[00:00:07] Speaker 03:
The case for argument is 17-1941, Progressive Industries v. United States.

[00:01:11] Speaker 00:
Mary April on behalf of Aggressive Industries.

[00:01:16] Speaker 00:
This is a slightly different case than the last two that we heard.

[00:01:20] Speaker 00:
This is a case that I would like to set up the landscape for the court just a couple of minutes and then discuss the reasons that the court should be reversed.

[00:01:37] Speaker 00:
In this particular case,

[00:01:39] Speaker 00:
Progressive was a woman-owned small business.

[00:01:43] Speaker 00:
They had won a bid protest.

[00:01:45] Speaker 00:
That's the important issue here, that they had won a bid protest.

[00:01:51] Speaker 00:
Against the VA, which had granted contracts to unqualified bidders, Rouse and Irish Oxygen, the VA contracting officer, for reasons unknown, simply was determined to award the contracts to those other two bidders.

[00:02:10] Speaker 00:
The court entered a scathing 37-page opinion that described how the VA helped Razz and Irish along.

[00:02:22] Speaker 04:
So I think we understand what happened here, and then the Kingdom War opinion issue, and what happened.

[00:02:31] Speaker 04:
And admittedly, your client was caught in a bad position.

[00:02:38] Speaker 04:
And I can see that.

[00:02:39] Speaker 04:
I guess the first question I would have is, why didn't you notify the court to the Kingdomware opinion as soon as it issued and make arguments then?

[00:02:51] Speaker 00:
For a couple of reasons.

[00:02:52] Speaker 00:
The Kingdomware case really had nothing to do with our particular issue.

[00:02:57] Speaker 00:
The Kingdomware case only decided that the rule of two would have to apply to

[00:03:07] Speaker 00:
all contracting not just until the VA met a contracting rule and it decided that the rule of two applied to federal supply schedule points.

[00:03:22] Speaker 03:
Let's assume that we disagree at least with the second point, that Kingdomware is best read to be limited to the FSS.

[00:03:31] Speaker 03:
So if that's the case,

[00:03:33] Speaker 03:
What other reason did you have for not notifying the court of the Kingdom War?

[00:03:39] Speaker 00:
Well, again, because this didn't affect the decision in this particular case.

[00:03:43] Speaker 00:
But the issue with Kingdom War has been that the court did not mention the Kingdom War case until the October 31 opinion.

[00:03:57] Speaker 00:
Neither did the VA, because it wasn't really necessary to either one of us.

[00:04:01] Speaker 03:
Well, can you explain that to me just here?

[00:04:03] Speaker 03:
The two other bidders, there were three bidders in the initial contract.

[00:04:08] Speaker 03:
The two other bidders were two minority-owned veterans.

[00:04:12] Speaker 03:
They would satisfy the rule of two, right?

[00:04:15] Speaker 03:
Yes.

[00:04:15] Speaker 03:
So if Kingdom Ware had been in effect at the time the contract was initially awarded, your client would have been outright because of their two minority

[00:04:27] Speaker 03:
veteran-known bidders, that's the end of the story, no?

[00:04:31] Speaker 00:
No.

[00:04:32] Speaker 00:
At the time that this competition decided to be an open competition,

[00:04:38] Speaker 00:
the rule of two and that statute had already been applied and there weren't two qualified.

[00:04:44] Speaker 04:
The other bidders weren't found eligible because they didn't have the right experience or the amount of experience.

[00:04:50] Speaker 00:
Right, they did not have the past performance.

[00:04:52] Speaker 04:
But Jerry, your form of protest just ran the risk that the VA would, if you won, that they would re-solicit the contract.

[00:05:03] Speaker 00:
Well, when they re-solicited it

[00:05:06] Speaker 04:
I mean, there was always a risk.

[00:05:09] Speaker 04:
We're going to win.

[00:05:09] Speaker 04:
If we win, then the VA, we're running the risk that they're going to re-solicit the contract.

[00:05:16] Speaker 04:
And by this time, you knew during the litigation that the other two bidders were getting the experience that they lacked.

[00:05:26] Speaker 00:
I don't think that that is the way that it should be looked at.

[00:05:28] Speaker 00:
Because if that is the case, then what you're saying is that every time there's a situation where

[00:05:37] Speaker 00:
the veteran-owned businesses come in at some point during the progression, that the VA can just simply change, cancel, re-solicit, and, you know... No, but the VA had the... There was always the risk that the VA was going to re-solicit, if you want.

[00:05:57] Speaker 00:
And we don't believe that that is what should have happened, and that's what this case is about.

[00:06:01] Speaker 00:
The Rule 60B relief from judgment was that the court sent

[00:06:07] Speaker 00:
the opinion back with instructions to act consistently with the opinion, we don't believe that re-soliciting was consistent with her opinion at all.

[00:06:19] Speaker 04:
I would say you're avoiding my question.

[00:06:22] Speaker 04:
I'm not trying to.

[00:06:26] Speaker 04:
You ran the risk.

[00:06:29] Speaker 04:
There was always a risk there that even if you won, that the VA could re-solicit the contract.

[00:06:38] Speaker 00:
I just don't agree with that particular premise.

[00:06:41] Speaker 04:
Well, you don't agree, maybe, that they did re-solicit them.

[00:06:44] Speaker 04:
But the risk was always there.

[00:06:49] Speaker 00:
Not necessarily, because when a contract gets awarded, I guess I don't see it as a risk for the claim.

[00:06:57] Speaker 00:
Well, why?

[00:06:57] Speaker 03:
I mean, what authority does not the Court of Federal Claims have the authority, if they find in your favor,

[00:07:03] Speaker 03:
then they've got to order relief, right?

[00:07:06] Speaker 00:
Yes.

[00:07:06] Speaker 03:
And isn't it really on the table as to whether or not they would want to immediately award it to yours to do a re-evaluation or to do a re-solicitation?

[00:07:16] Speaker 03:
That's one of several options on the Court of Federal Claims' plate, is it not?

[00:07:21] Speaker 00:
And I believe that the Court of Federal Claims had to look at this particular situation and order a re-evaluation, because the rule of two had already been met.

[00:07:34] Speaker 00:
awards had been made, progressive had won the bid protest, then what the judge should have done is to go back and say, all right, you need to go back to the time that the original wrongs were begun, and you should reevaluate the proposals from that point.

[00:07:57] Speaker 03:
And is the difference, I mean, this all comes down to, if you get re-solicited, then you're under the kingdom where, and you're going to get knocked out.

[00:08:08] Speaker 03:
Whereas under the, as a practice come out.

[00:08:10] Speaker 03:
And whereas for the re-evaluation, you wouldn't necessarily.

[00:08:14] Speaker 03:
I mean, the rule of two had already been done.

[00:08:17] Speaker 00:
The rule of two had already been applied, and Progressive was the only qualified bidder.

[00:08:22] Speaker 00:
The court definitely said that

[00:08:25] Speaker 00:
Progressive stood a very substantial chance of obtaining the contract if the VA had acted correctly.

[00:08:33] Speaker 00:
So to permit the VA to engage in these outrageous and egregious errors and then just turn around and say.

[00:08:45] Speaker 04:
And I think the court agreed with you there about these errors were made.

[00:08:52] Speaker 04:
What was the remedy that you were seeking?

[00:08:53] Speaker 04:
You were seeking to vacate

[00:08:55] Speaker 04:
vacate the contract.

[00:08:58] Speaker 00:
The contract was vacated.

[00:08:59] Speaker 04:
The contract was... I mean, that's the remedy you were seeking.

[00:09:03] Speaker 00:
Yes, and to be returned back to the status quo and to the illegality was those two items.

[00:09:10] Speaker 00:
And what the judge didn't do in this particular case was she did not return

[00:09:17] Speaker 00:
the parties back to the status quo, and to the illegality.

[00:09:21] Speaker 04:
And that's the risk you ran, that the court was just simply going to say, in order to return back to where we were, and because you're seeking to vacate the contract, then I'm simply going to seek a resolicitation of the contract.

[00:09:37] Speaker 00:
And we just don't believe that that is an appropriate remedy under the circumstances in this case.

[00:09:42] Speaker 00:
That was why the motion for the Rule 60 relief from judgment

[00:09:46] Speaker 00:
in the first place.

[00:09:47] Speaker 03:
Well, you didn't ask, though, in your prayer for relief, you didn't ask for a re-evaluation, right?

[00:09:53] Speaker 03:
You asked simply that the award, an order directing the VA to award the contract to progressive.

[00:10:02] Speaker 00:
And the court clearly, obviously, saw that she could not do that, said that she could not do that.

[00:10:09] Speaker 03:
So you didn't make an argument for it should be re-evaluated, but under no circumstances should it be re-solicited?

[00:10:17] Speaker 00:
Well, I don't think that became apparent until she issued the October 31 opinion.

[00:10:21] Speaker 03:
Is there anything legally that precludes her under these circumstances from using the option of re-soliciting as opposed to re-evaluating?

[00:10:36] Speaker 03:
Can you point to us like she didn't have the authority to order a re-solicitation?

[00:10:40] Speaker 03:
That's not your position, is it?

[00:10:44] Speaker 00:
I don't think that

[00:10:45] Speaker 00:
she had the authority to do it under these circumstances.

[00:10:49] Speaker 00:
This is a situation where there has been a wrong that has been done and the judge, looking at this, she sent it back and she said in her opinion, I gave them 37 pages worth of direction as to what to do.

[00:11:06] Speaker 00:
That does not contemplate to me that she is saying, re-solicit

[00:11:11] Speaker 00:
just throw it all out and re-solicit the contract.

[00:11:15] Speaker 04:
Right.

[00:11:15] Speaker 04:
The court didn't order the re-solicitation.

[00:11:17] Speaker 04:
The court sent it back onto the VA to take the proceeding.

[00:11:24] Speaker 04:
Why did you file a protest to the new re-solicitation?

[00:11:28] Speaker 00:
I'm sorry?

[00:11:29] Speaker 04:
Why did you not protest the re-solicitation?

[00:11:33] Speaker 00:
Because the progressive was no longer in the competitive range and there are

[00:11:40] Speaker 00:
all kinds of cases on standing that would have created huge problems for us to do that.

[00:11:46] Speaker 00:
I think I'll save my remaining time for rebuttal.

[00:11:56] Speaker 01:
Please support.

[00:11:57] Speaker 01:
Your Honor, I was picking up on the questioning that the court directed at Progressive, particularly the question about why they did nothing.

[00:12:07] Speaker 01:
Your honor, there are several reasons why progressives should have acted when the kingdom were- Why didn't the government notify the court of kingdomware?

[00:12:18] Speaker 01:
Your honor, the issue raised in kingdomware should have put a prudent contractor with the VA on notice that the VA rule of two would have been applied.

[00:12:30] Speaker 03:
And it was- But we're not talking about whether he's on notice now.

[00:12:33] Speaker 03:
We're talking about whether the court's on notice.

[00:12:35] Speaker 03:
And usually, I don't know if there are any rules in that, but usually if an opinion comes out that helps, the side that is helped by the opinion is the one that proceeds to put it before the court.

[00:12:47] Speaker 03:
In this instance, it kind of helped the government in a way, because then they didn't get the relief that they were seeking.

[00:12:54] Speaker 03:
I just don't understand, as between the two sides, is it your view that they had an obligation to bring it before the court, but you did not?

[00:13:02] Speaker 03:
Is it that you both had an obligation and you both failed, but given the circumstances, they're the ones that are going to suffer the consequences?

[00:13:09] Speaker 03:
What's your position?

[00:13:10] Speaker 01:
Our position, Your Honor, is that it was incumbent upon them.

[00:13:13] Speaker 01:
The burden was on the contractor to bring kingdom wear to the trial court's attention because of its concern with the impact.

[00:13:22] Speaker 01:
in this court.

[00:13:23] Speaker 03:
But didn't the VA, didn't the government have an interest in terms of what the impact was?

[00:13:28] Speaker 03:
Are you saying the government had no obligation to bring it before the court, that their rights weren't arguably affected by the decision in Kingdom Way?

[00:13:38] Speaker 03:
The answer is, of course they were, right?

[00:13:39] Speaker 01:
Well, the government would have been applying kingdom wear.

[00:13:42] Speaker 01:
Right.

[00:13:42] Speaker 03:
So why are you saying there's no way, no how, that the government is under any obligation?

[00:13:48] Speaker 03:
The obligation is exclusively on their side and no obligation on yours to bring the case to the court's attention?

[00:13:56] Speaker 01:
Well, given that the contractor is the one that was concerned about an impact,

[00:14:01] Speaker 03:
it was incumbent upon it to raise the Kingdomware decision, particularly given- But they're concerned about the impact, but the government is also impacted by the decision, right?

[00:14:12] Speaker 03:
You're impacted as well.

[00:14:14] Speaker 03:
You're both impacted.

[00:14:15] Speaker 03:
This was going to affect what, if anything, VA did.

[00:14:20] Speaker 03:
So I don't understand.

[00:14:21] Speaker 03:
Do you see that there was less of an impact?

[00:14:24] Speaker 01:
Well, we see the burden being on the contractor to bring their concerns.

[00:14:30] Speaker 01:
I mean, the Progressive knew that it was not a veteran-owned small business.

[00:14:35] Speaker 01:
It was aware that the 2013 solicitation had gone to veteran-owned small businesses.

[00:14:41] Speaker 03:
So given that, given that it wanted a tailored remand, it was a kind of- But they won before the court to say that the award should be displaced.

[00:14:51] Speaker 03:
And they were seeking to just have them put in as the contractor based on this litany of violations that had occurred beforehand.

[00:15:01] Speaker 01:
Well, of course, there is no guarantee that progressive would be, given the environment of a set-aside, given that the rule of two had to be applied under kingdom where, given that the VA policy memo required it.

[00:15:15] Speaker 03:
You agree that the rule of two had been applied in the first instance?

[00:15:19] Speaker 01:
That's another concern, Your Honor.

[00:15:22] Speaker 01:
In the original solicitation in 2013, the market research did involve the application of the rule of two.

[00:15:28] Speaker 01:
Back in 2013, there were not at least two veteran-owned small business in the marketplace.

[00:15:34] Speaker 01:
Within that very year, there were two veteran-owned small businesses competing for the 2013 solicitation.

[00:15:43] Speaker 03:
It shows that...

[00:15:44] Speaker 03:
Absolutely certain that the only way the district court, the court of federal claims, could go here was to order a resolicitation?

[00:15:52] Speaker 03:
That that was the only remedy that it had in its basket under the circumstances of this case?

[00:15:59] Speaker 01:
Well, given it was for the contractor to raise a need for any kind of tailored injunction, this court has recognized in axiom, as well as parcel 49C, which progressive relies upon, that it is

[00:16:13] Speaker 01:
that VA conduct that is lawful is not something that the court should interfere with.

[00:16:19] Speaker 01:
Here, it was lawful for the VA to apply the rule of two.

[00:16:22] Speaker 01:
I'm sorry.

[00:16:23] Speaker 04:
The court only vacated and remanded.

[00:16:27] Speaker 04:
There was no order of resolicitation from the court.

[00:16:31] Speaker 01:
No, Your Honor.

[00:16:31] Speaker 01:
And am I correct?

[00:16:33] Speaker 01:
Yes, Your Honor.

[00:16:34] Speaker 01:
There was no order.

[00:16:35] Speaker 01:
But following our emergency motion filed on the day after the day.

[00:16:39] Speaker 04:
Is there any reason why we would not be able to reverse and find that the Court of Federal Claims should have remanded with instruction?

[00:16:52] Speaker 01:
Your Honor, there's no reason to do so because under Axiom and under Parcel 49C,

[00:16:57] Speaker 01:
The court has recognized that it's not for the court to interfere with lawful procurement decisions.

[00:17:02] Speaker 01:
What the trial court did here is to... Well, the VA engaged in a series of errors.

[00:17:11] Speaker 01:
And those were remedied by a vacator.

[00:17:14] Speaker 04:
They were never remedied.

[00:17:15] Speaker 01:
I mean, the... They were, Your Honor.

[00:17:17] Speaker 04:
The progressives left holding an empty bag.

[00:17:21] Speaker 04:
They won.

[00:17:22] Speaker 04:
They won nothing.

[00:17:23] Speaker 01:
Your Honor, they won a remedy in that the illegal contracts that were awarded were vacated.

[00:17:28] Speaker 01:
And then under the VA policy memorandum, in either scenario, whether it be evaluation or it be pre-solicitation, after the re-solicitation, the VA rule of two is required to be applied.

[00:17:43] Speaker 03:
I really would like to just have a specific answer to you.

[00:17:47] Speaker 03:
With the court of claims, did it have the authority

[00:17:53] Speaker 03:
Would it have had the authority to, one, order the contract awarded to progressive, or to, two, order a reevaluation rather than a resolicitation?

[00:18:04] Speaker 01:
Your Honor, the first question.

[00:18:04] Speaker 03:
Do they have the authority?

[00:18:06] Speaker 03:
To order a contract?

[00:18:07] Speaker 03:
Yeah.

[00:18:07] Speaker 03:
Rather than a remand, if they had remanded for purposes of a reevaluation only, would you have challenged that as being somehow illegal or outside of their authority or something?

[00:18:20] Speaker 03:
Do they have that discretion?

[00:18:23] Speaker 01:
Yes, Your Honor.

[00:18:24] Speaker 01:
But on remand, what would have happened would be, under the policy guidelines, the VA would have had to apply the Rule of Two.

[00:18:32] Speaker 01:
First of all, it would have had to have been by looking at the original 2013... Okay, let me ask another one because you're not understanding my question.

[00:18:39] Speaker 03:
If the Court of Federal Claims had said,

[00:18:42] Speaker 03:
we want to either said, one, we're going to award the contract to Progressive, or if it had said, we're not going to require a resolicitation here because the VA ought not to, or these other people, ought not to benefit from the passage of time.

[00:18:58] Speaker 03:
And that Progressive, we all know the results.

[00:19:02] Speaker 03:
If we apply kingdomware and we do a resolicitation, they're out.

[00:19:05] Speaker 03:
If we don't, they have a good chance of winning.

[00:19:08] Speaker 03:
With the Court of Veterans, Court of Federal Claims,

[00:19:11] Speaker 03:
have had the legal authority to say no resolicitation is compelled here.

[00:19:17] Speaker 03:
You ought to do just a re-evaluation and move forward.

[00:19:21] Speaker 01:
Would you challenge that?

[00:19:21] Speaker 01:
As to the first question, the court cannot order a contract award.

[00:19:27] Speaker 01:
The case law is clear about that issue.

[00:19:31] Speaker 01:
As to the second issue, it would have been within the trial court's discretion to do some kind of tailored remand.

[00:19:38] Speaker 01:
It's the question for us is that,

[00:19:40] Speaker 01:
in a scenario where the trial court doesn't do that, that is not somehow an unlawful remand, which is what progressive characterizes it as.

[00:19:49] Speaker 01:
It had the discretion to, given particularly it didn't have specific instructions from progressive

[00:19:54] Speaker 01:
about a tailored remand.

[00:19:56] Speaker 04:
And that's correct.

[00:20:00] Speaker 04:
We're talking about a remedy here that progressive perhaps never sought.

[00:20:05] Speaker 01:
Never.

[00:20:06] Speaker 04:
Right.

[00:20:07] Speaker 04:
However, maybe they didn't seek it because progressive understood the lay of the land and the legal landscape in effect at that point.

[00:20:14] Speaker 04:
Then kingdom work comes and changes and creates suddenly the risk that I was talking about before becomes manifest.

[00:20:22] Speaker 04:
It's no longer a potential risk.

[00:20:25] Speaker 04:
It can produce the result that actually happened, and that's progressive.

[00:20:30] Speaker 04:
It's totally out.

[00:20:31] Speaker 04:
They win, and they win nothing.

[00:20:33] Speaker 01:
Your Honor's correct.

[00:20:34] Speaker 01:
There was a risk, and a prudent contractor would have done something to protect its interests.

[00:20:39] Speaker 01:
And Your Honor, it's worth noting a case from this court, Eli Lilly versus Aradime, issued in 2010.

[00:20:48] Speaker 04:
That involved a- In progressive's motion for reconsideration,

[00:20:52] Speaker 04:
Did they reassert a new or different remedy at that point?

[00:20:56] Speaker 01:
They began to raise that there.

[00:20:58] Speaker 01:
And in doing so, they relied upon KingdomWare.

[00:21:02] Speaker 01:
It is worth pointing out, Your Honor, that they, on appeal, have taken a different position about KingdomWare in their initial Rule 59E motion, Rule 60B motion.

[00:21:14] Speaker 01:
They pointed the court to their concern about the impact of King Noonware.

[00:21:20] Speaker 01:
They expressly discussed that they will be kicked out of the competition.

[00:21:24] Speaker 01:
I'd like to point, Your Honor, to the language, because it is clear at that point and conceivably before then that they were on notice of the fact that they should have raised this before.

[00:21:39] Speaker 01:
I'm looking at page 2843 through 2845.

[00:21:43] Speaker 01:
of the record in which is their initial Rule 59E, Rule 60B motion.

[00:21:51] Speaker 01:
They state at the bottom of 2843 that as the court noted in its opinion pursuant to Section 8127D of the Veterans Health Care and Information Technology Act of 2006, i.e.

[00:22:03] Speaker 01:
the Veterans Benefit Act, the VA is required to restrict competition for agency contracts to service disabled veteran owned small businesses

[00:22:11] Speaker 01:
and veteran-owned businesses when the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers.

[00:22:23] Speaker 01:
So they are expressly, before the trial court, recognizing that Kingdomware has an impact.

[00:22:28] Speaker 01:
They go on.

[00:22:29] Speaker 03:
Can I ask you a question about that?

[00:22:30] Speaker 03:
Let's assume the time bar thing is gone and we're not buying that.

[00:22:33] Speaker 03:
I'm sorry, Your Honor.

[00:22:34] Speaker 03:
The time bar thing on Rule 59.

[00:22:37] Speaker 03:
Let's assume you win on that issue.

[00:22:39] Speaker 03:
They raised, as you just noted, in the alternative 60B.

[00:22:44] Speaker 03:
And they explicitly talk about 60B1, 60B5, and 60B6.

[00:22:50] Speaker 03:
The court analyzed the merits of this dispute only under 60B6.

[00:22:56] Speaker 03:
And there's a difference between 60B1 and 60B6, right?

[00:22:59] Speaker 03:
60B6, which she relied on, has nothing about excusable neglect.

[00:23:08] Speaker 03:
And 60B1 does allow for mistake, inadvertent, surprise, or exclusival neglect.

[00:23:16] Speaker 03:
So why shouldn't we at least remand it to the court of federal claims to analyze it under 60B1, which it failed to do?

[00:23:25] Speaker 01:
Your Honor, it didn't analyze the 60B1 issue because, as it stated in the opinion, there was no argument advanced by progressive in support of 60B1

[00:23:38] Speaker 01:
They only advanced an argument under 60B6, so there was nothing for the trial court to analyze or work with.

[00:23:44] Speaker 01:
So 60B6 was all that was left on the table, of course, and that is the catch-all requirement.

[00:23:52] Speaker 01:
And of course, under 60B6, or under rule 60B, you rely on 60B6 if you cannot fit the other criteria.

[00:24:05] Speaker 01:
So clearly, they concluded that at the end of the day, 60B6 is the only place they could proffer an argument, and that was related to extraordinary circumstances.

[00:24:14] Speaker 03:
Is it in the record?

[00:24:15] Speaker 03:
Did the Court of Federal Claims ever ask the government why it hadn't submitted kingdom wear, or did the government ever come up with the reason why it hadn't provided the court the opinion?

[00:24:25] Speaker 01:
No, Your Honor.

[00:24:26] Speaker 01:
In the trial court's October 31 decision, opinion and order, it had a footnote related to Kingdom Ware and indicated that neither party had raised it.

[00:24:37] Speaker 01:
So it didn't reach it as a result.

[00:24:39] Speaker 03:
And just going back, I don't want to beat a dead horse, but if the government thought that clearly Kingdom Ware would affect the remedy here,

[00:24:49] Speaker 03:
Was it just lying in wait to see if the other side was going to raise it or not?

[00:24:55] Speaker 03:
Was it just so sure that the other side would raise it that they felt like they didn't have to?

[00:25:00] Speaker 03:
Is there anything in the record that indicates why the government didn't raise it?

[00:25:04] Speaker 01:
There's nothing in the record to indicate.

[00:25:06] Speaker 01:
But as I indicated, as I stated, Your Honor, it was the burden of the contractor, given its concerns about the potential impact, given that it was not a veteran owned small business.

[00:25:16] Speaker 04:
That's understandable.

[00:25:19] Speaker 04:
But that's another way of saying that.

[00:25:22] Speaker 04:
It just seems to me that the duty owed the tribunal, the duty owed to this court by the lawyers, as officers of the court, is to keep the court informed as to new authority, supplemental authority, and things of that nature.

[00:25:46] Speaker 04:
I think that obligation falls on both sides of the parties.

[00:25:56] Speaker 04:
So you had, the government had an obligation, in my view, as to have notified the Court of our kingdom where.

[00:26:02] Speaker 04:
And I think that's sort of progressive.

[00:26:08] Speaker 01:
Thank you.

[00:26:08] Speaker 01:
Thank you, Your Honor.

[00:26:24] Speaker 00:
I think Your Honors have hit the nail on the head that... You want to speak up a little?

[00:26:29] Speaker 00:
Your Honors have hit the nail on the head in that the VA is attempting to put all of the burden on progressive and none of the burden on itself.

[00:26:38] Speaker 00:
And one of the issues that arises in whether either side should have raised kingdomware to the court before her October 31 opinion is that

[00:26:51] Speaker 00:
It's not the kingdom where a case that had created the problem or that is creating the problem.

[00:26:57] Speaker 00:
It is the government's internal policy memorandum that is what they are relying on to say, we must go back now and apply the rule of two this way again, over again, and we can't do anything else.

[00:27:15] Speaker 00:
And it's that policy memorandum which does not have the force of law.

[00:27:21] Speaker 00:
which Progressive did not know about.

[00:27:23] Speaker 00:
And it was an internal policy memorandum, so we would have no reason to really know that the government is taking this position, this very strong position with respect.

[00:27:37] Speaker 03:
But maybe that is, as Judge Raina suggested perhaps earlier, maybe that's a new challenge that you would necessarily have to bring in some other case with regard to the new solicitation.

[00:27:49] Speaker 00:
If I understand, Your Honor, I think that what you're saying is if there was another case coming after ours, or are you saying in this particular case?

[00:27:57] Speaker 03:
In this particular case, it goes back, they order a re-solicitation.

[00:28:00] Speaker 03:
And I don't know if you're, I don't know enough about what goes on, but is there a basis for you to challenge the re-solicitation?

[00:28:09] Speaker 00:
Well, that comes back to when the re-solicitation is of the service disabled veteran owned small businesses.

[00:28:16] Speaker 00:
which our client is not a part of, then our client is left... But you could have filed a protest.

[00:28:23] Speaker 00:
But not with... I don't think that we would have had standing to file a protest after the solicitation.

[00:28:34] Speaker 04:
And the... I think that that's an overriding concern here about what you just said.

[00:28:45] Speaker 04:
you may not have had standing.

[00:28:48] Speaker 04:
I'm not too sure about that.

[00:28:50] Speaker 04:
But it's the same short-circuit thinking occurred in the case in that you never asked for the remedy that will put the court in a position to consider a remedy that would have been beneficial to you, even after a kingdom were issued.

[00:29:11] Speaker 04:
And even after you knew, for example,

[00:29:14] Speaker 04:
in your motions for reconsideration, that the potential of the kingdom were to have this significant adverse impact on your case, he didn't point the court in the direction where the court could help you, and I'm not too sure we can do that.

[00:29:32] Speaker 00:
I believe that you can, actually, because when you're talking about is there anything precluding you from sending the case back with directions, no, I don't believe there is anything precluding you from doing that.

[00:29:44] Speaker 00:
And in fact, you know, again, when the court issued this 37-page opinion, it didn't appear from that that we would need to go to the extra... What is it that you seek from us, then?

[00:29:58] Speaker 00:
What we're asking you to do

[00:30:00] Speaker 00:
is to reverse and remand this case to the lower court to provide instructions to the contracting officer, to remand it to the contracting officer with instructions to return the parties to the status quo and to the illegality.

[00:30:16] Speaker 04:
Why didn't you ask for that at the officer?

[00:30:22] Speaker 00:
I think we did in our motion for reconsideration.

[00:30:25] Speaker 00:
It was obvious that that's what we were talking about,

[00:30:29] Speaker 04:
returning to the status quo and the court... That was on the second one, but your first motion for reconsideration did not raise that.

[00:30:39] Speaker 00:
And that was a motion for reconsideration of the status order.

[00:30:43] Speaker 04:
And you complained before the Court of Federal Claims did not lay out that remedy.

[00:30:50] Speaker 00:
Right, but we kept trying to bring things up and the court

[00:30:56] Speaker 00:
cut us off without being able to be heard in these various hearings, just entered orders that changed dates and this and that, and trying to keep up with what the judge was wanting to do in this case was in and of itself challenging.

[00:31:13] Speaker 00:
And then she got finally to the point where, November 23, Sue Esponte says, okay, you know, let's just tear up all that and I'm going to enter an amended judgment.

[00:31:26] Speaker 00:
I think it was clear that she wasn't letting us have the hearing and to be able to raise the things that we wanted to raise.

[00:31:37] Speaker 00:
And it was obvious in what we were trying to do in the case and making the arguments that progressives should not be harmed in this manner.

[00:31:50] Speaker 04:
Now, these arguments, you're not appealing that.

[00:31:52] Speaker 04:
That's not before the court.

[00:31:56] Speaker 00:
We're not appealing the award, the bid protest that we won.

[00:32:03] Speaker 00:
That's what we're not appealing.

[00:32:05] Speaker 00:
Because we won it.

[00:32:06] Speaker 04:
All we're trying to do is to get a reasonable remedy for progressive under these circumstances, which is- You won a vacate and the medal was sent back to the VA to- To a remand.

[00:32:20] Speaker 04:
to consider.

[00:32:21] Speaker 00:
To do whatever was consistent with that opinion.

[00:32:24] Speaker 04:
But it did say to award progressive the contract.

[00:32:28] Speaker 00:
It could have.

[00:32:29] Speaker 04:
You never asked for that.

[00:32:31] Speaker 00:
That's my point.

[00:32:31] Speaker 04:
I mean, why would the court, and how can we review a prayer for relief that was never sent up?

[00:32:39] Speaker 00:
The court recognized that it had no authority to actually award progressive the contract.

[00:32:46] Speaker 00:
What it did recognize, and what it had done, was to

[00:32:51] Speaker 00:
um, vacate the award, remand to the contracting officer, um, for proceedings consistent with that opinion.

[00:33:05] Speaker 00:
And they did not do anything that was consistent with that opinion.

[00:33:08] Speaker 00:
They just turned around and said, okay, we're starting over again.

[00:33:12] Speaker 00:
And after two years, progressive is too bad, so sad you're out of here.

[00:33:17] Speaker 00:
Um, gee, that's too bad.

[00:33:19] Speaker 00:
Um, we just decided that we're going to

[00:33:20] Speaker 00:
So we're going to do it this way.

[00:33:22] Speaker 00:
And that is exactly what Rule 60B is for.

[00:33:27] Speaker 00:
It's for those unusual situations, such as we have here, where the outcome in this case is simply wrong.

[00:33:36] Speaker 00:
It's just simply wrong.

[00:33:38] Speaker 00:
And I think that this court recognizes that.

[00:33:41] Speaker 00:
And so all we're looking for is to have the vehicle to bring it back to the court and say,

[00:33:49] Speaker 00:
This didn't go the way it should have gone.

[00:33:51] Speaker 00:
This is an impossible outcome.

[00:33:57] Speaker 00:
It's an outcome that should never have happened.

[00:34:00] Speaker 00:
And we're going to fix this, finally.

[00:34:03] Speaker 02:
Thank you.

[00:34:04] Speaker 02:
We thank both sides for the cases submitted.

[00:34:07] Speaker 02:
And that concludes our proceedings for this morning.

[00:34:10] Speaker 00:
All rise.

[00:34:13] Speaker 00:
The honor report is adjourned until tomorrow morning at 10 AM.