[00:00:12] Speaker 05:
We have four cases on the calendar this morning.

[00:00:17] Speaker 05:
Two employee cases, one from an arbitrator and one from the board.

[00:00:21] Speaker 05:
A bid protest case from the claims court and a patent case from the PTAB.

[00:00:32] Speaker 05:
The MSPB case will not be argued.

[00:00:37] Speaker 05:
It's being submitted on the briefs.

[00:00:39] Speaker 05:
And we will hear two cases.

[00:00:46] Speaker 05:
First, the claims case, a little out of order, and then the arbitrator case.

[00:00:52] Speaker 05:
And then we will briefly adjourn for a few minutes and then return with a slightly modified panel, no less distinguished.

[00:01:04] Speaker 05:
Now, first case.

[00:01:08] Speaker 05:
This is AFGE Local, 1923, versus the Social Security Administration, Mr. Galliato.

[00:01:18] Speaker 05:
No, I'm sorry.

[00:01:21] Speaker 05:
First case is Electromad versus the United States, 2019-12-66, Mr. Crucius.

[00:01:30] Speaker 00:
Thank you, Your Honor.

[00:01:30] Speaker 00:
I am prepared to argue this case.

[00:01:32] Speaker 06:
But not the other one.

[00:01:33] Speaker 06:
Before you begin, Mr. Kurtzikowski, I've questioned the opinion in this case of originalization under seal when it was released.

[00:01:40] Speaker 06:
all of the briefs in the case are not more confidential, but the appendix is.

[00:01:45] Speaker 06:
Is there anything in the appendix that is still confidential, or was that just, are we restricted, you know?

[00:01:52] Speaker 00:
Not that I'm aware of, Your Honors.

[00:01:53] Speaker 00:
I think the main thing that was restricted in the appendix were the affidavits filed by the plaintiffs.

[00:02:01] Speaker 00:
But those aren't really at issue in this case.

[00:02:03] Speaker 00:
I don't think they will be at all.

[00:02:06] Speaker 00:
So I don't anticipate

[00:02:08] Speaker 06:
Do you know whether your co-counsel will take the same position?

[00:02:15] Speaker 06:
There's nothing previous.

[00:02:16] Speaker 06:
How about the government?

[00:02:17] Speaker 04:
Okay, thank you very much.

[00:02:20] Speaker 06:
I just didn't want to be constricted when it comes down to writing the opinions.

[00:02:24] Speaker 00:
I appreciate that, Your Honor.

[00:02:25] Speaker 00:
Thank you.

[00:02:25] Speaker 05:
Mr. Woodard, you want to reset it at 15?

[00:02:30] Speaker 06:
Thank you.

[00:02:35] Speaker 05:
Please proceed.

[00:02:36] Speaker 00:
Good morning, Your Honors.

[00:02:37] Speaker 00:
May it please the Court?

[00:02:38] Speaker 00:
My name is Eric Cruces.

[00:02:39] Speaker 00:
I'm here from Holland and Ike for the appellants.

[00:02:42] Speaker 00:
With me at the table is Greg Hallmark and David Black, also from Holland and Ike.

[00:02:46] Speaker 00:
We're here asking the Court, this Court, to reverse the Court of Federal Claims motion.

[00:02:50] Speaker 03:
Could I understand what's going on here?

[00:02:53] Speaker 03:
As I understand it, these master agreements, or whatever you want to call them, expire in six months.

[00:03:02] Speaker 03:
Is that right?

[00:03:04] Speaker 00:
as uh... as they stand right now under the current day-to-day specific date what's the date it's eight i believe it's april of twenty twenty and and uh... the supply contracts

[00:03:16] Speaker 03:
distributors have entered into, do those go beyond that six month period?

[00:03:20] Speaker 00:
I believe they end right at that six month period as well.

[00:03:23] Speaker 03:
Okay, so it seems to me a little difficult for the government to do anything to come into compliance with the statute in the six month period.

[00:03:38] Speaker 03:
What do you understand

[00:03:40] Speaker 03:
is the situation with respect to new agreements that would come into effect after the six-month period is over with.

[00:03:47] Speaker 00:
Well, as I understand right now, the government has issued new solicitations for a new MSPB program that they call MSPB 2.0.

[00:03:55] Speaker 00:
In fact, they just issued and updated.

[00:03:56] Speaker 00:
They had withdrawn a solicitation that they had issued last month.

[00:04:01] Speaker 00:
They reissued it in late, I think last week sometime.

[00:04:05] Speaker 00:
And the expectation is that they would carry on with that solicitation.

[00:04:11] Speaker 03:
Is it your view that the new solicitation complies with the law or not?

[00:04:16] Speaker 00:
I think it's a lot more compliant with the law.

[00:04:19] Speaker 00:
I think in a lot of respects, it gives the power back.

[00:04:24] Speaker 00:
It allows the SDVOSBs to contract directly with the federal government as they had before.

[00:04:30] Speaker 00:
It's not, I've looked at it pretty closely and it's not entirely clear.

[00:04:35] Speaker 00:
whether the government would have to comply with the rule of two, but that bond between the government and those SDSBs that allowed them to contract together with each other, it would be back again.

[00:04:46] Speaker 00:
And I think that would bring in all those requirements that were in our complaint that we were worried about that would be washed away.

[00:04:54] Speaker 00:
That being said, there's nothing that has committed the government to carrying on with these solicitations.

[00:05:00] Speaker 00:
As you know, the government can withdraw a solicitation, they can cancel a solicitation, especially in the face of a protest or something like that.

[00:05:07] Speaker 00:
And there's nothing to stop the government from issuing another JNA along the same vein that they have before.

[00:05:12] Speaker 03:
Have they issued the solicitation already?

[00:05:15] Speaker 00:
Yes, they issued it, withdrew it, and reissued it again last week.

[00:05:20] Speaker 03:
And is the solicitation being challenged?

[00:05:23] Speaker 00:
not as of yet, but the closing date for the solicitation is not till the end of the month, of this month.

[00:05:28] Speaker 00:
So it's not clear whether it's going to be challenged, and it's not clear.

[00:05:31] Speaker 00:
It's already been canceled and reissued.

[00:05:33] Speaker 00:
It's not clear whether that's going to happen again or whether it's going to be extended.

[00:05:38] Speaker 06:
That's entirely possible.

[00:05:39] Speaker 06:
Is it your understanding that the master list, the formulary, so to speak, which now has some 30,000 plus items on it, ceases to exist in October of 2020?

[00:05:51] Speaker 00:
That's a pretty complicated question, because what happened was when the... Let me ask you simply this way.

[00:05:58] Speaker 06:
After 2020, until those specific items are repopulated on the list as a result of competitive bidding or whatever,

[00:06:07] Speaker 06:
Will orders be placed against those existing items?

[00:06:12] Speaker 00:
Right.

[00:06:12] Speaker 00:
My understanding is that they'd have to reissue, start from scratch with the new formulary.

[00:06:16] Speaker 00:
But I just want to point out that I looked at the formulary list.

[00:06:19] Speaker 06:
Well, maybe the government probably knows the answer to this better than you, right?

[00:06:23] Speaker 00:
Probably, probably does.

[00:06:25] Speaker 00:
I mean, the issue is that I anticipate the fact that when they switch to this new program, that they'd have to start the formulary from scratch.

[00:06:34] Speaker 00:
But if you look at the current formulary today, there is some holdover from... What do you mean by the word formulary?

[00:06:40] Speaker 00:
So that's the list.

[00:06:42] Speaker 00:
So what happens is the government, in the current system that we're challenging right now, the government and the prime vendors essentially get together and decide what products they want on a list that the hospitals can order from.

[00:06:55] Speaker 00:
And that list of products is called a formulary.

[00:06:58] Speaker 06:
And the prime owners are the four contract holders?

[00:07:01] Speaker 00:
That's correct.

[00:07:01] Speaker 00:
And they're the ones who go out and find the subcontractors or find the distributors or find the manufacturers in order to bring those manufacturers to the government with a price, a proposed price, proposed product and say, we think this should be on the list.

[00:07:16] Speaker 06:
that the hospital price is discussed between the four primes and the various suppliers and then the government, the VA has a sign off on that price?

[00:07:24] Speaker 00:
Correct, yes.

[00:07:25] Speaker 00:
But the VA doesn't necessarily have insight into how that price came to be or anything like that.

[00:07:31] Speaker 00:
They're just told, the VA's just told a price.

[00:07:33] Speaker 00:
They presumably can ask the prime vendor how they got to that price, but there's no requirement in the contracts that the prime vendor disclose anything about how they got to that price.

[00:07:42] Speaker 03:
So suppose we were to agree with the Court of Federal Claims and say, OK, because of the public interest factor, there's nothing we can do with respect to this contract, which expires only six months from now.

[00:07:56] Speaker 03:
What is your position as to what we should do under those circumstances?

[00:08:01] Speaker 00:
There's two issues with that.

[00:08:06] Speaker 00:
It's our opinion that the decision at the court for claims gives the government too much leeway to decide something because they made a blanket statement in a justification that veterans lives would be harmed or the system is the only way to go when there are obviously other systems to use.

[00:08:25] Speaker 00:
But what we were asking for at the court for claims is just to keep the status quo.

[00:08:30] Speaker 00:
The VA was using a system that was not working perfectly, but as they admitted in the J&A, it wasn't working perfectly because they had management problems, and they had problems issuing solicitations, and their method of issuing solicitations according to industry was incorrect.

[00:08:46] Speaker 00:
And instead of fixing that problem, they went off in a completely different direction.

[00:08:50] Speaker 03:
Yeah, but I don't think you're really addressing my question.

[00:08:53] Speaker 03:
I'm asking to assume hypothetically, and I'm sure you don't like the hypothetical,

[00:08:57] Speaker 03:
but that we agree with the Court of Federal Plains that as a matter of the public interest factor, there's nothing that can be done with respect to this contract, which expires in six months.

[00:09:09] Speaker 03:
If we take that position, hypothetically, what do you want us to do?

[00:09:16] Speaker 00:
I would want the court to essentially rule that this kind of action by the government, even though because there's six months left, maybe the court is constrained, that these kind of actions by the VA are not within the public interest when you look at the whole runway of a JNA that's- For the future, you mean?

[00:09:39] Speaker 06:
For the future, yeah.

[00:09:40] Speaker 06:
But if we say that, not in the public interest, then we upset the ruling by Judge Bergen.

[00:09:46] Speaker 06:
Judge Dyke is asking you what happens.

[00:09:49] Speaker 06:
I think what he's essentially asking you is whether you are asking us to impose any injunctive relief on the government, assuming we affirm Judge Brunking's decision.

[00:10:03] Speaker 06:
Yes.

[00:10:03] Speaker 06:
I mean, for example, are you saying that we should write an opinion in which we say whatever happens after

[00:10:10] Speaker 06:
2020 the government is required to comply with all laws in connection with any formularity it may try to propose in the future.

[00:10:20] Speaker 00:
That's correct and that's what I would that's what we would be seeking obviously is that.

[00:10:23] Speaker 06:
That's pretty bold isn't it.

[00:10:25] Speaker 06:
I mean, we don't know yet what the government is proposing to do.

[00:10:29] Speaker 06:
We haven't heard from the government yet, which I still want to know whether or not the government is going to continue to use the formulary while they take the time competitively to populate 30,000 items.

[00:10:43] Speaker 06:
If the record is true from the past, if you want to have 30,000 items on the formulary, it would take the government at least six years to populate it.

[00:10:52] Speaker 06:
if you use the number that they got on the list using competition before, right?

[00:10:57] Speaker 00:
Right, and I would say even now the formulary has.

[00:11:00] Speaker 06:
And so where are the hospitals supposed to get their goods for the next six years?

[00:11:04] Speaker 00:
I mean, what we would seek is that the VA do what they were doing before in just a more efficient manner, which is running competitions and allowing potential bidders out there, allowing STBOSBs and other companies to bid on... I mean, using the methods required by law, but they got two, three hundred items on the list in a nine-month period.

[00:11:30] Speaker 00:
They had a little bit more success than that, but they haven't had much success since.

[00:11:34] Speaker 00:
There's only about 15,000.

[00:11:35] Speaker 06:
And as I understand it, when they got the list populated up around 6,000 or something like that, 90% of those had not been done by competition.

[00:11:46] Speaker 00:
That's correct, Your Honor.

[00:11:48] Speaker 06:
So when they populated the list initially, they were not using competitive methods.

[00:11:52] Speaker 06:
They were individually having JNAs one by one, right?

[00:11:56] Speaker 00:
Right.

[00:11:57] Speaker 00:
But folks had an opportunity to challenge that.

[00:11:58] Speaker 00:
They thought that was unlawful, in some respect.

[00:12:01] Speaker 00:
And there were some competitions as well.

[00:12:04] Speaker 06:
But going back to- But that was the whole problem with the delay, was whether it was kingdomware or whatever.

[00:12:10] Speaker 06:
If you're trying to populate this list one item or a group of items at a time, subject to a protest, it slows everything down, right?

[00:12:19] Speaker 00:
That's correct.

[00:12:19] Speaker 00:
And what industry said is group some products together to put them on the formulary together.

[00:12:25] Speaker 00:
We want you to bid products together.

[00:12:27] Speaker 00:
That's a lot more of an efficient matter.

[00:12:29] Speaker 00:
But all these management challenges are challenges that they have.

[00:12:33] Speaker 06:
How did the four primes manage to get 30,000 items on inside of two or three months?

[00:12:39] Speaker 00:
Because I didn't have the laws stopping them.

[00:12:41] Speaker 00:
They didn't have the competition in contract.

[00:12:43] Speaker 06:
No, but did they just simply take a product list from a group of people and slap it on?

[00:12:48] Speaker 00:
They, one thing, a few things happened.

[00:12:50] Speaker 00:
One, the VA went to the prime vendors and provided them information about manufacturers and suppliers and things like that.

[00:12:58] Speaker 00:
But also, these companies were not constrained by having to run a competition, having to follow the law.

[00:13:04] Speaker 00:
That was part of our point.

[00:13:05] Speaker 00:
They didn't have to look at the rule of two and decide, we have to look at SDVOSBs first.

[00:13:11] Speaker 00:
Or we don't have to have any kind of competition at all.

[00:13:13] Speaker 00:
There's no protest.

[00:13:15] Speaker 00:
It's a very clean, it's a very efficient system.

[00:13:16] Speaker 00:
There's no denying that.

[00:13:17] Speaker 00:
But it doesn't make it lawful and it doesn't make it right.

[00:13:20] Speaker 00:
Or in compliance with the Competition and Contracting Act.

[00:13:24] Speaker 00:
And that was a lot of the issue that we had with it.

[00:13:28] Speaker 00:
so one thing just to think about is that yes the court did find that we had success in the merits and found that there was irreparable harm but the balance of the equities of course and the public interest as we've been discussing it were weighed in the government's favor I would posit that there is not a basis in the record to find that we had moved

[00:13:51] Speaker 00:
to supplement the administrative record, because when we received the administrative record, there was no evidence that the VA had gone under any deliberative process to determine whether this method was the right method, or that the system that they had in place was the wrong system.

[00:14:05] Speaker 00:
It's possible the system was the right system.

[00:14:07] Speaker 06:
They were just using it incorrectly, which is what... And when the government responded to you and there was nothing else in the record, they admitted that there had been no such studies.

[00:14:16] Speaker 00:
Right.

[00:14:16] Speaker 00:
And there's been no correspondence.

[00:14:18] Speaker 06:
Why did they have to have studies?

[00:14:20] Speaker 00:
I think in order for the government to take action, there doesn't necessarily have to be a study.

[00:14:25] Speaker 00:
There should be at least one email or one correspondence or one memo to show that they considered what they were doing.

[00:14:31] Speaker 06:
Well, they did consider whether or not these four primes were capable of distributing many, many, many thousands of items in a hurry, right?

[00:14:40] Speaker 06:
Distributing yes, but I understand that so they and they so they from a point of view of what did the government know?

[00:14:46] Speaker 06:
They knew that these four people all said if you were asking us within a 90-day period to satisfy one over 160,000 items on the list we could do it so they could distribute it.

[00:14:58] Speaker 06:
Right.

[00:14:58] Speaker 06:
And so the government also knew that those four people because they are already warehousing, right?

[00:15:05] Speaker 06:
From lots and lots of suppliers, they knew who a lot of suppliers were.

[00:15:09] Speaker 00:
that they knew at least some of them, but again the list was not populated to the VA satisfaction, so obviously there were a lot of suppliers not in the mix that they had no knowledge of, or else that list would have been a lot bigger.

[00:15:20] Speaker 00:
And even that document that Your Honor is referring to on page 302, the next page, it says,

[00:15:25] Speaker 00:
No distributor will agree to this without data on the supplies to be procured.

[00:15:29] Speaker 00:
No one can buy inventory of the items required or also not provided."

[00:15:32] Speaker 06:
So even there... That evidence is more supportive of their distribution capacity than their supply capacity, that's for sure.

[00:15:38] Speaker 00:
Right.

[00:15:39] Speaker 06:
And they don't... There's no... Why is it enough if the government says, we picked these four people, they're the major distributors, they've been distributing for the whole country, they know the industry.

[00:15:49] Speaker 06:
If they are warehousing stuff, they're warehousing it for suppliers, they know who they are.

[00:15:53] Speaker 06:
That's good enough for us.

[00:15:55] Speaker 06:
when we tell them here's 30,000 items we want.

[00:16:01] Speaker 06:
Why does the government have to have more in the way of research as to whether or not these four companies will be successful when we know from the track record that they were successful?

[00:16:12] Speaker 00:
Because the government was asking them to do a lot more than they were already doing.

[00:16:16] Speaker 00:
They had to go out and find a lot of new suppliers, and they had to negotiate pricing with those suppliers and enter into agreements.

[00:16:23] Speaker 06:
Even during the TRO phase, one of the basis... Having their previous, in the legacy program, weren't they required to negotiate price with suppliers?

[00:16:34] Speaker 00:
No.

[00:16:35] Speaker 00:
That was between the government and the STBOSB or contractor.

[00:16:39] Speaker 06:
to negotiate their distribution fee.

[00:16:43] Speaker 00:
Right, but that was fairly well standardized.

[00:16:45] Speaker 00:
But they didn't have the capacity to go out and find a lot of new suppliers, which is what the government was asking them to do.

[00:16:51] Speaker 00:
They didn't necessarily have that capacity.

[00:16:52] Speaker 00:
They may have had it, but the government certainly didn't investigate it, and there's no evidence that they did.

[00:16:58] Speaker 03:
Is it your view that the court of law claims here has authority to set rules for follow-on contracts as ancillary to its ruling in this case?

[00:17:19] Speaker 00:
No, and I don't think that, I think that refers to your earlier question, and that's not what I'm asking this court to do or asking the Court of Federal Acclaims to do.

[00:17:28] Speaker 00:
Just a recognition that perhaps the Court of Federal Acclaims was incorrect in evaluating the public interest, but that because it's later in the game, there's not much that this court can do about it.

[00:17:40] Speaker 00:
But I still posit that there is a lot that this court can do about it.

[00:17:43] Speaker 00:
All we're asking is that this court reinstate the system that was there and just start running competitions again.

[00:17:48] Speaker 00:
All we're asking is the government to run competitions for these products.

[00:17:52] Speaker 06:
How can we reinstate the previous system if we find there was no wrong in what, in Judge Brugge's decision?

[00:18:00] Speaker 00:
That might be.

[00:18:01] Speaker 06:
Judge Brugge's decision covers until April 20.

[00:18:04] Speaker 00:
Right.

[00:18:04] Speaker 06:
2020.

[00:18:06] Speaker 06:
So I don't understand how we can grant you that belief.

[00:18:13] Speaker 06:
without reversing it.

[00:18:16] Speaker 00:
It may wind up being technically, it may be a finding that as we stand now, there is a public interest in maintaining the system as it is, even if it is unlawful as the court found, as Judge Brugging found.

[00:18:30] Speaker 00:
But that back last year, the judge should have found in the other direction.

[00:18:36] Speaker 05:
Counsel, your time has expired.

[00:18:38] Speaker 05:
We'll give you two minutes for a bottle.

[00:18:39] Speaker 00:
I appreciate that.

[00:18:40] Speaker 00:
Thank you.

[00:18:42] Speaker 05:
from the government, Mr. Kerr.

[00:18:44] Speaker 05:
It's going to take 11 minutes, and then two other parties are going to state their name, rank, and serial number in two minutes each.

[00:18:52] Speaker 04:
May I please support?

[00:19:01] Speaker 04:
I'm David Kerr with the Department of Justice.

[00:19:04] Speaker 03:
Is it your view that the government has to comply with the law in the new procurements?

[00:19:10] Speaker 04:
Absolutely, Your Honor.

[00:19:12] Speaker 04:
I mean, the government has to comply with the law.

[00:19:15] Speaker 03:
Well, but now you're arguing it doesn't have to comply with law for the last six months here because it would be too disruptive.

[00:19:21] Speaker 03:
And I'm just trying to make sure that the government isn't arguing with respect to the new procurements that it would be disruptive

[00:19:29] Speaker 03:
to depart from this existing system, and it's necessary to continue to violate the law.

[00:19:37] Speaker 04:
The VA is committed to maximizing competition.

[00:19:43] Speaker 04:
It's in the VA's interest to maximize competition.

[00:19:45] Speaker 04:
OK, but that's not exactly responsive to my question.

[00:19:49] Speaker 04:
And I'm getting to a better

[00:19:53] Speaker 04:
The full response.

[00:19:54] Speaker 04:
And I can confirm that the new prime vendor contracts, there has been a solicitation for them.

[00:20:00] Speaker 04:
And that solicitation does not include this modification, this special emergency.

[00:20:06] Speaker 06:
What does it include?

[00:20:07] Speaker 06:
Is it just distribution?

[00:20:08] Speaker 06:
What is this solicitation?

[00:20:12] Speaker 04:
It essentially goes back to the original intended process where you have the prime vendors doing the distribution and the master list is populated with the variety of measures including blanket purchase agreements.

[00:20:24] Speaker 06:
But for the actual contract, it's for the prime contractors?

[00:20:28] Speaker 04:
It's for the prime contractors, the prime vendors.

[00:20:30] Speaker 06:
But just like these prime contractors who are distributors, not suppliers?

[00:20:34] Speaker 04:
That's correct.

[00:20:35] Speaker 06:
So it just would be, are they capable of running distribution facilities to serve the various units around the country?

[00:20:42] Speaker 04:
That's correct, yeah.

[00:20:43] Speaker 06:
So there's nothing in those, those are IDIQ contracts?

[00:20:49] Speaker 04:
You don't know.

[00:20:50] Speaker 06:
So how much do you actually know about this?

[00:20:52] Speaker 04:
Well, I looked up to make sure that the solicitation was made on September 27.

[00:20:58] Speaker 04:
Oh, yeah.

[00:20:58] Speaker 06:
I know, because that was because the original one was withdrawn abruptly without any explanation at all.

[00:21:05] Speaker 06:
And in the meanwhile, the VA has entered into a strategic partnership with the Defense Logistics Agency on this general subject.

[00:21:14] Speaker 06:
You're aware of that?

[00:21:16] Speaker 04:
I was aware that that was one option they were considering.

[00:21:18] Speaker 04:
I didn't know that.

[00:21:19] Speaker 06:
They've entered into it, so at least that's what the internet said.

[00:21:23] Speaker 06:
We don't know how that's going to affect any of this.

[00:21:26] Speaker 06:
Let me just turn to the question of the existing formula.

[00:21:29] Speaker 06:
As we speak now, do you know how many items are on it?

[00:21:34] Speaker 04:
Yes, there are 60

[00:21:39] Speaker 04:
ballpark 60,000?

[00:21:40] Speaker 04:
Yeah, approximately 60,000.

[00:21:41] Speaker 04:
And just to clarify for the court, the original intention was that there be one master list for all four prime vendors.

[00:21:48] Speaker 04:
When the VA went with the modification... At what point in time?

[00:21:51] Speaker 06:
Are you talking about the legacy program in the very beginning or the NG?

[00:21:57] Speaker 04:
The NG program pre-modification.

[00:22:00] Speaker 04:
pre-J.

[00:22:01] Speaker 04:
There was one master list for all four prime vendors.

[00:22:05] Speaker 04:
When modification was put into effect, they essentially needed that master list plus one master list for each of the prime vendors, because now the prime vendors were proposing supplies only for their jurisdiction.

[00:22:19] Speaker 04:
So each one, in a sense, had its own.

[00:22:22] Speaker 06:
You might carve the country up in four pieces.

[00:22:24] Speaker 04:
That's correct.

[00:22:25] Speaker 04:
Yeah.

[00:22:25] Speaker 06:
So when we talk about- After today, right now,

[00:22:30] Speaker 06:
Hospitals are ordering goods and certain goods from the four distributors, right?

[00:22:35] Speaker 06:
That's correct, Your Honor.

[00:22:36] Speaker 06:
And the goods are going to the hospitals on prices for the goods that were set up under the NG, right?

[00:22:44] Speaker 04:
That's correct.

[00:22:45] Speaker 06:
Non-competitively, right?

[00:22:47] Speaker 04:
Most of them are non-competitively.

[00:22:48] Speaker 06:
So that happens.

[00:22:49] Speaker 06:
So until 2020, that will continue.

[00:22:53] Speaker 06:
When the end of the contract battle continues, as of the date when the contracts come to an end, what happens to the formula?

[00:23:00] Speaker 06:
Does it stay in place or is it simply erased overnight?

[00:23:06] Speaker 04:
It's not erased overnight.

[00:23:07] Speaker 04:
There might be some carryover.

[00:23:08] Speaker 04:
For how long?

[00:23:11] Speaker 06:
If you look at what's in the record at page 123, 124, this is in the JNA, it says in essence that items that go on

[00:23:24] Speaker 06:
the formulary by the NG will be there for a period of 24 months and they'll stay on there until they are replaced one by one or however with competitively awarded functional equivalents.

[00:23:39] Speaker 06:
Is that correct?

[00:23:40] Speaker 04:
That's correct, Your Honor.

[00:23:41] Speaker 04:
Populating the master list or the formulary is an ongoing process.

[00:23:45] Speaker 04:
So new items.

[00:23:46] Speaker 06:
It hasn't begun yet, right?

[00:23:48] Speaker 04:
Well, yes it has.

[00:23:50] Speaker 04:
How do you know that?

[00:23:52] Speaker 04:
The VA has issued solicitations for new supplies to be put on the master list.

[00:23:58] Speaker 06:
The VA has.

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

[00:24:00] Speaker 06:
Well, that breaches the contract they have now with the four parties.

[00:24:04] Speaker 04:
No, the contract with the four parties, the modified contract.

[00:24:07] Speaker 06:
It was not exclusive?

[00:24:08] Speaker 04:
It was not exclusive, and it simply provided that the prime vendors would propose sources for supplies.

[00:24:15] Speaker 06:
But at least as of 2020, with 60,000 items on the list, there are a bunch of them that were put on

[00:24:25] Speaker 06:
by the primes, right, will stay there until they're taken off by competitive, by other processes, right?

[00:24:33] Speaker 04:
That's correct, Your Honor.

[00:24:34] Speaker 06:
How long will it take?

[00:24:36] Speaker 06:
Put it this way.

[00:24:36] Speaker 06:
Simla wanted to purge the list.

[00:24:39] Speaker 06:
I wanted to go through the 60,000 and pick every single one amount that was illegally created, which is what Brugge said.

[00:24:51] Speaker 06:
How long will it take to purge the list?

[00:24:53] Speaker 04:
I don't know, Your Honor, the matter of years.

[00:24:58] Speaker 04:
It would be quicker than the VA would have better success.

[00:25:04] Speaker 06:
In order to serve the public interest on behalf of the veterans and the hospitals, you can't simply take it off the list because otherwise the hospital is the only place to order.

[00:25:12] Speaker 04:
that that's correct your honor.

[00:25:15] Speaker 03:
I'm confused, help me here.

[00:25:16] Speaker 03:
I thought Mr. Crucia said that the contracts with the sub-vendors all expired with the expiration of these master agreements in six months and after that there had to be new contracts to acquire these items for the list.

[00:25:35] Speaker 03:
Is that correct?

[00:25:37] Speaker 04:
That's correct your honor.

[00:25:38] Speaker 04:
The prime vendor contracts will expire

[00:25:40] Speaker 04:
The date is March or April 2019.

[00:25:44] Speaker 03:
Can the sub-vendor contracts expire also?

[00:25:49] Speaker 04:
The prime vendors have to contract with the suppliers directly.

[00:25:53] Speaker 03:
And presumably, those contracts that they've entered into are only for the duration of their own contracts, right?

[00:26:02] Speaker 04:
Yeah, I assume that's the case.

[00:26:03] Speaker 04:
So if you have a new prime vendor, they'd have to have a point.

[00:26:05] Speaker 06:
Well, how do we know what the term of the contract is?

[00:26:08] Speaker 06:
Say a supplier who's supplying Q-tips.

[00:26:10] Speaker 06:
And he entered into a contract with one of the primes.

[00:26:14] Speaker 06:
How do we know what the terms of that contract are?

[00:26:17] Speaker 06:
How do you know?

[00:26:18] Speaker 04:
Well, the terms of the contract, the essential terms, are set forth on the master list.

[00:26:23] Speaker 06:
Yeah, but the 2020-D is a relationship between the VA and the four primes.

[00:26:28] Speaker 04:
That's correct.

[00:26:29] Speaker 06:
It has nothing to do with the sub-suppliers.

[00:26:32] Speaker 06:
Well, that's correct, although it's an assumption that those prime vendors have... Well, what Judge Dyke was just saying was an assumption based on what your adversary thought was the case.

[00:26:43] Speaker 03:
What I'm confused about is your exchange with Judge Clevenger about the population of the list, which seems to me to be something different than the existence of contracts between the prime vendors and the sub vendors.

[00:27:00] Speaker 03:
Everybody seems to assume that the contracts between the prime vendors and sub vendors are going to expire at the end of six months when the prime vendor government contracts expire.

[00:27:13] Speaker 03:
Are we in a situation where this solicitation that's put out requires these new prime vendors to enter into new contracts with the sub-vendors, which are subject to a different regime?

[00:27:29] Speaker 04:
That's correct.

[00:27:32] Speaker 04:
The new prime vendors will have to make contracts with the suppliers as it worked under the

[00:27:38] Speaker 04:
you know, the pre-modification as it worked under the system all along.

[00:27:42] Speaker 03:
Okay, so what does the new solicitation say that that process is going to be and how does it bring it into compliance with the law?

[00:27:53] Speaker 04:
Well, the prime vendors have to make a contract with the suppliers based on the amount and the terms from the master list.

[00:28:04] Speaker 06:
Explain to us how a hospital is going to get, they want to place an order for needles, right, after the April 2020.

[00:28:13] Speaker 06:
What happens?

[00:28:17] Speaker 06:
Just tell us what's going to happen and under whose contract will it work?

[00:28:23] Speaker 04:
Under the new contracts, new contracts don't exist yet.

[00:28:30] Speaker 04:
Right, so they'll order the needles and the prime vendor of that region and at that time will provide the needles.

[00:28:38] Speaker 06:
And they won't not, how will they, how will the prime, how is the prime vendor going to have in the warehouse the needles?

[00:28:46] Speaker 06:
Under whose contract?

[00:28:47] Speaker 04:
Well, under the contract with the VA, the prime vendor is warehousing the needles.

[00:28:52] Speaker 04:
I understand that.

[00:28:53] Speaker 04:
And based on the price from the master list is getting the needles from the supplier.

[00:28:59] Speaker 06:
As I understand it, what the prime distributor does is when they see their inventory and they see their supply of needles is declining, they call up one of their contracting suppliers and say, send us some more.

[00:29:12] Speaker 06:
Correct.

[00:29:14] Speaker 06:
At which point they have to pay the supplier.

[00:29:16] Speaker 05:
Your answer also is that this isn't on appeal.

[00:29:20] Speaker 05:
What's on appeal is whether the court heard in finding that the public interest overrode the likelihood that the contract would be found to be invalid.

[00:29:31] Speaker 05:
Your time is running out.

[00:29:32] Speaker 05:
Do you have one final comment on that?

[00:29:37] Speaker 04:
The Court of Federal Claims ruled that this temporary solution to fix the supply chain, to give the VA time to make all the corrections that we've been talking about, about the corrections in the proper leadership, the correction in bundling the goods to increase the master list quicker, and the clinical buy-in, all the things that the GAO had mentioned, that the VA agrees are necessary, but those are long-term.

[00:30:02] Speaker 04:
solutions.

[00:30:03] Speaker 04:
The VA needed a short-term solution.

[00:30:05] Speaker 04:
That short-term solution was the modification, and the Court of Federal Claims decided that the harm of adjoining the VA from using that modification would cause more harm than good.

[00:30:21] Speaker 03:
You make me nervous when you talk about long-term solutions.

[00:30:24] Speaker 03:
I guess what I'm interested in is come April, come the new contracts under this new solicitation, are they going to be

[00:30:32] Speaker 03:
compliant with the law.

[00:30:33] Speaker 04:
They will be compliant.

[00:30:35] Speaker 04:
Yes, the VA's new solicitation does not include the modification, does not include that process of putting items on the master list, which the Court of Federal Claims said was violative of the law.

[00:30:47] Speaker 04:
It does not include that.

[00:30:48] Speaker 04:
So the VA is, now that they've had this temporary measure to get back on it.

[00:30:54] Speaker 06:
Your best information answer is that you don't know exactly how

[00:30:59] Speaker 06:
supplies are going to be distributed to the hospitals in the future, you know that the VA plans to have distributors that probably cover restricted parts of the country.

[00:31:11] Speaker 06:
And just like in the olden days, the distributor warehouses the things that the VA feels it needs.

[00:31:17] Speaker 06:
And someone has created a set of contractual relationships that provide the warehouse with the supplies.

[00:31:25] Speaker 04:
The prime vendor has created that relationship based on what's on the master list.

[00:31:30] Speaker 03:
Yeah, but is the prime vendor going to comply with the rule, too?

[00:31:35] Speaker 04:
The new solicitation, it goes back to the old system, which follows the law.

[00:31:41] Speaker 04:
And if it doesn't, there can be another bid protest at that time for that contract.

[00:31:45] Speaker 03:
Yeah, but what's the answer to my question?

[00:31:47] Speaker 03:
There's a solicitation that was out on the 27th.

[00:31:49] Speaker 03:
Does that provide for the prime vendors

[00:31:54] Speaker 03:
abiding by the rule of two in acquiring these supplies from sub-vendors.

[00:32:00] Speaker 04:
Well, it wouldn't be the prime vendors, because the prime vendors are no longer doing that function.

[00:32:04] Speaker 04:
It would be the VA.

[00:32:05] Speaker 04:
And the VA has to follow the rule of two.

[00:32:07] Speaker 03:
So the VA is going to contract directly with the suppliers.

[00:32:10] Speaker 04:
The VA does.

[00:32:11] Speaker 04:
It goes out and it will make a blanket purchase agreement with the suppliers.

[00:32:15] Speaker 04:
And in that process, it has to follow the laws, including the rule of two.

[00:32:20] Speaker 04:
Then the supplier uses that blanket purchase agreement

[00:32:23] Speaker 04:
to make its own agreement with the, I'm sorry, the prime vendor uses that agreement to make its own agreement with the supplier for that price and that product and obviously that supplier.

[00:32:35] Speaker 04:
So the VA is negotiating these BPAs and it has to follow the law in doing so.

[00:32:40] Speaker 04:
It has to follow the rule of two.

[00:32:42] Speaker 03:
It has to follow the policy.

[00:32:43] Speaker 03:
I hear you saying is that the VA is going to contract with prime vendors who are going to acquire these supplies from sub-vendors

[00:32:54] Speaker 03:
and that you're going to comply with the law in contracting with the prime vendors, but it's not your business to determine that the prime vendors comply with the law in contracting with the sub vendors.

[00:33:06] Speaker 03:
And I understand that.

[00:33:07] Speaker 03:
No, I'm sorry.

[00:33:07] Speaker 04:
I'm not explaining myself very well.

[00:33:08] Speaker 04:
The prime vendor contracts are separate from how the master list is populated.

[00:33:17] Speaker 04:
So we have the prime vendor contracts

[00:33:19] Speaker 04:
that before the modification and now in the new one are just warehousing and distributors.

[00:33:28] Speaker 04:
So this case is about how that master list is populated.

[00:33:32] Speaker 04:
And in the new system, like the pre-modification system, the VA is going to populate it using existing agreements or new agreements that it negotiates with suppliers.

[00:33:43] Speaker 04:
Once it negotiates that agreement with the supplier, it puts the terms of that agreement on the master list, and then the prime vendor has to adhere to those terms.

[00:33:52] Speaker 03:
So they're no longer relying on the prime vendor to acquire their supplies.

[00:33:56] Speaker 03:
The VA is going to acquire them directly.

[00:33:58] Speaker 04:
Correct.

[00:33:59] Speaker 04:
Yes.

[00:34:00] Speaker 04:
That part was in the modification is not part of the new system.

[00:34:04] Speaker 05:
Thank you, counsel.

[00:34:05] Speaker 05:
You've essentially had your full 15 minutes.

[00:34:07] Speaker 05:
We have two other parties who are going to have two minutes, Mr. Schechender.

[00:34:15] Speaker 04:
Thank you, Your Honor.

[00:34:21] Speaker 02:
I appreciate the time.

[00:34:22] Speaker 02:
I would like to briefly just touch or focus on your question about why we're here today, which is this is an appeal of the harms determination and the weighing of the harms.

[00:34:31] Speaker 02:
The plaintiff succeeded on the merits.

[00:34:33] Speaker 02:
Judge Groogan found that the modification was illegal, but he found that the modification was necessary.

[00:34:38] Speaker 02:
It would be a short-term solution for no more than a maximum of 24 months.

[00:34:43] Speaker 06:
You represent one of the primes, right?

[00:34:44] Speaker 06:
Yes, I do.

[00:34:45] Speaker 06:
OK, so the contracts that you have with various suppliers

[00:34:51] Speaker 06:
pursuant to which you are loading up your warehouses, right?

[00:34:54] Speaker 06:
Yes, Your Honor.

[00:34:56] Speaker 06:
And will those contracts come to an end in April 2020?

[00:34:59] Speaker 06:
Do the terms of those contracts provide that they cease all of them?

[00:35:06] Speaker 02:
Yes, Your Honor.

[00:35:06] Speaker 02:
The prime vendor contracts with the VA.

[00:35:09] Speaker 06:
No, I'm talking about your contracts with the suppliers.

[00:35:12] Speaker 06:
You went out with the authority you had as a distributor.

[00:35:17] Speaker 06:
to go find, in my example, the supplier for needles.

[00:35:22] Speaker 06:
And you entered into a contract with the supplier of needles, figuring out the price that the needles would per needle cost.

[00:35:30] Speaker 06:
The VA presumably approved of that price.

[00:35:33] Speaker 06:
And you've got those goods in your warehouse, right?

[00:35:35] Speaker 02:
Yes, sir.

[00:35:36] Speaker 06:
Our ability to- That contract, say, with the Clevenger Needle Company, when does it, is it specified that it comes to an end in April 2020?

[00:35:43] Speaker 02:
Your Honor, the ability for the prime vendors to supply.

[00:35:46] Speaker 06:
Yes, I mean, you know what, are you aware of your contracts?

[00:35:50] Speaker 02:
Your Honor, the answer is it's not relevant.

[00:35:51] Speaker 02:
Pardon me?

[00:35:52] Speaker 02:
The answer is the length of those contracts is not relevant because the relationship here is between the prime and the VA.

[00:35:57] Speaker 02:
If we don't have a VA contract, we can't supply that.

[00:35:59] Speaker 06:
Don't tell me if it's, let me decide if it's relevant.

[00:36:03] Speaker 06:
It became relevant when we were asking questions about how long is tainted product going to stick in the inventory, right?

[00:36:11] Speaker 02:
And it won't stick beyond the April 20th.

[00:36:13] Speaker 06:
And someone represented that they thought the contracts that you have with your suppliers would terminate in April 20th.

[00:36:20] Speaker 06:
And I'm asking you the question, is that yes or no?

[00:36:23] Speaker 02:
The answer is it likely depends on the contracts.

[00:36:25] Speaker 02:
But the prime vendors cannot supply those products through the VA.

[00:36:29] Speaker 06:
Are you familiar?

[00:36:31] Speaker 06:
You can tell me you're not familiar, and therefore maybe you shouldn't be representing your client.

[00:36:36] Speaker 06:
But I'm asking you, are you familiar with the details of any single contract

[00:36:42] Speaker 06:
that your client has with a supplier?

[00:36:46] Speaker 02:
Yes or no?

[00:36:47] Speaker 06:
It's not fair of me to ask you these questions if you want to say you don't know the answer.

[00:36:52] Speaker 02:
I do not know the details of each of those contracts, Your Honor.

[00:36:56] Speaker 02:
However, the prime vendor's contracts with the VA and their ability to supply through this process only runs through April.

[00:37:01] Speaker 02:
The VA has already solicited and has on the street 28 separate supply contracts.

[00:37:06] Speaker 02:
Those contract, the solicitations have been out there.

[00:37:08] Speaker 06:
They are competitively being needed.

[00:37:11] Speaker 06:
April 2020, your relation to your contract with the VA ends.

[00:37:15] Speaker 06:
Yes.

[00:37:16] Speaker 06:
Does that mean that you will not fill an order from a hospital after April 2020?

[00:37:21] Speaker 02:
We will not have a contract under which to do so, Your Honor.

[00:37:24] Speaker 06:
You won't be able to fill an order.

[00:37:25] Speaker 02:
No, and that is why the relationships with our current sub-vendors does not pertain to this.

[00:37:31] Speaker 02:
The way the VA has reorganized this, there is a new solicitation for distribution for the new prime vendors and there are 28 separate solicitations already out there complying with the rule of two seeking new suppliers.

[00:37:44] Speaker 02:
Those solicitations have been out.

[00:37:46] Speaker 02:
Plaintiff's clients, to the extent they supply such services, can compete under those solicitations or if they have a problem with those solicitations, they can protest those solicitations.

[00:37:55] Speaker 05:
Thank you, counsel.

[00:37:56] Speaker 05:
Let's hear from this woman.

[00:37:57] Speaker 05:
Thank you.

[00:38:07] Speaker 01:
Good morning, Your Honors.

[00:38:08] Speaker 01:
May it please the court?

[00:38:08] Speaker 01:
I'm Kristen Idig for MEDLINE, and I'd be prepared to answer any questions that you have.

[00:38:13] Speaker 06:
And it's the same one in terms of your relationship with the VA ends in 2020, right?

[00:38:19] Speaker 06:
Correct.

[00:38:20] Speaker 06:
And so if a hospital called up in May of 2020 and said, we want you to fill some orders, if you haven't got a new contract, you can't do it.

[00:38:29] Speaker 01:
Correct, unless the contract has been extended or there's some other sort of vehicle, we would not have a way to fill that order.

[00:38:36] Speaker 01:
And if we weren't selected as a new contract.

[00:38:39] Speaker 06:
So if you've got a lot of inventory in your warehouse, you hope you're going to get a new contract, right?

[00:38:43] Speaker 01:
Right, but these are commercial companies that the government is doing business with here, and so they have other customers in addition to the government customers.

[00:38:49] Speaker 01:
And so if there's a huge supply of needles, there are also commercial hospitals that might need to have those as well.

[00:38:57] Speaker 03:
So what you say, unless the contracts are extended, is extension of the prime contracts on the table an issue on the table?

[00:39:06] Speaker 01:
It is not currently on the table, Your Honor, but I suppose it's possible that if the new solicitation for the new prime vendor distributor contracts and for the new 28 supply contracts that Mr. Schneckerberg referenced, if that is not complete, then it is possible.

[00:39:23] Speaker 06:
Well, it's almost probable.

[00:39:25] Speaker 06:
I mean, if you come to April 2020, it's sort of like a continuing resolution to give us money to run our court.

[00:39:31] Speaker 06:
The hospitals have to get the needles.

[00:39:33] Speaker 06:
They have to get the Q-tips.

[00:39:35] Speaker 01:
Right.

[00:39:35] Speaker 01:
The VA has, I think, taken Judge Brugink's admonitions to heart and is working quickly to put the new solicitation on the street.

[00:39:43] Speaker 01:
They issued the draft some time ago, and the process is well underway.

[00:39:47] Speaker 06:
Well, Juneau was pulled back in August, wasn't it?

[00:39:49] Speaker 06:
Pulled back in July or August?

[00:39:51] Speaker 01:
I believe it was first issued in June with proposals due in July.

[00:39:57] Speaker 01:
It was pulled back based on errors in the solicitation and then reissued at the end of September.

[00:40:02] Speaker 01:
And my understanding is that the intention is to issue the contracts by the end of the year so that they're well worth it.

[00:40:11] Speaker 06:
And as far as your client is concerned, that's a pure distributorship.

[00:40:14] Speaker 01:
right the primary contract is this distribution contract and that's the one that my client would be a distributor again and then separately there are these supply 28 supply contracts that would be used to populate the formulary

[00:40:35] Speaker 06:
And it's normal contracting methods, correct?

[00:40:38] Speaker 06:
Correct.

[00:40:39] Speaker 06:
Well, that's 28 RFPs for 60,000 items.

[00:40:44] Speaker 06:
Right.

[00:40:44] Speaker 06:
So they've grouped them to say... That doesn't cover the entire existing formulary, does it?

[00:40:49] Speaker 01:
I'm not sure, Your Honor, if it covers the whole formulary.

[00:40:52] Speaker 01:
I think it would, because they've grouped it into these 28 groups to say, here are all the optometry items that we need, here are all the surgical items that we need, so that they can

[00:41:01] Speaker 01:
get these big groups.

[00:41:02] Speaker 01:
Part of the problem that they had the last time around was they would put out a solicitation and say, who can provide us with the size 0.1 needle?

[00:41:09] Speaker 01:
And everyone would say, I don't want to bid on that.

[00:41:11] Speaker 01:
It's just one little thing.

[00:41:13] Speaker 01:
Group them together.

[00:41:14] Speaker 01:
And so they've grouped them together in these large groups to try to get it populated much more quickly than they could before.

[00:41:20] Speaker 05:
Thank you, Council.

[00:41:21] Speaker 05:
Thank you, Your Honor.

[00:41:23] Speaker 05:
Thank you.

[00:41:23] Speaker 05:
Mr. Poussius has two minutes for rebuttal.

[00:41:26] Speaker 00:
With respect to the current state of the formulary, if you look at their website, the VA has an updated formulary right on it.

[00:41:36] Speaker 00:
And as of today, for each prime vendor, there's about 20,000 products on the formulary.

[00:41:40] Speaker 00:
So it's not quite 60.

[00:41:41] Speaker 00:
Maybe if you add them all together.

[00:41:43] Speaker 00:
But each hospital only has the ability to order from one prime vendor.

[00:41:47] Speaker 06:
So right now- Right, but the prime vendors are serving regions, right?

[00:41:50] Speaker 00:
Right.

[00:41:50] Speaker 06:
So each region has a- So I mean, it's- and the hospitals in the region have to order from that prime, right?

[00:41:57] Speaker 06:
Correct, so- So 20,000 sounds like that's the total list, I mean- That's correct.

[00:42:02] Speaker 00:
As far as we're concerned, that's the number of products each hospital has access to.

[00:42:08] Speaker 00:
And about 5,000 or 6,000 of those were not impacted by the J&A.

[00:42:14] Speaker 00:
So the J&A only accounts for about 15,000 products per list.

[00:42:17] Speaker 00:
So it wasn't the efficient process or didn't work out the way that they intended.

[00:42:21] Speaker 00:
And you're on a point with the ECAT system with DLA and VA.

[00:42:25] Speaker 00:
Having an agreement together, I've been following that actually pretty closely.

[00:42:29] Speaker 00:
And I thought that was why they withdrew the solicitation originally, but they have reissued it.

[00:42:34] Speaker 00:
But it seems like they may be carving out some of the visions in the Northwest to end in Chicago.

[00:42:39] Speaker 00:
So I think it's still, the whole point is it's still a work in progress.

[00:42:43] Speaker 00:
And I would anticipate that the April 2020 date is probably a date that they want to meet, but it's not necessarily one.

[00:42:49] Speaker 00:
I wouldn't be surprised at all if this went on for quite a long time.

[00:42:53] Speaker 03:
Yeah, that raises the question of is there a concern here that these contracts that are the subject of this action could be extended?

[00:43:03] Speaker 00:
Yes, that's a grave concern that we have.

[00:43:07] Speaker 00:
Maybe grave is too strong a word you're on, but that's certainly a concern we have.

[00:43:12] Speaker 06:
And the extension would be subject to challenge, right?

[00:43:15] Speaker 00:
not necessarily no uh... because so if the gdn was extended that would be subject to challenge of the underlying contracts were extended not necessarily because they're not they were working on the underlying contract now is that the supplier contract with the primer what are we talking about the underlying i'm talking about the contracts between the prime vendors and the government if they are extended i don't necessarily think that if they extend the existing contract the existing contract

[00:43:45] Speaker 06:
is the J&A.

[00:43:48] Speaker 00:
Right.

[00:43:48] Speaker 00:
So the J&A also arrives as the modification.

[00:43:50] Speaker 00:
Right.

[00:43:51] Speaker 06:
So the question is, do they extend the contract as modified by the J&A, or do they extend the contract as originally issued?

[00:43:57] Speaker 00:
Right.

[00:43:58] Speaker 00:
That's a good question.

[00:43:59] Speaker 00:
We don't know the answer to that.

[00:44:01] Speaker 06:
And if they extend the contract with the J&A, are you a stop from challenging that by bugging its opinion?

[00:44:09] Speaker 00:
Possibly, I wouldn't want to paint myself into a legal corner at this point, but I could see that being an argument that DOJ, the government, would certainly raise.

[00:44:16] Speaker 00:
Absolutely.

[00:44:17] Speaker 00:
And that's a hurdle that we'd certainly have to overcome in the process.

[00:44:20] Speaker 00:
Because one of the arguments that the government made at the Court of Federal Claims was that this was not a cardinal change, which the Court of Federal Claims didn't accept that argument.

[00:44:30] Speaker 00:
in plain language in the decision.

[00:44:32] Speaker 00:
And I could see the government making that same argument where we're just extending contracts.

[00:44:37] Speaker 00:
They're not changing at all, so they're not challengeable.

[00:44:39] Speaker 00:
It's within the scope of our previous contract.

[00:44:41] Speaker 05:
Thank you, counsel.

[00:44:43] Speaker 05:
Cases submitted.

[00:44:45] Speaker ?:
Thank you.