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The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

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Good morning, everybody.

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We have one case for oral arguments today.

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The remainder of the cases on today's docket have been submitted on the briefs and will be resolved on the briefs.

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Today's oral argument is in Harmonia Holdings Group

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20-1538.

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Mr. English, I see that you have reserved four minutes of your time for rebuttal.

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Is that correct?

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Yes, Your Honor.

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Okay.

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You may be against her.

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Good morning and may it please the court.

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This court should reverse the claims court's judgment for three reasons.

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First and principally,

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The claims court aired by conflating two legal doctrines that this court has recognized to be separate, the whole that Harmonia satisfied the blue and gold waiver rule, but still forfeited its solicitation challenge.

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Second, should the court decide to reach this issue in the first instance, it's clear that the agency should have allowed offerors to revise their entire proposal to address the fundamental changes that Amendments 9 and 10 brought about.

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Third and finally, and again,

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Should the court decide it needs to reach this issue, the claims court erred by holding that the agency reasonably evaluated a harmonious proposal.

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Mr. English?

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Yes, Your Honor.

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This is Judge Wallach.

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I think for me, the core of this is articulated on pages 15 and 16 of the government query.

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The government says that, I'm quoting now with an ellipsis,

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There can be no dispute that after the agency denied a protest, Harmonia was aware of the other formal routes for pre-award protests and, they say separately, Harmonia had adequate time to bring a formal protest or in the court of federal claims prior to the award of the contract.

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I have a couple of questions for you.

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Do you agree or disagree that you were aware of the other formal routes?

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Certainly, we knew that GAO and the court of claims were available for pre-award protest, Your Honor.

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Okay.

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And second, do you agree or disagree that you had adequate time to bring a formal protest at the GAO or in the CFC?

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As it turns out, we did.

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There was a five-month delay

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I believe after the denial of our agency-level protest before the award decision.

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Of course, that was the period of time that the government took to evaluate proposal.

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That was not known to us after the denial of the agency protest.

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Of course, the amendments that we challenged came about after proposals were submitted.

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And so the decision could have been made at any time.

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We filed this protest with the claims court within around 10 or 11 days after

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the award decision was made public.

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And so, you know, our position is that we satisfied the blue and gold waiver rule with the formal agency protest that initially raised these grounds very specifically, gave the agency an opportunity to change, to address them.

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It decided not to.

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And we felt we had adequately satisfied this court's precedent and comment and ban them

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where the court told Off-Words Like Harmony exactly what you need to do to satisfy the blue and gold waiver rule.

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And that is file a timely.

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Mr. English.

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Yes, Your Honor.

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You've answered my question.

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Let me ask you one other one, which is another core one.

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And that is on page 31 of the government's brief.

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The government says, quote, the cargo applications identified and explained in attachment E for what this contract is all about.

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And they claim that you overlooked that purpose of the contract.

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If the cargo applications identified and explained in Attachment E are not the purpose of the contract, then what is it?

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I think overall, Your Honor, it's a development and operations and maintenance effort.

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The applications described on Exhibit E, there's a list of 52 of them.

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And that's part of the technology stack that the government intends the awardee to use.

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The question for us or the problem in our estimation is not that these applications were part of the technology stack, but the idea that was never revealed in the solicitation that we had to organize our staffing around four of 55 applications and got a significant weakness for not doing so.

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That's really the critical issue for us, not that these applications were part of the work we had to do, but four of 55

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were somehow core, even though they were never identified as such at any point in the solicitation.

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Counselor, this is Judge Raina.

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You argue on page 21 of your brief that the Court of Federal Acclaims erred when they combined the waiver rule and the diligent pursuit requirement.

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And you say that they, in doing so, that they fashioned the new rule.

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What exactly is that new rule that they fashioned?

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If I read Judge Smith's opinion, Your Honor, it was not only that an offeror has to timely file a formal protest at one of the three available venues, but then continuously litigate it through each of those venues in the federal court in order to preserve its solicitation challenge.

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And so it combined that diligent pursuit requirement that the court has used to test the interested party status

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of non-bidders.

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And here, Harmonia was a bidder.

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It actually submitted a responsive proposal.

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And our view is that where the blue and gold waiver rule has generally been described as how you preserve a solicitation challenge, the claim scorch rule would require continuous litigation through multiple forums to preclusion, essentially, at the federal court level.

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And that's never been required, particularly of an actual bidder,

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uh... in any of the court's blue and gold cases.

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So what do you think that the court of federal claims is saying that you waived the issue or that you forfeited a cause of action?

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My reading of his opinion, Your Honor, was that we waived the solicitation challenge.

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forfeited the argument by virtue of the fact that we filed one formal protest raising this issue and didn't proceed through GAO and even to the court of claims prior to a war.

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Mr. English, this is Judge Shaw here.

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If I might ask you a question.

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In looking at the case, in looking at Blue and Gold Fleet, the court noted that one of the doctrines that's been recognized in this area

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is the doctrine of latches and equitable estoppel, correct?

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Yes, your honor.

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And that's a page 1314.

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I didn't see in the decision of the court of federal claims or in your briefing or the government's briefing, any reference to the doctrine of latches or equitable estoppel.

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Um, and it seems to me that it may be

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an appropriate area to look into in this case because otherwise we're sort of floating at sea without any real legal doctrine to bind us.

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On the one hand, you say correctly that you met the initial requirements of Blue and Gold Fleet by filing the agency-level protest.

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That's certainly true as laid out in Bannum and so forth.

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On the other hand, there was a period of time here that passed

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And the government says that important policy considerations compelled you to move forward sooner than you did.

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And that's basically what I think the court of federal claims picked up on.

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But it does seem to me to be an appropriate area to look at the doctrine of latches.

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And if that's applicable, has that been addressed here?

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It certainly wasn't an issue that Judge Smith raised in his opinion.

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Your Honor, I think that that also implicates at least to a certain extent potentially the FDA holding from the Supreme Court that Judge Rana addressed in his dissent in the Inurso case and to the extent that latches can apply.

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I know Your Honor is speaking to equitable issues, but to the extent latches can apply when we have a stated statute of limitations.

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Let me ask you this.

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I'm sorry to jump in Mr. English, but I didn't want to

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Uh, you know, time is sort of fleeting here.

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I understand what you're saying, but what the, the question I did want to ask you with regard to latches is assuming latches is pertinent in this area and via the language of blue and gold fleet, it is, can we decide the at latches issue here or should it not be returned to the court of federal claims because it's inherently fact bound and there'd been no fact findings on the issues of latches, namely,

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reasonableness of delay and prejudice.

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Would it not have to go back to the Court of Federal Claims if we felt, and that's an if, that Latches was the appropriate way to look at the case?

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I think that's absolutely right, Your Honor.

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The claims court decided we met blue and gold but still forfeited the claim for lack of diligent pursuit.

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It did not address Latches at all.

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And I think a couple other policy points are important here.

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Mr. Curran and his colleagues at the Department of Justice have been incredibly effective at using blue and gold to defend challenges that most of us on this side of the ledger don't believe or even solicitation challenges.

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There's the policy issues that affect the government customer, but contractors know that rule too.

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And so there are often times where contractors are going to need to file what amounts to protective solicitation challenges if they see anything that might pop up as an issue.

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And the least expensive and most

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cost-effective way to do that is with an agency-level protest.

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And if there's an issue like this where it turns out there's a long delay after the denial and before the award, I think Judge Raina's dissent in UNRSA is also instructive there.

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I think the appropriate place to deal with that is not by finding waiver under the blue and gold rule, but by addressing it at the injunction factors.

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You factor it in when you're talking about the balance of harms.

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factor it in when you're talking about the public interest, which is where I think these equitable issues, the extent we're talking about equitable latches or equitable stopper would really come into play is at the relief stage of the analysis and not on the front end dealing with labor.

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But Counselor, you didn't make any of these arguments below.

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About latches?

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I believe that there was an argument about latches, that there was a passing comment

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in one of the briefs that we addressed simply by saying that the lack of argument... I'm asking whether you raised the issue.

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Of latches?

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No, Your Honor.

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No, Your Honor.

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Well, we addressed a comment in, I believe it was the intervener's brief.

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He raised latches.

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I don't believe the government did.

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And we simply noted that latches

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doesn't apply in the face of the statute of limitations, but it was not addressed in any material way beyond a couple of comments in the briefing at the claims court level.

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If the court has no more questions for me, I see that I'm in my rebuttal time.

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Okay.

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Let's hear from the other side.

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Thank you, Your Honor.

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And you're going to, you have 10 minutes, correct?

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And you're arguing on behalf of the U.S.

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government.

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Okay.

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Yes.

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That's correct.

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Thank you.

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May it please the court.

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The purpose of the blue and gold waiver is to further expeditious resolution of pre-award protests.

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Ammonia had four and a half months from the denial of its agency protest to the award of contract to renew its pre-award protest

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at either the GAO or the Court of Federal Claims.

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Mr. Kirk, excuse me, this is Judge Schall here.

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Let me ask you this couple of questions.

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First of all, assume for the moment that instead of going into or instead of lodging the agency-level protest, which it did, Harmonia had gone right on the same day instead to GAO and then had gotten an adverse GAO decision at that point.

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and then the contract had been awarded on December 6th, and everything else had played out as it did.

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Would you be still here today making your argument, or would you say that since they went to GAO, they did enough?

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Your Honor, if I could ask a clarifying question.

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When you say everything played out as it did, do you mean there's still the four and a half months?

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Yes, yes, correct, correct.

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Well, um, I mean, there are a lot of different variables, but I believe we'd be making the same argument because Harmonia would still have one more of what this court has described as the formal protest.

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Okay.

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Let me ask you, let me, let me be rude if I couldn't interrupt you here.

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Um, cause I just had a couple of thoughts and I apologize for jumping in in the middle of your answer there, but assume for the moment that we have the same facts that we have here.

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and that instead of waiting until when it did after the award of the contract it had come in on march the first uh... harmonied come in on march the first uh... with the protest uh... in the court of federal claims we have the same facts in this case except they come in at march the first that still

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I believe three months in between the denial of the agency protest and them trying to renew it.

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Okay.

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And this, that for based on the principles in this court's other holdings, uh, that was, that's more than a adequate opportunity to, to renew it.

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It's protest.

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Okay.

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Now let me just ask you, and then I'll, I'll yield to any other of my colleagues who have questions.

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Um, as you, as you heard, and as you know, in blue and gold fleet,

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we recognize the applicability of the doctrine of latches in this area of the law.

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And can we decide the issue of latches if we think it's appropriate, or would a latches inquiry in this case require a remand to the court of federal claims to look at the inherently factual issues that are involved in the doctrine?

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Well, your honor, I agree with Mr. English that latches came up because it is one of the pillars of blue and gold, one of the principles that was relied upon.

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Uh, if the court were not applying the blue and gold waiver and only applying latches, um, I believe there would have to be a remand for that factual, um, determination, although thinking about it now, there are a lot, you know, the facts are on record as far as, but you agree though, that it appeared, it appeared to me that however latches goes,

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in this case, whether it would cut in favor of Harmonia or whether it would cut in favor of the government.

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Um, it does appear that the issue wasn't addressed below that, uh, judge Smith simply said, well, I'm going to rule this way because, um, it, it, it supports the policies behind blue and gold fleet in the related cases.

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Uh, yes, your honor, judge Smith's opinion didn't deal with latches directly, but, um, it did come up in the briefing.

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Because latches is one of the principles underlying blue and gold, as is clear in the blue and gold decision.

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One of the other principles underlying that decision is the patent ambiguity doctrine.

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And under that doctrine, a party is required to not only raise what it feels is the wrong interpretation by the agency, but they must get a result.

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They must get an answer.

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They must diligently pursue their interpretation if they don't want to waive that argument.

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Another basis for blue and gold was the GAO's rule.

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And GAO, in this case, has a rule that required Harmonia, if it wanted to renew its protest after the agency denied it, to file at the GAO within 10 days.

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And the difference between 10 days and four and a half, or I guess the total was five months, would make... Suppose, and let me... You raise a good point there, Mr. Kerr.

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Um, uh, harmonia had followed up and within 10 days of December 6th, which I think is the date, the, uh, the agency denied the protest.

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Um, Mr. English had hustled into, uh, uh, GAO and a month later, say on January 6th or January 10th, he'd gotten a, um, um, a denial of his protest from GAO.

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Would you say at that point he had done enough or would you still be saying, uh, it was wrong for him to wait until the ward of the contract in April to file his, uh, his protest with the court of federal claims in may.

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Well, your honor, the purpose of blue and gold is finality.

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So our position is that that's not enough.

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If there is an opportunity to continue

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to protest, and the protest still exists, that it hasn't been resolved by the GIO.

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Even a denial might resolve the protest if the protestor is satisfied.

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Where in Blue and Gold do you see this requirement of finality?

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Is it Blue and Gold really a case that stands on preserving an initiative to address it later, later in your protest?

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I mean, perhaps... Is there a requirement under Blue and Gold that you file your pre-award protest before there's the award and that you pursue it and conclude it before the awards are made?

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Your Honor, when I said Blue and Gold, perhaps I spoke too specifically.

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When you look at all the case law, including Bannum and Cullman,

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There is a description that the notice to the agency, I'm sorry, I got ahead of myself.

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The principle of bringing a protest to the agency is not just notice.

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It's to engage the agency in the resolution and that indicates that it's the final resolution that's important.

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In fact, in comment, the court even says if the agency doesn't give the release

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that the protestor is looking for, then they can go to the Court of the Federal Claims under the Tucker Act.

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If a protestor is allowed after the denial of the agency protest to just sit and wait and see if it gets an award and then take a second bite of the apple, all of the same things that BNG is trying to avoid, all of the things that BNG, that blue and gold,

[00:20:25] Speaker 04:
is trying to prevent come into play, including the waste of the agency's resources by working on this protest or on this solicitation for four and a half months, only to have, you know, sort of the sleeping by and awake again when Harmonia tries to renew its protest.

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Blue and Gold talks a lot about not letting protesters take advantage of the agency and of the other bidders.

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in this way.

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Do you believe that this court's decision in Serso supports what you just got through telling us?

[00:21:05] Speaker 04:
Well, yes, Your Honor.

[00:21:05] Speaker 04:
In fact, in Serso helps us in that it indicates the high standard that protesters are held to.

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In that case, it was deemed a waiver based on a disclosure that was likely to occur.

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It wasn't even as clear as what we had in this case.

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where they're protesting against the amendment.

[00:21:29] Speaker 04:
So is Sersho about preserving an issue for later litigation?

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Was it about standing or waiver?

[00:21:38] Speaker 04:
It was about waiver.

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I don't believe the issue of preserving came up in Sersho.

[00:21:52] Speaker 04:
The concept that I... So are you saying does waiver apply here or not?

[00:22:00] Speaker 04:
Waiver does apply.

[00:22:01] Speaker 04:
The Blue and Gold Waiver, the principles behind the Blue and Gold Waiver apply here and the principles defeat Harmonia's position that it can waive for 1.5 months.

[00:22:13] Speaker 04:
What was waived?

[00:22:14] Speaker 04:
The right to later assert an issue or was the entire cause of action waived?

[00:22:23] Speaker 04:
The right to assert the pre-award claim, dealing with the amendment.

[00:22:29] Speaker 04:
So if that's the case, then why is there this... Why do we have this timing requirement?

[00:22:37] Speaker 04:
If all we're talking about is waiving at the pre-award level, rather, about preserving initiative at the pre-award level, and we're talking about waiver, then...

[00:22:52] Speaker 04:
What does the rule about someone having to act with deliberation come in?

[00:22:59] Speaker 04:
Well, the court of federal claims, looking at all of the case law dealing with the blue and gold waiver, concluded correctly that a protester cannot sit on its rights, sit on its claim of a pre-award

[00:23:20] Speaker 04:
Right, so it must file a protest.

[00:23:24] Speaker 04:
If it's got a pre-award issue, it must file its protest at a pre-award frame of time, right?

[00:23:35] Speaker 04:
Yes, that's correct, Your Honor.

[00:23:40] Speaker 04:
Where in blue and gold do we see this requirement that you have to act within a certain amount of time?

[00:23:48] Speaker 04:
in order to not waive the issue.

[00:23:51] Speaker 04:
There's no case directly on point.

[00:23:54] Speaker 04:
So there's no case saying that Harmonia has this indefinite period of time.

[00:23:58] Speaker 04:
Is there a regulation to do that?

[00:24:02] Speaker 04:
Well, the statute that gives the court a federal plain's jurisdiction recognizes the need for expeditious resolution of pre-award protests.

[00:24:13] Speaker 04:
And if that resolution isn't an ultimate resolution, then

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that statutory mandate is undermined.

[00:24:21] Speaker 04:
There's a statute of limitations that imposes at least a four-month time period in order to bring your protest.

[00:24:30] Speaker 04:
Is that what you're saying?

[00:24:31] Speaker 04:
What statute is that?

[00:24:33] Speaker 04:
Not a statute of limitations.

[00:24:34] Speaker 04:
The Tucker Act that gives court of federal claims jurisdiction over bid protests recognizes that these must be resolved, especially pre-award, in an expeditious resolution.

[00:24:48] Speaker 04:
in an expeditious fashion.

[00:24:50] Speaker 04:
And you're saying that in this case, it was an expeditious.

[00:24:53] Speaker 04:
Four months was not expeditious.

[00:24:56] Speaker 04:
That's correct, Your Honor.

[00:24:57] Speaker 04:
Four months was not expeditious.

[00:24:58] Speaker 04:
Just like 2.5 months, or two months, I'm sorry, in CDI, it wasn't diligent enough.

[00:25:06] Speaker 04:
And again, the DAO has a rule that says it has to be brought within 10 days.

[00:25:10] Speaker 04:
And this court has relied upon GIA rules to make some harmonization.

[00:25:17] Speaker 04:
Is there any evidence in the record that Harmonia meant to abandon its claim?

[00:25:22] Speaker 04:
If we're saying waiver is what applies here, what's the evidence that Harmonia meant to abandon its claim?

[00:25:29] Speaker 04:
Well, it didn't raise it for four and a half months.

[00:25:32] Speaker 04:
It could have raised it at the GAO in 10 days, or it could have raised it at the Court of Federal Claims, as this court pointed out in Bannum.

[00:25:40] Speaker 04:
If it doesn't get the relief from the agency it wants, it can raise it at the Court of Federal Claims.

[00:25:46] Speaker 04:
By not raising it in four or five

[00:25:48] Speaker 04:
four and a half months or five months, pardon me, uh, when all of the case law points and the, uh, one of those cases, correct?

[00:26:00] Speaker 04:
But, but that's a standing case, isn't it?

[00:26:07] Speaker 04:
Um, yeah.

[00:26:08] Speaker 04:
Um, but, but comment is one of the cases where this court looks to be congruous with the, um, the DAO to harmonize the two

[00:26:18] Speaker 04:
Um, um, processes, processes.

[00:26:21] Speaker 04:
Okay.

[00:26:22] Speaker 04:
Um, do my colleagues have any other questions?

[00:26:26] Speaker 01:
I'm fine.

[00:26:28] Speaker 01:
I'm fine.

[00:26:29] Speaker 01:
This is Judge Wallach.

[00:26:30] Speaker 01:
I'm fine.

[00:26:31] Speaker 04:
Okay.

[00:26:32] Speaker 04:
Um, I think I heard your, Mr. Kerr, I heard the tone.

[00:26:36] Speaker 04:
So let's, uh, let's see what Mr. Shook has to say.

[00:26:40] Speaker 04:
Okay.

[00:26:40] Speaker 04:
Thank you, your honor.

[00:26:41] Speaker 04:
Yes.

[00:26:42] Speaker 04:
Thank you.

[00:26:43] Speaker 00:
May I please record?

[00:26:44] Speaker 00:
This is, uh, William Shook for Deaf Technology, the Defendant Intervener

[00:26:48] Speaker 00:
A couple of comments.

[00:26:50] Speaker 00:
I believe the footnote four in CGI addresses this issue of timeliness where this court said a longer delay than necessary may be a factor in the court of federal claims declining to exercise jurisdiction.

[00:27:04] Speaker 00:
I think that's what Judge Smith did.

[00:27:06] Speaker 00:
That footnote goes on to say, for example, 28 USC 1491 B3 states that, quote, in exercising jurisdiction under the subsection,

[00:27:16] Speaker 00:
the court shall give due regard to the need for expeditious resolution of the action."

[00:27:21] Speaker 00:
And that is what the Court of Federal Claims and Judge Smith did in this instance.

[00:27:26] Speaker 01:
Mr. Schuch, this is Judge Schall here.

[00:27:28] Speaker 01:
Just one kind of a housekeeping question.

[00:27:30] Speaker 01:
I recall from the briefing that your company or I should say your client is now performing the contract, is that correct?

[00:27:42] Speaker 00:
It is still performing a bridge contract.

[00:27:46] Speaker 00:
The actual contract has not yet been awarded resolution.

[00:27:51] Speaker 01:
And what is the time?

[00:27:53] Speaker 01:
Will that bridge contract keep going until this matter is resolved?

[00:28:04] Speaker 00:
We hope so, Your Honor, but that is up to the agencies.

[00:28:07] Speaker 00:
We have no control over that.

[00:28:08] Speaker 01:
OK.

[00:28:10] Speaker 00:
But that is a point that shows that this has not been an expeditious resolution because a year and a half later we are still discussing this.

[00:28:19] Speaker 00:
DevTech in its cross-motion for summary judgment did specifically have a section on latches.

[00:28:26] Speaker 00:
It wasn't just a brief reference to it, but it was a specific section that we believe coincides with the blue and gold cases for expeditious resolution.

[00:28:38] Speaker 00:
My problem with

[00:28:39] Speaker 00:
The harmonia, what would be the harmonia exception to all of this is that bid protesters, disappointed bidders, or not disappointed bidders, but bidders that had problems and concerns with solicitation terms would file an agency level protest, which is the least expensive means of protesting, of any term or condition that they disagreed with.

[00:29:04] Speaker 00:
if they got a negative decision, they could then do exactly what Blue and Gold counseled against, which was to lie and wait until the award decision went against them, and then raise that very same issue at the Court of Federal Claims.

[00:29:21] Speaker 01:
Do you agree, Mr. Shook, that if, I guess what Mr. Keller was saying, for the government, do you agree that if Harmonia, after it

[00:29:32] Speaker 01:
received the denial of its protest at the agency level had within 10 days gone to GAO and gotten another denial that it's still after that would have had to proceed to the court of federal claims in the pre-award stage rather than waiting till after award to protest.

[00:29:56] Speaker 00:
Yes, Your Honor, absolutely.

[00:29:57] Speaker 00:
I do recognize that had the award occurred,

[00:30:01] Speaker 00:
immediately after the GAO decision, two days after the GAO decision, that as long as they were timely to file the protest at the Court of Federal Claims, they would have still have been timely, because they were actively pursuing their rights.

[00:30:20] Speaker 00:
And this court has recognized that need.

[00:30:25] Speaker 00:
What Harmonia has never explained, even though it's been made both by DevTech and by the government,

[00:30:31] Speaker 00:
is why they waited five months.

[00:30:33] Speaker 00:
There's been no explanation, no justification as to why they didn't pursue it.

[00:30:38] Speaker 01:
They did exactly what... That might cut against them in a latches inquiry, correct?

[00:30:43] Speaker 00:
Correct, but I also believe that it cuts against them in the blue and gold for the expeditious resolution of the action.

[00:30:52] Speaker 00:
The jurisdiction, the waiver, the limited waiver of sovereign immunity to sue the government as part of a bid protest

[00:31:00] Speaker 00:
is based upon the need for expeditious resolution of the action.

[00:31:06] Speaker 04:
So what are the markers here by which the trial court is to determine whether somebody has moved with deliberate speed or not?

[00:31:17] Speaker 04:
You know, we know that the regulations don't give you a specific timing, but five months is too long.

[00:31:27] Speaker 04:
And Mr. Kerr was saying that perhaps 2.5 months is too long too.

[00:31:32] Speaker 04:
What's, what is the threshold here?

[00:31:36] Speaker 00:
Well, I think it was this court that then CGI that said two and a half months was too long.

[00:31:42] Speaker 00:
It's a reasonableness standard for pursuing in the court.

[00:31:50] Speaker 00:
Filing a court of federal claims action is not as easy as filing a

[00:31:54] Speaker 00:
a letter of protest to the agency, nor is it as easy as filing it at GAO.

[00:32:00] Speaker 00:
So it may take longer than 10 days at GAO, but certainly would never take longer than 30 days.

[00:32:07] Speaker 04:
So what do you look at, the totality of circumstances?

[00:32:12] Speaker 00:
Yes, I think that would probably be the right test to say what was their explanation for failure to expeditiously pursue.

[00:32:20] Speaker 00:
And that's the one fact, even though that fact has been asked,

[00:32:24] Speaker 00:
questioned that Harmonia has never once responded to why they waited five months.

[00:32:31] Speaker 00:
It wasn't because they didn't know how to file.

[00:32:33] Speaker 00:
The court's calendar is filled with Harmonia cases.

[00:32:38] Speaker 00:
So they know how to file.

[00:32:39] Speaker 00:
This is not an inexperienced contract.

[00:32:43] Speaker 04:
In your mind, what's the issue here?

[00:32:45] Speaker 04:
Are we looking at waiving an issue, an issue that was not preserved, for example?

[00:32:52] Speaker 04:
Or are we looking at forfeiting the cause of action as a whole?

[00:32:59] Speaker 00:
I'm sorry, Your Honor.

[00:33:00] Speaker 00:
I'm not sure I understand the question.

[00:33:01] Speaker 00:
We're looking at what I consider to be what Harmonia is arguing is for a loophole in the blue and gold holding to allow them to file an agency-level protest, the easiest of all protests to file, and then sit on their rights for an inordinate amount of time without explanation

[00:33:22] Speaker 00:
to raise it again and delay the ultimate award, which has not been awarded a year and a half later, while they litigate something that they could have easily litigated at that time.

[00:33:37] Speaker 00:
It's the final sort of position loophole that they are trying to create out of blue and gold.

[00:33:45] Speaker 04:
So I'm interested, why would they have to explain the wait, why they waited?

[00:33:50] Speaker 00:
Well, because this is under the totality of circumstances test, if you want to call it that, there could be a valid reason why a protester did not pursue within 10 days or 12 days or 15 days a court of federal claims protest.

[00:34:10] Speaker 04:
How about five months?

[00:34:13] Speaker 00:
Under no circumstances would an experienced contractor have five months to

[00:34:19] Speaker 00:
justify a delay in filing.

[00:34:23] Speaker 00:
I could see a very, very small business that did not have access to counsel maybe a month, but even then, then turning around five months later, the Court of Time's procedures are more complicated, but not too complicated.

[00:34:43] Speaker 00:
Okay.

[00:34:46] Speaker 00:
Go ahead.

[00:34:47] Speaker 00:
So, like I said, as a private practitioner, I look at this and I go, if Harmonia is correct and I get to now file agency-level protest on terms, I'm going to counsel my clients to do so, and then we'll wait to see if we win and if we lose on that issue, or I can delay it, particularly if I'm the incumbent, because the delay generally helps the incumbent because

[00:35:15] Speaker 00:
of being able to continue to perform.

[00:35:16] Speaker 00:
So it becomes a money-making decision.

[00:35:19] Speaker 00:
I'll wait and I'll continue to perform.

[00:35:21] Speaker 00:
And that's what the waiver of sovereign immunity specific said should not happen of this expeditious resolution of the issues.

[00:35:31] Speaker 00:
I thank the honors for your time today.

[00:35:33] Speaker 04:
OK, one last question.

[00:35:35] Speaker 04:
You didn't argue laches, correct, before the Court of Federal Claims?

[00:35:39] Speaker 00:
No, no.

[00:35:39] Speaker 00:
We had a specific section in our cross-motion on laches, as well as on blue and gold.

[00:35:45] Speaker 04:
OK.

[00:35:46] Speaker 00:
We have a full section on it.

[00:35:48] Speaker 04:
Do my colleagues have any other questions?

[00:35:51] Speaker 01:
No, I'm fine, Jim.

[00:35:53] Speaker 01:
OK, great.

[00:35:55] Speaker 04:
Let's go back to Mr. English.

[00:35:57] Speaker 04:
And Mr. English, I'm going to restore you back to your four minutes.

[00:36:02] Speaker 05:
Thank you, Your Honor.

[00:36:03] Speaker 05:
A couple quick points.

[00:36:05] Speaker 05:
And I think it was in response to what you were getting at with a couple of your questions, Judge Raino, as it relates to waiver.

[00:36:11] Speaker 05:
Waiver has to be voluntary, knowing, and intentional.

[00:36:15] Speaker 05:
in order to be effective.

[00:36:16] Speaker 05:
So to be sent blue and gold is even still good law.

[00:36:20] Speaker 05:
It is a waiver rule.

[00:36:22] Speaker 05:
And the case law that exists today tells offerors like Harmonia exactly what they have to do to meet it, file a timely pre-award protest in a formal setting.

[00:36:33] Speaker 05:
I think in Bannum, the court balanced the respective interests by holding that the need for expeditious resolution

[00:36:43] Speaker 05:
was met by requiring one formal protest in one of the three forums.

[00:36:49] Speaker 04:
You say that blue and gold is a waiver case.

[00:36:54] Speaker 04:
Could it not be a forfeiture case?

[00:36:57] Speaker 05:
Go ahead.

[00:37:01] Speaker 05:
I think of them synonymously.

[00:37:03] Speaker 05:
I think at its core, it probably is a forfeiture in light of some of the recent decisions from the Supreme Court.

[00:37:09] Speaker 05:
But it's always been couched as waiver.

[00:37:12] Speaker 05:
And a contractor that follows the law as it exists when it's engaged in this protest activity certainly could not be said just as a matter of course to have knowingly intentionally waived its right to pursue a solicitation challenge.

[00:37:31] Speaker 05:
And, you know, this is not the situation that Blue and Gold was intended to address where a protester plays both ends against the middle.

[00:37:39] Speaker 05:
We specifically raised our hand

[00:37:41] Speaker 05:
to the agency and said exactly what our issues were with respect to the solicitation.

[00:37:46] Speaker 05:
It decided against us.

[00:37:48] Speaker 05:
And the rule that Mr. Kerr and Mr. Shook are lobbying for would put the burden of enforcing the government to get the solicitation right on the protestors.

[00:37:58] Speaker 05:
There's some balancing of these respective interests that has to go into that analysis.

[00:38:03] Speaker 05:
And as I mentioned earlier, as profoundly as the government uses... But that's not what caused you to wait five months, right?

[00:38:11] Speaker 05:
No, no, Your Honor.

[00:38:13] Speaker 05:
We filed our challenge after the... This was similar to a comment situation where the amendments came out after the proposals were submitted.

[00:38:22] Speaker 05:
We raised our challenge, they denied it, and we believed we had met the rule and the standard, and, you know, we didn't know when the decision was going to get... the award decision was going to be made.

[00:38:34] Speaker 05:
And so, again, from a policy standpoint,

[00:38:39] Speaker 05:
There are a lot of, in light of how pervasive the DOJ is in using the blue and gold waiver rule as a defense, the contractors have to be very careful to make sure they raise any potential solicitation challenges early on to make sure there's no waiver.

[00:38:56] Speaker 05:
And as I said earlier, allowing one formal agency-level protest, which is exactly what Banham said, to preserve the issue as opposed to requiring continuous litigation

[00:39:09] Speaker 04:
uh... on the front end served the policy purpose of those formal procedures are in place as the court said in ban on the insurer they are expected to be a little while you may have preserved the issue and therefore there's no waiver i mean obviously did fall uh... pre-award protest so whatever issues you raised it there were were were preserved but he would be waited beyond this unreadable time and maybe that's a forfeiture of your

[00:39:38] Speaker 04:
your right to bring a cause of action based on those issues.

[00:39:44] Speaker 05:
Well, Your Honor, certainly I think that aspect has not been developed at all in the record at the Court of Claims.

[00:39:53] Speaker 05:
And so if that's something the Court would need to get into, I think there would have to be a remand to investigate that or develop a factual record for forfeiture.

[00:40:02] Speaker 05:
But the cases that have talked about this diligent pursuit are all cases where there's not an actual bidder.

[00:40:09] Speaker 05:
CGI that Mr. Kerr and Mr. Shook rely on involved a contractor that didn't submit a bid.

[00:40:17] Speaker 05:
But Harmonia did bid, and it preserved its ground.

[00:40:21] Speaker 05:
And it raised it timely at the Court of Claims after the award decision.

[00:40:25] Speaker 05:
I believe within the last year or two, there was some language in the NDAA that was meant to marry the 10-day rule at GAO up with a pre-award protest at the Court of Claims.

[00:40:37] Speaker 05:
And it hasn't been passed.

[00:40:38] Speaker 05:
We have the six-year statute of limitations.

[00:40:40] Speaker 05:
We have the waiver rule that says you've got to timely file it in a formal venue.

[00:40:45] Speaker 05:
And we've done all of that.

[00:40:47] Speaker 05:
All right.

[00:40:49] Speaker 04:
I want to give my colleagues an opportunity to ask any questions, because your time has run out.

[00:40:54] Speaker 01:
Certainly.

[00:40:56] Speaker 01:
I have no questions, Judge Shull.

[00:40:59] Speaker 03:
This is Judge Wallach.

[00:41:00] Speaker 03:
I have no questions.

[00:41:02] Speaker 04:
Okay.

[00:41:03] Speaker 04:
All right.

[00:41:04] Speaker 04:
I think we have the arguments of the parties and we thank the parties for their arguments and this court will now stand in recess.

[00:41:14] Speaker 02:
The Honorable Court is adjourned until tomorrow morning at 10 a.m.