[00:00:00] Speaker 00:
21-2279 Sagaam.

[00:00:04] Speaker 00:
versus the United States.

[00:00:06] Speaker 00:
Mr. Rayan.

[00:00:08] Speaker 07:
Thank you, Your Honor.

[00:00:09] Speaker 07:
May it please the Court.

[00:00:11] Speaker 07:
This Court has made clear that the Court of Federal Claims must review corrective action decisions using a highly deferential, arbitrary, and suspicious standard.

[00:00:18] Speaker 07:
Under this standard, the trial court is not permitted to substitute its own judgment for that at the agency.

[00:00:23] Speaker 07:
And it's certainly not permitted to impose its own corrective action when it disagrees with the corrective action taken by the agency.

[00:00:28] Speaker 00:
OK, so before we get started into the heart of this complaint, can we ask you a few threshold

[00:00:32] Speaker 00:
procedural questions.

[00:00:34] Speaker 00:
You argued below at some point that this would have been the reason you shouldn't issue an injunction is that it would make it all moot.

[00:00:47] Speaker 00:
Why is this case not moot?

[00:00:50] Speaker 07:
Well because the court can still grant effectual relief to the government here on appeal.

[00:00:55] Speaker 00:
Let me ask you, we had the first year of the contract, that's over.

[00:01:00] Speaker 00:
Could the government not, in its own discretion, have not agreed to have any of the four-year renewals after that and just ended it there?

[00:01:14] Speaker 00:
And if it had ended there, wouldn't the whole injunction be done and over with?

[00:01:22] Speaker 07:
I don't know that the government, under at least certainly the spirit of the court's injunction, could have simply ended the contract upon the basis that it wants to proceed with a re-solicitation that allows towards the end of the contract.

[00:01:37] Speaker 03:
Under the contract, the government has the sole discretion to decide whether to pick up the option, correct?

[00:01:45] Speaker 07:
That's true.

[00:01:45] Speaker 03:
That's true, yeah.

[00:01:46] Speaker 03:
So at the end of the contract is currently in an option year, right?

[00:01:52] Speaker 03:
Yes.

[00:01:53] Speaker 03:
OK.

[00:01:53] Speaker 03:
So I think it's March 31 comes to an end.

[00:01:57] Speaker 03:
So if the government elects not to pick up the option, the contract terminates, right?

[00:02:05] Speaker 07:
That would be true.

[00:02:06] Speaker 03:
It's technical.

[00:02:09] Speaker 03:
It isn't canceled.

[00:02:10] Speaker 03:
It terminates.

[00:02:13] Speaker 07:
Right.

[00:02:13] Speaker 07:
The contract, if the government didn't pick up the option.

[00:02:16] Speaker 03:
And you're not enjoying from terminating the contract.

[00:02:20] Speaker 07:
Well, we're not enjoying from terminating the contract if, say, Sagam was performing poorly or for some reason like that.

[00:02:29] Speaker 03:
If you elect not to pick up the option, the end of the performance, right, the contract is terminated.

[00:02:39] Speaker 07:
Right, but under the trial court's injunction, I mean, the trial court enjoined.

[00:02:43] Speaker 00:
So you think that under the trial, is it your view that under the trial court's injunction, you are required, absent something else messing up, to abhor sagam all of the options and go through the entire five year period?

[00:02:57] Speaker 07:
What we don't think is permissible under the trial court's order is to not pick up an option on Sagam's contract because the agency wants to proceed with a resolicitation for the same reasons that it did before and to then proceed with the resolicitation.

[00:03:14] Speaker 07:
So the trial court did enjoin us from proceeding with the resolicitation.

[00:03:18] Speaker 00:
So you feel like if the government's position is you have to go through all five years,

[00:03:22] Speaker 00:
in the absence of them doing something else that would allow you to not renew it.

[00:03:27] Speaker 00:
But under this injunction, the injunction would hold for a five-year period, not just for a one-year period.

[00:03:32] Speaker 07:
That's correct.

[00:03:33] Speaker 00:
Yes.

[00:03:34] Speaker 03:
Why is that so?

[00:03:36] Speaker 03:
I mean, it's the follow-through that you elect not to pick up an option.

[00:03:41] Speaker 03:
The contract is terminated.

[00:03:43] Speaker 03:
And let's say the agency decides then to have a new RFP.

[00:03:48] Speaker 03:
Why would they be enjoined from having a new RFP?

[00:03:52] Speaker 07:
Because the trial court expressly stated it's enjoined from canceling the solicitation and from re-soliciting the contract requirement.

[00:03:59] Speaker 03:
They wouldn't be re-soliciting the contract.

[00:04:02] Speaker 03:
It's a different set of contract requirements when they put out a new RFP.

[00:04:05] Speaker 07:
Well, that would have been the same before as well.

[00:04:08] Speaker 03:
We don't know that.

[00:04:09] Speaker 03:
We don't know that.

[00:04:10] Speaker 03:
That's part of the problem is we don't know what the agency's re-solicitation proposal was.

[00:04:16] Speaker 07:
That's true, Your Honor.

[00:04:17] Speaker 07:
And I don't understand the trial court's injunction to say that you can re-solicit as long as you change a few things in the re-solicitation.

[00:04:27] Speaker 07:
That certainly was not understanding the trial court's injunction, and I don't think that would be sad.

[00:04:32] Speaker 03:
The way in which the contracting officer was talking, we're going to re-solicit, and it's going to take the same request for proposal and put it out and say, try it again.

[00:04:41] Speaker 03:
No, that's not what the... We need a case of controversy here to proceed.

[00:04:49] Speaker 03:
What's your gripe with Sagan?

[00:04:54] Speaker 03:
Sagan sued you, right?

[00:04:57] Speaker 03:
Yes.

[00:04:57] Speaker 03:
What's the dispute?

[00:04:59] Speaker 03:
As you said in your motion for a partial stay, you had no longer had any disagreements with Sagan.

[00:05:07] Speaker 07:
No, we didn't exactly say that, I don't think.

[00:05:11] Speaker 07:
We said that we were concerned that there'd be risk, substantial risk, that on appeal, the court would find this case moved.

[00:05:17] Speaker 07:
We now believe that statement was in error.

[00:05:21] Speaker 03:
But because we're enjoined from re-soliciting- You said you would no longer have any dispute with Sagan about the award decision.

[00:05:29] Speaker 07:
About the award decision, but there's still the re-solicitation issue in the injunction.

[00:05:35] Speaker 05:
You said that statement is now in error.

[00:05:37] Speaker 05:
Why do you believe the statement is now in error?

[00:05:39] Speaker 07:
Because we don't believe this case is moot, and we don't believe that's even a substantial question.

[00:05:44] Speaker 07:
Why isn't it moot?

[00:05:45] Speaker 07:
Because the court has enjoined us from re-soliciting.

[00:05:47] Speaker 07:
And unless this injunction is overturned, the agency can't re-solicit on the grounds that the court has erroneously required.

[00:05:54] Speaker 03:
So at the end of five years, they can't re-solicit the contract?

[00:05:59] Speaker 07:
Well, no.

[00:06:00] Speaker 03:
Why not?

[00:06:02] Speaker 03:
Why isn't that your argument?

[00:06:04] Speaker 07:
I mean, honestly, looking just at the pure language of the injunction, you can make that argument.

[00:06:08] Speaker 07:
We don't think that's a reasonable reading.

[00:06:10] Speaker 00:
So what is the government's reading?

[00:06:12] Speaker 00:
That for the original contract and for the four-year renewal, the injunction applies and you can't re-solicit.

[00:06:19] Speaker 00:
But once that five-year period has lapsed, are you reading the injunction to say in perpetuity you could never re-solicit?

[00:06:29] Speaker 00:
No, we don't.

[00:06:30] Speaker 00:
Or is it the five-year mark that you say,

[00:06:32] Speaker 00:
the injunctions terminate?

[00:06:35] Speaker 07:
Right.

[00:06:35] Speaker 07:
We understand the not re-soliciting to be through as long as Sagam's current contract is going on, but we don't believe that under the injunction, we can decline to exercise an option or terminate Sagam's contract upon the basis that we believe the proper corrective action is to go forward with a re-solicitation without this qualified tort.

[00:06:55] Speaker 03:
Well, that's a matter of interpreting the injunction, right?

[00:06:57] Speaker 07:
Yes.

[00:06:58] Speaker 03:
So we could interpret it differently if we didn't agree with you.

[00:07:02] Speaker 03:
You could, we don't think that would be... Once the contract is fully terminated at the end of five years, then I think you agree that there's no... If this were now, if the contract had just finished at five years, you would be conceding movements, right?

[00:07:19] Speaker 07:
Yes, I think that would be the case if this was... Why is it any different when the contract comes to an end?

[00:07:25] Speaker 03:
Because the government says we don't want it's over.

[00:07:28] Speaker 03:
We don't want to renew.

[00:07:29] Speaker 03:
And it's our sole and exclusive right in our discretion to do that.

[00:07:35] Speaker 07:
We don't read the trial court's orders allowing us to end Staggum's contract upon the basis that it wants to go forward with a different corrective action, the original corrective action they proposed.

[00:07:46] Speaker 03:
Well, we don't know.

[00:07:47] Speaker 03:
It may decide that they're going to close the embassy.

[00:07:50] Speaker 03:
We don't know why the agency would decide

[00:07:54] Speaker 03:
what it would do once it decided that it didn't want to continue with the option.

[00:07:58] Speaker 07:
Sure, that's speculative.

[00:07:59] Speaker 07:
And if that were to happen, then yes, the case would be moot if the agency were to terminate for a reason such as that.

[00:08:07] Speaker 07:
But it's ongoing right now.

[00:08:08] Speaker 00:
If we were to reverse, if we were to grant you the relief that you were seeking,

[00:08:13] Speaker 00:
What happens then in terms of is there any remedy for what's happened until today?

[00:08:20] Speaker 00:
I mean for tourists or a harm to sag them.

[00:08:25] Speaker 00:
Do you try to recoup the money and?

[00:08:27] Speaker 00:
unreal this or Do you agree if we reverse starting tomorrow what that does is give the ability to?

[00:08:35] Speaker 00:
Terminate the contract and move forward

[00:08:37] Speaker 07:
Right.

[00:08:38] Speaker 07:
It's the latter.

[00:08:38] Speaker 07:
My understanding is the agency would then start the process of preparing for a resolicitation and then terminate or not extend Sagam's contract at the end of that process.

[00:08:51] Speaker 00:
One of the things that's been most confusing about this case is you're throwing in mitigation.

[00:08:57] Speaker 00:
but never explaining it.

[00:09:00] Speaker 00:
So your position, as I understand it before us, is, well part of the problem with what the Court of Federal Claims did is we didn't have an opportunity, we may have mitigated.

[00:09:12] Speaker 00:
You still kind of have that all in terms of speculation.

[00:09:16] Speaker 00:
So in your view, if we will reverse, what, if any, obligation do you have to mitigate?

[00:09:22] Speaker 00:
And who, if anyone, gets to review whether the mitigation is adequate, given the circumstances of the property?

[00:09:31] Speaker 07:
Yeah, under FAR 1.602-2, the contracting officer would have

[00:09:35] Speaker 07:
both the right and duty to explore whether there should be any mitigation measures as a result of the disclosure that occurred in the prior procurement, and to conduct a reasonable impairment.

[00:09:46] Speaker 00:
OK.

[00:09:46] Speaker 00:
And what if they decide, no, we don't need any mitigation?

[00:09:50] Speaker 00:
It doesn't go back to Judge Sweeney maybe gone by then.

[00:09:53] Speaker 00:
But is that not reviewable under any standard by the Court of Federal Claims?

[00:09:58] Speaker 00:
If you decide we can go forward with the contract, even given these problems that preceded it,

[00:10:04] Speaker 00:
and no mitigation is entitled.

[00:10:07] Speaker 00:
Is that reviewable by anyone?

[00:10:10] Speaker 07:
Yes, that would be reviewable.

[00:10:11] Speaker 00:
So then it just goes up here again, and the court says what it had already said in two opinions, which is, I can't see any way to mitigate this.

[00:10:21] Speaker 00:
And then you lose.

[00:10:21] Speaker 00:
So then we're here again two years from now.

[00:10:25] Speaker 07:
Not necessarily, Your Honor, because at that point, it's possible.

[00:10:29] Speaker 07:
It's possible.

[00:10:29] Speaker 07:
But at that point, we would have the new solicitation, which may have different terms before it that may, I mean, maybe the laws change.

[00:10:37] Speaker 07:
We don't know what's going to happen with the new solicitation.

[00:10:40] Speaker 07:
We didn't know that before the trial court.

[00:10:42] Speaker 07:
So that's why it was inappropriate for the trial court to cut off the agency's opportunity to take these new mitigation measures and instead to disqualify an innocent offender from the procurement.

[00:10:51] Speaker 00:
But it wasn't up to you.

[00:10:51] Speaker 00:
The question is, who should do what then?

[00:10:54] Speaker 00:
And now it's years past.

[00:10:55] Speaker 00:
But at the time, it was all ready fresh.

[00:10:58] Speaker 00:
So why did the government not have an obligation to say, to be straight up and say, no, the issue before you is we don't want to do any mitigation.

[00:11:08] Speaker 00:
And then she could decide that.

[00:11:10] Speaker 00:
If they said, we might want to do mitigation, then she has to back off and say, well, I have to wait three years and see what mitigation you come up with and see if it's more satisfactory.

[00:11:20] Speaker 00:
You didn't give her any meat on the bones here, right?

[00:11:23] Speaker 07:
Because the question before the court under Axiom, Florida Power, and like these decisions was simply whether the agency's cancellation decision was rational or not.

[00:11:33] Speaker 03:
It's not just a cancellation decision.

[00:11:36] Speaker 03:
It's cancellation and re-soliciting

[00:11:39] Speaker 03:
of Torres involved.

[00:11:42] Speaker 03:
So that's the part of the problem here, is that the question is whether the corrective action was rational, right?

[00:11:50] Speaker 07:
Yes.

[00:11:51] Speaker 03:
Okay.

[00:11:52] Speaker 03:
So part of the corrective action was to re-solicit with Torres involved.

[00:11:57] Speaker 07:
Yes.

[00:11:58] Speaker 03:
Right.

[00:11:58] Speaker 03:
So what was the rationale for allowing Torres to proceed in a re-solicitation with no attempt to mitigate

[00:12:09] Speaker 03:
the problem.

[00:12:10] Speaker 07:
But that decision hadn't been needed.

[00:12:12] Speaker 03:
What was the rationale?

[00:12:13] Speaker 03:
The contracting officer in the agency proposed to resolicit with Torres involved.

[00:12:19] Speaker 03:
Yes.

[00:12:20] Speaker 03:
Knowing that Torres had information it shouldn't have.

[00:12:25] Speaker 03:
Knowing that it could use that information in the resolicitation, information it didn't have.

[00:12:32] Speaker 03:
What part of the correction of action was designed to neuter

[00:12:37] Speaker 03:
Toria's possession of that information.

[00:12:40] Speaker 07:
The agency hadn't addressed that yet because there was no new solicitation.

[00:12:43] Speaker 03:
There was nothing in the administrative record.

[00:12:46] Speaker 07:
Because the agency hadn't addressed it yet.

[00:12:47] Speaker 03:
Why didn't they address it?

[00:12:50] Speaker 07:
For one thing, there's nothing in the FAR that requires them to address a new solicitation at that time.

[00:12:55] Speaker 03:
If they're going to propose a resolicitation that's unlawful.

[00:13:00] Speaker 07:
But they haven't set forth the terms of that solicitation yet.

[00:13:03] Speaker 07:
We don't know whether that solicitation was in law.

[00:13:06] Speaker 00:
Well, wasn't that your burden?

[00:13:07] Speaker 00:
How else was she to decide whether or not your action was, you had a rational basis for cancellation?

[00:13:14] Speaker 00:
Is it part and parcel of whether or not the contract should have been canceled or not?

[00:13:21] Speaker 00:
It's intertwined in my mind.

[00:13:23] Speaker 00:
That issue about whether or not there's appropriate corrective action with the re-solicitation is intertwined with whether or not Taurus is going to get to participate or be disqualified.

[00:13:33] Speaker 03:
And it was held to be intertwined.

[00:13:36] Speaker 03:
And you tried to object to that by saying it wasn't right, the second part.

[00:13:41] Speaker 03:
You lost that.

[00:13:42] Speaker 03:
You haven't appealed the intertwined nature of the corrective action, which is cancel, re-solicit with Taurus involved with no attempt

[00:13:53] Speaker 03:
to cure.

[00:13:55] Speaker 03:
So just let me tell you where I'm from.

[00:13:57] Speaker 03:
A rationale to proceed with Torres with no attempt to cure is arbitrary and capricious, per se.

[00:14:08] Speaker 03:
And then there was nothing at zero in the administrative record about mitigation, correct?

[00:14:16] Speaker 03:
You said that in your brief.

[00:14:19] Speaker 07:
That's correct, Your Honor.

[00:14:20] Speaker 07:
Our position is that the court's excuse me.

[00:14:23] Speaker 03:
The duty of the court was to judge the rationale, the rationality of the corrective action based on the administrative record.

[00:14:34] Speaker 03:
And you have an administrative record that offers zero rationale for the resolicitation.

[00:14:41] Speaker 03:
It has to be arbitrary and if we if we accept if we accept that position I mean we believe we take when you try to separate resolicitation from cancellation and Arguing you weren't there.

[00:14:57] Speaker 03:
It was your colleague because he said well It's not right the whole question about the resource sections and right you shouldn't be considering that now should only be looking at the cancellation

[00:15:06] Speaker 03:
She disagreed and held that they were two, were in an extradite combined.

[00:15:10] Speaker 03:
You have not appealed that really.

[00:15:12] Speaker 07:
We've taken the position in this appeal that canceling the solicitation was sufficient to remedy for this procurement.

[00:15:19] Speaker 03:
But you have not appealed the fact that the two pieces of the corrective action were tied together.

[00:15:23] Speaker 07:
We haven't appealed on rightness.

[00:15:25] Speaker 03:
But Your Honor, if we accept your- When you haven't done that, explain to me what the rationale in the record is for re-soliciting with Tories on the board.

[00:15:36] Speaker 07:
Well, the rationale for re-soliciting.

[00:15:38] Speaker 03:
Tell me the record.

[00:15:38] Speaker 03:
What is it?

[00:15:40] Speaker 07:
It would be that Torres is an innocent offeror here.

[00:15:42] Speaker 07:
There's nothing in the record that suggests Torres has done anything wrong.

[00:15:45] Speaker 07:
The decision by the contracting officer was that state did something wrong here in providing this information to Torres.

[00:15:52] Speaker 07:
Torres did nothing wrong in responding to that information.

[00:15:58] Speaker 03:
We know that.

[00:16:00] Speaker 03:
We know that Torres didn't do anything wrong.

[00:16:02] Speaker 07:
So it's really a judgment call then for the agency as to how to mitigate.

[00:16:06] Speaker 03:
If the government poisons the well on tourism, tourism may have a cause of action against the government for poisoning the well.

[00:16:15] Speaker 07:
No, I mean, the agency has the discretion to take the proper corrective action here.

[00:16:20] Speaker 07:
And part of the factor that goes into that is did Torres do anything wrong here?

[00:16:26] Speaker 07:
That's a factor that the agency should consider in deciding whether it's going to disqualify Torres from a five-year contract.

[00:16:33] Speaker 00:
So I'm going to give you time to just speak on your own.

[00:16:36] Speaker 00:
But if you could include in that.

[00:16:39] Speaker 00:
You're telling us, Torres did nothing wrong.

[00:16:41] Speaker 00:
Does that mean that essentially she should have assumed that he was going to be allowed to participate?

[00:16:47] Speaker 00:
So anyway, I'm done.

[00:16:48] Speaker 00:
I'm not going to ask.

[00:16:49] Speaker 00:
You get, your clock is done.

[00:16:51] Speaker 00:
You get minutes or as long as you need to respond to all the questions that have been put to you by the bench.

[00:16:58] Speaker 07:
Sure, Your Honor.

[00:17:00] Speaker 07:
The agency made a rational decision here that it wasn't going to disqualify an innocent offer.

[00:17:07] Speaker 07:
I mean, it's a fact that the agency should consider that cancellation is an option as is disqualification.

[00:17:14] Speaker 07:
In this case, where Torres has done nothing wrong, disqualification seems an unduly harsh remedy for Torres.

[00:17:21] Speaker 07:
And that's a judgment call, a value judgment for the agency to make, not for the court of federal claim.

[00:17:26] Speaker 00:
But is that reviewable by the court of federal claim?

[00:17:29] Speaker 07:
It's reviewable under the highly deferential arbitrary and capricious standard, but it's not arbitrary and capricious for the agency to make a value judgment that we shouldn't disqualify an innocent offer from a procurement.

[00:17:39] Speaker 07:
And even if we were to accept the premise that Judge Klobuchar had laid out earlier, that this

[00:17:46] Speaker 07:
that the agency should have had mitigation measures in its original corrective action, well then the answer to that is to either remand to the agency for further consideration of those mitigation measures or to simply set aside the cancellation, which would allow the agency to take any rational action from there.

[00:18:06] Speaker 03:
Let me ask you a question.

[00:18:08] Speaker 03:
Does the agency always get a remand when it's proven that their rationale was not rational?

[00:18:14] Speaker 03:
Right, because yes.

[00:18:16] Speaker 03:
Just follow me.

[00:18:17] Speaker 03:
If the case comes up, the question is, was the agency's action rational?

[00:18:23] Speaker 03:
You look at it and say, no, it's not rational.

[00:18:26] Speaker 03:
Does the court of claim require to say, OK, we'll send it back and see if you can come up with a better rationale?

[00:18:32] Speaker 07:
Ordinarily, yes.

[00:18:34] Speaker 07:
There may be some exceptional circumstances.

[00:18:36] Speaker 07:
Ordinarily, yes.

[00:18:39] Speaker 07:
Yes, Florida Power and Light is the leading case, the Supreme Court case that we cited in our brief that says exactly that, that the trial court doesn't get to make

[00:18:49] Speaker 07:
Just because the trial court found that the agency didn't consider a relevant factor or it was irrational for some other reason, that doesn't give the trial court the ability to make a de novo determination of what the proper action should be by the agency.

[00:19:03] Speaker 07:
Axiom stands for essentially the same proposition.

[00:19:06] Speaker 07:
We're reviewing the decision that the agency made.

[00:19:09] Speaker 07:
We're not deciding what the best corrective action here is or even what

[00:19:14] Speaker 07:
you know, the only corrective action could potentially be.

[00:19:18] Speaker 07:
Because this is a discretionary determination.

[00:19:20] Speaker 03:
We're reviewing the agency's action.

[00:19:21] Speaker 03:
The agency action was to resolicit the contract with Torres participating.

[00:19:26] Speaker 07:
Yes.

[00:19:27] Speaker 07:
That was part of it.

[00:19:29] Speaker 07:
And if that was irrational without any mitigation measures in place, then the court should have remanded that to the agency so it can consider what mitigation measures should be in place so that it doesn't have to disqualify an innocent offer if it doesn't have to.

[00:19:44] Speaker 00:
And the agency was not under no obligation after this long period of time for discovery and hearing and everything else to say, in the alternative, if you say, we propose the following mitigation.

[00:20:01] Speaker 00:
Don't you think in a minimum, looking at this from the outside in, that the agency in all of this hearing and this proceeding, if they knew what the issues were, the agency should have come up

[00:20:13] Speaker 00:
with whatever mitigation.

[00:20:14] Speaker 00:
I mean, now what you're suggesting is we go through 10 years of litigation.

[00:20:19] Speaker 00:
We've had this.

[00:20:20] Speaker 00:
We send it back.

[00:20:21] Speaker 00:
Then the agency decides if it's going to mitigate.

[00:20:24] Speaker 00:
If it says no, it's going to go back up to the court of claims.

[00:20:27] Speaker 00:
And presumably, she's going to do the same thing.

[00:20:30] Speaker 00:
If it comes up with some mitigation, then you're going to go and make arguments to the court of federal claims.

[00:20:35] Speaker 00:
Don't you think the way to proceed here is if the agency is

[00:20:40] Speaker 00:
on the ropes and saying, we are not going to disqualify Torres.

[00:20:44] Speaker 00:
But you haven't even said in your briefs, all you say is, but we may do mitigation.

[00:20:51] Speaker 00:
You haven't even said, we have mitigation efforts, and we think they are satisfactory.

[00:20:57] Speaker 00:
So we should have an opportunity to have those reviewed.

[00:21:00] Speaker 00:
You're just speculating to us that maybe you will do mitigation, and maybe you won't.

[00:21:04] Speaker 00:
Have you seen the problem?

[00:21:06] Speaker 07:
But to argue that the court should affirm because we have these mitigation measures that we're willing to put in place now, that would violate the Trenary Doctrine.

[00:21:14] Speaker 00:
Do you have mitigation numbers that you're willing to put in place?

[00:21:16] Speaker 00:
Because I read the briefs.

[00:21:17] Speaker 00:
Show me in the briefs.

[00:21:18] Speaker 00:
Because all I see are mays and maybes.

[00:21:22] Speaker 00:
I don't see.

[00:21:23] Speaker 00:
Did you say in your brief, we have mitigation measures that we want to put in, and therefore you should remand us?

[00:21:29] Speaker 07:
We did not affirmatively state that state will take certain mitigation measures.

[00:21:34] Speaker 07:
You're correct.

[00:21:36] Speaker 07:
We gave some examples of measures that state may take.

[00:21:39] Speaker 03:
But note, too, you had two suggestions.

[00:21:41] Speaker 07:
And there's potentially others as well.

[00:21:43] Speaker 03:
We don't know that.

[00:21:46] Speaker 03:
Well, I'm potentially in life.

[00:21:48] Speaker 00:
So you're asking us for a remand so that you can consider at this juncture whether or not there are immediate, one, whether you want to do any mitigation at all, and two,

[00:22:00] Speaker 00:
whatever mitigation we might do.

[00:22:02] Speaker 00:
We don't know what those mitigation efforts are.

[00:22:04] Speaker 00:
And then it's going to come up here on a challenge again.

[00:22:07] Speaker 00:
Are you asking that we get rid of the permanent injunction in the interim, or that we keep the permanent injunction in place while you're trying to see if you can come up with satisfactory mitigation measures that will satisfy the court of federal claims notwithstanding the deferential standard review?

[00:22:29] Speaker 07:
Yeah, if the court were to determine that the corrective action decision was arbitrary and capricious, it would be appropriate to leave the injunction in place to the extent of setting aside the cancellation so that it returns the procurement to the status quo ante.

[00:22:42] Speaker 07:
And at that point, the agency can make those decisions about what mitigation measures it should take in a resolicitation, because it's no longer enjoined from resoliciting.

[00:22:50] Speaker 00:
And I think this is all going to, we've got how many more you said that you consider the permanent injunction kaput.

[00:22:56] Speaker 00:
the end of the five years we're like two and a half years away from that right so you're suggesting we remand it you get a chance to do mitigation if you want that gets appealed to the Court of Federal Claims that then gets appealed to us and don't you think it's likely that the questions that we had this morning about mootness will be well underway by the time we get to this

[00:23:20] Speaker 07:
Well, my understanding is the last option, the last of the four year option periods would expire April 1st, 2027.

[00:23:27] Speaker 07:
But regardless of the date, we don't know that they would come back to this court.

[00:23:34] Speaker 07:
It may or may not even come back to the court of federal claims.

[00:23:37] Speaker 07:
Sagam may be satisfied with the mitigation measures based on changed circumstances.

[00:23:42] Speaker 07:
We don't know what's going to happen there.

[00:23:44] Speaker 07:
What the trial court couldn't do was to,

[00:23:48] Speaker 07:
require the agency to prove actions that it didn't, to prove the actions it didn't take were rational.

[00:23:55] Speaker 07:
If that were the case, then the axiom decision wouldn't make a whole lot of sense to say that the court can't take extra record evidence ordinarily.

[00:24:02] Speaker 07:
Because otherwise, if the agency's going to decide de novo what the appropriate corrective action is, it should be doing it based on all of the relevant evidence and all of the relevant arguments.

[00:24:11] Speaker 07:
But the Chenery doctrine says that we can't argue for affirmance of an agency's decision when we don't

[00:24:18] Speaker 07:
when that wasn't made by the agency.

[00:24:21] Speaker 07:
We can't argue on grounds that weren't made by the agency.

[00:24:24] Speaker 07:
And the axiom says we don't ordinarily put extra record evidence into the record.

[00:24:29] Speaker 07:
So we shouldn't be making arguments that you should affirm.

[00:24:33] Speaker 07:
We shouldn't be arguing we will take these mitigation measures, and you should affirm on that basis, because that would be improper under SEC v. Jenner.

[00:24:41] Speaker 03:
But we wouldn't be here today if the agency had understood its obligation to have to have a mitigation if they were going forward and if they had proposed a mitigation that was effective.

[00:24:55] Speaker 03:
The problem is that what was presented to Judge Sweeney was a corrective action, a two-part corrective action, canceling and then going forward immediately with Torres on board when there was no rationale

[00:25:12] Speaker 03:
for letting Torres proceed in that freeway.

[00:25:17] Speaker 03:
What option did she have?

[00:25:20] Speaker 03:
And the problem was that she said, well, there's nothing in the record about mitigation.

[00:25:26] Speaker 03:
And you didn't even present mitigation at all in your motion for judgment on the administrative records.

[00:25:34] Speaker 03:
You brought it up as an afterthought.

[00:25:37] Speaker 03:
But what she said, you were tardy.

[00:25:40] Speaker 03:
And your attempt, which would have succeeded if you convinced her that the whole question of resolicitation wasn't right, but you didn't convince her of that.

[00:25:52] Speaker 07:
What Judge Sweeney could have done and should have done if she found the cancellation and resolicitation to be arbitrary and capricious is to either remand to the agency or to simply enjoin the cancellation and return the procurement to the status quo.

[00:26:09] Speaker 03:
Do you believe the floor of power argument affected enough in your brief to say that we certainly

[00:26:14] Speaker 03:
Your brief to this court doesn't start off by saying, assuming for purposes of argument that action is arbitrary to Pritchett's, the Supreme Court requires a remand.

[00:26:26] Speaker 03:
And I didn't see you making that argument.

[00:26:32] Speaker 07:
We did argue for remand in the supplemental briefing issue order.

[00:26:36] Speaker 03:
You argued for the remand because you said that the question of the resolicitation wasn't right.

[00:26:43] Speaker 07:
But we argue for remand in the supplemental briefing as well.

[00:26:47] Speaker 00:
Did you cite Florida Power?

[00:26:49] Speaker 00:
Because I'm looking in on that.

[00:26:51] Speaker 07:
I don't recall it being used.

[00:26:53] Speaker 00:
Did you cite Florida Power before?

[00:26:56] Speaker 00:
Oh, you did cite it in Gray.

[00:26:57] Speaker 00:
No.

[00:26:59] Speaker 03:
My problem is that, and I hate to say this, I think the government hasn't done a good job here in presenting these issues either to Judge Sweeney or to us.

[00:27:09] Speaker 03:
So we see what the right resolution is.

[00:27:11] Speaker 03:
If what you're saying is true,

[00:27:13] Speaker 03:
And where a case comes to the Court of Federal Claims, the question is, was the agency's corrective action rational on a highly deferential, Dell, or otherwise standard review?

[00:27:23] Speaker 03:
The judge looks at it and says, well, what I've got here, excuse me, it's not rational.

[00:27:29] Speaker 03:
And so then the judge says, well, I looked at the book and see what I'm supposed to do when that happens.

[00:27:33] Speaker 03:
I'm supposed to remand it to the agency and see it.

[00:27:36] Speaker 03:
Can't you come up with a better rationale?

[00:27:38] Speaker 03:
And that's required.

[00:27:40] Speaker 03:
That's what you're telling me today.

[00:27:43] Speaker 03:
Yes.

[00:27:44] Speaker 03:
And if I go back and look at the record that was in front of the judge, I don't see your attorney telling her that.

[00:27:51] Speaker 03:
I don't see your blue brief telling us that.

[00:27:54] Speaker 03:
I see your blue brief telling us, oh, this wasn't even a price information.

[00:28:00] Speaker 03:
And a few arguments like that that, excuse me, are frivolous.

[00:28:04] Speaker 07:
But our blue brief did argue that it was improper for her to disqualify Torres.

[00:28:10] Speaker 07:
And it was, even if the action was arbitrary and capricious, it was improper for the trial court to disqualify Torres or to award the contract to Sagam International SA.

[00:28:20] Speaker 07:
Sagam is the plaintiff's parent property.

[00:28:22] Speaker 05:
Why doesn't personal 49C support what the trial court did?

[00:28:25] Speaker 07:
Parsa 49C actually supports our position, because what this court said in Parsa 49C was that it's fine to enjoin a cancellation and to return the procurement to the status quo ante, but from there,

[00:28:40] Speaker 07:
the agency can either award the contract or terminate the award for any lawful reason.

[00:28:45] Speaker 07:
And that's all we're asking for an opportunity to do here.

[00:28:48] Speaker 07:
If the court were to agree with the trial court that this was an arbitrary and capricious corrective action decision, is the opportunity to go back and take whatever actions are necessary for a reasonable corrective action, one that likely should not include disqualifying an innocent offer.

[00:29:04] Speaker 03:
If it's not a jurisdictional question, right?

[00:29:05] Speaker 03:
So I mean, it's not a matter where I can just say, well, Judge Sweeney, you sure blew it.

[00:29:10] Speaker 03:
because even though the government wasn't arguing for you to remand on the Florida power theory, you should have done it.

[00:29:17] Speaker 03:
I'm just trying to think about what it is message we're sending to Judge Sweeney if we accept your argument a little late in your gray brief that the Florida power decision says even when you behaved arbitrarily and capriciously, you get another bite of the apple.

[00:29:35] Speaker 07:
Well, we did argue below that the proper remedy if the court were to find the corrective action arbitrary and capricious was to remand.

[00:29:47] Speaker 07:
We definitely argued that in the supplemental brief where she specifically asked us to address that.

[00:29:53] Speaker 07:
I don't recall if we specifically cited Florida Power and Light, but there's no problem on appeal with citing new case law that supports an argument that you've made below.

[00:30:05] Speaker 07:
And if I need to file a 28-day letter for that point, then I can.

[00:30:08] Speaker 07:
But that's not problematic.

[00:30:11] Speaker 00:
Can I ask you one further question?

[00:30:12] Speaker 00:
And this is kind of a judicial efficiency thing about going back and doing the song and dance below.

[00:30:18] Speaker 00:
I think one of the things that cuts against you maybe is not as a legal matter, but just as a practical matter.

[00:30:23] Speaker 00:
One of the overt things about the briefing here is,

[00:30:29] Speaker 00:
the dispute, which the government continues to apparently not be willing to accept, that the information, that the problematic stuff here was not just a citation to statutes and laws and collective bargaining agreements.

[00:30:46] Speaker 00:
And Judge Sweeney spent a lot of time describing all of the stuff and the information given to tourists.

[00:30:53] Speaker 00:
And I don't want to get into it because it may be confidential.

[00:30:55] Speaker 00:
But there was a huge dispute.

[00:30:57] Speaker 00:
And in your briefs, you don't move an inch away from, it seems to me, from your view that the problem here could be, which goes to how you're going to go about trying to mitigate this, that the government's view is, as it is repeatedly in blue and gray, that this was just a matter of citing, knowing about what the rules and the statutes are.

[00:31:20] Speaker 00:
So it can be remedied by having a solicitation that just lays out the statutes.

[00:31:25] Speaker 00:
Does that continue to be your position, or can that be dealt with in terms of a remand decision that tells you what you have to accept as a given, given the fact findings of the Port Federal Plan?

[00:31:38] Speaker 07:
Our position is that the State Department is the one that should be making those determinations about the precise nature of what was revealed and what's necessary to remedy that revelation.

[00:31:51] Speaker 00:
So the Court of Federal Claims findings in that regard, and there were numerous findings in her, are those just can be ignored because it's the State Department that has the unregulable discretion to decide that?

[00:32:03] Speaker 07:
Well, I wouldn't say unreviewable discretion.

[00:32:05] Speaker 07:
The court can still review for whether the new corrective action decision was arbitrary and capricious.

[00:32:12] Speaker 00:
But ultimately- Well, didn't she conclude that?

[00:32:15] Speaker 07:
No, she concluded that the prior corrective action was arbitrary and capricious, and that as a remedy, the agency is required to disqualify an innocent offer without- But in terms of what the problem was with the solicitation, which goes to what kind of mitigation, if any, would be necessary

[00:32:31] Speaker 00:
to resolve the problem, she made very explicit findings about what the problem was.

[00:32:37] Speaker 00:
And your briefs push back on what the problems were with the solicitation.

[00:32:42] Speaker 00:
So do you have to abide by her review of those proposals?

[00:32:50] Speaker 00:
Or do you get to go back to square one and say, we think the only problem was the statute, that they didn't set the statutes.

[00:32:57] Speaker 00:
We find it completely mitigating if we just cite the statutes.

[00:33:01] Speaker 00:
And yeah, we'll stop.

[00:33:03] Speaker 07:
Well, I mean, the contracting officer did find that there was a proprietary benefit involved in one instance.

[00:33:11] Speaker 07:
And I mean, I believe we even conceded in our reply brief that there was one instance that may have even involved Sagam's application of

[00:33:19] Speaker 07:
of a labor agreement.

[00:33:20] Speaker 07:
So I mean, we're not saying that the agency should come back and say that this stuff is harmless information and let's just move on from here.

[00:33:33] Speaker 07:
But it's the agency that should also ultimately be making the determination about how harmful it is and what mitigation measures are necessary to do that.

[00:33:42] Speaker 03:
Part of the difficulty here with the two proposed methods of mitigation

[00:33:49] Speaker 03:
Private I mean one was that the contract says oh you must comply with all local rules and regulations, right?

[00:33:57] Speaker 07:
The previous solicitation.

[00:33:58] Speaker 03:
That's the previous solicitation.

[00:34:00] Speaker 03:
So when you start with a contract like that in a foreign place it's kind of a trap for the unwary because you better make certain that you comply with the rules and regulations that state thinks are required, right?

[00:34:13] Speaker 03:
Because otherwise you're going to be non-compliant.

[00:34:15] Speaker 07:
without state having even stated on it.

[00:34:18] Speaker 03:
Of course, and so both parties start off and they say, well, we've got to figure out which local law school to apply to.

[00:34:23] Speaker 07:
Sure, let's talk to some lawyers.

[00:34:24] Speaker 03:
And so, again, we've been there a long time and probably had an idea of which ones it's on, and so, you know, it had that, it's list, so to speak.

[00:34:33] Speaker 03:
And so what the contracting officer's mistake here was she gave that list to the other side.

[00:34:38] Speaker 03:
So the other side said, well, if Sargamas is going to comply with those, I probably better comply with those too.

[00:34:43] Speaker 03:
We don't know whether they had that information before or not.

[00:34:46] Speaker 03:
So even the suggested mitigation things here were made up by the lawyers.

[00:34:56] Speaker 03:
They didn't come from a contracting officer.

[00:34:59] Speaker 03:
I think what the presiding judge is talking about here is that your whole idea, we send this back to allow some kind of mitigation, you people may be arguing, well, the mitigation is only with regard to the proprietary information, because the rest of the stuff wasn't price information, because you've been unwilling to give that or give it up.

[00:35:24] Speaker 07:
I mean, it is our position that states should be able to make that determination of what's proprietary and what's not.

[00:35:33] Speaker 07:
I mean, even accepting everything that the trial court said, that this is competition-sensitive information and relating to Sagam's costs and all that, the trial court still can't

[00:35:46] Speaker 07:
can't disqualify an innocent offer.

[00:35:47] Speaker 07:
It can't direct the award.

[00:35:49] Speaker 03:
Well, why not?

[00:35:49] Speaker 03:
I mean, you keep saying that.

[00:35:50] Speaker 03:
Oh, but can't do this.

[00:35:52] Speaker 07:
Florida Power and Light, parcel 49C, Axiom, all these decisions.

[00:35:57] Speaker 03:
The Florida Power and Light is you have to do it over again, right?

[00:36:02] Speaker 07:
Right.

[00:36:02] Speaker 03:
So you'd have to do it over again even if they hadn't.

[00:36:05] Speaker 03:
The disqualifying torus isn't the reason why Florida Power kicks in.

[00:36:11] Speaker 03:
All I'm saying is, what's wrong with disqualifying a party where the government poisoned the party and said, you, Mr. So-and-so, we poisoned you, and you cannot participate fairly in a competition?

[00:36:24] Speaker 07:
I mean, to approach it that way, it could, I mean, it could potentially.

[00:36:29] Speaker 03:
In the order of things.

[00:36:30] Speaker 03:
So why, you don't have a case that says that Judge Sweeney couldn't disqualify Torrance.

[00:36:39] Speaker 07:
Well, I mean, we did cite a couple GAO cases that overturned decisions that were where

[00:36:46] Speaker 07:
the agency disqualified someone for doing nothing wrong.

[00:36:49] Speaker 07:
That's not binding.

[00:36:50] Speaker 07:
You're correct.

[00:36:52] Speaker 07:
So the bottom line is the agency has the discretion whether to take action such as canceling solicitation, disqualifying, or any other appropriate action.

[00:37:02] Speaker 07:
If an offer is to be disqualified, the agency is the one that should be making that disqualification decision.

[00:37:10] Speaker 07:
not the Court of Federal Claims.

[00:37:12] Speaker 07:
That's the major problem.

[00:37:14] Speaker 00:
And just one final question.

[00:37:16] Speaker 00:
Are there any circumstances in which the agency kind of waives its ability to do it?

[00:37:22] Speaker 00:
Like here, couldn't one unfairly say, you had a long time we were going through all this litigation, you did throw out

[00:37:30] Speaker 00:
possible there are possible speculative but we have possible mitigation.

[00:37:36] Speaker 00:
At what point in the proceedings does the agency waive its right to do that when it's before the trial court and the trial court is giving you an opportunity to say what mitigation you would provide so that she could appropriately assess the propriety of that and you come in and here we are three years later or two years later still not having any idea what the mitigation would be.

[00:37:58] Speaker 00:
Is there a

[00:37:59] Speaker 00:
potential waivers?

[00:38:00] Speaker 00:
I mean, give Florida power.

[00:38:02] Speaker 00:
At some point, does the agency have its chance and waive its opportunity when it doesn't come forward?

[00:38:08] Speaker 07:
Well, in this case, we did argue before the trial court that remand would be the appropriate remedy if the cancellation were found arbitrary and capricious.

[00:38:16] Speaker 03:
And at what point did you make that argument?

[00:38:21] Speaker 03:
You didn't make it in your motion for judgment on the administrative record.

[00:38:26] Speaker 07:
I think we, at Appendix 2, we did

[00:38:32] Speaker 07:
The court cites our reply brief as arguing for stay and remand.

[00:38:36] Speaker 07:
And then the court asked for further briefing.

[00:38:39] Speaker 07:
No, the court didn't say it was too late.

[00:38:40] Speaker 07:
She actually asked for further briefing on the various proposals that the parties had made for a potential remedy in the case.

[00:38:47] Speaker 07:
And she didn't find that the agency was, or that the government was too late in arguing anything for purposes of injunctive relief.

[00:38:54] Speaker 07:
She found that the government was too late for arguing for purposes of rightness and for purposes of the merits in terms of mitigation measures.

[00:39:02] Speaker 07:
That was what the trial court had found there.

[00:39:07] Speaker 07:
But in this case, the agency made it.

[00:39:08] Speaker 03:
So you're basically arguing your challenge is not to her decision on the merits, but to her decision in denying your motion for a stay.

[00:39:19] Speaker 07:
We've challenged both.

[00:39:21] Speaker 03:
We're not going to get technical here, isn't that correct?

[00:39:24] Speaker 07:
We've challenged both the decision on the merits and the scope of her injunction.

[00:39:33] Speaker 03:
But I heard your desire for a remand is only connected with the injunction, with the motion on the injunction.

[00:39:41] Speaker 07:
Yes, that's what I understood us to be discussing here at this part.

[00:39:47] Speaker 07:
Thank you.

[00:39:47] Speaker 07:
Thank you, Your Honor.

[00:40:08] Speaker 02:
Good morning, Your Honors.

[00:40:08] Speaker 02:
Tom Coulter for the appellee, Sagam Security.

[00:40:13] Speaker 02:
May it please the Court?

[00:40:16] Speaker 02:
The reason we're here today... We know I was here.

[00:40:19] Speaker 00:
Can you point us, since you know the record probably hopefully as well as we do almost, can you point us... I do recall, as Judge Clevenger said, that

[00:40:30] Speaker 00:
their right or should have raised it earlier on mitigation.

[00:40:33] Speaker 00:
Can you point us to where she said that?

[00:40:35] Speaker 02:
There is a footnote in the court's opinion, in Judge Sweeney's opinion, saying that the supplemental briefing was ordered but it was not to be on the merits.

[00:40:50] Speaker 03:
Didn't want to raise any new issues.

[00:40:52] Speaker 02:
Yes, Your Honor, that's correct.

[00:40:54] Speaker 02:
And so that is why she considered the

[00:40:56] Speaker 02:
the mitigation argument to be too late for consideration by the court.

[00:41:00] Speaker 00:
OK, so where did she say that?

[00:41:01] Speaker 00:
I'm just having a hard time finding it.

[00:41:03] Speaker 00:
Do you happen to have it off the top of your head?

[00:41:05] Speaker 00:
Because I recall that she did say that.

[00:41:09] Speaker 00:
It's too late, and they should have made it earlier.

[00:41:12] Speaker 02:
Yes, she did.

[00:41:16] Speaker 02:
I'm sorry, Your Honor.

[00:41:19] Speaker 00:
Is it on page 35?

[00:41:21] Speaker 00:
Defendant also contends the court failed to consider how the state might mitigate

[00:41:26] Speaker 00:
The COs, in proper disclosure, to toilet.

[00:41:30] Speaker 00:
Defendant did not raise this argument, either in the motion judgment on the administrative record or in its reply brief.

[00:41:35] Speaker 00:
In other words, in its briefing on the mayor, its defense did not suggest the mitigation.

[00:41:40] Speaker 00:
I think that's it, right?

[00:41:41] Speaker 02:
That is the correct side, Your Honor.

[00:41:42] Speaker 02:
Sorry, I was looking at the wrong opinion.

[00:41:43] Speaker 02:
That's right.

[00:41:44] Speaker 02:
That is her second opinion.

[00:41:45] Speaker 02:
That's right.

[00:41:47] Speaker 00:
What about Florida Power?

[00:41:50] Speaker 02:
I don't really think Florida Power comes into play here.

[00:41:55] Speaker 03:
Because what about just the basic proposition in a bid protest type situation, where the question is, was the agency's corrective action sustainable as rational?

[00:42:08] Speaker 03:
And the decision of the court is no, it was not rational.

[00:42:11] Speaker 03:
Right.

[00:42:12] Speaker 03:
Your adversary says the correct law in that instance has then remanded the case.

[00:42:17] Speaker 03:
Assuming a request was made, et cetera, et cetera, et cetera.

[00:42:20] Speaker 02:
Right.

[00:42:21] Speaker 02:
Let's assume those points of your hypothetical, Your Honor.

[00:42:26] Speaker 02:
In the typical case, that is what Florida power says.

[00:42:30] Speaker 02:
This is far from the typical case.

[00:42:32] Speaker 02:
Judge Sweeney considered that in her opinion.

[00:42:35] Speaker 03:
Well, she said it wasn't a typical case.

[00:42:38] Speaker 03:
Do you think she actually considered the remand in the Florida Power context?

[00:42:43] Speaker 02:
I do, Your Honor.

[00:42:44] Speaker 02:
In fact, she says there is no need for remand, specifically, in her opinion.

[00:42:49] Speaker 02:
So she was aware of the Florida Power issue, and she specifically says there's no need for remand in this case.

[00:42:58] Speaker 02:
Where are we?

[00:43:01] Speaker 03:
Merit's opinion?

[00:43:02] Speaker 02:
It is in the Merit's opinion, her first opinion, Your Honor.

[00:43:05] Speaker 02:
It's Appendix 23.

[00:43:06] Speaker 02:
The court rejects defendant's favorite choice among the actions proposed by the parties.

[00:43:13] Speaker 02:
There is no need to remand the agency's cancellation and re-solicitation plan to the HCA, the head of contract and activity, to obtain a second opinion as to whether the plan is rational and whether the agency should reconsider its decision not to disqualify Torres.

[00:43:27] Speaker 04:
Is her basis still more so a judicial efficiency sort of basis, or why do you think she's continuing?

[00:43:33] Speaker 02:
I think, Your Honor, again, I'd love to have this case be some broad pronouncement of a principle, but it really is going to be based on the unique circumstances of this case.

[00:43:44] Speaker 02:
And I think that's what Judge Sweeney took into account.

[00:43:47] Speaker 02:
She is saying, in the normal course, she understands the process, but here,

[00:43:51] Speaker 02:
It's the endless loop of protest on disqualification that we would have ended up in.

[00:43:57] Speaker 02:
And she felt, though, and I think part of it was, frankly, the government's positions in this case, that she felt the CO clearly was not going to disqualify Torres.

[00:44:08] Speaker 02:
She made that clear.

[00:44:10] Speaker 02:
The government was pushing back on whether that was proper or even allowable.

[00:44:14] Speaker 02:
And I think in her mind,

[00:44:18] Speaker 02:
the remand process was going to be ineffectual.

[00:44:21] Speaker 02:
And so she's just sort of cut to the chase and said, this is the only rational outcome to cure the harm to the competitive process.

[00:44:31] Speaker 02:
And so that's why she went.

[00:44:33] Speaker 00:
Well, do you think that's right, though?

[00:44:35] Speaker 00:
If the government says it has the right to mitigate, I'd take your point on disqualification.

[00:44:43] Speaker 00:
But don't they get to try?

[00:44:44] Speaker 00:
I mean, they do have a lot of authority here.

[00:44:47] Speaker 00:
And the discretion is really very little discretion on the judiciary.

[00:44:53] Speaker 00:
So why don't we have to let them try?

[00:44:57] Speaker 02:
Fair point, Your Honor.

[00:44:59] Speaker 02:
And I think Judge Sweeney considered that.

[00:45:00] Speaker 02:
This is, again, it's an unusual case.

[00:45:03] Speaker 02:
And I think we have to look at the record, as you were discussing with government counsel.

[00:45:08] Speaker 02:
The contracting officer had already considered

[00:45:11] Speaker 02:
weather mitigation was something that was appropriate here.

[00:45:15] Speaker 03:
Wait.

[00:45:15] Speaker 03:
How do we know that?

[00:45:16] Speaker 02:
In her declaration, which was submitted late in the game, right before the hearing.

[00:45:24] Speaker 03:
So it wasn't in the administrative record?

[00:45:28] Speaker 02:
It was not part of the administrative record, but it was considered by the court.

[00:45:31] Speaker 00:
Is it in the opinion?

[00:45:32] Speaker 02:
It is, Your Honor.

[00:45:33] Speaker 02:
It begins on page 3042.

[00:45:41] Speaker 02:
And in that declaration, while raising some concerns about that costs may have changed because of certain issues in Senegal at the time, and remember the ironic thing about this declaration is that the first part of it was we're going to be consigned to paying too much if you disqualify Torres, and then the second part of it is

[00:46:06] Speaker 02:
were worried that Saddam isn't paying its guards enough because there are conditions that changed Senegal.

[00:46:11] Speaker 02:
So it was a little confusing as to what the position was.

[00:46:14] Speaker 02:
But in paragraph 19, on page, I'm sorry, 3044, appendix 3044, she talks about a stay and remand with further delay.

[00:46:31] Speaker 02:
So she's against remand, first of all.

[00:46:34] Speaker 02:
So the government is arguing for it, but their own client doesn't want it.

[00:46:37] Speaker 02:
And she is inclined to go forward with the contract.

[00:46:44] Speaker 02:
And how do we know?

[00:46:45] Speaker 00:
Yeah, but that's a little unfair to her.

[00:46:47] Speaker 00:
Yeah, she'd like to win, but that doesn't mean that she's given up a lesser win, which is where the government, I think, is not.

[00:46:55] Speaker 02:
Right.

[00:46:56] Speaker 02:
And so what is the best evidence that mitigation is really not necessary here?

[00:47:01] Speaker 02:
I think it would be that they've awarded us the contract.

[00:47:04] Speaker 02:
And this goes back to a point on muteness that we needed.

[00:47:07] Speaker 03:
Just to stop on the mitigation issue for a second.

[00:47:10] Speaker 02:
Yes, Your Honor.

[00:47:11] Speaker 03:
It seemed to me that the two proposals for mitigation that were suggested in footnote two on page five by the government in the later briefing

[00:47:23] Speaker 03:
The first that will simply have the parties each tell you which local law they think applies didn't seem to me to be very effective, even subjective mitigation because it still raises the problem of somebody missing something and

[00:47:39] Speaker 03:
state not knowing which one.

[00:47:41] Speaker 03:
The second proposal, which was that the state finally says, here, we're going to tell you exactly which local laws apply.

[00:47:47] Speaker 03:
It seemed to me to level the playing field, because then whatever Torres and Alling had about what Sagan thought was irrelevant, because the government's telling you.

[00:47:59] Speaker 03:
So it kind of seemed to me like there was a way in which you can deal with this, but what it means is state loses its opportunity to play gotcha, which it may like to play.

[00:48:09] Speaker 02:
I think it also your honor and beyond gotcha I think it puts state in a position of being the expert in every country all around the world

[00:48:28] Speaker 02:
of that country's interior laws, customs, practices.

[00:48:31] Speaker 03:
I don't think the State Department wants to go there.

[00:48:41] Speaker 03:
puts out an RFP that is labeled gotcha.

[00:48:44] Speaker 02:
Right.

[00:48:44] Speaker 03:
But it is a trap for the unwary.

[00:48:46] Speaker 02:
It is a trap for the unwary and of course that is why the essence of the compensation plan was to make sure that the local entity understood the laws and would comply with it and that therefore state was comfortable that it was getting a compliant compensation plan and wouldn't face any problems with its own contractor having violated local law.

[00:49:08] Speaker 03:
Can I just think about what happens if we were, you see, listing as I do through all of this, it seemed to me that the best hope the government has to prevail here is to convince us that the Florida power argument was made below, that it was actually made in the blue brief here instead of later on, et cetera.

[00:49:32] Speaker 03:
And so assuming that we agreed with that, and we said, oh, well, there was a mistake here.

[00:49:36] Speaker 03:
She should not have entered this injunction.

[00:49:38] Speaker 03:
Now, we vacate the injunction.

[00:49:41] Speaker 03:
What happens?

[00:49:43] Speaker 03:
Your client is in the midst of option year two, I think.

[00:49:48] Speaker 02:
Yes, Sean.

[00:49:48] Speaker 03:
Right?

[00:49:50] Speaker 03:
So if we enter this order, we are throwing a wrench in the machinery, right?

[00:49:58] Speaker 03:
So what happens?

[00:50:00] Speaker 02:
I think, as was discussed by government counsel, I think what happens is it would give the government the right to terminate.

[00:50:08] Speaker 02:
They've pretty clearly indicated, for some reason, they just don't want the incumbent of almost 40 years to continue, that they are going to terminate.

[00:50:17] Speaker 03:
They're going to engage in a- Well, what about the current contract?

[00:50:20] Speaker 03:
I mean, are you relieved of your obligation to perform?

[00:50:25] Speaker 02:
We would be.

[00:50:26] Speaker 03:
I think they'd have to get our consent to- I mean, you could just walk away and say, take your guards away tomorrow.

[00:50:32] Speaker 02:
That's right.

[00:50:33] Speaker 02:
And if you don't like that,

[00:50:35] Speaker 02:
Here's the price you'll have to pay.

[00:50:36] Speaker 02:
And that may not be good for state.

[00:50:38] Speaker 02:
In fact, they have us locked into a contract right now with prices.

[00:50:42] Speaker 00:
I guess I'm getting a little confused about this.

[00:50:44] Speaker 00:
Sure.

[00:50:44] Speaker 00:
Well, going back to the very beginning of this argument, I'm sure you were listening attentively.

[00:50:49] Speaker 02:
Yes, Your Honor.

[00:50:49] Speaker 00:
We were asking the government question.

[00:50:51] Speaker 00:
So the first question is, is this case right?

[00:50:54] Speaker 00:
And did you agree with the government's answer that, one, they felt under the permanent injunction

[00:51:01] Speaker 00:
they had to continue with the extra five years or else they would have been in violation point one.

[00:51:07] Speaker 00:
Do you also agree with the government that at the end of this five year plan, like 2027, he said, you're done and the permanent injunction is gone and they can do whatever they want, at least in this case.

[00:51:19] Speaker 00:
Do you agree with those two premises?

[00:51:22] Speaker 02:
I do, Your Honor, but let me add this.

[00:51:25] Speaker 02:
I do agree with those two points.

[00:51:27] Speaker 02:
I think the injunction was designed to make sure that SAGAM had the full benefit of the country.

[00:51:33] Speaker 00:
So that the government did not have the ability to stop these additional year things.

[00:51:37] Speaker 02:
Right, because otherwise the- Okay, so you agree with that.

[00:51:39] Speaker 00:
What about the second point?

[00:51:40] Speaker 02:
I do agree with that.

[00:51:41] Speaker 02:
And I think the ruling is to govern the solicitation, which was a five-year period.

[00:51:47] Speaker 02:
So I do agree with that.

[00:51:48] Speaker 02:
Now, having said that, I'm not saying we wouldn't challenge

[00:51:52] Speaker 02:
a later solicitation.

[00:51:55] Speaker 00:
But I don't think the injunction.

[00:51:55] Speaker 00:
You might argue it was intended to go on in perpetuity.

[00:51:59] Speaker 00:
Well, we'll get to that if we ever have to get to that.

[00:52:01] Speaker 00:
What about, I mean, Judge Cleverner just mentioned if we were to vacate the injunction and remand it.

[00:52:08] Speaker 00:
Do you agree that if we were to keep it, we could remand it, even if we agree with the government, the contracting officers should, in the first instance, have had the ability to try some mitigation and see if it could pass muster?

[00:52:22] Speaker 00:
that could leave the permanent injunction in place until that happens?

[00:52:29] Speaker 02:
I want to make sure I understand your Honor's question.

[00:52:34] Speaker 02:
Is it that you can order the remand or allow the remand?

[00:52:38] Speaker 03:
Well, we would order the remand.

[00:52:40] Speaker 02:
I don't see.

[00:52:41] Speaker 02:
I think that's a decision for the Court of Federal Claims under Rule 52 as to whether or you would order the remand back to the court.

[00:52:46] Speaker 02:
I'm sorry.

[00:52:47] Speaker 00:
I was speaking of a different remand.

[00:52:49] Speaker 02:
Yes.

[00:52:49] Speaker 02:
Yes.

[00:52:50] Speaker 02:
No, Your Honor.

[00:52:51] Speaker 02:
No.

[00:52:51] Speaker 02:
No, I was speaking about the remand to the agency.

[00:52:53] Speaker 00:
So I mean, we could do one of two things if we were inclined to see some have

[00:52:58] Speaker 00:
in the government's argument that they should have another chance.

[00:53:03] Speaker 00:
We could keep the permanent injunction in place, or we could remove the permanent injunction, which I think would create kind of a weird interim circumstance, which could create more havoc that's already been created.

[00:53:22] Speaker 05:
I know that you were talking to Judge Croninger.

[00:53:25] Speaker 05:
You were talking about kind of like the laws and public agreements.

[00:53:29] Speaker 05:
But was there also a proprietary benefit that was disclosed?

[00:53:33] Speaker 05:
My understanding was yes, but I'm trying to be a bit vague in light of the confidentiality concerns.

[00:53:38] Speaker 02:
That is what the record reflects in terms of the contracting officer's findings.

[00:53:42] Speaker 02:
In her memorandum, she identified mandatory benefits that were disclosed and what she deemed a proprietary benefit.

[00:53:49] Speaker 02:
There was also, as government counsel pointed out, some information as to basically how to price the contract over a period of five years because there was information about changes in labor rates that occur each year on the contract, which was clearly not publicly available and given to the other side, which would have helped them price the five years.

[00:54:10] Speaker 02:
And in addition, you know,

[00:54:14] Speaker 02:
I don't think it's necessary to go through based on the discussion, but there is a lot more information than laws and regulations that were given to the other side, which is why the contracting officer concluded it was, in fact, a Procurement Integrity Act violation, and it did, in fact, impact the procurement.

[00:54:31] Speaker 00:
And that's- So are you comfortable with everything the court of federal claims said, that if they were to go back and just list

[00:54:39] Speaker 00:
here are the relevant statutes and here are the relevant existing collective bargaining agreements that that would be insufficient as a mitigation remedy and do you think that it's a fair view of reading the Court of Federal Claims that she's already decided that?

[00:54:57] Speaker 02:
Yes, I do.

[00:54:59] Speaker 02:
And I think in this instance, to list them, first of all, is to take our work product and list them out for TORES, which really doesn't get you back to the same point where we are now.

[00:55:11] Speaker 02:
And the State Department has already said that it's impacted the procurement.

[00:55:17] Speaker 02:
And so we can't take that knowledge away from TORES.

[00:55:21] Speaker 02:
And I think, by the way, on the innocent offeror front, I mean, the government has been

[00:55:28] Speaker 02:
sort of supremely focused on the unfairness to Torres, who, as I understand, they don't represent.

[00:55:34] Speaker 02:
But they're really concerned about the unfairness.

[00:55:37] Speaker 02:
There's no consideration for the unfairness to the procurement system as large, which is sort of their responsibility.

[00:55:45] Speaker 02:
Nor is there any consideration to the harm that it does to Sagam.

[00:55:48] Speaker 02:
It's long time incumbent.

[00:55:50] Speaker 02:
Not to mention the fact that allowing this re-solicitation to go forward without the mitigation that the judge found was necessary basically allowed the government to benefit.

[00:56:03] Speaker 02:
from its own Procurement Integrity Act violation.

[00:56:06] Speaker 02:
I mean, I'm not sure why the government wouldn't always do this, because they're going to get more.

[00:56:10] Speaker 00:
Well, I don't want to be suggesting that the government's not acting in good faith.

[00:56:14] Speaker 00:
No, no, no, no.

[00:56:14] Speaker 00:
Do you think this case would have been different, or the government's arguments would have been different?

[00:56:19] Speaker 00:
Let's assume they had four potential

[00:56:23] Speaker 00:
passing all the rules for offerors rather than just being left with Saturn as the only one.

[00:56:29] Speaker 00:
Because some of the arguments I read the government is making this is like, this judge hand-picked the contractor.

[00:56:37] Speaker 00:
Is that just a matter of the nature of this, as you said, unusual case where there was only one man left standing?

[00:56:44] Speaker 00:
Would it have been a little different or easier if there were several offerors still in the pot and then the government had

[00:56:53] Speaker 00:
more than one.

[00:56:54] Speaker 00:
You understand what I'm saying.

[00:56:55] Speaker 00:
That her result dictated you.

[00:56:57] Speaker 00:
But that, to me, was only because that was the nature of the contract.

[00:57:02] Speaker 00:
Happened stands.

[00:57:03] Speaker 00:
There would have been three of you on the stand.

[00:57:05] Speaker 02:
I do agree with you, Your Honor.

[00:57:06] Speaker 02:
I think that made a big difference here.

[00:57:08] Speaker 02:
And I think that's part of why the government was bothered by her decision.

[00:57:13] Speaker 02:
I think, right, if they had had three other choices, and all she had said is, I'm putting it back status quo ante, she would have said, and go through your award process, which is what she said.

[00:57:27] Speaker 02:
They would have then chosen from one of the three, and they would have

[00:57:30] Speaker 02:
felt like they're making a choice as opposed to having to select Sagan because they were the only ones left in the competitive range.

[00:57:37] Speaker 02:
I do agree with you, Your Honor.

[00:57:38] Speaker 02:
I think that was a big factor here.

[00:57:41] Speaker 02:
But the mitigation idea, again, I don't know how long we've been at this, but we've been at this a while.

[00:57:50] Speaker 02:
There's no record evidence of any suggested mitigation.

[00:57:54] Speaker 02:
And in fact, the government wanted to go ahead and re-solicit.

[00:57:59] Speaker 02:
And in fact, has gone ahead and awarded us a contract in 2021, October 22 of 2021, with no change.

[00:58:08] Speaker 02:
So there was no change circumstances.

[00:58:11] Speaker 02:
All the things that they talked about might be possible didn't happen.

[00:58:14] Speaker 02:
And in two years of operating that contract, there have been no changes.

[00:58:18] Speaker 02:
So I'm not sure what the interest here is, but it's going to end up with a termination, a re-solicitation,

[00:58:26] Speaker 02:
I would suggest.

[00:58:27] Speaker 03:
It probably ends up with a bunch of bridge contracts where you guys were living on the earlier stage and you probably even had a bridge briefly

[00:58:39] Speaker 03:
in this case.

[00:58:41] Speaker 03:
We did, Your Honor.

[00:58:42] Speaker 03:
Because the dates don't line up.

[00:58:43] Speaker 02:
We did, Your Honor.

[00:58:44] Speaker 02:
That's exactly right.

[00:58:45] Speaker 02:
And that's what would happen, presumably.

[00:58:47] Speaker 02:
We've got to work out a new price because it's a brand new contract.

[00:58:50] Speaker 02:
But presuming we can do that, then the government will have the same services it's had for almost 40 years by the same contractor protecting the embassy.

[00:58:58] Speaker 03:
uh... and and that is where again they should lie now i i do want to add on the mood it's clear to me the government obviously isn't unhappiness again i mean if you were not performing a contract to protect our embassy people they would have gotten rid of you yes sir there's no in a article three

[00:59:18] Speaker 03:
Taser controversy says there's no dispute between the plaintiff and defendant in this case.

[00:59:23] Speaker 03:
No, your honor.

[00:59:23] Speaker 03:
I can't see one and your adversary hasn't pointed to one.

[00:59:26] Speaker 03:
No, your honor.

[00:59:28] Speaker 03:
As they said, they want to pursue this appeal to vindicate their interest in this case.

[00:59:33] Speaker 03:
Right.

[00:59:34] Speaker 03:
And he said his interest in this case is he thinks a court-claims judge should not be allowed to disqualify a bidder.

[00:59:42] Speaker 03:
Only a contracting officer can do that.

[00:59:44] Speaker 03:
And that's the rule of law he wants to get established for future cases.

[00:59:49] Speaker 03:
It has absolutely no impact on this case at all.

[00:59:52] Speaker 02:
Your Honor, I think you're exactly right.

[00:59:55] Speaker 02:
I think that is the Justice Department's interest in this case.

[00:59:57] Speaker 02:
If the ruling were clear that all the judge did was disqualified because it was the only rational corrective action, and there really isn't any debate about it,

[01:00:09] Speaker 02:
then I don't think the government has as much of a problem with her decision, because she's not disqualifying, taking an action of the contracting officer.

[01:00:17] Speaker 02:
She is merely saying the only rational.

[01:00:19] Speaker 03:
She's the only remedy I have.

[01:00:21] Speaker 03:
That's right.

[01:00:22] Speaker 03:
And the remedy that was suggested, which was to remand and let her have a do-over, she rejected.

[01:00:31] Speaker 02:
That's exactly right, Your Honor.

[01:00:33] Speaker 03:
Legitimately, if the government, which in my opinion has not done its usual job of presenting the issues as squarely as they might have to help us, if we feel the government's argument that a remand is required, so be it.

[01:00:49] Speaker 03:
It'll happen.

[01:00:50] Speaker 03:
And it would seem to me that we can give Judge Sweeney authority to

[01:00:55] Speaker 03:
decide whether to leave her injunction in place or to amend it or reissue it or do something with it, then she's going to be hearing from two of you as to what has to happen to allow the remand to go forward.

[01:01:09] Speaker 02:
Right?

[01:01:10] Speaker 02:
I think that's right, Your Honor.

[01:01:12] Speaker 02:
The only other thing I would say, and I just want to mention this, on the mootness point.

[01:01:15] Speaker 03:
And you're saying on the other side, if we see this case as we used to call them sports in law school, this is an odd case.

[01:01:25] Speaker 03:
And if we see the disqualification as not an affirmative act of replacing the duty of the contracting officer, we simply had no other remedy.

[01:01:34] Speaker 03:
It's a sport.

[01:01:35] Speaker 03:
It's a one-off.

[01:01:36] Speaker 03:
It's not likely to happen again.

[01:01:37] Speaker 03:
I mean, if this case were indeed moved, kingdom were, there'd be no exception here, right?

[01:01:44] Speaker 02:
Right.

[01:01:44] Speaker 03:
So this isn't going to happen again.

[01:01:47] Speaker 02:
And that's, I think, the point I wanted to mention is, Judge Sweeney mentioned that the government's concern about mootness could be ameliorated by taking two steps.

[01:01:56] Speaker 02:
One was to file a motion to stay pending appeal in this court, which they did not do.

[01:02:02] Speaker 02:
Number two is to rely on the exception, which, as your honor just noted, this is a five-year contract.

[01:02:08] Speaker 02:
They had plenty of time to review it.

[01:02:09] Speaker 02:
They didn't need to award us the contract.

[01:02:11] Speaker 03:
It could have just gone away.

[01:02:12] Speaker 03:
The kingdom we're tracing back is a two-part test.

[01:02:15] Speaker 03:
You not only have to have a shortness of time, but you have to show this isn't going to happen again.

[01:02:19] Speaker 02:
Right, but you have to have both.

[01:02:20] Speaker 03:
I know that, and for the government to say this isn't going to happen again would be very embarrassing for the government.

[01:02:38] Speaker 07:
Thank you, Ron.

[01:02:40] Speaker 07:
Just to address the last point first about the case in controversy, just because the government doesn't have a problem with how Sagan is performing right now doesn't mean there's no case in controversy in this court.

[01:02:50] Speaker 07:
I mean, the government does not necessarily want to go forward with a contract.

[01:02:54] Speaker 05:
I can see that it's unlikely this set of facts would be presented to us again.

[01:02:57] Speaker 05:
Just following up on what Judge Clevenger just asked for, opposing counsel.

[01:03:02] Speaker 07:
I mean, the specific set of facts, sure.

[01:03:05] Speaker 07:
Yes.

[01:03:06] Speaker 07:
I mean, if the court were to affirm in this case, do I think there'd be other cases where the court may order an agency to award to another, to an offer or to even disqualify an offer?

[01:03:19] Speaker 07:
Yeah, I think that very well could happen again in the court of federal claims if the court were to affirm here.

[01:03:23] Speaker 07:
So I mean if the court were and it's certainly our position this case is not moot But if the court were to find it moot it should at the very least make a the the trial courts order because the reason it would have become moot is because We followed the courts that we followed the court's order not because of anything we did not care if they were opposed to your other to your friend Hypothetical if there had been four contractors that were eligible so when she disqualifies tourists

[01:03:49] Speaker 00:
the government isn't being told who to award the contract to.

[01:03:53] Speaker 00:
The government still gets to pick among a number of people.

[01:03:56] Speaker 00:
Would that change your argument here?

[01:03:58] Speaker 00:
At least get rid of one or two of your arguments?

[01:04:00] Speaker 07:
It would be more nuanced, certainly.

[01:04:02] Speaker 07:
But our problem is not simply that the court ordered the award to Sagam International SA.

[01:04:07] Speaker 07:
Our problem is that the court actually disqualified an offer to do that.

[01:04:11] Speaker 07:
The trial court made a procurement decision

[01:04:14] Speaker 07:
that only the agency should be making.

[01:04:16] Speaker 07:
Instead of simply saying, you didn't adequately justify your decision to cancel, you didn't consider mitigation measures, you didn't consider the fact that Torres now has this information, that you didn't consider these relevant factors and therefore I'm declaring your cancellation to be irrational and I'm returning the procurement to the status quo ante.

[01:04:35] Speaker 07:
It took it a step further and said, OK, now that we've returned it to the status quo ante, I'm telling you, you need to disqualify Torres, and you need to then proceed to award to the remaining offer if that offer is determined to be responsible.

[01:04:49] Speaker 07:
So that's the bridge too far here in terms of the remedy portion of this case.

[01:04:57] Speaker 07:
The agency made one corrective action decision here.

[01:05:00] Speaker 07:
This isn't a situation where there's been like serial remands or something like that.

[01:05:05] Speaker 07:
I mean, administrative review shouldn't be a game of gotcha where the agency makes a mistake in a determination, makes an irrational decision, and then the court then comes back and says, all right, well, you did it irrationally, so now I'm going to do it for you, and I'm going to do it the right way as a matter of proficiency.

[01:05:23] Speaker 07:
Florida Power and Light forecloses that, at least in the ordinary circumstances.

[01:05:29] Speaker 07:
And again, with just one remand here, there's nothing, or one decision here, there's nothing extraordinary about this case that requires the trial court to throw off the normal way that administrative review is done.

[01:05:44] Speaker 07:
So unless the court has any other questions, we expect to request that the court vacate the trial court's injunction.

[01:05:52] Speaker 06:
I'm so excited.