[00:00:01] Speaker 01:
The United States court of appeals for the federal circuit is now open in the session.

[00:00:05] Speaker 01:
God save the United States in this honorable court.

[00:00:10] Speaker 00:
Good morning, ladies and gentlemen.

[00:00:13] Speaker 00:
We have three cases on the calendar this morning, only one of which is being argued, and that is Harmonia Holdings Group versus the United States, 2020 1703.

[00:00:24] Speaker 00:
Mr. English, please proceed.

[00:00:30] Speaker 02:
Good morning, and may it please the Court.

[00:00:33] Speaker 02:
This Court should reverse the Claims Court's judgment for three reasons.

[00:00:37] Speaker 02:
First and primarily, the Claims Court had Tucker Act jurisdiction over Count 2 of Harmonia's amended and restated complaint, which alleged that the face of Olethic's proposal gave the contracting officer reason to question its size representation.

[00:00:53] Speaker 02:
The Claims Court erred when it decided to dismiss that count for lack of jurisdiction.

[00:00:58] Speaker 02:
Second, assuming the court decides to reach the underlying evaluation issues, the claims court aired when it held that the government reasonably evaluated Harmonia's proposal under factor one, despite the conflicting strengths and weaknesses assigned to the same proposal elements under the same evaluation factors.

[00:01:19] Speaker 00:
But, counsel, you're putting off, this is Judge Laurie, you're putting off on

[00:01:26] Speaker 00:
The contracting officer, the responsibility which belonged to your own client.

[00:01:33] Speaker 02:
Well, Your Honor, I think that in some respects, as it relates to the fair reading of the proposal, I think that is an obligation that the contracting officer had to give a fair read of the proposal.

[00:01:45] Speaker 02:
And as it relates to the ETAL tool and the peer reviews,

[00:01:52] Speaker 02:
Our proposal made clear that we were not proposing to pre-review another developer's code, and that the ETL tool that was proposed was an example.

[00:02:01] Speaker 02:
The specific name that was mentioned, which I think is under the protective order, was an example that was mentioned as one that the Harmonia had used successfully for another agency.

[00:02:11] Speaker 02:
It was not wedded to that particular tool, and the contracting officer decided that, or the evaluation team did,

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the particular tool could potentially be incompatible, and Harmonia wouldn't use another tool if that was the case.

[00:02:26] Speaker 02:
And we don't think that's a fair read.

[00:02:27] Speaker 00:
But the point is questioning whether Allatrix was benefited by having a non-small business being associated with it.

[00:02:40] Speaker 00:
It was a size question.

[00:02:44] Speaker 02:
Well, Your Honor, what we stated in our complaint was, we believe, a bid protest.

[00:02:49] Speaker 02:
We alleged that there was a violation of law in connection with a procurement.

[00:02:54] Speaker 02:
And that violation of law was the contracting officer's failure to recognize the obvious, or we think apparent, ostensible subcontractor issue on the face of Illethic's proposal.

[00:03:05] Speaker 02:
And under 19301-1B, as it existed at the time, that gave the contracting officer an obligation

[00:03:12] Speaker 02:
to refer the matter to the SBA for a size determination, not to make one, not to make a size determination, but to recognize that there's a potential issue here and to bring that matter to the SBA for resolution.

[00:03:25] Speaker 03:
Well, counsel, even if we were to agree to you that, you know, once more the Court of Claims used jurisdiction as a shortcut and that they should have looked at something else,

[00:03:39] Speaker 03:
Don't you have a real problem with whether or not you have stated a claim where the regulation is not for the benefit of the contractor, it's for the benefit of the government?

[00:03:51] Speaker 02:
Well, Your Honor, our view is that the regulation gives the contracting officer an obligation, and in this instance it would be for the benefit of the contractor because if it is a small business procurement, and this was, and we were a small business but the awardee is not,

[00:04:07] Speaker 02:
then the benefit would be both to the government in terms of honoring the set-aside and meeting the mandates, but also for the other contractors who wouldn't be in a position with competing with the largest integrators in the world for a contract that's supposed to be set-aside for women in small businesses.

[00:04:25] Speaker 03:
I can understand why you think the first clause in the regulation is for the contractor where the contractor has the right to make a size challenge

[00:04:35] Speaker 03:
But the second clause, which gives the government the discretion to do it so Espante would seem to be something that benefits the government and not intended to directly benefit the contractor.

[00:04:49] Speaker 02:
Well, our view is if we're going to have set aside procurements and the eligibility rules are what governs, and here that would have been the case, then the second clause of the regulation would have to benefit the competing eligible small businesses because otherwise you're competing potentially with

[00:05:05] Speaker 02:
large business contractors.

[00:05:07] Speaker 02:
And if it's not read as a whole so that the contracting officer has an obligation, if there's reason to question the representation and make the referral, then you have a situation where the largest businesses in the world can compete for small business contracts and there's nothing that the eligible small businesses can do or have to say about it.

[00:05:28] Speaker 00:
And that's the situation we put... But shouldn't the obligation be on the

[00:05:34] Speaker 00:
purported small business, because its neck is in the news, so to speak.

[00:05:40] Speaker 00:
It loses a contract, as it did here, because it was purportedly competing, had to compete unfairly with a large company, which is what you're saying.

[00:05:57] Speaker 00:
So isn't the obligation on Harmonia to have raised the issue?

[00:06:05] Speaker 02:
Well, Your Honor, we believe we did raise... I'm sorry.

[00:06:08] Speaker 02:
Go ahead.

[00:06:09] Speaker 02:
I believe we did raise the issue in the only way that was allowable by law.

[00:06:12] Speaker 02:
Our deadline to file a timely size protest, which is how you would normally raise this issue, expired five years before the procurement when Elethics was awarded the schedule contract under which this task order was competed.

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And so any size protest we filed would have been dismissed by the field office as a matter of law.

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It would have been... That dismissal would have been affirmed by the

[00:06:33] Speaker 02:
office of hearings and appeals as a matter of law.

[00:06:36] Speaker 02:
And that certainly would have allowed us to go to the Court of Claims, but the Court of Claims standard of review would have been just to determine whether the SBA acted reasonably when it dismissed an untimely size protest.

[00:06:47] Speaker 02:
It could not have gotten to the merits of this issue.

[00:06:49] Speaker 03:
But the government argues that you could have raised it with the government, who then would have the ability under the second clause of the regulation to make the referral, even if yours would have been untimely.

[00:07:04] Speaker 02:
And we think we did, Your Honor, we did not write a separate letter as a size protest to the contracting officer, but the contracting officer participated in this process from the very beginning of the case at the Court of Claims.

[00:07:18] Speaker 02:
It was in the initial status conference, and when we raised this ground, the SBA was admitted to those proceedings as well and admitted to the protective order.

[00:07:25] Speaker 02:
So they participated at every phase.

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They had the briefs.

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They attended oral argument.

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And if that information was going to spur an action by either of the contracting officer or the SBA, we feel like we've put the information in front of them and allowed them to take that action.

[00:07:40] Speaker 02:
Sending a separate letter to the contracting officer with the same information in it and expecting a different result, we think the government's position on that is speculative because they did nothing in the face of all this information in the record that they had access to.

[00:07:57] Speaker 02:
in our judgment really is, as it relates to the exhaustion element that the Court of Claims focused on, is the biggest problem.

[00:08:04] Speaker 02:
We don't feel like there was a remedy that was available to us to exhaust.

[00:08:09] Speaker 02:
It would have been a feudal act to file a size protest and go all the way up the chain just to get an affirmance of a dismissal is untimely.

[00:08:16] Speaker 02:
Everybody agrees that it's untimely.

[00:08:19] Speaker 02:
uh... and it would have been but it was your argument that this is not a size protest or that it is but but that exhaustion should be forgiven our argument your honor is that it is not a size protest we asked the court of claims to evaluate whether the contracting officer acted reasonably in in light of the face of a lethax's proposal and did he act reasonably by failing to refer the matter to the SBA for its termination

[00:08:48] Speaker 02:
There was no time where we asked the court of claims or this court to look at a size determination or to make a size determination just to determine whether under these circumstances, it was reasonable for the contracting officer to fail to refer the matter to the SBA.

[00:09:04] Speaker 02:
And in our mind, the difference between that and a size protest is pretty fundamental because we weren't asking for a determination.

[00:09:11] Speaker 02:
It is true that that referral would have resulted in a determination.

[00:09:16] Speaker 02:
But there was never a time when the claims court had to review or make one.

[00:09:20] Speaker 02:
And I think that's an important distinction between the two different processes, a bid protest and a size protest.

[00:09:28] Speaker 02:
All we wanted the claims court to do was evaluate the reasonableness and lawfulness of the government's action.

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And that's something it does on a daily basis.

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And it should have done it here.

[00:09:38] Speaker 02:
We look at the GAO, whose jurisdiction under Competition and Contracting Act is more limited than Tucker,

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And they have absolutely no question that they have jurisdiction to deal with this specific issue.

[00:09:50] Speaker 02:
That is when a protester alleges that the face of the awardee's proposal should have given the contracting officer reason to question a size representation.

[00:09:58] Speaker 02:
That's all we asked for here.

[00:10:01] Speaker 02:
And the claims court didn't reach that ground.

[00:10:04] Speaker 02:
It said that there was no jurisdiction to reach that issue because we didn't exhaust administrative remedies.

[00:10:10] Speaker 02:
But even, Judge O'Malley, even if

[00:10:12] Speaker 02:
It was a size protest and we did not agree that it was.

[00:10:16] Speaker 02:
We think that any exhaustion requirement should have been excused because there was no remedy available to us.

[00:10:22] Speaker 02:
The only thing we could have done is filed an untimely size protest and worked through the layers of dismissal to get to the Court of Claims and it could not have reached the merits either.

[00:10:32] Speaker 02:
There was no way for us to bring a size protest at the time we found out about this issue.

[00:10:39] Speaker 02:
And if the size protest avenue was available to us, if it worked the way the government claims it did, then there's really no timeliness issue at all because if the court claims could review the Office of Hearings and Appeals decision de novo at any time, then any untimely size protest can be revived just by working through the SBA process whenever the issue arises.

[00:11:04] Speaker 02:
So that would completely circumvent SBA's timeliness rules

[00:11:08] Speaker 03:
How would that affect at all, if at all, the contracting officer's best value determination when the best value determination didn't include size status as a factor?

[00:11:25] Speaker 02:
Well, our point as it relates to the best value determination is that there were two issues.

[00:11:29] Speaker 02:
One, the contracting officer and the SSA in this procurement, I believe, were the same person.

[00:11:33] Speaker 02:
And the SSA's job is to take a final look at

[00:11:37] Speaker 02:
the procurement and determine if there are any errors and address them.

[00:11:41] Speaker 02:
And we think that is the stage at which this obvious issue on the face of the ethics of this proposal should have been recognized.

[00:11:48] Speaker 02:
But secondly, and some of this is under the protective order, we believe that even as evaluated, because the decision came down to factor one, we believe we were the awardee that was the best value given the constraints of the solicitation that the government was not going to make

[00:12:06] Speaker 02:
an award to a higher-priced offeror for only slightly technical advantages.

[00:12:12] Speaker 02:
I think I'm into my rebuttal time, Your Honor, so if there are no more questions, I'll yield back.

[00:12:18] Speaker 02:
I'll stop at this point.

[00:12:20] Speaker 00:
Thank you, Mr. English.

[00:12:22] Speaker 00:
We will save your rebuttal time.

[00:12:24] Speaker 00:
Mr. Byrd for the government.

[00:12:28] Speaker 01:
Yes, good morning, Your Honor, and may it please the Court.

[00:12:30] Speaker 01:
In this case, Harmonia primarily seeks to overturn the trial court's sound conclusion that it did lack jurisdiction over Harmonia's size protest, which the claims court was masquerading as a bid protest, when Harmonia had not first exhausted SBA's procedures for size protest.

[00:12:47] Speaker 01:
Harmonia's complaint here is a result of it sitting on its own right.

[00:12:52] Speaker 01:
Had Harmonia filed a size protest with the contracting officer, as is prescribed by the SBA's regulations and the federal acquisition regulation,

[00:13:00] Speaker 01:
It could have gotten the remedy that Harmonia wanted in the trial court, which was a review of the awardee of ethics' size.

[00:13:08] Speaker 01:
Therefore, the trial court's dismissal of Harmonia's size challenge should be affirmed by this court.

[00:13:14] Speaker 01:
Secondarily, the trial court's denial of Harmonia's motion... Well, what is your point?

[00:13:19] Speaker 03:
I mean, how do you respond to the fact that they couldn't have filed a size protest?

[00:13:25] Speaker 01:
Well, Your Honor, Harmonia could have actually sought a size protest as prescribed by the SBA's regulations, which require a size protest in the first instance to be filed with the contracting officer.

[00:13:38] Speaker 01:
It is not the contracting officer who has a regulation that requires dismissal of an untimely size protest, but rather the SBA has a regulation that requires them to dismiss an untimely size protest.

[00:13:52] Speaker 01:
And the parties in this case agree that a protest at the point Harmonia made the challenge to the awardee's size would have been untimely.

[00:13:59] Speaker 01:
However, filing a size protest with the contracting officer would have put the contracting officer on notice of Harmonia's allegations regarding the ostensible subcontractor arrangement that Harmonia was alleged to have with the subcontractor.

[00:14:16] Speaker 01:
And the contracting officer at that point could have taken the

[00:14:21] Speaker 01:
have those allegations and determine whether they're credible and attempted to remedy the situation.

[00:14:27] Speaker 01:
And that remedy, as we detail in our brief, could have resulted in a recertification request that would have caused... That would not necessarily have been futile.

[00:14:41] Speaker 01:
Correct.

[00:14:42] Speaker 01:
Your Honor, the act of harmonious filing a class protest as prescribed by SBA's regulation in the first instance with the contracting officer

[00:14:51] Speaker 01:
would not have been a feudal act, as the trial court recognized the futility exception to exhaustion of administrative remedies is one that this court has applied narrowly and generally in circumstances where it would have been obviously useless for the parties to go through the administrative remedy process.

[00:15:11] Speaker 01:
In this case, it hardly would have been.

[00:15:13] Speaker 03:
Counsel, one of my concerns is that it seems like most of the arguments in your red brief

[00:15:21] Speaker 03:
are merits arguments.

[00:15:23] Speaker 03:
And it seems to me that the court might have jumped the gun by calling this a jurisdictional question when all that you need for a bid protest is a non-frivolous allegation of a violation of a regulation.

[00:15:37] Speaker 03:
And their allegation is not that they couldn't file a bid protest.

[00:15:44] Speaker 03:
Their allegation is that because of the regulations regarding

[00:15:50] Speaker 03:
size determinations, the government had an obligation to request a size determination.

[00:15:58] Speaker 03:
Whether that's true or not is a question that goes to the merits.

[00:16:03] Speaker 03:
So why is this a jurisdictional question as opposed to something that relates to failure to state a claim or standing?

[00:16:12] Speaker 01:
Your Honor, the trial court's opinion doesn't detail the reason why it dismissed for lack of jurisdiction in the case.

[00:16:19] Speaker 01:
It notes Supreme Court precedent around the trial court generally lacking power to hear a case when the administrative process has not run its course as promulgated by statute or regulation.

[00:16:33] Speaker 01:
However, in this case, even if the trial court had exercised jurisdiction over Harmonia's size protest,

[00:16:40] Speaker 01:
and allowed Harmonia to basically commandeer the contracting officer as an involuntary proxy for its untimely size challenge, Harmonia's challenge to Elitix's size still would have failed.

[00:16:54] Speaker 01:
There's no regulation as our brief detail that required the contracting officer to presume the falsity of the awardee's size certification in this federal supply schedule task order procurement.

[00:17:06] Speaker 01:
In accordance with the FAR provision that Harmonia seeks to have the allegations adjudicated under FAR 19.301-1B at the time, the contracting officer was required to accept Alethex's representation regarding its status unless one of the two exceptions... These are all questions, though, that the Court of Federal Claims never got to.

[00:17:30] Speaker 03:
In other words, you'd be asking us to decide those questions in the first instance.

[00:17:36] Speaker 01:
And Your Honor, this is a question of law as far as the interpretation of the regulation that Harmonia seeks to indicate that the conjuring officer somehow was obligated under to refer Olethic to the SBA.

[00:17:52] Speaker 01:
And we do detail in our brief why the interpretation that Harmonia seems to go forth, however, does not actually explain to this court how the regulation warrants the result that they say it does.

[00:18:06] Speaker 01:
That has been briefed before the court.

[00:18:08] Speaker 01:
And in summary, that regulation is at page 19, note 3 of our brief.

[00:18:18] Speaker 01:
And I'm happy to discuss why the Interpretation Harmonia put forth does not actually comport with the language in the regulation.

[00:18:28] Speaker 01:
Harmonia appears to suggest that the word shall in the first sentence of the regulation should be disregarded because the CO does not have a duty to accept a size representation, but that's simply incorrect.

[00:18:39] Speaker 01:
The regulation in that first sentence provides that the contracting officer shall accept a representation, but then provides two instances in which the contracting officer need not do so.

[00:18:49] Speaker 01:
Those exceptions provide the contracting officer discretion not to accept the representation, which he otherwise must do.

[00:18:58] Speaker 01:
The shall and the last sentence of the regulation simply means that any challenge of and questions concerning a representation must go to the SBA.

[00:19:07] Speaker 01:
The last sentence reference.

[00:19:08] Speaker 03:
So you're saying that we can make essentially a harmless error determination if we think there was jurisdiction and we can do that in the first instance because it's really just a straight up interpretation of the regulation?

[00:19:22] Speaker 01:
That's correct, Your Honor.

[00:19:23] Speaker 01:
The regulation, as a matter of plain meaning,

[00:19:27] Speaker 01:
does not warrant the result that Harmonia says it does, which is that the contracting officer somehow was obligated to have referred the awardee or leapfix to the SBA based on any allegations that Harmonia made before the trial court.

[00:19:50] Speaker 01:
At base, Harmonia's argument before this court, as it was before the trial court, recognized that Harmonia lacked standing to challenge Elitist's size before the SBA.

[00:19:59] Speaker 01:
As we argue in our brief, established in our brief, Harmonia cannot overcome that lack of standing by filing a size protest and masquerading as a bid protest in the trial court, which then seeks to have the contracting officer use his discretionary standing to file a size protest

[00:20:17] Speaker 01:
permitting such a result by Harmonia as the trial court recognized would significantly undermine compliance with SBA regulations by allowing a plaintiff to circumvent the established timeframe for filing a timely size protest.

[00:20:34] Speaker 00:
Do you want to make any comments on the merits?

[00:20:40] Speaker 01:
Yes, Your Honor.

[00:20:42] Speaker 01:
Even if the trial court had exercised jurisdiction over Harmonia size protest,

[00:20:46] Speaker 01:
As we detail in our brief, Harmonia's allegation that Alethix's proposal somehow revealed an undue reliance between Alethix and its other than small subcontractor.

[00:20:57] Speaker 01:
The name of that company is under the protective order.

[00:21:00] Speaker 01:
In this case, it's simply based on speculation and a misunderstanding of Alethix's proposal.

[00:21:05] Speaker 01:
And we detail that in our brief on pages 32 through 39.

[00:21:10] Speaker 01:
Additionally,

[00:21:13] Speaker 01:
And for those reasons, we do request that this court affirm the trial court's dismissal of account two of Harmonia's amended complaint.

[00:21:24] Speaker 01:
Regarding the denial of Harmonia's motion for judgment, the administrative record in the case demonstrates that the trial court correctly denied Harmonia's motion.

[00:21:34] Speaker 01:
Although Harmonia continues to disagree before this court with two risks that the technical panel assigned to Harmonia's technical proposal, Harmonia still provides no reason to overturn the trial court's conclusion that assignment of those risks was not irrational.

[00:21:51] Speaker 01:
Instead, as the trial court appropriately recognized, there's a lot of discretion when making technical evaluations and refusing to second guess that evaluation was the appropriate course, as it was amply supported by the record.

[00:22:04] Speaker 01:
There was some discussion about risks associated with cross-training and peer testing.

[00:22:08] Speaker 01:
Even though the technical evaluation panel determined that there was some benefit to that, there was also a caution in that benefit.

[00:22:19] Speaker 01:
Even though Harmonia appears to point to the contracting officer not giving a fair read to their proposal, there was no error by the technical evaluation panel in assigning both a strength and a risk

[00:22:33] Speaker 01:
for the same proposal aspect that the agency reasonably believed could present both benefits and risks.

[00:22:40] Speaker 01:
For example, with the cross-training, there could be benefits by eliminating single points of failure, but there also could be delays through the action of having to cross-train people.

[00:22:53] Speaker 01:
Regarding the extract, transform, and load tool that Harmonia references in their briefing before this court, the challenge there is similar.

[00:23:04] Speaker 01:
Even though Harmonia contends that the agency should have understood its proposal to name that tool as an example, given the number of times that Harmonia mentioned a specific tool in its proposal, which appears, for example, at appendix 10657 and 10740, Harmonia had the burden to make clear that it was not proposing to use that particular tool.

[00:23:28] Speaker 01:
And the agency was grounded in its thinking that the tool's compatibility with its systems could have caused delays and increased costs.

[00:23:36] Speaker 01:
In the end, the assignment of these risks should be upheld.

[00:23:40] Speaker 01:
And in any event, as we detail in our brief, Harmonia has not established that it was significantly prejudiced by the assignment of those risks.

[00:23:48] Speaker 01:
Regarding the best value determination, similarly, Harmonia's challenge to that determination continues to be meritless, like with the technical evaluation.

[00:23:58] Speaker 01:
Harmonia has provided no reason to overturn the trial court's conclusion that the best value determination was irrational, was not irrational.

[00:24:06] Speaker 01:
The trial court correctly discerned the agency's wide discretion when making a best value determination, particularly where here there was a lot of technical expertise involved.

[00:24:17] Speaker 01:
With that backdrop and what the trial court found to be a well-documented trade-off analysis that noted the technical superiority of the awardee elitist's proposal,

[00:24:26] Speaker 01:
In accordance with the terms of the RFQ, the solicitation in this case, this protest ground continues to fail.

[00:24:34] Speaker 01:
And if there are no further questions from the court, in conclusion, we respectfully request that the trial court affirm the judgment of the, that this court affirm the judgment of the trial court.

[00:24:45] Speaker 01:
Thank you.

[00:24:47] Speaker 00:
Thank you, Mr. Byrd.

[00:24:48] Speaker 00:
Mr. English has some rebuttal time remaining.

[00:24:52] Speaker 02:
Thank you, Your Honor.

[00:24:54] Speaker 02:
Briefly to touch on a couple of points that Mr. Byrd raised, I believe I heard him just say that Harmonia could have gotten the remedy it wanted, which is a size review by filing a size protest.

[00:25:06] Speaker 02:
And that's just simply not true.

[00:25:08] Speaker 02:
As we discussed earlier, the most we could have gotten out of a size protest from the SBA in terms of actually making a determination would have been a denial or a dismissal of our untimely protest.

[00:25:20] Speaker 02:
the uh... the contracting officer would have had an obligation to send that protest forward to the s b a but the contract officer doesn't make this decision but we've never asked that he make the decision we've only alleged that under the circumstances he should have recognized that there was a question to ask uh... the contract an officer being on notice is another point that mister bird raise and there's no question he was he participated in the initial status conference and every stage of the proceedings before the claims court

[00:25:49] Speaker 02:
And so if he was going to take action, he had all the information, he had the briefs, he had the administrative record, he had all the information he would have needed to take any action he thought was appropriate.

[00:26:00] Speaker 00:
If he wanted to ask for a recertification... But his failure to do that worked to the disadvantage of harmonia.

[00:26:09] Speaker 00:
And so why shouldn't harmonia have taken the action in its own best interest?

[00:26:16] Speaker 02:
Well, I think, Your Honor, we took the action that we harmonious thought it could take.

[00:26:20] Speaker 02:
And the only action that was available to it, once it realized this ostensible subcontractor issue, which we didn't know until we got the administrative record in the process below, was to challenge the contracting officer's failure to recognize the problem and refer the matter to the SBA.

[00:26:36] Speaker 02:
There's nothing we could have done at the SBA to get any sort of remedy.

[00:26:42] Speaker 02:
That was foreclosed to us.

[00:26:44] Speaker 02:
All we could have gotten was a denial

[00:26:46] Speaker 02:
of an untimely SBA protest.

[00:26:49] Speaker 02:
And so that's the only thing that was available is exactly what Harmonia did, which is to challenge the failure to recognize the problem.

[00:26:57] Speaker 02:
I want to briefly mention the REMA consulting case that we cited in our brief.

[00:27:02] Speaker 02:
And this is the only case on point, we think, from the court of claims.

[00:27:07] Speaker 02:
But in that instance, Judge Allegra conducted the very analysis that we think the claims court should have conducted in this case.

[00:27:15] Speaker 02:
And speaking specifically to 19301-1B, Judge Allegra on page 531 of that opinion wrote, quote, under this regulation, the CO here was thus required to accept the awardee's representations regarding its size unless one of the two exceptions to that rule was triggered.

[00:27:35] Speaker 02:
As will be seen, neither of those exceptions were triggered.

[00:27:38] Speaker 02:
So as we allege here, all we have challenged is the contracting officer's failure to recognize

[00:27:45] Speaker 02:
that there was a potential issue that gave him reason to question ill-ethic to size representation.

[00:27:52] Speaker 02:
And that would have required him to refer them out of the SBA to answer that question.

[00:27:56] Speaker 02:
We never asked him or the argued that he or the claims court should have made a determination or reviewed one.

[00:28:04] Speaker 02:
We asked the court to reverse the judgment of the claims court.

[00:28:09] Speaker 00:
Thank you.

[00:28:10] Speaker 00:
We appreciate the arguments of both counsel and we take the case on the submission.

[00:28:16] Speaker 02:
The honorable court is adjourned until tomorrow morning at 10 a.m.