[00:00:00] Speaker 00:
Case argument this morning is 20 dash one one nine four emergency planning management versus United States.

[00:00:07] Speaker 00:
Mr. Delisle, whenever you're ready.

[00:00:09] Speaker 01:
Thank you, your honor.

[00:00:13] Speaker 01:
May it please the court, Edward Delisle of off a Kerman on behalf of the appellant emergency planning management incorporated.

[00:00:22] Speaker 01:
Your honors, this case involves an issue that the federal circuit has not specifically addressed in the past.

[00:00:30] Speaker 02:
Mr. Delisle, do you, we have this 2019 Appropriations Act and I wasn't clear from your brief whether you agree or disagree that the act compelled the agency to bundle these two things in a single procurement.

[00:00:54] Speaker 02:
Do you agree with that or do you disagree with that?

[00:00:58] Speaker 01:
Your Honor, I disagree that the Appropriations Act of 2019 specifically requires the department to bundle these activities.

[00:01:08] Speaker 01:
I do believe that that's what it felt it required, but I do not believe that it specifically states such.

[00:01:18] Speaker 01:
In fact, Your Honor, on that specific point, the appropriation language itself

[00:01:28] Speaker 01:
speaks to certain limited exceptions within it, which opens up the possibility of other potential contracting opportunities as part of this particular program or solicitation.

[00:01:47] Speaker 01:
So I would suggest that simply by the nature of the verbiage in the Appropriations Act itself, it contradicts the basis

[00:01:57] Speaker 01:
that it must be bundled.

[00:01:59] Speaker 01:
I do understand that that's the position, however, that the government has taken, that the department has taken.

[00:02:05] Speaker 02:
OK, but you didn't really argue this in your brief.

[00:02:09] Speaker 02:
Are you saying that the certain limited exceptions language in the Appropriations Act means that it's not a universal requirement?

[00:02:17] Speaker 02:
Is that what you're arguing?

[00:02:20] Speaker 01:
That's certainly true, Your Honor.

[00:02:22] Speaker 01:
And the reason why we argued this in the manner that we did

[00:02:27] Speaker 01:
We understand that the agency has a certain amount of discretion with respect to how it is to interpret a directive such as this, and that's understood.

[00:02:40] Speaker 01:
Despite that discretion, it is our position that there was nothing in that appropriation of language which could be discerned as allowing the department to avoid

[00:02:56] Speaker 01:
going through and following through with the mandatory requirements of FAR Part 7.

[00:03:02] Speaker 02:
Well, I don't understand that.

[00:03:04] Speaker 02:
I mean, if there are procedural requirements here, it seems, and they weren't followed, and the government seems to agree that some of them weren't followed, it's certainly harmless error if they were compelled by the Approachations Act to bundle.

[00:03:22] Speaker 01:
We disagree with that position, Your Honor.

[00:03:24] Speaker 02:
Really?

[00:03:25] Speaker 02:
How?

[00:03:25] Speaker 02:
Why?

[00:03:26] Speaker 01:
Well, the reason that we differ with that position, there are a couple of different bases.

[00:03:33] Speaker 01:
The first is as part of the mandatory, what we consider to be mandatory bundling requirements of Part 7, there is the need during acquisition planning for the agency to coordinate with the Small Business Administration and as part of that process,

[00:03:56] Speaker 01:
to discuss alternatives and to maximize the ability for small business to participate.

[00:04:07] Speaker 01:
And that is extremely or was extremely important in this particular instance.

[00:04:12] Speaker 01:
It never happened and I think the government will admit that it didn't happen at the acquisition planning stage.

[00:04:21] Speaker 01:
But it was extremely important because had it occurred the way that it should have under FAR Part 7, alternative strategies could have been identified that would have allowed companies like the appellant to participate on a limited basis, which is consistent with the appropriations language, to participate as a prime contractor to the department.

[00:04:51] Speaker 01:
I don't understand.

[00:04:52] Speaker 02:
I simply do not understand what you're saying.

[00:04:55] Speaker 02:
If this statute required bundling, how does any procedural defect change the result because the agency wouldn't have a choice no matter what information is secured as a result of procedural compliance?

[00:05:14] Speaker 01:
I can give you an example if this helps.

[00:05:17] Speaker 01:
If the mandatory requirements of Part 7 were followed, an alternative strategy could have been employed such as, for example, instead of using the contracting method that was actually used here, they could have used a GSA schedule

[00:05:42] Speaker 01:
vehicle as the means by which this occurred.

[00:05:45] Speaker 01:
And if they did it that way, you could bundle these procedures.

[00:05:48] Speaker 01:
Yet based upon the manner in which the GSA schedule contracts are used, there was a possibility had they gone down that way.

[00:06:01] Speaker 02:
I don't understand a word of what you said.

[00:06:04] Speaker 02:
If in fact the statute requires bundling, how could the agency not bundle?

[00:06:12] Speaker 01:
As I indicated earlier, Your Honor, the actual language indicates that there are certain limited exceptions that would permit the use of contractors other than through this bundled understanding that the agency claims that it had as part of reading the language once it was issued.

[00:06:37] Speaker 02:
So in other words, your sole reliance, your sole theory

[00:06:41] Speaker 02:
is that the statute doesn't require bundling because it allows for exceptions.

[00:06:46] Speaker 02:
And if they follow the procedure, they might have allowed an exception here.

[00:06:50] Speaker 02:
Is that your point?

[00:06:51] Speaker 01:
They could have done that in precisely this instance, Your Honor.

[00:06:56] Speaker 01:
This is Judge Hughes.

[00:06:57] Speaker 03:
Can I just confirm, let's just put apart this exception stuff, because I don't know that you clearly argued it.

[00:07:04] Speaker 03:
But even if you did, let's just set it apart.

[00:07:06] Speaker 03:
Let's assume, I think, the statute definitively requires bundling.

[00:07:11] Speaker 03:
and that DOE followed that statutory mandate and bundled.

[00:07:16] Speaker 03:
Could your client have competed for fully bundled services?

[00:07:22] Speaker 01:
It could not have competed for a fully bundled service unless it was part of a team, Your Honor.

[00:07:29] Speaker 03:
It couldn't have competed as a prime, which is what you're arguing about.

[00:07:33] Speaker 03:
You still had the opportunity to try to get some work on this stuff, right?

[00:07:38] Speaker 03:
There is a...

[00:07:41] Speaker 03:
The only way you get to harm is if the agency's reading requiring this contract to be bundled is legal error.

[00:07:50] Speaker 03:
Is that correct?

[00:07:51] Speaker 03:
Correct, Your Honor.

[00:07:53] Speaker 03:
Okay, thank you.

[00:07:55] Speaker 01:
Sure.

[00:08:02] Speaker 01:
May I continue?

[00:08:04] Speaker 01:
Yes, please.

[00:08:06] Speaker 01:
Yes, thank you.

[00:08:09] Speaker 01:
What we have here is a case that the Federal Circuit has not previously dealt with, which is, are the requirements of FAR subpart 7.107-325, and those portions of the Small Business Act, they're applicable to it, mandatory, and if they are, whether the agency's failure and any agency's failure to follow those procedures, do they constitute

[00:08:36] Speaker 01:
conduct that is without observance of procedure required by law in violation of the Administrative Procedure Act.

[00:08:43] Speaker 01:
I mean, of course, we feel that the provisions of FAR Part 7, Subpart 107-3-5 are mandatory.

[00:08:54] Speaker 01:
They weren't followed.

[00:08:55] Speaker 01:
And because they were not followed, they violated the APA and that the Court of Federal Claims erred in finding otherwise.

[00:09:03] Speaker 01:
bar 7.107-3 through 5, which did not go into effect until October of 2016, set forth procedures that an agency must go through if a procurement action either could or will result in bundling or substantial bundling.

[00:09:21] Speaker 01:
With respect to bundling under bar 7.107-3, it indicates that before conducting an acquisition strategy that involves bundling, the agency shall

[00:09:32] Speaker 01:
make a written determination that bundling is necessary and justified in accordance with 15 USC 644E, which is a portion of the Small Business Act.

[00:09:44] Speaker 01:
Necessary and justified is determined when an agency establishes that it would obtain measurable substantial benefits by bundling discrete independent requirements.

[00:09:56] Speaker 01:
The agency

[00:09:57] Speaker 01:
in that regard, must conduct market research to quantify and eventually conclude that it would obtain these measurable substantial benefits.

[00:10:07] Speaker 01:
In terms of the quantification of those benefits, R7.107-3 is very specific in terms of what constitutes measurably substantial.

[00:10:18] Speaker 01:
It's when individually in combination or in the aggregate, the anticipated financial benefits are equivalent to 10% of estimated contracts

[00:10:27] Speaker 01:
for order value if the value is $94 million or less or 5% of estimated contract order value or $9.4 million whichever is greater if the value exceeds $94 million.

[00:10:40] Speaker 01:
That's a very specific cost analysis.

[00:10:44] Speaker 01:
Why?

[00:10:45] Speaker 01:
Because the provision along with the substantial bundling provisions of FAR Part 7 and the notice provisions take into account that bundling will very likely hurt small business.

[00:10:57] Speaker 01:
especially when it relates to becoming a prime contractor.

[00:11:03] Speaker 01:
So there needs to be some financial means by which to measure the substantial benefits and it has to be rooted in data.

[00:11:13] Speaker 02:
Mr. Delisle, I want to bring you back for a moment to this language in the statute with certain limited exceptions.

[00:11:20] Speaker 01:
Yes.

[00:11:20] Speaker 02:
Are you familiar with the committee reports that accompany this legislation?

[00:11:26] Speaker 01:
I believe so.

[00:11:31] Speaker 02:
Okay.

[00:11:32] Speaker 02:
In page 199 of the Senate report, it talks about these limited exceptions.

[00:11:38] Speaker 02:
It says that they don't want them to stop contracts which are already in existence and another similar exception for existing contracts.

[00:11:55] Speaker 02:
when we're trying to read the legislation talking about limited exceptions, why wouldn't we read the limited exceptions in the light of the committee reports to refer to these continuing contracts?

[00:12:12] Speaker 01:
I think the way to read the appropriations language, Your Honor, is to read it in complete context.

[00:12:23] Speaker 01:
It does say,

[00:12:24] Speaker 01:
with certain limited exceptions for sure.

[00:12:26] Speaker 01:
And I understand Your Honor's point with respect to the Senate report.

[00:12:34] Speaker 01:
But there isn't anything specifically in here which indicates that bundling is a necessity.

[00:12:42] Speaker 01:
I understand the discretion with which the government is afforded when it comes to reacting.

[00:12:52] Speaker 01:
to what it considers to be a directive such as this.

[00:12:58] Speaker 01:
But when looking at this in context, there isn't anything in here which indicates that it has to happen.

[00:13:05] Speaker 02:
And what you need to do here... Your basic argument, as I understand it, is that the agency could have read this language with certain limited exceptions to allow exceptions for situations where allowing separation would promote small business.

[00:13:23] Speaker 01:
Correct.

[00:13:23] Speaker 01:
And I think what you need to do, Your Honor, is you need to balance, very quickly, what we see here with the Small Business Act of 2010, which is where these FAR provisions emanate from.

[00:13:47] Speaker 00:
I believe I'm out of time, or am I not?

[00:13:49] Speaker 00:
Okay.

[00:13:49] Speaker 00:
Why don't we hear from the government?

[00:13:52] Speaker 00:
I think I did hear your bell.

[00:13:56] Speaker 00:
Yes.

[00:13:57] Speaker 00:
Thank you.

[00:13:57] Speaker 00:
But you have your rebuttal time.

[00:14:01] Speaker 00:
Yes, sir.

[00:14:08] Speaker 04:
Good morning.

[00:14:08] Speaker 04:
Thank you, Your Honor.

[00:14:10] Speaker 04:
Good morning.

[00:14:11] Speaker 04:
May it please the court?

[00:14:12] Speaker 02:
I'd like to start with where... Is it the government's position that the statute compels bundling?

[00:14:20] Speaker 04:
Your Honor, our position is that the statute compels what Ed did, and I'm not trying to be cute or evasive there, but as the record shows, the agency didn't think it was bundling because the type of change, and that's one thing that didn't come through in Mr. DeLisle's argument, the type of change commanded by the statute is complete.

[00:14:44] Speaker 04:
Going to a life cycle approach to,

[00:14:48] Speaker 04:
to servicing student loans required a complete reinvention of how student loan work is done in this country.

[00:14:57] Speaker 04:
Before that, it had been a very siloed approach.

[00:14:58] Speaker 04:
You can see that in the administrative record, which has the market research that sets the current way or the old way of doing things with where things are going.

[00:15:07] Speaker 04:
And once you move to this sort of flatter

[00:15:13] Speaker 04:
landscape of servicing where students aren't going to be bounced around from, you know, you take out your loan and then some time goes by and they get assigned to somebody to process the payments.

[00:15:23] Speaker 04:
Then they go into delinquency and they move somewhere else.

[00:15:26] Speaker 04:
They go, if the default happens, they may bounce over then to a debt collector like, you know, EPM works as a subcontractor now.

[00:15:36] Speaker 02:
I'm not understanding what you're saying.

[00:15:39] Speaker 02:
It's a simple question.

[00:15:40] Speaker 02:
Does the statute compel bundling or doesn't it?

[00:15:45] Speaker 04:
Again, it compels a complete change that results in what NextGen is.

[00:15:53] Speaker 04:
If that's viewed as bundling, then it does compel it.

[00:15:56] Speaker 04:
Again, the agency's position is it's not bundling because you're not just combining services into one contract.

[00:16:02] Speaker 04:
You're completely reinventing the entire business.

[00:16:06] Speaker 04:
and structuring it in a different way.

[00:16:08] Speaker 03:
Mr. Pielke?

[00:16:09] Speaker 03:
Sorry, can I just interrupt?

[00:16:10] Speaker 03:
Mr. Pielke, this is to choose.

[00:16:12] Speaker 03:
I don't want to get caught up in terminology here.

[00:16:15] Speaker 03:
I think what at least I'm talking about is, does the statute require a change in the way these contracts are awarded so that one provider provides the full life cycle of the loan from beginning all the way through the end, including debt collection?

[00:16:32] Speaker 03:
Whether we call it bundling or whatever,

[00:16:35] Speaker 03:
DOE wants to call it, is that the government's view of what the statute requires?

[00:16:40] Speaker 04:
Yes, Your Honor.

[00:16:41] Speaker 03:
And so, I mean, are we just getting caught up in terminology or is the government's argument here because bundling has far requirements that you don't think apply?

[00:16:54] Speaker 04:
Well, we made the argument below that a lot of education was not... Let me just... Oh, go ahead.

[00:17:03] Speaker 03:
Sorry, let me just put into context why I ask you that question because if the statute requires whether you call it bundling or consolidation or whatever or just use the words of the statute which is a server has to provide the full life cycle alone and that's the government's position that that's legally required and there's no discretion there, then it seems to me that your argument then and what was resolved in this case is

[00:17:33] Speaker 03:
The protester can't do that.

[00:17:35] Speaker 03:
The protester, I think, conceded that it can't do the full life cycle from beginning all the way through the end, including debt collection.

[00:17:43] Speaker 03:
So getting caught up in the terminology of whether it's bundling or consolidation doesn't seem to me useful, as long as what we're talking about is some kind of view of harmless error, that the statute requires this kind of activity.

[00:17:56] Speaker 03:
That's what the solicitation required.

[00:17:58] Speaker 03:
And even if there are procedural errors,

[00:18:02] Speaker 03:
from the far, there's no harmful air here because this protester can't provide that.

[00:18:09] Speaker 03:
Is that the government's position?

[00:18:11] Speaker 04:
Yes, Your Honor.

[00:18:11] Speaker 04:
And that's also Judge Wheeler's decision, right?

[00:18:16] Speaker 04:
That it proceeds from the act.

[00:18:19] Speaker 02:
How about the provision of the statute that they rely on about certain limited exceptions, which suggests maybe that bundling or consolidation or whatever you want to call it,

[00:18:31] Speaker 02:
is not required in every instance.

[00:18:34] Speaker 04:
No, it can't be read that way, Your Honor.

[00:18:35] Speaker 04:
And the committee notes you mentioned are important because they point to the types of exceptions that are included, which is about not upsetting, you know, current student loan accounts that are out there in current contracts.

[00:18:49] Speaker 04:
And applying that language differently results in a contradiction, right?

[00:18:53] Speaker 04:
Because the statute itself says life cycle

[00:18:58] Speaker 04:
get that whole thing together.

[00:19:00] Speaker 04:
The goal of that is when you see with all the other supporting materials and what Congress wanted, the Senate letter and other things is to avoid disruption, avoid having separate operations, which have caused a lot of the problems that were identified and what brought this about.

[00:19:15] Speaker 04:
So having the limited exceptions language, you know, given the committee comments, but also just given why this was put out there, there's evidence of why Congress wanted this change to happen and it comports with the market research

[00:19:28] Speaker 04:
and investigations that Ed had done into the problems of student loan collection.

[00:19:34] Speaker 04:
Carving out debt collection for debt collectors goes against the entire purpose of what was going on here.

[00:19:39] Speaker 04:
Most of the problems were identified in the debt collection area of loan servicing.

[00:19:44] Speaker 04:
When you look at the administrative record and the problems that have been identified and that needed to be addressed,

[00:19:50] Speaker 04:
A lot of it lives within the debt collection, the default life portion of the life cycle of the loan.

[00:19:58] Speaker 04:
So carving out that doesn't make sense.

[00:20:00] Speaker 02:
So perhaps we're in a Chevron situation where maybe the statute's ambiguous at step one of Chevron.

[00:20:09] Speaker 02:
And if we then go to step two, where has the agency told us what its construction of the statute is?

[00:20:18] Speaker 04:
I think if you're going to go to that analysis, the agency in its decision to cancel the prior solicitation speaks about the 2019 Appropriations Act.

[00:20:29] Speaker 02:
But what is it?

[00:20:29] Speaker 02:
My question is, what did the agency say about the act?

[00:20:33] Speaker 02:
Did it say, did the Education Department say the act compels us to do this?

[00:20:39] Speaker 04:
That it compels a life cycle approach to loans, which is what NextGen is.

[00:20:43] Speaker 02:
Did it say that?

[00:20:46] Speaker 04:
Yes, I believe that's in the cancellation memo, is where it discusses the 2019 Appropriations Act.

[00:20:52] Speaker 02:
Could you show us where it said that it views the statute as compelling this?

[00:21:00] Speaker 04:
Let me find that language, Your Honor.

[00:21:01] Speaker 04:
Hang on.

[00:21:50] Speaker 04:
Okay, so the Supplemental Appendix 7, the section in the cancellation memo, the preceding solicitation that discusses the header is funding for next gen FSA.

[00:22:10] Speaker 04:
And here it talks about the Appropriations Act specifically referring to next gen and a number of provisos, including one requiring a department award, no funding for any solicitation.

[00:22:19] Speaker 04:
for a new federal student loan service environment, including the next-gen processing and serviceman unless the environment provides for the full life cycle of loans from just to pay off with certain limited exceptions.

[00:22:31] Speaker 04:
Yeah, but what it says is... Congress was aware of this initiative.

[00:22:36] Speaker 02:
And envisioned, which is a little different than compelled.

[00:22:46] Speaker 04:
Again, I think that...

[00:22:48] Speaker 04:
It's clear that the agency was mindful of the statutory language from Congress, took it into account as well as other communications from Congress, took it into account in the development of this.

[00:23:02] Speaker 04:
Notes here in the memo that the development of this program, which was aimed at life cycle, was in process before this and was likely, Congress was likely aware of it.

[00:23:14] Speaker 04:
And so I think that its interpretation of the language is a fair interpretation.

[00:23:18] Speaker 02:
Yeah, but where does it say compel?

[00:23:21] Speaker 02:
Envision is not compelled.

[00:23:23] Speaker 04:
The language there does not say compel, Your Honor.

[00:23:25] Speaker 04:
It says envision.

[00:23:26] Speaker 04:
But I think that, I still think that given the language in the act, given this whole language here.

[00:23:32] Speaker 03:
Sorry, Mr. Pelkey, this is Judge Hughes.

[00:23:34] Speaker 03:
I would assume you would read the rest of the sentence that says, envision the use of the appropriate funds provided the department comply with the provisions.

[00:23:43] Speaker 03:
I mean, that's not compel.

[00:23:49] Speaker 04:
Yes, Your Honor.

[00:23:50] Speaker 04:
And I think that, you know, as was found in the decision below, it's clear based on this that it was rational, as clear as necessary and justified.

[00:23:59] Speaker 04:
Rational is not enough.

[00:24:04] Speaker 02:
It could be rational for them to do this, but that wouldn't necessarily excuse compliance with the procedural requirements.

[00:24:11] Speaker 02:
On the other hand, if the statute compelled them to do this,

[00:24:14] Speaker 02:
the procedural requirements seem to be irrelevant and we seem to be in a harmless terror situation.

[00:24:21] Speaker 04:
Well, I also think, Your Honor, that it's important to note that the situation here in terms of the nature of the error is we are in a situation where a party did not raise prejudice at all in the first instance, raised it for the first time on reply, offers no compelling argument for what exactly the harm is, the prejudice, which is a requirement of the protest.

[00:24:43] Speaker 04:
So I do think that even moving, if one move says it's not necessarily compelled, the fact that it's rational and that there's no prejudice here, I think brings to the same result and that's the result that Judge Wheeler reached.

[00:25:00] Speaker 04:
And Mr. Palki, this is Judge Hughes again.

[00:25:04] Speaker 03:
Even if we don't find what you're pointing to is sufficient to get the agency's Chevron deference,

[00:25:10] Speaker 03:
We're still in the world where we have to interpret as a court de novo the view of the statute, right, whether it requires it or not.

[00:25:19] Speaker 04:
Yes, Your Honor.

[00:25:20] Speaker 03:
Without any deference to education.

[00:25:27] Speaker 03:
Well, assuming we don't agree that this is sufficient for deference, you don't have anything else to suggest that there's something we should defer to you.

[00:25:38] Speaker 03:
I'm not trying to trap you.

[00:25:39] Speaker 03:
trying to get analytically, if this document isn't sufficient, if we find the statute ambiguous, we don't find this document sufficient statement to get Chevron deference, then isn't our job to determine what the statute means, even if it's somewhat ambiguous?

[00:26:00] Speaker 04:
Yes, it is.

[00:26:01] Speaker 03:
And as I argued before, your argument is that the better reading, even if it's ambiguous, is the government's reading, which is

[00:26:09] Speaker 03:
you had to do this and those limited exceptions were the ones noted in the Senate report and weren't an open door for the education department not to do this kind of bundling or consolidation or whatever you want to call it.

[00:26:25] Speaker 04:
Exactly, Your Honor.

[00:26:26] Speaker 04:
And as I mentioned in my argument, I think as soon as Your Honors take a step back after argument and maybe look at the specific question, it would make no sense.

[00:26:38] Speaker 04:
to carve out debt collection.

[00:26:40] Speaker 04:
It completely confounds the entire program and everything that Congress has said, and that's in the record.

[00:26:46] Speaker 04:
There's the statute, but also the communications from Congress on exactly this point.

[00:26:52] Speaker 04:
Everything in the buildup of this program, debt collection was identified as one of the specific problems that needed to be addressed and brought into the life cycle approach, brought into a

[00:27:06] Speaker 04:
single servicer handling students so they don't get bounced around.

[00:27:11] Speaker 04:
And that, you can't have that if the exception is, oh, we're going to give that to most students.

[00:27:17] Speaker 04:
But some of the accounts we're going to subject to the same problem we had before, because we're going to give these small business debt collectors some accounts.

[00:27:25] Speaker 04:
That makes zero sense under the statute.

[00:27:27] Speaker 04:
I honestly don't see how the statute could be interpreted in that way.

[00:27:37] Speaker 04:
So, as I mentioned, one of the other core problems here is the prejudice problem.

[00:27:45] Speaker 04:
Again, it's in Judge Wheeler's opinion.

[00:27:49] Speaker 04:
Emergency Planning Management filed a 40-page brief, and the only mention of prejudice was once faulting Judge Wheeler for doing a prejudice analysis.

[00:27:58] Speaker 04:
There's no argument in their opening brief on what their arm is.

[00:28:03] Speaker 04:
And this course of jurisprudence is clearly bringing it up on reply.

[00:28:07] Speaker 04:
is not appropriate and not something to be considered.

[00:28:10] Speaker 04:
And the harm that they do bring up is entirely speculative and second order.

[00:28:18] Speaker 04:
It's that the Small Business Administration was supposed to be involved in a different way than it was.

[00:28:24] Speaker 04:
There can't be any objection to the or any argument that Small Business Administration was not a part of the process here.

[00:28:34] Speaker 04:
And that somehow through a process, maybe EPM winds up with what the 2019 Appropriations Act says they can't get, and that the Small Business Administration doesn't have the power to get them anyway.

[00:28:47] Speaker 04:
The provisions we're talking about don't give the Small Business Administration the power to change the solicitation, to force Ed to do something differently.

[00:28:55] Speaker 04:
If it's necessary and justified, then it can proceed.

[00:28:59] Speaker 04:
It's not illegal.

[00:29:03] Speaker 04:
Judge Wheeler's findings, everything in the record, support that underlying analysis of the procurement.

[00:29:10] Speaker 04:
It's necessary and justified the way it exists.

[00:29:13] Speaker 04:
And really, I'm out of time.

[00:29:18] Speaker 04:
I'll stop there.

[00:29:20] Speaker 04:
Unless there's any further questions, we'd ask the court to affirm the decision of the Court of Federal Claims.

[00:29:27] Speaker 00:
Thank you.

[00:29:29] Speaker 00:
Mr. Delisle, you have a couple of minutes left on rebuttal.

[00:29:32] Speaker 01:
Yes, Your Honor, thank you.

[00:29:34] Speaker 01:
Just a few things.

[00:29:36] Speaker 01:
First, I think what we've heard and what we've seen, there isn't anything in the record which compels what the government's advocating here and the meaning of the appropriations language that's in the record for the court to consider.

[00:29:55] Speaker 01:
That's number one.

[00:29:56] Speaker 01:
Number two, with respect to prejudice,

[00:30:02] Speaker 01:
Had the process, the procedure that we believe to be mandatory was followed, and SBA had been engaged when it was supposed to have been engaged during the acquisition planning stage, and there's no indication at all that that happened, perhaps, and we're sitting here speculating at this point because it never happened, perhaps an alternative to what

[00:30:32] Speaker 01:
ED opted to do could have been discussed and determined as between the SBA and the agency, which would have allowed EPM to become a prime contractor to the Department of Education under some alternative scheme.

[00:30:51] Speaker 01:
The problem is we sit here now and we speculate as to that because the procedure itself, which we believe was mandatory, was not followed.

[00:31:00] Speaker 01:
And that's all that I have, Your Honor.

[00:31:04] Speaker 00:
Thank you.

[00:31:05] Speaker 00:
We thank both sides and the case is submitted.

[00:31:08] Speaker 00:
That concludes our proceedings for this morning.

[00:31:10] Speaker 00:
Thank you both.

[00:31:12] Speaker 03:
The Honourable Court is adjourned until tomorrow morning at 10 a.m.