[00:00:40] Speaker 00: Okay, the next argued case is number 155105, Witt Associates against the United States, Mr. Kim. [00:01:01] Speaker 03: Good morning, Honors. [00:01:03] Speaker 03: I will tell you that I will be able to argue this without any finger-gestions, referral to technology, or any gestures of any type. [00:01:11] Speaker 05: You can go right back to first-year contracts. [00:01:13] Speaker 05: Absolutely. [00:01:14] Speaker 05: Offer, counter-offer? [00:01:15] Speaker 03: Is that an acceptance? [00:01:17] Speaker 03: This is relatively a straightforward case from a technical standpoint. [00:01:21] Speaker 03: So may it please the Court. [00:01:23] Speaker 03: Witt respectfully requests that this Court reverse the decision of the Court of Federal Claims for two specific reasons. [00:01:29] Speaker 03: First, [00:01:29] Speaker 03: Witt had standing to challenge the agency's responsibility determination. [00:01:34] Speaker 03: The dismissal of Witt's claim on the basis of lack of standing by the Court of Federal Claims was a misapplication of appropriate legal standard. [00:01:41] Speaker 02: Well, why don't you, I think that critical to your argument is this concept of whether you revived or withdrew your offer. [00:01:50] Speaker 02: I think that's critical to the entire outcome in this case. [00:01:54] Speaker 02: So if you wouldn't mind jumping right to that and tell us why the Court of Federal Claims was wrong in its fact finding that you had, in fact, not reinstated, revived, I don't even know what word to use, but your offer. [00:02:08] Speaker 03: we would characterize it as revive, as described in the Candon Shipping Court case. [00:02:13] Speaker 03: I'm happy to turn to that. [00:02:15] Speaker 03: However, I would like to note that this is, Witt's position is that the dismissal of count one is a standing jurisdictional based dismissal and should not have gone to the merits of the case. [00:02:26] Speaker 03: That is, in fact, the Court of Federal Claims error. [00:02:29] Speaker 03: They misapplied this court's requirements in the Impresa Construzioni case, which state that [00:02:35] Speaker 03: where a responsibility determination is challenged, and that challenge would have resulted in the disqualification of all other offerors that the protester does have standing, is an interested party for standing for jurisdictional purposes. [00:02:50] Speaker 03: The court instead turned to these two-part jurisdictional tests within the Court of Federal Claims and went to the merits of the issue with regard to our second claim, the fact of our expiration of our proposal and failure to revive. [00:03:04] Speaker 03: So it is Witt's position that, in fact, it is not necessary for this court to look to the merits of the case with regard to the first count of dismissal based on lack of standing. [00:03:16] Speaker 05: However, as you had questioned- So if they had no chance of winning the award, they still had standing to challenge? [00:03:21] Speaker 03: Actually, in fact, if you read the Impreza case, it states, as I quote, if an appellant's bid protest were allowed because of an arbitrary and capricious [00:03:32] Speaker 03: responsibility determination by the contracting officer. [00:03:36] Speaker 03: The government would be obligated to re-bid the contract and the appellant could compete for the contract once again. [00:03:42] Speaker 03: Under these circumstances, the appellant has, and I'll skip some of the intervening language, standing to challenge the award. [00:03:49] Speaker 03: That is exactly the circumstance in this case. [00:03:52] Speaker 03: The failure of the agency to conduct a responsibility determination and had it done so appropriately, Whit alleges that [00:04:00] Speaker 03: Platinum would have been disqualified in competition. [00:04:03] Speaker 03: Therefore, with no remaining offerors for the solicitation, the contract would have to have been rebid. [00:04:10] Speaker 03: And in fact, that would permit to submit a new offer, which would have been... What were the circumstances, I don't recall, of Impreza [00:04:23] Speaker 02: I remember it didn't involve a withdrawn offer, but what was the argument about the competitor standing? [00:04:30] Speaker 03: I don't recall the specifics off the top of my head. [00:04:33] Speaker 03: I can look that up, but I don't recall them. [00:04:35] Speaker 03: My recollection was it was a responsibility challenge, which is essentially related to responsibility. [00:04:41] Speaker 03: That is correct. [00:04:42] Speaker 03: So that's my understanding. [00:04:43] Speaker 03: But I don't know well enough to speak to that detail right off the top of my head, Judge Moore. [00:04:51] Speaker 03: As you had asked in your question, charting to the merits of the second part of the claim, it is also Witt's position that the Court of Federal Claims erroneously concluded that Witt's proposal had expired and was not revived through conduct. [00:05:05] Speaker 03: As stated in the Candon Shipping Court case, the contractor can revive its offer either expressively or impliedly through conduct. [00:05:13] Speaker 03: In this case, first, as the Court of Federal Claims correctly held, Witt did not respond to the question asked. [00:05:20] Speaker 03: The question was asked by someone other than the contracting officer where there's no express delegation of authority within the record itself that indicates this person had the authority to make this question. [00:05:31] Speaker 02: Second, Wendy. [00:05:33] Speaker 02: But regardless of whether that person had the authority, isn't it the case, or I don't know this law very well, but I think that [00:05:43] Speaker 02: when you make an offer, it's only good for a certain window of time. [00:05:47] Speaker 02: Can you tell me what that window was here? [00:05:49] Speaker 03: The window of time listed in the solicitation part in the FAR clause 52-212-1 part 12 is 30 days, but it does not state that the offer expires. [00:06:01] Speaker 03: It states that it's open for a period. [00:06:02] Speaker 03: It does not necessarily state that it expires. [00:06:04] Speaker 03: Traditionally, my work in this area is that the [00:06:09] Speaker 03: The question is asked at the time of award, that when the contract is worthy, contractor is offered, they are requested to confirm that their offer still stands as valid. [00:06:20] Speaker 03: This is a slightly unorthodox process that was used in this procurement. [00:06:24] Speaker 03: But yes, it is a 30 day period in the regulations. [00:06:27] Speaker 02: And that seems like a good practice because you wouldn't want, you give an offer to the government and they do nothing and three years later they say, ah, I accept. [00:06:36] Speaker 02: You do want, I mean, it's in the benefit of the contractor as well as the government to have a discrete time period like that so that the contractor knows the government can't come back and accept it and offer years down the road that would be not any longer advantageous to the contractor. [00:06:51] Speaker 03: Absolutely. [00:06:52] Speaker 03: That is the intent of the regulatory requirement and the case have clearly shown that is intended to protect contract. [00:06:58] Speaker 02: So it was clear under these facts then that by the time that government official came and asked, [00:07:05] Speaker 02: whether your proposed pricing was still valid, and could it be maintained as valid until March of 2015? [00:07:11] Speaker 02: It was well beyond the solicitation 30-day window. [00:07:15] Speaker 02: It was like 200 days in or something. [00:07:17] Speaker 03: 200 plus, Your Honor. [00:07:18] Speaker 02: That's correct. [00:07:19] Speaker 02: So clearly, 200 days in, there's no way you could have been bound to the proposal that you submitted. [00:07:25] Speaker 02: You'd have to confirm it. [00:07:27] Speaker 03: That is correct, Your Honor. [00:07:28] Speaker 02: OK. [00:07:28] Speaker 02: So you have to confirm it. [00:07:30] Speaker 02: So she comes to you and says, are you still willing to be bound by your proposal [00:07:35] Speaker 02: And your response was what? [00:07:39] Speaker 02: What was your response? [00:07:40] Speaker 02: I think it was, no, we would want, here it is, I have a quote. [00:07:45] Speaker 02: It has been 214 days since our proposal was submitted. [00:07:50] Speaker 02: WID associates want and need to submit a final proposed revision with updated rates given the economic conditions. [00:07:59] Speaker 02: Why isn't that clearly a no? [00:08:02] Speaker 02: We are not willing to honor the same pricing, which was the question asked to you. [00:08:07] Speaker 03: Because they never said no. [00:08:09] Speaker 03: If you read it, it says they want and need, but never refuse to actually extend. [00:08:14] Speaker 05: Did they accept? [00:08:16] Speaker 05: I'm sorry. [00:08:16] Speaker 05: Go ahead. [00:08:17] Speaker 05: Did they accept you have an offer, and either you have an acceptance, a rejection, or a counteroffer? [00:08:27] Speaker 05: What your client did was make a counteroffer. [00:08:30] Speaker 05: We'd like a higher price. [00:08:33] Speaker 03: stated that it needs and requires a proposal revision, but did not state that it would not keep its offer open. [00:08:42] Speaker 02: And in fact, what is... It says you need a proposal revision with updated rates given the economic conditions. [00:08:49] Speaker 02: Isn't it reasonable? [00:08:50] Speaker 02: I mean, I have to review the lower court for substantial evidence. [00:08:53] Speaker 02: I don't have clear error. [00:08:54] Speaker 02: I don't have carte blanche to do any kind of de novo review. [00:08:58] Speaker 02: So why isn't there substantial evidence for her to have found [00:09:03] Speaker 02: that when you say you want and need to submit a final proposal with updated rates given the economic conditions, why isn't it reasonable for her to have concluded that that meant you were going to raise or change your rates given the change in the economic climate? [00:09:18] Speaker 02: I don't get to do it de novo. [00:09:19] Speaker 02: I have to, you know, put my thumb on the scale in favor of what she decided because it's a fact finding. [00:09:25] Speaker 03: Absolutely, Your Honor. [00:09:25] Speaker 03: And I think that's what's clear here is that if you look at the history of the procurement in its context generally, [00:09:31] Speaker 03: Witt was the incumbent contractor, had been serving under this contract for 16 years. [00:09:36] Speaker 03: Its bid was the only other technically acceptable offer that was submitted. [00:09:41] Speaker 03: It was also 40% below the price submitted by its competitor. [00:09:45] Speaker 03: Its competitor was debarred from procurement, and of course, the procurement, this has gone through multiple bid protests. [00:09:51] Speaker 03: Witt had expended tens of thousands of dollars through maintaining its status, through the protest, bid preparation costs and legal fees, [00:10:00] Speaker 03: And I would suggest that in light of the general nature of the relationship, that if there was any question as to whether or not Witt was willing to extend its offer, first, it was unreasonable for the agent to simply assume when Witt posed that it was a no. [00:10:19] Speaker 03: It would have been appropriate and more reasonable for the agent to at least validate the response. [00:10:25] Speaker 05: A no is we were a jet. [00:10:28] Speaker 05: Let's go back. [00:10:29] Speaker 05: You agree, don't you, that there's offer, acceptance, or rejection, or counteroffer, those four things. [00:10:37] Speaker 05: Yes, Your Honor, that's correct. [00:10:39] Speaker 05: A no is we reject. [00:10:41] Speaker 05: What you had was a counteroffer. [00:10:44] Speaker 05: Do you agree with that? [00:10:45] Speaker 03: I would suggest that there's a counteroffer embedded in the request. [00:10:47] Speaker 03: That's correct, Your Honor. [00:10:49] Speaker 05: So when you have a counteroffer, it is not an acceptance. [00:10:52] Speaker 03: That is correct. [00:10:52] Speaker 03: It is not an acceptance. [00:10:53] Speaker 03: I never stated that it was an acceptance. [00:10:55] Speaker 05: Right. [00:10:56] Speaker 05: So we're in accord here. [00:10:58] Speaker 03: So I would suggest, however, that in accordance with the actual general nature of the history of the procurement, which follow-up actions and questions that follow up after the... Its follow-up actions are to keep saying, here's our counteroffer. [00:11:11] Speaker 03: No, they had stated, please respond to what we had requested, which is, in fact, if... Please accept our counteroffer. [00:11:17] Speaker 03: No, the answer is, please let us know whether or not it is acceptable or not. [00:11:21] Speaker 03: And if, in fact, [00:11:23] Speaker 05: And eventually somebody says, do you stand by the original? [00:11:28] Speaker 05: And the answer is, no. [00:11:31] Speaker 03: And if WIT had been told we are not going to be doing final offers, final revisions, WIT would have stood by its offer. [00:11:38] Speaker 03: And its conduct, the fact that it did subsequently... That's pure speculation. [00:11:42] Speaker 03: I'm sorry? [00:11:43] Speaker 05: Where is that in the record? [00:11:45] Speaker 03: That was part of the case below. [00:11:48] Speaker 03: There was an argument that had they been given the opportunity to respond, they would have done so. [00:11:52] Speaker 03: My understanding is that [00:11:53] Speaker 03: My understanding is that the... What factual proof is there in the record of that? [00:11:58] Speaker 03: The factual proof is the history of the procurement itself. [00:12:02] Speaker 05: If you look at the history... That says to us that there's plenty of evidence to support the court below. [00:12:08] Speaker 05: It's fine. [00:12:11] Speaker 03: I'm sorry. [00:12:11] Speaker 03: Could you clarify? [00:12:12] Speaker 03: I didn't understand the question. [00:12:13] Speaker 03: It's not a question. [00:12:14] Speaker 05: It's a statement. [00:12:16] Speaker 05: What you're saying is that we had [00:12:20] Speaker 05: course of conduct, which we believe supported the determination that they would have changed their position. [00:12:30] Speaker 05: But you're also saying there's a course of conduct in which they didn't change their position, and that seems to at least be enough to support the Judge Blow's finding that they wouldn't have. [00:12:42] Speaker 03: So the standard is that they could have revived their offer either expressively or impliedly through conduct. [00:12:47] Speaker 03: If you are going to assume for this purpose that the initial response was a counter offer, as we have discussed, the follow-up conduct was a series of follow-up communications with Ms. [00:12:59] Speaker 03: Smith, who was apparently the one who was given the authority to make this inquiry, which was not responded to. [00:13:05] Speaker 03: It did attempt to revive its offer by communicating with the agency. [00:13:09] Speaker 03: The agency's refusal or [00:13:11] Speaker 03: inability to actually respond to Witt's request, precluded Witt from having the opportunity to revive because it was never told, no, you will not be provided an opportunity to change your offer. [00:13:23] Speaker 03: There will be no proposal revisions. [00:13:25] Speaker 03: You must stand by your offer. [00:13:27] Speaker 03: There was no citation to the FAR clause itself, which would have indicated to Witt, clearly, you must accept or this offer will be withdrawn. [00:13:35] Speaker 03: The fact that this was not part of the communication in light of the specific circumstances of this procurement, [00:13:41] Speaker 03: the fact that it is a 40% plus savings to the government. [00:13:45] Speaker 03: For a contractor that had been in place for over 16 years, successfully performed on the contracts proceeding, had worked through, as we discussed, multiple years of protests, preparation, resubmissions, and communications with the agency, it seems unreasonable for the agency to have concluded that there is no attempt to impliedly or expressly through conduct [00:14:10] Speaker 03: revive its offer when in fact the agency refused to interact. [00:14:14] Speaker 00: They did not answer the inquiries. [00:14:17] Speaker 00: Was there any attempt in the court of federal claims to explain or justify the delay, the lack of response when there were inquiries as to whether that offer was renewed? [00:14:34] Speaker 03: No, Your Honor, not satisfactorily to our understanding. [00:14:37] Speaker 03: It was simply they did not respond. [00:14:39] Speaker 03: My understanding from the court below, it was not counseled at the time, from my reading of the record, was that they felt they did not need to respond and therefore did not. [00:14:50] Speaker 00: Let's hear from the other side. [00:14:52] Speaker 00: Mr. Kanisaris. [00:14:57] Speaker 04: Good morning and may it please the court. [00:15:00] Speaker 04: Witt's offer expired and was not revived. [00:15:03] Speaker 04: Witt made a business decision. [00:15:05] Speaker 04: It was asked expressly whether it would stand by the prices in its offer. [00:15:09] Speaker 04: And it never said yes. [00:15:11] Speaker 04: Council said it never said no. [00:15:13] Speaker 04: But the more important question is it never said yes. [00:15:16] Speaker 04: And the burden, as the case law is clear, is on the offeror. [00:15:20] Speaker 04: If an offeror's offer is subject to some time limitation and that time limitation lapses, [00:15:26] Speaker 04: The responsibility is on the offeror, if it still wishes to have that offer be considered, to revive it somehow. [00:15:33] Speaker 04: And that is the question here. [00:15:36] Speaker 04: In the record, it's very clear that, in the face of these emails, that Witt was not interested in standing by the terms of that offer. [00:15:43] Speaker 04: When it was asked that question, it said it wanted and needed to submit revised pricing on December 23, 2014. [00:15:50] Speaker 04: And then it reinforced that message in subsequent emails [00:15:54] Speaker 04: At A509 and A512 of the record, you have some further emails from Witt's president saying, again, emphasizing a need to submit revised pricing. [00:16:04] Speaker 04: And the trial court, getting back to the court, the judge's question about the standard of review here, the trial court's factual finding was not clearly erroneous, that it was difficult, as she wrote in her opinion, difficult to interpret Witt's email in any other way than as a negative response to the question that had been posed by the Navy. [00:16:23] Speaker 04: Now, which principal argument for this court is that, well, indeed, we did want to revive our offer and trust us. [00:16:30] Speaker 04: There may not be anything in the record, but that's obviously not sufficient in a record review case. [00:16:36] Speaker 04: And also, this notion of an abstract interest in the competition is what they're relying on. [00:16:41] Speaker 04: Well, we were clearly interested based on our past conduct, and this contract had been in existence for a long period of time. [00:16:47] Speaker 04: That, again, is not sufficient, because what the case law says, [00:16:51] Speaker 04: I would draw the court's attention to the international graphics case in particular, that words or conduct to revive a bid must indicate that you are willing to accept on the terms of the offer as submitted. [00:17:02] Speaker 04: So merely being interested in the contract or in the procurement in some sort of abstract sense is really not sufficient. [00:17:09] Speaker 00: But isn't it in the government's interest to have competition in bidding here without a renewal of this participation? [00:17:20] Speaker 00: There was, I gather, just one sole bidder. [00:17:23] Speaker 00: Is my understanding correct that the competing or potentially competing bidders don't know and are not told, and it's expressly concealed, the amount of what their competitors are bidding? [00:17:39] Speaker 04: Well, Your Honor, this was not a sealed bidding process under FAR part 14. [00:17:44] Speaker 04: It's sort of a different system, if that's what the court's questioning. [00:17:47] Speaker 00: That's what I was wondering. [00:17:48] Speaker 00: the whether Platinum's bid and the amount of their bid, the amount of which bid was publicly known. [00:17:55] Speaker 04: Well, certainly the amount of the bid would not have been publicly known, but this does- That was my question, the amount of the bid. [00:18:00] Speaker 00: So when you said this isn't a sealed bidding, what were you telling me? [00:18:04] Speaker 04: Well, that it's more like a far part 14, a sort of negotiated procurement. [00:18:08] Speaker 04: And in that sort of situation where you have the contracting officer dealing with these offerors. [00:18:13] Speaker 04: But what's important to emphasize in getting to, I think perhaps the judge's question is, [00:18:18] Speaker 04: there was an equal treatment of these offer wars and that the very same question was posed at the exact same time to both offer wars. [00:18:26] Speaker 00: It looked fair enough, but trying to understand, there's nothing on the record and counsel didn't know. [00:18:35] Speaker 00: Very strange, dilatory responses. [00:18:39] Speaker 00: Maybe I will, just don't bother me. [00:18:43] Speaker 00: And if in fact the [00:18:45] Speaker 00: delay was to get a better fix on the competitive situation? [00:18:50] Speaker 04: Your Honor, the trial court actually did address the question. [00:18:54] Speaker 04: Witt had made an argument before the trial court about the Navy acting improperly by not responding to these emails promptly. [00:19:00] Speaker 04: The trial court did address that. [00:19:02] Speaker 04: It's at footnote nine of the decision. [00:19:04] Speaker 04: It's A-18 of the record. [00:19:06] Speaker 04: And the argument that had been made was that the person with the Navy who had sent these emails had not [00:19:13] Speaker 04: made known to Witt that her view was that the offer had expired and that somehow it was concealing that information from Witt when it should have been made known. [00:19:24] Speaker 04: The fact is, as the trial court noted, that was a prudent decision to make at the time because this protest had been pending for so long, number one, but also Witt had made clear in its email, according to the Navy, that it was not willing to stand by the terms of its offer. [00:19:40] Speaker 04: But the final decision and the procurement, the award decision was still pending. [00:19:44] Speaker 04: So it was appropriate in that circumstance for the Navy to continue those deliberations. [00:19:49] Speaker 04: But I do want to emphasize again that the obligation, the trial court also noted on page 823 of the record, that there is no obligation on the part of the Navy to notify wit of something of which it should already be aware. [00:20:03] Speaker 04: That is a term in the solicitation itself that says that your offer is subject to some [00:20:08] Speaker 04: time limitation and that it had been expired. [00:20:11] Speaker 04: A couple other points, and one is that there obviously is no dispute that the offer expired. [00:20:18] Speaker 04: And moreover, the trial court reached a factual finding that the offer had expired. [00:20:22] Speaker 04: And as the government has argued in our brief, in our submission, the appropriate resolution would be to dismiss the protest for lack of standing. [00:20:30] Speaker 04: Because this case does really fall within the same type of factual scenarios that this court has confronted in other bid protests where [00:20:37] Speaker 04: A party fails to demonstrate that it's an interested party with a requisite direct economic interest because it has failed to submit a bid. [00:20:46] Speaker 04: It has filed late. [00:20:50] Speaker 04: In the federal data case in particular, it withdrew from the competition. [00:20:55] Speaker 04: Those cases demonstrate the same proposition here. [00:20:58] Speaker 04: And the Camden shipping case is directly on point in that regard, where you had an expired offer, which meant [00:21:05] Speaker 04: that that offeror no longer had the requisite economic interest. [00:21:10] Speaker 04: I want to address the argument that Whit makes now, which is that it nevertheless had standing to argue the responsibility to termination. [00:21:20] Speaker 04: And it is relying on Impreza. [00:21:22] Speaker 04: First of all, that is an argument that was not made before. [00:21:24] Speaker 02: I should know this already. [00:21:25] Speaker 02: Are you the government lawyer or Mr. Smoot's lawyer? [00:21:28] Speaker 04: I'm the government lawyer. [00:21:29] Speaker 02: All right. [00:21:30] Speaker 02: Okay. [00:21:30] Speaker 02: So good. [00:21:31] Speaker 02: Well, good. [00:21:31] Speaker 02: Cause then I won't ask you what dinner's like in this family household on Christmas Eve, but cannot speak to that. [00:21:37] Speaker 04: Your honor. [00:21:37] Speaker 02: Well, because, you know, these are two brothers fighting. [00:21:40] Speaker 02: So it's kind of a crazy situation. [00:21:42] Speaker 02: I also, by the way, want to know if it's the same smooth that they measure the Harvard bridge with. [00:21:46] Speaker 02: I don't know if they're aware of this, but perhaps someone in their family or by the same name. [00:21:50] Speaker 02: Lays down every year and the Harvard Bridge is measured and smooths the bridge between Boston and Cambridge So I'm kind of curious if it's either of these gentlemen as well, but I won't ask you those questions I'll save them for the other attorney. [00:22:02] Speaker 02: So for you though, like why wouldn't our government want? [00:22:07] Speaker 02: the competitive bidding situation where obviously they waited nine months to have this contract and and then after they asked whether you'll keep your bid open till March 15th, there was lots of time and [00:22:20] Speaker 02: to allow the other side to submit their revised pricing. [00:22:24] Speaker 02: And given that they were the incumbent who had been doing this work for many, many, many years, and given that their proposal, I mean, any contracting officer could have looked at their only two proposals. [00:22:35] Speaker 02: And one of them is 40, theirs was 40% less than the other one. [00:22:39] Speaker 02: Why in the world didn't the government say, sure, you could submit your updated pricing? [00:22:46] Speaker 02: I mean, March 15th was how many months away from when the request was [00:22:49] Speaker 02: sent to them about whether they would maintain the same pricing. [00:22:53] Speaker 04: How many months? [00:22:54] Speaker 04: Well, I think it was from approximately March to December. [00:22:58] Speaker 02: December. [00:22:58] Speaker 02: So in December, she said, will you maintain your same pricing through March? [00:23:04] Speaker 02: So she clearly knew the decision wasn't going to get made until three to four months down the road or whatever. [00:23:09] Speaker 02: So why did the world not let them? [00:23:10] Speaker 02: I mean, they're just talking about revising their pricing. [00:23:13] Speaker 02: I can't imagine that takes very long to do. [00:23:15] Speaker 02: And given that their proposal was 40% less than the other one, I guess I kind of feel like you're not spending my tax dollars very well in this case because you had an incumbent that there's no evidence in the record was doing a poor job and was offering to continue doing the same job at 40% less and was saying, well, I'm going to have to probably raise my rates a little bit. [00:23:33] Speaker 04: Your honor, I can only speak to what's in the administrative record, as could the court below. [00:23:38] Speaker 04: And really what the administrative record reflects is, number one, [00:23:42] Speaker 04: This protest, this procurement had been tied up in GAO protests for many years. [00:23:47] Speaker 04: This had been hard fought, a hard fought battle that was coming to a close. [00:23:50] Speaker 02: Yeah, I mean, it's worse when it's family. [00:23:51] Speaker 02: That's the way it goes. [00:23:52] Speaker 04: Right. [00:23:53] Speaker 04: And so in that regard, it is understandable in our submission for the contracting officer in that position to be reticent, to take a step that may open itself up to allegations of bias or favoritism, et cetera, if it were, for example, to engage in some sort of conversation with wit. [00:24:11] Speaker 04: Now, I'm not suggesting that the contracting officer couldn't have entertained the idea, considered it, had a conversation, sent further emails. [00:24:19] Speaker 04: Certainly, that would have been possible. [00:24:21] Speaker 02: But the question- Four just responded to the one, two, three, four. [00:24:25] Speaker 02: different inquiries that Witt had made, right? [00:24:27] Speaker 02: Because Witt followed up four separate times afterwards and said, hey, are you going to let us submit a new proposal? [00:24:33] Speaker 02: Hey, we need to submit a new proposal. [00:24:34] Speaker 02: Right. [00:24:35] Speaker 04: And Your Honor, she ultimately did respond. [00:24:37] Speaker 04: The email on January 30th, and she apologized for the delay and said, hopefully this will be resolved soon. [00:24:42] Speaker 04: So no doubt there was a delay in the response. [00:24:44] Speaker 02: OK, wait. [00:24:45] Speaker 02: But I apologize that the delay, this will be resolved soon, isn't actually the resolution. [00:24:49] Speaker 02: You're right. [00:24:49] Speaker 02: She responded. [00:24:50] Speaker 02: She said, oh, I'll get back to you. [00:24:52] Speaker 02: And they never did. [00:24:53] Speaker 04: Well, until the award was finalized. [00:24:56] Speaker 04: And you're right, Your Honor, there was no engaging wit on this idea of revising its prices. [00:25:02] Speaker 04: But I would point out that, number one, there was no obligation to entertain that idea after such a passage of time. [00:25:08] Speaker 04: And I can only speculate into what was in the mind of the contracting officer at the time. [00:25:13] Speaker 04: I take your point. [00:25:14] Speaker 04: However, especially with the deferential standard of review that we're looking at, the question really comes down to on the merits [00:25:22] Speaker 04: Was the Navy, did it act rationally? [00:25:25] Speaker 04: And was their interpretation of these emails and these responses, was that rational? [00:25:31] Speaker 04: Was it arbitrary or capricious? [00:25:32] Speaker 04: And on that, the court reached the right result. [00:25:35] Speaker 04: Turning back to the standing question, the reliance on Impreza is misplaced. [00:25:40] Speaker 04: Council suggested in response to Judge Wallach's question that even if the protester had no chance of obtaining the contract, of winning the award, that somehow it could still have standing. [00:25:51] Speaker 04: That's not what Impreza said. [00:25:53] Speaker 04: And Impreza, the court itself, said very clearly in the decision, this case is unlike other cases we have dealt with where an offer has withdrawn. [00:26:03] Speaker 00: Let me interrupt you. [00:26:04] Speaker 00: I agree. [00:26:05] Speaker 00: It's not what Impreza says. [00:26:06] Speaker 00: But this is an interesting and troublesome question as to whether the government's view is that which shouldn't even have a chance to come into court at this stage. [00:26:20] Speaker 00: that what Impresa was building upon, because there were unique situations, as I recall, in a foreign country and a lot of strange complications, that one, that it's not a blanket rule. [00:26:35] Speaker 00: My question for you is, is the government in fact seeking a blanket rule that a potential bidder, in fact the incumbent and so on, that the circumstances are irrelevant? [00:26:50] Speaker 00: If it turns out that the would-be bidder's bid is not accepted, has no opportunity to challenge the situation? [00:27:04] Speaker 04: Your Honor, no. [00:27:05] Speaker 04: We're not seeking a blanket rule that is along the lines of your question. [00:27:09] Speaker 04: The key fact that distinguishes this case from Impreza is the expiration of the offer, and it's [00:27:18] Speaker 00: the lack of its revival, which brings it- Are you asking a rule for forever or the opportunity to in fact look at it and figure out whether it would be reasonably appropriate to give this now disappointed, bitter incumbent a day in court? [00:27:37] Speaker 04: Well, the day in court turns on whether or not that individual, the protester- But then the court can decide against it as they did. [00:27:46] Speaker 04: correct in the press so that's true but you're saying you can't even go to court well your honor saying in the circumstance where the offers expired in circumstances where the offer has expired it brings it more into the lines of the labat case where mc i or uh... rec services in works this course it has recognized that we're you no longer have a direct economic interest you no longer have a subsidy you're not really saying that are you because [00:28:14] Speaker 05: A litigant came into court and said, yes, the offer expired, but here are the reasons the offer expired, which make it an invalid expiration. [00:28:29] Speaker 05: They would have standing to make that argument. [00:28:32] Speaker 05: Would they not? [00:28:33] Speaker 04: Well, that is very circumstance dependent. [00:28:36] Speaker 04: Of course it is. [00:28:37] Speaker 04: And in this particular case, where the protester has the burden of proof on jurisdiction and demonstrating standing, [00:28:44] Speaker 04: it is appropriate for the court to evaluate whether there is a preponderance of evidence to meet that burden. [00:28:51] Speaker 05: But what you're being asked is, are you seeking a blanket rule in that circumstance? [00:28:56] Speaker 05: And I think the answer is no. [00:28:58] Speaker 04: No, I'm not seeking a blanket rule. [00:29:00] Speaker 02: And I don't even think you're seeking a blanket rule with regard to expiration, right? [00:29:03] Speaker 02: What did the lower court find? [00:29:04] Speaker 02: Did they find withdrawn? [00:29:06] Speaker 02: What did she find, precisely, with regard to the offer? [00:29:11] Speaker 02: It wasn't just expired. [00:29:12] Speaker 02: It was expired. [00:29:14] Speaker 02: An express statement was made that it would not be renewed at that same pricing. [00:29:18] Speaker 04: What she stated, she found as a matter of fact, the offer had expired on June 23rd, 2014. [00:29:24] Speaker 04: She also held that the Navy's conclusion that the offer was not revived was not arbitrary or capricious. [00:29:33] Speaker 00: So you're saying you have to find the merits as a matter of fact, and then instead of saying you lose on the merits, you say you had no standing to be here at all? [00:29:44] Speaker 00: That makes no sense. [00:29:45] Speaker 04: No, Your Honor, that's not our position. [00:29:47] Speaker 04: We are suggesting that at the standing stage, there needs to be a showing, a sufficient showing to make a jurisdictional showing of standing. [00:29:55] Speaker 04: But even if the court disagrees with us on standing, it should nevertheless affirm there is no need for a remand. [00:30:01] Speaker 04: And I'll make two points on this briefly. [00:30:03] Speaker 04: The first is that in order to prevail on any sort of remand, this court would have to find that the trial court's conclusion is fact-finding. [00:30:14] Speaker 04: that there was no substantial chance of obtaining the award was clearly erroneous in order for Witt to get this contract on a remand. [00:30:22] Speaker 04: The reason for that is prejudicial error, of course, is a requirement both for purposes of standing and for the merits. [00:30:30] Speaker 04: And a protester needs to demonstrate a substantial chance of obtaining the contract on the merits. [00:30:36] Speaker 04: The Bannum case states that proposition. [00:30:38] Speaker 04: So here we have a situation where [00:30:40] Speaker 04: Even if there were some theoretically erroneous responsibility determination, the trial courts already addressed the question of substantial chance and prejudice, and appropriately so. [00:30:51] Speaker 04: So there's no basis to reverse that conclusion. [00:30:54] Speaker 04: So a remand would really accomplish nothing. [00:30:56] Speaker 00: Do you want to have Mr. Arden continue the argument? [00:31:02] Speaker 04: Yes. [00:31:02] Speaker 04: If I'm out of time, Your Honor, I believe I reserve three minutes. [00:31:05] Speaker 00: You're well over time. [00:31:06] Speaker 00: You've used up her time. [00:31:07] Speaker 00: OK. [00:31:08] Speaker 00: But we're glad to hear what you have to tell us. [00:31:10] Speaker 04: Thank you. [00:31:13] Speaker 00: Anything new? [00:31:13] Speaker 00: No need to repeat what we've already been through. [00:31:17] Speaker 01: Thank you, Your Honor. [00:31:17] Speaker 01: And I'll try to go directly to our point, which is while we stand with the Department of Justice and with the argument they've made, we do want to emphasize one issue, which is that with responses to the questions and the communications throughout the final time period of this procurement, we contend [00:31:42] Speaker 01: were clear, and we believe the trial court was correct in its interpretation. [00:31:48] Speaker 01: Witt repeatedly asked to reprice its proposal, and it asked questions aimed at determining how much longer it had on its more favorably priced incumbent contract. [00:31:59] Speaker 01: And the contracting officer was reasonable in her determination that they did not wish to stand by their earlier price. [00:32:08] Speaker 01: However, even if this court finds [00:32:11] Speaker 01: that that is not the reasonable determination. [00:32:18] Speaker 01: And nothing in the record contradicts the contracting officer's determination. [00:32:23] Speaker 01: They may have been interested in award of this contract, but they certainly were not interested in award at any price and not at the price that they had quoted to the government earlier in the year. [00:32:35] Speaker 01: This court determines, even if the court determines, that they had standing. [00:32:40] Speaker 01: to challenge Platinum's responsibility determination, the court must deny this appeal. [00:32:46] Speaker 01: Witt cannot show as it must that the contracting officer's responsibility determination lacked a rational basis and violated procurement regulations. [00:32:56] Speaker 01: And Witt cannot show on the record as it must that there was an unreasonable responsibility determination that was sufficiently prejudicial to Witt. [00:33:04] Speaker 01: The court can't second guess the contracting officer or substitute its judgment for that of the contracting officer [00:33:10] Speaker 01: where her decision was rational and supported in the record. [00:33:14] Speaker 01: The contracting officer had broad discretion in looking at responsibility here. [00:33:19] Speaker 01: And she reached her conclusion after considering ample evidence, after detailing reasons none of which were contradicted in the record. [00:33:29] Speaker 01: She set them forth in writing in section six of the contract review board presentation following FAR part nine. [00:33:39] Speaker 01: and going through each of the seven elements in detail. [00:33:43] Speaker 00: I think we have the argument. [00:33:46] Speaker 00: Thank you, Mr. Ordon. [00:33:47] Speaker 00: We're short of time. [00:33:49] Speaker 00: Thank you, Your Honor. [00:33:57] Speaker 00: Mr. Kim, we've run over. [00:33:58] Speaker 00: Let's make it three minutes. [00:33:59] Speaker 03: Thank you. [00:34:00] Speaker 03: I appreciate the time. [00:34:01] Speaker 03: I'll make some two brief points. [00:34:03] Speaker 03: The first point is this. [00:34:04] Speaker 03: The court's dismissal, if you look to the actual language of the court's opinion on page A17, it states, therefore, the court lacks the jurisdiction to consider that aspect of Witt's protest and to grant the government's motion to dismiss count one of Witt's complaint, challenging the agency's responsibility, finding with respect to platinum. [00:34:23] Speaker 03: The dismissal was a jurisdictional dismissal based on standing. [00:34:28] Speaker 03: We understand that [00:34:30] Speaker 03: there was a full description of the responsibility determination in the record. [00:34:35] Speaker 03: That record was not examined in the lower court's decision. [00:34:37] Speaker 03: They expressly declined to do so on jurisdictional grounds. [00:34:41] Speaker 03: It is the position of Witt that that was inappropriate to dismiss on jurisdictional grounds. [00:34:46] Speaker 03: That in fact, that if you look at the language of impressive, which I think is important, the conclusion of the court was that the Witt lacked any chance of winning the award. [00:34:56] Speaker 03: Regardless of the merits of its challenge to the agency's responsibility finding, [00:35:00] Speaker 03: After making a factual determination with regard to the merits of the other portion of Witt's claim, if you were to take Witt's claim on its basis, on the basis of its complaint, its statement that the agency erred in failing to disqualify platinum, the results of that allegation in itself would have required a re-solicitation of the contract because there were no other offerors. [00:35:26] Speaker 03: Because it would be a re-solicitation of the contract, [00:35:29] Speaker 03: the withdrawal would not have carried forward, that in fact would have had the opportunity to participate in the competition again and therefore did have interest in party status and had a direct economic interest. [00:35:42] Speaker 03: And that is the position with regard to that point. [00:35:45] Speaker 03: With regard to the communications that were sent and the emails, if you were to look to the record on page starting, for example, on A507, the response sent to Mrs. Smith was, [00:35:55] Speaker 03: We have not received any response to our communication below dated December 23, 2014. [00:36:00] Speaker 03: A509, please advise the status of the award. [00:36:05] Speaker 03: We never received a response to our communication advising you that we need to submit revised pricing. [00:36:11] Speaker 03: A510, the base year ends on March 31st of March. [00:36:14] Speaker 03: Will the current matter be resolved by then? [00:36:17] Speaker 03: What is the status? [00:36:18] Speaker 03: If you'll note, in two of those communications, we never discussed the fact that we need to submit revised pricing. [00:36:24] Speaker 03: We asked the question very specifically, could you answer our question? [00:36:28] Speaker 03: Because in fact, WIT did, and I think it's important to note that they were never given the opportunity to revive their offer because the government refused to respond. [00:36:39] Speaker 03: If in fact WIT had been informed, your offer [00:36:44] Speaker 03: is withdrawn because you have refused to extend. [00:36:49] Speaker 03: That would have given Whit the opportunity it wanted to extend and revive. [00:36:54] Speaker 03: And these communications were intended to communicate that intent to the agency, while in fact Whit did not have a chance to in fact revive its offer that is correct. [00:37:06] Speaker 03: In the record, you will see, if you look at the response from Ms. [00:37:08] Speaker 03: Smith, I apologize for the delay in responding. [00:37:11] Speaker 03: This is A511. [00:37:13] Speaker 03: Hopefully the matter will be resolved soon. [00:37:14] Speaker 03: I will talk to the contracting officer to determine what the government will do if the matter is not resolved by March 31st of March 2015. [00:37:23] Speaker 03: Due to the numerous protests, we are having to forward the package to headquarters for review. [00:37:27] Speaker 03: That would indicate an intent that the government will be getting back to it. [00:37:31] Speaker 03: And the fact that the government kept wit in the dark and deliberately did so until the actual award of the contract is [00:37:38] Speaker 03: is, in fact, the government's error, that it was unreasonable for the government to deceive Witt in that way, to deceive someone where, again, it is the incumbent contractor with a substantially lower price. [00:37:49] Speaker 03: There is every indication that the government would have been advantaged by simply allowing or asking Witt the question. [00:37:58] Speaker 03: And in fact, that is the problem in this case. [00:38:01] Speaker 03: Any other and no remaining questions? [00:38:03] Speaker 05: Well, you need to answer Judge Morris' question about the bridge, whatever that was. [00:38:08] Speaker 03: I will look into it. [00:38:09] Speaker 03: My understanding is from my communications with the Smiths is that, number one, it is a very interesting Christmas holiday. [00:38:15] Speaker 03: And two, I do not think that is the same Smith family. [00:38:18] Speaker 03: But I will very much get that to you. [00:38:19] Speaker 03: Thank you very much. [00:38:21] Speaker 00: OK. [00:38:21] Speaker 00: Thank you. [00:38:22] Speaker 00: Thank you all. [00:38:22] Speaker 00: The case is taken under submission.