[00:00:00] Speaker 04: Final case this morning was progress from Bakersfield Veterans for the United States and SASD Development Group. [00:00:10] Speaker 04: 2022-1775. [00:00:11] Speaker 04: Good morning. [00:00:12] Speaker 04: How do you pronounce your name? [00:00:16] Speaker 04: Jokum. [00:00:17] Speaker 04: Jokum. [00:00:18] Speaker 04: Please proceed. [00:00:19] Speaker 06: Good morning, Your Honors. [00:00:19] Speaker 06: May I please support Elizabeth Jokum for progress for Bakersfield Veterans or PBV? [00:00:25] Speaker 06: Before the claims court, PBV argued that the VA had waived the material solicitation requirement that the selected offer deliver the anticipated veterans clinic within 24 months of lease award. [00:00:38] Speaker 06: The claims court dismissed the protest ground on the basis that under Blue and Gold Fleet, any objection to the 24-month delivery requirement had to be filed before proposal submission. [00:00:49] Speaker 06: But, Your Honors, PPV did not and does not object to any solicitation requirement. [00:00:54] Speaker 06: Rather, it sought to have the 24-month delivery requirement enforced. [00:00:59] Speaker 06: The dismissal stemmed from PBV's statement that it knew, ostensibly prior to submission of its proposal, that no offeror could deliver a newly constructed clinic on raw land within 24 months. [00:01:13] Speaker 06: That fact did not indicate a solicitation flaw. [00:01:17] Speaker 06: PBV knew that it could submit proposals that were compliant with the delivery requirement and that other offers potentially could as well. [00:01:25] Speaker 06: PBB viewed its ability to meet the delivery requirement as a competitive advantage over at least one likely competitor, SASC. [00:01:34] Speaker 06: That advantage was eliminated when the VA eliminated the requirement to deliver the clinic within 24 months, and PBB challenged [00:01:43] Speaker 06: the agency's waiver of that requirement. [00:01:45] Speaker 02: Well, when you say eliminated the 24 month requirement, what was the form in which they eliminated it? [00:01:52] Speaker 02: I didn't see that it was actually struck from the solicitation of anything. [00:01:56] Speaker 06: Yes, Your Honor. [00:01:57] Speaker 06: So the lease that was executed contained a paragraph that indicated when construction would be complete. [00:02:04] Speaker 06: But that paragraph referred back to another paragraph that did not actually contain a delivery date. [00:02:11] Speaker 06: So the executed lease essentially said that the lease would begin when construction was completed and accepted, but with no actual date for that delivery. [00:02:21] Speaker 02: Right. [00:02:22] Speaker 02: But the solicitation, which was [00:02:24] Speaker 02: incorporated into the contract still required 24-month delivery, correct? [00:02:31] Speaker 02: Your Honor, the solicitation required offers... It was incorporated into the agreement. [00:02:35] Speaker 06: The solicitation was incorporated into the agreement. [00:02:37] Speaker 02: And the solicitation was incorporated with the 24-month period intact, correct? [00:02:42] Speaker 06: Yes, except for that the solicitation required offers to propose either a 20 or 24 month delivery requirement and then the final amendment to the solicitation which deleted the 20 month option leaving the 20 more 24 month option said that the contracting officer could execute a lease with the 24 month delivery requirement but then ultimately she did not. [00:03:04] Speaker 06: She executed a lease with no delivery requirement. [00:03:08] Speaker 02: So you're saying the delivery requirement, which was incorporated in the lease per the solicitation, was not, in fact, part of the lease requirement when the lease was entered? [00:03:20] Speaker 06: That's right, Your Honor. [00:03:21] Speaker 06: The solicitation asked offers to submit proposals based on either a 20- or 24-month requirement. [00:03:28] Speaker 02: And the 20-month was taken off the table. [00:03:30] Speaker 02: Yes. [00:03:30] Speaker 06: Leaving the 24. [00:03:32] Speaker 06: Leaving the contracting officer the option. [00:03:35] Speaker 06: The language says could execute a lease with a 24-month delivery requirement. [00:03:39] Speaker 06: But ultimately, she did not. [00:03:41] Speaker 06: That's not what the lease says. [00:03:44] Speaker 06: So, Your Honor, PBD could not have known. [00:03:47] Speaker 03: Why was PBD eliminated from the bid process? [00:03:51] Speaker 03: It was eliminated from the competitive range. [00:03:55] Speaker 06: From the competitive range, Your Honor, based on its technical evaluation. [00:04:02] Speaker 03: And you're not challenging that part? [00:04:04] Speaker 06: We did challenge that, but we haven't appealed the claim court's decisions on those issues. [00:04:11] Speaker 06: Blue and Gold Fleet requires facts and knowledge prior to proposal submission in order to raise a pre-proposal protest. [00:04:21] Speaker 06: PBV did not and could not have known prior to submission of its proposal that the agency would engage in communications with SESD indicating an attempt to amend the... You knew at that point in time that you were not going to be able to perform. [00:04:37] Speaker 06: No, Your Honor, we absolutely believe we could have and could perform. [00:04:42] Speaker 06: We believe that SASD was incapable of performing. [00:04:46] Speaker 02: But you were struck from competitive range for reasons other than the 24 knots, right? [00:04:52] Speaker 06: Correct, but we weren't deemed unacceptable. [00:04:56] Speaker 06: The agency just went through the process of down selecting the number of offers that it was considering and did a single offer competitive range. [00:05:07] Speaker 06: So we were not found unacceptable. [00:05:09] Speaker 06: We were excluded as not the agency's anticipated best value offer. [00:05:18] Speaker 06: At the claims court, PBV argued that the agency was not permitted to waive this delivery requirement, but rather was required to cancel the solicitation and re-solicit based on the actual flexibility for delivery requirement timing. [00:05:32] Speaker 06: The government argued that instead PBV should have filed this protest prior to proposal submission. [00:05:38] Speaker 06: But, Your Honors, I genuinely struggle to imagine what that protest would have said. [00:05:43] Speaker 06: I suppose PBV could have said, [00:05:45] Speaker 06: We can meet the requirements, but no one else can. [00:05:48] Speaker 06: Or we can meet the requirements, but only offerors proposing a renovation or proposing to do new construction on developed land can meet the requirements. [00:05:59] Speaker 06: There would have been no standing there. [00:06:01] Speaker 06: PBV didn't have an economic interest in raising that argument. [00:06:03] Speaker 06: There would have been no competitive injury. [00:06:06] Speaker 06: Blue and Gold Fleet nor any other law or case requires a potential offeror [00:06:12] Speaker 06: to challenge a solicitation requirement that it can meet, but that limits the competition. [00:06:17] Speaker 06: That's a competitive advantage, not a flaw in the solicitation. [00:06:21] Speaker 06: Since PBV asserted in their solicitation flaw, blue and gold fleet is inapplicable, and the claims court committed a reversible error in dismissing the protest ground. [00:06:33] Speaker 03: I understood that PBV also knew that it was not able [00:06:42] Speaker 03: complete the construction in 24 months. [00:06:47] Speaker 03: Not only it, but everybody else. [00:06:51] Speaker 03: That's not right? [00:06:52] Speaker 06: No, Your Honor. [00:06:53] Speaker 06: The statement that PPV made that the government took issue with was that no offeror, specifically SESD, but no offeror could complete new construction on raw land within 24 months. [00:07:06] Speaker 06: PPV proposed two renovations and one new construction on developed land. [00:07:11] Speaker 06: So at no point in time did PPV believe it could not meet the delivery requirement. [00:07:16] Speaker 06: It believed that there were other potential offers, including SESD, that could not meet it, but it could. [00:07:22] Speaker 04: May it please the court. [00:07:35] Speaker 00: This court should affirm the trial court's determination that PBV's bid protest claim concerning the 24-month delivery term was waived. [00:07:43] Speaker 00: The trial court correctly found the waiver rule in blue and gold fleet bars PBV's claims. [00:07:49] Speaker 00: Moreover, the factual premise to PBV's argument is incorrect. [00:07:54] Speaker 00: There was no express or de facto amendment to the lease's 24-month delivery term and no failure by VA to enforce the lease's delivery requirements. [00:08:04] Speaker 00: First, conceptually, PBV's actions here fall squarely under the paradigm of blue and gold fleet, as well as this court's decision in comit. [00:08:14] Speaker 00: This court's decisions in those cases recognize the broad application of the waiver rule. [00:08:20] Speaker 00: If a protester had the opportunity to challenge a solicitation before the award and failed to do so, the blue and gold waiver rule applies. [00:08:29] Speaker 00: It's comit 700 F third at 1382. [00:08:33] Speaker 00: In PBV's own words, it knew that delivering a newly constructed clinic within 24 months from the lease award was not possible for anyone, appendix 86. [00:08:45] Speaker 00: There's no dispute that PBV believed this. [00:08:47] Speaker 00: Indeed, it argued that no one, not SASD nor any other offer, could deliver a newly constructed clinic within 24 months. [00:08:56] Speaker 02: Your opposing counsel said, well, that's not quite right because [00:09:00] Speaker 02: PBV could do it on developed land as opposed to on developed land. [00:09:11] Speaker 00: Right, that's their argument. [00:09:12] Speaker 00: So the argument is trying to split the solicitation and say there's one error here that's clear and everybody knew it was an error, which was this defective term of a 24-month delivery on raw land [00:09:24] Speaker 00: We're lucky. [00:09:25] Speaker 00: We're the only ones that can offer on a rehabilitation component of the solicitation. [00:09:31] Speaker 00: So they're trying to split the solicitation in two and say, if a solicitation is half bad, it doesn't matter, as long as our half is OK. [00:09:39] Speaker 00: And we put in for two. [00:09:40] Speaker 00: That's the important thing to remember. [00:09:42] Speaker 00: They didn't just sit back and put in their bid for rehabilitation. [00:09:46] Speaker 00: They put in a bid for development on raw land. [00:09:49] Speaker 02: And they did they specifically on raw land as opposed to developed land, which is what [00:09:54] Speaker 02: The opposing council is arguing today. [00:09:56] Speaker 00: I believe what she meant was as opposed to rehabilitation on developed land. [00:10:03] Speaker 00: So the circumstance is that PBV currently has the VA clinic. [00:10:09] Speaker 00: And what they propose in their rehabilitation is we can change things around. [00:10:14] Speaker 00: We can move things. [00:10:15] Speaker 00: We can rehabilitate it. [00:10:17] Speaker 00: And we can do that within 24 months. [00:10:19] Speaker 00: Sure, I understand that. [00:10:20] Speaker 02: But what I'm trying to get at is the [00:10:23] Speaker 02: distinction between new construction on rowland versus new construction on [00:10:31] Speaker 02: whatever it means. [00:10:35] Speaker 02: That's the distinction that I understood her to be arguing today. [00:10:38] Speaker 00: I'm not sure that that distinction is what is in the record, Your Honor. [00:10:41] Speaker 00: I haven't seen a reference to a raw track, you know, a developed piece of land, specific developed land. [00:10:49] Speaker 00: I know that there's a site identified, and I believe that that's not in the record, the identification, and it's under seal, the specific location. [00:10:59] Speaker 00: But the argument that [00:11:01] Speaker 00: that there's a development on raw land is one that they say no one else could meet. [00:11:06] Speaker 00: So I guess the issue is you could say, they say that anyone who puts in a 24-month on raw land can't meet it. [00:11:15] Speaker 00: And then they say, we put one in, assuming the argument, I don't know if this is their argument, Your Honor, it certainly wasn't articulated clearly to me at the trial court level, that they had another piece of land that's [00:11:27] Speaker 00: developed. [00:11:29] Speaker 00: Whatever that means, you have to raise things. [00:11:31] Speaker 00: I'm not sure. [00:11:31] Speaker 00: There's concrete paths out there. [00:11:34] Speaker 00: I'm not sure. [00:11:36] Speaker 00: What we know is, what they argued was that in raw land, no one could meet this term. [00:11:41] Speaker 00: It was defective. [00:11:42] Speaker 00: No one could do it in 24 months. [00:11:44] Speaker 00: And they themselves put in a schedule to develop a newly constructed clinic in 24 months. [00:11:55] Speaker 02: Now, OK, what about the [00:11:57] Speaker 02: argument that the 24-month period was eliminated in one way or another from the solicitation and ultimately from the lease? [00:12:09] Speaker 00: Factually incorrect, Your Honor. [00:12:10] Speaker 00: Okay. [00:12:11] Speaker 02: What are the facts as you see them? [00:12:13] Speaker 00: Okay. [00:12:13] Speaker 00: So there's a whole slew of facts. [00:12:15] Speaker 00: I'll go through them. [00:12:16] Speaker 00: They'll take me a little bit. [00:12:17] Speaker 00: But the first, I think the most important thing is to understand that [00:12:20] Speaker 00: The lease allowed for delays to the schedule. [00:12:25] Speaker 00: So that's at the lease 3.2, 3.2, 3.2, 3.2. [00:12:27] Speaker 00: That's appendix 75 and 103. [00:12:31] Speaker 00: And you say those delays were within the 24. [00:12:33] Speaker 00: No, no. [00:12:34] Speaker 00: What I'm saying, so what you do is, the way this worked was, offers put in a bid showing a hypothetical delivery date based on a hypothetical award date, right? [00:12:49] Speaker 00: 24 months. [00:12:50] Speaker 00: SASD puts in a schedule saying they can do it. [00:12:52] Speaker 00: PBV puts in a schedule that says they can do it. [00:12:55] Speaker 00: Then when there's a ward, then the lease starts, right? [00:12:59] Speaker 00: And then the terms, all of the lease terms come into play, which include the capability to have the schedule extended due to delays. [00:13:10] Speaker 02: And that, I think, is fairly standard. [00:13:12] Speaker 02: You have sun conditions. [00:13:14] Speaker 02: You have weather. [00:13:16] Speaker 02: Act of War. [00:13:18] Speaker 00: Your Honor, if government contracts were able to be overturned based on delay, I think we'd have an issue. [00:13:25] Speaker 00: Yes, of course, in the construction case, there's going to be capability for delay. [00:13:29] Speaker 00: So that's the first thing. [00:13:30] Speaker 02: The 24-month marker, subject to these turn-on delays that are provided for and would remain in the contract, is that your position? [00:13:40] Speaker 00: You have the 24 months, and then whatever else happens in terms of delays that are allowed pursuant to the contract, to the lease. [00:13:48] Speaker 00: So the lease provides, it's common sense. [00:13:51] Speaker 00: In a construction core, of course, that capability is there. [00:13:54] Speaker 00: So that's the first thing. [00:13:55] Speaker 00: Secondly, they talk about, well, there wasn't a date certain for the delivery under the lease. [00:14:01] Speaker 00: So again, at the point of the offers, they merely required showing a hypothetical 24-month delivery period. [00:14:06] Speaker 00: Then at the point of the lease execution, the beginning date of the lease contract is known, from which to calculate the 24 months later. [00:14:15] Speaker 00: But the specific date for delivery was not required to be set forth until 45 days after the lease execution. [00:14:22] Speaker 00: So that's at 3.21.3, appendix 73 and 101. [00:14:28] Speaker 00: So what that meant was, [00:14:29] Speaker 00: You got the contract. [00:14:31] Speaker 00: Then within 45 days, you go back to the VA and give the specific dates. [00:14:34] Speaker 00: Well, in that period of time, of course, things could already start to be enlarged. [00:14:38] Speaker 00: And in this case, we know that they were, because there was a lawsuit that PBV brought against the city of Bakersfield to try to stop the CICA [00:14:49] Speaker 00: Program which was a basically a fast-tracking the environmental compliance So PBV had that lawsuit filed just days before the award to SASD So so that that's there secondly they refer to the liquidation clause. [00:15:06] Speaker 00: They say there's no liquidation clause They're trying to back backtrack that in there the liquidation clause is in the contract there's nothing that shows that their liquidation clause was taken out and and and generally [00:15:18] Speaker 00: There's no change to the contract, and they argued there was. [00:15:21] Speaker 00: In fact, they made the argument of a de facto amendment to the delivery clause before the GAO, and GAO rejected it. [00:15:28] Speaker 00: They said, look, you haven't pointed to any evidence that there was any amendment to the contract, so we're rejecting that. [00:15:36] Speaker 00: It's Appendix 166, No. [00:15:38] Speaker 00: 12. [00:15:40] Speaker 00: PBB just admitted, and they did in their papers, that Amendment 4 left the 24-month delivery term in place. [00:15:49] Speaker 00: That's Appendix 44. [00:15:52] Speaker 00: They argued there was a change in the execution prior to the execution of the lease by citing to an email between SASD Mr. Doctor and VA's contracting officer. [00:16:08] Speaker 00: That email provides no support whatsoever to the notion that there was an amendment to the contract. [00:16:14] Speaker 00: So that email discusses moving the design aspect of the project forward [00:16:20] Speaker 00: to accommodate the environmental approval process. [00:16:23] Speaker 00: So that's within the lease, and of course within the lease includes the term allowing for an enlargement of the delivery date based on delays. [00:16:33] Speaker 00: And then they had a second part of that email, there was this notion of [00:16:36] Speaker 00: there was a discussion of payment in the event the project does not move forward. [00:16:40] Speaker 00: That's not evidence of a withdrawal of the 24-month delivery term. [00:16:46] Speaker 00: That's simply discussion that if the contract doesn't go forward, meaning it's terminated, that VA will pay SASD for their efforts to date. [00:16:54] Speaker 00: Nothing unusual about that. [00:17:01] Speaker 00: So the other prong of SASD's argument, excuse me, PBB's argument, is that SASD couldn't meet the 24-month delivery requirement. [00:17:09] Speaker 00: And why? [00:17:10] Speaker 00: Because they said it was mathematically impossible. [00:17:13] Speaker 00: And they say the SICA process takes too long. [00:17:16] Speaker 00: It takes one year for the agency to review. [00:17:18] Speaker 00: That's the California regulations that actually provide that an agency has to respond within one year. [00:17:24] Speaker 00: Well, that doesn't mean that because the agency has one year under the law to respond to a SICA application that it takes one year for a SICA application to apply. [00:17:33] Speaker 00: So it doesn't fall logically. [00:17:38] Speaker 00: Secondly, there wasn't a SICA requirement in its solicitation or the lease. [00:17:42] Speaker 00: So that component of the project wasn't required under the lease itself. [00:17:50] Speaker 00: And again, there's nothing unusual about it. [00:17:52] Speaker 01: Would it have been required by California law? [00:17:54] Speaker 00: What's that? [00:17:54] Speaker 01: Would it have been required by California law? [00:17:57] Speaker 00: Certainly. [00:17:57] Speaker 00: I mean, to develop on land. [00:17:59] Speaker 00: But in other words, there's an understanding that this is a process. [00:18:01] Speaker 00: We're not requiring you as an offer to drill down into the detail of a CECA versus an environmental report aspect of environmental compliance. [00:18:13] Speaker 00: The other thing is, they say that the 24-month schedule that SASD even provided, there's no way they could possibly have met that period. [00:18:26] Speaker 00: SASD schedule did show a delivery within 24 months. [00:18:31] Speaker 00: And part of the problem that PBV has is that there's an overlap where construction starts and when there's the design process and permitting process. [00:18:40] Speaker 00: There's actually some construction components that can start prior to the permitting, for instance, grubbing, things of that nature. [00:18:47] Speaker 00: So there was on SASD's schedule the capability to meet the 24-month [00:18:53] Speaker 00: project, even within a year permitting process. [00:18:57] Speaker 00: Roughly a year, I think it was 11 months. [00:19:00] Speaker 00: But then if you look at SESB's schedule, it didn't take 24 months for the literal construction, 16 months. [00:19:09] Speaker 00: So there was this period of time where there wasn't going to be construction on day one. [00:19:13] Speaker 00: And if you look at PBV's schedule, you'll see that I think they put in about a year for the physical construction. [00:19:21] Speaker 00: So with the presentation of SASD scheduled to the VA, VA reasonably understood that SASD was going to be able to meet the 24-month term. [00:19:33] Speaker 00: And again, the delays that are the result of PBV's lawsuit against the city of Bakersfield regarding the issue of the mitigated negative declaration. [00:19:42] Speaker 00: So it's sort of a self-fulfilling stance in terms of there being a delay. [00:19:49] Speaker 00: We're going to talk briefly about this notion of what PVV knew and when it knew it. [00:19:55] Speaker 00: It admits that it knew the impossibility in May of 2020 that there could not be a 24-month delivery period. [00:20:05] Speaker 00: It didn't protest the term until May of 2021, and that's when the GAO. [00:20:10] Speaker 00: That's only after the April 26-21 award to SASD. [00:20:16] Speaker 00: So you really have to look at what PBB did here. [00:20:19] Speaker 00: It submitted one offer for a newly constructed clinic and two offers for the rehabilitation of his existing clinic. [00:20:26] Speaker 00: That way, PBB won the award for the new construction offer. [00:20:30] Speaker 00: It would not have to protest the 24-month delivery term. [00:20:33] Speaker 00: But if it did not win the award for the newly constructed clinic, [00:20:35] Speaker 00: It could argue that the term was defective and that such could not be enforced. [00:20:39] Speaker 00: And in that instance, PVB argues that only its two offers for rehabilitation of the pre-existing clinic could meet the 24-month delivery term. [00:20:49] Speaker 00: That's exactly the heads I win, tails you lose paradigm that the waiver rule as developed by this court was meant to preclude. [00:21:01] Speaker 04: Thank you, Mr. Robinson. [00:21:04] Speaker 04: Ms. [00:21:04] Speaker 04: Burroughs has a minute or so. [00:21:08] Speaker 05: Good afternoon. [00:21:09] Speaker 05: May it please the court? [00:21:11] Speaker 04: Not quite afternoon yet. [00:21:13] Speaker 05: Almost. [00:21:15] Speaker 05: Katherine Burroughs on behalf of Intervenor SASD Development Group. [00:21:19] Speaker 05: I know I only have a minute, so I just want to make a couple quick points. [00:21:25] Speaker 05: There was a statement earlier that it was the contracting officers [00:21:31] Speaker 05: reserve the right to award In the contract whether or not they were going to do the 20 months or 24 months or what the lease term was going to be so on and so forth But that's really not a an accurate reading of the of the solicitation amendment for Removed the opportunity all opportunities for a 20 month Construction period and also for a 15 month lease term so the only thing that was left is the 24 months [00:22:02] Speaker 05: Delivery within 24 months of it than the 20-year lease and This is section one term is 1.4. [00:22:11] Speaker 05: The solicitation is that appendix 40? [00:22:15] Speaker 05: And it says a contracting officer reserves the right to award on any available alternate listed above so There was no I can just do whatever I want and if I want to make it 36 months I can make it 36 months the only option here was the 24 months and [00:22:30] Speaker 05: And then just to make one other comment about the the undeveloped versus the developed land in their initial brief PPV Only talks about new construction that's on page 8 their summary of the argument and then in their reply brief [00:22:55] Speaker 05: On page two, they sneak in here some reference to undeveloped land. [00:22:59] Speaker 05: But there's no site to anything in the record that discusses newly developed land. [00:23:05] Speaker 05: The only thing in the record talks about newly constructed. [00:23:09] Speaker 05: And that's on appendix page, let's see, 424, I think it is. [00:23:22] Speaker 05: Yeah, appendix page 54 talks about a newly constructed building, which was one of the three offers that PPB made. [00:23:30] Speaker 05: There was no discussion about undeveloped land, and there's nothing in the record to that point. [00:23:35] Speaker 04: Thank you, Council. [00:23:37] Speaker 04: Ms. [00:23:37] Speaker 04: Jochum has some little time. [00:23:41] Speaker 06: Thank you, Your Honors. [00:23:43] Speaker 06: I hesitate to rebut too much a lot of the facts we've discussed, because they are well post-proposal submission, and this is a case about waiver. [00:23:53] Speaker 06: Whether or not the claims court on remand with access to the full administrative record would be the proper court to determine whether or not a waiver of the 24-month delivery requirement actually occurred. [00:24:07] Speaker 03: So prior to May 2020, [00:24:10] Speaker 03: Did PVD know that it and no one else would be able to meet the terms of the solicitation? [00:24:20] Speaker 06: No, absolutely not, Your Honor. [00:24:22] Speaker 06: And it's not even accurate. [00:24:23] Speaker 06: Mr. Roberson said that only PBV could offer a renovation. [00:24:27] Speaker 06: That is not correct. [00:24:29] Speaker 06: PPV is the only offer that is currently the lessor of the existing veterans clinic But the SFO allowed for renovation of any existing building any offer offering a renovation could have met the 24-month delivery requirement and again not to veer too much into this but also any offer that was not Offering construction on raw land requiring zoning permitting and navigation of these very complex environmental issues and [00:25:01] Speaker 03: So when you filed your May 2020 protest with GAO, it seems to me that it's clear that the PBV told the GAO that it knows that it's not possible for anyone to deliver a brand new clinic in 24 months or less. [00:25:20] Speaker 06: New construction on raw land was the statement that was made to GAO. [00:25:25] Speaker 06: And that at that time was our argument that SASD could not meet the requirement and a number of other prospective offers, none of whom submitted proposals. [00:25:37] Speaker 06: But that did not cover the entire universe of potential offers. [00:25:41] Speaker 06: Again, there are other potential bidders for renovation. [00:25:44] Speaker 03: But it covered that protest. [00:25:46] Speaker 06: It covered SASD. [00:25:48] Speaker 03: So as we were arguing... He called that protest, and that's the protest we're looking at. [00:25:52] Speaker 03: And it seems to me that Blue and Gold would apply there. [00:25:56] Speaker 03: You filed the protest after the order had been made. [00:26:00] Speaker 06: But again, Your Honor, that's not a solicitation flaw. [00:26:04] Speaker 06: PPV could meet the requirement. [00:26:06] Speaker 06: Just because another offeror couldn't doesn't mean there was a flaw in the solicitation. [00:26:11] Speaker 06: From PPV's perspective, that is a benefit of the solicitation. [00:26:14] Speaker 06: It narrows the competition. [00:26:15] Speaker 06: It's not a flaw. [00:26:17] Speaker 06: At that time, we were arguing not even waiver of the 24-month delivery requirement, because we didn't have the facts to make those arguments. [00:26:24] Speaker 06: We were simply arguing that SASD could not meet this requirement. [00:26:29] Speaker 06: And therefore, the government must have unreasonably evaluated SESD. [00:26:34] Speaker 06: And so we had to present our facts. [00:26:35] Speaker 06: Why do we believe that SESD couldn't meet the requirement? [00:26:40] Speaker 06: And we believe that, based on our knowledge of construction in Kern County and Bakersfield, that no offer, including SASD, could deliver new construction on raw land within 24 months. [00:26:52] Speaker 03: And you told the GAO that in May 2020. [00:26:55] Speaker 06: That's correct, Your Honor. [00:26:56] Speaker 06: But again, that's not a solicitation flaw. [00:26:59] Speaker 06: That's certainly a solicitation requirement that limits competition. [00:27:02] Speaker 06: But that's not a flaw. [00:27:04] Speaker 06: That's not something that we would or could object to. [00:27:11] Speaker 06: Your honor your honors a couple facts about the the language that was used here I think it's interesting that we're already talking about Hypothetical delivery dates construction delays and there was again a very hefty liquidated damages provision in this lease eighty five hundred dollars a day for failure to meet the delivery requirements there is a difference to between post performance delay and [00:27:39] Speaker 06: which is a matter of contract administration and pre-award waiver of a solicitation requirement. [00:27:46] Speaker 06: And we argued and demonstrated based on information in the administrative record that there was pre-lease execution waiver. [00:27:54] Speaker 06: Whether or not delays were possible or permissible or what would happen with delays in construction during performance, again we did not challenge that. [00:28:02] Speaker 06: That is a matter of contract administration. [00:28:04] Speaker 06: We argued that the record in front of the claims court, in the administrative record at time of lease execution, demonstrated the waiver. [00:28:15] Speaker 02: This issue of raw land versus developed land, or whatever the term is, could you raise this in your brief site? [00:28:25] Speaker 02: The only reference having anything to do with this that I could find was that on page two of the reply brief, there's reference to newly built clinic on previously undeveloped land. [00:28:38] Speaker 02: But what did you say about this distinction between what PBV could do versus what SASB could do with respect to developed or undeveloped land? [00:28:52] Speaker 02: I didn't see that anywhere in the briefs. [00:28:54] Speaker 06: Yes, Your Honor. [00:28:54] Speaker 06: We really didn't get into that. [00:28:56] Speaker 06: None of the parties did, because that's an issue on the merits, for the merits. [00:29:01] Speaker 06: The government did cite in their briefs. [00:29:03] Speaker 02: I'm not sure it doesn't bear significantly on the question of whether this was a flaw in the solicitation. [00:29:11] Speaker 02: You're now suggesting that, well, this 24 months wasn't a problem for us. [00:29:17] Speaker 06: Well, it wasn't a problem for us, even if it was. [00:29:20] Speaker 06: Developed, undeveloped, whatever, because we proposed renovations and others could as well. [00:29:25] Speaker 02: No, no, no. [00:29:26] Speaker 02: But with respect to the 24 months, I take it you're saying that would be equally a problem for you as it would be for SASD, setting aside the developed land and raw land. [00:29:38] Speaker 06: Potentially for one of our three proposals. [00:29:42] Speaker 02: I understand that. [00:29:43] Speaker 02: But I'm focusing on the one proposal of the 24 months. [00:29:46] Speaker 02: So let's focus on that. [00:29:48] Speaker 02: OK. [00:29:48] Speaker 02: With respect to that proposal. [00:29:50] Speaker 02: Are you saying that you could have done that? [00:29:54] Speaker 02: Yes, Your Honor. [00:29:55] Speaker 02: And does that invoke the developed land versus raw land distinction? [00:30:00] Speaker 06: Yes, Your Honor, it does. [00:30:01] Speaker 06: Where is it in your brief? [00:30:05] Speaker 06: So the first time that we brought up this issue in the May GAO protest, we stated that we knew SESD could not meet this requirement because it was new construction on raw land. [00:30:18] Speaker 06: Our new construction proposal [00:30:20] Speaker 06: was not for raw land. [00:30:22] Speaker 06: It's developed land, doesn't require permitting, doesn't require zoning, doesn't require the environmental issues that we allege that the claims court was holding up and would hold up SASD. [00:30:32] Speaker 02: But none of that is in your briefs. [00:30:33] Speaker 06: Your Honor, truly, I believe all of this is on the merits. [00:30:37] Speaker 06: And so I apologize if I didn't address it. [00:30:38] Speaker 06: But to me, the question was, what did we know prior to proposal submission? [00:30:43] Speaker 06: And what we knew at that time was that the 24-month delivery requirement would eliminate some potential competitors, but not us. [00:30:51] Speaker 02: But you didn't tell us that in your briefs. [00:30:55] Speaker 06: Your Honor, respectfully, I disagree. [00:30:58] Speaker 02: Where is it in your briefs? [00:31:00] Speaker 06: Well, Your Honor, we explained that we were not saying there was a flaw in the solicitation. [00:31:04] Speaker 06: We were arguing that SESD and potentially others could not meet this requirement. [00:31:12] Speaker 03: Well, I read the record to show that PVD told the GAO that it, quote, it knows that it's not possible for anyone to deliver a brand new clinic in 24 months or less. [00:31:25] Speaker 03: That would include you. [00:31:27] Speaker 06: On raw land, Your Honor. [00:31:28] Speaker 06: I mean, that quotation is in the government's brief, I know. [00:31:32] Speaker 06: And I mentioned it in our reply brief. [00:31:34] Speaker 06: I apologize for not having emphasized it. [00:31:37] Speaker 06: From our perspective, [00:31:39] Speaker 06: There is definitely a difference between the new construction that we offered and the land. [00:31:43] Speaker 06: That's clear from the record before the claims court because it's the why. [00:31:48] Speaker 06: Why couldn't SASD deliver? [00:31:51] Speaker 06: Because of the environmental issues, because of the zoning issues, because of the permitting issues, none of which are relevant to us. [00:31:57] Speaker 06: Also, it's highly relevant that we propose two renovation options. [00:32:02] Speaker 06: Even if, theoretically, our new construction proposal were excluded for waiver, we had two other proposals that were unrelated to this argument, totally unrelated to the inability to do new construction in 24 months. [00:32:18] Speaker 06: Again, this is not a solicitation flaw. [00:32:21] Speaker 06: This is a waiver of a requirement right prior to the time of lease execution.