[00:00:00] Speaker 00:
Case for argument is 21-1008, asset protection and security versus United States.

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

[00:00:10] Speaker 05:
May it please the court, the solicitation's price requirement here called for a firm fixed price proposal that under the rules applicable to firm fixed price procurements need be unconditional, noncontingent, unqualified, and complete.

[00:00:28] Speaker 04:
And assets.

[00:00:30] Speaker 04:
Mrs. Judge, I just have a comment before you begin.

[00:00:33] Speaker 04:
I have no idea why your blue brief has this running head at the bottom of the page.

[00:00:40] Speaker 04:
It's about confidential, protected information to be disclosed only in accordance with the protective order.

[00:00:47] Speaker 04:
That's misleading to the public and suggests that this information in the public version of the brief is not

[00:00:55] Speaker 04:
available to the public, and the brief has nothing in it that's marked confidential.

[00:01:00] Speaker 04:
I just do not understand why that legend appears in the brief.

[00:01:09] Speaker 05:
Your Honor, the answer to your question is that under the, as we read it and worked with the parties, that the claims court's protective order effectively requires

[00:01:23] Speaker 05:
the opportunity for the parties to review the brief before we declare it not to be essentially protected.

[00:01:29] Speaker 05:
And in order to comply with the court's filing process and deadlines, we filed it as protected and then distributed the brief for essentially all of the parties to review.

[00:01:42] Speaker 05:
And as a result, parties reached agreement on what was essentially not protected.

[00:01:50] Speaker 05:
The major matter that was protected in the brief is the claims court decision, which is the protected version of the decision that is included in the appendix and which is discussed in the course of our opening brief.

[00:02:12] Speaker 05:
Does that answer your question, Your Honor?

[00:02:15] Speaker 04:
No, I don't think that having that legend in the public version of the brief is appropriate.

[00:02:21] Speaker 05:
Your honor, with respect, there is ultimately, and we have no difficulty in making the brief public in that respect, have the parties having agreed in that respect.

[00:02:36] Speaker 05:
So that I understand the court's point, and we certainly will take, if necessary, with the clerk's office, appropriate steps to make sure the public has full access to the brief, obviously dealing with any protected information that is in the

[00:02:51] Speaker 05:
claims court decision.

[00:02:56] Speaker 05:
Returning, if I may, that assets firm fixed price proposal as set forth in the fully loaded contract align item rates and related matters at appendix 1315 to 1339 provided the exact thing called for by that requirement.

[00:03:15] Speaker 05:
The tax attempt certificate assumption concerning state sales taxes

[00:03:19] Speaker 05:
Patently, a cost and not a price element did not change that status.

[00:03:26] Speaker 05:
The claims court decision to the contrary should therefore be reversed for two reasons.

[00:03:32] Speaker 05:
First, it conflates cost and price, essentially finding cost equals price, which it does not, and thus the claims court did not address the necessary causation test of whether the cost assumption at issue here

[00:03:46] Speaker 05:
caused assets firm fixed price proposal to be subject to later alteration or future price negotiations.

[00:03:54] Speaker 05:
And as I'll discuss in more detail in a moment, this point is a matter of first impression for the court, namely the appropriate test for that causation test.

[00:04:05] Speaker 05:
Second, the tax-exempt certificate assumption at issue did not fail to comply with the solicitations price requirement.

[00:04:14] Speaker 05:
as there was no express requirement therein that sales taxes be covered in the price, nor is there any other material non-price requirement with which the assumption conflicts.

[00:04:26] Speaker 05:
Moreover, asset confirmed its price in amendments 19 and 20 in which it reviewed its price and confirmed its price remained valid even in the wake of the changes that were implemented

[00:04:43] Speaker 05:
in amendments 19 and 20 with respect to the agency's position concerning the tax against certificate.

[00:04:49] Speaker 04:
Why wasn't the bid fixed after amendment 19 adopted, which specifically, as I read them, committed the... You're on, sorry, why was it not fixed?

[00:05:06] Speaker 05:
Yeah.

[00:05:08] Speaker 05:
Why was the problem not fixed, meaning the issue that you're talking about?

[00:05:12] Speaker 04:
The record, Your Honor, deleted from the bid.

[00:05:17] Speaker 05:
Your Honor, the record on that issue is silent, but the silence on that issue doesn't matter because the key fact is the records unequivocal that acid acknowledged the two amendments that explicitly stated no tax exempt certificate would provide it.

[00:05:36] Speaker 05:
and the no tax statement would be provided, a statement would be incorporated in the resulting contract.

[00:05:42] Speaker 05:
The record's also unequivocal that asset proposed firm fixed prices to perform the contract by reaffirming its proposed prices in response to amendments 19 and 20.

[00:05:52] Speaker 05:
And so what you have is an unequivocal record that asset's subjective intent essentially is irrelevant because

[00:06:00] Speaker 05:
As a matter of contract interpretation, it continued to pose a firm fixed price the government was entitled to hold it to for performance of those requirements.

[00:06:09] Speaker 01:
This is Judge Hughes.

[00:06:11] Speaker 01:
Can you explain to me how you think the record is unequivocal when you continued, even after being told that that statement should be removed, not to remove that statement?

[00:06:23] Speaker 01:
You know, I know you're relying on the fact that this is a firm fixed price contract and you are aware of it and you didn't change your price.

[00:06:29] Speaker 01:
But you also didn't remove that pricing qualification.

[00:06:32] Speaker 01:
And it seems to me that if it had gone forward, the other bidders would have protested and said, you know, your bid was unfairly considered and should have been excluded because of that qualification.

[00:06:45] Speaker 01:
This is not a case where this was just a mere oversight.

[00:06:47] Speaker 01:
It was pointed out to you at least twice.

[00:06:50] Speaker 01:
And there was a GAO protest on this.

[00:06:52] Speaker 01:
I mean, do you have any explanation at all why you didn't just fix it?

[00:06:59] Speaker 01:
Your Honor, I think the core point is that it was largely immaterial as to price, because the price... How is it immaterial as to price whether you're going to charge the government for state taxes or not?

[00:07:14] Speaker 01:
I understand your argument is we would have just eaten these costs, but that's not apparent from the face of your bid when it says we're going to get a tax-exempt certificate from the government.

[00:07:30] Speaker 05:
Your honor, I respectfully submitted it is apparent from the bid and let me go to the specific assumption at issue that the court has raised.

[00:07:39] Speaker 01:
Look, I understand your argument.

[00:07:41] Speaker 01:
I'm just baffled why, you know, this was not, as I said, not just an oversight or not some kind of, you know, thing that didn't come up.

[00:07:49] Speaker 01:
It was specific part of a protest to the GAO.

[00:07:54] Speaker 01:
there were chances to resubmit.

[00:07:56] Speaker 01:
This was certainly on your radar, and yet you failed to take out the statement.

[00:08:01] Speaker 01:
I don't understand why we should excuse that and conclude that your bid was compliant.

[00:08:06] Speaker 05:
Your Honor, if I may, going through the chronology, there was not the opportunity to correct it after the GAO bid, after the GAO protest, I'm sorry.

[00:08:17] Speaker 05:
The sequence of events is that amendments 19 and 20, which were executed by asset,

[00:08:24] Speaker 05:
with after a full review of their pricing, in which they confirm their price in the wake of the changes, then the GAO protest followed based on the evaluation comment as to the contingency issue.

[00:08:39] Speaker 05:
The agency took corrective action in which it said it would reassess its evaluation.

[00:08:45] Speaker 05:
There was not an opportunity to correct that statement at any time thereafter

[00:08:51] Speaker 04:
And specifically in response, in the 19 and 20 on, for example, page 1281, it specifically says, offers are only allowed to provide updates to volume 4.

[00:09:09] Speaker 04:
And this erroneous statement is in volume 4, right?

[00:09:15] Speaker 05:
Yes, Your Honor.

[00:09:16] Speaker 05:
It could have, let me be clear on that.

[00:09:18] Speaker 05:
It could have been corrected.

[00:09:20] Speaker 05:
in the process of responding to 19 and 20, that's correct.

[00:09:25] Speaker 05:
It could not have been corrected in response to amendment number 21, which is what I thought Judge Hughes was essentially asking about, because that was the amendment that occurred after the GAO protest.

[00:09:37] Speaker 05:
But I point out with respect to amendments 19 and 20, I'll focus on 20 specifically, it's purpose was to provide clarification as to ICE's answer for question 246.

[00:09:49] Speaker 05:
It required no action as to state taxes, nor any action as to state tax-exempt certificates.

[00:09:56] Speaker 05:
By contrast, the offerors were required in that memo to correct calculations in unit prices, and it allowed, but by contrast, did not require revisions to volume for the price-cost proposals.

[00:10:10] Speaker 05:
Aceda took the review, timely submitted, and I'll finish by saying did not find that it needed to change its price and, in fact, confirmed its price.

[00:10:19] Speaker 05:
And again, I'd underscore the pricing requirement, nor either of the amendments had a specific requirement that state sales taxes be addressed as included or excluded from the price or any bar from accepting that.

[00:10:30] Speaker 05:
Thank you, and I'll reserve my final minutes for rebuttal.

[00:10:33] Speaker 00:
Thank you.

[00:10:35] Speaker 00:
Mr. Volk?

[00:10:37] Speaker 02:
May it please the court.

[00:10:38] Speaker 02:
Asset failed to submit a proposal that ICE could have accepted for award, and the Court of Federal Claims correctly dismissed the complaint on that basis.

[00:10:48] Speaker 02:
ICE requested proposals based on an amended solicitation that said the government would not issue a state tax exemption certificate.

[00:10:59] Speaker 02:
As its proposal, by contrast, stated that it was excluding state sales taxes from its proposal pricing,

[00:11:06] Speaker 02:
based on the government's expressed intent to provide the awardee with a state tax exemption certificate.

[00:11:12] Speaker 00:
So what was your concern?

[00:11:14] Speaker 00:
Is there a practical concern here that even though they signed for receipt of those notices, that they would come back later if they got the award and claim that they ought to be able to get the state tax reimbursement?

[00:11:28] Speaker 00:
Is that a legitimate kind of concern that it'll be at least a source of future litigation?

[00:11:36] Speaker 02:
Yes, it most certainly is a legitimate concern, but as far as what was going on there, I don't think that the agency was really thinking about litigation risk in the future.

[00:11:46] Speaker 02:
They were just trying to follow the procurement laws.

[00:11:48] Speaker 02:
This was a contract formation issue and the law is clear from this circuit included that if a proposal does not conform to the terms of the solicitation, it cannot be accepted.

[00:12:01] Speaker 02:
And so the agency was looking at the proposal and it did not conform to the terms.

[00:12:06] Speaker 00:
Well, wait, but didn't you change course at something?

[00:12:09] Speaker 00:
Because wasn't at the GAO, that was not the government's position.

[00:12:13] Speaker 00:
Wasn't the government's position that it was a contingent offer?

[00:12:18] Speaker 02:
That's true.

[00:12:19] Speaker 02:
So there was a little bit of a difference.

[00:12:20] Speaker 02:
There's a difference in the argument as this case went along, but the factual issue is the same.

[00:12:26] Speaker 02:
So it's that same problem of the mismatch in that statement in the proposal versus what the amended solicitation says.

[00:12:33] Speaker 02:
So at GAO,

[00:12:35] Speaker 02:
There was an argument about whether that constituted contingency pricing and those arguments continue to show up in assets brief.

[00:12:43] Speaker 02:
But when this came to the Court of Federal Claims after GAO denied that protest on the merits, we said, well, the problem is really even more basic than that.

[00:12:52] Speaker 02:
The problem is that the proposal says one thing and the solicitation says something else.

[00:12:58] Speaker 00:
Let me just ask you another question, just for clarification, because you did bring this up in the brief.

[00:13:04] Speaker 00:
My understanding from what your position is, is that even if it's not compliant, the government has the discretion

[00:13:14] Speaker 00:
to do a best value analysis and then if it somehow is the best value to go back to the person and say fix it.

[00:13:24] Speaker 00:
Is that the way it works?

[00:13:26] Speaker 00:
And if so, is that what the government always does in these circumstances in order to assure that they will get the best value offer?

[00:13:37] Speaker 02:
So, Your Honor, to address that, the agency did have the option.

[00:13:42] Speaker 02:
When an agency gets a proposal that's not acceptable, the agency can, in a situation like this, go through another round of what's called discussions.

[00:13:55] Speaker 02:
And so, discussions are a procedure under FAR Part 15 where the agency can tell all the offerors, here are the deficiencies and significant weaknesses, if any, in your proposal,

[00:14:07] Speaker 02:
And then the agency invites everyone to submit a new revised proposal.

[00:14:13] Speaker 02:
So the agency always has that opportunity if it wants to, but it definitely does not have to do that.

[00:14:18] Speaker 02:
An agency doesn't have to try to force everyone in the procurement to try to submit an acceptable proposal.

[00:14:28] Speaker 02:
If the agency doesn't decide to go through another round of the discussions, which it didn't do here, and it has a proposal that is not acceptable,

[00:14:37] Speaker 00:
then the only option then is to reject that proposal, which is... Well, except here, maybe I'm confusing this with another case, but didn't you do a best value analysis in this case?

[00:14:47] Speaker 02:
Right.

[00:14:48] Speaker 02:
So the agency did a best value analysis and determined that ACMA was the best value.

[00:14:52] Speaker 02:
And in that best value analysis, it is correct that while it noted that the assets proposal was deficient and couldn't be awarded on anyway, it still did include

[00:15:04] Speaker 02:
in its analysis how assets proposal fit in with the others.

[00:15:10] Speaker 02:
But there's nothing irrational about doing that.

[00:15:13] Speaker 00:
I didn't think it was irrational.

[00:15:15] Speaker 00:
I didn't use that word.

[00:15:16] Speaker 00:
I don't think it's irrational.

[00:15:18] Speaker 00:
My question is what if asset had come up on top on that best value?

[00:15:24] Speaker 00:
Is it clear that the government would have necessarily picked asset protection?

[00:15:30] Speaker 00:
Or I'll go up after them and say go fix it and we'll pick you if you fix it.

[00:15:36] Speaker 02:
No, it's not clear that the government would have done that and there wouldn't have been any obligation to do that.

[00:15:41] Speaker 02:
Had that happened, the agency would have had a discretionary choice.

[00:15:45] Speaker 02:
The agency could have opened up another round of discussions.

[00:15:49] Speaker 02:
And so if it did that, there would be no guarantee that assets proposal would be selected if it fixed that deficiency because everyone gets another opportunity to change their whole proposal.

[00:16:00] Speaker 02:
So there's no guarantee that the analysis would come out the same.

[00:16:03] Speaker 02:
But so the agency certainly had that opportunity if it or hypothetically would have had that opportunity if it wanted to get another round of proposals and give asset a notice of deficiency and an opportunity to submit a new proposal.

[00:16:18] Speaker 02:
But there's absolutely no requirement that it do that.

[00:16:21] Speaker 02:
So the agency still definitely could have decided even if hypothetically assets proposal would have been the

[00:16:28] Speaker 02:
best value absolute deficiency.

[00:16:31] Speaker 02:
The agency absolutely could have nonetheless decided, well, it's deficient, we're taking the other one anyway.

[00:16:37] Speaker 02:
And in fact, that wouldn't have been an unusual outcome if that hypothetical existed here given that the proposals were close.

[00:16:47] Speaker 02:
They were close in a lot of factors.

[00:16:49] Speaker 00:
Are there guidelines about when you would pick him and when you didn't?

[00:16:55] Speaker 00:
I don't want to suggest certainly not that there was something arbitrary about what you do, but is this just, you know, based on the facts and circumstances of every case and a million other factors, you just make a reasonable decision?

[00:17:08] Speaker 00:
That's right.

[00:17:11] Speaker 02:
Okay.

[00:17:11] Speaker 02:
That's right.

[00:17:12] Speaker 02:
It's a matter of contracting officer discretion.

[00:17:14] Speaker 02:
And so the standard is just becomes a matter of whether the government acted irrationally, you know, absent some violation of a particular regulation or statute.

[00:17:23] Speaker 02:
It's just these protests are just questions of whether there was a national basis for the decisions that the contracting officer made.

[00:17:31] Speaker 02:
And so here, in that situation, asset would have to show that the government acted irrationally and, you know, it of course never got to that merits review because looking just at the plain face of the proposal it submitted and the terms of the solicitation, it didn't matter what the agency did because we never got to the merits of the agency's decision making.

[00:17:56] Speaker 02:
because the proposal on its face could not have been awarded on from the outset.

[00:18:01] Speaker 02:
From the moment it was submitted, it was deficient and it would have been unlawful to have been accepted.

[00:18:07] Speaker 02:
And so for that reason, ASSET had no chance of being awarded the contract.

[00:18:15] Speaker 02:
And it was therefore doesn't have standing to say the agency's decision making and choosing the other

[00:18:22] Speaker 02:
offeror is wrong because asset couldn't have been awarded it regardless.

[00:18:27] Speaker 02:
Asset argues that all it had to do was acknowledge the solicitation amendments and that's it, but acknowledging solicitation amendments is not the same as revising a proposal.

[00:18:39] Speaker 02:
If an amendment changes the solicitation such that the proposal has to be revised, the offeror has to actually submit a revised proposal that conforms to the solicitation.

[00:18:52] Speaker 02:
Asset didn't do that here.

[00:18:55] Speaker 02:
Asset argues about contingency pricing, but that doesn't confront the holding of the Court of Federal Claims that in the decision that Asset is challenging.

[00:19:04] Speaker 02:
The Court of Federal Claims decided correctly that Asset's proposal didn't conform to the solicitation, and it properly dismissed the complaint on that basis.

[00:19:18] Speaker 02:
This court should affirm.

[00:19:19] Speaker 00:
Thank you.

[00:19:21] Speaker 00:
Mr. Dungan, you have five minutes.

[00:19:25] Speaker 03:
Thank you, Your Honor.

[00:19:27] Speaker 03:
We support the government's argument regarding lack of scanning, but we rise to support an alternative basis for affirming the decision below that the appellant's bid protest is untimely and therefore waived under this Court's decisions in Blue and Gold Fleet v. United States.

[00:19:44] Speaker 03:
And its progeny has recently revalidated

[00:19:48] Speaker 03:
by this court and the insertion corporation be United States.

[00:19:53] Speaker 00:
I'm sorry.

[00:19:53] Speaker 00:
This is Judge Post.

[00:19:54] Speaker 00:
You would only advocate reaching the alternative if we couldn't affirm on the basis to which the government is asserting its claim, right?

[00:20:01] Speaker 03:
Absolutely.

[00:20:02] Speaker 03:
We're in full agreement with the government and its positions.

[00:20:04] Speaker 03:
We're just providing alternative basis should the court so choose.

[00:20:10] Speaker 03:
Asset securities bid protest relies on two interpretations of the solicitation as amended

[00:20:18] Speaker 03:
that either are directly conflict with the language of the solicitation or best rely on patent ambiguities, either render the bid protest untimely.

[00:20:31] Speaker 03:
The solicitation originally allowed proposing pricing contingencies and indicated initially that the agency would issue a tax exemption certificate for Arizona's 4.5% business tax.

[00:20:46] Speaker 03:
That was amended in Amendment 17, which prohibited pricing conditions.

[00:20:52] Speaker 04:
I simply do not understand your argument, which to me doesn't make sense.

[00:20:57] Speaker 04:
What is it?

[00:20:58] Speaker 04:
They're not challenging the solicitation.

[00:21:02] Speaker 04:
So, Your Honor... They're saying that any error in our bid was basically harmless because it doesn't affect the price.

[00:21:13] Speaker 03:
Your Honor, I would...

[00:21:14] Speaker 03:
concede only that the appellant's bid protest is not styled in a manner which on its face would challenge a solicitation term.

[00:21:29] Speaker 03:
However, as we sign our brief, their argument relies on an interpretation of the solicitation that either directly conflicts with its plain language

[00:21:45] Speaker 03:
or at best to the appellant relies on a patent ambiguity.

[00:21:50] Speaker 03:
And indeed in Blue and Gold Fleet, that case relied on a patent ambiguity.

[00:22:00] Speaker 03:
In Blue and Gold Fleet, the protestor styled its protest as a challenge of the evaluation.

[00:22:09] Speaker 03:
Their argument in that case was

[00:22:13] Speaker 03:
that the agency failed to evaluate the sufficiency of proposed wages to comply with the prevailing wage requirements of the Service Contract Act.

[00:22:26] Speaker 03:
The court in blue and gold fleet looked at the logical underpinnings of that argument.

[00:22:32] Speaker 03:
And it determined that that argument relied on a patent ambiguity made patent because of the protesters' knowledge

[00:22:43] Speaker 03:
of the government's prior interpretations.

[00:22:46] Speaker 03:
And that based on that, the bid protest should be characterized as one that challenges the solicitation terms.

[00:22:56] Speaker 03:
The same logic holds here.

[00:22:59] Speaker 03:
The first either direct conflict or patent ambiguity that ASSEM relies upon is that it was allowed

[00:23:13] Speaker 03:
to state that the agency intended to issue a 4.5% tax when in fact it did not under the clear terms of Amendment 19 and 20.

[00:23:26] Speaker 03:
The second patent ambiguity that their protest relies upon is that its belief that the agency changed its mind about the proposal no longer being ineligible.

[00:23:41] Speaker 03:
That directly conflicted with the agency's prior finding in its second award decision as acknowledged by the protestor appellant in the GAO proceeding.

[00:23:55] Speaker 03:
The corrective action amendment did not state, at Appendix 1293, it did not state that the agency no longer believed the proposal was ineligible for that reason.

[00:24:05] Speaker 03:
Rather, it merely stated that

[00:24:08] Speaker 03:
that it would reevaluate because doing so was in the agency's best interest.

[00:24:14] Speaker 03:
And for those reasons, Your Honor, we would submit that if the court chooses not to affirm on the basis stated in the opinion below, that it should affirm on an alternative basis of untimeliness.

[00:24:32] Speaker 00:
Thank you.

[00:24:33] Speaker 00:
Mr. Ralston?

[00:24:36] Speaker 05:
Thank you, Your Honor.

[00:24:37] Speaker 05:
First, as to the government's arguments, in response to your question concerning what the concern was at the agency, the government responded that, yes, part of it was that there would be a comeback later, the potential for further litigation, so to speak, or in essence, a future alteration of the price or a future negotiation.

[00:25:01] Speaker 05:
That is exactly

[00:25:03] Speaker 05:
the price condition point discussed in our briefs and is really at the core of that.

[00:25:09] Speaker 05:
And it's why I noted that this is a case of first impression because that point is very fundamental with respect to federal procurement.

[00:25:20] Speaker 05:
And therefore, the court needs to draw that distinction between a price condition, as was indicated in that answer, versus a cost or price assumption that does not impact the price.

[00:25:32] Speaker 05:
The trial court effectively assumed that it would impact it and skipped over the price condition test and used its per se impact analysis instead, and that would impose, if that were followed, essentially blanket liability on offerors for accuracy of their price assumption and establish new bid protest grounds on that basis.

[00:25:53] Speaker 05:
By contrast, were the court to adopt a claims court analysis in Harmonia Holdings v.

[00:25:58] Speaker 05:
U.S., discussed in our blue brief at 34,

[00:26:02] Speaker 05:
The GAO decision in this case, at Appendix 1468, and the well-established line of price condition decisions by GAO, which are available at Appendix 2211 to 2214, it would avoid those adverse results.

[00:26:17] Speaker 05:
Second, the discussion, there was a discussion concerning non-contingent issue at GAO versus conditional pricing.

[00:26:26] Speaker 05:
And I understand, as I recall, a comment was made that essentially involved similar

[00:26:32] Speaker 05:
principles or concepts.

[00:26:33] Speaker 05:
They're very different.

[00:26:34] Speaker 05:
The first is a very narrow issue concerning FAR 52222-43B, and it has never been followed thereafter.

[00:26:42] Speaker 05:
Conditional pricing is the much broader issue.

[00:26:46] Speaker 05:
It's the one I've just mentioned, the first impression.

[00:26:48] Speaker 05:
And into that point, following on another question of why was asset in the competitive range considered in its proposal of best value determination, it's because apparently the agency saw no difficulty

[00:27:02] Speaker 05:
of there being a nonconformity of assets price proposal with the price requirement.

[00:27:07] Speaker 05:
And that's because the agency, of course, knows the fundamental rule that in a firm fixed price procurement, cost does not impact price unless it conditions it.

[00:27:19] Speaker 05:
And I note our Rule 28-J filing with respect to the Pacific Coast decision of last Friday, which goes to really exactly that point.

[00:27:29] Speaker 05:
because throughout the procurement, the risk wholly is borne by the contractor, not by the government.

[00:27:38] Speaker 05:
Thus, essentially, Pacific Coast is consistent with and supports our decision that the price would not have been impacted by the tax exempt certificate statement.

[00:27:49] Speaker 05:
Finally, on the issue where the government says it was inconsistent and could not result in an agreement,

[00:27:56] Speaker 05:
The government's argument ignores there's no expressed requirement in the solicitation's pricing requirement, nor in amendments 19 or 20, that sales taxes be included, excluded, considered, or even addressed.

[00:28:09] Speaker 05:
And the government's brief at 20 and 21 acknowledges those very points.

[00:28:15] Speaker 05:
All they changed was the government's answer with respect to tax-exempt certificates, which put it back to the status quo ante.

[00:28:23] Speaker 05:
nor is there any express prohibition on relying on an incorrect cost assumption or from ICE accepting one.

[00:28:31] Speaker 05:
Briefly on the blue and gold issues, to Judge Dyke's point, assets protest did not challenge the amendments as ambiguous or that the solicitation is defective, which of course are predicates to the blue and gold challenge.

[00:28:46] Speaker 05:
Nor does blue and gold apply to protest for corrective action.

[00:28:51] Speaker 05:
It is also self-evident that

[00:28:54] Speaker 05:
Amendments 19 and 20, issued in May of 2019, would never put asset on notice of ICE's August 2019 contingency pricing position that assets proposed will suppose have materially violated the price requirement.

[00:29:10] Speaker 05:
Finally, there's no requirement to protest ICE's Amendment 21 in November 2019, because at that point the ICE corrective action was still continuing, and a new evaluation award decision had not yet been issued at that point.

[00:29:25] Speaker 05:
I hear my time is up.

[00:29:27] Speaker 05:
Thank you, Your Honor.

[00:29:28] Speaker 00:
Thank you both.

[00:29:29] Speaker 00:
Thank both parties and the cases submitted.

[00:29:32] Speaker 00:
That concludes our proceeding for this morning.

[00:29:37] Speaker 01:
The honorable court is adjourned until this afternoon at 2 PM.