[00:00:00] Speaker 04: Nick Lines versus United States. [00:00:31] Speaker 04: Mr. Joseph, please proceed when you're ready. [00:00:41] Speaker 01: May it please the court. [00:00:44] Speaker 01: The government characterizes this case as a mere factual disagreement, that what the trial court did was make factual determinations [00:00:58] Speaker 01: And that here on appeal, Transatlantic is simply arguing a different interpretation of the facts in the record. [00:01:10] Speaker 01: The facts material to our claim are not only not disputed, but are incontrovertible. [00:01:23] Speaker 01: The solicitation as a minimum requirement [00:01:28] Speaker 01: said that frequency service shall be no less frequent than every 14 days from each port. [00:01:39] Speaker 01: The successful offeror, Schuyler, submitted a proposal. [00:01:44] Speaker 01: And in its proposal, it said, we will perform this contract using two vessels, not one or the other, but both interchangeably. [00:01:56] Speaker 04: Did it say interchangeably? [00:01:57] Speaker 04: I didn't see that. [00:01:58] Speaker 01: Well, it didn't use the word interchangeable, but it said we will use both vessels. [00:02:03] Speaker 01: And it submitted schedules for each vessel, a schedule for the spar, its self-propelled vessel, and a schedule using its words when the barge is used. [00:02:17] Speaker 01: So it's clear that they intended to use the barge. [00:02:20] Speaker 00: Weren't they going to use a barge when the spar was not, let's say, functional or available? [00:02:26] Speaker 00: In other words, it was a backup that they had. [00:02:28] Speaker 01: They simply said it will be our alternative or backup vessel. [00:02:33] Speaker 01: But there was no restriction or any limitation as to when it could switch vessels, when it would become the backup vessel, when the primary vessel was [00:02:47] Speaker 01: to use the agency's words when the primary vessel was unavailable. [00:02:51] Speaker 04: But the solicitation itself says that any offeror would have to provide 45 days of advance notice of any proposed schedule change. [00:03:01] Speaker 04: So why isn't it reasonable for the government to expect that if for some reason they were going to propose, like if the spar was going to have to be taken out of commission to be worked on, as happens periodically with these ships, [00:03:14] Speaker 04: they would have to give the government 45 days advance notice of their intention to substitute in the Columbia for the spar. [00:03:22] Speaker 01: That would be true in any case. [00:03:24] Speaker 01: Our proposal included only one vessel and everyone recognizes that the nature of vessels and sea transportation is such that there will be times when a vessel is unavailable, vessels need to be taken out of service. [00:03:39] Speaker 01: The notice requirement is a normal [00:03:43] Speaker 01: and reasonable requirement that takes place during the performance of the contract. [00:03:50] Speaker 01: But the fact that that requirement exists in no way can be used to excuse a failure to comply. [00:03:59] Speaker 04: But there's only a failure to comply if we interpret the proposal as you suggest. [00:04:04] Speaker 04: which is that they intend to use these two ships interchangeably. [00:04:08] Speaker 04: And that's not what the claims court found. [00:04:11] Speaker 04: And I have to give clear error deference to them. [00:04:13] Speaker 04: And it seems as though there's some evidence in the proposal that the Columbia was intended to be a backup. [00:04:20] Speaker 04: And so in light of all that evidence, I don't see how you can leap over the clear error hurdle. [00:04:27] Speaker 01: Well, use of the term backup, first of all, the claims court never found [00:04:35] Speaker 01: It certainly repeated the language of the proposal that it would be used as a backup vessel, but it never found that this meant it would only be used in cases of emergency or unanticipated delay. [00:04:50] Speaker 01: The agency recognized that the offeror, in fact, used the SPAR for other business. [00:04:57] Speaker 01: And I simply don't see the use of the term backup or alternative [00:05:05] Speaker 01: in any way justifies a finding as to how frequently they will substitute the barge for the self-propelled vessel. [00:05:16] Speaker 02: If the Schuyler solicitation had represented that they would only use the spar, with no reference at all to the barge, then there wouldn't have been a problem. [00:05:31] Speaker 01: We would not be here. [00:05:32] Speaker 02: So they add in, they say, well, we have this additional boat presumably which they can use from time to time. [00:05:40] Speaker 02: And that, you say, makes the solicitation non-compliant. [00:05:44] Speaker 01: Well, not the mere fact that they add an additional vessel, but the fact that the schedule for the additional vessel demonstrates that when they do substitute the additional vessel for the spar, they will not. [00:05:59] Speaker 01: not may not but will not be able to satisfy the 14-day departure frequency requirement. [00:06:06] Speaker 01: That vessel on its next voyage will depart Gitmo 16 days after the last departure rather than 14 days. [00:06:20] Speaker 00: So what happens to you when your vessel is out of commission? [00:06:25] Speaker 01: When our vessel is out of commission we [00:06:28] Speaker 01: Assuming we know it's going to be out of commission, we give the government notice, we charter in or use another vessel that we own to perform the contract on a timely basis. [00:06:40] Speaker 01: Common practice in the industry. [00:06:41] Speaker 00: How is that different, other than the fact that Schaller declared this in their response? [00:06:48] Speaker 01: Well, it's different because their proposal says, when we do this, we will not comply. [00:06:57] Speaker 01: In the performance of this contract by any contractor, there may be instances in which they will not comply. [00:07:04] Speaker 01: But the question here is whether the proposal satisfied the requirements of the solicitation, not whether the performance satisfied the requirements of the contract. [00:07:14] Speaker 01: And that's the whole case is, did the proposal satisfy the requirements of the solicitation? [00:07:24] Speaker 01: And on its face, it clearly did not. [00:07:27] Speaker 00: The solicitation spoke to a schedule, not number of shifts. [00:07:31] Speaker 00: Is that correct? [00:07:33] Speaker 00: Yes. [00:07:34] Speaker 00: So how is the response then, the proposal, where it says we're going to utilize two shifts and use one as a backup. [00:07:44] Speaker 00: How does that implicate the schedule, other than the fact that when they use a backup, it's going to be a 16-day transit? [00:07:52] Speaker 01: Well, I'm not sure I understand the question, Your Honor. [00:07:56] Speaker 01: There's no limitation in the solicitation that would prohibit an offeror from offering to perform with two vessels. [00:08:06] Speaker 01: And the solicitation required that the offeror submit schedule or schedules that demonstrated it would comply with the 14-day requirement. [00:08:16] Speaker 01: So Schuyler submitted a proposal. [00:08:20] Speaker 01: Using two vessels, it submitted two schedules as required and the schedules themselves demonstrated that when they make the switch, substitute the barge for the self-propelled vessel, they will not meet the 14-day requirement. [00:08:38] Speaker 01: And that seems to me to be a classic case of a proposal on its face showing that it will not satisfy the requirements of the solicitation. [00:08:48] Speaker 01: The court and the government both referred to the fact that these were called just sample schedules, and they shouldn't be taken so seriously. [00:08:57] Speaker 01: But the schedules that were required were really the only basis that the government had to evaluate whether an offeror would satisfy the frequency of service requirement. [00:09:13] Speaker 01: We've already addressed the notice requirement, which [00:09:16] Speaker 01: which we believe has to do with performance, not with solicitation and offer. [00:09:24] Speaker 01: And the government also refers to cases suggesting the court will give deference when the question addressed by the lower court or the agency involves technical expertise or a technical matter. [00:09:39] Speaker 01: But in this case, the frequency of service requirement requires [00:09:45] Speaker 01: Whether it complies with that requirement requires only a knowledge of whether 16 days is greater than 14 days. [00:09:55] Speaker 01: Unless the court has further questions, I'll reserve the balance of my time. [00:09:59] Speaker 04: OK, Mr. Joseph, thank you. [00:10:01] Speaker 04: Mr. Major, am I saying it right? [00:10:04] Speaker 04: Yes. [00:10:04] Speaker 03: Yes, you are. [00:10:08] Speaker 03: May it please the court. [00:10:12] Speaker 03: 14 days is 14 days. [00:10:16] Speaker 03: The only way that we get to a 16-day schedule using two 14-day schedules is if we break apart the schedules contrary to what's found in the proposals. [00:10:29] Speaker 03: Taking a second to look at that, it takes one of the vessels to barge seven days approximately to go out to Guantanamo Bay, a five-day journey back. [00:10:38] Speaker 03: It ultimately meets the requirements of solicitation. [00:10:43] Speaker 03: The other vessel takes four to go out to Guantanamo Bay and approximately 11 days or so to go back. [00:10:51] Speaker 03: As a result, the way you get to 16 days is by swapping the vessels out at Guantanamo Bay. [00:10:58] Speaker 03: So it presumes the barge will go out from Jacksonville to Guantanamo Bay and that the spar, the other vessel, will be taking the return trip from Guantanamo Bay to Jacksonville. [00:11:10] Speaker 03: The problem with that is the schedules [00:11:13] Speaker 03: represent that the vessels are going to be traveling from Jacksonville to Guantanamo Bay and back. [00:11:19] Speaker 03: You have to break the schedules up and change effectively what the original port of embarkation is to get to 16 days. [00:11:28] Speaker 03: It was entirely rational and reasonable for the agency not to do that and for them to treat the backup vessel as just that. [00:11:36] Speaker 03: Moreover, the government does have protection because there is a 45-day notice requirement. [00:11:42] Speaker 03: within the solicitation that provides for the entry of vehicle schedules in advance. [00:11:51] Speaker 03: This is for a number of scheduling purposes, but it allows the government at all times to make certain that vehicles are complying with the 14-day requirement. [00:12:01] Speaker 00: Is a 14-day transit time, is that an estimate? [00:12:06] Speaker 00: Or it seems to me that it would [00:12:10] Speaker 00: More often be the case that Perhaps these ships can do this in 13 days or or 15 or? [00:12:19] Speaker 00: My experience being out on the water is, you know, things happen out there. [00:12:24] Speaker 03: Well, I mean, there's a 14-day requirement. [00:12:26] Speaker 03: It's part of the performance work statement. [00:12:28] Speaker 03: It is part of the contract. [00:12:29] Speaker 03: In theory, if an offeror is not routinely doing departures every 14 days from Jacksonville, the government could terminate the contract for default. [00:12:39] Speaker 03: So there is a 14-day requirement. [00:12:41] Speaker 03: I mean, there are several elements of that. [00:12:43] Speaker 03: They provide that the trip from Jacksonville to Guantanamo Bay should take a maximum of seven days. [00:12:50] Speaker 03: The trip back should take a maximum of 18 days. [00:12:53] Speaker 03: And there are weather allowances. [00:12:55] Speaker 03: If there's slippage that occurs due to weather conditions, the government makes allowances for that. [00:13:00] Speaker 03: In any government contract, there are ways that if something occurs that's unforeseen, that ultimately [00:13:06] Speaker 03: you can otherwise deal with those situations in a government contract and not worry about ultimately being terminated for default in a case like that. [00:13:15] Speaker 03: But the 14-day requirement is clearly part of the performance work statement, and we do not disagree with either Transatlantic or the court that it was a material requirement of this contract. [00:13:29] Speaker 03: So what we would note is that there wasn't a requirement. [00:13:33] Speaker 00: So if it's material and in your proposal, you identified, you actually proposed that there's going to be times that I'm going to do this in 16 days. [00:13:44] Speaker 00: Then you're not meeting the specification, are you? [00:13:49] Speaker 03: Yeah, well, the offer had to demonstrate their ability to provide the equipment and resources. [00:13:54] Speaker 03: necessary to successfully accomplish and meet the requirements of solicitation. [00:13:59] Speaker 03: If you're proposing 16 days, you know, just on its face, no, you aren't meeting the requirements at all of the solicitation. [00:14:05] Speaker 03: You're, in fact, demonstrating a misunderstanding. [00:14:08] Speaker 03: In those cases, the government might enter into discussions with an offer or say, look, it says 14 days. [00:14:14] Speaker 03: You said 16. [00:14:14] Speaker 03: Do you understand that we mean 14 days? [00:14:17] Speaker 03: It could go back. [00:14:18] Speaker 03: There were discussions in this case. [00:14:20] Speaker 03: But in this case, there's discussions and focus on the schedule. [00:14:23] Speaker 03: because the government did view it as acceptable from the outset. [00:14:26] Speaker 03: So unless the court has any questions. [00:14:29] Speaker 04: No, thank you, Mr. Major. [00:14:31] Speaker 03: Thank you, Your Honor. [00:14:31] Speaker 04: Mr. Joseph, you have some rebuttal time. [00:14:38] Speaker 01: I would only add that while there were separate schedules, and counsel talked about some breaking up of schedules, I want to make clear that [00:14:53] Speaker 01: It is undisputed that when the barge is substituted for the self-propelled vessel, it will, whenever it reaches Guantanamo, it will depart 16 days after the last departure. [00:15:11] Speaker 01: And I don't know what council meant by breaking up the schedules or whether TRANSCOM viewed the schedules in a strange way. [00:15:20] Speaker 01: The fact is, as recognized by the trial court, TransCom never even recognized this problem when one vessel is substituted for the other. [00:15:31] Speaker 01: It simply analyzed the schedule separately. [00:15:34] Speaker 01: And we agree that each schedule, when viewed separately, shows that departures will be every 14 days. [00:15:41] Speaker 01: It's only when the barge is substituted for the spar that the 16-day problem will arise. [00:15:49] Speaker 01: And therefore, Schuyler's own schedules demonstrate that when this happens, the interval will be 16 days. [00:15:58] Speaker 01: I don't believe the frequency with which it might happen is at all determinative of this issue. [00:16:06] Speaker 01: Schuyler represented that it would happen. [00:16:10] Speaker 01: And one can attribute various meanings to the words primary and backup. [00:16:18] Speaker 01: It would happen, and when it happens, it will be 16 days. [00:16:22] Speaker 01: And that demonstrated that the proposal did not comply with the solicitation. [00:16:30] Speaker 04: Thank you. [00:16:30] Speaker 04: Thank you, Mr. Joseph. [00:16:31] Speaker 04: I thank both counsel for their arguments. [00:16:33] Speaker 04: The case is taken under submission.