[00:00:00] Speaker 05:
This is Appeal Number 21, 1936, Secre Incorporated against the United States.

[00:00:08] Speaker 05:
Please proceed, Mr. Grayson.

[00:00:11] Speaker 02:
Thank you very much, Your Honor.

[00:00:13] Speaker 02:
The Secre versus United States case involves an appellant who operates a workshop that hires the disabled in southeastern Kentucky, an area of high unemployment.

[00:00:25] Speaker 02:
Under the Javits Wagner Obey Act,

[00:00:29] Speaker 02:
Workshops like that are given sole source awards to perform whatever work they can work for the government once it's established that they're able to do that kind of work.

[00:00:42] Speaker 02:
In the case of SECRI, SECRI already is making for the government what they call the APAP, the Advanced Tactical Panel.

[00:00:52] Speaker 02:
And the government has been buying from provincial sources

[00:00:57] Speaker 02:
a more primitive item called the TAC, the Tactical Panel.

[00:01:03] Speaker 02:
What's happened here is that although the JWAT Act, Javits Wagner Act, clearly and unequivocally states that items that are set aside for workshops can be made only by workshops, a federal agency, the Defense Logistics Agency, has decided to solicit commercial sources.

[00:01:23] Speaker 02:
And specifically what it did was it took an existing solicitation

[00:01:27] Speaker 06:
Council, let me ask you a question here.

[00:01:29] Speaker 06:
This is Judge Raina.

[00:01:31] Speaker 06:
So, CERC is a mandatory source, right, under the DWAD Act?

[00:01:37] Speaker 02:
Yes.

[00:01:39] Speaker 06:
Okay.

[00:01:40] Speaker 06:
So, whenever, in these situations, whenever a need, a sourcing need arises and it's subject to the JWOD Act, is there a natural bidding that occurs?

[00:01:57] Speaker 06:
In other words, CERC is here that has no competitor.

[00:02:02] Speaker 06:
Is that right?

[00:02:03] Speaker 06:
Is it the only mandatory source?

[00:02:07] Speaker 02:
Another workshop could bid on the same requirements, Your Honor, but no one other than a workshop could bid under law because the item is on a list called the procurement list.

[00:02:17] Speaker 02:
And DLA was required to check that procurement list.

[00:02:20] Speaker 02:
If it did check the list, it would have seen that CERC is on that list and therefore it is the mandatory source.

[00:02:27] Speaker 06:
Okay, I'm asking these questions as they relate to what is an interested party, which we have said that it's a person who's bidded or a prospective bidder.

[00:02:40] Speaker 06:
To what extent is SECRI resolved of being categorized as a bidder or a prospective bidder due to its role under the JWD Act?

[00:02:53] Speaker 02:
There is a negotiation process that takes place between SECRI

[00:02:57] Speaker 02:
And for that matter, any workshop of the disabled and the agency, and that process involves SECRI submitting what amounts to a bid or offer.

[00:03:08] Speaker 02:
Okay.

[00:03:09] Speaker 02:
And SECRI did this when it got its initial contract, the contract that it's been performing for the APAP.

[00:03:16] Speaker 02:
And since SECRI will do that, court rules in its favor, and SECRI is required.

[00:03:22] Speaker 02:
So SECRI in that sense,

[00:03:24] Speaker 02:
is both an actual bidder and a prospective bidder or offeror.

[00:03:29] Speaker 06:
But they've never submitted a bid.

[00:03:32] Speaker 02:
I would not say that.

[00:03:33] Speaker 02:
I think that what they submitted in order to get their current work was a bidder offer, as determined by the statute uses, and they simply did not submit a bidder offer to the open procurement because they wouldn't be allowed to.

[00:03:50] Speaker 02:
I mean, they're

[00:03:52] Speaker 02:
I believe it's a small business genocide or something like that.

[00:03:56] Speaker 02:
They're not within the realm of bidders who are allowed to bid.

[00:04:01] Speaker 02:
So it would be an act of futility.

[00:04:04] Speaker 02:
It would be rejected because they're not a commercial entity.

[00:04:08] Speaker 05:
Well, the government clearly states, I think, and I think it's not disputed, that they didn't submit a bid and that when they consulted with the advisor for this sort of activity, it was suggested that they submit a bid.

[00:04:25] Speaker 05:
So, how is the government supposed to know that they're interested?

[00:04:31] Speaker 02:
Well, because they're on the procurement list, that's how every agency knows whether someone is interested in, in fact, the mandatory source.

[00:04:40] Speaker 02:
The agency's supposed to look at the procurement list, which is a website that is maintained by the federal agency, AbilityOne.

[00:04:48] Speaker 02:
By the way, I don't think it's true to say that they did not submit a bid here.

[00:04:51] Speaker 02:
If you look at appendix starting on page 1089, you'll see that they tried to get in touch with DLA, pointed out to DLA,

[00:05:00] Speaker 02:
through Source America, their intermediary, that this is their stuff, and DLA just isn't interested.

[00:05:06] Speaker 02:
DLA proceeded regardless of whether they were on the list or not.

[00:05:10] Speaker 02:
It's a flagrant violation of the JWAAT Act.

[00:05:13] Speaker 06:
But getting back to your original... But that's not a bid, is it?

[00:05:19] Speaker 06:
Contacting them and saying, we're interested in the process.

[00:05:22] Speaker 06:
Hey, look at us.

[00:05:23] Speaker 06:
We're on the list.

[00:05:25] Speaker 06:
You guys should have contacted us.

[00:05:28] Speaker 06:
All of that.

[00:05:30] Speaker 06:
It's still not a bid.

[00:05:33] Speaker 02:
I would not say that.

[00:05:34] Speaker 02:
I think in the context of the Jay Watt Act, it's a bid.

[00:05:38] Speaker 02:
Not only that, but they also have a prospective bid.

[00:05:41] Speaker 02:
When they are actually found able to compete for, obtain this requirement as a mandatory source, they will be submitting a bid or offer.

[00:05:50] Speaker 02:
They are, in that sense, a prospective bidder or offer.

[00:05:54] Speaker 02:
The statute that we're talking about here, 31 U.S.C.

[00:05:56] Speaker 02:
3561

[00:05:58] Speaker 02:
A says that an interested party means an actual or prospective bidder or offer.

[00:06:05] Speaker 02:
I don't know how anybody can possibly claim exactly if not a prospective bidder or offer.

[00:06:12] Speaker 00:
If you thought there was an error, why didn't you submit a protest then?

[00:06:17] Speaker 02:
Well, we did.

[00:06:17] Speaker 02:
In fact, this protest was submitted before a warrant.

[00:06:23] Speaker 02:
It was not submitted before proposals were due.

[00:06:25] Speaker 02:
And the reason for that is that SECRI is not able to monitor every single federal competitive procurement, all 11 million of them each year.

[00:06:37] Speaker 02:
And then on top of that, review every amendment that it gets issued under each of those 11 million federal procurements.

[00:06:43] Speaker 02:
That's not what they do.

[00:06:44] Speaker 02:
They get their work from them as a mandatory source.

[00:06:47] Speaker 02:
They get it directly from Bill 1 and from Source America.

[00:06:51] Speaker 02:
And in this case, they happen to find out about it.

[00:06:54] Speaker 02:
That's reflected in the record.

[00:06:56] Speaker 02:
But it's not their responsibility or their capability, I mean, my goodness me, to be able to physically monitor on a real-time basis all of the federal procurement that are announced by the government on the off chance that a solicitation or an amendment to a solicitation might have something to do with their work.

[00:07:17] Speaker 02:
That's expecting too much of a workshop.

[00:07:19] Speaker 02:
That's not what the JWAT Act requires them to do.

[00:07:22] Speaker 01:
What efforts did you take to diligently pursue your rights after the communications in June 2020?

[00:07:30] Speaker 02:
After the communications that you mentioned in the record in June 2020, the lawsuit was filed.

[00:07:35] Speaker 02:
And it was filed before award was made.

[00:07:43] Speaker 01:
And that's everything, right?

[00:07:44] Speaker 01:
Is that what you're saying?

[00:07:45] Speaker 02:
Yes.

[00:07:46] Speaker 02:
And under the applicable case law, that was enough.

[00:07:49] Speaker 02:
If you're alluding now to the blue and gold issue,

[00:07:52] Speaker 02:
I can move on to the Woonbill issue, but I want to make sure I've covered the territory with regard to jurisdiction here.

[00:08:01] Speaker 06:
But I do want a little bit of certainty here.

[00:08:05] Speaker 06:
So I understood that CERCU filed

[00:08:10] Speaker 06:
seven months after the close of bidding.

[00:08:12] Speaker 06:
But how much time occurred after the award was made?

[00:08:17] Speaker 06:
And you're saying that it filed its lawsuit at the court of claims before an award.

[00:08:23] Speaker 06:
Is that correct?

[00:08:24] Speaker 02:
That's my understanding, yes.

[00:08:29] Speaker 06:
OK.

[00:08:32] Speaker 02:
All right.

[00:08:32] Speaker 02:
So with regard to the jurisdictional issue, what it comes down to is that the Tucker Act says that a protest can be filed

[00:08:40] Speaker 02:
for any alleged violation of a statute or regulation in connection with a procurement or proposed procurement.

[00:08:46] Speaker 02:
This was clearly, clearly a protest against an alleged violation of a statute or regulation, the JWAT Act, in connection with a procurement or proposed procurement, the acquisition of the ATAP items from commercial sources.

[00:09:01] Speaker 02:
So there's no doubt at all that this protest follows the definition under 28 U.S.

[00:09:07] Speaker 02:
B1491B1.

[00:09:09] Speaker 02:
The more, you know, the other question that comes up in this context is one that comes up because the court has imported a provision from the GAO's statute, 31 U.S.C.

[00:09:25] Speaker 02:
3551, which has to do with the definition of the term interested party.

[00:09:29] Speaker 02:
That's where the discussion comes up from the GAO's statute, which says in this chapter, the term interested party means an actual or prospective

[00:09:40] Speaker 02:
And that's what I was addressing earlier, the GAO statutory definition of an interested party.

[00:09:48] Speaker 02:
You all will have to determine whether that even applies here, since this is not a GAO decision that you're reviewing.

[00:09:55] Speaker 02:
But in any event, that's the position.

[00:09:58] Speaker 02:
SECRI qualifies under the specific terms, and SECRI also qualifies under the case law.

[00:10:05] Speaker 02:
This is just like the Distributed Solutions Decision 539F1340.

[00:10:10] Speaker 02:
There was a request for information.

[00:10:16] Speaker 02:
In that case, the protestor submitted a sponsor request for information.

[00:10:20] Speaker 02:
Nobody argued that the protestor had submitted an actual bid or an actual offer.

[00:10:25] Speaker 02:
It was simply a sponsor request for information.

[00:10:28] Speaker 02:
And the Federal Circuit... The Federal Circuit...

[00:10:35] Speaker 02:
The federal clerk has decided under 41 USC 4032 that enough of that was appropriate to qualify as meeting the definition for interest requirement.

[00:10:48] Speaker 02:
Should I stop or should I go on to blue and gold?

[00:10:52] Speaker 05:
Well, all right.

[00:10:53] Speaker 05:
If there's anything else you need to tell us, proceed.

[00:10:57] Speaker 02:
Okay.

[00:10:58] Speaker 02:
Thank you.

[00:10:59] Speaker 02:
With regard to blue and gold, blue and gold says that it applies

[00:11:03] Speaker 02:
When there's a Payton ambiguity or Payton error, there was no Payton ambiguity or Payton error in Amendment 6.

[00:11:10] Speaker 02:
What Amendment 6 was, was an end-around to undermine the J-1 Act and the mandatory set-aside and secondary being a mandatory source.

[00:11:19] Speaker 02:
That's just not what the terms Payton ambiguity and Payton error applied to.

[00:11:24] Speaker 02:
The bidding process is not closed yet.

[00:11:28] Speaker 02:
A number of cases, including the Komen case and the Inserso case, focus on

[00:11:33] Speaker 02:
whether there was an award that was made.

[00:11:36] Speaker 02:
There was no award that was made at the time that SECRI filed its protest and therefore, because no award has been made, Blue and Gold isn't even in the picture.

[00:11:47] Speaker 02:
SECRI was not doing the thing that Blue and Gold condemned.

[00:11:52] Speaker 02:
The thing that Blue and Gold condemned was an offeror who rolled the dice

[00:11:55] Speaker 02:
waits to see if they receive the award, and then if unsuccessful, then claims that the solicitation wasn't firm.

[00:12:02] Speaker 02:
That's the problem that the court was trying to address in Boondall.

[00:12:05] Speaker 02:
That's not the problem here, because Secre didn't hold back until after the award was made.

[00:12:10] Speaker 05:
I gather Secre has never actually submitted a formal bid to adjust complaining that they have a mandatory source.

[00:12:20] Speaker 05:
Is that right?

[00:12:22] Speaker 02:
No, Your Honor, I wouldn't agree to that.

[00:12:24] Speaker 02:
I think that a fair reading of Appendix 1089 and the ensuing emails is SECRI trying to submit a bid.

[00:12:33] Speaker 02:
And in addition to that, SECRI have submitted a bid because it has actually won an award for the ATAB.

[00:12:38] Speaker 05:
It could not have... But not this procurement, is that right?

[00:12:44] Speaker 02:
Well, I'm not sure you can... I'm not sure you can distinguish between the two.

[00:12:48] Speaker 02:
The award that was given to them was for the exact same item as the award that's being procured.

[00:12:54] Speaker 02:
So it seems almost like a metaphysical distinction to say that one was, quote, for this item and the other one wasn't for the item.

[00:13:03] Speaker 06:
What was the reason given by the agency that it was not going to extend the contract to Cirque?

[00:13:13] Speaker 02:
The DLA has a very controversial policy that just because the JWAT Act makes a mandatory source when other agencies do the work, that doesn't mean they apply to them.

[00:13:28] Speaker 02:
We think that that's wrong.

[00:13:29] Speaker 02:
We think it's directly contrary to the statute.

[00:13:31] Speaker 02:
But what happened here is the Secretary had gotten its award from the Army.

[00:13:36] Speaker 02:
The Defenseful District Agency is a different agency inside the Department of Defense.

[00:13:40] Speaker 02:
And DLA takes the position that a set aside for the Army is not a set aside for them.

[00:13:47] Speaker 02:
I think that's wrong and we would both put it out in the courtroom.

[00:13:55] Speaker 05:
Okay, let's hear from your government and we'll save you rebuttal time.

[00:14:00] Speaker 04:
That's very kind, Your Honor.

[00:14:01] Speaker 04:
Thank you.

[00:14:03] Speaker 05:
Okay, Mr. Anderson.

[00:14:05] Speaker 04:
Good morning.

[00:14:05] Speaker 04:
May I please the court?

[00:14:07] Speaker 04:
I want to touch on the blue and gold.

[00:14:09] Speaker 04:
That's what I have prepared.

[00:14:10] Speaker 04:
But I do want to answer your questions, Judge Newman and Judge Raina, your questions about the mandatory source.

[00:14:18] Speaker 06:
Go.

[00:14:19] Speaker 06:
Let me start with this question, OK?

[00:14:23] Speaker 06:
It seems to me, just reading the DWOD Act and the briefs and trying to follow the process now, I may have gotten something wrong.

[00:14:34] Speaker 06:
But it seems to me that Cirque is a mandatory source for a particular item.

[00:14:39] Speaker 06:
That item comes up as a need by a particular agency.

[00:14:44] Speaker 06:
And the law requires and mandates that Cirque be the source for that procurement.

[00:14:52] Speaker 06:
Am I correct so far?

[00:14:54] Speaker 04:
Not necessarily, Your Honor.

[00:14:57] Speaker 04:
So the way that this works is,

[00:15:00] Speaker 04:
The procurement list has three different levels.

[00:15:03] Speaker 04:
There's an A, there's a B, there's a C. And actually what SECRI is the C-list item.

[00:15:10] Speaker 04:
So what that means is there's a mandatory source supplier, and they are the APAP supplier.

[00:15:16] Speaker 04:
However, it's only for a certain contracting activity.

[00:15:20] Speaker 04:
And that is the US Army NAIC, which is the training facility in Aberdeen.

[00:15:26] Speaker 04:
And let me explain to you why that's set up that way.

[00:15:29] Speaker 06:
So in Aberdeen, what they do, if they try to... Well, don't... I'm not interested in things that are really off the record here.

[00:15:39] Speaker 06:
But you've offered some clarification, and that is that Sirkey was a mandatory source for the ATAP.

[00:15:51] Speaker 06:
Now you want to... Now you're going to argue, yes, you're right, Judge.

[00:15:54] Speaker 06:
But it was only for a particular agency and not for any procurement sought by the DLA.

[00:16:00] Speaker 04:
That is correct, Your Honor.

[00:16:03] Speaker 04:
That is why they didn't come to SECRI.

[00:16:06] Speaker 04:
Because when an item moves from training to field, that is why they're not on the mandatory list.

[00:16:14] Speaker 04:
So SECRI has the ability to perform in an experimental way.

[00:16:19] Speaker 04:
but not in for the whole United States Army.

[00:16:22] Speaker 04:
And that is why they are a C-list item and not an A or B list, which is mean that everybody has to buy it from them.

[00:16:31] Speaker 06:
Is there any other company listed as a source for ATAP on the A or B list, as you put it?

[00:16:40] Speaker 04:
There is not, Your Honor.

[00:16:41] Speaker 06:
And this is actually... So the only source for ATAP here

[00:16:48] Speaker 06:
In the, as far as we're concerned with the AWD Act, JWD Act is circuit.

[00:16:56] Speaker 06:
And correct?

[00:16:58] Speaker 04:
But only for NAIC though, only for NAIC.

[00:17:03] Speaker 04:
If NAIC wants to buy the ATAP, they have to go to Secretary.

[00:17:07] Speaker 04:
If the Navy wants to buy it, if the Marines want to buy it, if anybody else wants to buy it, they can go all sources.

[00:17:12] Speaker 04:
That's the difference.

[00:17:13] Speaker 04:
I just want to really stress that point, that they are not a mandatory authority.

[00:17:17] Speaker 06:
And who's buying it in this case?

[00:17:19] Speaker 04:
The United States.

[00:17:21] Speaker 04:
DLA is buying it.

[00:17:22] Speaker 04:
That's the United States, right?

[00:17:26] Speaker 04:
But it's a different agency, it's DLA.

[00:17:30] Speaker 06:
But does it represent all the branches of the service?

[00:17:35] Speaker 04:
No, not for this procurement.

[00:17:37] Speaker 04:
It does not, no.

[00:17:39] Speaker 05:
It's still the Army, isn't it?

[00:17:41] Speaker 04:
No, it is not.

[00:17:43] Speaker 04:
No.

[00:17:43] Speaker 04:
So, under the Federal Register, and this Federal Register notice is actually posted.

[00:17:50] Speaker 04:
It's 84, Federal Register number 61.

[00:17:53] Speaker 04:
All right.

[00:17:54] Speaker 04:
Published March 29, 2019.

[00:17:55] Speaker 04:
The mandatory source is SECRI, but only for the NAICS.

[00:18:04] Speaker 04:
So, it's the Division of the Army, which is a mandatory contracting activity.

[00:18:09] Speaker 04:
Say, for instance, the Army Reserve wanted to buy the APAP.

[00:18:13] Speaker 04:
They wouldn't be restricted to SECRI.

[00:18:16] Speaker 04:
It's only the experimental group that's in Aberdeen.

[00:18:21] Speaker 04:
So that is why your question, Judge Randall, was absolutely on point.

[00:18:25] Speaker 04:
You wanted to know why didn't they come to SECRI first.

[00:18:28] Speaker 04:
And that's the reason.

[00:18:30] Speaker 04:
It's because they're not the mandatory source supplier for the APAP for anything other than NATIC.

[00:18:39] Speaker 04:
That is the Army.

[00:18:41] Speaker 04:
The Navy Army, correct.

[00:18:44] Speaker 04:
So obviously inside the Army, there are a number of different, you know, sub-agencies and different contracting activities.

[00:18:52] Speaker 05:
That seems contrary to the entire...

[00:18:55] Speaker 05:
statute, which is quite broad and intentionally so.

[00:19:03] Speaker 05:
And it doesn't say that part of the government is bound by this act of Congress, but part of the government is not bound by it.

[00:19:13] Speaker 04:
Not necessarily, Your Honor.

[00:19:16] Speaker 04:
And the reason why is that

[00:19:19] Speaker 04:
The list has the ability to differentiate how the items are procured.

[00:19:27] Speaker 04:
So Ability One has created, this is another Federal Register site, 71 Federal Register 69536, which was produced on December 1st, 2006.

[00:19:37] Speaker 04:
That is the one that actually explains the differences between the different lists.

[00:19:44] Speaker 04:
And the C-list, and I'll read from the Federal Register,

[00:19:47] Speaker 04:
says the third category, the C-List, contains specialized and niche products that are most often designed and manufactured to meet the needs of a single federal agency.

[00:19:58] Speaker 04:
There are no JWAT Act provisions that are mandatory for the C-List.

[00:20:04] Speaker 04:
So that is why DLA did not go to SECRI and say you are automatically the sole source provider.

[00:20:14] Speaker 04:
Because normally the way that it works is,

[00:20:17] Speaker 04:
If an agency is required such as NAPIC, they go directly to Source America and they say, we want to work with SECRI to buy these number of APAPs.

[00:20:28] Speaker 04:
And then the contracting process begins.

[00:20:31] Speaker 04:
But when you're not required to do that, then you go out and you have the other vehicles such as the all sources.

[00:20:39] Speaker 04:
So that is what I wanted to add.

[00:20:41] Speaker 00:
Has the government actually awarded the solicitation in this case?

[00:20:45] Speaker 04:
They have not, Your Honor.

[00:20:47] Speaker 04:
They are, in fact, reviewing the various bids as we speak.

[00:20:52] Speaker 04:
I just checked on Friday.

[00:20:54] Speaker 05:
Various bids.

[00:20:55] Speaker 05:
Has Secre submitted a bid?

[00:20:58] Speaker 04:
No, they have not.

[00:20:59] Speaker 04:
They have not done anything, Your Honor, other than file a complaint six months after they had knowledge that they weren't going to get the sole source in this matter.

[00:21:11] Speaker 04:
And even if they did, Your Honor, even if they did, they couldn't fulfill the contract as written.

[00:21:17] Speaker 04:
The U.S.

[00:21:17] Speaker 04:
Army or DLA, let me say, is going to order these ATAPs.

[00:21:22] Speaker 04:
Let me explain.

[00:21:22] Speaker 06:
An ATAP are the little pockets... Were these arguments made before the Court of Federal Claims?

[00:21:30] Speaker 04:
It was not, Your Honor, because it was a fast-moving process and we didn't have all of the facts about the C-list available.

[00:21:37] Speaker 04:
This is one of the

[00:21:38] Speaker 04:
A few cases that we've had where we went into the C list, most people in our office didn't know about it.

[00:21:45] Speaker 04:
Most people were under the impression that you had, Your Honor, that you had to buy from it if you were on the list.

[00:21:51] Speaker 04:
But this is separate, because we kept asking the question, why didn't you go to Secre?

[00:21:56] Speaker 04:
And they answered it by saying, we didn't have to.

[00:21:59] Speaker 06:
Let me make clear.

[00:22:00] Speaker 06:
These arguments were not made at the Court of Federal Claims?

[00:22:04] Speaker 04:
That is correct, Your Honor.

[00:22:06] Speaker 04:
That is correct.

[00:22:07] Speaker 04:
But it is in the Federal Register.

[00:22:09] Speaker 04:
So that's why I gave you the site, so that you could take judicial notice of the fact that FECRE is not the mandatory source of... Well, we can read the notice.

[00:22:19] Speaker 06:
You know, we're not going to make your argument for you.

[00:22:23] Speaker 06:
Sure.

[00:22:24] Speaker 06:
And you didn't make the argument at the Court of Federal Claims.

[00:22:28] Speaker 06:
Was Cirque ever informed that they were a C-list company and that therefore they would never qualify as a bidder for the ATAP procurement?

[00:22:47] Speaker 04:
I cannot say affirmatively other than it's in the Federal Register and everyone is presumed to have notice of that.

[00:22:53] Speaker 06:
And then one other question, the arguments that you're making that you did not make at the Court of Federal Claims, you also did make those in your brief, correct?

[00:23:02] Speaker 04:
That is correct, Your Honor.

[00:23:06] Speaker 04:
That is correct again.

[00:23:07] Speaker 06:
So, you know, you wanted to argue blue and gold and that's a waiver case.

[00:23:10] Speaker 06:
It seems to me that if there's waiver involved here, it's in your camp.

[00:23:17] Speaker 04:
Can you repeat that last sentence, your honor?

[00:23:21] Speaker 06:
You should have made these arguments before the court of federal claims and you should have briefed them.

[00:23:28] Speaker 04:
I would suggest so, your honor.

[00:23:30] Speaker 04:
However, this is also a clear blue and gold violation.

[00:23:34] Speaker 04:
So we feel very confident that the court got it right below.

[00:23:38] Speaker 04:
about SECRI waiving its right to challenge the solicitation because they didn't do anything.

[00:23:45] Speaker 06:
I'm not nearly as confident as you are, Mr. Counselor.

[00:23:50] Speaker 06:
So let's move on to something else here.

[00:23:55] Speaker 04:
Move on to our blue and gold or you still want to refer to the mandatory source piece?

[00:24:00] Speaker 05:
Whatever you feel we need to give primary attention to to point it out.

[00:24:08] Speaker 04:
Okay, so we'll move on from the mandatory source to the blue and gold.

[00:24:13] Speaker 04:
So as the court is aware, when there's a patent error in the solicitation, an entity has a duty to challenge that solicitation prior to the close of the solicitation.

[00:24:26] Speaker 06:
And... Counselor, doesn't blue and gold really, it's progeny, the cases after that, say that

[00:24:34] Speaker 06:
Any type of protest that's going to be filed by a bidder has to be filed before the award is made.

[00:24:42] Speaker 04:
Not necessarily, Your Honor.

[00:24:44] Speaker 04:
The Coleman case talks about how you can file it before an award.

[00:24:49] Speaker 04:
However, that only takes place if you are unable to challenge the solicitation prior to the close date.

[00:24:58] Speaker 04:
That is not the fact that we have here.

[00:25:00] Speaker 04:
They, in fact, knew seven days after.

[00:25:03] Speaker 04:
So on June 10th, they swear that, in fact, they would not be getting this old source.

[00:25:10] Speaker 04:
And they talked to Source America about this.

[00:25:13] Speaker 04:
This is on appendix page 59 and 60.

[00:25:16] Speaker 04:
You'll see where there's the email.

[00:25:17] Speaker 04:
And what Source America recommended to them was that they respond to the solicitation.

[00:25:23] Speaker 04:
Secrease didn't file a GAO protest.

[00:25:26] Speaker 04:
They didn't file an agency protest.

[00:25:28] Speaker 04:
In fact, they did nothing.

[00:25:29] Speaker 04:
prior to October 7, 2020, which was the close date.

[00:25:33] Speaker 04:
The thing that they did do, Your Honor, was that they filed this complaint, as the Secretary's counsel mentioned, in January, six months after they knew that they were not going to be the mandatory source.

[00:25:46] Speaker 04:
This is exactly why blue and gold was created.

[00:25:50] Speaker 04:
You have to do something to preserve the challenge.

[00:25:54] Speaker 04:
They did not do that.

[00:25:56] Speaker 04:
And a decision that was made by this court just a little over a month ago in Harmonia, this court said an agency protest is enough to get around blue and gold.

[00:26:07] Speaker 04:
In Vanna, same situation, a protest during the solicitation period is enough.

[00:26:13] Speaker 04:
The whole idea here is to preserve your challenge to the solicitation.

[00:26:18] Speaker 06:
Yes, in Harmonia we said it's enough

[00:26:21] Speaker 06:
if it's made before the award is given.

[00:26:26] Speaker 04:
But that was the situation where they didn't have the knowledge that they had here.

[00:26:32] Speaker 04:
All of the cases that deal with before the award is when you don't know.

[00:26:38] Speaker 04:
SECRI was aware.

[00:26:39] Speaker 04:
They had the full and present ability to challenge, and they decided not to.

[00:26:45] Speaker 04:
The only reason that the award was not issued earlier is because we held it up

[00:26:51] Speaker 04:
pending this case.

[00:26:52] Speaker 04:
It's not as a result of something else.

[00:26:56] Speaker 04:
So the thing is that they were aware of it, and that is what classic blue and gold is.

[00:27:02] Speaker 04:
That is what B3 is all about.

[00:27:03] Speaker 04:
That is about expeditious resolution of the case for national interest and national security reasons, which is exactly what this one is really about.

[00:27:13] Speaker 04:
We have flag jackets, and our soldiers have to have flag jackets.

[00:27:17] Speaker 04:
We can't hold that up.

[00:27:19] Speaker 04:
And if there's a challenge that you're aware of, and you believe that there's some irregularity, then you have an affirmative duty, whether you are a non-profit on the J-wide Act or not.

[00:27:32] Speaker 04:
you have to say something so that the agency has the full and fair opportunity to resolve the matter as soon as possible.

[00:27:40] Speaker 06:
I believe that CERC-E, through its messaging nonprofit organization, first source or something like that, I believe that they notify the DLA that what's going on here, and they question the fact that

[00:28:01] Speaker 06:
that the circuit was enlisted as a mandatory source.

[00:28:06] Speaker 06:
And that happened in June.

[00:28:09] Speaker 06:
And let's see here.

[00:28:14] Speaker 06:
Yes, June 10th to the 25th, Source America emailed DLA regarding the solicitation on Circus behalf.

[00:28:25] Speaker 06:
And they explained the circuit was designated as a required source of ATAP.

[00:28:31] Speaker 06:
And then it seems to me that DLA declined and instead opted to procure it from somebody else.

[00:28:38] Speaker 06:
What was the full response that the DLA gave CERC-E in regards to the concerns and comments it made in June 10th and 25th of 2020?

[00:28:52] Speaker 04:
First of all, they didn't have to go through CERC-E because they were C-lit.

[00:28:59] Speaker 04:
No, no.

[00:29:01] Speaker 06:
What did they... What was their response to Sirkey's concerns that it voiced through Source America?

[00:29:13] Speaker 04:
They decided that they told Source America, who's not a proxy for a bid by the way, but they told Source America that they were going to go all sources with this solicitation.

[00:29:24] Speaker 06:
And where is that in the record?

[00:29:27] Speaker 04:
That is 59 and 60.

[00:29:32] Speaker 04:
Let me see here.

[00:29:46] Speaker 04:
Page 59 is when they recommended that they go through, that they respond to the solicitation.

[00:29:57] Speaker 04:
And if you look at page 60, Your Honor, it is the email from Mark Tawarzik to Dillis Benjamin.

[00:30:08] Speaker 04:
It says that Mr. Benjamin, to beat the Army's requirements, DLA is purchasing the APAP in a full and open unrestricted solicitation and gives the number.

[00:30:20] Speaker 06:
Why is that not indicative of a protest made by Cirque

[00:30:26] Speaker 06:
to the administration agency?

[00:30:29] Speaker 04:
It's a very good question, Your Honor.

[00:30:30] Speaker 04:
They do not have the legal authority or responsibility to advance protest on behalf of the nonprofits.

[00:30:39] Speaker 04:
They are simply a logistical middle person.

[00:30:42] Speaker 04:
I just spoke with the council again last week to assure the court of that.

[00:30:48] Speaker 04:
They have no responsibility for bid or bid protest.

[00:30:53] Speaker 06:
So if there's going to be a big... They don't have... That may be true, but they did relay the message, just as they're supposed to.

[00:31:02] Speaker 06:
Source America did email DLA about the solicitation of Circus behalf.

[00:31:09] Speaker 04:
But, Your Honor, just as in INSERSO, right, you have to actually submit a challenge.

[00:31:16] Speaker 04:
Just like with INSERSO, where they were just unhappy with something, and this court said, that's not enough.

[00:31:21] Speaker 04:
You have to challenge it.

[00:31:22] Speaker 04:
You have to tell the agency.

[00:31:24] Speaker 04:
You have to file with DLA or with GAO.

[00:31:28] Speaker 04:
You have to do something.

[00:31:29] Speaker 05:
And here... Did they file suit?

[00:31:33] Speaker 04:
Well, filing suit is not enough to preserve that challenge, Your Honor.

[00:31:37] Speaker 04:
They didn't file suit prior to the expiration of the solicitation.

[00:31:43] Speaker 04:
Perhaps if they filed suit prior to October 7th, we would have a different set of facts.

[00:31:48] Speaker 06:
They filed suit prior to the award being made.

[00:31:53] Speaker 06:
The award has yet to be made.

[00:31:56] Speaker 06:
So under Harmonia, it seems to me that they preserved their arguments by doing that.

[00:32:01] Speaker 04:
They have not done so, however, because it's about the knowledge piece.

[00:32:07] Speaker 04:
They had knowledge and the full and present ability to challenge prior.

[00:32:12] Speaker 04:
simply because you have that knowledge in waiting and being dilatory until after there's not a get around the blue and gold road.

[00:32:22] Speaker 04:
Blue and gold is the whole idea is to preserve that challenge when you know during the time period and the Harmonia reinforced that coin as well.

[00:32:32] Speaker 04:
If you notice in Harmonia, they filed an agency protest before the close of bid, before the close of bid.

[00:32:40] Speaker 04:
That's what's so important.

[00:32:41] Speaker 06:
In Harmonia, what made the difference is that the protest was filed before the award was made.

[00:32:50] Speaker 06:
It was a pre-award protest.

[00:32:54] Speaker 06:
That's Harmonia.

[00:32:54] Speaker 04:
Correct.

[00:32:55] Speaker 04:
But Harmonia, there was an agency protest first.

[00:33:01] Speaker 04:
That agency protest is what makes it key.

[00:33:04] Speaker 04:
Here, there's a case file, however,

[00:33:09] Speaker 04:
six months after knowledge and roughly three months after the deadline for the solicitation.

[00:33:16] Speaker 04:
That is what is absolutely key.

[00:33:18] Speaker 04:
That is what brings you within the parameters of your own goals.

[00:33:23] Speaker 04:
As we all know, Your Honor, it's a very low bar, right?

[00:33:28] Speaker 04:
The court is saying you have to do something prior to filing suits to preserve that challenge or else the procurement process is going to move on.

[00:33:39] Speaker 04:
And you're going to have the agencies incur all of this additional waste and going through the process when that could have been resolved right away.

[00:33:48] Speaker 04:
If SECRI had said any time between June 10th and October 7th, hey, raise their hand directly.

[00:33:57] Speaker 04:
We're the ones that should be getting this procurement, not anyone else.

[00:34:02] Speaker 04:
But SECRI didn't do so.

[00:34:04] Speaker 04:
They didn't do anything, Your Honor, until

[00:34:07] Speaker 04:
January of 2021.

[00:34:10] Speaker 04:
And they cannot even meet the low bar standard that blue and gold puts out there.

[00:34:15] Speaker 04:
And that is why this is considered a classic down the middle blue and gold issue of waivers.

[00:34:23] Speaker 05:
Do you know as a fact that there were no communications

[00:34:30] Speaker 05:
in that six-month period that, in fact, they did absolutely nothing, paid no attention?

[00:34:37] Speaker 05:
Or is it equally possible, if not likely, that SECRI was contacting whoever it was they work with in this procurement on the part of the government to learn more about what was going on?

[00:34:58] Speaker 04:
I can tell you from the DLA perspective and from the AbilityOne perspective, Your Honor, no, there were no communications at all about this solicitation.

[00:35:13] Speaker 04:
And so with that being the case, that's why I keep reiterating that's down the middle of what Blue and Gold is all about.

[00:35:22] Speaker 04:
It's all about trying to let the agency know right away

[00:35:27] Speaker 04:
that there is some irregularity with the solicitation, and SECRI has just failed to do so.

[00:35:34] Speaker 01:
And so where that is... And you can say that the June emails are not sufficient to preserve the claims, right?

[00:35:38] Speaker 01:
Isn't that part of your contention?

[00:35:41] Speaker 04:
That is absolutely correct, Your Honor.

[00:35:43] Speaker 04:
There is no responsibility or authority under statute or anything else that the central nonprofit operates as a proxy for as a bid protest.

[00:35:56] Speaker 04:
Not at all.

[00:35:58] Speaker 04:
It doesn't have any of those responsibilities.

[00:36:01] Speaker 04:
The only thing it is is a logistic support.

[00:36:04] Speaker 04:
So they help with negotiations and things of that sort.

[00:36:07] Speaker 06:
But that's not the issue.

[00:36:08] Speaker 06:
The issue is whether DLA was informed about SECRI's interest.

[00:36:17] Speaker 06:
And that is yes.

[00:36:19] Speaker 06:
And as you said, as you argued, and this is one thing I do agree with, is that the bar is low in terms of the type of notice

[00:36:27] Speaker 06:
that a bidder must provide to the contracting agency with respect to concerns that it has on the solicitation process?

[00:36:41] Speaker 04:
Yes, Your Honor.

[00:36:42] Speaker 04:
I heard the one piece about the bar being low.

[00:36:46] Speaker 04:
But was DLA aware of a protest?

[00:36:50] Speaker 04:
I would suggest no, Your Honor.

[00:36:52] Speaker 04:
There was no protest to the award that came to DLA.

[00:36:57] Speaker 04:
or to DLA at all.

[00:37:00] Speaker 04:
They had no idea.

[00:37:02] Speaker 04:
There were some emails that went with Source America back and forth, but none of that would rise to that of a bid protest where you would even have constructive knowledge.

[00:37:12] Speaker 04:
It wasn't as if Source America says, hey, you're violating the Jay White Act by doing this.

[00:37:18] Speaker 04:
It wasn't that strong.

[00:37:20] Speaker 04:
Nor was there anything from SACRI

[00:37:22] Speaker 04:
saying that, hey, you're violating the Jay White Act by not giving us the bid.

[00:37:26] Speaker 04:
And the reason why, Your Honor, is because they know that they weren't the mandatory source.

[00:37:31] Speaker 06:
It's right here.

[00:37:34] Speaker 06:
I have a final question here, for my part anyway, and that is, what's your legal authority that says that informal challenges are insufficient to preserve an argument?

[00:37:48] Speaker 04:
Well, I can say this, Your Honor, and in fair so,

[00:37:51] Speaker 04:
Right?

[00:37:51] Speaker 04:
There was some unhappiness from Inferno to the contracting officer.

[00:37:56] Speaker 04:
And this court said that's not enough.

[00:37:59] Speaker 04:
You got to file, you got to allow the protest.

[00:38:03] Speaker 04:
So I see this along the lines.

[00:38:06] Speaker 06:
Where in search of does it says you have to file a formal protest?

[00:38:11] Speaker 04:
It does not say that, Your Honor.

[00:38:13] Speaker 04:
What the court said was it's not enough to be unhappy.

[00:38:17] Speaker 06:
And as far as DLA knows... That's not what I asked you.

[00:38:20] Speaker 06:
I asked you, give me a legal authority that stands for the proposition that informal challenges are insufficient.

[00:38:30] Speaker 04:
I don't have any informal challenge legal authority at this point in time, Your Honor.

[00:38:35] Speaker 04:
I can only use the previous cases as a analogous situation.

[00:38:42] Speaker 04:
But they didn't even have that is what I'm saying, Your Honor.

[00:38:45] Speaker 04:
Even in the best light,

[00:38:47] Speaker 04:
It wasn't an informal challenge.

[00:38:49] Speaker 04:
Secretary never said anything.

[00:38:51] Speaker 03:
One moment.

[00:38:51] Speaker 03:
This is Michael Williams, the courtroom deputy.

[00:38:54] Speaker 03:
It looks like we have lost Judge Newman.

[00:38:56] Speaker 03:
Give me one moment.

[00:38:57] Speaker 03:
I will reconnect her.

[00:38:59] Speaker 05:
Mr. Anderson, again, you're in the middle.

[00:39:03] Speaker 05:
I don't know what went wrong, but it's happened before.

[00:39:07] Speaker 05:
So please finish your thought.

[00:39:10] Speaker 04:
Not a problem, Your Honor.

[00:39:11] Speaker 04:
Judge Raina had asked, was there any authority

[00:39:16] Speaker 04:
that this court has come out with about whether an informal challenge would suffice for a bid protest.

[00:39:24] Speaker 04:
And what I was responding to his question about is there is no authority other than, as I said, in the Inserso case where unhappiness was expressed and this court said it wasn't enough.

[00:39:38] Speaker 04:
But furthermore, there wasn't even constructive knowledge by DLA

[00:39:43] Speaker 04:
that SECRI was trying to file a bid protest.

[00:39:47] Speaker 04:
Even in looking at those emails, there's nothing that anyone could say from DLA that could even be construed as a bid protest.

[00:39:56] Speaker 06:
How can that be the case if DLA is putting out a bid for TAP?

[00:40:03] Speaker 06:
Doesn't it run its finger down this list that you bring up for the first time on appeal?

[00:40:09] Speaker 06:
And C, do we have anybody on the A list?

[00:40:11] Speaker 06:
Do we have anybody on the B list?

[00:40:13] Speaker 06:
Do we have anybody on the C list?

[00:40:16] Speaker 06:
They don't even do that?

[00:40:18] Speaker 04:
Yes, they do, Your Honor.

[00:40:19] Speaker 04:
Absolutely.

[00:40:20] Speaker 06:
Well, how are you arguing that there's no constructive knowledge?

[00:40:26] Speaker 06:
If anything, there's constructive knowledge that Circe was on the list for the very product that's being sourced.

[00:40:36] Speaker 06:
But when you look... DLA should have known.

[00:40:38] Speaker 06:
DLA should have known.

[00:40:40] Speaker 06:
They should have looked.

[00:40:41] Speaker 06:
They should have known.

[00:40:42] Speaker 06:
They should have looked at the act and said, do they apply?

[00:40:46] Speaker 06:
And if the answer is no, then they should have informed Cirque.

[00:40:51] Speaker 04:
There's no affirmative duty to do that last part, Your Honor.

[00:40:54] Speaker 04:
They did go down the list and see that TECRI is not the mandatory source for the DLA procurement.

[00:41:02] Speaker 04:
They go down the list to make sure that they don't violate the Jay White Act.

[00:41:06] Speaker 04:
And that is why they did not have to do any of the sole sourcing in this matter.

[00:41:12] Speaker 04:
It's very clear, right?

[00:41:14] Speaker 04:
If you're on the list, you see the name of the mandatory contracting authority.

[00:41:19] Speaker 04:
If your name is the mandatory contracting authority, you have to then proceed to contact one of the central nonprofits.

[00:41:27] Speaker 04:
But when you go down this list,

[00:41:28] Speaker 04:
You see, it says U.S.

[00:41:30] Speaker 04:
Army NAICP.

[00:41:30] Speaker 04:
Well, that's not me, so I don't have to do that.

[00:41:34] Speaker 04:
So there is, and then there's no pushback.

[00:41:36] Speaker 04:
Going back to your question, Judge, there's no pushback from SETRI raising their hand and saying, hey, we believe that we are the mandatory source for this ATAC.

[00:41:46] Speaker 04:
There was none of that.

[00:41:49] Speaker 04:
And because of that, Your Honor, you can't, there's no actual knowledge.

[00:41:54] Speaker 04:
And there's no innuendo, there's no anything else that you could construe to say, hey, is Secre really upset?

[00:42:01] Speaker 04:
Because there was no communication of that sort.

[00:42:04] Speaker 04:
And again, source of America, even in looking at those arguments, you couldn't construe it that way.

[00:42:09] Speaker 04:
But, but Secre has an affirmative duty, Your Honor, as we talked about with Blancos.

[00:42:14] Speaker 04:
If there's a patent, if there's a patent error, right?

[00:42:17] Speaker 04:
And this has been reiterated in all the progeny, as you mentioned.

[00:42:21] Speaker 04:
If there's a patent error, you have to do something to preserve your situation, as in ban them in harmonia.

[00:42:29] Speaker 04:
It's simply not done.

[00:42:31] Speaker 04:
And because of that, Your Honor, they have waived their challenge.

[00:42:35] Speaker 04:
And as we put in the brief, as this court has held in power ad less, when a blue and gold violation is found, waivers, the case must be dismissed because waivers found.

[00:42:49] Speaker 04:
That's as plain English as I can say.

[00:42:55] Speaker 01:
Do you believe that you can win even without a fine and blue and gold waiver?

[00:42:59] Speaker 01:
And if so, just tell me you're easy.

[00:43:02] Speaker 04:
So we believe that we can win, and Judge Raina is very astute in pointing this out, that we did not brief the mandatory source matter.

[00:43:13] Speaker 04:
However, as you know, jurisdictions never wait.

[00:43:17] Speaker 04:
And we believe, because they're not a mandatory source, that we can definitely win on that side as well.

[00:43:25] Speaker 04:
So blue and gold, obvious to us as a winner, as I've explained.

[00:43:30] Speaker 04:
And then, Your Honor, as you spoke with, as you asked, we also believe that with them not being a mandatory source, that they don't have standing, actually, to bring this case.

[00:43:42] Speaker 05:
OK.

[00:43:42] Speaker 05:
Any more questions for Mr. Anderson?

[00:43:47] Speaker 05:
OK, we'll ask them if Mr. Grayson.

[00:43:53] Speaker 02:
Thank you very much, Your Honor.

[00:43:54] Speaker 02:
Let me read to you from the DGR Associates decision.

[00:43:57] Speaker 02:
It says, a party must do something before the closing date to preserve its rights and must therefore pursue its position in a timely manner.

[00:44:09] Speaker 02:
So the question before this panel is, did Secre do something?

[00:44:17] Speaker 02:
I think the answer is obviously yes.

[00:44:20] Speaker 02:
You all asked before about whether there's any sort of guidance in the law about what's enough.

[00:44:26] Speaker 02:
I would refer the court to the executive order 12979, October 25, 1995.

[00:44:37] Speaker 02:
It was not signed in the briefs because they didn't expect the

[00:44:41] Speaker 02:
the matter to unfold this way, but the executive order from the president says that an agency-level protest is basically anything.

[00:44:50] Speaker 02:
I'm only slightly exaggerating.

[00:44:52] Speaker 02:
It's anything.

[00:44:53] Speaker 02:
It's supposed to be informal.

[00:44:56] Speaker 02:
And that comports with the court's own rule that in order to give notice to the agency and fulfill the responsibility about our blue gold, you just have to do something.

[00:45:07] Speaker 02:
It's also consistent with Judge Raina's decision in the Burney case.

[00:45:13] Speaker 02:
Judge Raina was on the panel in the Burney case, in which that case, along with many other cases that Judge Raina mentioned, indicates that the bidding process closes when a ward was made.

[00:45:25] Speaker 02:
In this case, not only did you have Secretary and Source of America complaining directly to DLA about this long before a ward was made, but you had this actual lawsuit being brought.

[00:45:37] Speaker 02:
before award was made.

[00:45:39] Speaker 02:
So we have a twofer here.

[00:45:41] Speaker 02:
Not only was this satisfied once, the requirement was satisfied twice.

[00:45:46] Speaker 02:
And this argument about six months passing is essentially a latches argument.

[00:45:52] Speaker 02:
When there is a latches argument, it's incumbent upon the government to show prejudice.

[00:45:58] Speaker 02:
The government hasn't even argued it as a latches argument in its briefs, but if it did, it would run into a problem because there has been no prejudice to the government.

[00:46:06] Speaker 02:
And as to whether it was good cause to excuse any delay, you laid that out in our brief quite clearly.

[00:46:14] Speaker 02:
The good cause to excuse the delay was that SECRI went to Source America, which by the way does have the responsibility to act as the intermediary between SECRI and the agency, including for bid protests, and that comes directly out of the statute.

[00:46:30] Speaker 02:
That's what it's the Section 8503C.

[00:46:34] Speaker 02:
So contrary to my friend at DOJ, that part of government is very mistaken.

[00:46:41] Speaker 02:
There is that responsibility.

[00:46:43] Speaker 02:
Secondly, the second good cause was that it's not Secretary's responsibility to monitor all events in government procurement nationwide among the 11 million procurement actions the government has taken every year.

[00:46:56] Speaker 02:
Secretary has a different job, which is to make these items that are set aside in the procurement list for it.

[00:47:02] Speaker 02:
With regards to what's on the procurement list, I think that the counsel for DOJ simply doesn't understand the statutory scheme as set forth in the words and statute.

[00:47:14] Speaker 02:
41 USC 8504, as Judge Newman referred to earlier, says an entity of the federal government, that's an entity of the federal government, any entity of the federal government,

[00:47:27] Speaker 02:
Intending to procure a product or service on the procurement list.

[00:47:32] Speaker 02:
No one doubts this is on the procurement list.

[00:47:34] Speaker 02:
Refer to inspection 85 or 3.

[00:47:37] Speaker 03:
Sorry.

[00:47:37] Speaker 03:
Sorry.

[00:47:37] Speaker 03:
One moment.

[00:47:39] Speaker 03:
This is Michael Ames again.

[00:47:40] Speaker 03:
It looks like we have Mr. Anderson who dropped this time.

[00:47:45] Speaker 03:
Give me one moment.

[00:47:46] Speaker 03:
I will reconnect him.

[00:47:47] Speaker 05:
Okay.

[00:47:47] Speaker 05:
We're continuing with SECRE against the United States in rebuttal, Mr. Grayson.

[00:47:54] Speaker 02:
Thank you, Your Honor.

[00:47:55] Speaker 02:
And continuing along the lines that you all and specifically Judge Newman indicated earlier, if you look at the J-1 Act, specifically 41 U.S.C.

[00:48:05] Speaker 02:
Section 8504A, it says, an entity of the federal government intending to procure a product or service on the procurement list, which this is, referred to in Section 8503 of this title

[00:48:19] Speaker 02:
shall procure the product of service from a qualified nonprofit agency for the blind or qualified nonprofit agency for others severely disabled, which is SECRI, in accordance with the regulations in the committee and at the price the committee establishes if the product or service is available within the period required by the entity.

[00:48:38] Speaker 02:
Not only does this statute say that the set-aside is government-wide, the mandatory source is government-wide, but the regulations promulgated under it

[00:48:47] Speaker 02:
both the Federal Acquisition Regulation and the Ability One Regulation both say this specifically applies to DLA, which is the agency at issue here in this case.

[00:49:00] Speaker 02:
So I don't think there's any room for discussion here that it would win on the merits of this case if the case were remembered in that vein.

[00:49:09] Speaker 02:
Regarding the issue, going back to the issue of blue and gold, there is no

[00:49:17] Speaker 02:
means to argue that Gringold has not been satisfied here for two additional reasons.

[00:49:25] Speaker 02:
One additional reason is that the court can now, if it wants to, reach the issue that it decided not to reach in the Boeing case.

[00:49:32] Speaker 02:
The Javits-Wagner-Odey Act is clearly an act that was created to protect workshops.

[00:49:39] Speaker 02:
It's a medial act.

[00:49:40] Speaker 02:
And in the Boeing case, the court reserved for itself the issue

[00:49:44] Speaker 02:
of whether the blue and gold notice provisions apply to a remedial act like this one.

[00:49:50] Speaker 02:
Secondly, Judge Rainn's dissent in Inserso raises the important and potentially crucial issue here of whether there can be a judicially created time bar after the Supreme Court's decision in SCA hygiene products, 137 Supreme Court 954.

[00:50:08] Speaker 02:
In other words, the Supreme Court says no.

[00:50:11] Speaker 02:
The six-year statute of limitations that governs bid protests before this court is the only limitation that governs bid protests before this court.

[00:50:22] Speaker 02:
And Judge Raina laid out the argument for that quite clearly in the insertion of the text.

[00:50:27] Speaker 02:
So for these reasons, particularly the reasons that there was actually a protest, as that term is used in the executive order,

[00:50:39] Speaker 02:
and as that term is used in general, to the agency before bids were due and that there was a lawsuit, this lawsuit filed here on appeal now, that was filed, as Judge Raina points out, before award was made, Boone Gold is simply out of the picture here.

[00:50:59] Speaker 01:
Okay, any more questions for Mr. Grayson?

[00:51:03] Speaker 01:
Do you have any final response on the standing issue?

[00:51:08] Speaker 02:
If I may ask, on the standing issue, are you referring to whether there was a requirement for a bid or not?

[00:51:18] Speaker 02:
Is that what you ought to mean by that?

[00:51:22] Speaker 01:
I was just talking in response to... I don't know if you heard.

[00:51:25] Speaker 01:
I hopefully did hear.

[00:51:26] Speaker 01:
Council made an argument in response to my question about how else could you win if we find no blue and gold waiver.

[00:51:32] Speaker 01:
He then responded, and I was wondering if you had any response to it.

[00:51:35] Speaker 01:
If you have no response, that's fine, too.

[00:51:37] Speaker 02:
I would not call that a standing issue at all.

[00:51:41] Speaker 02:
That's not the way that the Tucker Act is structured.

[00:51:46] Speaker 02:
It's not a question of standard.

[00:51:49] Speaker 02:
What we're arguing about, and if I misunderstood his answer, then I apologize, but we're arguing squarely that the fourth prong of the Tucker Act applies here, that there's been

[00:52:00] Speaker 02:
an alleged violation of the statute of regulation, specifically the JWAT Act, in connection with the procurement, specifically the procurement of the APAP items.

[00:52:11] Speaker 02:
So there's no doubt that we have close standing under the Cutler Act.

[00:52:18] Speaker 02:
We literally do.

[00:52:21] Speaker 02:
I hope that answers your question, Your Honor.

[00:52:23] Speaker 02:
I'm definitely trying to.

[00:52:26] Speaker 05:
Okay.

[00:52:26] Speaker 05:
Okay, Judge Cunningham.

[00:52:29] Speaker 05:
Nothing further.

[00:52:30] Speaker 05:
Any more questions, Judge Raina?

[00:52:33] Speaker 06:
No, thank you, Judge.

[00:52:34] Speaker 06:
Thank you, Judge.

[00:52:35] Speaker 05:
OK.

[00:52:35] Speaker 05:
All right.

[00:52:36] Speaker 05:
Good.

[00:52:36] Speaker 05:
All right.

[00:52:37] Speaker 05:
Thanks to counsel.

[00:52:38] Speaker 05:
The case is taken under submission.

[00:52:40] Speaker 04:
Your Honor, I would just like to add one piece.

[00:52:44] Speaker 04:
OK.

[00:52:45] Speaker 04:
If the court would like supplemental briefing on the mandatory source in the C-list, we'd be happy to provide that information to the court.

[00:52:54] Speaker 05:
What do you think, Judge Raina?

[00:52:57] Speaker 06:
I think that issue's been waived.

[00:53:00] Speaker 05:
I think we'll talk about the case and if we think we need additional briefing, we'll let everybody know.

[00:53:09] Speaker 05:
Thank you for mentioning it.

[00:53:14] Speaker 05:
Okay.

[00:53:15] Speaker 05:
Anything else?

[00:53:18] Speaker 02:
I want to thank the court for its patience and all the additional time that you gave to it.

[00:53:22] Speaker 05:
Okay.

[00:53:23] Speaker 05:
Thank you.

[00:53:24] Speaker 05:
All right, so that concludes this panel's arguments for this morning, this afternoon.

[00:53:33] Speaker 03:
The Honorable Court is adjourned until tomorrow morning at 10 AM.