[00:00:00] Speaker 04: versus United States. [00:00:53] Speaker 04: Please proceed, Mr. Gordon. [00:01:00] Speaker 00: May it please the court. [00:01:03] Speaker 00: The issue of standing in a bid protest depends on whether the plaintiff is an interested party. [00:01:10] Speaker 00: The Court of Federal Claims erred by imposing an additional standing test on Cleveland assets and dismissing its claim that the request for lease proposals [00:01:23] Speaker 00: exceeded the congressional authorization on the grounds that Cleveland Assets is not within the zone of interest protected by 40 USC 3307. [00:01:34] Speaker 00: This ruling runs directly contrary to the decision of this court in the Khaki case in 1983, where [00:01:50] Speaker 00: The government raised the same zone of interest argument in a bid protest, saying, well, the particular... Sure, but that was a breach of contract case. [00:02:02] Speaker 03: You don't have to show zone of interest for breach of contract. [00:02:06] Speaker 03: You show it for statutory violation cases. [00:02:09] Speaker 00: The Khaki was a breach of contract case, Your Honor, but the other federal circuits that were doing scandal bid protests promptly adopted the reasoning of Khaki [00:02:19] Speaker 00: with respect to scandal. [00:02:21] Speaker 02: But that doesn't make sense when the claim is directed to a statutory provision. [00:02:25] Speaker 02: It could be a different rule that applies. [00:02:27] Speaker 02: Of course, zone of interest isn't going to apply to a contractual obligation. [00:02:31] Speaker 00: Well, in the National Maritime Union case, the D.C. [00:02:35] Speaker 00: Circuit said that the zone of interest in prudential standing was resolved by a bidder's right to have a legally valid procurement process. [00:02:49] Speaker 03: Let me ask you this, because a lot of those DC Circuit cases seem to rely on a much more permissive standing doctrine that's certainly been, I think, at least not explicitly overruled and abrogated by more recent modern Supreme Court standing doctrine. [00:03:08] Speaker 03: So this statute we have today, we're enacted, and we don't have the history of Scanwell and Khaki and all the confusion between [00:03:19] Speaker 03: where and when and how you can file a protest. [00:03:22] Speaker 03: But this was the first time you could file a bid protest in the Court of Federal Claims based upon the authorization in B1, which says exactly what it says. [00:03:32] Speaker 03: Would the modern Supreme Court standing precedent require application of a zone of interest rule? [00:03:39] Speaker 00: Well, let me take that head on, Your Honor. [00:03:41] Speaker 00: The two most recent Supreme Court decisions dealing with zone of interest are the Luxmark case [00:03:48] Speaker 00: And then last year, the Bank of America case. [00:03:51] Speaker 00: And in both of those cases, the Supreme Court said that the issue of prudential standing is perhaps a bit of a misnomer, but that the key issue is whether a plaintiff comes, whether a plaintiff is within the zone of interest depends on whether a legislatively conferred cause of action [00:04:17] Speaker 00: encompasses the particular plaintiff's claim. [00:04:21] Speaker 00: Right. [00:04:22] Speaker 00: That's the heart of it. [00:04:23] Speaker 03: So let's apply that test to 3307. [00:04:25] Speaker 00: No, but that's the mistake there is that the concurrence of the claim is 28 USC 1491, not 40 USC 3307. [00:04:36] Speaker 03: Wait, are you saying that 1491 B creates a cause of action? [00:04:41] Speaker 00: It provides jurisdiction and it is also... No, that's not the same thing. [00:04:45] Speaker 00: It does both, Your Honor. [00:04:47] Speaker 03: I thought that the Supreme Court and our Court had been very clear that all that 1491B does is provide jurisdiction. [00:04:53] Speaker 03: That's certainly true for the Tucker Act in general, isn't it? [00:04:57] Speaker 00: It may be for the Tucker Act in general, but if we look at standing, this Court's precedent starting with... I'm not asking. [00:05:05] Speaker 03: This is it. [00:05:05] Speaker 03: Stick with my hypothetical. [00:05:07] Speaker 03: I'm not looking at past precedent on how we've interpreted the interplay between [00:05:12] Speaker 03: scan well and implied contract theory. [00:05:14] Speaker 03: I'm looking at this. [00:05:16] Speaker 03: They enact this specific statute authorizing claims to be filed here jurisdictionally. [00:05:22] Speaker 03: You still have to have some other cause of action. [00:05:24] Speaker 00: No, you don't, Your Honor. [00:05:26] Speaker 03: And that's why the Court has said in the ad... Let me add one more, since you seem to be disputing this, although I don't know why. [00:05:33] Speaker 03: Let me add one more piece to my hypothetical. [00:05:36] Speaker 03: The Supreme Court has explicitly said [00:05:38] Speaker 03: 1491 is not a cause of action. [00:05:41] Speaker 03: It is only a jurisdictional statute. [00:05:43] Speaker 03: We have to look elsewhere to the cause of action. [00:05:46] Speaker 03: In this case, the cause of action would be a right to sue under 3307 for violation of that statute. [00:05:57] Speaker 00: I don't agree with that, Your Honor. [00:05:59] Speaker 03: I know you don't agree with that, but that's part of my hypothetical. [00:06:02] Speaker 03: You cannot rely on 1491b for a cause of action. [00:06:06] Speaker 03: So the only other place to look is 3307. [00:06:11] Speaker 03: Do you think that 3307 gives you an implied right to sue for violation of that statute? [00:06:19] Speaker 03: In other words, are you in the zone of interest for 3307? [00:06:28] Speaker 00: Well, the court of federal claims in the Springfield parcel case upheld exactly that claim. [00:06:37] Speaker 03: I've held exactly what claim? [00:06:39] Speaker 00: A claim based on 40 USC 3307. [00:06:42] Speaker 03: Yes, but didn't they do it based upon, look, I'm trying to get past all this convoluted, what I think you were relying on is legislative history and the like to freeze a certain outdated standing doctrine. [00:06:56] Speaker 03: I'm trying to look at this. [00:06:58] Speaker 03: If we were looking at this de novo, without all that complicated history, would we be required under Supreme court precedent to look at 3307? [00:07:07] Speaker 03: and determine whether you are within the zone of interest to sue under that statute? [00:07:12] Speaker 00: I don't think so. [00:07:13] Speaker 00: Because what the court has done and is doing, starting with the AFGE decision and coming forward since then, and these are all under what you would call the modern Supreme Court standing decisions, is looking to the language and deciding standing on bid protests [00:07:34] Speaker 00: This court has said the key to that is the language of 1491B itself, which requires you to be an interested party. [00:07:43] Speaker 03: But that's determining what interested party is. [00:07:47] Speaker 03: In none of those cases, at least I haven't seen any of those cases, was there any dispute over whether the underlying statute or regulation was one that the protester would fall within the zone of interest? [00:07:59] Speaker 03: They're almost all typically the regular [00:08:02] Speaker 03: run of protest statutes we see, either CICA or conflict of interest statutes for procurements or the like. [00:08:11] Speaker 03: So there's never been a case like this, at least as I can see, where there's any substantial question of whether the statute issue was enacted to protect protestors. [00:08:22] Speaker 00: Your Honor, as I say, the Springfield parcel case is directly on point. [00:08:28] Speaker 03: But that's not our case. [00:08:29] Speaker 00: No, it is not. [00:08:30] Speaker 03: And it doesn't rely on [00:08:33] Speaker 03: It relies on CACI, doesn't it? [00:08:36] Speaker 00: The what? [00:08:37] Speaker 00: The Springfield parcel case? [00:08:38] Speaker 00: No, it doesn't. [00:08:39] Speaker 03: What does it rely on? [00:08:41] Speaker 00: It relies on, it addresses standing by doing the interested party analysis and then moving on and talking about whether the protester had a cause of action based on a violation of 40-3307 and it found it did because the procurement in that case exceeded, the space procured in that case exceeded [00:09:01] Speaker 00: what had been authorized by Congress in the perspectives. [00:09:05] Speaker 04: I'm struggling to just understand this standing and how your client is within the zone of interest. [00:09:14] Speaker 04: When you look at the statute, this was not a statute adopted to protect the procurement process or to protect bidders. [00:09:22] Speaker 04: This is nothing more than a tug of war between the legislature and the executive over the purse. [00:09:28] Speaker 04: We need to authorize any payments more than three million. [00:09:31] Speaker 04: My husband and I have the same rule. [00:09:32] Speaker 04: We got married. [00:09:33] Speaker 04: We set an amount. [00:09:34] Speaker 04: You can spend any, and you can buy anything you want as long as it's under a certain amount. [00:09:37] Speaker 04: If it's over that amount, you got to check it with me first, and vice versa. [00:09:41] Speaker 04: It seems to me that that's a decision between the executive and the legislature, and it quite frankly has absolutely nothing to do with protecting the bidders and individual procurement. [00:09:53] Speaker 00: That may be, your honor, but the point of bid protests, the whole point of bid protests, and the history, I'm sorry, your honor, I disagree, the history is critical to this, is that Congress, and it did the same when it enacted the Administrative Dispute Resolution Act in 1996. [00:10:11] Speaker 00: But the established law which Congress carried forward was that you have as a bidder [00:10:20] Speaker 00: a right to a legally valid procurement process. [00:10:24] Speaker 00: And if you are an interested party, you can say, I didn't get the process because of a violation, even though without regard to whether the regulation or the law that you say was violated had been specifically passed for your benefit. [00:10:43] Speaker 03: And what's your support for that in the legislative history? [00:10:47] Speaker 03: What's your support [00:10:49] Speaker 03: Specifically, because I think this would be a very unusual decision for us to say that Congress intended to freeze in place an outmoded view and a very liberal view of standing when the Supreme Court in the decades since those decisions has made a much narrower view of standing. [00:11:10] Speaker 00: Well, standing of course deals with a plethora of cases. [00:11:14] Speaker 00: Bid protests are a narrow category of cases. [00:11:18] Speaker 00: We're talking about [00:11:19] Speaker 03: Right. [00:11:19] Speaker 03: That's why I'm asking, where is your support in the legislative history? [00:11:22] Speaker 00: It's cited in our briefing. [00:11:24] Speaker 03: What does it say? [00:11:25] Speaker 03: Because all I can see is various kind of vague references to where telling the Court of Federal Claims to apply scan well. [00:11:33] Speaker 03: And we don't intend to change the rules about the scan well cause of action. [00:11:38] Speaker 00: I think that that's correct, Your Honor. [00:11:40] Speaker 00: That's a fair description of what the legislative history said, which is, Congress said, we want the courts to continue doing what they've been doing under scan well. [00:11:48] Speaker 00: only, we're now going to enable the Court of Federal Claims to start doing it. [00:11:53] Speaker 00: And ultimately, in several years, the Court of Federal Claims will become the only court that does it. [00:11:57] Speaker 03: So let me ask you again, hypothetically, instead of going to the Court of Federal Claims to resolve this split, they had decided, we're just going to keep these all APA cases. [00:12:06] Speaker 03: These are all APA cases going forward, and the district courts understand well. [00:12:11] Speaker 03: And we don't mean to change the law otherwise. [00:12:13] Speaker 03: Subsequently, the Supreme Court has clearly modified standing requirements under the APA. [00:12:19] Speaker 03: Would that legislative history saying, we intend to keep the Scanwell doctrine in place, be enough to freeze that version of standing, even despite recent Supreme Court reinterpretations of standing under the APA? [00:12:34] Speaker 00: Because, as I said to start in addressing your honor's question, the Supreme Court in its two most recent pronouncements within the last three years have said the key issue is [00:12:45] Speaker 00: What did Congress intend? [00:12:47] Speaker 03: Yeah, but under the APA, they don't look at just the APA. [00:12:50] Speaker 03: They look at the underlying statutory violation. [00:12:54] Speaker 00: I'm sorry, Your Honor. [00:12:55] Speaker 03: No, I get it. [00:12:56] Speaker 03: Thank you for not interrupting. [00:12:57] Speaker 03: Under the APA, they look at the underlying statutory violation to see whether it was intended to create a zone of interest for your thing. [00:13:05] Speaker 03: Why isn't that same theory applicable here? [00:13:07] Speaker 03: Because if you look... It is even better because the APA actually does create a cause of action. [00:13:14] Speaker 03: which 1491B does not. [00:13:16] Speaker 00: Well, if the court looks at Bennett v. Spears, which is one of the seminal cases on it, there were a couple of claims in that case. [00:13:28] Speaker 00: And in dealing with the APA claim, and the APA, of course, is exceptionally broad, says any citizen, not even a citizen, any person who's agreed by agency action can bring the cause of action. [00:13:42] Speaker 00: that in Bennett v. Spears, as you correctly noted, they said, well, we'll look at the following provision. [00:13:50] Speaker 00: But in that same decision, the first cause of action they addressed was under the Endangered Species Act. [00:13:56] Speaker 00: And there, they said, no, we'll just look to the cause of action itself. [00:14:00] Speaker 00: We're not going to look at the subsequent provision. [00:14:02] Speaker 00: And they said the cause of action allowed anyone to bring. [00:14:07] Speaker 03: No, I get it. [00:14:08] Speaker 03: Look. [00:14:10] Speaker 03: We interpret 1491b as specifically creating a cause of action. [00:14:16] Speaker 03: I think you have a very good argument, but I don't think that's the argument you're making, because I think it's very clear that the Supreme Court and this Court have repeatedly said that 1491b is just a jurisdictional provision. [00:14:28] Speaker 03: It doesn't create a cause of action. [00:14:29] Speaker 00: Well, then the question becomes where do you have a right [00:14:38] Speaker 00: to protest bids. [00:14:40] Speaker 00: The seminal source, aside from the contract, which was always in this court, was scandal, which said it was under the APA. [00:14:50] Speaker 00: The court in the... Wait, I don't disagree with you. [00:14:55] Speaker 03: I think that's right. [00:14:56] Speaker 03: It means that under the modern bid protest statute, you have the right to challenge a statute or regulation that you believe was violated or unfairly applied. [00:15:07] Speaker 03: But also under the modern APA jurisprudence, the Supreme Court has now told us to look at the specific statute being alleged as violated and determine whether you fall within the zone of interest. [00:15:19] Speaker 03: I don't understand why that evolution of standing doctrine for APA shouldn't carry over to the bid protest. [00:15:26] Speaker 00: Because the protest is much narrower than the APA. [00:15:29] Speaker 00: It's limited by its nature to only bidders and interested parties in [00:15:37] Speaker 00: in bids or solicitations, which we clearly are. [00:15:40] Speaker 00: That's undisputed. [00:15:42] Speaker 03: But it's still an APA-like cause of action. [00:15:44] Speaker 00: It has similarities, but the APA is exceedingly broad, Your Honor. [00:15:49] Speaker 00: All other statutes deal with much narrower categories of litigants. [00:15:54] Speaker 03: I don't really understand how that makes any distinction, because it would make a distinction if the cause of action was in 1491, but if it's not, then the fact that [00:16:07] Speaker 03: 1491 is limited to interested parties, jurisdictionally doesn't do anything about looking at the cause of action and determining whether you have standing to assert a... I'm sorry, I've taken you way over your time. [00:16:19] Speaker 03: I've got your answer. [00:16:29] Speaker 04: Thank you. [00:16:29] Speaker 01: Mr. Camp, please proceed. [00:16:31] Speaker 01: May it please the court? [00:16:33] Speaker 01: First of all, just to point out, Cleveland assets actually conceded an oral argument on pages 16 and 17 of the record that they did not fall within the zone of interest when it comes to prudential standing. [00:16:44] Speaker 01: And then also throughout the- Sure, I get that. [00:16:47] Speaker 03: This case I find very complicated. [00:16:49] Speaker 03: And part of it is the weird interplay between how big protests evolved and Scanwell and the ADRA and the like. [00:16:56] Speaker 03: Why isn't it, at least for this case, even though 1491 generally isn't read as creating a cause of action, appropriate to read 1491B at least as both providing jurisdiction and creating a cause of action for interests and parties? [00:17:12] Speaker 01: The simple answer is, Your Honor, is that this is an appropriation statute and nowhere in the statute in 3307. [00:17:16] Speaker 03: No, no, I'm not talking about 3307. [00:17:18] Speaker 03: I'm talking about 1491B. [00:17:21] Speaker 03: Why is it 1491B? [00:17:23] Speaker 03: If 1491B said, [00:17:26] Speaker 03: we are creating a cause of action for people to challenge government procurement decisions. [00:17:31] Speaker 03: And the standard is any interested party may challenge any procurement regulation. [00:17:38] Speaker 03: Then why isn't that enough to give standing for any interested party to challenge any procurement statute? [00:17:46] Speaker 01: Because as Your Honor mentioned earlier, the Supreme Court precedence has evolved. [00:17:50] Speaker 01: And there has been a versus spare where the Supreme Court has said that there has to be a direct... [00:17:55] Speaker 03: Maybe I'm being confusing. [00:17:56] Speaker 03: I'm trying to do the same thing that I did with your friend on the other side, but altered the language of the statute a little bit. [00:18:04] Speaker 03: And so the Congress just enacted 1491b, because prior to my hypothetical world, protesters had no right to challenge a government decision in court. [00:18:17] Speaker 03: And they wanted to give them a right to challenge a decision in court. [00:18:20] Speaker 03: So they enacted 1491b that says, [00:18:23] Speaker 03: We are now creating cause of action for protestors to challenge cases. [00:18:28] Speaker 03: And cause of action is any interested party can challenge application of procurement statute or regulation in the court of federal claims. [00:18:37] Speaker 03: That creates a cause of action. [00:18:39] Speaker 03: It defines the parties that can sue, and it defines what they can sue over. [00:18:44] Speaker 03: If we read that statute that way, don't they have standing under that view of the statute? [00:18:51] Speaker 03: I understand that's not your view of the statute, but why wouldn't that be sufficient? [00:18:54] Speaker 01: I mean, there's the concept of just regular standing, where it's a prospective bidder and then also showing some form of prejudice. [00:19:03] Speaker 01: But here, I would still argue that even 1491b, when you look at it, it says any alleged violation of statute of regulation in connection with the procurement or proposed procurement. [00:19:14] Speaker 01: But I don't see how that could possibly create a separate cause of action itself, because here, [00:19:20] Speaker 01: The procurement is the request for lease proposals, the RLP, and that has nothing to do with 3307. [00:19:26] Speaker 04: And Cleveland assets... I want to hear you say more about that argument because... So is your view that even if they could challenge statute or reg, and even if somehow 1491 created that right, that this isn't the kind of statute or reg [00:19:46] Speaker 04: that is covered by 1491 because this statute has absolutely nothing to do with procurement and is only an appropriation statute. [00:19:53] Speaker 04: It's only a tug of war between the executive and the legislative over the purse. [00:19:57] Speaker 04: It has absolutely nothing to do with procurement or proposed procurement. [00:20:01] Speaker 01: That's correct. [00:20:01] Speaker 01: And also, Your Honor, when it comes to the prospectus pursuant to 3307, it never actually says a prospectus has to be acted upon even. [00:20:10] Speaker 01: Um, and then it's also, I mean, that's really just part of the internal appropriations making process. [00:20:15] Speaker 03: Did you make that argument below that 3307 wasn't a procurement statute? [00:20:20] Speaker 01: Um, we had argued that it was an appropriation statute, your honor. [00:20:23] Speaker 03: But the, but the trial court didn't rely on that fact. [00:20:26] Speaker 01: Um, the trial court actually in, um, and she was, the trial court was correct in noting that, um, here at least when it comes to that 3307, at least when it comes to potential standing, [00:20:38] Speaker 01: And that's at page 18 of the record, that section 1491 is not intended to create private attorneys general to enforce laws of broad application. [00:20:47] Speaker 01: And that's what we have here, where this is 3307 is, again, it's for lease to appropriate funds for leases over $1.5 million. [00:20:58] Speaker 01: And that's certainly a lot of money in a lot of different parties that are involved when it comes to GSA leasing different buildings. [00:21:05] Speaker 01: But nowhere does it have anything to do with [00:21:08] Speaker 01: actually extending that, that any specific contractor, well, because if you could look at it this way, what if it kind of goes back to there's nothing that requires, again, that requires GSA to actually act on a prospectus and you could have a party saying, well, you've got a prospectus and you haven't acted on it yet, you need to do that. [00:21:26] Speaker 01: So if you were to find that there is somehow, that somehow Cleveland Assets has Prudential standing with 3307, [00:21:33] Speaker 01: It would, as the court in VFW said, open Pandora's box to basically any protester could try and go after any statute that it wanted to have the government act in a certain way. [00:21:47] Speaker 02: And then in addition, a situation where no prospectus at all was provided to Congress and yet GSA went out, they went ahead, the government went ahead and [00:22:00] Speaker 02: entered into a contract without getting approval at all from Congress. [00:22:04] Speaker 02: Would a party then have a zone of interest under 3307? [00:22:08] Speaker 01: I mean, I think this again goes back to the separation of powers concept, even, where it's not a contractor's job or a potential big protestor's job to chastise GSA, so to speak. [00:22:19] Speaker 02: Even though that contract might be illegal or it might, in a situation like that, where this process wasn't followed at all. [00:22:30] Speaker 01: Well, and Your Honor, actually, there is a separate. [00:22:33] Speaker 01: So 3307 just gives the appropriations. [00:22:36] Speaker 01: But the actual authority to enter into leases doesn't come from 3307. [00:22:40] Speaker 01: And that comes from 40 USC 585. [00:22:42] Speaker 01: And so even in this instance, no, that wouldn't give a party prudential standing, so to speak, to challenge it under 3307, because that's just for the appropriations. [00:22:52] Speaker 01: Now as to whether GSA illegally enters into a contract, that's a separate statute, which is not an issue in this case, at least. [00:22:58] Speaker 01: That's 585. [00:23:00] Speaker 01: if that answers your question. [00:23:03] Speaker 01: Thank you. [00:23:03] Speaker 01: And then if you'd like me to? [00:23:05] Speaker 04: Yes. [00:23:07] Speaker 04: I'm wondering, why are we talking so much about the zone of interest? [00:23:12] Speaker 04: Why isn't it the case that 1491 does, to the extent it expressly overrides it, expressly overrides it a general concept of zone of interest? [00:23:22] Speaker 04: Because it says, 1491 says, limited to interested parties, to a solicitation by the [00:23:29] Speaker 04: federal agency forbids, right? [00:23:30] Speaker 04: And we know who interested parties are, right? [00:23:34] Speaker 04: So that's already a narrowing of those people who can be involved in a 1491 action. [00:23:38] Speaker 04: And then any statute or reg, if it's going to be challenged, has to be in connection with that procurement or proposed procurement. [00:23:45] Speaker 04: Again, like a further narrowing of the universe of statutes that can be considered. [00:23:51] Speaker 04: So why isn't it fair to possibly say, [00:23:55] Speaker 04: Congress has expressly overrode a general prudential standing because they have articulated very narrow and precise requirements for standing under 1491. [00:24:07] Speaker 04: I kind of think that's your opposing counsel's argument, maybe not exactly the way I said it, but he does say that, you know, he doesn't think the zone of interest applies. [00:24:17] Speaker 04: The rest may be my supplement. [00:24:19] Speaker 04: But in any event, you know, why isn't that the case? [00:24:22] Speaker 04: It says interested parties, [00:24:24] Speaker 04: And it says, only statutes related to the procurement. [00:24:26] Speaker 04: Why doesn't that solve the even? [00:24:28] Speaker 04: I mean, it would resolve this case, quite frankly, because this is not a statute related to the procurement. [00:24:33] Speaker 04: And then we wouldn't even need to reach the zone of interest stuff. [00:24:35] Speaker 04: I mean, I don't understand. [00:24:37] Speaker 04: Why doesn't the statute articulate who can bring suit under what precise set of circumstances such that some general zone of interest theory doesn't have to be looked to? [00:24:47] Speaker 01: Well, Your Honor, the trial court did look at that and determined that, [00:24:51] Speaker 01: 1491b did not actually expressly negate prudential standing, which the Supreme Court in Bennett v. Speer and Lexmark recently said it has to expressly negate. [00:25:00] Speaker 04: I understand the trial court looked at it and said it didn't. [00:25:02] Speaker 04: This is a case of statutory interpretation that I reviewed de novo, so it's not very helpful to me. [00:25:06] Speaker 04: My question to you is why shouldn't I read it that way? [00:25:09] Speaker 01: Because when looking at 1491, any alleged violation of statute or regulation in connection with a procurement or a proposed procurement, I still think that there has to be, even if you're on a word to read it that way, there still has to be some [00:25:22] Speaker 01: not just tangential connection, which is what we have here, where it's so far beyond, not even related whatsoever, really, because it's an appropriation statute versus giving any actual authority. [00:25:31] Speaker 03: Yeah, but now you're arguing, see, now you're arguing whether the statute is a procurement statute or not, not whether they had standing to challenge it, if it is a procurement statute. [00:25:42] Speaker 03: They're clearly tied up together. [00:25:44] Speaker 03: I mean, whether they're within the, if it was a procurement statute intended [00:25:52] Speaker 03: to be applicable to bidders, then it would be within the zone of interest. [00:25:59] Speaker 04: I think Judge Hughes just kind of crystallized for me the point in my mind, which is why aren't these two completely overlapping circles, right? [00:26:11] Speaker 04: Zone of interest requires it has to be a statute kind of for your benefit, or that Congress intended you to be able to sue under. [00:26:21] Speaker 04: This statute says only interested parties and statutes related to the procurement. [00:26:27] Speaker 04: I can't think of a statute related expressly connected to a procurement that wouldn't be within the zone of interest. [00:26:34] Speaker 04: Do you follow me? [00:26:34] Speaker 04: It's hard for me to imagine how those two circles aren't completely overlapping. [00:26:39] Speaker 04: And then if that's true, why do we need to go to the more amorphous body of law of zone of interest if the statute on its face very clearly articulates the circumstances? [00:26:49] Speaker 01: Well, I think, Your Honor, that this is probably a very rare occurrence for even this issue to come up with credential standing, since it's an appropriation statute. [00:26:57] Speaker 01: Wouldn't it almost be a null set? [00:26:59] Speaker 03: I mean, you argue that this isn't a procurement statute, right? [00:27:03] Speaker 03: I don't know that you've made that clearly enough, but I don't know that you've waived it. [00:27:07] Speaker 03: I mean, you've made it through the zone of interest argument. [00:27:09] Speaker 03: But if you just argued, setting aside standing, this is not a procurement statute, and we agreed with you, then [00:27:18] Speaker 03: That ends the case? [00:27:19] Speaker 03: That ends the case, doesn't it? [00:27:21] Speaker 03: And why isn't that almost the same inquiry as zone of interest, which is procurement statutes are ones that are intended to protect bidders largely. [00:27:31] Speaker 03: I mean, sometimes they set rules under which the agencies have to do procurement, but at least implicitly, that protects bidders. [00:27:38] Speaker 03: Whereas this is, as you say, a separation of power statute and an appropriation statute. [00:27:44] Speaker 03: So if it's not a procurement statute, [00:27:48] Speaker 03: then it can't be within the zone of interest. [00:27:51] Speaker 01: I would agree with Your Honor. [00:27:52] Speaker 01: And then also just to point out, too, the other major issue in the case is obviously the reasonableness of the rent cap. [00:27:58] Speaker 01: And again, the trial court did find that Cleveland Assets did have standing to challenge the reasonableness of the rent cap, but also correctly found that throughout, and this is at pages 17 and 18. [00:28:10] Speaker 04: You realize he didn't address that in his opening, but you've now addressed it, so now he gets to address it. [00:28:14] Speaker 04: So go ahead and keep going, but you might want to think about that in the future. [00:28:18] Speaker 01: But Your Honor, just to sum up though, there are many places in the record that do support the reasonable rent rate, which occurs at 15.15 and 15.53 of the record in 2010, as well as the market survey in 2016, which is at 10.46 through 49 of the record. [00:28:40] Speaker 01: And in addition, there were also market surveys in 2017 that also supported the rental rate. [00:28:48] Speaker 01: And again, if there are additional questions about whether there's a rational basis, the trial court did find that throughout the whole process, GSA had actually reasonably determined that the rental rate was rational in this market. [00:29:08] Speaker 04: Thank you very much. [00:29:11] Speaker 04: We'll restore two minutes of rebuttal time. [00:29:14] Speaker 04: Please restore two minutes of rebuttal time for Mr. Gordon. [00:29:22] Speaker 00: I would point the court on the 1491 to the provision in B4 where it says, in any action under this subsection, the court shall review the agency's decision pursuant to the standard set forth in section 706 of Title V. That specifies a standard of review. [00:29:44] Speaker 00: That is going beyond just a provision of jurisdiction. [00:29:48] Speaker 03: But that's the APA. [00:29:50] Speaker 00: It's incorporating that by reference, but 1491 is calling that up. [00:29:54] Speaker 03: And you conceded that the modern day standing jurisprudence applies to the APA. [00:29:59] Speaker 03: So doesn't that just create even more? [00:30:01] Speaker 00: No, because for the reasons that Judge Moore articulated, that it specifies who has standing. [00:30:08] Speaker 00: It specifies very specifically people involved in a protest that are challenging [00:30:14] Speaker 00: any alleged violation of statute or regulation in connection with the procurement. [00:30:19] Speaker 03: I get that. [00:30:19] Speaker 03: But I mean, I know you're aware of this precedent that says the Tucker Act is just jurisdictional. [00:30:25] Speaker 03: It doesn't create causes of actions. [00:30:27] Speaker 03: So I don't know that they specifically addressed before, but we would have to find that this one specific subset of the Tucker Act is indeed both jurisdictional and cause of action. [00:30:38] Speaker 00: I would agree with that. [00:30:40] Speaker 00: I agree with that. [00:30:41] Speaker 00: Now, I want to turn [00:30:44] Speaker 00: Unless the court has further questions, I want to turn briefly to this issue about the $26 rent cap. [00:30:49] Speaker 03: No, I don't want to hear about that. [00:30:50] Speaker 03: I want to hear at least one thing about whether if we agree that this isn't a procurement statute, then it doesn't really matter whether we resolve this on standing or the like. [00:31:02] Speaker 03: You can't sue under 1491B even if you have a cause of action because it's not a procurement statute. [00:31:07] Speaker 00: Well, it says that it has to be in connection with the procurement. [00:31:12] Speaker 00: Any statute in connection with the procurement. [00:31:14] Speaker 00: And I would submit that that goes to the merits rather than standing. [00:31:18] Speaker 00: We lost on standing. [00:31:20] Speaker 00: We could lose. [00:31:20] Speaker 00: We can yet lose on this claim. [00:31:22] Speaker 00: I'm not suggesting that we can't. [00:31:23] Speaker 04: No, this is still a standing question. [00:31:25] Speaker 04: Because if what you're raising is a claim that can't possibly fall under 1491 because it's not the alleged violation, it has nothing to do with preferring. [00:31:37] Speaker 00: All right, fair enough. [00:31:38] Speaker 00: Fair enough. [00:31:38] Speaker 00: But that's a very capacious standard. [00:31:41] Speaker 00: And the Supreme Court, in its most recent decision, [00:31:45] Speaker 00: The Bank of America said in construing these provisions, it's arguably within zone of interest. [00:31:53] Speaker 04: So at this point, it seems to me the benefit of the doubt was... You're using the word zone of interest. [00:31:59] Speaker 04: Tell me how an appropriation statute, which has nothing to do with procurements in particular, is nonetheless in connection with the procurement statute. [00:32:08] Speaker 04: And if that's true, then heck, the entire appropriation bill [00:32:13] Speaker 04: is now a fair game. [00:32:14] Speaker 00: No, Your Honor. [00:32:16] Speaker 00: I understand your parade of horribles argument, but this particular statute is tied specifically to procurements, procurements of lease space. [00:32:28] Speaker 00: And it says that if you're going to lease space, it's going to cost more than $2.85 million per year. [00:32:34] Speaker 00: You've got to come up to Congress and get advance approval. [00:32:38] Speaker 00: So it's tied. [00:32:39] Speaker 03: That happens in every aspect of the appropriations process. [00:32:43] Speaker 03: If the DOD wants to go out and acquire a major new defense system, they don't just ask for a big lump. [00:32:50] Speaker 03: They don't ask for $20 billion and say, let us spend it how we want to. [00:32:54] Speaker 03: They ask for a specific line item and say, we want to spend $20 billion or $1 billion on a whole new line of aircraft carriers. [00:33:03] Speaker 03: And if Congress had a statute that says you can only do this if you meet these criteria, then you could challenge that too under your theory. [00:33:12] Speaker 00: You'd have standing. [00:33:18] Speaker 00: Yes, if you could show a prejudicial violation, and I'll go back to CACI because the court made the point there that the bidders are the ones feeling the pinch and they're the ones that are going to object to the violations of law. [00:33:36] Speaker 00: So, in effect, the bidders are akin to, if you will, private attorney generals. [00:33:41] Speaker 04: Okay, our time is up for today. [00:33:43] Speaker 04: I thank both counsel for their argument. [00:33:44] Speaker 04: The case is taken under submission.