34] Speaker 03:
They can't just say, ooh, I like this particular product.

[00:09:37] Speaker 03:
I'm just going to buy it off the street.

[00:09:39] Speaker 03:
They have an obligation under the Competition and Contracting Act if they had identified a particular tent that they like.

[00:09:45] Speaker 03:
And again, they have not identified any single product

[00:09:49] Speaker 03:
as one that they want to buy and measure that against the availability of small business.

[00:09:54] Speaker 03:
But if they had identified a single product, the next thing they've got to do is identify what are the salient characteristics of that product.

[00:10:02] Speaker 01:
Where does that come from?

[00:10:04] Speaker 01:
Salient characteristics?

[00:10:05] Speaker 03:
Sure, that's all in the federal acquisition regulations.

[00:10:08] Speaker 03:
In terms of the full and open company... Which one?

[00:10:13] Speaker 03:
The specific requirement?

[00:10:14] Speaker 01:
The salient requirement.

[00:10:21] Speaker 03:
The requirements of the Competition and Contracting Act apply to IDIQ contracts.

[00:10:33] Speaker 03:
First of all, there are two statutes that are involved here.

[00:10:37] Speaker 03:
You start with the Competition and Contracting Act, which creates this obligation for full and open competition.

[00:10:45] Speaker 03:
layered into that is the Small Business Act.

[00:10:50] Speaker 03:
That's where the Rule of Two comes from.

[00:10:51] Speaker 03:
The obligation is the rule.

[00:10:53] Speaker 02:
Okay, so we just segued all over the place.

[00:10:55] Speaker 02:
We started with, you cited one FAR provision, 1952.

[00:11:01] Speaker 02:
We were talking about the Rule of Two, and then suddenly we're segued into some other requirements.

[00:11:10] Speaker 02:
Are we talking about the same FAR requirements or are we now discussing other FAR requirements?

[00:11:13] Speaker 03:
This is part of the process by which the government must go through the determination of how to or whether the rule of twos Okay, I'm not I'm just asking you what it is.

[00:11:24] Speaker 02:
You're alleged Is this an allegation that some other provision of FAR was violated?

[00:11:29] Speaker 02:
Are we still on 19502?

[00:11:30] Speaker 03:
502 is where the obligation comes in.

[00:11:33] Speaker 03:
That's absolutely correct, Your Honor.

[00:11:34] Speaker 03:
So that's your case, that you're saying they violated?

[00:11:37] Speaker 03:
Yes, that they did not meet the standard that is set out for them in the Small Business Act as implemented through the Federal Acquisition Regulations.

[00:11:45] Speaker 03:
Exactly so.

[00:11:46] Speaker 03:
Because what they said was they haven't found any particular product that they want to buy.

[00:11:54] Speaker 03:
So they failed, first of all, and this is an obligation under government contracting too, you have to begin by establishing what are your requirements

[00:12:04] Speaker 03:
You can't have a government contract just going out and doing impulse buying.

[00:12:10] Speaker 03:
You must begin under the Competition and Contracting Act with defining an actual requirement.

[00:12:16] Speaker 03:
This is laid out in the Competition and Contracting Act.

[00:12:18] Speaker 03:
I'll mention 10 USC 2305A1A.

[00:12:23] Speaker 03:
In preparing for the procurement of property or services, the head of an agency shall specify the agency's needs.

[00:12:33] Speaker 03:
And then FAR 2.101 implements that.

[00:12:37] Speaker 02:
So this was kind of a different kind of procurement here where they were trying to establish a mall.

[00:12:41] Speaker 02:
So are you suggesting this whole way they went about it and this procurement thing to establish this sort of e-shopping mall when agencies needed something that that's a violation of law?

[00:12:52] Speaker 03:
Not at all.

[00:12:53] Speaker 03:
It's perfectly appropriate to set up multiple award contracts, IDIQ contracts.

[00:12:59] Speaker 03:
But when they do that, there are certain obligations that they undertake along the way.

[00:13:03] Speaker 03:
One of which is to comply with the Small Business Act.

[00:13:08] Speaker 02:
Can I just try to focus you down because I mean I guess we've had a lot of global discussion here.

[00:13:14] Speaker 02:
Can you tell us what they, with respect to their market research, you say was deficient?

[00:13:20] Speaker 02:
So can you just tell us explicitly what question they should have asked that they didn't ask or what?

[00:13:26] Speaker 02:
I mean can you give me something tangible and specific, even by way of example for what you're arguing here?

[00:13:32] Speaker 03:
To begin, they have to identify what they want to buy.

[00:13:35] Speaker 03:
They fail to do that.

[00:13:37] Speaker 03:
After they identify what they want to buy, they have to do market research to determine if that thing is available from two or more small businesses.

[00:13:46] Speaker 03:
They didn't do that.

[00:13:48] Speaker 03:
And when you look at, take the simple situation of our client, SEK.

[00:13:54] Speaker 03:
At no time, we were filing protests saying, guys, you haven't given us the chance.

[00:14:00] Speaker 03:
You don't have a proper solicitation here.

[00:14:02] Speaker 03:
They didn't even come to us and say, hey, we'd like to buy X. Can you provide X?

[00:14:08] Speaker 03:
They never identified what they wanted to buy.

[00:14:10] Speaker 03:
They never tested against the market whether small businesses could provide whatever it was they wanted to buy.

[00:14:16] Speaker 03:
So you end up with multiple deficiencies here.

[00:14:20] Speaker 03:
First, failing to specify what they wanted to buy.

[00:14:24] Speaker 03:
Second, doing the market research to determine whether it was available or not.

[00:14:30] Speaker 03:
And this is where the report from the Small Business Administration becomes so important, because the SBA did weigh into this protest.

[00:14:38] Speaker 03:
You'll recall that in our protest, GAO reached out to the Small Business Administration and said, what do you guys think about this?

[00:14:47] Speaker 03:
And the Small Business Administration reported extensively from their memorandum and their opinion.

[00:14:55] Speaker 03:
They laid out quite clearly the deficiencies of this agency.

[00:14:59] Speaker 03:
They said, instead of comparing the products of small businesses to the actual solicitation requirements,

[00:15:07] Speaker 03:
This agency compared, oddly, only proposals that it already had in hand.

[00:15:14] Speaker 02:
So remember the... Just bottom line though, the Small Business Administration couldn't find anything problematic or unlawful about what they were doing, right?

[00:15:22] Speaker 03:
Oh, absolutely they did.

[00:15:24] Speaker 03:
Their whole opinion is about the flaws in what this agency did.

[00:15:28] Speaker 03:
The one thing the SBA did not do was usurp from GAO

[00:15:33] Speaker 03:
GAO's authority to render a decision in the protest.

[00:15:37] Speaker 03:
SBA couldn't say, and GAO, you're required to rule in favor of the protestor.

[00:15:43] Speaker 03:
They laid out all their reasons.

[00:15:46] Speaker 03:
You have that extended GAO opinion in which they laid out all the things that this agency did wrong, how it had failed to apply the rule to, how it had failed.

[00:15:55] Speaker 01:
At bottom, are you arguing that the government failed to conduct

[00:16:02] Speaker 01:
a rule of two analysis or that the rule of two analysis that they conducted was defective?

[00:16:08] Speaker 03:
They purported to conduct a rule of two analysis but it was defective.

[00:16:12] Speaker 01:
Which one is it?

[00:16:12] Speaker 01:
Did they fail to conduct an analysis?

[00:16:15] Speaker 01:
Or if they did conduct an analysis, was it defective?

[00:16:19] Speaker 03:
It was defective.

[00:16:20] Speaker 03:
That it was defective?

[00:16:21] Speaker 03:
It was absolutely defective, yes.

[00:16:22] Speaker 03:
They purported to comply with the rules.

[00:16:24] Speaker 03:
And bear in mind the history here.

[00:16:25] Speaker 03:
We filed our first bid protest.

[00:16:28] Speaker 01:
It was defective why?

[00:16:29] Speaker 01:
Because it failed to conduct the required market research to see if the

[00:16:33] Speaker 01:
The market contains at least two small businesses that are qualified to respond to the bid.

[00:16:42] Speaker 03:
Exactly so.

[00:16:43] Speaker 03:
That on this record, we have demonstrated that they did not establish a reasonable basis for their failure to set aside this procurement for small businesses.

[00:16:54] Speaker 03:
Remember, the Small Business Act says they've got an obligation to set it aside if two or more small businesses are available at a reasonable price.

[00:17:03] Speaker 03:
They didn't discharge that obligation because they failed to conduct the proper analysis required.

[00:17:09] Speaker 01:
I ask the questions because it seems to me that, now that I believe you've answered my questions, that I wonder whether we even are able to review your complaint because you're asking us to

[00:17:22] Speaker 01:
review factual determinations that were made with respect to the World of II analysis.

[00:17:28] Speaker 03:
Well, these decisions are reviewed quite frequently at all levels, at GAO, at the Court of Federal Claims.

[00:17:36] Speaker 03:
What we're talking about here is simply

[00:17:39] Speaker 03:
a well-known standard that the agency must have a reasonable basis.

[00:17:44] Speaker 03:
It can't be arbitrary and capricious.

[00:17:46] Speaker 03:
This is standard Administrative Procedures Act review.

[00:17:50] Speaker 03:
They have to have a reasonable basis for their decision.

[00:17:53] Speaker 03:
And we have demonstrated on the record that they did not have a reasonable basis for this determination.

[00:17:59] Speaker 03:
They did not have a reasonable basis

[00:18:01] Speaker 03:
for failing to do the small business set-aside that is required by the Small Business Act when two small businesses are available.

[00:18:10] Speaker 02:
You've exceeded your time when we store one minute for rebuttal.

[00:18:13] Speaker 03:
Thank you.

[00:18:24] Speaker 00:
Thank you, Your Honor.

[00:18:29] Speaker 00:
First, addressing the merits, Your Honor, I think as the court made clear through its questions, the contracting officer here with her market research performed a rule to analysis.

[00:18:44] Speaker 00:
It's subject to the highly deferential rational basis review.

[00:18:48] Speaker 00:
As the trial court found, the analysis that was performed or the market research that it was based on were perfectly logical.

[00:18:58] Speaker 00:
Then turning to SEC's primary argument that contracting officers didn't identify a single product that wasn't available for multiple small businesses, as you indicated, Judge Prost,

[00:19:14] Speaker 00:
The record doesn't support that.

[00:19:16] Speaker 00:
In fact, what she specifically did was looked at the offers that were received under the existing contract from large businesses, identified the most popular shelters that were offered there, and then looked to see whether the small businesses who had submitted proposals were offering those shelters or acceptable alternatives, and concluded that they were not.

[00:19:40] Speaker 01:
Does KingdomWare have an impact on this case or decision in KingdomWare?

[00:19:46] Speaker 00:
Your Honor, I don't think KingdomWare does have an impact on this case.

[00:19:50] Speaker 00:
I recognize KingdomWare did hold that contracting officers aren't required in every circumstance to do a rule two analysis.

[00:19:58] Speaker 00:
Here, however, the contracting officer did that analysis.

[00:20:02] Speaker 00:
And so that is part of the record.

[00:20:04] Speaker 00:
And it's the basis for her decision not to do a set-aside.

[00:20:08] Speaker 00:
And so that is up on review before the court.

[00:20:14] Speaker 00:
But just backing up a little bit, I don't think the court even needs to get to these merits-based arguments because pursuant to this foretolding and recs, as well as

[00:20:27] Speaker 00:
SAK doesn't have standing to even bring its challenge.

[00:20:33] Speaker 02:
You know, I saw your 28-J letter.

[00:20:35] Speaker 02:
I would have thought my reading of CGI is that it kind of went against you and hurt your argument.

[00:20:43] Speaker 02:
You're trying to use it as sort of being advantageous to you.

[00:20:46] Speaker 02:
I don't quite get it.

[00:20:48] Speaker 02:
Now, there's some discrepancy, there's some difference between the facts here and the facts there, but I'm not sure how they would undermine the applicability of that holding to our case.

[00:20:56] Speaker 00:
Well, I think there's a very important difference in the facts of that case, and that is in CGI, the plaintiff acted immediately after the GAO denied its protest and filed their complaint in the court of federal claims three days later.

[00:21:11] Speaker 00:
Here, SEK waited 32 days.

[00:21:15] Speaker 00:
And CGI said, yes, we recognize that the general rule is in order to have standing, you have to file a bid.

[00:21:22] Speaker 00:
However, there's a narrow exception where, based on these facts,

[00:21:26] Speaker 00:
where they acted immediately after the GAO denied the protest.

[00:21:31] Speaker 00:
And in so doing, they were diligently and continuously protested.

[00:21:37] Speaker 00:
So there they maintained their standings.

[00:21:39] Speaker 02:
So we would have to find a lack of diligence in terms of how they behaved here.

[00:21:44] Speaker 02:
And so we're talking about 25, 35 days, I don't remember what, the first 10 of which they say they couldn't have done it because the record wasn't a bit, I mean, so you want to, so we have to do an analysis.

[00:21:56] Speaker 02:
So we're supposed to conclude that the 15 days versus the three days in that case was sufficient to say there was no due diligence here.

[00:22:04] Speaker 00:
Well, the 32 days, Your Honor.

[00:22:06] Speaker 00:
It wasn't 15 days.

[00:22:08] Speaker 02:
Right, but if you take away, I don't know, are you disputing the fact that they couldn't have done something within the first 10-day period?

[00:22:14] Speaker 00:
Yes, Your Honor, we are.

[00:22:16] Speaker 00:
They argued that they had to wait until after the GAO published its decision because they were bound by the terms of the GAO's protective order.

[00:22:25] Speaker 00:
The protective order itself said that filings made at the Court of Federal Claims based on the matters that are sealed at the GAO don't violate that protective order.

[00:22:37] Speaker 00:
So there was nothing stopping them from bringing their complaint immediately in the Court of Federal Claims.

[00:22:42] Speaker 00:
And that usually is the standard in bid protests where things happen very quickly.

[00:22:48] Speaker 00:
After the GAO denied SCK's protest

[00:22:52] Speaker 00:
There was no longer the seek a stay.

[00:22:53] Speaker 00:
The seek a stay didn't apply.

[00:22:55] Speaker 00:
Nothing was preventing the agency from proceeding with the procurement and with conducting the price negotiations.

[00:23:06] Speaker 00:
Indeed, if this court was to hold that there's a 32, you can still have standing after 32

[00:23:11] Speaker 00:
after you lose it, after the GAO denies your protest, then I think it really would create, it would drive a truck essentially through this exception that was created by CGI.

[00:23:22] Speaker 01:
You mean there's a big difference between 32 and 3?

[00:23:25] Speaker 00:
Yes, Your Honor, there is a significant difference in the order of magazines.

[00:23:29] Speaker 00:
Ten times the amount of time that was required in CGI.

[00:23:34] Speaker 00:
And this gets to, in fact, Congress provided in the statute in 1492

[00:23:39] Speaker 00:
1b that big protests are to be resolved expeditiously.

[00:23:43] Speaker 00:
Waiting 32 days, essentially you're demonstrating a lack of interest in this procurement when you do that.

[00:23:49] Speaker 00:
That's simply not expeditious.

[00:23:52] Speaker 00:
It's not diligent.

[00:23:53] Speaker 00:
It's not in keeping with recs.

[00:23:54] Speaker 00:
It's not in keeping with, or actually it's similar to recs, but certainly it's not in keeping with CGI.

[00:24:06] Speaker 00:
But alternatively, if the court were to hold that SEK established jurisdiction even though it waited 32 days, they still would not have a case on the merits, as we discussed on the market research and rule of two determination.

[00:24:25] Speaker 00:
But I think their overarching argument that the agency hasn't specified its needs really is governed by this court's holding in

[00:24:35] Speaker 00:
which it said, look, it's the agencies that determine their needs, and those determinations are given broad discretion.

[00:24:46] Speaker 00:
Here we have in the Joint Appendix, excuse me, at page 133 of the Joint Appendix,

[00:24:59] Speaker 00:
There's the scope.

[00:25:01] Speaker 00:
There's the statement that's required for proposal documents that are required for proposal submissions.

[00:25:07] Speaker 00:
And then on A137, it lists nine performance requirements.

[00:25:14] Speaker 00:
And so while it, you know, right here, I don't understand what the argument is because, you know, as the trial court found and as the record shows, they did provide for what they were looking for, what the agency's needs are.

[00:25:29] Speaker 00:
To the extent that they're arguing, well, these needs aren't specific enough for us, which is what I think they're getting at, that's just inconsistent with how IDIQ-type contracting operates.

[00:25:42] Speaker 00:
It's supposed to.

[00:25:43] Speaker 00:
It's there to provide for circumstances when an agency can't come to a specific understanding or a specific, a particular statement of its needs in the future.

[00:25:55] Speaker 00:
And it allows for a very general description of

[00:25:59] Speaker 00:
of the statement of needs.

[00:26:09] Speaker 00:
With that, Your Honor, we have nothing further.

[00:26:11] Speaker 00:
There's no further questions.

[00:26:12] Speaker 00:
Thank you.

[00:26:17] Speaker 03:
I won't spend time on the CGI issue.

[00:26:21] Speaker 03:
I think that's pretty self-explanatory from the filing they made and the response that we provided to the court.

[00:26:27] Speaker 02:
Why don't you just try to respond just really with a couple sentences to the fact that why is there not a substantial difference in this universe?

[00:26:35] Speaker 02:
I mean, we deal with 10-year statute of limitations, so typically we're not dealing with the short

[00:26:41] Speaker 02:
But in this circumstance, there's a reason for it.

[00:26:44] Speaker 02:
So three days is different than 32 days, right?

[00:26:46] Speaker 03:
It's quite simple, Your Honor.

[00:26:48] Speaker 03:
At GAO, there's a protective order, of course.

[00:26:51] Speaker 03:
After the proceedings finished at GAO, we were free to move to the Court of Federal Claims.

[00:26:56] Speaker 03:
But the GAO opinion was still under protective order.

[00:26:59] Speaker 03:
So although GAO had no objection to us filing its opinion at the Court of Federal Claims, we could not give a copy of that opinion to our client.

[00:27:09] Speaker 03:
in order to allow our client to review the GAO decision and decide whether it wanted to go to the Court of Federal Claims, we couldn't share that opinion with them until there was a redacted version.

[00:27:21] Speaker 03:
That's why we needed some days at the front end to create the redacted version.

[00:27:25] Speaker 02:
Okay, so that takes, so accepting that, that takes 10 days off the front.

[00:27:28] Speaker 02:
Oh, that was 20.

[00:27:30] Speaker 03:
And we then filed, we moved expeditiously

[00:27:34] Speaker 03:
right after the redacted version was released and we could discuss it with our client.

[00:27:38] Speaker 03:
I believe it was nine or ten days from that point until we filed at the Court of Federal Claims.

[00:27:44] Speaker 03:
So what we've got here, Your Honor, is actually quite a, I won't call it a sleight of hand, but a twist.

[00:27:50] Speaker 03:
When they started their argument about CGI, they were saying we lacked standing and this court lacked subject matter jurisdiction.

[00:27:57] Speaker 03:
The twist is they've now abandoned that and they've turned it into a traditional latches argument.

[00:28:03] Speaker 03:
That latches argument fails because there's absolutely no showing of prejudice by the government

[00:28:08] Speaker 03:
And we did move expeditiously.

[00:28:10] Speaker 02:
Why don't you move on just a couple sentences.

[00:28:13] Speaker 02:
You've got virtually no time left.

[00:28:14] Speaker 02:
All right.

[00:28:15] Speaker 03:
I'll move very quickly, Your Honor.

[00:28:16] Speaker 03:
First of all, my apologies.

[00:28:17] Speaker 03:
I misheard you at the beginning when you asked about Kingdomware.

[00:28:21] Speaker 03:
Yes, we are familiar with that.

[00:28:22] Speaker 03:
That involved a specific program at the Veterans Administration.

[00:28:26] Speaker 03:
And the ruling was that

[00:28:28] Speaker 03:
That particular- We know what the ruling was.

[00:28:30] Speaker 02:
What is your view about the applicability of this case?

[00:28:33] Speaker 03:
It's simply irrelevant to this case, as counsel for the government can see.

[00:28:37] Speaker 03:
There was a very special circumstance involving a particularized Veterans Administration program that did not make the rule too applicable, as we all agree it is applicable here.

[00:28:47] Speaker 02:
OK.

[00:28:47] Speaker 02:
We're out of time here.

[00:28:50] Speaker 02:
I think we'll rest on the briefs.

[00:28:51] Speaker 02:
Thank you.

[00:28:52] Speaker 02:
All right.

[00:28:52] Speaker 02:
Thank you very much.

[00:28:53] Speaker 02:
Thank both counsel and cases.