[00:00:00] Speaker 03: We will hear argument next in number 231970, Percipient versus United States. [00:00:08] Speaker 03: Mr. Kaplan. [00:00:09] Speaker 06: Thank you, Your Honor. [00:00:10] Speaker 06: Good morning, Your Honors, and may it please the Court. [00:00:13] Speaker 06: The CFC erred in this case in concluding that the task order bar prohibited the consideration of the merits of Percipient's protest. [00:00:24] Speaker 06: The task order bar applies to [00:00:26] Speaker 06: protests in connection with the issuance or proposed issuance of a task or delivery order. [00:00:32] Speaker 06: Our protest is not in connection with the issuance or proposed issuance of a task or delivery order. [00:00:39] Speaker 06: We do not challenge the task or delivery order. [00:00:42] Speaker 06: We do not seek to set aside a task or delivery order that's been issued. [00:00:47] Speaker 06: We do not challenge an action that directly or immediately led to a task or delivery order. [00:00:52] Speaker 06: We do not challenge an action on which the validity of a task or delivery order depends, such as what was at issue in SRA. [00:01:01] Speaker 04: We do challenge actions that resulted from the issuance. [00:01:05] Speaker 06: Actually, I don't even I don't that sort of but for causation standard your honor. [00:01:09] Speaker 06: I don't even know that that's Normally of course your honor an ID IQ task order contract involves task orders, but as they come [00:01:24] Speaker 06: as a basic matter, there still would have been a contract that obligated them to deliver a system. [00:01:30] Speaker 04: But even if you're honored to include... I mean, the cash order is like the notice to proceed in this particular contract, because the cash order was connected to an issue that was created before, but you shouldn't connect it with. [00:01:39] Speaker 06: I think that's fair to say, Your Honor, and I think that even if Your Honor concluded that, it would not affect... I mean, your argument is that in connection with doesn't include results from... In connection with the issuance or proposed issuance does not include, but for... Resulting is a result of, right? [00:01:56] Speaker 04: Just in terms of construction of the wall. [00:02:01] Speaker 06: That's absolutely correct. [00:02:01] Speaker 03: And so this causal language from SRA, is that the case? [00:02:06] Speaker 03: Yes. [00:02:06] Speaker 03: Is about causing the issuance. [00:02:10] Speaker 03: by the issue. [00:02:11] Speaker 03: That's correct. [00:02:12] Speaker 03: It's only one direction of the cost. [00:02:15] Speaker 06: That's correct. [00:02:16] Speaker 06: And it's even more precise than that. [00:02:18] Speaker 06: It's directly or immediately caused. [00:02:20] Speaker 03: Right, right. [00:02:21] Speaker 03: But the crucial point for your purposes is it's not stuff caused by the task order. [00:02:26] Speaker 06: That's correct. [00:02:27] Speaker 03: The action's preceded. [00:02:29] Speaker 06: Yes. [00:02:29] Speaker 03: Do you challenge any action or failure to act preceding with the issues of the task order? [00:02:35] Speaker 03: No, we don't. [00:02:35] Speaker 03: I thought there was some language maybe in your complaint. [00:02:39] Speaker 03: suggests you do? [00:02:40] Speaker 03: No? [00:02:41] Speaker 06: There may be an illusion in our complaint to the fact that they didn't conduct sufficient market research even prior, but our claims don't depend on that. [00:02:49] Speaker 01: You cite that portion of, in Count 2, you cite that portion of the statute, 3453, but you're not asserting that you're not complaining about that? [00:02:57] Speaker 06: No, that doesn't give any independent heft to the claims. [00:03:01] Speaker 06: Our claims [00:03:02] Speaker 06: don't depend on that provision. [00:03:04] Speaker 04: I don't believe the government challenges you on that point. [00:03:06] Speaker 04: I mean, they agree that your claim is based on activity that occurred after the issues. [00:03:12] Speaker 06: That's correct. [00:03:13] Speaker 06: I think they can speak for themselves, but that's my understanding. [00:03:15] Speaker 04: Well, you haven't drawn the line of any connection with as after and not before you carefully drew your complaint. [00:03:22] Speaker 04: I understand that. [00:03:24] Speaker 06: Yes, yes. [00:03:26] Speaker 06: And again, it's even more attenuated here, because even if you've concluded that, even if you envision that a task order that directly or immediately caused something, maybe that would be a protest here. [00:03:40] Speaker 06: It's not even that. [00:03:41] Speaker 04: And your position on this point walks you into the government's argument that your basic beef is about performance of a contract, and that's a CDA claim, and blah, blah, blah, right? [00:03:51] Speaker 06: Well, they certainly say that. [00:03:54] Speaker 04: Your argument that this basically is not a problem with the solicitation is not a problem with the issuance of the task order, its conduct afterwards. [00:04:06] Speaker 04: And the government says, oh, well, that's what the CDA takes care of, that type of problem. [00:04:10] Speaker 06: That's correct. [00:04:11] Speaker 06: And that's an incorrect argument, but that is what they say. [00:04:14] Speaker 03: I think I remember that's right. [00:04:16] Speaker 03: Your answer to that is whatever the CBA takes care of, it doesn't take care of anything that's not on behalf of one of the contracting parties. [00:04:24] Speaker 06: That's absolutely correct. [00:04:26] Speaker 06: Here we're not challenging a breach of contract. [00:04:29] Speaker 06: We're challenging a breach of statutory obligations that apply to post award. [00:04:32] Speaker 03: So as long as we are moving between statutory provisions, can you talk about 1491? [00:04:37] Speaker 03: Absolutely. [00:04:40] Speaker 03: Does your position about the very last clause there, interested party complaining of statutory or regulatory error in connection with a procurement, would that allow any fugitive supplier to the awardee to make a challenge to an awardee? [00:05:05] Speaker 06: No. [00:05:06] Speaker 06: No, Your Honor. [00:05:07] Speaker 06: Why not? [00:05:07] Speaker 06: Because our claim depends on a statutory provision that is pretty unique in protest law. [00:05:15] Speaker 03: The 3453. [00:05:15] Speaker 03: Correct. [00:05:16] Speaker 03: How do you tie the interested party language or any of the other language in 1491 to the particulars of another statutory regime? [00:05:27] Speaker 06: Well, the interested party language has meant that you have a competitive interest if the government complies with the law, that direct economic interest if the government complies with the law. [00:05:41] Speaker 03: So where's the authority for that? [00:05:43] Speaker 03: I thought that at least since Weeks Marine and the predecessor case, we at least said you have to have been somebody who did bid or would have bid [00:05:57] Speaker 03: for the contrast. [00:06:00] Speaker 06: Or we would have bid if the government complied with the law. [00:06:03] Speaker 06: If the government conducted a commercial item procurement as they were supposed to. [00:06:07] Speaker 03: I'm sorry, at the initial global contract? [00:06:10] Speaker 06: No. [00:06:13] Speaker 06: This statute is unique, Your Honor, in that it imposes pre-award obligations and post-award obligations. [00:06:20] Speaker 06: The post-award obligation says that the government, to the maximum extent practical, must ensure that its contractors procure commercial items to the maximum extent practical. [00:06:30] Speaker 06: Now, it can comply with that obligate and that they conduct adequate market research prior to supplying goods to the government. [00:06:37] Speaker 06: Now, had the government done what they were supposed to do here, we would have been a commercial item supplier. [00:06:46] Speaker 06: We have a commercial item that can meet all of the CB system requirements. [00:06:51] Speaker 03: So at least the way I think that the Court of Claims [00:06:59] Speaker 03: analyzed this 1491 issue was to say that there was an exception here to the usual Weeks Marine rule. [00:07:10] Speaker 03: Just correct me if I'm wrong in what I'm saying. [00:07:13] Speaker 03: What I'm done saying. [00:07:15] Speaker 03: The exception to the usual rule, you have to be a actual or basically likely getter. [00:07:24] Speaker 03: And I think I just heard you maybe say [00:07:27] Speaker 03: We don't really need an exception here. [00:07:29] Speaker 03: Just focus on the right bidding process, which is the post-task order bidding process for supplies. [00:07:39] Speaker 06: I think that's right, Your Honor. [00:07:41] Speaker 03: So if that's right, at least it would fit within Weeks Marine, maybe. [00:07:46] Speaker 03: Why would that not open up 1491 to any putative [00:07:52] Speaker 03: you know, desired supplier to a contract? [00:07:56] Speaker 06: Well, Your Honor, because for the most part, there aren't these obligations that apply post-award. [00:08:02] Speaker 06: I mean, for all we know, the 3453 is unique in this respect. [00:08:09] Speaker 06: And so it's not going to open up a floodgate of other challenges that couldn't possibly exist. [00:08:14] Speaker 04: It's unique, but it applies to every country. [00:08:16] Speaker 06: Oh, if your honor is asking what could be brought under section 3453, is that the question, or is it? [00:08:25] Speaker 04: My concern is that if you're right, then any person in your position who can make a premature showing, non-privilege showing, that we have the product that you could use in connection with performing this contract. [00:08:40] Speaker 04: And you have the duty to do it. [00:08:42] Speaker 04: And you have the standing to bring that argument. [00:08:46] Speaker 04: than anybody who's sublime saw work and made that argument in any contract. [00:08:52] Speaker 06: Yes, Your Honor. [00:08:53] Speaker 06: I mean, of course, the contours, as Your Honor is alluding. [00:08:56] Speaker 04: Cross it and just take the Defense Department, for example, almost every contract that they issue, the person who said, well, I can't actually bid on the whole contract, because the contract requires five, six, seven different parts, and I only supply a supplier for one part. [00:09:11] Speaker 04: uh... it is here and i do have to really understand your question person who has that capacity to find out one part intervene and protest and claim their rights and say there was a violation law [00:09:26] Speaker 06: Yeah, theoretically, Your Honor, but of course, all of this is bound by what is practicable. [00:09:32] Speaker 06: Your Honor assumed there in your hypothetical prima facie, non-frivolous case that the government was violating the law. [00:09:39] Speaker 04: It seemed to me, on the standing issue, that your client couldn't very say that you were a victim. [00:09:47] Speaker 06: On the original contract. [00:09:48] Speaker 04: On the original contract. [00:09:49] Speaker 04: Correct. [00:09:50] Speaker 04: And the original contract has been performed with tasks that were issued together. [00:09:56] Speaker 04: uh... yes they're within one they were attached to the contract you couldn't be on the whole contract uh... that's correct and you couldn't be a prospective bidder on the whole process same reason on the whole contract on the whole contract and so if you were sort of looking at this as I think Judge Bregman wanted me to look at this well then it looks like you're out [00:10:21] Speaker 04: Because if you can't be a prospect, you're better than you can't even show that you have this relevant economic harm. [00:10:27] Speaker 06: Well, no. [00:10:27] Speaker 06: Actually, Judge Brugge agreed with me. [00:10:31] Speaker 04: No, no. [00:10:31] Speaker 04: He says that's the normal test. [00:10:33] Speaker 04: But then he says that rule is anything but absolute. [00:10:37] Speaker 06: Yes. [00:10:38] Speaker 04: Because he looks at a couple of cases where he finds exceptions. [00:10:41] Speaker 06: About five or six, yes. [00:10:42] Speaker 04: And the clearest exception is Secre. [00:10:44] Speaker 06: Yes. [00:10:45] Speaker 04: Because that didn't follow the whole set of rules, right? [00:10:48] Speaker 04: Correct. [00:10:49] Speaker 04: So he says, well, I'm going to set [00:10:52] Speaker 04: I'm going to treat this as not covered by the basic proof. [00:10:58] Speaker 06: That's correct. [00:10:59] Speaker 04: And what was his rationale because 1334-53 is some special thing? [00:11:06] Speaker 06: I think his rationale was just the plain language of section 41, 1491 that says that an action in connection with a [00:11:15] Speaker 06: a violation of a statute of regulation, which this clearly is, has covered the court as jurisdiction over it. [00:11:23] Speaker 06: And your honor is correct that he said that the, and I think that's why, and then also in terms of interest to the party. [00:11:36] Speaker 04: If we find that you're applying as standard, then [00:11:43] Speaker 04: Presumably every person who is supplying your competitors who might come forward and argue that they have a software package that is close to or could be modified for use without, you know, totally reinventing the whole thing. [00:11:58] Speaker 04: They would all have standing as well. [00:12:00] Speaker 06: If there's a competitor who offers a product that meets the CD system requirements, absolutely. [00:12:05] Speaker 04: So if you took it over into the setting of a contract for building a warehouse or something, everybody who has one [00:12:13] Speaker 04: that would qualify for, you know, this contract says we need so many linear feet of wood of this particular kind, anybody who can supply that would have stamp it. [00:12:26] Speaker 06: Well, it's next year to me. [00:12:27] Speaker 04: That's something they have a violation of law in their mind that they won't. [00:12:30] Speaker 04: Proceed. [00:12:31] Speaker 06: Assuming that there's an independent statutory or regulatory provision that applies post-award. [00:12:40] Speaker 04: There has to be a violation of law to trigger 1490 to the third problem. [00:12:46] Speaker 06: Yes. [00:12:47] Speaker 06: But again, statutory or regulatory provisions that apply post-award are rare. [00:12:52] Speaker 04: Well, I mean, you take it, if you look at, we know how government contracts work. [00:12:58] Speaker 04: And we know about all of the rules and regulations encapsulated in regulations under contract. [00:13:04] Speaker 04: So anybody who's going to supply lumber who looked, for example, at the issue could say, I think there's been a violation of this regulation in connection with the task form. [00:13:15] Speaker 06: Yes, if there is a statute that applies post-award, the plain language of 1491b1 says if they're really challenging a direct statutory in which they have a direct economic interest and are an interested party and it applies post-award, then yes. [00:13:33] Speaker 04: I think you're agreeing that any supplier [00:13:37] Speaker 04: person who has the capacity to supply an element that's involved in a contract for which they could not be a bidder or a prospective bidder will still have standing to vindicate a violation of law. [00:13:52] Speaker 06: I think so, Your Honor. [00:13:54] Speaker 04: I think as Your Honor has praised that, I think so. [00:13:57] Speaker 04: panel of federal government contractors. [00:14:00] Speaker 06: Yes, this court has defined procurement quite broadly. [00:14:05] Speaker 06: And therefore, your jurisdiction is quite broad. [00:14:09] Speaker 06: If somebody can show a direct economic interest, a direct competitive interest in a [00:14:17] Speaker 06: in a statutory or regulatory violation that applies post-award. [00:14:22] Speaker 06: In plain language, a 1491b1 would give the court jurisdiction for sure, yes. [00:14:29] Speaker 04: But again... Sorry, is your argument basically that when you look at 1491, you see that there are basically three [00:14:39] Speaker 04: in their cases. [00:14:40] Speaker 04: The first prong is the solicitation. [00:14:42] Speaker 04: Got any argument with the solicitation? [00:14:45] Speaker 04: And it doesn't say a violation of law in connection with the solicitation. [00:14:49] Speaker 04: It just says you'd beef about the, you'd get a protest about the solicitation. [00:14:52] Speaker 04: That's problem one. [00:14:53] Speaker 04: Problem two is the war. [00:14:57] Speaker 04: And so our body of law, where we have developed the, are you a bidder, prospective bidder, yada yada, seems to have been developed with regard to prongs one and two. [00:15:08] Speaker 04: Is it your argument that Prop 3 deserves a different standing test? [00:15:12] Speaker 06: I don't think it's a different standing test, Your Honor. [00:15:14] Speaker 06: I think that in the end. [00:15:15] Speaker 04: And that you don't apply. [00:15:18] Speaker 04: You don't apply the standing test for Props 1 and 2. [00:15:22] Speaker 04: Because if we apply them, you're out of luck. [00:15:25] Speaker 06: Yeah. [00:15:26] Speaker 06: I guess so, Your Honor, in the sense that those. [00:15:29] Speaker 06: But again, Judge Brugink recognizes that the requirement that you be a bidder is, or an actual bidder on the original contract, [00:15:37] Speaker 06: If you've been prevented from even having a competitive process in which you could have been a bidder and would have been a bidder. [00:15:43] Speaker 04: That's, by definition, the problem any supplier faces who can't meet the full terms of a request for proposal. [00:15:50] Speaker 06: That's right. [00:15:51] Speaker 04: Everyone. [00:15:52] Speaker 06: That's correct. [00:15:53] Speaker 06: And that's why there's a third prong. [00:15:54] Speaker 06: Or I mean, that's what the third prong adds. [00:15:56] Speaker 06: Otherwise, the third prong really wouldn't add much to the first two prongs. [00:16:05] Speaker 06: So we focus most of the argument on the in connection with the procurement provision. [00:16:16] Speaker 06: And I think the court understands, the court is well articulated, but there are argument with respect to the issuance of the task order on which Judge Brugink actually ruled. [00:16:26] Speaker 06: But I do want to point out just a couple of things, additional things in connection. [00:16:30] Speaker 03: You're already over your time. [00:16:31] Speaker 03: Oh, that's fine. [00:16:32] Speaker 03: And you used your rebuttal time. [00:16:34] Speaker 03: So why don't you just save the rebuttal? [00:16:36] Speaker 06: Will do so, Your Honor. [00:16:37] Speaker 06: Thank you. [00:16:52] Speaker 02: Good morning. [00:16:54] Speaker 02: May it please the court? [00:16:58] Speaker 02: I'd like to focus, well, I'll focus wherever the court directs me. [00:17:02] Speaker 02: But the first point I'd like to make is that the arguments that are at issue here, the question of whether this is in connection with a procurement, whether this is in connection with the issuance or proposed issuance of a tax order, and the interest of party question are very interrelated. [00:17:20] Speaker 02: And they have come about, I think, in large part because of an effort to identify exactly how Percipient is characterizing these claims. [00:17:29] Speaker 02: So taking what Percipient has said latest here today and in its particularness reply brief, Percipient has now made very clear they are challenging contract performance. [00:17:39] Speaker 02: Contract performance in this procurement is being, according to Percipient, handled contrary to law. [00:18:02] Speaker 03: the contractor? [00:18:03] Speaker 03: I think Percipient's allegations didn't help me. [00:18:05] Speaker 03: They seem to use it. [00:18:06] Speaker 03: They have it said CHCI. [00:18:07] Speaker 02: That's right, Your Honor. [00:18:08] Speaker 02: And I hesitate to go too far into that because I think we get into some merits, factual issues there, and that our argument would be that their beef is really with CACI. [00:18:17] Speaker 02: But the complaint certainly addresses allegations in terms of what we have described as CACI's performance of the contract and NGA's administration of that performance. [00:18:32] Speaker 02: Well, I think what the point that I'm trying to make is if this if we are talking about the sapphire procurement and that the the actual activity that is being protested is how khaki and NGA are carrying out task order one and [00:18:56] Speaker 02: that that activity. [00:18:59] Speaker 02: Has to be in connection with. [00:19:02] Speaker 03: Just change the statutory. [00:19:08] Speaker 02: But the statute doesn't preclude everything that review of everything that's in connection with the task it doesn't your honor but this court has said that in connection with start with in connection with. [00:19:18] Speaker 02: is a direct and causal relationship to the issuance of the task order. [00:19:22] Speaker 03: Just to be clear, I guess I just can't get over what to me is just the blindingly obvious point that the direct connection was about what directly leads to the task order, not what follows from the duress [00:19:38] Speaker 03: the issuance of the task order. [00:19:39] Speaker 03: That was the context in which that language was used. [00:19:42] Speaker 03: Is it SRA that it was used in, or is it... Yes, Your Honor, SRA was... No case says that everything that follows from the existence of a task order, namely its implementation, is somehow an attack on the issuance of the task order. [00:19:58] Speaker 02: Two quick points with that, Your Honor. [00:20:00] Speaker 02: First of all, I don't know that it's ever been addressed. [00:20:03] Speaker 02: I don't think there has ever been a question, aside from cases that actually involve occurrences [00:20:08] Speaker 02: after a task order issuance, like 22nd century cases involving waiver. [00:20:14] Speaker 02: I mean, 22nd century and SRA are both instances of activities that are being challenged post award of a task order. [00:20:22] Speaker 02: I don't think there has ever been. [00:20:23] Speaker 01: In both of those cases, isn't it true that the plaintiff in both of those cases was saying, hey, that task order should have been issued to me? [00:20:33] Speaker 05: Right? [00:20:34] Speaker 01: They were complaining about who it was issued, who the task order was issued to. [00:20:38] Speaker 01: The remedy that they were seeking in both of those cases was to be awarded the task order. [00:20:44] Speaker 01: Right? [00:20:44] Speaker 02: I think that's the remedy they were seeking, Your Honor. [00:20:46] Speaker 02: But the procurement activity, the acquisition activity that they were complaining about. [00:20:52] Speaker 02: And one was an OCI waiver that took place months after. [00:20:56] Speaker 01: Sure. [00:20:56] Speaker 01: 202 days or something after the task order. [00:20:59] Speaker 02: And then the other was an SBA determination. [00:21:02] Speaker 02: that took place again after the task order. [00:21:06] Speaker 01: But don't we have to read both of those cases bearing in mind what the remedy was that was being sought there? [00:21:11] Speaker 01: Shouldn't the language in that case, for example the broad language in SRA, be read in the context of the facts in front of the court? [00:21:19] Speaker 02: I think certainly the remedy is a relevant question. [00:21:24] Speaker 02: And I think the court has said that. [00:21:25] Speaker 01: It was cited as being a reason for why they concluded that it was in connection with the issuance of task order. [00:21:31] Speaker 02: And, Your Honor, I think that's true in this case as well. [00:21:33] Speaker 02: The remedy that Percipian is seeking here is effectively undoing the activities of the task order. [00:21:39] Speaker 02: Undoing the what? [00:21:40] Speaker 02: The activities that have taken place under the task order. [00:21:42] Speaker 03: When does this phrase activities come into the statute? [00:21:45] Speaker 02: Oh, it's not in the statute. [00:21:46] Speaker 02: Sorry, that's my characterization. [00:21:48] Speaker 03: But that still doesn't make it a remedy to undo the issuance of the task order. [00:21:54] Speaker 03: Everybody seems to agree that the task order was just fine, in part because the government said, we will make sure CACI does what it needs to do under 3453. [00:22:06] Speaker 03: Go to Best Buy and do off-the-shelf commercial stuff if it's [00:22:11] Speaker 03: So there's been no violation, and no change in the task order needs to be made to comply with what they assert to be the duties that have not been complied with. [00:22:22] Speaker 02: I understand what you're saying, Your Honor. [00:22:23] Speaker 02: I respectfully suggest that there has been no, none of the cases that have discussed this issue [00:22:31] Speaker 02: included that directional element that the activity that has to be complained of leads up to the task order. [00:22:41] Speaker 02: It's a direct and causal connection to that issuance. [00:22:43] Speaker 02: And the issuance of a task order directly and causally leads to its performance. [00:22:49] Speaker 04: You keep telling us there aren't any cases. [00:22:50] Speaker 04: We know there aren't any cases. [00:22:52] Speaker 04: There are a bunch of cases in the Court of Court. [00:22:54] Speaker 04: There's no question about that. [00:22:55] Speaker 04: So what the presiding judge's question to you was, what's wrong with an interpretation of in connection with the issuance? [00:23:04] Speaker 04: That means directly leads to not what problem. [00:23:08] Speaker 02: It's just a case of first impression. [00:23:11] Speaker 04: It is. [00:23:12] Speaker 04: What's wrong with that interpretation? [00:23:16] Speaker 02: I think this is getting back to my original point of the interconnectedness, Your Honor. [00:23:19] Speaker 04: Your job, ma'am, is not to tell us that there aren't any cases and that there's a first impression. [00:23:25] Speaker 04: You used up most of your argument to get right here. [00:23:29] Speaker 04: And the presiding judge put the question straight to you and said, we have to decide what in connection with the issuance means. [00:23:36] Speaker 04: And he said, maybe what the SRA was in connection with building up to before the issuance, what's wrong with the definition that says it's before and not after? [00:23:46] Speaker 04: now is your time to tell us? [00:23:50] Speaker 02: Well, legally speaking, Your Honor. [00:23:52] Speaker 04: Assume we're going to adopt that definition. [00:23:54] Speaker 04: What's wrong with that? [00:23:55] Speaker 02: OK. [00:23:55] Speaker 02: Well, if Your Honor is saying that the court, if the court were to adopt a definition of in connection with the issuance of the task order that excludes. [00:24:05] Speaker 04: Conduct afterwards. [00:24:06] Speaker 02: Conduct afterwards. [00:24:08] Speaker 02: But I think that resolves this particular issue, I think. [00:24:13] Speaker 02: So what's wrong with that? [00:24:16] Speaker 02: Sorry, Your Honor. [00:24:17] Speaker 02: What I'm trying to say is that the direct and causal language which defines in connection with is not restricted to pre-award activity, pre-award protest. [00:24:34] Speaker 04: The question is, what did it mean? [00:24:37] Speaker 04: When you say direct and causal, what does that mean? [00:24:42] Speaker 04: In a case in which the conduct was before the issuance. [00:24:46] Speaker 04: Right? [00:24:47] Speaker 02: Yes, Your Honor. [00:24:48] Speaker 02: That was in a case that, well, actually, I think that was, again, one of these cases that the conduct was after. [00:24:54] Speaker 02: But it was, you know, trying to say the task order was invalid. [00:24:58] Speaker 03: But, Your Honor, I think- Can we switch to 1491 since we have 1491? [00:25:03] Speaker 03: Yes, Your Honor, please. [00:25:06] Speaker 03: troubling me there and I think reflected in my colleagues' questions also about the language of the last clause of 1491 is pretty broad and in some very natural way would suggest that it would be supplier with a genuine statutory claim to supplier to the contractor would be able to bring us in. [00:25:35] Speaker 03: So I don't think [00:25:36] Speaker 03: because that has a textual problem with that, or at least I haven't seen one. [00:25:44] Speaker 03: Yet, it has the feel of being quite broad in consequence. [00:25:51] Speaker 03: And I assume you want to say, yes, it's very broad. [00:25:54] Speaker 03: But can you address that? [00:25:58] Speaker 03: How do we understand just how broad it is? [00:26:00] Speaker 03: One of the things that Mr. Kaplan said is there just aren't that many statutory rights outside 3453 that would apply. [00:26:09] Speaker 03: And even within 3453, not that broad. [00:26:14] Speaker 02: uh... so you're going to get to it to address thirty four fifty three uh... we didn't tackle this that that the court below stand the interested party issue with respect to thirty four fifty three specifically we didn't really address this because that was vacated and it was not the opinion that was on appeal you have a section of your brief as an alternative oh absolutely yes yes your honor and so i'm just saying we didn't we didn't uh... tackle the the the uh... [00:26:41] Speaker 02: the vacated opinion. [00:26:42] Speaker 02: But with respect to interested party, this court has absolutely made very clear that interested party, when you're talking about a procurement, requires that the protester have bid on, be a prospective bidder on the procurement in question. [00:26:59] Speaker 02: And I think there is no question Percipient agrees that it is neither of those. [00:27:04] Speaker 02: And it did not protest prior to the close of bidding. [00:27:06] Speaker 02: Those are the elements of a post award [00:27:10] Speaker 02: Well, those are the elements of an interested party status. [00:27:13] Speaker 03: Even so far as the procurement was the original award or even the task order, they're absolutely not. [00:27:18] Speaker 03: But I think they want to say, actually, that they're not really attacking that. [00:27:23] Speaker 03: It's a procurement that is going to come afterwards. [00:27:26] Speaker 03: And that's what they think they have. [00:27:27] Speaker 03: They have a statutory right to participate in a way that they haven't been allowed to. [00:27:32] Speaker 02: Yes, Your Honor, I think that is what they are trying to say. [00:27:35] Speaker 02: And that is where this argument in connection with the procurement comes in, because there isn't one. [00:27:40] Speaker 02: There is the sapphire procurement. [00:27:41] Speaker 02: That is the procurement that is at issue here. [00:27:44] Speaker 02: That procurement went through all the normal processes to award the contract, and that is over. [00:27:49] Speaker 02: Percipient is now trying to say that there is some new thing that the government is going to be procuring. [00:27:56] Speaker 02: There isn't. [00:27:57] Speaker 03: If CACI builds [00:28:02] Speaker 03: its own software versus buys theirs. [00:28:07] Speaker 03: In either event, that cost in one way or another is going to be passed on to the government. [00:28:12] Speaker 03: Yes or no? [00:28:14] Speaker 02: Yes. [00:28:15] Speaker 03: Yeah. [00:28:15] Speaker 03: So why is that not a sufficient government procurement of what's going to be acquired by CACI? [00:28:25] Speaker 02: Because the interested party status is based on a bidding period. [00:28:31] Speaker 02: The bidding period for the procurement, you have to protest, be an actual prospective bidder and or protest before the close of bidding. [00:28:39] Speaker 02: Bidding is closed on the Sapphire procurement, the IDIQ contract, bidding is closed on task order one to the extent that- So as a sort of statutory matter or regulatory, I'm not skeptical about this, but I mean, [00:28:56] Speaker 03: They're repeated, phone calls and emails to CACI, please look at our product, buy our product. [00:29:05] Speaker 03: That's not a bidding. [00:29:08] Speaker 02: No, well, perhaps it is in sort of a colloquial sense, but we are talking about a government procurement. [00:29:15] Speaker 02: When this court has defined the scope of what is in connection with a procurement. [00:29:20] Speaker 03: They're trying to get their product procured by somebody who will pass on the costs to the government. [00:29:25] Speaker 03: And the government has an obligation to, on their allegations under 3453, [00:29:36] Speaker 03: Put pressure on or something CA ACA to you know see what's out there on the commercial marketplace show But your honor you can't have a the protestor can't simply invent procurement. [00:29:47] Speaker 02: They want the government to consider. [00:29:49] Speaker 03: Why is this not a procurement? [00:29:51] Speaker 03: If if we are talking about the sapphire procurement again about the implementation of the IDIQ and even perhaps the initial task order [00:30:03] Speaker 03: under the initial government procurement? [00:30:06] Speaker 02: Yes, Your Honor, and so I think we're looking at, we're sort of conflating the interested party question and the in connection with the procurement question. [00:30:14] Speaker 02: So if we assume that we are talking about the Sapphire procurement, that putting an alleged violation in connection with the Sapphire procurement, to be an interested party [00:30:25] Speaker 02: the protester had to have bid on, or been a prospective bidder on, that procurement. [00:30:31] Speaker 04: If CACI- We understand that. [00:30:33] Speaker 04: The question that the presiding judge is trying to put to you is that there is a hypothetical additional procurement to the original procurement. [00:30:42] Speaker 04: So what's happened is that CACI has won a contract and gotten a task order. [00:30:49] Speaker 04: If there is a possibility that CACI might [00:30:55] Speaker 04: due its 3453 obligations and conclude, oh my goodness, Percipient has a very product that will work. [00:31:05] Speaker 04: And so therefore, they will, as a prime contractor, have a subcontract in which they will make a procurement from Percipient of these bills. [00:31:16] Speaker 04: And what the presiding judge is saying, the possibility of that procurement [00:31:21] Speaker 04: existed is the thing that is complained about. [00:31:24] Speaker 04: That's where the recipient wants in. [00:31:27] Speaker 04: They know they can't get in at the original solicitation task order level. [00:31:33] Speaker 04: And I think what the presiding judge does is does that matter for purposes of deciding whether they have standing? [00:31:40] Speaker 04: Should we take into account [00:31:44] Speaker 04: in deciding what they have standing, understanding that they don't have standing to complain about the original task order of nations, should this possibility of an additional procurement matter? [00:31:57] Speaker 02: No, Your Honor, I don't think so. [00:31:58] Speaker 02: And why not? [00:31:59] Speaker 02: At best, and this has not happened, there is no allegation to this effect, at best, Percipient would be a disappointed subcontractor. [00:32:08] Speaker 02: And disappointed subcontractors do not have standing to bring a protest [00:32:13] Speaker 02: in certain limited circumstances, excepting in certain limited circumstances. [00:32:17] Speaker 04: Is that under a faithful? [00:32:20] Speaker 02: Yes, Your Honor. [00:32:21] Speaker 02: And again, this was something we argued in front of the district, or excuse me, in front of the court of federal claims. [00:32:27] Speaker 02: But I don't think it really came up here. [00:32:30] Speaker 03: You're looking for a case that says that? [00:32:37] Speaker 02: Yes, Your Honor. [00:32:37] Speaker 02: You're most welcome. [00:32:38] Speaker 02: Well, OK. [00:32:40] Speaker 02: Let me just take a look at it. [00:32:48] Speaker 02: And I apologize. [00:32:48] Speaker 02: I know I'm well over my time. [00:32:50] Speaker 02: These are the answers. [00:33:17] Speaker 02: So Your Honor, I think the primary case law that we were citing, I'm looking at appendix page 189. [00:33:28] Speaker 02: This is our original motion to dismiss in the Court of Federal Claims, in which we're citing a number of Court of Federal Claims cases. [00:33:42] Speaker 02: describing the inability of subcontractors to protest. [00:33:47] Speaker 02: 189 to 190. [00:33:49] Speaker 04: International genomics, is that what you're talking about? [00:33:54] Speaker 02: Yes, Your Honor. [00:33:56] Speaker 02: Blue water, and then claim the claim. [00:33:58] Speaker 02: 189. [00:33:59] Speaker 02: Yes, 189, and the argument carries slightly over to 190. [00:34:07] Speaker 02: I can't think of a case off the top of my head where this court has said that. [00:34:10] Speaker 03: That will be a lead for us. [00:34:13] Speaker 02: Understood, Your Honor. [00:34:14] Speaker 02: And I think there is no allegation that there is a subcontract in the offing. [00:34:20] Speaker 02: There is no allegation that there is a proposed subcontract of any kind. [00:34:24] Speaker 02: And I think even in the context of determining whether that is a new procurement, there still has to be some [00:34:34] Speaker 02: determination of a need that is not, a new need that is not part of the Sapphire procurement in order for there to even be considering whether you have standing under some new contract. [00:34:45] Speaker 04: From the record, it looks like there isn't going to be one. [00:34:49] Speaker 04: It looks like PACI is developing its own system. [00:34:53] Speaker 04: There's nothing in the record that's shown us that they've put any subcontracts in. [00:34:58] Speaker 04: By the way, is the contract still under performance? [00:35:01] Speaker 02: Yes, Your Honor. [00:35:03] Speaker 01: I have a question about standing. [00:35:04] Speaker 01: I actually want to just, I think that Judge Toronto asked you a question and I'm not sure I heard the answer. [00:35:10] Speaker 01: And so one thing your adversary was emphasizing was that, you know, the door that would be opened by finding standing here is not as wide as you might think because there has to be a statutory or regulatory provision that applies post award. [00:35:27] Speaker 01: And the question to you was, is that true that there aren't many statutory or regulatory provisions that would apply post-award by 3453 does here? [00:35:38] Speaker 01: And I don't think I heard you give an answer to that question. [00:35:41] Speaker 02: My apologies, Your Honor. [00:35:43] Speaker 02: I apologize, Mr. Toronto. [00:35:45] Speaker 02: I haven't done a survey of what those possible statutes could be, but I can certainly think of some off the top of my head. [00:35:53] Speaker 02: I mean, this 3453 itself. [00:35:56] Speaker 02: encompasses a very wide range of contracts. [00:35:59] Speaker 01: So what are those other things that you're thinking of? [00:36:03] Speaker 02: I'm going to get the names wrong, but the Buy America First Act type of cases, where if the government is soliciting something, think of it in either the task order context or not, and the contractor is required to provide goods that are made in the US, any- All room to contracts? [00:36:21] Speaker 02: yes your honor yes your honor and frankly I think you get more abstract if there are contracts that the one that I was thinking of is if the government is trying to procure for example some kind of [00:36:39] Speaker 02: fire alarm and there are certain regulatory requirements for fire alarms that have to go into, you know, government facilities. [00:36:45] Speaker 04: What about the regulations and deal with contracting to tell you what kind of people, groups that you have to consider and you can't discriminate against various groups in your room? [00:36:54] Speaker 04: Certainly, Your Honor. [00:36:55] Speaker 04: That whole range of everybody who's serving under the contract. [00:36:58] Speaker 02: Yes, Your Honor. [00:36:59] Speaker 02: I think that would, the door would also potentially be open for that. [00:37:03] Speaker 02: And I think that highlights the fact that the question about standing here cannot be directed to [00:37:08] Speaker 02: the statute that is identified as having been violated. [00:37:12] Speaker 02: The question of standing is simply, are you an interested party in the procurement that you are identifying? [00:37:17] Speaker 02: And I think that is the error that was made in the vacated opinion that we are not arguing. [00:37:21] Speaker 02: The judge proving below relied on 3453 to provide standing. [00:37:26] Speaker 02: And that statute does not provide a cause of action. [00:37:28] Speaker 02: It does not provide standing. [00:37:30] Speaker 02: 1491B is where we look to for standing in this court. [00:37:33] Speaker 04: When you're looking at problem one and two of 1491, i.e. [00:37:38] Speaker 04: complaint about the solicitation or complaint about the award, you can have a violation of law alleged in connection with the solicitation. [00:37:47] Speaker 04: Certainly, Your Honor. [00:37:47] Speaker 02: Absolutely. [00:37:49] Speaker 04: And so if it's indeed true that the current standing law was designed for purposes of crimes one and two, because those are the kind of cases it was coming up with, those cases would also include something that would have fallen under the third crime. [00:38:04] Speaker 02: Absolutely, Your Honor. [00:38:05] Speaker 02: And frankly, I can't cite one to the court right off, but I am sure that there are cases in which the [00:38:12] Speaker 02: the court's standing requirements have been applied under that third prong when there is an alleged violation in connection with the procurement. [00:38:21] Speaker 02: The same statute, the same interested party provisions apply. [00:38:24] Speaker 04: Well, I look. [00:38:25] Speaker 04: I couldn't find a notion that we would have a differing standard for standing under prong three than is established for prongs one and two. [00:38:34] Speaker 04: It seems we wouldn't be able to do that if we have a precedent that's already applied to the standard for one. [00:38:42] Speaker 02: I will look around. [00:38:45] Speaker 02: Yes, Your Honor. [00:38:46] Speaker 02: I mean, I guess what I'm trying to say is I am sure that a standing issue has come along. [00:38:49] Speaker 04: If you find a case in which this court has, presidentially, enforced the typical standing for Farms 1 and 2 and Farms 3 case, would you give it to us? [00:39:01] Speaker 02: Certainly, Your Honor. [00:39:04] Speaker 02: Thank you very much. [00:39:04] Speaker 03: Thank you very much. [00:39:07] Speaker 03: Oh, I'm sorry. [00:39:08] Speaker 03: You get to speak. [00:39:18] Speaker 00: I would like to follow up on some questions that you originally asked about, wouldn't this, the interpretation of 3453 as opening up the avenue for anyone at any time during the performance of a contract, could come in and say, wait, I have a better widget. [00:39:38] Speaker 00: I have a non-developmental item, or I have [00:39:41] Speaker 00: commercial item that I think can meet their requirements. [00:39:44] Speaker 03: Just to be clear, I think we've been talking about not the interpretation of 3453, but the interpretation of 1491. [00:39:50] Speaker 03: The merits of the 3453 obligation have not been litigated. [00:39:55] Speaker 03: And if this were to go back and the litigation were to proceed to the merits, there would be ample opportunity for arguments about why the 3453 duty was actually very much more limited than perhaps we [00:40:16] Speaker 03: But if you want to say that 3453 duty is actually very narrow, then maybe I'm not going to worry so much about opening up 1491, because it would be taken care of at the merits motion to dismiss. [00:40:31] Speaker 00: So 1491, you have to be an interested party. [00:40:37] Speaker 00: Secre was a very unique case in that they were a mandatory supply by law, so that they didn't have to submit a proposal. [00:40:47] Speaker 00: Percipient doesn't claim it could submit a proposal, wants to submit a proposal. [00:40:53] Speaker 00: It just wants the ability to be a subcontractor. [00:40:58] Speaker 00: But it doesn't have, therefore, a direct economic interest in the original prime contract that was awarded or the task order, right? [00:41:06] Speaker 00: Because it wants to be a subcontractor to CACI. [00:41:12] Speaker 00: And in that circumstance, [00:41:15] Speaker 00: It's not the government generally making the determination. [00:41:18] Speaker 00: It's the contractor making the determination because the determination of what would be used and how they would determine it was actually set forth in the task order which required CACI to design, develop, and implement a CV system. [00:41:32] Speaker 00: There was no obligation that it definitely use any particular CV software. [00:41:40] Speaker 00: In this case, the recipient challenges whether or not the analysis that was done was sufficient. [00:41:48] Speaker 00: There was an analysis done. [00:41:50] Speaker 00: It's in the record. [00:41:54] Speaker 00: As a result of that, the recommendation by CACI was to use another non-developmental item, actually one that was owned by the government already. [00:42:05] Speaker 00: What Percipient wants here is the right to have a subcontract. [00:42:09] Speaker 00: But that is in connection with the issuance of this task order, because while the task order had the obligation to look at, for CACI, to do an analysis of the market research and do market research and then determine whether there were, in fact, commercial alternatives, [00:42:28] Speaker 00: then they would have done that. [00:42:30] Speaker 00: The government could have required them at that time. [00:42:34] Speaker 00: These are the alternatives we want you to look at. [00:42:36] Speaker 00: And then they would have a direct economic interest. [00:42:41] Speaker 00: But here, Percipient didn't [00:42:44] Speaker 00: participate in the market research, didn't participate in the procurement, and it's only years after award that they say they want to bring a protest. [00:42:52] Speaker 00: And if the 1491 allows that to be true, it opens up every procurement to every potential subcontractor who wants to compete for part of the work that is required of the contractor. [00:43:06] Speaker 04: Well, one way of looking at it is from the self-interest of the contractor wanting to compete, and the other way of looking at it is that the [00:43:11] Speaker 04: faculty wants to perform as a private attorney general. [00:43:16] Speaker 04: So how else, let's just assume for purposes of argument, that there is a violation of 3453 going on. [00:43:23] Speaker 04: How will this violation be vindicated? [00:43:26] Speaker 04: If you live in a world where you think there should be ways in which to vindicate wrongs, and you say, well, we would be absent the [00:43:36] Speaker 04: person who is a viable potential subcontractor being able to bring in the facts to light, then you almost have to rely on the whistleblower with a key hand to talk action. [00:43:49] Speaker 04: Because here, the government hasn't shown any interest in policing the situation. [00:43:55] Speaker 00: So I actually think there are several ways that the compliance with the statutory obligation occurs. [00:44:01] Speaker 00: One occurs under the Contract Dispute Act. [00:44:04] Speaker 00: A prime contractor could disagree with the government to wait. [00:44:07] Speaker 00: I've priced this to subcontract for a commercial item and you want me to develop something new. [00:44:12] Speaker 00: So that would be a claim. [00:44:13] Speaker 00: Or the government could impose that obligation saying to the contractor, we don't want you to develop something. [00:44:19] Speaker 00: We want you to use a commercial product or another non-developmental item. [00:44:24] Speaker 00: There are lots of other ways that government conduct and contractor conduct. [00:44:29] Speaker 00: Far from False Claims Act, you do have IG investigations. [00:44:33] Speaker 00: If a party actually is standing in a task order here, they could go to GAO with a protest if they're otherwise an interested party. [00:44:41] Speaker 00: Congress could do an inquiry, which they do, to ensure that agencies are, in fact, complying. [00:44:48] Speaker 00: And they could ask GAO to do an audit. [00:44:50] Speaker 00: So there are avenues for Congress to pass a statute to ensure that the government and its contractors are meeting the obligations. [00:45:01] Speaker 01: Is your point that there's nothing in that statute that expressly says what the consequences of a violation of 3453? [00:45:10] Speaker 00: So our point is it doesn't independently provide a protest right, but that's under 1491. [00:45:17] Speaker 00: And the requirement is that to the maximum extent practical, you do market research to see whether there is commercial or non-development products and implement them to the maximum practical. [00:45:31] Speaker 00: So that's a standard that would have to be evaluated in any particular case. [00:45:43] Speaker 03: some Republicans. [00:45:47] Speaker 06: First just one one very discreet point on the question of cases addressing [00:45:55] Speaker 06: Well, I'm going to get to that. [00:45:58] Speaker 06: But the first thing is just a very discreet point on the task order bar, which is there are three cases favorably cited in SRA itself that involved actions that took place after a task order. [00:46:10] Speaker 06: That would be global computer, unisys, and distributed solutions. [00:46:15] Speaker 06: On the subcontractor standing issue, a disappointed subcontractor, [00:46:21] Speaker 06: To the extent that principle exists in the case law, the government is misapplying it here. [00:46:29] Speaker 06: If you look at distributed solutions, what distributed solutions makes clear is that theoretically you could have called the protester in distributed solutions a disappointed subcontractor because they sought to get subcontracts from the contractor. [00:46:45] Speaker 04: at stage one or stage six or whatever. [00:46:48] Speaker 04: So they submitted a bid. [00:46:50] Speaker 06: There was the original RFI. [00:46:52] Speaker 04: And then that got canceled. [00:46:54] Speaker 04: And then the solution is they pinned the fact that they had actually submitted a bid. [00:46:59] Speaker 06: Or responded to the RFI, I believe was what happened. [00:47:02] Speaker 06: But yes. [00:47:03] Speaker 06: And that established that a procurement existed before the granting of the subcontract. [00:47:09] Speaker 04: Well, that's one step ahead of your point, for sure. [00:47:10] Speaker 06: right but theoretically but but what with the the bottom line point in distributed solutions was they were an interested party and they were a and it was in connection with the procurement because they had the government conducted the type of procurement that [00:47:28] Speaker 06: They said that they were legally obligated to. [00:47:30] Speaker 06: In other words, if their claim was correct, they would have been a direct competitor. [00:47:34] Speaker 06: And similarly, the same thing is true here. [00:47:36] Speaker 06: They say that our only beef is that we wanted to be a subcontractor. [00:47:39] Speaker 06: Well, that's not true. [00:47:41] Speaker 06: If the government did what they were supposed to and they monitored, [00:47:45] Speaker 06: One way that our economic interests could have been vindicated is ordering their contractor do a subcontract. [00:47:52] Speaker 06: Another is they could have just licensed us directly. [00:47:55] Speaker 03: In the task order? [00:47:57] Speaker 06: Well, yes, in the course of performing the task order, but also in the course of performing the contract, they could have instructed their contractor procure them. [00:48:06] Speaker 03: We've been talking, I think, at several turns here about whether [00:48:13] Speaker 03: It's only the Sapphire contract and test quarters under it that constitute a cognizable procurement or whether the later stage purchases by the contractor purchases [00:48:36] Speaker 03: Maybe we can just call them subcontractors. [00:48:38] Speaker 03: We've been talking about those as subcontract. [00:48:40] Speaker 03: I don't know if that's the same as buying something from a supplier. [00:48:44] Speaker 03: Is that latter stage a government procurement within 1491, or are you saying that that stage is in connection with the original procurement? [00:49:00] Speaker 06: I think it's the former, Your Honor, because the government has never come to grips in this case. [00:49:08] Speaker 06: You've heard them say this over and over. [00:49:10] Speaker 06: The procurement is over. [00:49:12] Speaker 06: The procurement isn't over. [00:49:13] Speaker 06: The definition of procurement in distributed solutions says all stage of the process of acquiring a process, all the way through contract completion or closeout. [00:49:25] Speaker 04: We're miles away from that. [00:49:26] Speaker 04: The possibility of a subcontract to you [00:49:30] Speaker 04: would be in connection with the procurement. [00:49:33] Speaker 06: Absolutely. [00:49:34] Speaker 04: It's common. [00:49:35] Speaker 06: Absolutely. [00:49:36] Speaker 06: And again, Your Honor, just to be clear, that is one avenue. [00:49:40] Speaker 06: But they can also, in connection with this procurement, license us directly and just say, hey, Khaki, integrate them. [00:49:46] Speaker 03: OK, so why do you think that subcontractors can be interested parties with a standing [00:49:58] Speaker 03: And I guess cause of action under 1491. [00:50:00] Speaker 06: The only reason I'm hesitating, I think the answer is yes, Your Honor. [00:50:07] Speaker 06: But the only reason I'm hesitating, the answer is yes. [00:50:10] Speaker 06: But the key point here is the reason we have standing is because the type of provision that we are bringing this under, our economic injury is direct. [00:50:24] Speaker 06: It is not derivative of, for example, [00:50:27] Speaker 06: Say you have a case where a subcontractor [00:50:34] Speaker 06: a prospective subcontractor and a contractor. [00:50:36] Speaker 06: A contractor bids on a contract. [00:50:38] Speaker 06: And the subcontractor, they said, if we do this, we're going to subcontract out this work. [00:50:43] Speaker 06: And then the contractor doesn't get the contract. [00:50:45] Speaker 06: And then the only person who protests is the subcontractor. [00:50:49] Speaker 06: That particular instance might be indirect. [00:50:52] Speaker 06: The court might conclude that person is an interested party, because their interest is entirely derivative. [00:50:58] Speaker 03: Is the scenario you just described what occurred in that [00:51:01] Speaker 03: the CFC cases cited at appendix 189 to 90 or not? [00:51:10] Speaker 06: I don't recall which cases we're talking about at 189 to 90. [00:51:13] Speaker 06: But I think, yeah. [00:51:15] Speaker 03: We spent some time waiting for identification of some subcontractor cases, and that's what came back. [00:51:22] Speaker 06: Essentially, I can't remember. [00:51:23] Speaker 06: I know that that's one of the scenarios. [00:51:25] Speaker 06: I can't remember if it's every single one of them. [00:51:27] Speaker 06: But what I know for a fact [00:51:28] Speaker 06: is that what those cases are not about is what we're talking about here, which is a statute under which we would be competing directly, that is about procuring commercial items, and where the economic interest is direct, because we would be the commercial item provider. [00:51:55] Speaker 06: And that is entirely different from any case that has ever talked about disappointed some contractor. [00:52:02] Speaker 06: And it's like distributed solutions, where again, the claim was, if you had conducted the type of procurement you were supposed to conduct, we would have been a direct competitor. [00:52:13] Speaker 06: In this context, the fact that the government theoretically could have ordered Cassie to procure us as a subcontract is really beside the point, because they also could have procured us directly. [00:52:26] Speaker 06: And we are, in a sense, for that purpose, directly competing. [00:52:30] Speaker 06: What you have is, are you going to procure a commercial item? [00:52:34] Speaker 06: In which case, we would get the work, or we would get the benefit of the government's [00:52:41] Speaker 06: procurement, acquisition, or are you going to develop? [00:52:44] Speaker 06: And so we're on the same level as CACI for purposes of that. [00:52:48] Speaker 06: We are not a disappointed subcontractor to CACI. [00:52:52] Speaker 06: There's a direct economic interest at stake there. [00:52:55] Speaker 04: uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... [00:53:22] Speaker 06: The key point, we understand that Your Honor hasn't seen this, but one reason why this seems a bit ephemeral is because the government didn't do what they were supposed to do here. [00:53:31] Speaker 06: They did not have a systematic process for evaluating commercial items at the outset. [00:53:35] Speaker 06: We had to go to them. [00:53:36] Speaker 06: They rope-a-doped us for a year and a half saying, oh, we're going to do it. [00:53:40] Speaker 06: We're not going to do it. [00:53:41] Speaker 06: And then they entered a new bailment agreement with us. [00:53:45] Speaker 06: It was very haphazard. [00:53:47] Speaker 06: But the government's haphazard process can't be allowed to, [00:53:52] Speaker 06: prediment the plain language of the statutes, because look at what we're talking about on the flip side, Your Honor. [00:53:59] Speaker 04: Which plain language are you talking about? [00:54:00] Speaker 06: I'm talking about the plain language of 1491, and I'm talking about the plain language of 3453. [00:54:05] Speaker 04: The plain language says if the party can bring forth the violation law, right? [00:54:09] Speaker 06: Absolutely. [00:54:10] Speaker 06: And look what they're trying to do. [00:54:12] Speaker 04: There's really no... How about the person walking in off the street who learns about all this? [00:54:16] Speaker 04: Should they be able to come up with better claims? [00:54:18] Speaker 06: Well, they have to have, as Your Honor said, a credible claim that they can, that it's practical to purchase their commercial item development. [00:54:29] Speaker 06: Yes, absolutely. [00:54:30] Speaker 06: And again, Your Honor, the flip side of this is you heard when my friend was trying to explain what the avenue was in response to Judge Clevenger's question, how this could be enforced. [00:54:42] Speaker 06: All you heard was the kind of thing you could hear about any statute. [00:54:45] Speaker 06: Oh, well, congressional oversight. [00:54:47] Speaker 03: But that was an answer to a question, essentially, about a private attorney general approach. [00:54:51] Speaker 03: That's not what we're talking about. [00:54:52] Speaker 03: Can I just add, before you sit down, [00:54:57] Speaker 03: Some of what I think you've been saying, and certainly what I've been thinking, is that for purposes of applying the Interested Party in connection with Peace of 1491, I want to look at the statute that's being alleged to be violated, 3453. [00:55:16] Speaker 03: And then I think, well, the predecessor case or an important predecessor case of Weeks Marine, AFGE case said, we don't think this interested party language is like APA aggrieved party language. [00:55:36] Speaker 03: The aggrieved party language is what, if you can correct me about all this, [00:55:41] Speaker 03: is what I think led to the usual zone of interest test of the statute whose violation is alleged. [00:55:51] Speaker 03: And we think 1491's Interested Party clause is narrower than that. [00:55:57] Speaker 03: Are you asking us to do something essentially inconsistent with that interpretation of the Interested Party? [00:56:03] Speaker 06: No, Your Honor. [00:56:06] Speaker 06: It is narrower than the APA standing. [00:56:09] Speaker 06: But you have to be in the sense that you have to have a direct competitive [00:56:13] Speaker 06: a direct economic interest. [00:56:15] Speaker 06: You have to be a prospective offeror if the government does what they are supposed to do. [00:56:20] Speaker 06: But we unquestionably are. [00:56:21] Speaker 06: We are the offeror of this commercial item if the government does what they're supposed to do and ensures to the maximum extent practical that commercial items would be procured. [00:56:31] Speaker 06: And the flip side of what they're trying to do is preclude all enforcement of this provision that Congress have painstakingly entered. [00:56:39] Speaker 06: And if that's what Congress had done, [00:56:41] Speaker 06: in plain language. [00:56:42] Speaker 06: If they included this provision and made it essentially hortatory by not giving the court jurisdiction, well, that would be what they did. [00:56:51] Speaker 06: But that isn't what they did. [00:56:53] Speaker 06: They gave the court a broad grant of jurisdiction in 1491. [00:56:56] Speaker 06: They enacted section 3453 in plain terms. [00:57:00] Speaker 06: And this protest should therefore be allowed to proceed. [00:57:03] Speaker 03: We thank the court for this. [00:57:04] Speaker 03: Thank you very much, Mr. Caffrey.