[00:00:00] Speaker 03:
Our final case this morning is number 22-1488 CACI Inc.

[00:00:05] Speaker 03:
vs. Federal vs. United States.

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This is an unusual case where the lower court's standing determination is at least equally consequential to CACI than the bid protested issuing.

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The reason for that is it's based on the notion that CACI had an organizational conflict of interest.

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We, of course, also challenged, under the APA, the Army's disqualification of the bid.

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But I want to focus on standing.

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given its importance to the decision below, and in fact, given that it was the sole basis of the actual dismissal here.

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That standing determination should be reversed.

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The court's standing determination was both procedurally and substantively flawed.

[00:01:03] Speaker 01:
Procedurally, in that the COC, the Court of Claims... Kelser, suppose we agree with you on the standing issue, but not on the merits issue.

[00:01:14] Speaker 01:
What's the gain here of sending this back?

[00:01:18] Speaker 02:
What's the gain here of sending this back?

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Well, I mean, we think you should reach the merits.

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I mean, so I tend to agree with you, Your Honor, that there's not a lot of reason to send this back.

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If you disagree with us on the merits, you would affirm on the merits.

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But we think to get there, you need to make clear

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that the contracting officer's determination is invalid, and that the district court's determination that we didn't meet standing is also improper.

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So we're not actually inviting you to send it back for proceedings that we already know what the court of claims is going to do on the merits.

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We'd ask that you reach the merits as well.

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But the court of federal claims ruled against you on merits, on the two technical proficiencies, right?

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That's right.

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It did.

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So you'd have to overcome both of those.

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Well, you mean to prevail in this court?

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Yes, we would.

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But I would say to you, however, that part of prevailing for us is getting rid of that

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organizational conflict of interest ruling, because it may have implications beyond this proceeding.

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I mean, it's a determination that our prior work disqualifies from any work in this space, or at least could be read that way.

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So we have an interest in that.

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Are you actually opposed to a remand to deal with the OCI issue?

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Perhaps it would be a remand all the way back to the Army.

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Because as you point out, the contracting officer didn't, in a timely fashion, deal with the conflict.

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So is that something you would want us to consider?

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That's always a possibility, but we don't think it's necessary here for the very reason that there's no reasonable court

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or contracting officer that could look at this situation and come up with a different conclusion.

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And the principal reason for that, we have three different categories of evidence, but the principal reason for that is the sunset provisions in the agreements.

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Even if you assumed that there was, and the reason that's the easiest route is it assumes that there's a conflict of interest.

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It assumes there was a conflict of interest, at least theoretically.

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But even if you assume that there was a conflict of interest, the contracts clearly provide that those conflicts

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were sunsetted after four years and one year respectively in both of those agreements.

[00:04:03] Speaker 05:
What about the FAR 9.505-1, which seems to say you shall not participate in this contract?

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Is there any authority that indicates that can be sunsetted?

[00:04:13] Speaker 02:
Well, yes.

[00:04:14] Speaker 02:
9-507-1 specifically says you have to address that sort of... dash 2.

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dash two specifically addresses the

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Violations and it has the Court of Federal Claims or this court interpreted the interaction between you know, you know this and so this court has discussed for one side I just want to understand what you would like to happen if I Recognize you think no reasonable person could reach the opinion that the contracting officer here did mind you after the fact but if we think it's more complicated than that and

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and that a reasonable contracting officer could reach maybe two different views, what would you have us do at that point?

[00:05:05] Speaker 02:
Well, I mean, look, you've discussed the possibility of a remand.

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That would be better than ruling against this, that's for sure.

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But we think that this court can interpret these provisions as a matter of law.

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And when you read them as a whole, 505-1 speaks to these CETA violations.

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Don't ask me why they're called CETA violations, because it's Systems Engineering and Technical Direction, which doesn't spell CETA.

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But you'd have to ask the contracting board that question.

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But 505-1 speaks to CETA violations.

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It uses the language shall, but it has to be read in light of the obligation of the contracting officer to determine a reasonable limit, a reasonable time limit, address those, mitigate those, and determine a reasonable time limit under 507.

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And 507-2 specifically uses a CETA

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example.

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Now it says that in the example that the contracting officer might determine that you have to ban participation for the life of the contract, but that's permissive and that's not what the Army did here.

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The Army specifically addressed the conflicts that it anticipated from these prior contracts, the S3 contract in 2013.

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the RG3, I always want to say R2D2.

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And I take it those are all factual findings.

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Those are those are all factual findings that were made by the contractor.

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Well, Your Honor, the contracting officer, this contracting officer, in this proceeding, didn't address this at all.

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And that's part of the problem with what the contracting officer did here.

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He did not address the prior contracts which were in the record.

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And his obligation under the FAR is to go look at the record and determine whether there was a problem.

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And this contracting officer

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didn't didn't didn't address that at all and and in you know in the post hoc declaration or certainly not at the beginning when he was supposed to do we have we have no decision in this case with respect to the OCI from contracting losses

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The contracting officer did do a post hoc analysis.

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Yes, no, that's right.

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I'm sorry.

[00:07:35] Speaker 02:
I misunderstood your question then.

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What I was saying was in the contracting officer's analysis, which is this declaration submitted to the lower court, in the contracting officer's analysis, the contracting officer didn't address these particular issues that we raised.

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There's no determination as to the sunset provisions.

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And the Court of Federal Claims didn't rely on the Declaration anyway.

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And the Court of Federal Claims didn't rely on the Declaration, but part of our argument there is

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The Court of Federal Claims should have been doing an APA type analysis.

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And the APA type analysis would have required rejection of the declaration anyway.

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But in the de novo view that the Court of Claims did, the Court of Federal Claims didn't look at these issues either.

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What the Court of Federal Claims kept saying repeatedly over and over again was there's no evidence.

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We had no evidence.

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Well, we had evidence.

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We had these prior contracts in the record.

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They clearly provided that this conflict of interest here was addressed.

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It was mediated.

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It was remediated.

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It was anticipated and remediated and sunsetted.

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And by the time that we bid, there was no conflict of interest under those provisions.

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right to rely on those contracts.

[00:09:10] Speaker 03:
Okay, so before we run out of time, unless my colleagues have further questions on the standing issue, maybe you should talk about the technical deficiencies and particularly the length of them.

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The argument is that the token wasn't operational hardware.

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and that you were treated differently?

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Our principal argument is that we were treated differently, Your Honor.

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But isn't the burden on you to show that you were treated differently?

[00:09:37] Speaker 02:
Yes, it is.

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And I think our showing was that, and I have to be careful here.

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Some of this is under seal.

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I'm going to speak in generalities here, Your Honor.

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But we had a device that did authentication.

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And that device, we were faulted for not including those in our measurements.

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And our point is our competitors had devices that did similar functions that weren't included in their measurements at all.

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It's that simple.

[00:10:10] Speaker 02:
They had an authentication device.

[00:10:15] Speaker 03:
But you didn't show that their authentication devices would have resulted in not satisfying the lecture part.

[00:10:23] Speaker 02:
Well, but that wasn't shown with us either.

[00:10:28] Speaker 02:
That's the point.

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The point is that the court, sorry, the contracting officer, indulged an inference in their favor that it didn't indulge in our favor.

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So I mean, there's no finding.

[00:10:41] Speaker 05:
The contracting officer said that they couldn't tell.

[00:10:46] Speaker 05:
There just wasn't enough in your description of the extra device and what it might do to length and weight, et cetera.

[00:10:53] Speaker 05:
I'm trying to also looking at your competitors' proposals didn't have the same concern.

[00:10:59] Speaker 05:
It doesn't seem like it's for treatment.

[00:11:02] Speaker 02:
Again, that's simply because they indulged in inference in their case.

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They looked at it and said that's close enough that they didn't say with us.

[00:11:10] Speaker 05:
Why isn't it a finding that we can tell that they still meet the swap measurements and we can't tell with you if you do?

[00:11:19] Speaker 02:
Well, I'm not sure that actually what you know, what the particular contractor says in the record here is there's an absence of evidence as to whether we meet the swap record.

[00:11:30] Speaker 05:
And there was no similar absence for your competitors.

[00:11:32] Speaker 02:
No, no, no, that's no, I'm sorry.

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What the competitor is saying is there is an absence of evidence as to them.

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And they're saying therefore, but the contracting officer indulged in inference that there wouldn't have been a problem.

[00:11:47] Speaker 03:
Lloyd, the government's theory, as I understand it, is that you had a burden to show that you complied with a length requirement, and you didn't do it.

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And you also had a burden to show that the other parties were treated differently, and you didn't meet that burden.

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So in each case, it's saying there's a burden on you, which you didn't meet.

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What's wrong with that?

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Well, I mean, we would simply submit that we did, Your Honor.

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And that's our argument.

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There's no record evidence that our device doesn't meet the swap

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Well, but the point is it's the absolute same as the other competitor who had the same situation and had an inference indulged in their favor.

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That may be not an argument that the court's willing to entertain, but that's our position on that.

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There's one other issue, and that's whether we could meet certain requirements to process data while we're doing authentication.

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And the answer to that is the record plainly reflects that there is a second port that allowed that sort of data processing to take place.

[00:13:11] Speaker 05:
Do we have to just determine whether it's reasonable to read the record contrary to what you said?

[00:13:21] Speaker 05:
Meaning if it's reasonable to read it that there isn't a second port, do we have to affirm if we reach the merits?

[00:13:27] Speaker 02:
Well, I mean our view is I guess under any standard.

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we would say we prevail.

[00:13:36] Speaker 05:
So you say it's unreasonable and unsupported.

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That's correct.

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And the reason for that is the technical appendix plainly says there is a second port.

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It says there is a second USB port that is available for use.

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Now, what the government said when it looked at that was, well, that looks like it's some future

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future plans.

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But that's not what it said.

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It said there is a second port.

[00:14:06] Speaker 05:
Wasn't it your bourbon as a bidder to make absolutely clear what it was that you were proposing to build for the Army?

[00:14:13] Speaker 02:
Yeah, absolutely.

[00:14:15] Speaker 05:
If there's doubts, they should be resolved against you, correct?

[00:14:18] Speaker 02:
Yes, if there are doubts, but I don't know how you can read a sentence that says there is a second court to mean something else.

[00:14:26] Speaker 02:
And, you know, with that, Your Honor, I'll reserve.

[00:14:31] Speaker 03:
Okay, we'll give you two minutes or a little.

[00:14:33] Speaker 04:
Mr. Faulkner?

[00:14:36] Speaker 04:
May I please the court?

[00:14:38] Speaker 04:
The court can affirm the trial court's decision for any one of four reasons.

[00:14:41] Speaker 03:
I don't understand the standing issue here.

[00:14:44] Speaker 03:
Is the technical deficiency, is that a standing issue here?

[00:14:49] Speaker 04:
Your Honor, that could be another basis that argument wasn't raised or addressed.

[00:14:54] Speaker 03:
Yes, I understand that.

[00:14:55] Speaker 03:
But I'm asking a hypothetical.

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That could be a standing issue also.

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They don't have standing because it was technically deficient.

[00:15:01] Speaker 03:
Yes, Your Honor, especially after this course is set.

[00:15:03] Speaker 03:
So anything on the merits that would result in a rejection of their bid would be a standing issue.

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There's no merits left.

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Everything is standing.

[00:15:12] Speaker 04:
Well, so that's not an argument we made in this case, Your Honor, but I think that it asks for protection.

[00:15:15] Speaker 03:
No, but that's the logical consequence of the argument that you're making, right?

[00:15:19] Speaker 03:
every merits issue becomes a standing issue.

[00:15:23] Speaker 04:
Your Honor, in this case, the issue of OCI was not a standing issue at all.

[00:15:27] Speaker 03:
Please answer the question.

[00:15:28] Speaker 03:
Under that theory, every merits issue becomes a standing issue.

[00:15:33] Speaker 04:
No, Your Honor, I don't think that's the case.

[00:15:34] Speaker 04:
Why is that not the case?

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So I think there are situations like this when you have an issue that comes up that wasn't addressed in the merits.

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And this came up, I think, in Myers and Klinikamp and both those decisions.

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Those aren't necessarily merits decisions.

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Those are standing decisions based on whether they're an interest or party or not.

[00:15:50] Speaker 03:
OK, what's an example of a case where the bid is deficient, where that wouldn't be a standing issue, under your theory?

[00:15:59] Speaker 04:
So I think partially it depends when it arises.

[00:16:01] Speaker 04:
But I think Myers and Clinicom are both good examples where you have the sole source.

[00:16:05] Speaker 03:
I mean, if it arises before the contracting office, there's a merits issue.

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But if you raise it later on, then it becomes a standing issue.

[00:16:12] Speaker 04:
So in Myers, for example, you have a sole source procurement.

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And you have a party wanting to challenge that sole source procurement.

[00:16:20] Speaker 03:
Is that the difference?

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And the issue in that case was... In my hypothetical, is the difference between

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whether the merits issue was raised before the contracting officer, which have been its merits issue, and whether it's raised later by the government, and then it becomes a standing issue.

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Is that the difference?

[00:16:37] Speaker 04:
Well, I think standing, of course, is what I was going to come up in these litigations.

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Do you understand what my concern is?

[00:16:44] Speaker 03:
I mean, the cases that Myers and all these other cases, those are quite different, because they involve a situation where somebody is challenging another

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bidders, uh, qualifications or whatever.

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Whereas here, this, the standing issue is, is the same as the merits of whether this, this bid should be accepted.

[00:17:04] Speaker 03:
I just, I'm having trouble seeing how that's a standing issue because it results in conflating the merits with standing in every case.

[00:17:12] Speaker 04:
Yes, Your Honor, so I think at this case, the issue of the OCI was actually, it wasn't related to the merits, because the merits was on the technical deficiencies, the three deficiencies.

[00:17:21] Speaker 03:
Well, it wasn't related to the merits of what was decided, but it is related to the merits of whether the, whether CACI had a qualifying bid.

[00:17:31] Speaker 04:
It was related to whether CACI was an interested party at the Court of Federal Claims, and that's what the Court found.

[00:17:37] Speaker 04:
It said you're not an interested party,

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because even if you prove that there was error in these three deficiencies, you still would not be eligible for a ward.

[00:17:46] Speaker 03:
So it seems to me that your standing argument creates a situation where the countering officer doesn't decide a merits issue, and you're saying, oh well, not to worry.

[00:17:56] Speaker 03:
You can come in later and treat that as a standing issue and have the court of federal claims resolve it.

[00:18:02] Speaker 04:
Well, I think it's just as any other standing analysis would be in front of the Court of Federal Claims once standing is challenged.

[00:18:09] Speaker 04:
So in this case, it wasn't even the government who brought up the standing issue.

[00:18:12] Speaker 04:
It was the intervener SNC.

[00:18:14] Speaker 04:
So what happened was CACI filed their motion for judgment on the administrative record.

[00:18:19] Speaker 04:
Intervener SNC filed their motion to dismiss.

[00:18:21] Speaker 04:
And then the government joined that motion to dismiss when it filed its cross-MJAR.

[00:18:26] Speaker 04:
And at that point, it was already at issue.

[00:18:28] Speaker 04:
And then the motion was based entirely on the pleadings and the administrative record at that point.

[00:18:32] Speaker 04:
So this is all happening without... This would have been put at issue regardless of the government's argument, if the government hadn't joined, or if the government hadn't tried to submit any evidence in support of its standing.

[00:18:43] Speaker 03:
But it's an issue that under our cases should have been brought up before the contracting officer and litigated there.

[00:18:50] Speaker 03:
Maybe it's not too late to send it back to have that happen.

[00:18:54] Speaker 03:
But I don't understand.

[00:18:55] Speaker 03:
how you can say that the merits issue about a qualifying bid is something that can be ignored by the contracting officer and brought up as a standing issue by the government once the case gets to court.

[00:19:08] Speaker 03:
That just doesn't seem right.

[00:19:09] Speaker 04:
So I don't think in this case that it was ignored so much as

[00:19:13] Speaker 04:
Their proposal was technically unacceptable.

[00:19:15] Speaker 04:
And I think it's quite common for the government in these situations to be making this OCI analysis or responsibility determinations once you have a potential awardee.

[00:19:23] Speaker 03:
Suppose the contracting officer had decided on OCI, Organization of Conflict of Interest, and hadn't decided the technical deficiency.

[00:19:33] Speaker 03:
Are you saying the government could come in later in the court of federal claims and say, ah, you don't need to reach the OCI issue because there's a lack of standing because of the technical deficiency?

[00:19:43] Speaker 04:
I think that would depend on the circumstances, Your Honor.

[00:19:45] Speaker 04:
There might be other standing arguments in there.

[00:19:48] Speaker 04:
Could you do that?

[00:19:50] Speaker 03:
Could you, under those circumstances, come in and say, well, we don't have to reach the OCI issue because there's a technical deficiency here that wasn't addressed by the contracting officer.

[00:19:59] Speaker 03:
And that's a standing issue.

[00:20:01] Speaker 03:
So court of cattle claims we want you to decide there's a lack of standing here because there was a lack of technical qualifications.

[00:20:07] Speaker 03:
Can you do that?

[00:20:09] Speaker 04:
I think, Your Honor, it's difficult to say in this hypothetical without more facts.

[00:20:13] Speaker 04:
I just think that situation wouldn't arise necessarily because... Well, the facts here.

[00:20:16] Speaker 03:
The facts of this case.

[00:20:18] Speaker 03:
The contracting officer didn't decide the technical qualifications, but he did decide the OCI.

[00:20:23] Speaker 03:
He said, OCI, you see, we don't need to reach that because there's a lack of standing because of a technical deficiency.

[00:20:31] Speaker 04:
Yes, so they just never arrived.

[00:20:32] Speaker 04:
They didn't get to that point in the process.

[00:20:33] Speaker 04:
That's correct, Your Honor.

[00:20:34] Speaker 03:
And under turning construction, I think... So that becomes a standing issue.

[00:20:38] Speaker 04:
In this case, yes, it was framed as a standing issue.

[00:20:40] Speaker 03:
No.

[00:20:41] Speaker 03:
In my hypothetical, the technical lack of technical qualifications becomes a standing issue.

[00:20:48] Speaker 04:
I think under asset protection that this Court has decided that can be a standing issue.

[00:20:53] Speaker 03:
It seems to be a problem with deciding the OCI issue by the Court of Federal Claims when the regulations say that the contracting officer can provide a waiver.

[00:21:02] Speaker 03:
It seems to contemplate also

[00:21:05] Speaker 03:
that under the regulations that the sunset provision would apply.

[00:21:09] Speaker 04:
So I think that goes to the preponderance of evidence and the weighing of the evidence.

[00:21:14] Speaker 04:
I think in the case of the Sunset clauses, those clauses did not actually get to what services were provided, which I think is the biggest issue with those Sunset clauses.

[00:21:24] Speaker 04:
Of course, as we say in our brief, those clauses can also be waived by the government, and certainly there's nothing in those clauses that divests a contracting officer in the future of having to analyze an OCI on its own terms.

[00:21:35] Speaker 05:
And I think the final point on those... Do you think we should consider the Sunset provisions?

[00:21:40] Speaker 04:
They were in the record.

[00:21:42] Speaker 04:
I don't think it's referenced in the pending, Your Honor.

[00:21:44] Speaker 04:
The one finding or fact they did make is that CACU didn't submit any evidence to show that they didn't provide these services.

[00:21:52] Speaker 05:
What, if anything, is your position on whether we should remand all the way perhaps to the contracting officer?

[00:22:00] Speaker 05:
to do a proper evaluation as to whether or not CACI is burdened by an OCI.

[00:22:07] Speaker 04:
So in this case, that shouldn't be necessary since their proposal is already technically unacceptable.

[00:22:12] Speaker 04:
So there's no reason to get to that OCI analysis.

[00:22:13] Speaker 05:
Is there no remedy for it?

[00:22:14] Speaker 05:
Let's just assume for the sake of argument that the OCI finding is wrong, and they claim they're burdened by it, and it may impact them in a future bid.

[00:22:24] Speaker 05:
Is there no remedy for that?

[00:22:26] Speaker 04:
Well, I don't think there's any harm in this case to CACI from a finding on the preponderance of the evidence in a dispute over standing.

[00:22:37] Speaker 04:
There has been no formal agency action.

[00:22:39] Speaker 04:
The Army never said, OK, you're eligible for award, but we're going to take that away because we do think you have an OCI.

[00:22:46] Speaker 05:
Is it not something they might confront in the next bid?

[00:22:49] Speaker 05:
That is, here is a judicial finding of an OCI?

[00:22:56] Speaker 04:
uh... compete in future awards related this program uh... then presumably the CEO at that point will have to address whether there is uh... an OCI or not we also have to address the issue because it's framed as a standing issue it states your honor's jurisdiction yes your honor absolutely

[00:23:15] Speaker 03:
But so how do you get around, in terms of the sunset provision, how do you get around 9.5072, which contemplates there could be situations in which there will be an end date to systems in engineering and technical direction work on the original contract?

[00:23:35] Speaker 04:
So I think in this case, 9.505-1 is clear that if you provide these services, you shall not provide for the follow-on system.

[00:23:46] Speaker 05:
The court federal claims didn't address that, and we haven't, correct?

[00:23:49] Speaker 04:
That's right.

[00:23:50] Speaker 04:
So I'm not aware of that.

[00:23:51] Speaker 04:
I don't think this court has ever addressed a seated case like this, as far as I'm aware, Your Honor.

[00:23:56] Speaker 04:
I think a turn of instruction is an OCI case.

[00:23:59] Speaker 04:
But in terms of seated itself, I'm not aware of that.

[00:24:02] Speaker 04:
But I do think, in the terms of what the Court of Health claims did in this case, I think it is consistent with Myers and Klinikoff in this court, where those sorts of decisions were made when there wasn't an agency decision.

[00:24:14] Speaker 04:
There wasn't an agency decision made on responsibility.

[00:24:16] Speaker 03:
Can you cite a single case in which an issue about the merits of the contractor's bid has been treated as a standing issue?

[00:24:25] Speaker 03:
That's not Myers.

[00:24:27] Speaker 03:
That's not these other cases.

[00:24:28] Speaker 03:
They're the standing issue.

[00:24:30] Speaker 03:
was existed because the contractor was saying that another party's bid wasn't compliant.

[00:24:37] Speaker 04:
Well, there the issue was whether they were responsible bidders.

[00:24:40] Speaker 04:
So that would get to the merits eventually.

[00:24:41] Speaker 04:
They just didn't get that far.

[00:24:42] Speaker 03:
Yes.

[00:24:43] Speaker 03:
But in a situation where what's before the court is not the merits of the challenging party's bid, do you understand the difference?

[00:24:54] Speaker 04:
Yes.

[00:24:54] Speaker 03:
Yes, Your Honor.

[00:24:57] Speaker 03:
Can you cite a case in which where the issue goes to the merits of the contractor's bid that the government can come in and raise a different merits argument than the one that the contracting officer raised and treat that as a standing issue?

[00:25:15] Speaker 04:
So I don't think so at the Federal Circuit.

[00:25:18] Speaker 04:
I think that sort of analysis is done at the Court of Federal Claims.

[00:25:21] Speaker 04:
And we cite a string of cases where the courts say, if the government overlooks an issue that's disqualifying, we can look at that in the context of standing.

[00:25:36] Speaker 04:
So I do think those cases are happening at the Court of Federal Claims.

[00:25:39] Speaker 04:
And we cite those in our briefs, including Otto Consultant and others.

[00:25:44] Speaker 04:
so that does happen below but at the Federal Circuit I'm not aware of any, Your Honor.

[00:25:50] Speaker 03:
Anything further?

[00:25:53] Speaker 04:
Okay, thank you.

[00:25:57] Speaker 00:
Mr. Hellman?

[00:25:59] Speaker 00:
Good morning, Your Honor.

[00:26:00] Speaker 00:
It's Matthew Hellman on behalf of the Appellee General Dynamics Mission Systems.

[00:26:04] Speaker 00:
I want to say a few words about standing and the disposition of this case, but also the merits as we're talking about them in terms of the deficiencies.

[00:26:12] Speaker 00:
A couple of points.

[00:26:13] Speaker 00:
Just so the Court is clear on what was actually presented and argued below,

[00:26:18] Speaker 00:
There was no argument by my friends on the other side below that the consideration of the other intervenors' motion raising the conflict issue was improper or otherwise not appropriate as a standing issue in front of that court.

[00:26:33] Speaker 00:
So that's one issue of forfeiture.

[00:26:35] Speaker 03:
But because it is a standing issue, because it is jurisdictional, we have the obligation to look at it regardless of the arguments that may come.

[00:26:42] Speaker 00:
Well, it's a statutory standing issue, Your Honor.

[00:26:44] Speaker 00:
So that's another clarifying point that I hope is helpful to the Court.

[00:26:47] Speaker 00:
This is not an Article III issue.

[00:26:49] Speaker 00:
It doesn't go to justiciability or this Court's power under the Constitution to hear the case.

[00:26:55] Speaker 00:
It is a statutory argument.

[00:26:57] Speaker 00:
And under Steel Co., which is the

[00:26:59] Speaker 00:
progenitor of the whole, what do you consider first?

[00:27:02] Speaker 00:
Footnote two of that decision makes very clear that statutory standing, in part because it often does look like a merits argument for the reasons that you're talking about, Your Honor, isn't necessarily something that has to be considered ahead of other merits kinds of arguments.

[00:27:17] Speaker 00:
Like I said, two other things about standing in my time here.

[00:27:20] Speaker 00:
The primary submission for my friend is about the Sunset Provisions and Section 9.507-2.

[00:27:28] Speaker 00:
Neither the Sunset Provision nor that particular provision of law were invoked by my friends on the other side below as legal bases for coming out the other way on the OCI issue.

[00:27:42] Speaker 00:
Those arguments are being made for the first time in this court.

[00:27:46] Speaker 00:
It's true that the contract was in the record.

[00:27:49] Speaker 00:
As we all know, putting a contract in the record is not the same thing as saying that we win because of this provision in the contract.

[00:27:55] Speaker 00:
That is an argument based on the contract, not the same thing as simply putting it into the record.

[00:28:03] Speaker 00:
I think all of that should lead this court to affirm with respect to the OCI.

[00:28:10] Speaker 00:
But even if the court has questions about that, it can and indeed

[00:28:14] Speaker 00:
must proceed to the other grounds that were found as an independent basis based on factual findings for finding the other side's proposal deficient.

[00:28:24] Speaker 00:
Let's talk about both of them.

[00:28:25] Speaker 00:
And again, we get into confidential material here.

[00:28:29] Speaker 03:
So I need to be careful at the time.

[00:28:31] Speaker 00:
Well, we encourage the court to stand on our briefs on that point.

[00:28:35] Speaker 00:
And I'll just add that with respect to the swap question,

[00:28:40] Speaker 00:
Differential treatment requires proposals to be substantively indistinguishable as the legal standard.

[00:28:46] Speaker 00:
The Army made a decision that these were not substantively distinguishable, but were in fact different.

[00:28:51] Speaker 00:
Okay, I think we're on.

[00:28:52] Speaker 03:
Thank you, Your Honor.

[00:28:55] Speaker 03:
Thank you.

[00:28:57] Speaker 02:
Okay, Mr. Coughlin.

[00:28:57] Speaker 02:
One important correction, one important answer.

[00:29:01] Speaker 02:
The argument that we didn't raise this 9507

[00:29:04] Speaker 02:
argument below is simply incorrect.

[00:29:06] Speaker 02:
Document 55, page 13, our response and reply brief to the MJR.

[00:29:14] Speaker 02:
We say, the army who negotiated the S3 task order determined that whatever future conflict the applicable work might create, such conflict would no longer be relevant to future work requirements at a date well in advance of the agency's issuance of the November 2020 solicitation here.

[00:29:33] Speaker 02:
And then we actually cite an article

[00:29:35] Speaker 02:
that specifically quotes 9507-2.

[00:29:39] Speaker 02:
We didn't cite 9507-2, but we cited its substance right there, the very text of it.

[00:29:47] Speaker 02:
We didn't have a pin site for 9507, but the point is not waived at all.

[00:29:54] Speaker 02:
Myers and Clinicom, you heard, are sole source contracts.

[00:30:00] Speaker 02:
That means the contracting officer never had a reason to make the particular determination that was at issue in those cases.

[00:30:11] Speaker 02:
So the court made that determination in the first instance.

[00:30:14] Speaker 02:
That's not the case here where the agency has made a determination.

[00:30:18] Speaker 02:
It was just a faulty one.

[00:30:20] Speaker 05:
think that with that Mr. Hellman mentioned Steel Co.

[00:30:23] Speaker 05:
and says this is a statutory standing question before us and we can just essentially ignore it and move on to the merits.

[00:30:29] Speaker 02:
What's your view about that?

[00:30:36] Speaker 02:
First of all, it's statutory, but it's part and parcel of what Article 3 applied to this particular context.

[00:30:50] Speaker 02:
What the courts have said is that this is more stringent

[00:30:54] Speaker 02:
than Article 3 because it requires certain things.

[00:30:58] Speaker 02:
But it is a threshold determination that has to be made by this court.

[00:31:03] Speaker 03:
Well, you'd have to have an interest to have Article 3 standing.

[00:31:05] Speaker 02:
Correct.

[00:31:06] Speaker 02:
And it's economic.

[00:31:08] Speaker 02:
That's what this is all about, the economic interest.

[00:31:11] Speaker 02:
That's what this falls under.

[00:31:13] Speaker 02:
Judge Dyke, your question, if you assume that the contracting officer had done everything right and had made this determination at the beginning,

[00:31:22] Speaker 02:
never reached the deficiencies, but made this determination at the beginning.

[00:31:28] Speaker 02:
We, of course, would have standing to challenge that, because the issue in standing is, if we win our merits portion of the appeal, would we get relief?

[00:31:41] Speaker 02:
And that standard would be satisfied here.

[00:31:45] Speaker 02:
So I think your instinct is correct.

[00:31:50] Speaker 02:
that they're trying that you know they have essentially tried to backdoor the merits into the standing here and that's in problem.