[00:00:00] Speaker 03:
Crane, our next case for argument is 24-1574, Associated Energy versus United States.

[00:00:09] Speaker 03:
Come on up, please proceed.

[00:00:10] Speaker 03:
24-1574, Associated Energy versus United States.

[00:00:15] Speaker 03:
Can I?

[00:00:16] Speaker 00:
Yes, Your Honor.

[00:00:17] Speaker 03:
Come on up.

[00:00:21] Speaker 03:
I'd say we don't bite, but that might not be your question right now.

[00:00:25] Speaker 04:
Your Honor, it's a pleasure to be here today.

[00:00:27] Speaker 04:
Thank you for having us.

[00:00:29] Speaker 04:
On behalf of Associated Energy Group or AG, we are appealing Judge Bonilla at the Court of Federal Claims decision finding that AG laxed it.

[00:00:39] Speaker 04:
We believe the decision was erroneous.

[00:00:41] Speaker 04:
We believe the Oak Grove decision was erroneous.

[00:00:43] Speaker 01:
Can you speak up a little bit?

[00:00:44] Speaker 01:
I feel like everyone might not be able to hear you.

[00:00:47] Speaker 04:
What was that, Your Honor?

[00:00:48] Speaker 01:
Can you speak up a little bit?

[00:00:49] Speaker 01:
Sure, Your Honor.

[00:00:50] Speaker 04:
I've never gotten that criticism.

[00:00:54] Speaker 04:
Your Honors,

[00:00:55] Speaker 04:
When we look at Judge Bonilla's decision of February 29th, ultimately this was a bench decision.

[00:01:03] Speaker 04:
There was no written decision that came from it.

[00:01:06] Speaker 04:
As a result, he, we believe inadvertently or without significant detail to the Federal Circuit case law, found that we needed to establish a substantial chance of success under the now incontrovertible rules of engagement.

[00:01:22] Speaker 04:
So he essentially said

[00:01:25] Speaker 04:
established standing with them.

[00:01:28] Speaker 02:
Let me just make sure I understand.

[00:01:30] Speaker 02:
Didn't he say that you need to have the client needed to show that they could meet the requirements of the contract, and that would include having a PAL, and that you didn't have a PAL, and so therefore you didn't have either Article III standing or standing under the

[00:01:55] Speaker 02:
That's exactly right, Your Honor.

[00:01:58] Speaker 02:
OK, so why was that wrong?

[00:02:00] Speaker 04:
Your Honor, that's why we're here today.

[00:02:01] Speaker 04:
And I want to walk you through.

[00:02:03] Speaker 04:
We believe he completely applied the incorrect standard in assessing standing.

[00:02:08] Speaker 04:
So he essentially, in this context, the court's case law shows that he should have applied a different standard at this stage in the case and looked to see whether, but for those challenges, we would have had a substantial chance of success.

[00:02:24] Speaker 01:
And when you look at his decision- Can you be specific as you're talking to us about whether or not you're talking about Article III standing or statutory standing?

[00:02:32] Speaker 04:
Your Honor, I will address them both.

[00:02:35] Speaker 04:
I believe they're near identical.

[00:02:36] Speaker 04:
And in fact, the case law has said that if you meet Tucker Act, you have exceeded the requirements of Article III.

[00:02:44] Speaker 04:
But I will address them both in detail, Your Honors.

[00:02:47] Speaker 04:
Judge Bonilla, throughout his February 29 decision repeatedly,

[00:02:52] Speaker 04:
could not see past the pow, which we were challenging.

[00:02:56] Speaker 04:
The pow.

[00:02:57] Speaker 03:
Do you think under the Tucker Act, in order to have standing in a case like this, that you have to establish that you would have been able to obtain the contract if it had been handled properly?

[00:03:13] Speaker 04:
I'm not sure I'm following your question, Your Honor.

[00:03:16] Speaker 04:
Under the Tucker Act, we would need only show that if our protest grounds were correct,

[00:03:21] Speaker 04:
which are supposed to be assumed to be true at this stage in the case, that we would have had a substantial chance of winning the award.

[00:03:27] Speaker 04:
And as the prior awardee.

[00:03:29] Speaker 03:
That's just it.

[00:03:30] Speaker 03:
The substantial chance of winning the award.

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

[00:03:33] Speaker 03:
If the award, if we think that it was appropriate for the contract to require applicants to possess a PAL, if we don't think the government erred in making that part of the contractual requirements,

[00:03:50] Speaker 03:
and you don't, your company does not have a PAL, how can you argue you would have had a likelihood of substantial, whatever that standard was you just said, substantial likelihood of getting the award?

[00:04:03] Speaker 03:
If that's a precondition to being awarded this new contract, don't argue with me we've been doing it already without a PAL.

[00:04:10] Speaker 03:
I don't want to know that.

[00:04:12] Speaker 03:
I already know all that and we can get to that in a minute.

[00:04:14] Speaker 03:
My question is focused on if there wasn't an error in

[00:04:18] Speaker 03:
the solicitation about requiring a PAL, and you don't have one, I don't see how you prove that other piece, which is substantially likely we would have gotten the contract if this had done it.

[00:04:29] Speaker 04:
Your Honor, we're challenging the inclusion of the PAL.

[00:04:32] Speaker 03:
That's part of our- I started by saying this is a hypothetical, right?

[00:04:35] Speaker 03:
And my hypothetical was assume I think it's okay for the government to include a PAL in that contract requirement.

[00:04:43] Speaker 03:
If that's my assumption,

[00:04:45] Speaker 03:
If it's okay to include a pal, don't you agree that you don't have, you can't prove a substantial likelihood that you would have been awarded the contract because you don't have a pal?

[00:04:55] Speaker 04:
Well, Your Honor, you're not supposed to do that at the standing.

[00:04:57] Speaker 04:
You're at the merits.

[00:04:58] Speaker 03:
I'm allowed to do whatever I want, hypothetical question.

[00:05:00] Speaker 03:
This is a hypothetical question.

[00:05:02] Speaker 03:
I'm allowed to hold some hypothetical.

[00:05:04] Speaker 04:
So we're at the merits determination now.

[00:05:07] Speaker 04:
Tell me where we are in this hypothetical.

[00:05:08] Speaker 01:
Don't cite her hypothetical.

[00:05:09] Speaker 01:
Just answer her question that she posed.

[00:05:12] Speaker 04:
If the court were to find that the pal is appropriately included in the RFP, would we have a substantial chance of award?

[00:05:21] Speaker 04:
Is that the question?

[00:05:22] Speaker 02:
Yes.

[00:05:23] Speaker 04:
Your Honor, that means you ruled against us on the merits.

[00:05:26] Speaker 02:
OK, can I ask you another question?

[00:05:28] Speaker 02:
I don't know if I'm following you.

[00:05:30] Speaker 02:
Can I ask you another question?

[00:05:31] Speaker 02:
I'm having a hard time, a little bit of a hard time following your argument today because

[00:05:36] Speaker 02:
When I look at what relief you saw in your complaint, I don't necessarily see you complaining about the PAL.

[00:05:44] Speaker 02:
I see you saying that there is a problem with the sole source contract to UCIG.

[00:05:49] Speaker 02:
I see you saying that it should be enjoined.

[00:05:51] Speaker 02:
I think you are focusing on there was some other activity that you seem to have been forced focusing on.

[00:05:59] Speaker 02:
You know, maybe fraud and different things.

[00:06:02] Speaker 02:
And I don't see, you know, this was a post-award bid protest.

[00:06:07] Speaker 02:
Yes, Your Honor.

[00:06:08] Speaker 02:
And I'm not sure that you challenged particular terms, including the requirement of a PAL in that sole source bridge contract award.

[00:06:20] Speaker 04:
We did, Your Honor.

[00:06:21] Speaker 02:
And where would that be?

[00:06:22] Speaker 02:
So I can see it.

[00:06:23] Speaker 04:
Counts two and three focus on the terms of this.

[00:06:26] Speaker 02:
Can you tell me what page?

[00:06:27] Speaker 03:
I don't know where that is.

[00:06:35] Speaker 04:
I'll give you the page numbers right now.

[00:06:39] Speaker 03:
Yeah, the complaint is, I think, at 377.

[00:06:41] Speaker 04:
So, Your Honor, Count 2 is at 416.

[00:06:47] Speaker 04:
Count 3 is at 418.

[00:06:49] Speaker 04:
And naturally, these counts incorporate the preceding paragraphs where Mr. Cheney's declaration is quoted discussing how AG was the number.

[00:07:00] Speaker 04:
Denied the power by the Ministry of Energy because he denied their requests on that That's not the same.

[00:07:07] Speaker 03:
Where do you say and hear that you're challenging the RFP's inclusion of the power requirement?

[00:07:14] Speaker 02:
Because you do seem to be doing that in your fifth grade protest, right?

[00:07:19] Speaker 02:
Right, so there might be another case, but I'm just I'm really puzzled because I didn't think you did it.

[00:07:24] Speaker 02:
So I need to know specifically where you did it.

[00:07:27] Speaker 02:
in this complaint and where this argument is being made.

[00:07:31] Speaker 04:
Your Honor, it's in Counts 2 and 3.

[00:07:32] Speaker 02:
So Count 2 is talking about how the number of appendix page number and where.

[00:07:41] Speaker 04:
OK.

[00:07:41] Speaker 04:
416, I'll start there.

[00:07:42] Speaker 04:
So DLA and its justification and approval.

[00:07:45] Speaker 03:
What page?

[00:07:46] Speaker 03:
What number?

[00:07:48] Speaker 03:
If I'm on page 416, number 121, number 122, what paragraph number is it that you make the argument

[00:07:57] Speaker 03:
that it was wrong.

[00:07:58] Speaker 04:
Starting in Count 2 at paragraph 126, 127, we're talking about the exact issues that we just discussed.

[00:08:06] Speaker 04:
detail in the pages before.

[00:08:08] Speaker 03:
Neither of these mention the word pal or mention the pal, right?

[00:08:12] Speaker 03:
126.

[00:08:12] Speaker 03:
I don't see it.

[00:08:12] Speaker 03:
Where?

[00:08:13] Speaker 04:
Further, DLA failed to address the ongoing corruption in Djibouti and the MOA's efforts to interfere with this procurement or to meet its obligations to solicit offers from as many sources as practicable.

[00:08:22] Speaker 03:
But that's corruption.

[00:08:23] Speaker 03:
That's your bribery argument.

[00:08:25] Speaker 03:
That doesn't have anything to do with pal.

[00:08:26] Speaker 04:
That's the pal, Your Honor.

[00:08:27] Speaker 04:
The bribery was solicited for the pal.

[00:08:30] Speaker 04:
That's what we talk about.

[00:08:30] Speaker 01:
So you're arguing that there's an implicit reference in this page that we cannot see?

[00:08:35] Speaker 01:
No, Your Honor.

[00:08:37] Speaker 01:
But you should let me finish.

[00:08:39] Speaker 01:
If I'm asked a question, I'll let me finish, sir.

[00:08:41] Speaker 01:
So you're arguing that there explicitly is something here that we can't see on these pages that we're all looking at, where you have actually challenged the PAL requirement?

[00:08:50] Speaker 04:
No, the PAL is on page 0402, paragraph 64.

[00:08:56] Speaker 04:
We talk specifically about the PAL.

[00:08:58] Speaker 04:
And we incorporate these paragraphs by referencing the count.

[00:09:00] Speaker 02:
Oh, and you have another?

[00:09:01] Speaker 02:
OK.

[00:09:02] Speaker 02:
Where are you?

[00:09:03] Speaker 04:
referring appendix 0402 your honor a paragraph 64 Mr. Cheney's decoration former colonel in the Air Force lays it all out in detail how he was solicited on multiple occasions.

[00:09:17] Speaker 03:
No but paragraph 64 just says this is your statement of facts this is commencing in March 2023 into the present it explains you know that you all have

[00:09:31] Speaker 03:
Structing AEG's supply of fuel and the imposition of the new licensing requirement referred to as the PAL and the solicitation under the table payments from AEG.

[00:09:42] Speaker 03:
I mean, I don't, I still don't, I don't know, I just, I think you're correct.

[00:09:48] Speaker 02:
When I read your complaint, what I see is you complaining about the award of the sole source bridge contract to UCIG because of fraud, not complaining about the terms of that sole source bridge contract.

[00:10:00] Speaker 04:
Your honor, I apologize for that confusion, but that's not what we're doing.

[00:10:03] Speaker 02:
It's not confusion.

[00:10:04] Speaker 02:
I mean, point to us where it is.

[00:10:06] Speaker 02:
Your honor.

[00:10:07] Speaker 03:
And just one thing.

[00:10:09] Speaker 03:
I want you to answer a question, but just one more thing I want to throw out, because my brilliant clerk just pointed out to me something I forgot.

[00:10:13] Speaker 03:
Didn't the court actually strike Mr. Cheney's declaration?

[00:10:16] Speaker 04:
No, your honor.

[00:10:17] Speaker 04:
He struck a first declaration.

[00:10:20] Speaker 04:
There was another declaration in the case.

[00:10:23] Speaker 03:
But ultimately... This one here, it was not struck?

[00:10:25] Speaker 03:
The one you're referring to right here.

[00:10:26] Speaker 03:
Changing declaration, paragraph 10 and 21.

[00:10:28] Speaker 03:
That was not struck?

[00:10:29] Speaker 04:
This one is stricken, Your Honor.

[00:10:31] Speaker 04:
Oh, okay.

[00:10:31] Speaker 04:
But in terms of our complaint, Your Honor, right here, paragraph 64 says that we were solicited for bribe payments under the table for the PAL.

[00:10:39] Speaker 04:
Paragraph 126, count two and count three, then discuss how

[00:10:43] Speaker 04:
DLA solely because only one offer possessed the power went forward with a sole source of work and that's made clear in their JNA.

[00:10:51] Speaker 04:
That is the entire basis of the sole source.

[00:10:53] Speaker 04:
They said we had no time to engage in advanced planning and we must go forward.

[00:10:57] Speaker 03:
What other arguments do you have?

[00:10:58] Speaker 03:
Because I will tell you right now, I don't think that Judge Bonilla erred by failing to appreciate this argument because I don't think you made this argument in your complaint.

[00:11:05] Speaker 03:
So what other arguments do you have for us?

[00:11:07] Speaker 04:
Yes, Your Honor.

[00:11:08] Speaker 04:
So I'd like to walk you through our views of, at the very first hearing with Judge Bonilla on December 22nd, 23, transcript page 30, Judge Bonilla said, AG would get past the standing issue because if the United States government is only going to contract with individuals who are allegedly making these bribery payments, the US government is not allowed to do that and would have to come up with an alternative.

[00:11:31] Speaker 04:
He made that decision on the record

[00:11:34] Speaker 04:
Ultimately, a few months later, we're at the merits hearing, and Judge Bonilla finds, as you'll see in his appendix one, his transcript.

[00:11:41] Speaker 03:
You cited appendix page 30, and there is nothing from Judge Bonilla on appendix page 30.

[00:11:45] Speaker 03:
This is your argument to the court.

[00:11:47] Speaker 03:
So what is it?

[00:11:48] Speaker 03:
I must have missed.

[00:11:49] Speaker 03:
You gave me a page site, and I must have missed it.

[00:11:52] Speaker 03:
What is the page site where Judge Bonilla said what you just said he said?

[00:11:56] Speaker 04:
Appendix 0029, Your Honor, says, quoting Judge Bonilla.

[00:12:01] Speaker 03:
0-0-2-9, again, this is you.

[00:12:03] Speaker 03:
Or the very top of it there?

[00:12:05] Speaker 03:
Is that where you're thinking he said this?

[00:12:07] Speaker 04:
AG would get past the standing issue that quote, Your Honor.

[00:12:10] Speaker 01:
Do you have a line number?

[00:12:13] Speaker 01:
Because there are line numbers here.

[00:12:16] Speaker 02:
Do you have a line number on page A29?

[00:12:18] Speaker 04:
A line number?

[00:12:20] Speaker 02:
You can find what appendices you'd like.

[00:12:22] Speaker 03:
I mean, I don't mind if there's none.

[00:12:24] Speaker 03:
This is.

[00:12:25] Speaker 01:
Yeah, the way our appendices are set up, you can also point us to both the page and the line numbers so we can all be on the same page.

[00:12:31] Speaker 01:
exact spot on the page.

[00:12:33] Speaker 03:
And I think that you might be setting a different page, because the 29 and 30 are all 30s you talking.

[00:12:38] Speaker 03:
I apologize, Your Honor.

[00:12:39] Speaker 04:
The line is 9.

[00:12:40] Speaker 04:
It starts at the line's 90s.

[00:12:42] Speaker 03:
That's you.

[00:12:43] Speaker 03:
That's you talking.

[00:12:45] Speaker 03:
That's you, Mr. Kanai, right?

[00:12:47] Speaker 03:
Mr. Kanai, that's you talking.

[00:12:50] Speaker 03:
That's not the judge.

[00:12:51] Speaker 03:
That's you.

[00:12:55] Speaker 04:
No, Your Honor, I'm quoting Judge Bonilla there.

[00:12:57] Speaker 04:
So Judge Bonilla made that rule.

[00:13:00] Speaker 02:
Wait, wait, wait, wait.

[00:13:02] Speaker 02:
On line 6 on page 29, it identifies who the person is that's speaking, and it says it's you.

[00:13:09] Speaker 04:
Your Honor, let me try to clarify the confusion here.

[00:13:12] Speaker 04:
At the hearing, we don't have a written decision.

[00:13:14] Speaker 04:
In this case, it was ruled from the bench.

[00:13:16] Speaker 04:
At a prior hearing, Judge Bonilla made the statements that I just did that DLA could not do what it now was intending to do.

[00:13:24] Speaker 04:
He had already ruled, essentially.

[00:13:26] Speaker 04:
He said, don't file a refiling your brief, but our view is

[00:13:30] Speaker 04:
I don't believe the transcript from the December 22nd hearing is in the record.

[00:13:36] Speaker 04:
I don't know that that's in there, but we're quoting him.

[00:13:39] Speaker 04:
I tell you, as an officer of the court, this occurred.

[00:13:42] Speaker 04:
He said that if AG would get past the standing issue, because if the United States government is only going to contract with individuals who are allegedly making these bribery payments, the US government is not allowed to do that.

[00:13:54] Speaker 04:
And he must come up with an alternative.

[00:13:57] Speaker 04:
We filed a supplemental notice with the court producing Judge Bonilla's September 6 decision.

[00:14:02] Speaker 04:
We did that recently.

[00:14:04] Speaker 04:
This decision provides this court with much more understanding of what he was thinking at the time.

[00:14:10] Speaker 04:
And he says, I drew a distinction for evaluating pre-award and post-award standing.

[00:14:15] Speaker 04:
And what he did in this is he said, if it's a pre-award protest, which he ruled in our favor on standing on after initially saying he thought the same ruling would apply,

[00:14:24] Speaker 04:
He said, here I would apply these facts, particularly Agee's prior success of winning the predecessor solicitation.

[00:14:31] Speaker 03:
Is this clear what you're talking about right now?

[00:14:32] Speaker 03:
Does this have anything to do with this case?

[00:14:34] Speaker 03:
Is this this case?

[00:14:35] Speaker 04:
Yes.

[00:14:35] Speaker 03:
What you're talking about right now, this occurred in this case.

[00:14:38] Speaker 03:
I think you're talking about another case.

[00:14:40] Speaker 03:
I think you're talking about a different case before Judge Menion, not this case.

[00:14:43] Speaker 02:
You're talking about the opinion in the fifth bid protest brought by your lawyer.

[00:14:47] Speaker 04:
Yes, Your Honor, where he's drawing the distinction.

[00:14:49] Speaker 02:
Which is not the opinion that we're reviewing for today.

[00:14:52] Speaker 04:
The reason I'm raising with you, Your Honors, is because he drew this thing.

[00:14:55] Speaker 04:
He explained this ruling for you, Your Honors, which you don't have in his transcript.

[00:15:00] Speaker 04:
So he explains why he did what he did there.

[00:15:02] Speaker 04:
And I think it's very relevant to you because of the overall decision.

[00:15:06] Speaker 02:
Can I ask you something?

[00:15:06] Speaker 02:
Yes, Your Honor.

[00:15:07] Speaker 02:
Just before we move on and you're starting to talk about his later opinion, where he contrasts the situation in the Fitbit protests from this case, is there anything you want us to look at?

[00:15:21] Speaker 02:
What I see, at least what I have, is that when he ruled from the bench, it starts at page A185 of the appendix.

[00:15:30] Speaker 02:
And before that, there's argument.

[00:15:34] Speaker 02:
And page A185, is there anything you want to point to us here where you think he made any particular error from page A185 to A193?

[00:15:46] Speaker 04:
That's exactly what we're challenging, Your Honor.

[00:15:48] Speaker 04:
Yes, this is where he walks through his Tucker Act finding.

[00:15:51] Speaker 04:
in his article 3.

[00:15:53] Speaker 02:
Is there something in particular you're challenging here?

[00:15:56] Speaker 04:
Yes.

[00:15:57] Speaker 04:
We're challenging the fact that he is requiring us to establish standing under the rules we're challenging, which we believe is inconsistent with Your Honor's recent decision in Oak Grove, which

[00:16:07] Speaker 04:
which I want to talk about with this court.

[00:16:10] Speaker 04:
In Oak Grove, your honor.

[00:16:12] Speaker 03:
Okay, counsel, you have used all your time, all your rebuttal time.

[00:16:14] Speaker 03:
I'm going to restore some rebuttal time.

[00:16:15] Speaker 03:
That's okay.

[00:16:16] Speaker 03:
Do you have more questions?

[00:16:17] Speaker 03:
No, okay.

[00:16:18] Speaker 03:
We're going to go ahead and hear from the government and I'll restore some rebuttal time.

[00:16:40] Speaker 03:
Yes, Your Honor.

[00:16:42] Speaker 03:
Did I say it right?

[00:16:43] Speaker 03:
Yes, Your Honor.

[00:16:43] Speaker 03:
OK.

[00:16:43] Speaker 03:
Correct me if I said it wrong.

[00:16:45] Speaker 00:
That's correct.

[00:16:46] Speaker 00:
All right.

[00:16:47] Speaker 00:
Good morning, Your Honor.

[00:16:48] Speaker 00:
May it please the court?

[00:16:51] Speaker 00:
I'd like to address a question that the court asked about whether AEG would have been able to perform this contract without possessing the petroleum activities license.

[00:17:01] Speaker 00:
And the short answer is, of course, no.

[00:17:04] Speaker 00:
They do not possess that license.

[00:17:06] Speaker 00:
They would not be a responsible officer.

[00:17:08] Speaker 03:
Sorry.

[00:17:09] Speaker 02:
Go ahead.

[00:17:09] Speaker 03:
I think you're going to ask the same question.

[00:17:11] Speaker 02:
Go ahead.

[00:17:11] Speaker 02:
I was just going to ask, the challenge in this protest, do you see where they challenged the sole source bridge contract on the basis of it requiring a PAL?

[00:17:27] Speaker 00:
I agree that it's not a direct challenge, and they're in the complaint.

[00:17:30] Speaker 00:
They're not making a direct challenge to the text of the contract that includes this report.

[00:17:35] Speaker 03:
And do you also agree, and you seem like you want to say something else, and I'll let you do that, but do you also agree that they did perfect that challenge in the fifth bid protest?

[00:17:43] Speaker 03:
There's another bid protest that's pending that is not before us, but it does look like in that bid protest, they much more clearly made that assertion.

[00:17:51] Speaker 00:
Yes, Your Honor.

[00:17:52] Speaker 00:
In the fifth, the one that Judge Ranier recently denied preliminary injunction, they did

[00:17:57] Speaker 00:
directly challenge the text of the solicitation.

[00:17:59] Speaker 00:
And my understanding is they are now currently amending their complaint to challenge post-award the same contract after the award went, again, to UCIG.

[00:18:10] Speaker 00:
But insofar as the license is a requirement and underlay just the reasons that the agency chose to pursue a sole source contract, the presence or absence of the license does matter in the fact that AEG does not have this license.

[00:18:26] Speaker 03:
What do you mean, the presence?

[00:18:27] Speaker 03:
You mean the PAL?

[00:18:28] Speaker 03:
Presence of the absence of the PAL don't matter?

[00:18:30] Speaker 00:
It does matter.

[00:18:31] Speaker 00:
Sorry, Your Honor.

[00:18:32] Speaker 00:
Insofar as the complaint does not bring a direct challenge to the language of the solicitation, but insofar as the complaint challenges the sole source award, the underlying reason for the sole source award was this requirement for the PAL.

[00:18:47] Speaker 03:
Right.

[00:18:48] Speaker 03:
And that's a law in that country.

[00:18:50] Speaker 02:
In June, yes, Your Honor.

[00:18:53] Speaker 02:
Right.

[00:18:53] Speaker 02:
OK.

[00:18:55] Speaker 02:
What they have had to have, I mean, one of the things that Judge Bonilla seems to say is that any contract would have required the pal, and they didn't have a pal, so therefore no standing.

[00:19:09] Speaker 02:
So I'm testing the part about any contract would have required a pal, not just based on the factual questions, which seems to be what the issue is, the merits in the fifth bid protest, not looking at factually

[00:19:25] Speaker 02:
You know, is there a finding about whether a PAL is required to perform this, which seems to be like a highly contested factual issue.

[00:19:33] Speaker 02:
But legally, is there a challenge, or can there be a challenge, in this second bid protest to the requirement of a PAL in any solicitation from the government?

[00:19:46] Speaker 00:
So I don't understand your question.

[00:19:49] Speaker 02:
In this bid protest to this sole source bridge contract,

[00:19:54] Speaker 02:
Was there a challenge to the existence of the PAL requirement?

[00:19:59] Speaker 02:
Do you see the difference?

[00:20:00] Speaker 02:
One's a legal issue, one's a factual question.

[00:20:03] Speaker 00:
No, I understand that, Your Honor.

[00:20:04] Speaker 00:
I understand that the current bid approach to the Court of Federal Claims tees this issue up much more cleanly.

[00:20:09] Speaker 00:
Our understanding receiving this complaint was that the PAL was at issue, and that the

[00:20:18] Speaker 00:
But in our understanding, the only way that AEG could possibly have standing in this protest would be if the PAL requirement were not imposed.

[00:20:26] Speaker 00:
And so maybe this is a counterfactual way of getting at a challenge to the PAL.

[00:20:31] Speaker 00:
But I suppose we were responding to their arguments insofar as we are saying the factual issues, as Your Honor points out, that the PAL is required and imposed by this foreign sovereign government.

[00:20:43] Speaker 02:
Do you have a view on Judge Bonilla's statement

[00:20:47] Speaker 02:
Or whether the law, I should say, I forget about that statement.

[00:20:50] Speaker 02:
But whether the law requires that if you're going to challenge the terms of a solicitation or a contract, it has to be before a pre-bid protest as opposed to a post-award protest?

[00:21:08] Speaker 00:
So I believe, Your Honor, that Judge Bonilla's got that correct.

[00:21:11] Speaker 00:
I think he's referring to the waiver rules.

[00:21:14] Speaker 00:
that stem from the Blue and Gold case from this court, that if there is this PAL requirement in the solicitation and AEG disagrees with it, then they must bring a protest to that issue before a word is made.

[00:21:27] Speaker 02:
And what about in a circumstance where it's a sole source award that nobody knows about until it's awarded?

[00:21:35] Speaker 02:
Do you then have to make it clear, at least in your bid protest, what you would do if you had something?

[00:21:42] Speaker 02:
I mean, what you would do if you were successful?

[00:21:44] Speaker 02:
You would then have to have an award, and when it was issued and it required a PAL, you would go ahead and issue another bid protest challenging the requirement of a PAL?

[00:21:55] Speaker 00:
Yes, Your Honor, I think that's correct.

[00:21:57] Speaker 03:
I guess to piggyback on your question, how are they supposed to do it pre-award when it's confidential?

[00:22:03] Speaker 00:
No, I understand that.

[00:22:04] Speaker 00:
In a case like that, it's not clear to me that there would be such a waiver issue if they didn't have awareness.

[00:22:11] Speaker 00:
There's no way it could be a patent.

[00:22:12] Speaker 02:
You're saying a case like that, but this is that case, right?

[00:22:17] Speaker 00:
Yes, Your Honor.

[00:22:17] Speaker 00:
This is a case where there's a sole source.

[00:22:19] Speaker 02:
So now you're saying there's no waiver issue under Plumy Gold.

[00:22:22] Speaker 00:
Well, but judgmentally, a statement that we were talking about was in the second, I guess, the fifth bid protest, where AEG brought a pre-award protest to the open solicitation issued last April.

[00:22:34] Speaker 00:
And there, they challenged directly that solicitation mentions in the list of required licenses, you must have this PAP.

[00:22:41] Speaker 00:
And they brought a direct challenge to that pre-award, as they would be required to without waiving.

[00:22:47] Speaker 02:
But in this case, how does it apply?

[00:22:49] Speaker 02:
How are they to do a pre-award protest in this case?

[00:22:55] Speaker 00:
I don't believe that would be possible.

[00:22:56] Speaker 00:
And the sole source are not reasonable to expect that.

[00:23:00] Speaker 01:
You've got a 28-J letter, I believe.

[00:23:02] Speaker 01:
Is that what?

[00:23:03] Speaker 00:
Yes.

[00:23:04] Speaker 01:
So you said you'd be prepared to talk about the impact of the expiration of the bridge contract.

[00:23:10] Speaker 01:
Can you speak to that?

[00:23:11] Speaker 00:
Yes, Your Honor.

[00:23:12] Speaker 00:
At this point with the expiration of the bridge, we believe this case is moot, and mootness is another threshold issue in addition to standing on which this court could decide this matter.

[00:23:22] Speaker 00:
That because this contract, the bridge contract they're challenging ended at the end of August, and all deliveries were completed by the end of September,

[00:23:31] Speaker 00:
A new award has been made under the open solicitation.

[00:23:34] Speaker 00:
There is no longer any active case of controversy here.

[00:23:38] Speaker 00:
To the extent, AEG in its briefing anticipated this issue and raised the possibility of the capable repetition yet evading review exception.

[00:23:47] Speaker 00:
Of course, we would agree that this issue is not only capable, but in fact has been repeated in the subsequent bid protest.

[00:23:54] Speaker 00:
But there is not a question of evading review.

[00:23:56] Speaker 00:
That bid protest is currently ongoing, as the court has acknowledged.

[00:24:00] Speaker 00:
The issue is more squarely before.

[00:24:02] Speaker 03:
So is your argument there that for mootness purposes, obviously, a litigant can continue to pursue a case if it's capable of being replicated because they would like a more judicious, clear rule.

[00:24:22] Speaker 03:
You're arguing, I think, if I understand it, that we should not rely on that to overcome mootness in this case.

[00:24:30] Speaker 03:
because the situation is, in fact, happening again, and they can charge it, you know, they can challenge it down the road.

[00:24:35] Speaker 03:
Is that your argument?

[00:24:37] Speaker 03:
But is that right under the law?

[00:24:40] Speaker 03:
And if so, tell me what case?

[00:24:41] Speaker 03:
And the reason I say that is because part of this idea about, look, this case, this is fully briefed.

[00:24:47] Speaker 03:
They just spent a lot of time and money on this.

[00:24:49] Speaker 03:
The government spent a lot of time and money on this.

[00:24:51] Speaker 03:
Why would we deem it moot?

[00:24:53] Speaker 03:
Wouldn't it be helpful if we decided this issue now, especially because

[00:24:58] Speaker 03:
it could possibly avoid a lot more litigation over this issue.

[00:25:01] Speaker 03:
So how does what you're suggesting to me about mootness apply in this case?

[00:25:07] Speaker 03:
And do you have a good case that you could point me to where it says, if it's going to be decided somewhere else, you should still stand out?

[00:25:14] Speaker 00:
So yes, Your Honor.

[00:25:15] Speaker 00:
We first emphasize the fact that this exception for capable repetition of aiding review is for exceptional circumstances.

[00:25:22] Speaker 00:
The Supreme Court said that repeatedly in the Lyons case, for instance.

[00:25:27] Speaker 00:
And we would also point to the fact that in this circumstance here, the contract that is currently being challenged by AEG and the bid protest at the Court of Federal Claims is for a three-year term.

[00:25:38] Speaker 00:
We have compared that to the Kingdomware decision recently, where the Supreme Court said that if these bid protests go so fast, it's hard to get review.

[00:25:46] Speaker 00:
That protest involved a two-year contract.

[00:25:49] Speaker 00:
So this contract here is longer in duration, provides more time for AEG to obtain review.

[00:25:56] Speaker 00:
which, of course, it already has begun the process.

[00:26:00] Speaker 00:
And to your honor's point about the efforts of the parties that put into the briefing and bringing this matter to San Francisco to argue before this court, we understand that that's not negligible.

[00:26:14] Speaker 00:
But if there is no longer a case of controversy, then we would say the court does not have power to act anymore.

[00:26:20] Speaker 01:
So at least the way I'm understanding it, you proposed three

[00:26:23] Speaker 01:
of possible bases that we could decide on, right?

[00:26:26] Speaker 01:
There's the Article III standing issue, the statutory standing issue, and now this mootness argument.

[00:26:32] Speaker 00:
That's correct.

[00:26:32] Speaker 01:
Which argument do you think would be the best way for us to decide this case?

[00:26:39] Speaker 00:
I think at this point, with the bridge contract having been completed, our position is that this case is moot.

[00:26:44] Speaker 00:
And then at that point, there's no need to address these standing issues.

[00:26:47] Speaker 00:
And the question of the fact that we're all threshold issues.

[00:26:50] Speaker 00:
Yes, yes.

[00:26:51] Speaker 03:
I don't know.

[00:26:54] Speaker 03:
Want them to have more priorities together?

[00:26:56] Speaker 03:
If one of them was jurisdictional, that would be different.

[00:26:58] Speaker 03:
These are thresholds, but it's jurisdictional.

[00:27:00] Speaker 00:
Yes, Your Honor.

[00:27:01] Speaker 00:
I believe that from our position that the mootness argument makes the most sense.

[00:27:05] Speaker 00:
I understand it was presented at a later stage in the briefing.

[00:27:08] Speaker 00:
In this case, we did not address it in our brief because we had not yet.

[00:27:13] Speaker 00:
It hadn't gotten moot yet.

[00:27:14] Speaker 00:
It wasn't moot at that point.

[00:27:15] Speaker 00:
That's correct.

[00:27:16] Speaker 03:
But we acknowledge as well that the Article III issues of standing would be... Would you mind teasing out for me what differences you think exist in this space between the Article III standing requirements and the Tucker Act standing requirements?

[00:27:29] Speaker 00:
Yes, Your Honor.

[00:27:31] Speaker 00:
I think that we can look at this court's recent decision in the Khaki case, which was on the Tucker Act standing in particular, where the court held that that was no longer a jurisdictional question.

[00:27:41] Speaker 00:
But the court did hold open the possibility that jurisdictional questions of Article III standing could arise in certain circumstances.

[00:27:48] Speaker 00:
I agree with my colleague that the Tucker Act is more stringent than Article III.

[00:27:52] Speaker 00:
So if a party cannot meet the Article III standard, then of course they cannot meet the Tucker Act standard, and they can't meet Article III either.

[00:28:02] Speaker 03:
Which way does that go?

[00:28:04] Speaker 00:
I may have said it the incorrect way, because the Tucker Act is

[00:28:08] Speaker 00:
is a narrower standard?

[00:28:10] Speaker 03:
So they could have Article III standing, but not have Tucker Act standing?

[00:28:14] Speaker 00:
Perhaps, although I'm not sure I'm going to pull a hypothetical out of my head right now for that issue.

[00:28:20] Speaker 00:
But in this case, I think this court has been clear that Article III standing does apply to cases brought up at the Court of Federal Claims.

[00:28:27] Speaker 00:
There's the Anderson case that shows that, even though that's an Article I court.

[00:28:32] Speaker 01:
Do you agree that we could, if we go the standing route decided on either Tucker Act

[00:28:38] Speaker 01:
standing or on Article 3 standing, we could just reach one of those in any opinion?

[00:28:45] Speaker 00:
I don't believe so, Your Honor.

[00:28:46] Speaker 00:
I think if you found that the court believes that there is a lack of Article 3 standing, that that is an issue that would not allow the court to reach the Tucker Act issue.

[00:28:56] Speaker 00:
I know that the Court of Federal Plans decided both in the alternative.

[00:28:59] Speaker 00:
But if the court believes that there is no Article 3 standing, then there would be no need to go to the Tucker Act.

[00:29:04] Speaker 02:
What if the court believed there was no Tucker Act stand?

[00:29:07] Speaker 00:
Would they need to continue?

[00:29:10] Speaker 00:
I believe so, Your Honor, because the Tucker Act is a question that, the question of Tucker Act standing in my understanding of the Khaki case requires analysis of the merits to understand the question of prejudice and interested party, whereas Article III is a threshold issue and would prevent even analysis of the merits.

[00:29:33] Speaker 00:
Thank you.

[00:29:34] Speaker 00:
So if the court were to determine whether,

[00:29:37] Speaker 00:
mootness or Article III standing, those, of course, are both equal threshold issues for the court to decide on those grounds.

[00:29:44] Speaker 00:
And because AEG does not have an injury to point to, it can't point to Article III standing either.

[00:29:52] Speaker 03:
Anything further?

[00:29:54] Speaker 00:
If the court has no further questions, we'd ask that you affirm the judgment below.

[00:29:57] Speaker 03:
All right.

[00:30:05] Speaker 02:
Thank you.

[00:30:05] Speaker 02:
Can I have two minutes of the Bible?

[00:30:09] Speaker 02:
Could you address the mootness argument made by the government?

[00:30:13] Speaker 04:
I'm having trouble hearing you.

[00:30:14] Speaker 02:
Could you address the mootness argument made by the government?

[00:30:18] Speaker 04:
Yes, Your Honor.

[00:30:18] Speaker 04:
I'd be happy to.

[00:30:19] Speaker 04:
So we just last week, before Judge Bonilla, the exact issue came up with him.

[00:30:24] Speaker 04:
And we talked about it.

[00:30:25] Speaker 04:
The fact that the very issues right now challenging an award, we call it another sole source award to UCIG.

[00:30:34] Speaker 04:
It was a non-competitive award with the PAL.

[00:30:38] Speaker 04:
immediately issued an order.

[00:30:39] Speaker 04:
And he said, the party should come prepared to explain how my prior order does not apply here, the one that's being appealed.

[00:30:46] Speaker 04:
We had a hearing last week where Judge Bonilla and I discussed this issue in court.

[00:30:51] Speaker 04:
And we explained that we'll be here this week, which he's aware of.

[00:30:54] Speaker 04:
And he agreed for briefing to continue in this case as we await this decision.

[00:30:58] Speaker 04:
He, in fact, said he awaits.

[00:31:03] Speaker 02:
We're going to be looking at whether this appeal was moved, right?

[00:31:07] Speaker 02:
So in exchange, you had Judge Bonilla aside.

[00:31:14] Speaker 02:
What is your argument before this court today for why this is not moved in response to the government's argument?

[00:31:20] Speaker 04:
Your Honor, I believe my opposing counsel here got the standard correct.

[00:31:25] Speaker 04:
We're showing that this is not only capable, it is reoccurring right now.

[00:31:29] Speaker 04:
And so we believe under the case law that we've cited in our briefs, which I could cite for your honors,

[00:31:34] Speaker 04:
that this matter needs to be resolved.

[00:31:37] Speaker 04:
Now, if it isn't, we will be right back before you again in short order.

[00:31:41] Speaker 04:
The court will follow his same rule, and he's already said that he would.

[00:31:46] Speaker 04:
So we believe under that standard, as Judge Moore acknowledged moments ago, it wouldn't make sense not to decide this issue by this court, because we will be here again, and our client is expended in Normandy.

[00:32:02] Speaker 04:
of time and resources.

[00:32:04] Speaker 03:
What's your basic case for that?

[00:32:05] Speaker 03:
Because he's right.

[00:32:06] Speaker 03:
The Supreme Court has said this is exceptional circumstances when we would reach an issue that is, in fact, mooted under the set of facts in front of us.

[00:32:14] Speaker 03:
And I guess one of them is capable of being repeated again.

[00:32:16] Speaker 03:
But is there a really good case that you have that says, and you should definitely decide that new case because there's another one in the pipeline already?

[00:32:25] Speaker 03:
Because when it's in the pipeline already, it's like, well, it's going to come back and somebody else can decide it.

[00:32:30] Speaker 03:
Was there a good case you have?

[00:32:32] Speaker 03:
whether it's Newport, or this court, or the Ninth Circuit, or really any court, said, you know what?

[00:32:37] Speaker 03:
I'm going to move right past this movement's concern, because there's a pending lawsuit that's also raising this.

[00:32:42] Speaker 03:
So we should just go ahead and do it now.

[00:32:44] Speaker 04:
Your Honor, I can't tell you we have the very best case that exists out there.

[00:32:49] Speaker 04:
But the cases we cited are Torrington v. United States, Federal Circuit, 1995.

[00:32:53] Speaker 03:
Which page?

[00:32:54] Speaker 03:
It sounds like you're reading from maybe your brief.

[00:32:56] Speaker 03:
What page in your brief would I find them on?

[00:32:57] Speaker 03:
Is that what you're saying?

[00:32:59] Speaker 03:
Are they in your brief?

[00:33:00] Speaker 03:
they're in our there are a brief year on a particular page in your brief where you have a bunch of them and I will be able to look back at it.

[00:33:07] Speaker 04:
It's very hard to hear in there.

[00:33:13] Speaker 04:
Page 45.

[00:33:14] Speaker 03:
Okay, of your blue brief?

[00:33:16] Speaker 03:
I guess that must be your blue brief.

[00:33:17] Speaker 03:
I don't think your appendix is that long.

[00:33:18] Speaker 03:
So your blue brief, page 45.

[00:33:21] Speaker 04:
I believe so.

[00:33:23] Speaker 04:
And so in this case, the court said, this capable of repetition yet evading review exception applies when the challenged action is in its duration too short to be fully litigated prior to the cessation or expiration.

[00:33:36] Speaker 04:
And there is a reasonable expectation that the same complaining party will be subject to the same action again.

[00:33:41] Speaker 04:
I don't think there's been a stronger case for that, Your Honor.

[00:33:44] Speaker 04:
It's the same exact parties, the same exact issues.

[00:33:49] Speaker 03:
OK, I think we have your argument.

[00:33:51] Speaker 03:
We thank both counsels.

[00:33:52] Speaker 04:
Your Honor, can I ask for one minute?

[00:33:54] Speaker 04:
I have not been able to address the key issue in this case.

[00:33:57] Speaker 03:
Yeah, go for it.

[00:33:57] Speaker 03:
You got one minute.

[00:33:58] Speaker 03:
Sure.

[00:33:58] Speaker 04:
Your Honor, under Oak Grove, Voss Realty, and Tenton Falls, there's a double knockout here.

[00:34:05] Speaker 04:
Even if you were to find that we needed to have the Palin wherein eligible, UCIG is ineligible.

[00:34:11] Speaker 04:
Judge Benin has already ruled in his transcript that he had serious concerns with the responsibility decision.

[00:34:16] Speaker 04:
So if they are ineligible, we're ineligible.

[00:34:18] Speaker 04:
And under Tinton Falls, Boss Realty, and Oak Grove, now we have a substantial chance to participate in the new hypothetical procurement.

[00:34:27] Speaker 04:
And so we believe we have standing under your recent ruling, Your Honor.

[00:34:32] Speaker 03:
OK.

[00:34:33] Speaker 03:
Thank you.