[00:00:00] Speaker 00: The next case is 22nd Century Technologies v. The United States in FiberTech, 2022-1275. [00:00:09] Speaker 00: Mr. English, when you're ready. [00:00:17] Speaker 02: Good morning. [00:00:17] Speaker 02: May it please the Court, this Court should reverse the claims court's judgment for three reasons. [00:00:22] Speaker 02: First, the claims court failed to recognize the distinction between size and bid protest that this Court drew in Harmonia Holdings, and that allowed FASA to intrude into the size protest process where it doesn't have a role. [00:00:37] Speaker 02: Second, even without that distinction, this was not a protest in connection with the issuance of the task order, so FASA doesn't apply. [00:00:46] Speaker 02: And then third and final. [00:00:47] Speaker 04: Kennedy Because it was a termination rather than a bid. [00:00:51] Speaker 04: something involving the issuance of the order? [00:00:53] Speaker 02: I would say because it's a size protest, Your Honor, and FASA adopted the Competition and Contracting Act's definition of protest, which has four prongs. [00:01:04] Speaker 02: It's a solicitation, cancellation of the solicitation, an award of proposed award, or the termination of a contract if the termination is premised on improprieties in the original award. [00:01:17] Speaker 02: But in Harmonia, [00:01:18] Speaker 02: This Court grappled with a similar situation. [00:01:21] Speaker 02: I believe you were on that panel, Judge Laurie. [00:01:24] Speaker 02: And the Court said that there's a difference between a size protest and a bid protest. [00:01:30] Speaker 02: And a size protest. [00:01:31] Speaker 04: Kennedy I have a problem with that. [00:01:33] Speaker 04: If we were talking about the issuance of a task force and, let's say, the issuance of the order or pursuant to a contract that had a size requirement in it. [00:01:48] Speaker 04: and they made a size determination and the initial award disqualified somebody because that entity wasn't a small business. [00:02:00] Speaker 04: That seems to me that it would be an action with respect to size in connection with the issuance of an order that this may be different because it's a termination [00:02:14] Speaker 04: than the initial issuance of the ordinance, which may be a different kettle of fish. [00:02:19] Speaker 02: And we've got two claims, two counts, Your Honor. [00:02:21] Speaker 02: The first was for judicial review of the OHA-sized determination. [00:02:25] Speaker 02: And the second was as relates to the termination of our contract based on the OHA-sized determination against us. [00:02:33] Speaker 02: And back to the issuance issue, the Court last spoke on FASA in its SRA decision, I believe in 2014. [00:02:41] Speaker 04: But how could it be that if it actually involved the issuance of the task order or the task order was properly issued in the first place, that a size determination in connection with that wouldn't be in connection with the issuance of the task order? [00:02:56] Speaker 04: Your argument is it's not a protest, but it seems to me to be a little thin. [00:03:02] Speaker 02: Well, Your Honor, I think, excuse me, I would refer the Court to the SRA decision where it seemed to cite with approval Judge Sweeney's discussion about that very issue in global computing. [00:03:15] Speaker 02: The Court cited two particular pages of that 110-page opinion. [00:03:19] Speaker 02: It was page 410 and page 412. [00:03:21] Speaker 02: And we see there Judge Sweeney going through a very textual analysis, and one of the things she decided on page 412 is what issuance means, the act of issuing and putting forth and publishing. [00:03:32] Speaker 02: And so the size determination that we challenged, if you recall, we were the original awardee. [00:03:38] Speaker 02: So we didn't challenge anything about the issuance of the task order. [00:03:43] Speaker 02: What we challenged was the area offices [00:03:46] Speaker 02: size determination as it relates to us, and we challenged it to the Office of Hearings and Appeals and then asked for judicial review. [00:03:52] Speaker 03: Is there a judicial review statute that applies to OHA decisions? [00:03:57] Speaker 02: There's a judicial review regulation, Your Honor, not a statute that I'm wearing. [00:04:01] Speaker 03: Don't you have to have a statute to get into court? [00:04:04] Speaker 03: I mean, we're talking about the United States and waivers of sovereign immunity. [00:04:07] Speaker 03: Well, excuse me. [00:04:09] Speaker 03: I mean, a government agency can't create jurisdiction, can they? [00:04:16] Speaker 02: Certainly not. [00:04:17] Speaker 03: The Tucker Act. [00:04:17] Speaker 03: So, okay, so you're not relying on something outside the Tucker Act. [00:04:22] Speaker 03: No, you're not. [00:04:22] Speaker 03: So there's no independent authority to review an OHA decision. [00:04:26] Speaker 03: It has to fall within the Tucker Act. [00:04:27] Speaker 02: That's absolutely right, Your Honor. [00:04:28] Speaker 02: From the Pleiadian partner. [00:04:29] Speaker 04: It would be within the administrative procedure, right, but of course the Court of Federal Claims doesn't have that jurisdiction. [00:04:34] Speaker 02: Right. [00:04:35] Speaker 02: So the jurisdiction that we see comes from Tucker. [00:04:39] Speaker 02: In the Pleiadian partner's case, this Court decided, held, [00:04:42] Speaker 02: that that review of an OHA decision falls within the fourth or last prong of the Tucker Act, depending on how you count them. [00:04:49] Speaker 02: But importantly, the Court also said in both Palladian and inharmonia holdings that 13 CFR 121.1101 gives any party that participates in the OHA proceedings the right to seek judicial review. [00:05:03] Speaker 02: Under the cover. [00:05:03] Speaker 03: Alito But to the extent that there's no waiver of sovereign immunity, that regulation is ineffective, right? [00:05:09] Speaker 02: I think that's right, but I think the waiver is. [00:05:10] Speaker 03: So we're talking about the waiver in the Tucker Act. [00:05:13] Speaker 02: Certainly. [00:05:14] Speaker 02: That's the only way. [00:05:14] Speaker 03: And the only way you're getting in, I take it, is an alleged violation of the statute of regulation in connection with the procurement or proposed procurement. [00:05:24] Speaker 02: That's right. [00:05:25] Speaker 03: So what proposed or procurement or proposed procurement gives you jurisdiction here? [00:05:32] Speaker 02: It would be this procurement as it relates to the RS 3 IDIQ and this particular [00:05:37] Speaker 02: that was awarded the 22nd century. [00:05:38] Speaker 02: That's the procurement. [00:05:39] Speaker 02: Kennedy So it's the task order. [00:05:39] Speaker 02: It's the, it is in connection. [00:05:40] Speaker 02: Kennedy With the task order. [00:05:41] Speaker 02: It's the, it is in connection. [00:05:41] Speaker ?: Kennedy With the task order. [00:05:42] Speaker 02: It's the, it is in connection. [00:05:43] Speaker 02: Kennedy With the task order. [00:05:43] Speaker 02: It's the, it is in connection. [00:05:44] Speaker 02: Kennedy With the task order. [00:05:45] Speaker 02: It's the, it is in connection. [00:05:45] Speaker 02: Kennedy With the task order. [00:05:46] Speaker 02: It's the, it is in connection. [00:05:47] Speaker 02: Kennedy With the task order. [00:05:47] Speaker 03: It's the, it is in connection. [00:05:48] Speaker 03: Kennedy With the task order. [00:05:49] Speaker 03: It's the, it is in connection. [00:05:50] Speaker 03: It's the, it is in connection. [00:05:51] Speaker 02: Kennedy With the task order. [00:05:51] Speaker 02: It's the, it is in connection. [00:05:52] Speaker 02: It's the, it is in connection. [00:05:53] Speaker 02: It's the, it is in connection. [00:05:54] Speaker 02: It's the, it is in connection. [00:05:54] Speaker 02: It's the, it is in connection. [00:05:55] Speaker 02: It's the, it is in connection. [00:05:56] Speaker 02: It's the, it is in connection. [00:05:56] Speaker 02: It's the, it is in connection. [00:05:57] Speaker 02: It's [00:05:57] Speaker 02: And I, you know, the best. [00:05:59] Speaker 03: Okay. [00:05:59] Speaker 03: Let's just assume. [00:06:00] Speaker 03: So are you saying that this has nothing to do with the issuance of a task order, neither the issuance of the task order to you or the issuance of the task order to your competitor? [00:06:11] Speaker 02: Certainly. [00:06:11] Speaker 03: You're not asking the court of Federal claims to review either of those actions? [00:06:14] Speaker 02: That's right. [00:06:15] Speaker 02: Not the issue. [00:06:15] Speaker 03: So what action are you asking them to review that gives you a Tucker Act? [00:06:19] Speaker 02: the determination by OHA. [00:06:22] Speaker 03: No, no, no, no. [00:06:22] Speaker 03: You have to ask what procurement action are you asking that the Court of Federal Claims review that gives you an anchor for Tucker Act jurisdiction. [00:06:33] Speaker 03: Is it the termination of your task order? [00:06:36] Speaker 02: I think it's determination potentially, but it is the termination. [00:06:39] Speaker 03: No, no, no. [00:06:39] Speaker 03: Is it the termination or is it the issuance? [00:06:41] Speaker 03: I mean, I don't understand what other procurement actions are at issue here. [00:06:44] Speaker 03: There's the overall blanket contract award. [00:06:46] Speaker 03: You're way out of time to protest that. [00:06:48] Speaker 03: And I take it you're not doing that. [00:06:49] Speaker 03: So there's the issuance of the task order to you. [00:06:52] Speaker 03: You say you're not protesting that. [00:06:53] Speaker 03: That's right. [00:06:54] Speaker 03: There's the issuance of the task order to your competitor. [00:06:57] Speaker 03: You're not protesting that. [00:06:58] Speaker 03: That's right, Your Honor. [00:06:59] Speaker 03: So what's left except the termination? [00:07:01] Speaker 02: It is the termination. [00:07:02] Speaker 02: But the termination is predicated on the OHA size determination. [00:07:06] Speaker 03: Are terminations reviewable under 1491b2? [00:07:09] Speaker 03: I think terminations are contract actions, aren't they? [00:07:14] Speaker 02: A claim for terminations would be, but what we've specifically asked, Your Honor. [00:07:18] Speaker 03: So if you're challenging the termination, didn't you have to ask for a contracting officer's final decision and then go under 1491a? [00:07:25] Speaker 02: if we were challenging the actual termination. [00:07:27] Speaker 03: So you're not, wait a minute, so you're not challenging the termination, you're not challenging the issuance to you, you're not challenging the issuance to your competitor, what procurement action then gives rise to 1491A2 jurisdiction? [00:07:41] Speaker 02: The task order procurement that was the RS3 procurement is the procurement that is in connection with this claim. [00:07:48] Speaker 02: Under Palladian Partners and Distributed Solutions, the Court has interpreted its jurisdiction [00:07:55] Speaker 02: to review an OHA size determination as long as it's in connection with the proposed procurement. [00:08:00] Speaker 03: But that's in connection with the proposed procurement that the Court of Federal Claims has jurisdiction to review, right? [00:08:06] Speaker 03: Palladium, there was a procurement at issue that wasn't barred by FAFSA. [00:08:11] Speaker 03: What procurement at issue here does the Court of Federal Claims have jurisdiction to review that's not barred by FAFSA? [00:08:17] Speaker 02: Well, the Court couldn't insert itself into the actual issuance of the task order. [00:08:22] Speaker 02: That's why we haven't challenged [00:08:23] Speaker 02: the issuance to fibertech, but the procurement itself, this OHA decision arises in connection with it. [00:08:31] Speaker 03: What procurement are you talking about? [00:08:33] Speaker 02: The original procurement was the award of the task order. [00:08:37] Speaker 03: You're not talking about the award of the task order. [00:08:39] Speaker 02: Right. [00:08:40] Speaker 02: That is the procurement. [00:08:41] Speaker 03: The issuance of the task order. [00:08:42] Speaker 02: Not the issuance, Your Honor. [00:08:43] Speaker 02: The award of the task order. [00:08:45] Speaker 02: This task order award is a procurement. [00:08:48] Speaker 02: as the Court defined it in distributed solutions. [00:08:50] Speaker 02: It's very broadly defined. [00:08:51] Speaker 03: What's the difference between issuance of a task order to somebody and award of a task order to somebody? [00:08:57] Speaker 02: Well, I'm talking about the procurement itself. [00:09:00] Speaker 02: And I would note that in global computing, the Court determined that the phrase in connection with, as it is, as FASA states, it is not as broad. [00:09:10] Speaker 02: as it is in the Tucker Act. [00:09:13] Speaker 02: And so. [00:09:13] Speaker 03: Can I just back up? [00:09:14] Speaker 03: Because I think there's some confusion to me about what you're arguing. [00:09:19] Speaker 03: But do you agree that if you were actually trying to challenge the termination, you would have had to go through the CDA? [00:09:27] Speaker 02: If I wanted to make a claim for the termination, yes, Your Honor. [00:09:30] Speaker 03: So the procurement action you're basing this on. [00:09:33] Speaker 03: is not the termination of your task order. [00:09:36] Speaker 02: Right. [00:09:36] Speaker 02: Okay. [00:09:38] Speaker 02: Right. [00:09:38] Speaker 04: What we are saying is... Are you suggesting that there's a difference between seeking monetary compensation for the termination which would have to go through the CDA and seeking to set aside the termination? [00:09:52] Speaker 02: Well, what we asked for in our original claim was just to enjoin the termination. [00:09:57] Speaker 02: We did not know at the time it had been terminated. [00:09:59] Speaker 04: Would a request to enjoin the termination come within the CDA? [00:10:03] Speaker 02: I don't think so, Your Honor. [00:10:04] Speaker 02: I think only a monetary claim for money would come within the CDA, because this Court's determined that under this. [00:10:13] Speaker 03: Is the termination a procurement or a proposed procurement? [00:10:16] Speaker 02: I don't think so, Your Honor. [00:10:18] Speaker 03: So the termination is not what you're basing your claim on here? [00:10:21] Speaker 03: No. [00:10:22] Speaker 03: Is there any authority for the Court of Federal Claims to enjoin terminations? [00:10:28] Speaker 02: Certainly. [00:10:29] Speaker 02: Under the Tucker Act, the Court has jurisdiction to afford whatever relief it deems just and proper. [00:10:35] Speaker 03: I can't cite you a case where there's been a... I am not aware of any case where the Court... Because terminations come under the CDA usually. [00:10:41] Speaker 02: If we made a claim, certainly. [00:10:43] Speaker 03: Are you aware of cases under 1491A2 where somebody's got a termination of a contract enjoined? [00:10:50] Speaker 02: Not that I can cite, Your Honor. [00:10:52] Speaker 02: But again, our claim, as we see it, is simply asking for the review of an OHA determination in connection with this procurement. [00:11:01] Speaker 02: And I agree it was a task order procurement, but the question is, does FASA then leak over into the size protest process? [00:11:08] Speaker 02: Because if FASA means what it says, and GAO would have exclusive jurisdiction over all task order protests, and if FASA applies to size protests, [00:11:20] Speaker 02: That means GAO has to have jurisdiction over task order size protest. [00:11:24] Speaker 02: Why? [00:11:24] Speaker 02: Because that's what the statute says. [00:11:26] Speaker 03: No, the statute doesn't say anything about GAO having jurisdiction over size protest. [00:11:30] Speaker 03: You said there's no statute that explicitly says there's review of size protest. [00:11:35] Speaker 02: There's not, Your Honor, but if a protest. [00:11:37] Speaker 03: You're assuming there has to be judicial review, but there's only judicial review if there's a statute waiving sovereign immunity. [00:11:46] Speaker 03: Maybe it's the APA. [00:11:48] Speaker 03: Why, you know, did you think about that? [00:11:51] Speaker 02: No, Your Honor. [00:11:52] Speaker 02: We've not made a claim under the APA, because this is in connection with a procurement, and I think that the Tucker Act would forbid it. [00:11:58] Speaker 03: But the procurement is the task order. [00:11:59] Speaker 02: It is the task order, Your Honor. [00:12:00] Speaker 02: So I think our only forum was the Court of Claims, and this Court will decide if the Court had jurisdiction. [00:12:08] Speaker 02: With the Court's permission, I'll reserve the rest of my time for a vote. [00:12:10] Speaker 00: We will save it for you. [00:12:11] Speaker 00: Is it Ms. [00:12:16] Speaker 00: Kottet, or do I see another name here? [00:12:20] Speaker 01: May it please the Court? [00:12:21] Speaker 00: Ms. [00:12:21] Speaker 00: Quartet. [00:12:22] Speaker 01: Côté. [00:12:23] Speaker 00: Côté. [00:12:23] Speaker 01: Thank you, Your Honor. [00:12:25] Speaker 01: May it please the Court? [00:12:27] Speaker 01: The trial court correctly? [00:12:29] Speaker 04: Suppose they had made a claim under the CDA in connection with the termination. [00:12:36] Speaker 04: Would that claim be barred by FASA? [00:12:42] Speaker 01: No, Your Honor. [00:12:43] Speaker 01: But they didn't perfect a claim for purposes of the CDA. [00:12:46] Speaker 01: Okay. [00:12:46] Speaker 04: So there's a difference between the termination and issuance of a task force. [00:12:51] Speaker 04: So the question then becomes, would the court of Federal Plains have any jurisdiction to enjoin the termination, which would not be something that would come under the CDA? [00:13:03] Speaker 04: Would it? [00:13:04] Speaker 04: No, Your Honor. [00:13:05] Speaker 01: They would challenge or they would file their claim with the contracting officer. [00:13:11] Speaker 04: I'm sorry, that wasn't a very good question. [00:13:14] Speaker 04: Oh, I'm sorry. [00:13:14] Speaker 04: Let me try again. [00:13:16] Speaker 04: If they sought to enjoin a task order, that would not be a claim under the CDA, correct? [00:13:26] Speaker 01: No, Your Honor. [00:13:27] Speaker 04: It would not be? [00:13:28] Speaker 01: No, Your Honor. [00:13:30] Speaker 04: I'm sorry, you're agreeing with me it would not be? [00:13:32] Speaker 01: No, I do not believe that it would be, Your Honor. [00:13:34] Speaker 01: Yeah. [00:13:35] Speaker 01: And I also do not believe that any court would be able to exercise jurisdiction over such a claim, even under the APA. [00:13:43] Speaker 04: OK. [00:13:43] Speaker 04: So why is that so? [00:13:46] Speaker 04: Why would there not be jurisdiction in the court of federal claims to consider enjoining a termination? [00:13:56] Speaker 01: Because FASA bans protests. [00:14:01] Speaker 01: that are in connection with the task order. [00:14:04] Speaker 04: Well, except that you just agreed that if they made a termination claim under the CDA, that wouldn't be barred by FASA. [00:14:11] Speaker 01: But that's not what this case is. [00:14:13] Speaker 04: Well, I understand, but that does seem to suggest that terminations are not covered by FASA. [00:14:20] Speaker 01: Correct, Your Honor. [00:14:22] Speaker 01: So we're talking about termination or we're talking about protests that are made in connection [00:14:28] Speaker 01: with the issuance, which is the award, Your Honor, or the proposed issuance of a task order. [00:14:36] Speaker 01: This case falls squarely within the scope of the facet ban. [00:14:42] Speaker 01: It falls within the scope of the facet ban because one, a size protest was made challenging 22nd century's eligibility for the award that was issued to it. [00:14:57] Speaker 01: A determination was made by the SBA regarding the original size protest. [00:15:04] Speaker 01: 22nd Century participated in that intra-agency litigation. [00:15:10] Speaker 01: 22nd Century did not prevail and appealed to OHA. [00:15:18] Speaker 01: OHA made a determination regarding the size protests that were made by the SBA area office. [00:15:27] Speaker 01: The SBA's adjudication of the size issue pertained. [00:15:34] Speaker 04: I think you're right that size protests are not necessarily outside of FAFSA. [00:15:39] Speaker 04: I think the distinction somehow between a size protest and a bid protest doesn't work, and that if this size protest had arisen within the context of the issuance of a task order, it would be barred by FAFSA. [00:15:54] Speaker 04: I think you're right about that, but you agreed [00:15:57] Speaker 04: that FASA doesn't apply to terminations. [00:16:00] Speaker 04: So the question is, what do we do here since this termination claim seeking an injunction is not within the CDA? [00:16:09] Speaker 04: And so my question is, if in fact FASA doesn't apply to terminations, why is it that the Court of Federal Claims doesn't have jurisdiction to enjoin a termination that was improper? [00:16:30] Speaker 01: Below, well, in the complaint, 22nd Century certainly sought to enjoin the agency from having done something that the agency had already done. [00:16:44] Speaker 01: There was nothing to enjoin by the time the complaint was made, actually filed in court. [00:16:51] Speaker 01: 22nd Century abandoned any claims regarding the termination of the [00:17:00] Speaker 01: order that was awarded to it. [00:17:03] Speaker 01: There was no issue left for the court of Federal claims to determine with respect to the termination of that task order award. [00:17:15] Speaker 01: 22nd Century made it very clear below that it was not filing a claim under the CDA, which it could not, Your Honor, because it had not submitted a claim to the contracting officer. [00:17:29] Speaker 01: even when the contracting officer requested it. [00:17:32] Speaker 01: So that's a non-issue. [00:17:35] Speaker 01: The injunction is a, or the request to enjoin is a non-issue because the act they were seeking to enjoin had already occurred. [00:17:48] Speaker 01: Third, Your Honor, 22nd century stated clearly and unequivocally that they were not challenging the award to fibertax that was made [00:17:59] Speaker 01: at or around the time that they filed their complaint. [00:18:04] Speaker 04: So, what we're left with here is... So what you're saying to us is that on the termination theory, on the theory that that's outside of FAFSA to maintain the broad suit to adjoin the termination of that aspect of the case, it's already moot. [00:18:22] Speaker 01: Yes, it is moot, Your Honor. [00:18:25] Speaker 01: And so what we're left with [00:18:28] Speaker 01: or what the complaint states. [00:18:30] Speaker 03: Does the Court of Federal Claims have equitable jurisdiction generally to enjoin contract actions? [00:18:38] Speaker 01: I don't know the answer to that, Your Honor, but the answer that I would give standing here is no. [00:18:45] Speaker 01: The Court of Federal Claims' equitable jurisdiction... The CDA governs contract actions. [00:18:50] Speaker 01: Correct. [00:18:50] Speaker 03: And requires a process that you seek a decision in the contracting officer and then if [00:18:58] Speaker 03: unfavorable file suit in the Court of Federal Claims. [00:19:01] Speaker 01: Correct. [00:19:02] Speaker 03: But only for monetary claims. [00:19:04] Speaker 01: Correct. [00:19:05] Speaker 01: However, 22nd Century did not file a claim with the contracting officer. [00:19:15] Speaker 03: Well, I guess that's what we're asking is for a non-monetary claim for equitable relief, do you think the Tucker Act provides jurisdiction? [00:19:24] Speaker 01: Not unless it's related to or in conjunction [00:19:28] Speaker 01: with monetary relief. [00:19:31] Speaker 03: Where it falls under B1, which is bid protests. [00:19:37] Speaker 01: Correct. [00:19:38] Speaker 01: They were seeking bid proposal costs in connection with OHA's determination. [00:19:44] Speaker 01: However, OHA's determination can't be heard by [00:19:49] Speaker 01: the trial court if it's not in connection with a procurement. [00:19:55] Speaker 01: The task order, as counsel stated earlier, is the procurement that's being challenged. [00:20:04] Speaker 01: and FASA explicitly bars protests of task orders in the Court of Federal Claims, as well as the GAO, unless, of course, it falls within certain exceptions, exceptions that simply do not apply here, Your Honors. [00:20:21] Speaker 01: So either the challenge here is to an agency determination that is in connection with a procurement, ordinarily encompassed [00:20:34] Speaker 01: by the Court's jurisdiction under the Tucker Act, or it is not. [00:20:41] Speaker 01: If it's a challenge to an agency determination, which we all know that it is, regarding a procurement, the procurement here is a task order. [00:20:52] Speaker 01: And Congress has explicitly stated that the Court lacks jurisdiction to hear those claims. [00:21:01] Speaker 01: And there is a good reason. [00:21:03] Speaker 01: Congress in its legislative history has specifically stated that it wanted to reduce the number of protests filed that are clogging up the court system. [00:21:16] Speaker 01: So whether it's the OHA size determination or the Army's determination that was made in reliance upon OHA's determination, they are both agency determinations [00:21:32] Speaker 01: made in connection with the issuance of a task order. [00:21:36] Speaker 04: Okay, but just to be clear, if this were a CDA claim for monetary relief or an improper termination, improper termination being based on improper size determination, that would go forward under the CDA. [00:21:52] Speaker 04: FASOP would not bar that claim. [00:21:56] Speaker 01: It would be a challenge to the termination for convenience. [00:22:02] Speaker 01: of the contract. [00:22:04] Speaker 01: I would say no, it's not, Your Honor, but honestly, it's not an issue that I've researched for purposes of this argument. [00:22:12] Speaker 03: What happens in regular contract administration of task orders? [00:22:16] Speaker 03: If somebody gets awarded a task order and then they perform, you know, deficiently and get terminated, you're not saying FASA BAR's review of that. [00:22:26] Speaker 01: No, because it's not in connection with. [00:22:27] Speaker 03: Or if they file a request for an equitable adjustment, it's all just governed by the CDA. [00:22:31] Speaker 01: Right. [00:22:32] Speaker 01: And that's what I would say. [00:22:33] Speaker 03: So potentially, if they wanted review of the termination decision, they could have challenged it via the CDA. [00:22:41] Speaker 03: Correct. [00:22:41] Speaker 03: But not a two-portion of the Tucker Act, which is the bid protest statute. [00:22:47] Speaker 01: That's correct. [00:22:48] Speaker 01: And they explicitly stated this is an issue that was raised initially below, Your Honors. [00:22:54] Speaker 01: Both FiberTech and the United States believe that this was a thinly veiled CDA case. [00:23:02] Speaker 01: But 22nd Century argued this is not a CDA case. [00:23:07] Speaker 01: They are not making a CDA claim. [00:23:10] Speaker 01: They did not file a claim with the contracting officer, in which case it would have been premature to bring this case in any event. [00:23:19] Speaker 01: But the bottom line here is it's not a CDA case. [00:23:23] Speaker 01: So whatever may happen in the future with respect to the termination of [00:23:30] Speaker 01: the task order awarded to 22nd Century, that is not an issue for this Court, just as it was not an issue raised in the complaint for the trial court. [00:23:44] Speaker 01: The sole issue before this Court is whether or not the trial court correctly dismissed this complaint [00:23:51] Speaker 01: as being barred pursuant to FASA? [00:23:55] Speaker 01: And the answer to that question, Your Honors, is an unresounding yes. [00:24:00] Speaker 01: The trial court correctly dismissed this action. [00:24:04] Speaker 04: So I guess this is a question that tees the first impression as to whether the Court of Federal Claims has jurisdiction to enjoin a termination of a task order or to set aside a termination of a task order. [00:24:20] Speaker 04: Would that be a fair statement? [00:24:22] Speaker 01: It would have been a case of first impression had that claim not been waived. [00:24:30] Speaker 04: Which claim did they waive? [00:24:32] Speaker 01: They waived the armies. [00:24:34] Speaker 01: The sole issue before this Court now is the size determination that was made by OHA. [00:24:42] Speaker 01: The appeal made by the 22nd century in this case does not challenge [00:24:50] Speaker 01: the Army's determination to terminate the award awarded to it, the task order awarded to it and subsequently terminated. [00:24:59] Speaker 01: They do not challenge that. [00:25:02] Speaker 01: They did not make an argument to this Court that the trial court [00:25:07] Speaker 01: made an erroneous decision or failed to do something with respect to enjoining the Army. [00:25:15] Speaker 01: They waived that argument before the trial court. [00:25:19] Speaker 01: It is a nonissue here. [00:25:21] Speaker 01: It might have been an issue of first impression, but because they waived the argument below and certainly didn't make it in their papers before this Court, it is a nonissue. [00:25:34] Speaker 01: If there are no further questions, Your Honors, we respectfully request that the Court affirm the trial court's dismissal of this case. [00:25:45] Speaker 00: Thank you. [00:25:55] Speaker 02: Thank you, Your Honors, and again, may it please the Court. [00:25:57] Speaker 02: I want to pick up on this issue of waiver. [00:26:01] Speaker 02: Fibertech was the only party that raised this issue about CDA claims down below. [00:26:08] Speaker 02: And Judge Firestone didn't reach that issue in her decision. [00:26:12] Speaker 02: So what we briefed on appeal was the issue that Judge Firestone reached was simply that FASA barred OHA size appeals to the Federal Claims Court. [00:26:24] Speaker 02: And so we haven't waived that. [00:26:27] Speaker 04: But isn't the government right that you waived the challenge of the termination? [00:26:31] Speaker 04: Because that's not the belief that you thought. [00:26:34] Speaker 04: It was just to set aside the size of the termination. [00:26:36] Speaker 02: Well, we sought both, Your Honor. [00:26:38] Speaker 02: We sought the injunction, as I mentioned earlier, to prevent the termination. [00:26:42] Speaker 02: I think if we were going to seek a remedy for the. [00:26:44] Speaker 03: Did you file that before the termination? [00:26:48] Speaker 02: I think the Army's position is they terminated when they sent us a letter, and we filed the [00:26:54] Speaker 02: the appeal or the claim, court of claims, two days later, I think it was. [00:27:00] Speaker 04: Okay. [00:27:00] Speaker 04: So it couldn't have been to adjoin the termination because it had happened already. [00:27:04] Speaker 04: It would have to be seeking relief to set aside the termination, equitable relief. [00:27:10] Speaker 04: Right. [00:27:10] Speaker 04: But I don't see that that's what we're seeking on appeal. [00:27:15] Speaker 02: Well, on appeal, we've addressed the only issue that Judge Firestone reached, which was simply that Fassa barred this claim, and our [00:27:23] Speaker 02: count two that related to the termination was based on the government's reliance on the OHA appeal. [00:27:29] Speaker 02: And so she didn't reach that issue in her decision. [00:27:32] Speaker 04: It seems to me as though your appeal is based on the notion that you can separate out the size determination and consider that as the sole issue that's being challenged. [00:27:45] Speaker 04: That's the way your appeal is being challenged. [00:27:47] Speaker 02: I think that's right. [00:27:48] Speaker 02: Our count two was based on. [00:27:50] Speaker 03: The problem with that is [00:27:52] Speaker 03: Court of Federal Claims doesn't have independent authority to review size determinations. [00:27:58] Speaker 03: I mean, the precedent that allows them to review it allows them to review it in connection with proposed procurements under A2. [00:28:07] Speaker 02: That's right. [00:28:07] Speaker 02: That's why it's important. [00:28:08] Speaker 03: Right. [00:28:08] Speaker 03: So you have to identify a proposed procurement. [00:28:11] Speaker 03: You can't just say, oh, the Court of Federal Claims can review size protests. [00:28:15] Speaker 03: So you have to identify the proposed procurement. [00:28:19] Speaker 03: which I'm still at a loss to what proposed procurement you're saying gives you jurisdiction. [00:28:25] Speaker 03: And if it's a task order, then you have to explain why FASA doesn't bar it. [00:28:31] Speaker 02: Because there's a difference between being in connection with a procurement and being in connection with the issuance of a task order. [00:28:39] Speaker 02: So the question is, and this was one that Judge Sweeney addressed in detail in that global computers case. [00:28:44] Speaker 03: So you don't think. [00:28:46] Speaker 03: that what you're challenging is a size determination in connection with the issuance. [00:28:51] Speaker 02: Not with the issuance. [00:28:52] Speaker 03: So you're challenging the size connection, size determination in connection with what? [00:28:58] Speaker 02: With a procurement. [00:29:00] Speaker 03: What procurement? [00:29:01] Speaker 02: The RSP task order award. [00:29:03] Speaker 02: order that we've been talking about in this case. [00:29:07] Speaker 02: That is the procurement. [00:29:08] Speaker 03: So you think that there's some room between FASAs issuance or proposed issuance of the task order and a task order itself? [00:29:16] Speaker 02: Yes, Your Honor, I do. [00:29:17] Speaker 02: And I think the cases support that. [00:29:19] Speaker 03: Isn't the difference with the, if it's not the proposed issuance or issuance of a task order, that it's contract interpretation post-issuance, which has to be challenged through the CDA? [00:29:32] Speaker 02: I don't think so. [00:29:32] Speaker 02: May I answer the question, Your Honor? [00:29:33] Speaker 02: We're running out of time. [00:29:35] Speaker 02: I don't think so, Your Honor. [00:29:37] Speaker 03: For the reason that we're in a situation where it's either a proposed issuance or an issuance of a task order, which is the procurement phase, once it's issued, it's the contract phase. [00:29:48] Speaker 03: Will you follow in that? [00:29:50] Speaker 02: I think that the answer to that question. [00:29:51] Speaker 03: You don't want to be in the first part, and you've not perfected it in a way to challenge contract administration. [00:29:57] Speaker 02: I think that would be a claim. [00:29:59] Speaker 02: I think contract administration would be a claim for which the Court had no jurisdiction. [00:30:03] Speaker 02: The difference, as we see it, is, again, back to those cases, and they're not binding on this Court for sure, the global computing case that addressed the definition of in connection with for FASA being less broad than it was as this Court determined it. [00:30:18] Speaker 02: distributed solutions and the issuance. [00:30:20] Speaker 02: What does the issuance mean? [00:30:22] Speaker 02: And this is a separate corollary to the procurement process. [00:30:25] Speaker 02: This is part of the administrative challenge to an offeror size that we don't think is in connection with the issuance of the tax code. [00:30:32] Speaker 02: My time has expired. [00:30:33] Speaker 02: If there are any more questions, thank you very much. [00:30:36] Speaker 00: Thank you, counsel. [00:30:37] Speaker 00: The case is submitted, and that concludes today's arguments.