[00:00:03] Speaker 03:
Next case is Per Arsliff, A.S.

[00:00:06] Speaker 03:
versus United States.

[00:01:03] Speaker 03:
Before we get started on this case, the parties have divided up their argument time.

[00:01:11] Speaker 03:
Each side has 15 minutes.

[00:01:14] Speaker 03:
And you've divided up your time into segments of those 15 minutes.

[00:01:18] Speaker 03:
I want to make sure that I have this down correct, especially given the cross appeal that's involved in the case.

[00:01:28] Speaker 03:
Normally, in a way, we kind of discourage that

[00:01:31] Speaker 03:
that these type of arguments be divided amongst so many parties.

[00:01:35] Speaker 03:
It's your choice, but it's easier for us to follow the arguments if we don't have so many actors involved.

[00:01:43] Speaker 03:
But again, it's your choice.

[00:01:45] Speaker 03:
Let me make sure I got this correct.

[00:01:48] Speaker 03:
Mr. Rell, you're going to speak first, and you have eight minutes, and you're reserving three for rebuttal.

[00:01:55] Speaker 03:
That's correct, Your Honor.

[00:01:57] Speaker 03:
Okay.

[00:01:58] Speaker 03:
And Mr. Conley, you have

[00:02:00] Speaker 03:
You're going to speak for three minutes, and you reserve one minute for rebuttal.

[00:02:04] Speaker 03:
That's correct, Your Honor.

[00:02:07] Speaker 03:
Mr. Anstett, you have four minutes, and you're reserving three for the cross appeal?

[00:02:17] Speaker 03:
Yes, Your Honor.

[00:02:18] Speaker 03:
And Mr. Cosgrove, you have six minutes, and you're reserving two for the cross appeal?

[00:02:23] Speaker 05:
That's correct, Your Honor.

[00:02:25] Speaker 03:
And Mr. Boland, I guess that

[00:02:28] Speaker 03:
That's 10, 12, that leaves you with three minutes?

[00:02:33] Speaker 03:
Your Honor, I believe it was 15 minutes just for... No, each side has 15 minutes.

[00:02:39] Speaker 00:
Okay.

[00:02:40] Speaker 03:
So if this is correct, Mr. Cosgrove has reserved six and four, that's 10, that's going to leave you with five at most, but you've got a cross appeal involved here too.

[00:02:51] Speaker 00:
Your Honor, I represent the House, if we did not cross appeal, we're the sole appellate.

[00:02:57] Speaker 03:
Okay.

[00:02:59] Speaker 03:
Well, I guess you all should have gone together on this.

[00:03:04] Speaker 03:
Now, you can't have all 15 minutes for arguing.

[00:03:09] Speaker 03:
I mean, you're going to have to divide this up.

[00:03:11] Speaker 03:
The other parties are asking for six minutes and four minutes, and I guess two and three for the cross appeal.

[00:03:17] Speaker 03:
Is that correct?

[00:03:20] Speaker 09:
Your Honor, if you add up my time with Mr. Costros' time, that would be 15 minutes total.

[00:03:28] Speaker 03:
You all are looking for 15 minutes, and Mr. Boland is looking for 15.

[00:03:33] Speaker 03:
That's 30.

[00:03:34] Speaker 03:
I'm not going to allow that.

[00:03:36] Speaker 03:
Okay?

[00:03:40] Speaker 03:
As you see, we want the parties to have the day in court.

[00:03:43] Speaker 03:
We often let people run over time, and if the questions take you over time, then that's fine.

[00:03:50] Speaker 03:
But you're going to have to let me know how you want to handle this.

[00:03:55] Speaker 03:
You've got 15 minutes.

[00:03:57] Speaker 03:
Given the circumstances, I'll give you 20 for your side, and I'll give the other side 20 minutes as well if they need it.

[00:04:05] Speaker 03:
Does that sound fair enough?

[00:04:06] Speaker 03:
Then you all decide.

[00:04:08] Speaker 03:
And let me know so that Mr. Cosgrove, you're going to speak first?

[00:04:13] Speaker 05:
Is that correct?

[00:04:14] Speaker 05:
I was planning on speaking first, Your Honor.

[00:04:15] Speaker 03:
Okay, when you get up here, then you tell me how you're going to handle the time.

[00:04:19] Speaker 05:
Yes, Your Honor.

[00:04:20] Speaker 03:
Okay, thank you much.

[00:04:21] Speaker 03:
Mr. Connelly?

[00:04:22] Speaker 03:
Mr. Raele?

[00:04:27] Speaker 03:
You may proceed.

[00:04:29] Speaker 08:
Thank you, Your Honor.

[00:04:31] Speaker 08:
May it please the Court.

[00:04:32] Speaker 08:
One of the fundamental tenets of federal procurement law is that agencies have to evaluate offers solely in accordance with the criteria in the solicitation.

[00:04:40] Speaker 08:
That's exactly what the Air Force did in finding Excellus eligible for award in this case.

[00:04:44] Speaker 08:
The GAO, an expert in federal procurement law, recognized this.

[00:04:47] Speaker 08:
But the trial court improperly changed the rules of the competition post-award by excising words from the eligibility criteria to find Excellus ineligible in this case.

[00:04:57] Speaker 08:
Now, Excellus was eligible under the plain language of the solicitation, which should have ended the court's inquiry into the eligibility evaluation.

[00:05:05] Speaker 08:
Instead, relying on extrinsic evidence and even extra record evidence in this case, the trial court rewrote the eligibility criteria by explicitly excising the words registered as.

[00:05:14] Speaker 02:
I understand your argument about the administrative record.

[00:05:16] Speaker 02:
And I mean, we have a lot of precedent on that.

[00:05:18] Speaker 02:
But it seems that the trial court here was faced with a pretty unusual situation in that one of the solicitation requirements, and it's a negative requirement, which

[00:05:27] Speaker 02:
further complicates things, I think, is kind of a null set.

[00:05:31] Speaker 02:
And so it didn't apply to anybody.

[00:05:34] Speaker 02:
And so what is the trial court supposed to do when that language is, I'm not going to necessarily call it a mistake, because I'm not sure it was a mistake, at least I'm part of the Air Force, but it's a null set.

[00:05:47] Speaker 02:
Should he have just ignored it altogether?

[00:05:49] Speaker 08:
Well, ultimately, Your Honor, the

[00:05:53] Speaker 08:
The facts, as they actually exist, demonstrate that yes, that particular provision could not, the registered ASI subsidiary foreign company could not actually exclude anyone.

[00:06:03] Speaker 08:
But the assumption upon which that was based, which is actually in the solicitation itself, was that subsidiary foreign company is a type of registered company in Denmark.

[00:06:13] Speaker 08:
So the provision was not intended to be meaningless.

[00:06:16] Speaker 03:
That's one way of looking at it.

[00:06:17] Speaker 03:
Maybe the other way of looking at it is that the intent was

[00:06:20] Speaker 03:
aimed at ownership, whether a company is a subsidiary of a foreign company or not.

[00:06:28] Speaker 03:
And registration has nothing to do with it.

[00:06:30] Speaker 08:
But the language of the solicitation explicitly excluded companies that were registered as a subsidiary of a foreign company.

[00:06:37] Speaker 08:
So registration was an important part of that requirement.

[00:06:41] Speaker 08:
That language has to be viewed as a whole, registered as a subsidiary of a foreign company.

[00:06:46] Speaker 08:
We can't exclude registered as.

[00:06:48] Speaker 08:
We can't exclude subsidiary of a foreign company.

[00:06:50] Speaker 08:
from that language.

[00:06:52] Speaker 01:
Why would registration trump ownership here under these circumstances?

[00:06:56] Speaker 08:
Well, because we don't, and that's one of the assumptions I believe in particular Prarseliff made in its brief, was that necessarily had the CVR, the Danish Business Registry, operated the way that the Air Force thought it would, Excellus would have necessarily been ineligible.

[00:07:12] Speaker 08:
And that doesn't have to be the case.

[00:07:14] Speaker 08:
It could have very well been that you're only required to register as a subsidiary foreign company if you want to do business in Denmark, if you are an actual foreign company coming in to do business.

[00:07:26] Speaker 08:
Excel is registered as a fully registered Danish company, an Okta Selskab, or an AS.

[00:07:32] Speaker 08:
And so they were not required to register as a subsidiary foreign company, which of course we ultimately found out didn't exist.

[00:07:39] Speaker 08:
They weren't required to register as a branch of a foreign company, which is... It seems to me that the registration requirement

[00:07:45] Speaker 03:
is imposed in order to identify whether you have a wholly owned subsidiary or a foreign owned subsidiary.

[00:07:53] Speaker 08:
But that's not what the record demonstrates in this case.

[00:07:58] Speaker 08:
The solicitation explicitly said that the intent of this language was to determine whether or not a company was fully registered as Danish.

[00:08:08] Speaker 08:
Excellus is in fact fully registered as Danish.

[00:08:10] Speaker 08:
They are an AS.

[00:08:12] Speaker 08:
So, and if you look back to the extent we get into extrinsic evidence, which of course is our position we shouldn't, but if you look at section 1F, I believe, of our reply brief, we go through about how this was about registration throughout the process once the actual language was conceived.

[00:08:30] Speaker 08:
You even have the Danish Ministry of Foreign Affairs in July 2014 when the Air Force came to them and said, can you help us to ensure that these

[00:08:39] Speaker 08:
These companies are in fact confirmed that these are in fact Danish firms and not subsidiaries of foreign companies.

[00:08:44] Speaker 08:
The Ministry of Foreign Affairs came back and said, no, we're not going to do that.

[00:08:48] Speaker 08:
This is the Air Force's call, and it's based upon two requirements related to registering in the Danish Greenlandic or Faroese business registry and providing a bank letter.

[00:08:59] Speaker 08:
So registration was a very important part of this eligibility criteria here, and that

[00:09:08] Speaker 08:
who was excluded was a registered subsidiary foreign company, just as if the language had said you can't be registered as a limited liability company.

[00:09:16] Speaker 08:
That's a specific type of company that companies might register as in the United States.

[00:09:21] Speaker 02:
And here the Air Force thought there was a... There seems to be some assumption, at least on the trial court judges and your friends on the other side's part, that foreign subsidiaries weren't eligible for this contract.

[00:09:33] Speaker 02:
Is there anything in the record that suggests that?

[00:09:37] Speaker 08:
a company that was registered as a subsidiary foreign company would not have been eligible for this contract.

[00:09:43] Speaker 02:
Right, that's not what I'm asking though, because I think they want to go beyond that and say, you know, everybody understood that a foreign subsidiary couldn't be eligible for this contract.

[00:09:56] Speaker 02:
Is there anything in the solicitation that would suggest that that's not necessarily true?

[00:10:01] Speaker 08:
No, Your Honor.

[00:10:01] Speaker 02:
The solicitation eligibility... If the Air Force had wanted to make foreign subsidiaries eligible and put it in the solicitation, could they have done that?

[00:10:14] Speaker 02:
Yes.

[00:10:16] Speaker 02:
It may have, in some people's views, violated international agreements, right?

[00:10:21] Speaker 08:
Right.

[00:10:22] Speaker 02:
But that's not what we're talking about here.

[00:10:26] Speaker 02:
We're talking about the terms of the solicitation.

[00:10:28] Speaker 08:
Yes, Your Honor.

[00:10:29] Speaker 08:
That's right.

[00:10:30] Speaker 08:
That's what this case is about, is that the Air Force was required to apply the terms of the solicitation as written, and that's exactly what they did.

[00:10:39] Speaker 08:
Excellus was not registered as a subsidiary firm.

[00:10:41] Speaker 02:
In fact, if the Air Force had ignored international trade agreements and said, we're only making this open to American companies, there would have been all kinds of hell arrays and diplomacy channels.

[00:10:55] Speaker 02:
the Air Force has to judge the solicitation on its terms.

[00:10:58] Speaker 08:
Exactly, Your Honor, yes.

[00:11:00] Speaker 08:
That's correct.

[00:11:01] Speaker 03:
So we're looking at the national treatment trade obligation and the most favored nation trade obligation as a play here.

[00:11:10] Speaker 03:
But it's a case that if you're registered as a Danish company, but you're wholly owned, 100% foreign owned, could you participate in the bid process?

[00:11:24] Speaker 08:
Yes, that's what the solicitation language did not exclude companies that were fully registered as a Danish company.

[00:11:34] Speaker 07:
It only had two requirements.

[00:11:37] Speaker 07:
You couldn't be one thing and you had to have a letter from a bank.

[00:11:41] Speaker 08:
Right, you had to have the corporate certificate showing that you were registered as a business in Denmark and the caveat to that was registered office in Denmark and shall not be registered as a subsidiary foreign company.

[00:11:54] Speaker 08:
Right, and the bank letter, of course.

[00:11:55] Speaker 08:
And Excellus met those requirements.

[00:11:58] Speaker 08:
They were not registered as a subsidiary foreign company in Denmark.

[00:12:02] Speaker 08:
And that was what the Air Force was bound to follow here, notwithstanding any defect in the solicitation.

[00:12:10] Speaker 08:
And that's, I mean, the blue and gold case.

[00:12:14] Speaker 03:
You admit that there was a defect in the solicitation.

[00:12:18] Speaker 08:
In the sense that the Air Force provided inaccurate information in stating that registration as a subsidiary foreign company was a possibility.

[00:12:27] Speaker 08:
There was a patent defect.

[00:12:30] Speaker 08:
That was another error of the trial court that we've raised in this case, is that because it was a patent defect,

[00:12:39] Speaker 08:
The plaintiffs waived any ability to challenge that post-award after the close of the bidding process.

[00:12:46] Speaker 03:
Why would it be a pain defect and not a lane defect if the Air Force didn't realize itself that the defect existed?

[00:12:54] Speaker 08:
Well, the test here is what a reasonable contractor would know.

[00:12:58] Speaker 07:
A reasonable Danish company.

[00:12:59] Speaker 07:
They're all Danish companies.

[00:13:01] Speaker 08:
Yes, exactly.

[00:13:01] Speaker 08:
Yes.

[00:13:02] Speaker 08:
And we can look to that specifically, I think, as well.

[00:13:05] Speaker 07:
Which is to say they're all American companies pretending to be Danish.

[00:13:09] Speaker 08:
Well, all of the plaintiffs and ex-cells are in fact Danish companies.

[00:13:17] Speaker 02:
With different ownership structures that apply them to American companies in one way or another.

[00:13:23] Speaker 02:
Or subcontracting and the like.

[00:13:26] Speaker 08:
Never mind, just move on.

[00:13:29] Speaker 08:
But yes, the solicitation did state that registration as a subsidiary foreign company was a possibility.

[00:13:37] Speaker 08:
What the solicitation did not state was who was required to register as a subsidiary foreign company in Denmark.

[00:13:44] Speaker 08:
That was something that offers needed to find out on their own.

[00:13:47] Speaker 02:
And there was a question about this, right?

[00:13:49] Speaker 02:
I mean, this isn't something that passed under the radar that nobody even thought of was an issue.

[00:13:54] Speaker 02:
Somebody posed a question that's part of the administrator record, and you answered it.

[00:13:58] Speaker 02:
Your answer was wrong, but everybody was on notice that this was an issue.

[00:14:03] Speaker 08:
Right, yes.

[00:14:04] Speaker 02:
The answer did say that there is a type of registered company called subsidiary foreign company, but it did not say... Presumably all the companies that were submitting bids would have gone to the registry to check that they weren't registered as a foreign subsidiary.

[00:14:19] Speaker 08:
Yes, presumably, and probably would have needed to find out exactly who is required to register as a subsidiary foreign company to make sure

[00:14:27] Speaker 08:
to make sure that they're not or to know who their competition could potentially be, something that our Sliff and Greenland contractors found to be important.

[00:14:35] Speaker 08:
And of course, Copenhagen Arctic being a newly formed company needed to know what do we do to not be registered as a subsidiary foreign company so we can compete here.

[00:14:45] Speaker 08:
So yes, this was something that the offers were, or at least should have been aware of,

[00:14:51] Speaker 08:
that there was not, in fact, a way to register as a subsidiary foreign company in this case.

[00:14:56] Speaker 08:
This was a patent error.

[00:14:59] Speaker 02:
Can I ask you this?

[00:15:00] Speaker 02:
I mean, assuming we disagree with you and we uphold the injunction, and this goes back, are you going to be required to re-solicit this under a new term, or are you just going to re-evaluate based upon what the trial judge rewrote as the correct solicitation?

[00:15:20] Speaker 02:
And maybe I should add, frankly, I should probably say this for your friend because he may have some objections.

[00:15:25] Speaker 02:
But it seems to me that if you go forth under the rewritten solicitation as done by the trial court judge, then your friend's going to be prejudiced because they might have been able to restructure their business relationship in a way to qualify.

[00:15:39] Speaker 08:
No, you're right.

[00:15:42] Speaker 08:
And we don't agree with this, but the trial court found that the error was the registered as language and excised that.

[00:15:49] Speaker 08:
I think the agency has a number of different things in its discretion it could do.

[00:15:53] Speaker 08:
One would be eliminate Excellus based on the fact that they are a subsidiary of a United States company based on the... It seems likely, if you do that, that you're going to at least be back in the trial court with a bid protest from them because they were saying they were

[00:16:11] Speaker 02:
were not on notice that that was a requirement in the solicitation because it wasn't until it was put in by the trial court.

[00:16:18] Speaker 08:
Right.

[00:16:19] Speaker 08:
And that could, what they could perhaps say is we want to, we should have the opportunity to correct that since it's, it's a, it's a problem.

[00:16:28] Speaker 08:
Yeah.

[00:16:29] Speaker 08:
Yes.

[00:16:30] Speaker 08:
And, you know, and they also, and you know, so, I mean, that's, that's one option as well.

[00:16:35] Speaker 08:
I think, I think we could, we could potentially award to, award to Per Arsliff or could go back and

[00:16:41] Speaker 08:
and amend the solicitation.

[00:16:42] Speaker 08:
The agency has broad discretion here in what corrective action it should take.

[00:16:45] Speaker 08:
But you've highlighted the problem with what the trial court did here is it changed the eligibility criteria.

[00:16:51] Speaker 08:
The agency was required to evaluate based on the criteria actually in the solicitation.

[00:16:56] Speaker 08:
And that's what it did.

[00:16:58] Speaker 08:
So yes, I can see how Excellus would have a problem if they were all of a sudden eliminated based on what is essentially a new eligibility criteria that the trial court created.

[00:17:13] Speaker 08:
Now, just briefly, if the court were to actually affirm the decisions that the trial court made with regard to the alleged errors, the court should still reverse the judgments in favor of Copenhagen Arctic and Greenland contractors because they weren't prejudiced in that case.

[00:17:32] Speaker 02:
I don't really understand what's at issue there.

[00:17:34] Speaker 02:
Is that just bid prep costs?

[00:17:36] Speaker 02:
Are they seeking bid prep costs?

[00:17:38] Speaker 02:
Because I didn't see in the trial court's order that

[00:17:41] Speaker 02:
there's any discussion of that or the like, because if all that we're affirming is the injunction, then it really doesn't matter.

[00:17:47] Speaker 02:
The injunction applies.

[00:17:49] Speaker 08:
Well, the trial court did grant judgment in favor of three plaintiffs.

[00:17:53] Speaker 08:
He did not award bid prep costs to any plaintiffs.

[00:17:56] Speaker 08:
But nonetheless, even if the court were to affirm the injunction, it should still reverse the judgments in favor of Copenhagen, Arctic, and Greenland contracts.

[00:18:03] Speaker 02:
Are they still free to seek bid prep costs?

[00:18:05] Speaker 02:
Is that your problem there?

[00:18:07] Speaker 08:
I don't think so at this point.

[00:18:09] Speaker 08:
I mean, they could potentially seek

[00:18:12] Speaker 08:
costs or they actually have already sought costs and they could potentially see.

[00:18:16] Speaker 02:
So it's about the cost of the trial court, not the cost.

[00:18:19] Speaker 08:
As a practical matter, that could be an issue, but as a, I mean, the court should not have entered judgment in favor of those two plaintiffs, even based on the errors it found, because they were the third and fourth highest price or third and fourth lowest price offers, excuse me.

[00:18:35] Speaker 08:
And Per Arsliff was second in line.

[00:18:37] Speaker 08:
And basically what the trial court found was that Excellus should have been eliminated.

[00:18:41] Speaker 08:
based on how it interpreted the solicitation.

[00:18:47] Speaker 08:
So we'll reserve the rest of the time for rebuttal and address the cross-appeal at that time.

[00:18:53] Speaker 03:
All right, thank you.

[00:18:56] Speaker 03:
Mr. Connelly?

[00:18:59] Speaker 03:
You have three minutes, sir.

[00:19:02] Speaker 04:
Good morning, Your Honor.

[00:19:03] Speaker 04:
May it please the Court, Kevin Connelly, for Excel services AAS.

[00:19:07] Speaker 04:
Your Honor has raised a good point.

[00:19:09] Speaker 04:
The reality in this situation is the eligibility requirements set forth in the solicitation were very specific and very finite.

[00:19:17] Speaker 02:
Basically, you had to have a corporate certificate showing that you were... Is there anything in the record that suggests what your client did when it looked at these requirements and whether it checked the database or not to determine that it was eligible?

[00:19:30] Speaker 04:
I do not believe there's anything in the record because we would have been looking, Your Honor, at what the Air Force had done.

[00:19:36] Speaker 04:
I mean, certainly,

[00:19:38] Speaker 04:
Certainly that is what occurred, but essentially though, as you say, finite requirements, very specific requirements, which Excel services meets.

[00:19:47] Speaker 04:
It's clearly a fully registered Danish company.

[00:19:50] Speaker 04:
I think one of the things to pay attention to, and I think that's where the end of the analysis is from the government, and we agree on that, from the standpoint of requirements were clear.

[00:19:59] Speaker 04:
could not be registered as a subsidiary of a foreign company.

[00:20:03] Speaker 04:
Excel services AS was not, it wasn't fully registered in this company.

[00:20:06] Speaker 04:
It had the correct banking requirement.

[00:20:08] Speaker 04:
In fact, that the government had actually made an estimation that Excel services was ineligible.

[00:20:14] Speaker 04:
You're right.

[00:20:15] Speaker 04:
We would have filed a bit protest because it would have been an unstated evaluation criteria, which is clear based on the fact that the government has argued throughout that there wasn't, you know,

[00:20:25] Speaker 04:
Excel services met the requirements as fully registered.

[00:20:28] Speaker 04:
So I do believe you're absolutely right from that standpoint, Your Honor.

[00:20:31] Speaker 02:
There does seem to be some underlying assumption in a lot of this that the government didn't put the right criteria in here, that it really should have explicitly said not just that you can't be registered, but that you can't be a foreign subsidiary.

[00:20:46] Speaker 02:
I mean, I know that it's all extra record evidence, which shouldn't matter to evaluation of the solicitation, but it does seem to be

[00:20:55] Speaker 02:
even some evidence from our state departments suggesting that maybe the solicitation criteria weren't consistent with international agreements.

[00:21:04] Speaker 07:
But then the fertile minds of your lawyers would have created a different entity.

[00:21:10] Speaker 04:
I think if I can address the question, Your Honor, I think the reality is that I think the trial

[00:21:15] Speaker 04:
basically rewrote the solicitation to take out the requirement and to add a requirement for ownership.

[00:21:20] Speaker 04:
The GAO, when they had reviewed, had made a determination that neither ownership nor management was a factor in the solicitation besides it.

[00:21:28] Speaker 03:
Had you normally determined whether a company is a foreign subsidiary if you don't look at ownership?

[00:21:36] Speaker 04:
Well, I can tell you how I would have done it if I was the government.

[00:21:40] Speaker 04:
I would have written a requirement that said foreign subsidiaries are ineligible for award.

[00:21:44] Speaker 04:
There wouldn't have been a checkoff, you just wouldn't have been able to submit.

[00:21:47] Speaker 03:
That's why... There really was a concern and the intent that we see under the circumstances, correct?

[00:21:53] Speaker 03:
Whether you're dealing with a foreign subsidiary or not.

[00:21:57] Speaker 04:
Yeah, I think you also have to take a step back.

[00:21:59] Speaker 04:
When the court basically went to the forensic ends of evidence, I think where they failed there, besides the Lisburg Declaration, relying on the Lisburg Declaration, the joint statement, which they should not have, and which I believe even if the court looks at,

[00:22:11] Speaker 04:
they will find that the Lisburg Declaration basically says at the end of the day, even if you know percentage of corporate ownership, you can't decide because you have to look at all these other different documents.

[00:22:20] Speaker 04:
Until we can do that, you don't know.

[00:22:22] Speaker 04:
Therefore, should have done that.

[00:22:23] Speaker 04:
That was never part of the consideration.

[00:22:25] Speaker 04:
It was a Chekhov type of requirement.

[00:22:27] Speaker 04:
The Joint Statement essentially says at the end of the day, we're going to reach a mutual agreement and then we're going to re-solicit and we'll limit competition if any.

[00:22:37] Speaker 04:
There's not even a definite requirement from that standpoint.

[00:22:41] Speaker 02:
I think they did that, but the second thing the court did, I believe, is that... Isn't the problem that the international agreement doesn't specifically say you can't have foreign subsidiaries?

[00:22:50] Speaker 02:
It says you should use, to the extent possible, Danish or Greenlandic businesses.

[00:22:56] Speaker 02:
But what is a Danish or Greenlandic business?

[00:22:58] Speaker 02:
There's any number of tests.

[00:23:00] Speaker 02:
You could be a wholly owned foreign subsidiary, but still

[00:23:04] Speaker 02:
operate exclusively there, employ exclusively Danish Greenlandic people, pay all the Danish Greenlandic taxes.

[00:23:11] Speaker 02:
Under some definition, that makes you a Greenlandic business.

[00:23:15] Speaker 02:
That's what the Air Force is trying to get at.

[00:23:17] Speaker 02:
They may have got at it the wrong way.

[00:23:19] Speaker 04:
It's true, but I think the court, even when they went back, Your Honor, and they went back and they paid a lot of reference to the Department of State email, right?

[00:23:28] Speaker 04:
But what the court, I don't think, did was pay enough attention to the first email.

[00:23:33] Speaker 04:
The first email and the second email, we talk about it in our brief and our reply brief particularly.

[00:23:39] Speaker 02:
Well, I mean, the deal is if the Department of State, through diplomacy, decides that this award can't stand because it's upset the Danish and Greenlandic governments, they can take action.

[00:23:49] Speaker 02:
The executive branch can take action.

[00:23:51] Speaker 02:
They can cancel your contract.

[00:23:53] Speaker 02:
They may have to provide you some compensation.

[00:23:55] Speaker 02:
But that's what you do through diplomatic channels.

[00:23:58] Speaker 02:
You don't rewrite a solicitation to make it accord

[00:24:01] Speaker 02:
with an international, your view of an international trade agreement.

[00:24:04] Speaker 04:
Your Honor, we're absolutely in agreement with that.

[00:24:06] Speaker 04:
I have a minute left, which I'd like to reserve for rebuttal.

[00:24:09] Speaker 03:
Okay.

[00:24:09] Speaker 04:
Thank you.

[00:24:14] Speaker 03:
Mr. Cosgrove, tell me how did you divide up the time?

[00:24:21] Speaker 05:
Your Honor, the way we're going to do it is Copenhagen, myself, is going to speak for five and reserve two.

[00:24:29] Speaker 05:
Council for Greenland Contractors is going to speak for five and reserve two.

[00:24:34] Speaker 05:
And that's Mr. Anstett?

[00:24:36] Speaker 05:
Yes, Your Honor.

[00:24:38] Speaker 03:
Say that again.

[00:24:40] Speaker 05:
Speak for five, initial, and reserve two.

[00:24:43] Speaker 05:
Okay.

[00:24:44] Speaker 05:
And Per Arsloff, Council, is going to speak for six.

[00:24:49] Speaker 05:
Okay.

[00:24:50] Speaker 05:
If my math is right, Your Honor, that gets me to 20.

[00:24:54] Speaker 03:
You may proceed.

[00:24:57] Speaker 05:
Copenhagen's cross appeal should be sustained and the trial court's decision should be reversed with respect to the issues raised on our cross appeal.

[00:25:06] Speaker 05:
That issue is fairly straightforward.

[00:25:09] Speaker 05:
The solicitation required all offers to maximize the use of Danish and Greenlandic sources in the performance of the contract.

[00:25:20] Speaker 05:
Clear and it also went on and it said that that requirement takes precedence in the performance of this contract.

[00:25:28] Speaker 05:
It didn't have a specific percentage.

[00:25:29] Speaker 05:
It did not.

[00:25:30] Speaker 05:
But the Sentech case and the other cases that have addressed this issue that arise in cases where there were a specific percentage, Sentech case says that subcontracting requirements are material requirements of an RFP, including but not limited to the federal clause that requires 51% subcontracting.

[00:25:54] Speaker 02:
But the problem is if all it says is maximize, then

[00:25:58] Speaker 02:
There's no percentage whatsoever.

[00:26:00] Speaker 02:
I mean, they may be able to convince the Air Force that they've maximized if they only employ 20% of Danish Greenlandic residents, can't they?

[00:26:09] Speaker 05:
And I agree, Your Honor, that we might be able to construct a hypothetical where they satisfy that.

[00:26:15] Speaker 05:
But that's not the facts in this case.

[00:26:17] Speaker 02:
But how do we know that until performance actually occurs?

[00:26:20] Speaker 05:
We know it, Your Honor, because if you look at the proposal of Arsloff,

[00:26:27] Speaker 02:
All of the... Does it say we're not going to maximize Danish Greenland?

[00:26:32] Speaker 05:
Oh, no, Your Honor.

[00:26:33] Speaker 05:
They have to say, all the offers have to sign a three-line boilerplate certificate that says, yeah, we don't take exception to anything.

[00:26:41] Speaker 05:
But then that's not sufficient under Centech and the other cases if on its face a proposal leads an agency to think that a performer cannot and will not comply with that requirement.

[00:26:56] Speaker 05:
If you look at Arsloff's proposal, Arsloff's proposal said our American subcontractor is going to assume responsibility for performing every item of this contract, bar none.

[00:27:12] Speaker 05:
And then if you go into the guts of the proposal and you say, well, what does responsibility mean?

[00:27:17] Speaker 05:
Responsibility means that that American subcontractor is going to self-perform every item in the performance work statements.

[00:27:26] Speaker 05:
No matter what, we can say maybe 20% is enough, maybe 10% is enough, maybe 30% is enough.

[00:27:33] Speaker 05:
But the requirement to maximize Danish and Greenlandic sources can't mean that it's OK to use none of them.

[00:27:43] Speaker 05:
And that's the situation we're confronted with here.

[00:27:45] Speaker 07:
Can sources be, oh, we have entirely Greenland employees?

[00:27:52] Speaker 05:
I'm sorry.

[00:27:52] Speaker 05:
I didn't hear you.

[00:27:55] Speaker 07:
Can sources be?

[00:27:56] Speaker 07:
simply having entirely a local workforce.

[00:27:59] Speaker 05:
No, that's not what they're talking about.

[00:28:00] Speaker 05:
They're not talking about workforces.

[00:28:02] Speaker 05:
They're talking about subcontractors to purchase supplies and or materials and services.

[00:28:10] Speaker 07:
And we're going to do all that through our American subcontractor.

[00:28:13] Speaker 05:
With our American subcontractor.

[00:28:15] Speaker 07:
Period.

[00:28:16] Speaker 07:
In Greenland using local suppliers.

[00:28:19] Speaker 07:
Correct.

[00:28:20] Speaker 07:
Correct.

[00:28:21] Speaker 02:
But why doesn't that qualify?

[00:28:23] Speaker 02:
I mean, if they're using an American subcontractor to facilitate it all,

[00:28:26] Speaker 02:
But they just rehire the same workforce at this base, which is what almost always happens in these contracts when you get a change in incumbent.

[00:28:34] Speaker 02:
And they still continue to use local providers and things like that.

[00:28:39] Speaker 02:
They can say, look, we're maximizing it.

[00:28:40] Speaker 02:
It may be run out of our American subcontractor, but it's all performed by Greenlandic and Danish workers.

[00:28:48] Speaker 02:
It's almost all of our sources for materials and things like that come from Danish and Greenlandic sources.

[00:28:55] Speaker 05:
the proposal had said that, that would have probably been okay.

[00:29:00] Speaker 05:
But the proposal doesn't say that and the Air Force is required

[00:29:05] Speaker 05:
when it gets a proposal.

[00:29:07] Speaker 02:
Frankly, I think you have a real problem, because this is still all about performance.

[00:29:11] Speaker 02:
We don't know that they're not going to do it.

[00:29:13] Speaker 02:
They didn't explicitly say, we refuse to comply with this maximization language.

[00:29:19] Speaker 05:
Correct.

[00:29:19] Speaker 05:
It doesn't say that.

[00:29:21] Speaker 05:
But again, if you go to look at Sentech... In fact, I'm sure they said things in it that suggested they were going to do it.

[00:29:27] Speaker 05:
Sure.

[00:29:27] Speaker 05:
If you didn't sign the three-line blanket certification, your proposal would have been kicked.

[00:29:32] Speaker 05:
So of course they're going to say that.

[00:29:34] Speaker 05:
But that's not sufficient.

[00:29:37] Speaker 05:
The cases that deal with this, CENTEC and allied resources, say the Air Force has an obligation... Do those cases have maximization language or do they have specific goals?

[00:29:49] Speaker 05:
They have subcontracting requirements.

[00:29:52] Speaker 02:
Well, that makes a big difference.

[00:29:53] Speaker 02:
I mean, if this contract said 51% of your work has to come from Danish or Greenlandic subcontractors, employees and the like,

[00:30:01] Speaker 02:
and they didn't comply with that, then that's a noncompliance with the solicitation.

[00:30:06] Speaker 05:
Correct.

[00:30:06] Speaker 05:
But what this court held in Centech, and if we were talking about only that 51% requirement, I would be inclined to agree with you.

[00:30:17] Speaker 05:
But that's not what Centech says.

[00:30:20] Speaker 05:
Centech says a subcontracting limitation, including the LOS clause, which is the 51% clause in the federal acquisition regulations,

[00:30:29] Speaker 05:
is a material RFP term and a condition of a solicitation to which the offeror must agree.

[00:30:35] Speaker 02:
Well, nobody's suggesting that this isn't a material clause.

[00:30:40] Speaker 02:
They're just not suggesting that there's any basis to kick them out, because there's no cap or limitation or the like.

[00:30:48] Speaker 05:
And the Air Force is required to actually read the proposal when it comes in.

[00:30:56] Speaker 05:
And they have to go through it, and they have to say,

[00:30:59] Speaker 05:
Based on this proposal, is it reasonable for us to believe that they can and will comply with this subcontracting requirement?

[00:31:08] Speaker 05:
There is nothing in the proposal.

[00:31:11] Speaker 05:
Nothing.

[00:31:13] Speaker 02:
Except an agreement that they'll comply.

[00:31:15] Speaker 02:
Except the three lines.

[00:31:16] Speaker 02:
I mean, to the extent that that's a question, that's an administrative record review.

[00:31:21] Speaker 02:
It's a substantial evidence.

[00:31:22] Speaker 02:
That's enough substantial evidence.

[00:31:25] Speaker 05:
Well, I mean, Your Honor, if

[00:31:28] Speaker 05:
Some, if maximize means none, then I guess maximize can mean none, but... Tell me, Mr. Bowen.

[00:31:37] Speaker 05:
I'm Mr. Cosgrove, your honor.

[00:31:39] Speaker 07:
Oh, I'm sorry.

[00:31:39] Speaker 07:
I apologize.

[00:31:40] Speaker 05:
That's all right.

[00:31:41] Speaker 07:
I've been called worse.

[00:31:43] Speaker 07:
Does Denmark restrict ownership of Danish corporations to Danish citizens?

[00:31:52] Speaker 05:
I do not know the answer to that question.

[00:31:55] Speaker 05:
Should.

[00:31:57] Speaker 05:
I do not know the answer to that question, Your Honor.

[00:32:01] Speaker 05:
And I see that my time is up and I'll come back for two minutes.

[00:32:05] Speaker 05:
Okay.

[00:32:06] Speaker 05:
Thank you.

[00:32:13] Speaker 03:
Mr. Anstead.

[00:32:20] Speaker 07:
Mr. Anstead, you know the answer to my question?

[00:32:22] Speaker 09:
I don't, Your Honor.

[00:32:29] Speaker 09:
It's beyond the scope of the RFP requirements.

[00:32:35] Speaker 07:
While you were diligently looking to see if you were registered as a foreign subsidiary or not, you think you would want to know the ownership.

[00:32:44] Speaker 09:
Your Honor, I guess with my client, Greenland Contractors, we've been in business for over 30 years.

[00:32:50] Speaker 09:
We've been operating on this base for that time.

[00:32:55] Speaker 09:
We didn't have to go back to the register.

[00:32:57] Speaker 02:
Well, sure you did.

[00:32:58] Speaker 02:
It's a new solicitation.

[00:32:59] Speaker 02:
They might have put in a new requirement that kicked you out.

[00:33:02] Speaker 09:
But the solicitations on its face said that foreign subsidiaries, subsidiaries of foreign companies, are excluded.

[00:33:11] Speaker 02:
We're not a subsidiary.

[00:33:13] Speaker 02:
Can you point to me language in the solicitation that says foreign subsidiaries are excluded?

[00:33:18] Speaker 02:
It says you cannot be registered as a foreign subsidiary.

[00:33:23] Speaker 02:
You're all operating under the assumption

[00:33:25] Speaker 02:
that the solicitation excludes foreign subsidiaries.

[00:33:29] Speaker 07:
And how did you know you weren't registered as a foreign subsidiary?

[00:33:33] Speaker 07:
Wouldn't you want to check?

[00:33:36] Speaker 09:
A couple questions there, so let me try to take them in turn.

[00:33:40] Speaker 09:
Number one, section L3 of the RFP.

[00:33:45] Speaker 09:
Do you got a page number for me?

[00:33:46] Speaker 09:
Sure, it's Joint Appendix 105252.

[00:33:58] Speaker 02:
Just give me a second to get there.

[00:34:08] Speaker 09:
What's that citation again?

[00:34:09] Speaker 09:
It's J105252.

[00:34:12] Speaker 07:
And it's L3?

[00:34:14] Speaker 09:
L3 at the bottom of that page.

[00:34:20] Speaker 09:
Right.

[00:34:21] Speaker 09:
This is the clause that we're fighting over, right?

[00:34:24] Speaker 09:
Right.

[00:34:25] Speaker 09:
And the first sentence that we read in that clause, it says that participation in this acquisition is limited to Danish Greenlandic enterprises.

[00:34:32] Speaker 09:
That doesn't say anything about foreign subsidiaries.

[00:34:35] Speaker 09:
Certainly, but it does say that you have to be... I mean, what's a Danish Greenlandic enterprise?

[00:34:39] Speaker 02:
I mean, there could be any number of tests for that.

[00:34:43] Speaker 07:
And it says... Go ahead.

[00:34:45] Speaker 07:
There's a slash there.

[00:34:47] Speaker 07:
Yeah.

[00:34:47] Speaker 07:
It's not a hyphen.

[00:34:48] Speaker 07:
Sure.

[00:34:48] Speaker 07:
So the slash means Danish

[00:34:50] Speaker 07:
or Greenlandic?

[00:34:51] Speaker 09:
Yes.

[00:34:53] Speaker 09:
Greenland is a semi-autonomous.

[00:34:55] Speaker 07:
I understand.

[00:34:56] Speaker 09:
So it could be either.

[00:34:57] Speaker 09:
But either one of those is OK.

[00:35:00] Speaker 09:
And so you read that.

[00:35:02] Speaker 09:
And then you read that in combination with the language that says that the enterprise shall not be registered as a subsidiary of a foreign company.

[00:35:12] Speaker 09:
Right.

[00:35:12] Speaker 02:
So that's the test it's using for whether you're a Danish or Greenlandic business, whether or not you're registered as a foreign subsidiary.

[00:35:19] Speaker 09:
Absolutely.

[00:35:19] Speaker 09:
And then we go to the question and answer.

[00:35:23] Speaker 09:
One of the question and answer answers that the Air Force gave as part of the RFP.

[00:35:27] Speaker 09:
And we read that.

[00:35:28] Speaker 09:
This is JA104406, where the question is, what do you mean by, quote, not registered?

[00:35:37] Speaker 09:
And the answer from the Air Force is, in the searchable part of the CVR, there is an information point called type of complement.

[00:35:42] Speaker 02:
We all agree that's wrong.

[00:35:44] Speaker 02:
Everybody gets it.

[00:35:45] Speaker 02:
But none of this says, it gets to the question of whether the solicitation excluded foreign subsidiaries.

[00:35:52] Speaker 09:
But it does say that it sets up dichotomy in that answer.

[00:35:57] Speaker 09:
It says you're either fully Danish, whatever that means, correct,

[00:36:00] Speaker 09:
or you're acting as a foreign subsidiary, not registered as a foreign subsidiary.

[00:36:05] Speaker 09:
You're acting as a foreign subsidiary.

[00:36:06] Speaker 09:
Can you point to that language?

[00:36:08] Speaker 09:
That's the Q&A answer.

[00:36:09] Speaker 09:
Right, where is that?

[00:36:10] Speaker 09:
That is, it's on page 104406.

[00:36:12] Speaker 09:
406.

[00:36:14] Speaker 09:
Sorry, say that again.

[00:36:26] Speaker 09:
4406, the last one.

[00:36:27] Speaker 02:
4406.

[00:36:32] Speaker 07:
So the dichotomy is fully registered as Danish.

[00:36:37] Speaker 07:
Yes.

[00:36:37] Speaker 07:
What's that mean?

[00:36:39] Speaker 09:
Well, it doesn't mean that you're a foreign subsidiary, I guess, is the answer.

[00:36:42] Speaker 09:
Why not?

[00:36:42] Speaker 09:
Why not?

[00:36:44] Speaker 09:
Because that's what they're saying.

[00:36:48] Speaker 07:
Don't worry.

[00:36:49] Speaker 07:
If you're fully registered as Danish, you're not acting as a foreign subsidiary.

[00:36:53] Speaker 07:
So you've just defeated your own argument.

[00:36:56] Speaker 02:
Say Coca-Cola, an American company, has worldwide

[00:37:01] Speaker 02:
franchisees.

[00:37:02] Speaker 02:
I have no idea if that's how Coke operates, but I know that some companies do.

[00:37:06] Speaker 02:
And so the franchisees are independent owners and operators under the franchisee agreement.

[00:37:12] Speaker 02:
And you have a Danish franchisee of Coke.

[00:37:15] Speaker 02:
They're registered as a Danish company.

[00:37:17] Speaker 02:
They have a Danish bank account.

[00:37:18] Speaker 02:
They have whatever else is it.

[00:37:20] Speaker 02:
And there's still a subsidiary of Coke.

[00:37:24] Speaker 02:
But why aren't they a fully Danish, Greenlandic business if it's owned, operated, and the

[00:37:31] Speaker 09:
But that's true of every foreign subsidiary.

[00:37:34] Speaker 09:
But this RFP specifically called out subsidiaries of foreign companies not being able to participate.

[00:37:40] Speaker 02:
See, this is your problem.

[00:37:41] Speaker 02:
You wish the RFP had called it out.

[00:37:44] Speaker 02:
All it calls out is you can't be registered as a foreign subsidiary.

[00:37:48] Speaker 09:
OK.

[00:37:49] Speaker 09:
But I guess we go to the point that the government has already conceded that this RFP has a defect.

[00:37:55] Speaker 09:
And really, the only question is then, is it a patent or latent defect?

[00:38:00] Speaker 02:
To a certain extent, it doesn't matter because even if it's a defect, there's no indication that the solicitation excluded foreign subsidiaries.

[00:38:10] Speaker 02:
To get there, you have to rewrite the solicitation and add in terms that weren't there.

[00:38:17] Speaker 09:
I guess given the government's concession that what they were trying to do, they understood, as they've said, the government's understanding of this

[00:38:29] Speaker 09:
the solicitation requirement was that you couldn't be a foreign subsidiary.

[00:38:33] Speaker 09:
That's what they were checking.

[00:38:34] Speaker 09:
That's what the evidence is in the record where they went to the Danish government three times to ask questions about whether or not these companies were registered as foreign subsidiaries.

[00:38:46] Speaker 02:
Again, you keep talking about registering.

[00:38:49] Speaker 02:
What the government was doing was trying to comply with the first

[00:38:52] Speaker 02:
L3 provision.

[00:38:53] Speaker 09:
I misspoke, actually.

[00:38:54] Speaker 09:
They didn't ask whether they're registered.

[00:38:55] Speaker 09:
They asked, are they foreign subsidiaries?

[00:38:57] Speaker 09:
That's in the language in their question.

[00:39:01] Speaker 07:
And I want to take you back to 4406 to make sure you understand what I said and get your response, which was, so there is a way to see if the company is fully registered as Danish, or so you have an either or situation acting as a foreign subsidiary in Denmark.

[00:39:20] Speaker 07:
So if you're fully registered as Danish,

[00:39:22] Speaker 07:
Danish says the Air Force, in so factor, you're not.

[00:39:28] Speaker 09:
But I guess I understand the or to mean that if you are acting as a foreign subsidiary, then you're not fully registered as Danish.

[00:39:37] Speaker 09:
You're not fully Danish.

[00:39:41] Speaker 02:
What if they are fully registered as Danish?

[00:39:45] Speaker 07:
Then you're OK with them.

[00:39:47] Speaker 09:
Well, no, because it says that you can't.

[00:39:48] Speaker 09:
I mean, the RFP says,

[00:39:51] Speaker 09:
that you can't be a subsidiary of a foreign company.

[00:39:54] Speaker 02:
That's not saying that.

[00:39:56] Speaker 02:
It says you can't be registered as a foreign subsidiary.

[00:39:59] Speaker 02:
I mean, you're running into the same problem that the trial court did, which is to assume the Air Force wanted this requirement and rewriting the solicitation to say that.

[00:40:10] Speaker 02:
The Air Force, there's nothing in the record that suggests that.

[00:40:13] Speaker 02:
It all talks about registration.

[00:40:15] Speaker 02:
It may be that the two governments, state to state,

[00:40:18] Speaker 02:
intended that to apply, but the Air Force failed to comply with that international agreement.

[00:40:23] Speaker 02:
If so, the governments are going to take care of it.

[00:40:26] Speaker 02:
They'll cancel the contract.

[00:40:28] Speaker 02:
It'll be re-solicited.

[00:40:29] Speaker 02:
And that will take care of any international problem.

[00:40:32] Speaker 02:
But we're talking about the terms of the solicitation.

[00:40:34] Speaker 09:
Understood.

[00:40:35] Speaker 09:
I don't mean to be impertinent asking a question, but why would a solicitation have a provision that requires you not to be registered as a subsidiary of a foreign company?

[00:40:46] Speaker 09:
Registration was the means to an end.

[00:40:49] Speaker 09:
I mean, we understand how this was supposed to work.

[00:40:51] Speaker 07:
Did you ask that question at the time?

[00:40:54] Speaker 07:
I'm sorry?

[00:40:55] Speaker 07:
Did you ask that question at the time?

[00:40:57] Speaker 07:
No.

[00:40:58] Speaker 07:
Well, don't ask it now then.

[00:41:02] Speaker 09:
I see that I'm waiting for my time, I apologize.

[00:41:07] Speaker 03:
Mr. Boland.

[00:41:16] Speaker 00:
Thank you, Your Honor.

[00:41:17] Speaker 00:
And just to clarify, in the six minutes that I have, I'll address both the cross appeals and the appeals.

[00:41:25] Speaker 07:
OK.

[00:41:25] Speaker 07:
Mr. Bowman, I'll call you Mr. Cosgrove.

[00:41:27] Speaker 07:
That's right.

[00:41:28] Speaker 07:
Please don't.

[00:41:32] Speaker 00:
Briefly, I'd like to address the cross appeals and actually Mr. Cosgrove's comment.

[00:41:37] Speaker 00:
I would turn the Court's attention to JA 106548.

[00:41:41] Speaker 00:
And that's a page from Per Oslis' proposal, which clearly discusses

[00:41:45] Speaker 00:
their approach to procuring from Danish sources.

[00:41:49] Speaker 00:
106548.

[00:41:53] Speaker 00:
And on that page, ours left, I discussed its approach to... This whole page is yellow.

[00:42:03] Speaker 02:
I mean, do you understand you're now discussing things you've marked as confidential?

[00:42:10] Speaker 00:
That's fine.

[00:42:12] Speaker 00:
That's fine.

[00:42:12] Speaker 00:
I wasn't aware that it was.

[00:42:13] Speaker 02:
This is a problem with all of you in this court, and the government needs to pay attention to this too.

[00:42:18] Speaker 02:
You all overmarked, which is why we're adopting a new rule.

[00:42:22] Speaker 02:
How can we discuss something that you've marked and we don't know if anybody else up here is going to waive this privilege?

[00:42:28] Speaker 03:
Is this your information?

[00:42:30] Speaker 02:
This is ours less proposal.

[00:42:32] Speaker 03:
This is your proposal.

[00:42:33] Speaker 02:
This is our proposal.

[00:42:34] Speaker 02:
So why was it marked?

[00:42:35] Speaker 02:
I mean, once it becomes accepted, it's part of the contract, isn't it?

[00:42:38] Speaker 02:
It's a public document.

[00:42:39] Speaker 00:
Arzliff was not awarded the contract, so this is still for collection.

[00:42:46] Speaker 03:
If it's your information, you can discuss it, but realize you're waiving the confidentiality of it.

[00:42:51] Speaker 00:
Right.

[00:42:51] Speaker 00:
In general terms, and we've addressed in general terms in our brief, simply we're not going to discuss specifics, but just the fact that Arzliff identified a process for

[00:43:01] Speaker 00:
procuring from Danish sources, hundreds of sources, in this procurement.

[00:43:05] Speaker 00:
We simply wanted to make the point that in the RFP, the RFP only required offers to maximize contract-related purchases and subcontracts, which means that it can be at any tier.

[00:43:21] Speaker 00:
Your Honor, on the point that you mentioned earlier about the maximize versus direct, I think that's an important clarification here.

[00:43:28] Speaker 00:
The 2009 amendment to

[00:43:30] Speaker 00:
a 1991 MOU clarified that there had to be a direct acquisition from Danish sources, which is satisfied by the award to a Danish or Greenlandic enterprise.

[00:43:43] Speaker 00:
But after that direct award is made, our understanding and our view is that any requirement after that point is simply to maximize contract-related purchases.

[00:43:54] Speaker 00:
So it's perfectly acceptable under the RFP to

[00:43:59] Speaker 00:
for a U.S.

[00:44:03] Speaker 00:
first-tier subcontractor to manage and then implement and acquire, through hundreds of Danish sources, items.

[00:44:11] Speaker 00:
And we think it's items.

[00:44:11] Speaker 03:
If it's 100 Danish sources, then that's maximizing?

[00:44:16] Speaker 00:
We certainly think it is.

[00:44:18] Speaker 00:
About five Danish sources, or one.

[00:44:22] Speaker 00:
It certainly could be.

[00:44:23] Speaker 00:
And I think on this point,

[00:44:25] Speaker 03:
But you would measure it.

[00:44:26] Speaker 03:
Wouldn't you measure it by the value of the service or goods that they're providing to determine whether it's maximizing?

[00:44:32] Speaker 00:
You also would measure it based on the circumstances, why you could or cannot acquire it.

[00:44:37] Speaker 00:
It could be cost prohibitive, or there could be a limitation of supplies at the time, and there could be various reasons.

[00:44:43] Speaker 00:
But I think the point is, and this is why we believe the Cross Peels do not have merit

[00:44:49] Speaker 00:
The word maximize is subjective.

[00:44:51] Speaker 00:
You cannot make that determination unless they actually conduct an evaluation.

[00:44:57] Speaker 06:
And, of course, the language in the RP not only used that subjective term, but it also allowed for... You're agreeing with what was said previously, I believe, by Judge Raina, that it's performance-based.

[00:45:06] Speaker 00:
It is a performance-based.

[00:45:07] Speaker 00:
And the RPs did not instruct offerors to submit that information with their proposals.

[00:45:12] Speaker 00:
It's a post-award documentation and justification process.

[00:45:18] Speaker 00:
There is no way on the face of the proposal for the Air Force to determine that ours could not or would not comply.

[00:45:26] Speaker 00:
I'd like to turn back, if I may, to the eligibility issue.

[00:45:33] Speaker 00:
I'd like to take another run, if I may, at the Q&A response.

[00:45:40] Speaker 00:
This was part of the RFP, and again, we disagree with the notion that

[00:45:47] Speaker 00:
that the RFP did not exclude foreign subsidiaries.

[00:45:51] Speaker 00:
I think there's important language here in the Q&A response.

[00:45:57] Speaker 00:
They first tell the offerors that it's a possibility.

[00:45:59] Speaker 00:
They give that assurance.

[00:46:00] Speaker 00:
So when the question was asked, the Air Force told the offerors, it's a possibility.

[00:46:07] Speaker 00:
Then they say, so there is a way to see.

[00:46:10] Speaker 00:
That's an important phrase because it tells you that the CVR was simply a mechanism for

[00:46:15] Speaker 00:
identifying foreign subsidiaries.

[00:46:17] Speaker 00:
The mechanism for determining who's registered as a foreign subsidiary.

[00:46:23] Speaker 00:
No, because the mechanism for that is in Section L3 is simply to submit your CBR certificate.

[00:46:29] Speaker 00:
That would have been the end of the story.

[00:46:30] Speaker 00:
If this was all about Danish registration, the certificate and bank account would have been sufficient.

[00:46:35] Speaker 00:
But the RFP went beyond that.

[00:46:37] Speaker 00:
It specifically said in all capital letters, you cannot be registered as a subsidiary of a foreign company.

[00:46:44] Speaker 00:
We believe that sentence, although it does include the registered as language, when you combine that with the Q&A response, which is part of the RFP as well from the Air Force, when they say, so there is a way to see if a company is fully registered as Danish on one hand or two or acting as a foreign subsidiary in Denmark, it's one or the other.

[00:47:06] Speaker 03:
And if Excellus is... So you're saying that this really explains the purpose for the registration requirement.

[00:47:13] Speaker 03:
Exactly.

[00:47:14] Speaker 03:
Not just registration requirement.

[00:47:15] Speaker 03:
It was really just to discern at the end whether you're a fully registered Danish corporation, which we've established that you can be a foreign subsidiary and be fully registered as a Danish corporation.

[00:47:27] Speaker 03:
In fact, to do business there, you have to be registered as a Danish corporation.

[00:47:32] Speaker 03:
But then it goes on and says, or acting as a foreign subsidiary.

[00:47:38] Speaker 03:
Right.

[00:47:39] Speaker 02:
Is there any suggestion that Excellus is not fully registered as a Danish corporation?

[00:47:46] Speaker 00:
They are fully registered as a Danish corporate entity, but they are a foreign subsidiary.

[00:47:54] Speaker 02:
And even the answer you're relying on, it's an or.

[00:48:00] Speaker 02:
So yeah, maybe they're a foreign subsidiary, but they may not be acting as a foreign subsidiary.

[00:48:06] Speaker 02:
They're registered as a Danish corporation.

[00:48:08] Speaker 00:
But that gets to the whole point here of the impossibility.

[00:48:13] Speaker 00:
It turns out it was impossible for anyone to register as that type of entity.

[00:48:17] Speaker 00:
So the question then, applying canons of contract interpretation, what do you do with the solicitation where this language has the two words registered as, which the Air Force has conceded, where that constitutes the defect.

[00:48:28] Speaker 00:
They've already admitted that the word subsidiary.

[00:48:30] Speaker 02:
You don't rewrite the solicitation.

[00:48:32] Speaker 02:
I mean, if you found this clause was null, you strike the whole clause.

[00:48:37] Speaker 00:
But I would respectfully disagree, and I would disagree that the trial court rewrote the solicitation, and the trial court was careful to use the word recast or excising the words.

[00:48:48] Speaker 02:
And I think that's supported in case law where... I mean, isn't this case just like what the same trial court did in the Alabama aircraft, where it thought

[00:48:59] Speaker 02:
that the agency was not evaluating the solicitation and the proposals properly because other things should be considered but weren't and imposed them.

[00:49:09] Speaker 02:
And we reversed that, Judge.

[00:49:12] Speaker 02:
It's the same thing here.

[00:49:13] Speaker 02:
The solicitation doesn't exclude foreign subsidiaries.

[00:49:16] Speaker 02:
It excludes companies registered at foreign subsidiaries.

[00:49:19] Speaker 02:
The trial judge thought that should have said, excludes foreign subsidiaries, and so he excites the words registered as to get to the meaning he wanted.

[00:49:29] Speaker 00:
I respectfully disagree.

[00:49:30] Speaker 00:
I think Alabama Aircraft, in that case, the trial judge went too far because the trial judge thought that it would be... In the trial judge's wisdom, that case involved the price evaluation of aging aircraft.

[00:49:42] Speaker 00:
And the trial judge thought in that case, it's unreasonable not to take that into consideration, the price evaluation.

[00:49:47] Speaker 00:
So he added that into the RFP, and the Federal Circuit reversed that.

[00:49:52] Speaker 00:
The trial judge did not add

[00:49:54] Speaker 00:
any language... He did.

[00:49:55] Speaker 02:
He added an exclusion of foreign subsidiaries when the only exclusion was registered as foreign subsidiaries.

[00:50:01] Speaker 02:
Those are two different things, right?

[00:50:02] Speaker 02:
You agree?

[00:50:03] Speaker 00:
I would agree, but he did not add language.

[00:50:06] Speaker 02:
In other words, the concept of a foreign subsidiary... It doesn't matter if he added language.

[00:50:09] Speaker 02:
The result of his action is to add a solicitation requirement that wasn't in it by excision or addition.

[00:50:16] Speaker 02:
It's still adding a solicitation requirement.

[00:50:19] Speaker 00:
I disagree that anything was added.

[00:50:21] Speaker 00:
I think that the trial court

[00:50:23] Speaker 00:
had to construe the solicitation to give meaning, as much meaning to as many of the terms as possible.

[00:50:29] Speaker 00:
And I think when you look at that phrase, the subject matter of that phrase is subsidiary foreign company registered as, and of course you look at the Q&A and you look at all the other, the actions of the Air Force before and after, it's evident that everyone understood what this means.

[00:50:45] Speaker 00:
And I think the fact that the Danish government did not pick this up indicates that sort of a normal reading of that is that,

[00:50:53] Speaker 00:
you're excluding foreign subsidiaries.

[00:50:54] Speaker 03:
Okay.

[00:50:55] Speaker 03:
I think we've heard this argument already.

[00:50:57] Speaker 03:
So you're out of time also.

[00:51:00] Speaker 00:
Okay.

[00:51:00] Speaker 03:
Thank you, Your Honor.

[00:51:04] Speaker 03:
Yes.

[00:51:04] Speaker 03:
Mr. Royale.

[00:51:05] Speaker 07:
In fact, he used up all Mr. Cosgrove's time.

[00:51:14] Speaker 08:
Your Honor, unless the Court has any further questions, we

[00:51:17] Speaker 08:
We don't have anything else.

[00:51:18] Speaker 08:
We just respectfully request that the court reverse the judgments in favor of the plaintiffs and affirm the issue in the cross appeals.

[00:51:25] Speaker 03:
OK.

[00:51:26] Speaker 03:
No questions.

[00:51:27] Speaker 03:
All right.

[00:51:27] Speaker 03:
Thank you very much.

[00:51:28] Speaker 03:
Mr. Colley?

[00:51:34] Speaker 04:
Briefly, Your Honor, a number of you asked the question as to whether or not Denmark restricts ownership of corporations 100%.

[00:51:42] Speaker 04:
It absolutely does not.

[00:51:44] Speaker 04:
They have a very open system.

[00:51:45] Speaker 04:
They encourage people to come in and form corporations there.

[00:51:49] Speaker 04:
We talk a little about it in our briefs at page 45 of our opening brief, page 41 of our reply brief.

[00:51:56] Speaker 02:
Is your plant fully registered as a Danish corporation?

[00:52:00] Speaker 04:
Yes, it is.

[00:52:01] Speaker 03:
What does that mean, fully registered?

[00:52:03] Speaker 03:
You're incorporated as a Danish corporation, correct?

[00:52:06] Speaker 03:
It is.

[00:52:09] Speaker 03:
Do you have to go note that registration somewhere?

[00:52:13] Speaker 03:
Let's say you were a foreign corporation and you're incorporated in Denmark.

[00:52:19] Speaker 03:
Does the law require you to go note that somewhere, to go register as a foreign?

[00:52:25] Speaker 04:
You're registered in the business registry, the CVR, which is what the Air Force looked at.

[00:52:29] Speaker 04:
Accelerated Services is registered.

[00:52:32] Speaker 03:
Do you know that the CVR doesn't have that feel for you to register as a foreign?

[00:52:37] Speaker 03:
Is there anything else other than the CVR?

[00:52:39] Speaker 03:
where you must register as a foreign corporation.

[00:52:43] Speaker 04:
If you are a foreign company providing services, and you do not go through the process of becoming a Danish company, then you register in the CVR system as a branch of a foreign organization.

[00:52:54] Speaker 04:
That's not what Excel services is.

[00:52:55] Speaker 04:
Excel services is a fully registered Danish company.

[00:52:58] Speaker 04:
It's an AS, same thing as Copenhagen, and the same thing as Prost.

[00:53:03] Speaker 04:
The last thing I would just say with respect to the OR,

[00:53:05] Speaker 04:
that seems to take out any pattern, at least an ambiguity argument.

[00:53:09] Speaker 04:
That wording right there, even looking at the solicitation, you would have to know, you have to be both, it's not an and, you have to raise it at that point.

[00:53:16] Speaker 03:
Thank you, Your Honor.

[00:53:17] Speaker 03:
Thank you.

[00:53:22] Speaker 03:
Mr. Cosgrove.

[00:53:28] Speaker 05:
I think the point that's being lost here today is that it's impossible

[00:53:35] Speaker 05:
to register as a foreign subsidiary.

[00:53:39] Speaker 05:
Therefore that restriction is illusory.

[00:53:45] Speaker 05:
It doesn't exist.

[00:53:46] Speaker 05:
It can't happen.

[00:53:48] Speaker 05:
No company in the history of the world

[00:53:51] Speaker 02:
I don't think that point is lost on any of us.

[00:53:55] Speaker 02:
We've been talking about it for the last half hour.

[00:53:57] Speaker 05:
Correct.

[00:53:58] Speaker 05:
But now we have to look at it and we have to say, okay, so it's impossible to register.

[00:54:03] Speaker 05:
What was the Air Force trying to achieve by putting this in here?

[00:54:08] Speaker 05:
What were they trying to do?

[00:54:09] Speaker 05:
Were they interested in actually trying to address ownership or were they interested in trying to address just this illusory

[00:54:20] Speaker 05:
thing that can't happen.

[00:54:21] Speaker 05:
If you go to pages in our brief, I would suggest you, I would call the court's attention to pages 21 through 24 of our brief.

[00:54:31] Speaker 05:
We set forth everything that the Air Force had in its possession as of May that would have completely and conclusively ended the registration issue.

[00:54:42] Speaker 05:
They had complete authority to make the decision.

[00:54:45] Speaker 05:
They had checked all the records.

[00:54:47] Speaker 05:
It was all done.

[00:54:49] Speaker 05:
Fine.

[00:54:50] Speaker 05:
That should have been the end of the issue, but it wasn't.

[00:54:54] Speaker 05:
They went on and on and on trying to find out if these companies were in fact subsidiaries of foreign companies, not just whether they were registered as, because that decision had been made in May.

[00:55:10] Speaker 05:
That's proof, I would submit, that when the Air Force had this mistake in solicitation, what they really meant

[00:55:20] Speaker 05:
was to exclude foreign subsidiaries, actual foreign subsidiaries.

[00:55:26] Speaker 03:
You're out of time, sir.

[00:55:28] Speaker 05:
I am.

[00:55:29] Speaker 05:
Thank you, Your Honor.

[00:55:30] Speaker 03:
Thank you.

[00:55:31] Speaker 03:
Mr. Anstead.

[00:55:42] Speaker 09:
Thank you, Your Honor.

[00:55:43] Speaker 09:
If I may go beyond the question of foreign subsidiary and just

[00:55:48] Speaker 09:
remind the court that the Air Force has conceded that there was a defect in the RFP.

[00:55:54] Speaker 10:
I mean, you know you're up here on your cross-appeal.

[00:55:57] Speaker 10:
You're not up here on the government's appeal.

[00:56:00] Speaker 09:
I apologize.

[00:56:01] Speaker 09:
On our cross-appeal, which I apologize I was not able to get to in my last argument, I would answer the questions from the court.

[00:56:10] Speaker 09:
I understand the question about maximizing, and is that an elastic test, or is it something that's finite.

[00:56:18] Speaker 09:
And as Mr. Cosgrove said, the point is here, the proposals of all three offerors, not just for ARSLA, but all three offerors, as we detailed in our brief, specifically said the very first subcontract that we're going to use to perform this work is with a U.S.

[00:56:34] Speaker 09:
company.

[00:56:35] Speaker 09:
And all the questions that we've raised today about what does that mean and how would the Air Force know, those are questions for the Air Force to have asked in their evaluation.

[00:56:45] Speaker 09:
The Air Force here has conceded they never looked at it.

[00:56:47] Speaker 09:
They didn't worry about this problem at all.

[00:56:50] Speaker 09:
And that is the evaluation error that was committed here on the subcontracting limitation requirement.

[00:56:59] Speaker 09:
Finally, I just remind the Court that regardless of what happens in the Court here, if the Court were to reverse on the eligibility question and affirm on the subcontracting issue,

[00:57:13] Speaker 09:
Greenland Contractors has two other issues in our protest that Judge Leto declined to reach because of his disposition of these issues.

[00:57:22] Speaker 09:
So we're going back to Judge Leto one way or another in this case.

[00:57:26] Speaker 09:
Thank you very much.

[00:57:27] Speaker 03:
Thank you.

[00:57:28] Speaker 03:
That concludes today's arguments.

[00:57:30] Speaker 03:
This court now stands on recess.

[00:57:39] Speaker 00:
All rise.

[00:57:39] Speaker 00:
The Honorable Court is adjourned until tomorrow morning at 10 o'clock.