[00:00:02] Speaker 01: the United States Court of Appeals for the Federal Circuit is now open and in session. [00:00:07] Speaker 01: God save the United States and this honorable court. [00:00:13] Speaker 01: The first case for argument this morning is 20-1414 H.V. [00:00:18] Speaker 01: West versus United States. [00:00:21] Speaker 01: Mr. Major, whenever you're ready. [00:00:24] Speaker 03: Thank you, Your Honor. [00:00:25] Speaker 03: May it please the court. [00:00:27] Speaker 03: Pursuant to 28 U.S.C. [00:00:29] Speaker 03: 1491 B.1. [00:00:30] Speaker 03: The United States Court of Federal Claims only possesses bid protest jurisdiction to review the award of a contract in connection with a procurement where he proposed procurement. [00:00:40] Speaker 03: As a waiver of sovereign immunity, this grant of jurisdiction is to be strictly construed. [00:00:45] Speaker 01: Mr. Mayor, can I interrupt? [00:00:47] Speaker 01: This is Sharon Prout. [00:00:49] Speaker 01: What is the standard in your view as to how we are to ascertain the true nature of this contract? [00:00:58] Speaker 01: I mean, it's backwards like central to the transaction, more than de minimis, mixed transaction. [00:01:05] Speaker 01: What is your view of the standard to be applied? [00:01:09] Speaker 03: Well, first, Your Honor, more than de minimis or the mixed transaction notion, none of that occurs anywhere in the United States coast. [00:01:18] Speaker 03: That is simply a constructed sort of way of attempting to determine that a particular matter is a procurement, even where his share is a sale. [00:01:30] Speaker 03: But I think from the government's perspective, there are a few central core principles. [00:01:36] Speaker 03: First, that Congress throughout its statutes has distinguished between sales, procurements, and the use of government property also. [00:01:45] Speaker 03: But in the statutory regime, [00:01:48] Speaker 03: The words that Congress has used in the past in talking about transactions is talking about sort of the principal purpose. [00:01:56] Speaker 03: And that goes to the essential nature, the character of the transaction itself, and looks to things as, you know, as the court noted in Heimus, you know, whether property has been acquired for the direct use or benefit of the government. [00:02:10] Speaker 03: So in a case like this where the government is selling property, if there are conditions on the sale, [00:02:17] Speaker 03: and those conditions on the sale are not for the direct use and benefit of the government, but are in furtherance of the disposition of the property, then that transaction would not qualify as a procurement, which qualifies as a sale. [00:02:34] Speaker 01: And in most cases... So your view of what the standard is, is we would have to conclude that the principal purpose of the parties entering in this transaction was to get all of this [00:02:47] Speaker 01: hardware from the military would have to be composed or... Yes, it was a sale of the property. [00:02:55] Speaker 03: And the government could simply... It could enter into a procurement and simply dispose of the property without a sale. [00:03:05] Speaker 03: It could, you know, enter into... There are a number of ways the government could go forward in a transaction. [00:03:11] Speaker 03: In this particular instance, [00:03:13] Speaker 03: the government chose to proceed by a sale, applying the strictures of the federal management regulations rather than federal acquisition regulations. [00:03:22] Speaker 01: Well, Mr. Mayor, let me tell you what's... This is Judge Procien. [00:03:25] Speaker 01: I'm sorry to interrupt, but our time is obviously short. [00:03:28] Speaker 01: What's bothering me about this is, I don't know, coming from the Watergate days, you follow the money. [00:03:34] Speaker 01: And when you look at the numbers associated with the sale and the procurement, tell me if I'm misunderstanding them. [00:03:41] Speaker 01: But from what I understand in the record, it was almost $2 a pound for the scrap metal. [00:03:48] Speaker 01: And the contract bids, the highest one, was just a few cents, which suggests to me that if you're just looking at where the numbers were and where the bulk of the money that was affected were, it was really not in the sale [00:04:06] Speaker 01: the huge bulk of the amount of money from, we're going down from 196 of scrap metals, $1.96 to just a few pennies, right? [00:04:19] Speaker 01: Doesn't that suggest anything, should that not suggest anything to us about what the real purpose of this transaction was? [00:04:27] Speaker 03: Well, but I think what should be more suggestive to court is the simple fact that the, um, [00:04:34] Speaker 03: that at the end of the day, there is still a contractor who is paying the government, not the government paying the contractor. [00:04:40] Speaker 03: So the overall value of the transaction, if you have to look at it from the contractor's perspective and from the government's perspective, that particular scrap is more valuable to them than any potential pertinent demilitarization or mutilation that they might have to provide. [00:04:59] Speaker 03: And the court actually didn't, I mean, in saying, in applying [00:05:03] Speaker 03: its test, the trial court didn't actually try to weigh the amount that was paid relative to the value of the service to the government. [00:05:12] Speaker 03: The court simply skipped past that by saying, well, it's of a more than de minimis value. [00:05:17] Speaker 05: Mr. Maeger, this is Judge Hughes. [00:05:20] Speaker 05: Can I interrupt here in just a minute? [00:05:22] Speaker 05: I have a hypothetical for you here. [00:05:24] Speaker 05: Instead of having just this one sale, as you like to call it, suppose the government had a block of this equipment. [00:05:32] Speaker 05: that it wanted to decommission and sell. [00:05:37] Speaker 05: And it knew that it had to decommission it. [00:05:40] Speaker 05: What if it had gone out with two contracts, one for decommissioning, and then once it was decommissioning, sold it? [00:05:46] Speaker 05: Would not that first decommissioning contract where they pay somebody to decommission be a procurement? [00:05:52] Speaker 05: Yes. [00:05:53] Speaker 03: I mean, the structure of the transaction that the government engages in does impact whether the court or federal claims that jurisdiction over it, just as the rules [00:06:01] Speaker 03: that would apply to those particular transactions would vary. [00:06:05] Speaker 05: So say that I'm going to just use very basic numbers to get my point across. [00:06:13] Speaker 05: But say the decommissioning services cost a million dollars. [00:06:17] Speaker 05: And that's a procurement. [00:06:18] Speaker 05: And then once it's decommissioned, it's worth a little bit of scrap metal, but not much. [00:06:23] Speaker 05: So they can sell it for whatever the highest bid is. [00:06:25] Speaker 05: But they know the highest bid is going to come in around $100,000. [00:06:30] Speaker 05: And that's clearly a sale. [00:06:32] Speaker 05: What if the government decides it's more convenient to do both of these things at once? [00:06:37] Speaker 05: And so you have, again, a dual purpose contract where you're getting services that are worth a lot of money, but, you know, they're willing to pay a little bit of money for it. [00:06:49] Speaker 05: Now, I know my numbers are not going to work for this contract, but I think the idea is there, whereas, you know, the contractor is getting [00:06:57] Speaker 05: some profit out of it, but the government is getting a whole lot of service out of it too. [00:07:02] Speaker 05: How do we determine then if there are two equal, well, we don't even have to say they're equal. [00:07:08] Speaker 05: If there are two important purposes, why isn't, how do we determine whether it's a procurement or a sale? [00:07:16] Speaker 03: Well, I mean, you're again looking to is the government, you know, acquiring those services for the use and benefit. [00:07:23] Speaker 03: I'll say in your example, whether it is. [00:07:25] Speaker 03: Well, sure. [00:07:26] Speaker 04: But if I interrupt Mr. Major, Judge Cleminger, why can't you just answer the question? [00:07:33] Speaker 04: Let's assume that the services are for the benefit of the government. [00:07:37] Speaker 04: What we're trying to find out, all three of us, is what's the test [00:07:41] Speaker 04: or deciding a true mixed contract, whether there is or is not protest jurisdiction. [00:07:49] Speaker 04: Assume, for purposes of argument, a genuine, pure, mixed contract. [00:07:54] Speaker 04: No question about it. [00:07:57] Speaker 04: The government is both selling property and it's getting services for its benefit. [00:08:02] Speaker 04: How do we decide? [00:08:05] Speaker 04: Is there jurisdiction? [00:08:06] Speaker 04: Is there possibly jurisdiction over that contract? [00:08:10] Speaker 04: Yes or no? [00:08:13] Speaker 03: I'm sorry, because that's rather involved. [00:08:17] Speaker 04: But, I mean, the court, again, if the principal purpose is to... Is your answer that we have to determine what the principal purpose is? [00:08:32] Speaker 04: If the principal purpose of a mixed contract is sale, [00:08:39] Speaker 04: Then you would say no jurisdiction. [00:08:41] Speaker 04: But is the principal purpose attached? [00:08:45] Speaker 04: Yes. [00:08:46] Speaker 05: What if there are two principal purposes? [00:08:50] Speaker 05: What if there are co-equal principles? [00:08:53] Speaker 05: Well, I don't know that we want to get into parsing of, well, this is, I mean, how will we determine that? [00:08:59] Speaker 05: If the government wants a contract that gives services for the government, but also gets some money for the government from sales, [00:09:09] Speaker 05: How do we determine whether there's jurisdiction or not? [00:09:11] Speaker 05: Let's just assume, because it seems a little simplistic to say, well, there can only be one principal purpose. [00:09:18] Speaker 05: Lots of contracts can have multiple purposes. [00:09:21] Speaker 05: Are we looking at quantifying it, which is higher dollar value for bid protest jurisdiction? [00:09:27] Speaker 05: Or are we just looking at whether there's some aspect of the contract that has a procurement aspect? [00:09:35] Speaker 03: Your Honor, I'm into my rebuttal time. [00:09:38] Speaker 03: If it's principal purpose, you can't have two principal purposes. [00:09:42] Speaker 03: That word in itself says there's going to be one principal purpose. [00:09:46] Speaker 04: But I mean, consistent with Heimlich, you look at... Well, how do you measure principal purpose? [00:09:53] Speaker 04: Is it by the importance to the government? [00:09:58] Speaker 04: Yes, I mean, is the government... Okay, so let's assume the government says both are important to me, equally important [00:10:08] Speaker 03: Well, an easy way in the context of a sale is who is paying who. [00:10:13] Speaker 03: Is the contractor paying the government or is the government paying the contractor? [00:10:16] Speaker 03: Because in those scenarios, clearly the principal purpose would be that you make the case easy. [00:10:24] Speaker 04: Why don't you make the case hard and say the government is paying the contractor? [00:10:31] Speaker 03: Well, if the government is paying the contractor, then that would be a procurement. [00:10:35] Speaker 03: Absolutely. [00:10:36] Speaker 03: I don't disagree that if the government is paying the contractor, that's a procurement. [00:10:43] Speaker 04: You're running away from the problem, sir, with all due respect. [00:10:47] Speaker 04: Let's assume a genuine mixed contract where the services are for the benefit of the government, but it's also a sale. [00:10:56] Speaker 04: And both purposes are equally important to the government. [00:10:59] Speaker 04: It's of a record. [00:11:00] Speaker 04: They say it's equally important to decommission as it is to get rid of the stuff. [00:11:05] Speaker 04: How do we decide that? [00:11:08] Speaker 03: That one's also easy, Your Honor, because waivers of sovereign immunity need to be strictly construed. [00:11:13] Speaker 03: So in that instance, if we're talking truly 50-50%, then it would not qualify as an experiment and the court would not have jurisdiction over it. [00:11:22] Speaker 05: But that answer does not seem to make any sense whatsoever. [00:11:26] Speaker 05: I mean, there is a waiver of... You seem to be relying on the notion that [00:11:32] Speaker 05: that a contract has to be all one thing or another thing. [00:11:36] Speaker 05: But I don't see anything, any logical reason that that's true. [00:11:43] Speaker 05: It seems to me that a contract can have multiple purposes. [00:11:47] Speaker 05: Let me ask you, I know you're well past your time and I'm going to ask you one last hypothetical though if the chief will indulge me. [00:11:53] Speaker 05: Let's say the most important thing for the government is getting the commissioning done. [00:11:59] Speaker 05: But it realizes it can have somebody do it essentially for free and even get a little bit back because the scrap metals were something. [00:12:08] Speaker 05: So it structures that contract in that way, even though it would have been happy to pay to have it done. [00:12:15] Speaker 05: Why should we rely on a formalistic view of whether that government is getting money back to determine what the principal purpose is rather than the actual underlying purpose? [00:12:28] Speaker 03: Well, Your Honor, because quite simply, in those scenarios, we have a specific set of rules that are going to be applied to that transaction, federal acquisition regulations or the federal management regulations. [00:12:40] Speaker 03: How the government has chosen to structure that transaction will affect whether the court has jurisdiction over it. [00:12:47] Speaker 03: I mean, we're talking about some sort of almost, you know, purpose that's deep, you know, within the government's, you know, the government has a deep concern about something. [00:12:57] Speaker 03: But that itself is insufficient to say that it is not a sale, even if the government has a strong interest in something. [00:13:04] Speaker 03: I mean, again, that doesn't turn a sale into a procurement. [00:13:09] Speaker 05: So if the government uses the sale regulations rather than the procurement regulations, the government is the one that gets to dictate whether it's a sale or a procurement, and therefore the court of federal claims did protest jurisdiction. [00:13:26] Speaker 03: Yes. [00:13:26] Speaker 03: Because, and also at the end of the day, if we have, if the value of that property is so great and the value of those services as determined by the market is so great, we won't have any contractors bidding on the sale. [00:13:39] Speaker 03: You know, if it's going to cost them more to dispose of or demilitarize the property in a case like this, then it would for them, then the value of the scrap would be. [00:13:48] Speaker 03: So economics helps control and constrain the government in those instances. [00:13:53] Speaker 03: You can't turn procurement into a sale. [00:13:57] Speaker 03: Again, unless the principal purpose is something where the government is, and you can look at how the parties are acting with regards to that transaction. [00:14:08] Speaker 01: Okay, why don't we move on to your colleague. [00:14:11] Speaker 01: He's going to serve four minutes, and we'll give him his four minutes. [00:14:18] Speaker 02: Good morning. [00:14:18] Speaker 02: Thank you, Your Honor. [00:14:19] Speaker 02: This is Sharbha Mani on behalf of Appellant Lambie Pollution, Incorporated. [00:14:23] Speaker 02: Can everybody hear me fine on that end? [00:14:27] Speaker 04: Yes, Judge Clarence, I just have one ethical question before you start. [00:14:32] Speaker 04: At page 21 of your reply brief, you cite the provision of the contract that provides for the facilities on subcontractor to be used, and your site is an administrative record 313 at one point. [00:14:49] Speaker 04: That's not in the appendix. [00:14:51] Speaker 04: Would you please supply that to us later today? [00:14:54] Speaker 02: Yes, Your Honor, I would be more than happy to do so. [00:14:59] Speaker 02: Your Honor, Mr. Maiger and the court spent a great deal of time talking about the jurisdiction issue, which is also a basis for my client, Lamb De-Pollution's appeal. [00:15:10] Speaker 02: If it pleases the court, rather than spend my limited time going over that topic again, I want to address one of the two remaining basis for Lamb's appeal, which is the third basis of appeal. [00:15:23] Speaker 02: which is the Court of Federal Claims decision on the merits, substantively, to cancel the contract of the bid solicitation that was awarded to LAM. [00:15:31] Speaker 02: I'm happy to answer any questions that the court might have as to the first basis regarding jurisdiction or as to the second basis regarding standing. [00:15:38] Speaker 02: But again, due to my limited time, I'd rather just spend the next three to four minutes talking about the third basis of appeal. [00:15:45] Speaker 01: Again, I appreciate that you recognize it's our time and not yours. [00:15:49] Speaker 01: So let me ask you to talk about standing a little bit. [00:15:53] Speaker 01: Your argument, I guess, is that they fell short with respect to saying something about the other two contractors. [00:16:02] Speaker 01: Well, if we're talking about the complaint, it's pre-discovery. [00:16:06] Speaker 01: How much did they have to say that would have satisfied the standing requirement? [00:16:12] Speaker 01: They wouldn't have had to prove that the other contractors were incapable of performing, right? [00:16:18] Speaker 01: Do they have to say they're incapable of performing? [00:16:20] Speaker 01: How much needs to be said? [00:16:23] Speaker 02: Right, Your Honor, and to adequately, great question, and to adequately answer that question, I go back to the initial rule that we're looking at, which is that any protester in a bid protest needs to show that they had a substantial chance of receiving the contract. [00:16:39] Speaker 02: And I guess that depends on the circumstances, depending on how the particular bid solicitation is set up. [00:16:45] Speaker 02: In this case, the way the bid solicitation was set up is that it asked for a two-step evaluation process where [00:16:53] Speaker 02: In the first step, the only information that was requested to perform a comparative basis of evaluation was the bid price. [00:17:01] Speaker 02: In the second step, after determining who the apparent high bidder was based on that bid price, the agency then engaged in an evaluation only as to that apparent high bidder just to make sure that it could meet the rest of the qualifications, the rest of the criteria set forth in the award. [00:17:19] Speaker 02: So in this case, what happened, [00:17:21] Speaker 02: was that myquine lamb depollution finishes the highest bidder based on bid price. [00:17:26] Speaker 01: I know. [00:17:27] Speaker 01: They're off the table. [00:17:28] Speaker 01: We know the numbers are one, two, three, and four. [00:17:32] Speaker 01: So how does one establish, what's the least one could do to bid number, bidder number four to establish that he would have had a substantial chance? [00:17:43] Speaker 02: Right. [00:17:43] Speaker 02: So in bidder number four's case, bidder number four would have had to establish that bidder number one could not have qualified based on all of the criteria set forth in the award. [00:17:53] Speaker 02: In addition, bidder number two couldn't have qualified based on all 10 of the criteria set forth in the report. [00:17:59] Speaker 02: And then even if bidder number two fails, then bidder number three also could not [00:18:05] Speaker 02: qualify based on all the criteria set forth in the award. [00:18:09] Speaker 01: If he could have proven up that they didn't qualify, then it would be more than a substantial chance. [00:18:15] Speaker 01: Then he would have proven that he would have gotten the contract, and the standard is a substantial chance, not that he was 100% sure of winning. [00:18:25] Speaker 01: So I'm trying to see where the lines are drawn here and how much you really have to put forth [00:18:33] Speaker 01: in your complaint to establish a substantial chance. [00:18:37] Speaker 01: You don't have to show you would have won, right? [00:18:40] Speaker 06: Correct. [00:18:41] Speaker 01: Correct. [00:18:42] Speaker 01: These guys absolutely would have been knocked out of the park on two because one is already settled, the first criteria of the amount. [00:18:52] Speaker 01: So what does he have to say? [00:18:55] Speaker 02: In this case, HEF would have had to point to a specific criteria that it considered that these bidders would not have been able to show. [00:19:04] Speaker 02: But in this case, that's not what happened in the complaint. [00:19:07] Speaker 02: Rather, there were one to two very sparse allegations in the complaint based on websites of the intervening bidders, claiming that because these websites don't show that these bidders have enough expertise or have enough expertise. [00:19:22] Speaker 01: I'm sure I apologize for interrupting, but show that they wouldn't know. [00:19:29] Speaker 01: I mean, it's not, he doesn't have to prove a hundred percent. [00:19:32] Speaker 01: He just has to prove substantial chance. [00:19:34] Speaker 01: And I'm just trying to honestly understand what substantial chance means. [00:19:38] Speaker 01: So wouldn't it have been sufficient if he could say there were questions about their capacity to perform? [00:19:45] Speaker 01: and therefore it's likely they wouldn't have been able to do it. [00:19:49] Speaker 01: It doesn't have to show that they couldn't possibly have done it, right? [00:19:52] Speaker 02: Yeah, I don't think it goes, and I agree with you. [00:19:55] Speaker 02: I don't think what we're asking is for a hundred percent. [00:19:58] Speaker 02: You have to show a hundred percent that they couldn't perform, but at the same time, you need to do more than just say that these guys have very little experience based on their website. [00:20:09] Speaker 02: And based on that, we think this should serve as a barrier to entry. [00:20:13] Speaker 02: and essentially create a monopoly for us who do have a certain amount of experience, and let's keep out anybody else who thinks they're an upstart and who thinks, you know, they have... Well, what if hypothetically the solicitation had ranked experience as the most important factor? [00:20:30] Speaker 02: That would change it, but it didn't. [00:20:33] Speaker 02: That would change it. [00:20:34] Speaker 02: Absolutely, Your Honor. [00:20:35] Speaker 02: I think if experience was the most important factor here, I think we're looking at a different ballgame. [00:20:41] Speaker 02: In this case, it wasn't. [00:20:42] Speaker 02: Price was the most important factor, frankly. [00:20:45] Speaker 02: And then after price, then it was the 10 other criteria used for the award, all of which were given equal weight. [00:20:53] Speaker 01: I mean, price and experience are in different buckets. [00:20:55] Speaker 01: Price is one thing, but experience goes to your technical capacity, your demonstrated technical capacity to perform the contract, right? [00:21:06] Speaker 02: That agreed your honor and that's exactly what happened here is that experience and financial wherewithal and some of the other criteria used. [00:21:15] Speaker 02: The agency in this case wasn't looking for the ones who had the most experience in all of the United States or the ones who had the most financial resources in the United States. [00:21:24] Speaker 02: All of those factors with respect to this bid solicitation were all just bare minimum requirements just that we want to make sure that you as the highest price bidder [00:21:33] Speaker 02: you have the ability to perform on the contract. [00:21:36] Speaker 02: So we're not engaging in a comparative analysis. [00:21:39] Speaker 01: I'm sorry, but how better can one show that they have the capacity to do this than showing that they have experience, substantial experience in doing it? [00:21:49] Speaker 02: Experience is certainly one factor that's important, but at the same time, too, and I think the reason why experience wasn't the only factor [00:21:58] Speaker 02: is that the agency didn't want to create a barrier to entry for companies such as my client, who frankly didn't have the experience in Arizona, but did have the experience in Texas working on a similar project with the agency. [00:22:12] Speaker 02: So they didn't want to create a barrier to entry just based on experience alone. [00:22:16] Speaker 02: And if that's the only allegation that's coming from HVF in their complaint that, look, the second and third place bidders don't have the requisite experience just based on our review of a website, [00:22:27] Speaker 02: I respectfully submit that that's not enough for standing to allege that they had a substantial chance that these bidders would have failed. [00:22:36] Speaker 01: All right. [00:22:36] Speaker 01: Thank you. [00:22:37] Speaker 01: I think I heard the bell. [00:22:39] Speaker 01: Sorry you didn't get to the point you wanted to cover. [00:22:43] Speaker 02: No problem at all, Your Honor. [00:22:45] Speaker 02: Thank you. [00:22:47] Speaker 01: Okay. [00:22:47] Speaker 01: Let's hear from Mr. Ho. [00:22:50] Speaker 06: Yes. [00:22:50] Speaker 06: Thank you, Your Honor, and may it please the Court. [00:22:53] Speaker 06: I think there are clearly two areas that the court is interested in, so I will address each one of those in turn. [00:23:04] Speaker 06: The first question being what standard to apply to a transaction, I'll call it for the moment, that is a mixed transaction that includes both a procurement and a sale, and I think it's [00:23:21] Speaker 06: Probably not useful use of time here to go into all the reasons why I think there was a procurement here of very important services. [00:23:35] Speaker 01: Well, just because it's mixed, it is necessarily jurisdiction. [00:23:41] Speaker 01: It has to do with at least the quantification or the qualification of what's really been going on here. [00:23:48] Speaker 01: So just saying it includes services [00:23:51] Speaker 01: and money isn't enough in your view, is it? [00:23:55] Speaker 06: No, it isn't, Your Honor, and it begs the question that the Court has raised here as to what standard to apply. [00:24:03] Speaker 06: Judge Sweeney, in her decision, looked at for guidance a GAO decision that resolved the question using a more than de minimis standard to identify a procurement [00:24:18] Speaker 06: Judge Horn, when we did supply this, her decision separately, there was a subsequent bid protest involving essentially the same solicitation language that Judge Horn had before her. [00:24:34] Speaker 06: And she looked at the same, essentially the same language. [00:24:38] Speaker 06: And she said, for this particular procurement, it's either meets a de minimis standard or a principal purpose standard. [00:24:46] Speaker 06: And she adopted the principal purpose standard from some of your decisions, from the Federal Circuit decisions. [00:24:54] Speaker 06: Those decisions, however, largely, if not entirely, the principal purpose test came from statutes that underlay the question. [00:25:05] Speaker 06: So, for example, the Hymas case involved the Service Contract Act. [00:25:10] Speaker 06: And the question was whether it was a service contract or, [00:25:14] Speaker 06: a procurement contractor to list. [00:25:18] Speaker 01: Are you embracing the standard of principal purpose? [00:25:23] Speaker 06: I would stick with... I think the de minimis standard is a good standard. [00:25:29] Speaker 06: I will acknowledge that there is no... In my review, there is no federal circuit decision on what the standard should be. [00:25:39] Speaker 06: There is no statute either. [00:25:41] Speaker 01: Let's assume hypothetically the standard were the principal purpose. [00:25:46] Speaker 06: Certainly. [00:25:47] Speaker 01: Do you believe that here? [00:25:49] Speaker 06: Absolutely, Your Honor. [00:25:52] Speaker 06: First of all, the solicitation has all the indicia of the procurement of services, has detailed specifications on how the work will be performed. [00:26:03] Speaker 06: The solicitation talks in terms of the work to be performed. [00:26:09] Speaker 06: It also has an evaluation scheme. [00:26:12] Speaker 01: But all the documents seem to be called sales contract. [00:26:14] Speaker 01: There's a lot of, the word sale is used repeatedly in all of the contractual documents that we have here. [00:26:22] Speaker 06: Yes, and we, well, Your Honor, if you will, a slight, it's not a euphemism, I'm not sure what the term is, but we began to look at this, if it walks like a duck and quacks like a duck, it's a duck. [00:26:40] Speaker 06: The procurement is really the transaction is what it is. [00:26:45] Speaker 06: Whatever title you give it doesn't change the underlying nature of the procurement or of the transaction. [00:26:52] Speaker 06: And as I said, there are, yes. [00:26:55] Speaker 04: Excuse me, Mr. Judge Clemenger. [00:26:57] Speaker 04: If we were to decide that principal purpose is the guiding principle for deciding what kind of contract this is, why shouldn't we just vacate and remand? [00:27:07] Speaker 04: I mean, whether it's a doc or not a doc sounds like a question that you need to have testimony on. [00:27:15] Speaker 06: Well, I think Judge Sweeney did look at the full record and made that judgment. [00:27:21] Speaker 06: She looked at it. [00:27:24] Speaker 04: But not as a matter of principle purpose. [00:27:27] Speaker 06: That is true. [00:27:30] Speaker 04: If we have a new test, why don't we vacate and remand? [00:27:36] Speaker 06: Well, I believe just in terms of judicial efficiency, Judge Horn basically decided the same case. [00:27:44] Speaker 06: I realized it was not this case that's before you, but it was essentially the same. [00:27:50] Speaker 06: In fact, in all particular purposes, it was the same procurement. [00:27:55] Speaker 06: And in her view, it was both a principal purpose and a more than de minimis case that was met by this solicitation. [00:28:03] Speaker 06: So I guess technically, [00:28:05] Speaker 06: one could remand. [00:28:07] Speaker 06: Uh, but I think, uh, the court could take notice that that issue was decided by another judge at the court of federal claims within months of the first decision. [00:28:16] Speaker 06: And, uh, she applied the principal purpose test and it passed that test as well. [00:28:22] Speaker 01: Um, the, um, doesn't the fact that the election was structured number one, whoever gives us the most money, that's the way we rank people. [00:28:34] Speaker 01: And after that, it's only secondary. [00:28:36] Speaker 01: You can obviously have the capacity to do the job. [00:28:41] Speaker 01: But doesn't that fact that the selection was really based on who was giving up the most money in terms of purchasing this, an indicative fact for us to conclude that this was predominantly for purposes of the sale? [00:28:57] Speaker 06: Well, I don't think it answers the question, Your Honor. [00:29:00] Speaker 06: And I know there's been focus on that point, but just [00:29:04] Speaker 06: Put yourself, I will suggest we put ourselves in the shoes of the bidders. [00:29:09] Speaker 06: And they have two, at least two factors to consider. [00:29:15] Speaker 06: One is what are they going to pay for the resulting scrap? [00:29:19] Speaker 06: And what is their cost of doing the demilitarization and mutilation of this property? [00:29:25] Speaker 06: And they factor those two items together. [00:29:28] Speaker 06: And they offer a price, and I think Your Honor made the point earlier that the value of this property before it was turned into scrap was substantial. [00:29:38] Speaker 06: And the amount that the contractor was actually willing to pay was quite small, relatively speaking. [00:29:44] Speaker 06: Now, I don't want to suggest that all of that delta is the cost that the contractor incurs in actually demilitarizing and utilizing this material. [00:29:55] Speaker 06: There's a large factor there. [00:29:57] Speaker 06: These companies have to have facilities, they have to have equipment, they have labor, they have overhead, they need to earn a profit. [00:30:06] Speaker 06: I don't think the dollar, you know, just looking at the dollar really answers the question. [00:30:12] Speaker 06: I think there is more to it than that. [00:30:16] Speaker 01: And then I, go ahead. [00:30:22] Speaker 01: If it's more than that, why have you adequately alleged sufficient facts to establish that you had a substantial chance to have your bid accepted over the other three who were better priced? [00:30:40] Speaker 06: Yes, thank you, Your Honor. [00:30:42] Speaker 06: So first of all, we alleged two factual bases in our complaint. [00:30:49] Speaker 06: So on the face of the complaint, we allege two bases. [00:30:52] Speaker 06: One has been mentioned and I realize council believes the solicitation called only for a price comparison followed by some administrative tasks. [00:31:06] Speaker 06: That's not what the, at least the face of the solicitation said. [00:31:11] Speaker 06: It said we will award multiple contracts by the way. [00:31:14] Speaker 06: We reserve the right to award multiple contracts. [00:31:17] Speaker 06: We will select the most advantageous offerors or offeror or offerors, and we will consider price and other factors. [00:31:28] Speaker 06: So on that basis, we alleged we had standing, you know, because price was not the only factor. [00:31:36] Speaker 06: We also alleged in paragraph 88 of our complaint, [00:31:40] Speaker 06: that the other two intervening parties, just direct challenge, did not meet the solicitation requirements and therefore were not qualified for the award. [00:31:54] Speaker 06: Now, you know, we subsequently amended that, or I shouldn't say amended that, we subsequently added facts to that once the administrative record was supplied. [00:32:07] Speaker 06: and were able to demonstrate further that they were not qualified. [00:32:12] Speaker 06: But on the face of this list of the, excuse me, the complaint, I believe we stated fact. [00:32:19] Speaker 06: And I would say also that HDF was... Wait. [00:32:24] Speaker 06: Sorry. [00:32:25] Speaker 01: This is Judge Crouse. [00:32:26] Speaker 01: You said that you demonstrated that they were not qualified. [00:32:29] Speaker 06: Well, we alleged. [00:32:31] Speaker 06: We alleged. [00:32:33] Speaker 01: The evidence that you pointed to is just... [00:32:36] Speaker 04: Can you cite in the appendix of your protest? [00:32:42] Speaker 06: I'm sorry, you were broken up a little bit, Your Honor. [00:32:45] Speaker 04: Could you cite the page in the appendix of your protest? [00:32:49] Speaker 04: You're talking about what you said. [00:32:50] Speaker 04: Yes. [00:32:52] Speaker 04: What page is the protest in the appendix, please? [00:32:56] Speaker 06: Well, the complaint is, I can give you the page in the complaint. [00:33:01] Speaker 06: It's appendix 59, page 59. [00:33:05] Speaker 06: Paragraph 88. [00:33:08] Speaker 06: And I will quickly read it on information and beliefs. [00:33:10] Speaker 06: The bids of the two interveners would have similarly failed to meet the standards for a successful pre-award survey. [00:33:18] Speaker 06: Not that they wouldn't have, you know, been in the titles of the award, but we focused on the fact that they were. [00:33:26] Speaker 06: Yes, I said paragraph 88. [00:33:28] Speaker 04: Yes, John. [00:33:30] Speaker 04: That's for your facial argument, yes. [00:33:32] Speaker 06: That's correct. [00:33:34] Speaker 06: And I would add to that, Your Honor, that indirectly, if you will, we have a number of allegations in the complaint of HVF status as the incumbent and as a party that has been in the industry, which gave it a basis, which is very typical in big protests, where all you have is a debriefing at best to go on, but gave us a basis to say, we know the industry. [00:34:02] Speaker 06: You know, we have reason to believe that these people, these two names, are not going to be qualified. [00:34:08] Speaker 06: So that met our, in our view, our facial obligation with respect to the standing. [00:34:16] Speaker 06: And, of course, once again, once we got into the actual facts, was there factual standing, Judge Sweeney found yes, that the evidence that we produced after the record was open, [00:34:30] Speaker 06: was indicative that these two parties, you know, were not necessarily going to be winners to make Judge Prost's point. [00:34:41] Speaker 06: The question was not whether they would win or not win, but whether they were suspect, which would give HVF the opportunity to, you know, have a substantial chance for the award. [00:34:55] Speaker 05: And this is Judge Hughes. [00:34:58] Speaker 05: Let's specifically in the record, [00:35:01] Speaker 05: once you got the record, maybe two middle bidders suspect. [00:35:09] Speaker 06: So the history, your honor, kind of interesting. [00:35:14] Speaker 06: The government, when it announced the bids and its selection of the winner, named names, individual names. [00:35:27] Speaker 06: And so there were four names. [00:35:29] Speaker 06: Of course, HVF knew who it was. [00:35:32] Speaker 06: The other three were names. [00:35:34] Speaker 06: HVF sought to learn more about each of those names to assess whether they had a basis to protest. [00:35:42] Speaker 06: And went to the government and said, give me a little more detail. [00:35:46] Speaker 06: And the government said, I'm not going to. [00:35:49] Speaker 06: I can't. [00:35:49] Speaker 06: I won't. [00:35:50] Speaker 06: I think they checked internally the legal department. [00:35:53] Speaker 05: You're not really. [00:35:54] Speaker 05: I'm sorry. [00:35:54] Speaker 05: Let me interrupt, because you don't have much time. [00:35:56] Speaker 05: You're not answering my question, giving me this long history. [00:35:59] Speaker 05: Once the record was filed, have the administrator record, you suggested that it further gave you additional facts. [00:36:06] Speaker 05: Where in the additional record are those additional facts to show the middle bidders would not meet those technical qualifications? [00:36:15] Speaker 06: So what we obtained in the administrative record were the names of the companies associated with these individual names. [00:36:24] Speaker 06: And when we determined or learned what the names of the companies were for the first time, we did our own research. [00:36:33] Speaker 04: There's still not answering Judge Hughes. [00:36:35] Speaker 04: He asked where in the record, in the appendix, where did we find the factual information in the appendix? [00:36:44] Speaker 06: I don't have the site. [00:36:46] Speaker 06: I can give that to you this afternoon. [00:36:49] Speaker 06: It was information that we presented to the court [00:36:53] Speaker 06: that we developed, and as Judge... With all due respect, we have short term. [00:37:01] Speaker 04: That's exactly what Judge Hughes was asking you for, and I would think you would have that in hand to give to us an oral argument. [00:37:10] Speaker 06: Well, I apologize. [00:37:12] Speaker 06: I will get it for you. [00:37:13] Speaker 06: I don't have the exact page here, but it was submitted to the court, I believe, as an attachment to one of our pleadings. [00:37:23] Speaker 05: And I will identify it. [00:37:25] Speaker 05: Did you move? [00:37:26] Speaker 05: Is that actually part of the record? [00:37:30] Speaker 05: I'm just confused as to, did you ask to supplement the record with the bidder's actual information that the government wasn't giving you? [00:37:39] Speaker 05: We did. [00:37:42] Speaker 06: We did. [00:37:43] Speaker 06: And what happened? [00:37:46] Speaker 06: The government, or at least the LAM, objected. [00:37:49] Speaker 06: So that was outside the record, should not be included. [00:37:52] Speaker 06: Judge Sweeney considered that and said that it would not be unusual at all that the record would not contain information about these two intervening bidders because the government never evaluated them, as we said was required. [00:38:08] Speaker 06: So there was nothing in the record as to those two. [00:38:11] Speaker 06: In order for us to show prejudice and a substantial likelihood of having a chance at an award, we presented the evidence as part of our filing. [00:38:22] Speaker 06: And the judge accepted it and denied the government and LAM motions to exclude that evidence. [00:38:30] Speaker 01: So that's kind of an interesting point. [00:38:32] Speaker 01: In this kind of circumstance where nothing has been done with respect to the evaluating any of the bidders other than the first, are you suggesting that therefore you don't have to show much, if anything, for substantial chance? [00:38:50] Speaker 06: No, not at all. [00:38:52] Speaker 06: Not at all, Your Honor. [00:38:54] Speaker 06: Not at all. [00:38:54] Speaker 06: And again, we have two prongs facially for standing. [00:39:00] Speaker 06: One is the most advantageous multiple award other factors consideration stance. [00:39:08] Speaker 06: And the other is I think what we're talking about now where we did allege on information and belief that the other two were not qualified or would not pass a pre-award survey. [00:39:19] Speaker 06: We had knowledge and we said that in our complaint because we were the incumbent of who does this work and what it takes to do the work. [00:39:28] Speaker 06: And these were total unknowns. [00:39:31] Speaker 06: So on that basis, we made the allegation that the other two likely were not in this. [00:39:38] Speaker 05: If they were total unknowns, how would you have any information one way or another when you wrote your complaint? [00:39:44] Speaker 06: because our client knows the industry. [00:39:48] Speaker 06: They've been doing this for the government for years. [00:39:50] Speaker 06: Like any small industry that does government contracting, people know who the other players are, because they bid against each other all the time. [00:40:00] Speaker 05: What if it's a brand new company that's capable of doing it, but you've never heard of? [00:40:04] Speaker 05: I'm just, this seems very conclusory to me, this out of standing. [00:40:09] Speaker 05: And I'm just wondering why you didn't move [00:40:12] Speaker 05: This seems like when you say that the government hadn't evaluated these intermediary bidders, that why isn't this a case that the administrative record has a gap that has to be filled and you should have sought additional discovery on this? [00:40:29] Speaker 06: Well, we thought we had sufficient information from the public records to supplement the records and the judge accepted. [00:40:40] Speaker 06: that additional information, the public record she cited in her opinion as evidence that these two parties were not likely to be qualified. [00:40:51] Speaker 06: And so I think we did that. [00:40:54] Speaker 06: That's the stuff you say is in the record, but you can't cite to me right now. [00:40:59] Speaker 06: I can't cite it to you this exact second, but it was in our brief. [00:41:04] Speaker 06: We would have attached exhibits. [00:41:06] Speaker 06: I just don't have that immediately at hand, and I apologize for that. [00:41:11] Speaker 04: What about, this is Judge Clevenger, what about the ability of one of these unknown people to subcontract? [00:41:19] Speaker 04: Wouldn't you have to make some showing that they couldn't subcontract out to someone who could do it? [00:41:27] Speaker 06: Well, you could. [00:41:29] Speaker 04: On the face of it, if the contract says, you know, it comes along and the person that had the most attractive price [00:41:41] Speaker 04: Contracting officer says, well, can you do this? [00:41:44] Speaker 04: And they say, no, we can't do that, but we're going to subcontract now. [00:41:48] Speaker 04: Matter of fact, we're going to subcontract with HVF. [00:41:54] Speaker 04: Don't you have to show that there's no possible even way they could succeed through subcontracting? [00:42:01] Speaker 06: Well, again, I don't think that the standard is no possible way. [00:42:05] Speaker 04: Well, I mean, subcontracting allows them to get around your problem of no experience. [00:42:12] Speaker 06: Well, you know, subcontracting requires the prime contractor to manage the work and even do some of the work. [00:42:21] Speaker 06: So I don't think it's a total solution to say this could be subcontracted out. [00:42:26] Speaker 04: You don't make any avertment anywhere that numbers two and three lack the capacity to manage your contract. [00:42:34] Speaker 06: Well, Your Honor, I would say [00:42:37] Speaker 06: You know, we were acting on some limited information, I think plausibly taken from the public record and our company's knowledge of the industry. [00:42:49] Speaker 06: But I would remind or suggest that that was not the only basis on which we established facial standing. [00:42:56] Speaker 06: And it was the court found that we had established facial standing on the allegation that the government's evaluation criteria for multiple awards, [00:43:07] Speaker 06: was a most advantageous non-price effort. [00:43:12] Speaker 04: Facial or factual? [00:43:13] Speaker 04: I thought you said a minute ago it was factual. [00:43:16] Speaker 06: Well, it became factual. [00:43:18] Speaker 06: Let me step back just a second. [00:43:20] Speaker 06: There were two grounds in which we alleged substantial likelihood of succeeding. [00:43:28] Speaker 06: One was that the solicitation called for an evaluation of the most advantageous proposals [00:43:36] Speaker 06: or proposal with the option to award multiple contracts, including non-price factors, right? [00:43:43] Speaker 06: So price was not the only factor. [00:43:44] Speaker 06: That's the language of the solicitation. [00:43:47] Speaker 06: We said we believe had the non-price factors been considered, we would have had a substantial chance of winning. [00:43:57] Speaker 06: We secondly said in paragraph 88 of our complaint, we believe the other two interveners are not qualified. [00:44:05] Speaker 06: Now, all we needed, in my view, is one of the two. [00:44:08] Speaker 06: I think the first one was stronger. [00:44:11] Speaker 06: The first one, Judge Sweeney agreed with us that that established standing. [00:44:16] Speaker 06: And she went on to say as to the second, she used the second to establish prejudice. [00:44:25] Speaker 06: By then, she had the information that we had provided from the public record to find that these two parties were unlikely to be successful. [00:44:35] Speaker 06: And she said that allowed, you know, it was one basis for her to decide there was prejudice to HVF from the government's failure to evaluate the proposals properly. [00:44:48] Speaker 06: So both aspects are there. [00:44:50] Speaker 06: Our first one, I agree with you, I believe it's stronger. [00:44:53] Speaker 06: We were somewhat hampered in the second one, I would agree, because the government would not reveal who these people really were, or at least any more details about them. [00:45:04] Speaker 06: But we met the first test, Judge Sweeney's family met the first test. [00:45:09] Speaker 06: She used the second test to decide there was prejudice after she had the information. [00:45:14] Speaker 06: So factually, once she had the information that the government never obtained, they never looked at the other two, she looked at that information and said, you know, she agreed that we were prejudiced because the other two were, you know, unlikely to be successful. [00:45:35] Speaker 04: Could I just ask one final procedural question, Mr. Hove? [00:45:39] Speaker 04: Assume for purposes of argument, just only for purposes of argument, that we were to decide either there was no jurisdiction over the contract or that your client lacked standing. [00:45:51] Speaker 04: What's the effect on the bridge contract? [00:45:53] Speaker 04: Is it mooted out? [00:45:56] Speaker 06: In my view, Your Honor, it is freestanding. [00:46:00] Speaker 06: It was a separate procurement using much of the same language [00:46:05] Speaker 06: I think it's freestanding. [00:46:07] Speaker 06: The one caveat I would say to that, Your Honor, is that the bridge. [00:46:13] Speaker 04: I would have thought that if we decided either that your client lacks standing or that there was no jurisdiction, that would nullify the argument, the challenge to the award of the contract to LAM and that LAM would be holding the contract, I would think. [00:46:34] Speaker 04: Am I wrong? [00:46:36] Speaker 06: No, I think you're correct, Your Honor. [00:46:39] Speaker 06: The nuance here is that the bridge contract was a competition, and there's a whole history there, but ultimately, LAM received that contract. [00:46:50] Speaker 06: Now, that solicitation was put out to say it was going to bridge the period for the government's appeal, which we're dealing with today. [00:47:00] Speaker 06: So if you were to decide the original award was proper, I assume the government would cancel the bridge solicitation contract and go back to LAM. [00:47:17] Speaker 06: You know, if you decide in our favor on the first contract, again, I'm not sure what the government is going to do with the bridge solicitation. [00:47:28] Speaker 06: that because it was put out there only as a bridge during the appeal, that it would have to go away once the appeal is done. [00:47:40] Speaker 04: Okay. [00:47:40] Speaker 04: Thank you very much. [00:47:42] Speaker 01: Thank you. [00:47:44] Speaker 01: I think I heard the bell. [00:47:45] Speaker 01: Am I correct? [00:47:46] Speaker 01: Yes. [00:47:48] Speaker 01: All right. [00:47:49] Speaker 01: Let's go back to Mr. Major, Mr. Bahamani. [00:47:53] Speaker 01: Two minutes and one minute. [00:47:54] Speaker 01: I don't know if you all want to combine or what. [00:47:58] Speaker 03: Your honor, I just, I just wanted to address a couple of clarify a couple of things very quickly. [00:48:03] Speaker 03: This is Stephen maker. [00:48:04] Speaker 03: Um, basically that with regards to the bridge contract, the bridge contract is a separate contract, which was adjudicated by judge Warren, the United States, one on the merits and the bridge contract is being held by lamb. [00:48:16] Speaker 03: So in the event that this court overturns, uh, judge Sweeney's decision, the bridge contract would still be held by lamb and the government would then, uh, be in the process of going back to the original award, uh, to lamb. [00:48:28] Speaker 03: in that particular instance. [00:48:32] Speaker 03: With regards to clarifying one other point that Mr. Ho raised, I wanted to note that Judge Sweeney did not make any findings with regard to principal purpose. [00:48:42] Speaker 03: Her particular analysis focused on the de minimis question. [00:48:46] Speaker 03: It did not focus on principal purpose, though it is correct in a different contract with different language [00:48:52] Speaker 03: and different provisions, Judge Horn did find the principal purpose of that particular procurement was to be a procurement. [00:49:04] Speaker 03: However, because the government won on the merits, the government was in no position to disagree or otherwise appeal that finding, even if we disagreed with it. [00:49:15] Speaker 03: Unless the court has any questions? [00:49:19] Speaker 03: Hearing none. [00:49:21] Speaker 05: Thank you. [00:49:21] Speaker 03: Sorry, I was on mute. [00:49:22] Speaker 05: Can I just ask Mr. Megger to address the standing issue because I don't think we heard from him on that briefly. [00:49:27] Speaker 03: Very briefly, I'll have to note that the government hasn't appealed the standing question. [00:49:35] Speaker 03: We believe the record is unclear as to the question of who the ultimate awardee would be. [00:49:42] Speaker 03: That would be sufficient for HVF West to meet its burden in this case. [00:49:47] Speaker 03: But I do want to note that [00:49:48] Speaker 03: contrary to what the court had asked, and although this helps the plaintiff a felony somewhat, the record is not required to be supplemented for jurisdictional questions. [00:50:00] Speaker 03: The Court of Federal Claims traditionally looks at outside of the record in resolving issues of jurisdiction, injunctive relief factors, and other non-merits issues. [00:50:09] Speaker 03: If it had gone to the merits, it would have been a different matter. [00:50:11] Speaker 03: Thank you. [00:50:12] Speaker 01: Thank you. [00:50:15] Speaker 01: Mr. Vahati, do you have [00:50:18] Speaker 01: Do you have a minute if you have anything you feel needs to be said? [00:50:23] Speaker 02: Yes, Your Honor. [00:50:24] Speaker 02: Thank you. [00:50:24] Speaker 02: This is Sharban Mani again on behalf of the LAM depollution Inc. [00:50:30] Speaker 02: With respect to the standing issue, there's a few points that I disagree with respectfully with Mr. Hull Council on the other side. [00:50:38] Speaker 02: The first is I agree with Your Honor as far as the fact that, look, the administrative record is a void. [00:50:47] Speaker 02: All right, Mr. Bomani, minute or two. [00:50:52] Speaker 02: Yes, thank you, Your Honor. [00:50:53] Speaker 02: This is Char Bomani again. [00:50:55] Speaker 02: Well, opposing counsel in his argument contended that LAM had opposed the supplementation of the record to provide more information with respect to the second and third intervening bidders. [00:51:05] Speaker 02: This is incorrect in my view. [00:51:06] Speaker 02: Rather, what LAM did was oppose supplementation of the record with respect only as to a declaration submitted by an HBF officer. [00:51:16] Speaker 02: I was looking at our motion for judgment on the administrative record right now, and I don't see any objection to supplementing the record with respect, again, to the second and third intervening bidders. [00:51:26] Speaker 02: So on that point, we have a disagreement. [00:51:28] Speaker 02: On another point that we have a disagreement is as to the criteria that was used to evaluate bidders on a comparative basis and rather... I'm sorry, Your Honor, was there a good question? [00:51:44] Speaker 02: I can hear you. [00:51:46] Speaker 02: Oh, I'm sorry. [00:51:47] Speaker 02: Is that better now? [00:51:49] Speaker 02: Yes. [00:51:50] Speaker 02: And the second point as to which we had a disagreement, that I have a disagreement with opposing counsel, is after the criteria that was to evaluate the bids. [00:51:59] Speaker 02: So I'm just going to read from the bid solicitation word for word, the criteria that was requested just with respect to bids. [00:52:06] Speaker 02: And these were quote, name and title of center, complete business name, complete address and telephone number, invitation for bid number, percentage of market bid, [00:52:16] Speaker 02: and a statement which, end quote, which basically asked for the bidder to attest to a certain thing. [00:52:23] Speaker 02: So with respect to the bids that were submitted and with respect to the comparative analysis, after the different bidders, other than identifying information, the only information that was requested in order to perform that comparative analysis was a percentage of market bid. [00:52:39] Speaker 02: The two other points that I just want to quickly touch upon, one, [00:52:44] Speaker 02: We didn't get a chance to get to it as part of our main argument, but even if... I'm sorry. [00:52:52] Speaker 01: I think I really need to cut you off unless... Just give us a concluding sentence because we've really gone beyond the time here. [00:52:59] Speaker 02: My concluding sentence would be even if the court was to decide against LAM when it comes to jurisdiction and when it comes to standing, I think the third basis of appeal is compelling that there was a significant amount of information [00:53:12] Speaker 02: And it didn't need to just be written information, but there was a significant amount of information before the sales contracting officer to decide that LAM should be awarded the contract. [00:53:22] Speaker 02: Thank you, Your Honor. [00:53:24] Speaker 01: Thank you. [00:53:25] Speaker 01: We thank both sides, and the case is submitted. [00:53:29] Speaker 01: Thank you, Your Honor. [00:53:31] Speaker 01: Thank you. [00:53:31] Speaker 01: The court will pause momentarily to set up the next argument. [00:53:34] Speaker 01: The next argument is 20-1582, AMAC Foster Wheeler versus Secretary of the Interior. [00:53:41] Speaker 01: Ms. [00:53:42] Speaker 01: Pickett, whenever you're ready. [00:53:45] Speaker 00: May it please the court? [00:53:46] Speaker 00: Good morning. [00:53:48] Speaker 00: My name is Katie Pickett, and I'm here on behalf of Appellant Amit Foster Wheeler. [00:53:52] Speaker 00: As the court is aware, this case involves repairs to the historic Alcatraz Citadel, where the government issued a unilateral modification that greatly expanded the scope of work to include major structural repairs to the BNC cell blocks of the Citadel. [00:54:08] Speaker 00: Although many issues were tried before the board, Amec presents four issues on appeal, and those are the issues I'd like to address, but I'm happy to focus on any particular issue that the court wishes.