[00:00:00] Speaker 04:
Our next case is number 24, 1842, Global Canine Protection Group versus United States.

[00:00:07] Speaker 03:
OK, Mr. Hurley.

[00:00:09] Speaker 03:
Thank you, Your Honor, and may it please the Court.

[00:00:12] Speaker 04:
Could I clear up a couple of things which I'm confused about?

[00:00:16] Speaker 04:
First of all, there's a reference to this termination for default.

[00:00:21] Speaker 04:
And I think in the blue brief, you suggest that that was being challenged, suggesting perhaps that there wasn't a final determination to terminate for default.

[00:00:31] Speaker 04:
Where does that stand?

[00:00:32] Speaker 04:
Is there an appeal with respect to that going on?

[00:00:37] Speaker 03:
With respect to the termination for default, K2 is challenging the government's

[00:00:46] Speaker 03:
termination in a separate proceeding, not in the... Where?

[00:00:50] Speaker 03:
In the Court of Federal Claims?

[00:00:52] Speaker 03:
In the Court of Federal Claims.

[00:00:54] Speaker 03:
What's the status on that case?

[00:00:57] Speaker 03:
K2 had filed its complaint.

[00:00:59] Speaker 03:
The government filed a motion to dismiss.

[00:01:01] Speaker 03:
There was a hearing two or three weeks ago on the motion to dismiss and that is still pending.

[00:01:08] Speaker 04:
Okay.

[00:01:09] Speaker 04:
Why don't you go ahead.

[00:01:15] Speaker 03:
And I'm happy to answer any other questions, but let me dive in and just say at the outset that I'm happy and proud to be here on behalf of K2 Solutions, Inc., which is a service-disabled, veteran-owned small business that has worked with the government for more than two decades, and until the present dispute, had worked with the government without issue for that period of time.

[00:01:42] Speaker 04:
Was K2 enjoined

[00:01:45] Speaker 04:
for participating in the contract and this procedure at the injunction run only against the government.

[00:01:51] Speaker 03:
K2 was ultimately enjoined through, I'm sorry, do you mean in connection with global canines?

[00:02:01] Speaker 04:
In connection with the challenge

[00:02:04] Speaker 04:
to the award of the contract in the first place.

[00:02:07] Speaker 04:
There was an injunction against the government borrowing them from making the award.

[00:02:11] Speaker 04:
It's not clear to me whether it was an injunction in that proceeding also against your client.

[00:02:18] Speaker 03:
I don't believe so, Your Honor.

[00:02:19] Speaker 03:
You think there was not an injunction?

[00:02:21] Speaker 03:
I don't believe so.

[00:02:22] Speaker 03:
K2 has ultimately awarded the contract, or certain clusters under the contract, which led to the present complaint that was filed by Global K9.

[00:02:35] Speaker 03:
And certainly, as we've heard about there.

[00:02:37] Speaker 02:
So the government awarded a contract.

[00:02:40] Speaker 02:
You got some of it.

[00:02:42] Speaker 02:
There was a protest against that.

[00:02:44] Speaker 02:
The government defended that award for a while.

[00:02:47] Speaker 02:
They lost.

[00:02:49] Speaker 02:
They were enjoined from proceeding.

[00:02:51] Speaker 02:
And then they canceled that contract pursuant to the court's order.

[00:02:56] Speaker 02:
Is that the procedural?

[00:02:58] Speaker 03:
The procedural posture in the current case, the current stance that we are dealing with, which is global canines,

[00:03:05] Speaker 03:
Challenge.

[00:03:06] Speaker 02:
Right.

[00:03:06] Speaker 02:
We're on appeal from a bid protest that Global won below.

[00:03:12] Speaker 03:
Correct.

[00:03:13] Speaker 03:
K2 was awarded certain clusters under the contract.

[00:03:17] Speaker 02:
Are you challenging that decision in joining the government from proceeding with this contract?

[00:03:24] Speaker 03:
No, Your Honor.

[00:03:25] Speaker 03:
And why are we here?

[00:03:26] Speaker 04:
Because the reason we are here... You're not challenging that?

[00:03:30] Speaker 03:
K2 in this forum on appeal and if successful on remand is not here to disrupt the contract.

[00:03:38] Speaker 03:
It is not global canine, American canine.

[00:03:42] Speaker 00:
Just to be clear, you're not here to disrupt the injunction.

[00:03:47] Speaker 03:
K2 is not interested in regaining the contract.

[00:03:50] Speaker 03:
K2 is not interested in future performance on the contract.

[00:03:54] Speaker 02:
If it goes back, what do you want us to tell the Court of Federal Claims to do?

[00:03:59] Speaker 03:
What K2 is interested in, and this sort of goes back to the procedural history of how K2 was involved in the underlying case, what K2 sought to do was to move to intervene, to challenge... Yes, but if that happens, what are you going to ask the Court of Federal Claims to do?

[00:04:20] Speaker 03:
We are going to ask the Court of Federal Claims to go back and take a look at the factual finding... To refry the misrepresentation issue?

[00:04:28] Speaker 03:
Uh, solely on the misrepresentation issue.

[00:04:31] Speaker 02:
If they agree with you, then what are you going to ask the court of federal claims to do in its judgment?

[00:04:41] Speaker 03:
Only that, to dissolve or withdraw the order with respect to that factual finding.

[00:04:46] Speaker 03:
K2 is not seeking, this is not a back door.

[00:04:49] Speaker 02:
You want them to rewrite their opinion to, to basically come up with the injunction, but on a different opinion?

[00:04:59] Speaker 02:
You want us to tell the Court of Federal Claims that they need to rewrite their opinion, but they don't need to change the result?

[00:05:06] Speaker 03:
We're not even asking you to tell the Court of Federal Claims.

[00:05:09] Speaker 02:
Yeah, but that's the effect, right?

[00:05:11] Speaker 02:
That's what you're going to ask them.

[00:05:12] Speaker 02:
It's like, we're not challenging the injunction, but we think you should rewrite your opinion.

[00:05:17] Speaker 03:
We think K2 should have a full and fair opportunity to challenge that material misstatement finding.

[00:05:24] Speaker 04:
I don't think that's going to happen.

[00:05:26] Speaker 04:
Are you arguing also that the

[00:05:28] Speaker 04:
Court of Federal Claims should vacate the opinion finding that you engaged in a misrepresentation?

[00:05:34] Speaker 03:
We do, Your Honor.

[00:05:35] Speaker 03:
Whether it's vacate or by motion for reconsideration or dissolution, our only concern is... Would you ask to have it vacated as part of your motion for leave to intervene?

[00:05:46] Speaker 03:
K2 did not, Your Honor, and the reason being is the first step in that process was we needed to become a party to the case before we challenged... What is the injury?

[00:05:56] Speaker 04:
You say there's a reputational injury.

[00:05:58] Speaker 04:
You say it might prevent you from getting further government contracts.

[00:06:01] Speaker 04:
Is there?

[00:06:02] Speaker 04:
a provision saying you can't award a government contract to somebody who's found guilty of misrepresentation?

[00:06:08] Speaker 03:
There's no provision preventing a future contract under those circumstances.

[00:06:13] Speaker 03:
But it is something that K-2 will have to disclose.

[00:06:16] Speaker 03:
It is, for lack of a better term, a black mark on its record that it will have to live with.

[00:06:22] Speaker 03:
And it's a black mark that, given the history of this case with the termination for default coming on the heels of the court's decision,

[00:06:31] Speaker 02:
I don't really understand what the point of this appeal is.

[00:06:36] Speaker 02:
We review judgments, and we either affirm a judgment, vacate a judgment, or reverse a judgment.

[00:06:41] Speaker 02:
And the judgment here is in joining the government for proceeding with a contract with K2.

[00:06:48] Speaker 02:
And you said you're not challenging that judgment.

[00:06:52] Speaker 02:
You want the basis for that judgment change.

[00:06:56] Speaker 03:
The order that we have appealed from is the denial of our motion to intervene.

[00:07:00] Speaker 02:
Yes, but it has to be connected to the case and somehow you have to be intervening for a purpose.

[00:07:06] Speaker 02:
And the purpose would ostensibly have been to support the government's award to your client.

[00:07:13] Speaker 03:
The purpose for which we were intervening was to challenge the material misstatement finding.

[00:07:18] Speaker 03:
That's a factual finding.

[00:07:20] Speaker 02:
Don't get to intervene just to do that.

[00:07:21] Speaker 02:
You would intervene to say

[00:07:23] Speaker 02:
That's incorrect, and therefore, the award should be sustained.

[00:07:28] Speaker 02:
Right?

[00:07:29] Speaker 03:
Well, I think that's what we would have argued, but for the termination for default that came following in part because of the court's order.

[00:07:37] Speaker 02:
Didn't do any of this in time.

[00:07:39] Speaker 02:
If the day after they'd filed the bids protest, which made clear they were going to challenge the award to you, you had intervened, the court of federal claim surely would have let you intervene.

[00:07:49] Speaker 02:
And when they said this was based on misrepresentations,

[00:07:54] Speaker 02:
Enjoin.

[00:07:54] Speaker 02:
You could have said, no, it's not.

[00:07:56] Speaker 02:
Don't enjoin.

[00:07:58] Speaker 02:
Right?

[00:07:59] Speaker 02:
There's nothing that prevented you from doing that.

[00:08:01] Speaker 03:
There is nothing that prevented K2, at the outset, from intervening.

[00:08:06] Speaker 04:
As I understand your argument, you're saying we didn't intervene in the first place because we saw the initial complaint, which talks about the government not following proper procedures, and we relied on the government under those circumstances to represent our interests.

[00:08:20] Speaker 04:
And you say that was reasonable.

[00:08:21] Speaker 03:
That is correct, Your Honor.

[00:08:22] Speaker 04:
Let's assume that that's true.

[00:08:25] Speaker 04:
There was then the filing of an amended complaint.

[00:08:28] Speaker 04:
You admit that you were reviewing the docket.

[00:08:32] Speaker 04:
And it would seem important under those circumstances for you to get a redacted copy of the complaint.

[00:08:42] Speaker 04:
But you didn't ask for that.

[00:08:44] Speaker 04:
I understand they were supposed to give it to you anyway.

[00:08:46] Speaker 04:
But you didn't pursue getting a copy of the amended complaint.

[00:08:50] Speaker 03:
That's right, Your Honor.

[00:08:52] Speaker 03:
As you referenced, the protective order in the case required the parties to the case to file redacted or sealed documents, redacted versions of sealed documents within days of... So why didn't your client say we didn't get a redacted copy?

[00:09:07] Speaker 04:
We want one.

[00:09:09] Speaker 03:
I don't know the answer to that.

[00:09:10] Speaker 03:
My client was monitoring the docket.

[00:09:12] Speaker 03:
But based on the initial complaint that was filed in the case, it didn't have any reason to believe that the subsequent amended complaint was going to do a 180 and lodge these accusations against K-2.

[00:09:24] Speaker 00:
What is your best case for the idea that when you look at timeliness, you have to consider there's kind of a balancing factor, right?

[00:09:32] Speaker 00:
I mean, on the one hand, it seems awful late.

[00:09:35] Speaker 00:
We wait 11 months.

[00:09:37] Speaker 00:
On the other hand, the original complaint didn't say anything about misrepresentation.

[00:09:42] Speaker 00:
But on the other hand, nobody on your client's side bothered to look at the amended complaint.

[00:09:50] Speaker 00:
What is the standard of view, and how do we assess that balancing?

[00:09:54] Speaker 03:
So the standard for the timeliness element would be abuse of discretion.

[00:10:00] Speaker 03:
We freely admit that.

[00:10:02] Speaker 03:
As to the other elements of intervention under Rule 24, I believe it would be likely de novo.

[00:10:08] Speaker 03:
But for timeliness, the standard would be abuse of discretion.

[00:10:13] Speaker 03:
I think the best argument that K2 has is that had it received the redacted amended complaint in July of 2023, it certainly would have been on notice at that point of the specific rights that it's challenging.

[00:10:27] Speaker 02:
There's nothing that prevented you from asking for that complaint.

[00:10:32] Speaker 02:
You admit that your client was aware of the filing because it was monitoring the docket, and it could have asked the court of federal claims to order the parties to send you the redacted complaint.

[00:10:45] Speaker 03:
It could have, but there was also nothing preventing the parties, the actual parties to the case, from complying with the protective order which would have put my client on notice of the amended allegations against it.

[00:10:59] Speaker 03:
So if- So what?

[00:11:02] Speaker 02:
I mean, it's your client's obligation to figure out if it needs to intervene or not.

[00:11:08] Speaker 02:
Sure, they may have violated the court's rules.

[00:11:10] Speaker 02:
But the person that wants to have that violation corrected is responsible for asking the court to correct it.

[00:11:18] Speaker 03:
And my client acted in reliance on what the allegations in the original complaint was.

[00:11:24] Speaker 03:
And it relied on the fact that the government was going to defend its contract award.

[00:11:28] Speaker 03:
And the government did.

[00:11:29] Speaker 03:
And they lost.

[00:11:33] Speaker 03:
They did up until the point when you deal with the intentional misstatement allegations against K2.

[00:11:39] Speaker 03:
That's something that the government could not defend.

[00:11:42] Speaker 03:
But only K2 was able to defend that, because K2 is the one who had the knowledge and the evidence and the facts from K2's side of the story.

[00:11:49] Speaker 03:
What was the basis for the T for D?

[00:11:51] Speaker 03:
Is it the same thing?

[00:11:54] Speaker 03:
In part because of the court's December 2023 order, in part because of alleged deficiencies in K2's performance under the contract.

[00:12:05] Speaker 02:
So if you don't think you made misrepresentations, and that's partly the basis for the T for D, you can defend it against that there, right?

[00:12:13] Speaker 02:
Correct.

[00:12:18] Speaker 03:
So Your Honor, I don't know.

[00:12:19] Speaker 03:
I'm going to run out of my time in a minute.

[00:12:21] Speaker 02:
Yes, I'm still really confused how, even if we agree with you, that you should have been allowed to intervene, what do you see happening below other than just because you say you're not going to attempt to overturn the injunction, then just having the Court of Federal Claims write a different opinion.

[00:12:38] Speaker 02:
And if that's the case, I've never heard of that.

[00:12:43] Speaker 03:
And to be clear, we looked.

[00:12:46] Speaker 03:
We have not found any case either for or against in this posture.

[00:12:50] Speaker 02:
That's because we review judgments, not opinions.

[00:12:53] Speaker 02:
And we're only going to send it back if the judgment is infirm, or you want it vacated or reversed.

[00:12:59] Speaker 02:
And you said you don't.

[00:13:01] Speaker 03:
Right.

[00:13:02] Speaker 03:
And from the outset, in front of the Court of Federal Claims, we've been consistent that what we are seeking is not to overturn the contract.

[00:13:12] Speaker 04:
Is this case looped?

[00:13:14] Speaker 04:
Because of the termination?

[00:13:16] Speaker 04:
We've said that if there's a termination, that the challenge to the award of the contract in the first place is moot.

[00:13:23] Speaker 04:
But is this case moot because the termination still is in litigation?

[00:13:29] Speaker 03:
Not with respect to our alleged reputational damage that flows from the material misstatements.

[00:13:39] Speaker 03:
The case would be moot as to the injunction, and that's why we're not challenging the injunction.

[00:13:44] Speaker 03:
The termination for default, we don't dispute the termination for default rendered any challenge to the injunction moot.

[00:13:54] Speaker 03:
But we're not challenging it.

[00:13:55] Speaker 04:
But you're challenging the termination for default.

[00:13:59] Speaker 02:
Not in this case.

[00:14:00] Speaker 02:
You're not challenging the procurement decision anymore.

[00:14:03] Speaker 02:
That is correct.

[00:14:05] Speaker 02:
Again, if you're not challenging the procurement decision, which is let's on appeal, what are you challenging?

[00:14:13] Speaker 03:
We are challenging solely the court's factual finding in its December 27, 2023 order that K2 made material misstatements because K2 did not have an opportunity to defend itself on those claims.

[00:14:32] Speaker 03:
So with that, Your Honor.

[00:14:33] Speaker 04:
I'll give you two minutes to remodel.

[00:14:37] Speaker 04:
Thank you.

[00:14:37] Speaker 04:
Mr. Gillingham.

[00:14:45] Speaker 01:
May I please the court, in light of the colloquy that's just taken place, there's not much more I'd like to say.

[00:14:50] Speaker 01:
Whom are you representing?

[00:14:51] Speaker 01:
Pardon me?

[00:14:52] Speaker 04:
Whom are you representing?

[00:14:53] Speaker 04:
I'm representing the United States.

[00:14:54] Speaker 04:
Yeah, OK.

[00:14:56] Speaker 04:
Go ahead.

[00:14:56] Speaker 01:
Sorry.

[00:14:58] Speaker 01:
And so basically, K2 is trying to get itself back into a game that it could have joined a long time ago, but that game is over.

[00:15:05] Speaker 04:
But is the case moot?

[00:15:06] Speaker 04:
It is moot.

[00:15:08] Speaker 04:
Even though the determination hasn't been finally resolved?

[00:15:12] Speaker 01:
It's moot for two reasons.

[00:15:13] Speaker 01:
First of all,

[00:15:14] Speaker 01:
The party that sued, Global Canine, represented by Mr. English sitting to my left, has gotten everything he wanted to get.

[00:15:21] Speaker 01:
There's no live controversy before the court.

[00:15:24] Speaker 01:
Second of all, the contract is terminated for default.

[00:15:30] Speaker 01:
We can't wait for a year or two years when the case finally gets on appeal to decide whether the contracting officer was wrong in defaulting.

[00:15:38] Speaker 01:
The contractor was right to default for the reasons the contracting officer had in front of him.

[00:15:43] Speaker 01:
And that was a long list of failures to perform, all of which were disclosed to the court in multiple status reports.

[00:15:50] Speaker 01:
But the case is moot.

[00:15:51] Speaker 04:
Why shouldn't the judgment be vacated?

[00:15:56] Speaker 01:
Well, first of all, any relief that a case you may have would be under the Termination for Convenience Clause.

[00:16:02] Speaker 01:
So if the court finds

[00:16:03] Speaker 01:
It's not entitled.

[00:16:05] Speaker 01:
What we're talking about is moot.

[00:16:06] Speaker 04:
You're not answering my question.

[00:16:07] Speaker 04:
If the award case is moot, and if they were permitted to intervene, wouldn't the remedy be to vacate the judgment?

[00:16:18] Speaker 04:
No?

[00:16:19] Speaker 01:
You're talking about, well, first of all, this court has no jurisdiction because the case is moot.

[00:16:23] Speaker 01:
We start there because the best the court can do is issue it.

[00:16:26] Speaker 04:
The courts have jurisdiction to determine whether a judgment should be vacated.

[00:16:30] Speaker 01:
Well, certainly you can review the judgment.

[00:16:33] Speaker 01:
Are you familiar with the Munsingware case?

[00:16:38] Speaker 01:
I certainly read it before.

[00:16:39] Speaker 01:
I'm also familiar with Michgo, which is the case we cited.

[00:16:42] Speaker 01:
And in Michgo, what happened was there was a challenge to the injunction.

[00:16:46] Speaker 01:
And this court said that the injunction is now moot because of the termination of the contract.

[00:16:51] Speaker 04:
Yeah, but it didn't deal with the question of vacating the judgment under Munsingware.

[00:16:55] Speaker 04:
I mean, if they were permitted to intervene, wouldn't they have a pretty good argument that if the case is moved that the judgment should be vacated?

[00:17:04] Speaker 04:
No?

[00:17:05] Speaker 01:
You mean after this appeal, if they had an opportunity?

[00:17:08] Speaker 04:
I don't know, right now.

[00:17:09] Speaker 04:
I mean, if they were permitted to intervene, wouldn't they have a pretty good argument that the judgment should be vacated?

[00:17:15] Speaker 04:
If this court holds.

[00:17:17] Speaker 04:
No?

[00:17:18] Speaker 00:
Right.

[00:17:20] Speaker 00:
One question with that would be whether Munson where applies to a party that's an intervener as opposed to the parties in the case.

[00:17:27] Speaker 01:
And I can't answer that question for you right now.

[00:17:29] Speaker 01:
You're on.

[00:17:29] Speaker 01:
I just haven't reviewed that case recently.

[00:17:31] Speaker 01:
But what I can say is, yes, if the court were to hold, and there's no reason for it to hold, but if it were to hold that somehow K2 was timely and should have been permitted to intervene and winds up back in court,

[00:17:44] Speaker 01:
That unwinds everything that's happened.

[00:17:47] Speaker 04:
The case is moot.

[00:17:52] Speaker 04:
There's no reason to relitigate the case.

[00:17:54] Speaker 04:
There's no basis for relitigating the case.

[00:17:58] Speaker 04:
But there is a question as to whether the judgment should be vacated.

[00:18:02] Speaker 01:
The judgment was a judgment against the United States in favor of global canine based on the record.

[00:18:08] Speaker 01:
There is no basis to vacate that judgment.

[00:18:13] Speaker 01:
It was sound.

[00:18:13] Speaker 01:
It was based on all the evidence before it.

[00:18:15] Speaker 01:
The United States has not appealed.

[00:18:17] Speaker 01:
Certainly Global Canine has not appealed.

[00:18:20] Speaker 01:
There's nothing to vacate.

[00:18:22] Speaker 01:
I don't think I'm understanding your question, because I don't see a world... The government moved the injunction when it canceled the contract.

[00:18:32] Speaker 02:
Or did it just comply with the injunction?

[00:18:34] Speaker 01:
It did two things.

[00:18:35] Speaker 01:
That document is a page 910, and the first couple of pages talk about

[00:18:40] Speaker 01:
this litany of performance failures that had previously disclosed to the court and which the contracting officer finally relied on to terminate for default.

[00:18:49] Speaker 01:
At the end of that decision, the contracting officer says something to the effect of, further, the court has ordered us.

[00:18:56] Speaker 02:
I don't need the details of this.

[00:18:58] Speaker 02:
I'm just trying to figure out how this vacation of a judgment concept would work in bid protests, where if the government loses,

[00:19:08] Speaker 02:
It gets enjoined from proceeding with that award, so it has to cancel the award and award a new contract.

[00:19:16] Speaker 02:
Here, instead of canceling it terminated for default, which is just another way of getting out of that award, if the government complying with an injunction moots the bid protest, then the bid protest would be mooted in every single bid protest the government lost and then complied with the injunction, wouldn't it?

[00:19:37] Speaker ?:
Right.

[00:19:37] Speaker 01:
But the contract was terminated before the court's decision.

[00:19:43] Speaker 01:
I mean, the court complained that we had not informed it that in January, the termination of a decision, the termination.

[00:19:50] Speaker 01:
Wait.

[00:19:51] Speaker 02:
This is a wrinkle that I wasn't aware of.

[00:19:53] Speaker 02:
So you T for D'd them in January.

[00:19:56] Speaker 02:
Before the court enjoined.

[00:19:58] Speaker 01:
No, I'm sorry.

[00:19:59] Speaker 01:
It was before the mootness hearing.

[00:20:00] Speaker 01:
It was before the mootness hearing.

[00:20:01] Speaker 02:
Right.

[00:20:02] Speaker 02:
Yeah, yeah.

[00:20:03] Speaker 02:
Well after the injunction.

[00:20:04] Speaker 02:
Yes, yes, yes.

[00:20:06] Speaker 01:
OK.

[00:20:06] Speaker 02:
If you had T for deed them before the injunction, then we'd have a different case, wouldn't we?

[00:20:13] Speaker 02:
If you had proceeded and issued an opinion, then it probably should have been baked.

[00:20:18] Speaker 02:
At the time the injunction was issued and at the time the decision supporting the injunction was issued, this case was not moved.

[00:20:28] Speaker 01:
Now, however, even if this were to be returned to the Court of Federal Claims, the court cannot really do anything because of the termination.

[00:20:37] Speaker 04:
Moreover, it's also moved because- But you're not saying the case is mooted by the government's compliance with the injunction.

[00:20:41] Speaker 04:
You're saying- In part.

[00:20:42] Speaker 04:
There are authority that it's mooted by the termination.

[00:20:46] Speaker 01:
In part.

[00:20:47] Speaker 01:
Principally, it was terminated for, well, it was certainly terminated because the court ordered it to.

[00:20:52] Speaker 01:
It wouldn't have a whole lot of-

[00:20:55] Speaker 01:
room for maneuver there, but on well-established facts disclosed to the court beforehand, it terminated for default.

[00:21:02] Speaker 01:
It was simply frustrated with K2's performance.

[00:21:05] Speaker 01:
It was moved for a second reason.

[00:21:07] Speaker 01:
The case before the court is over.

[00:21:10] Speaker 01:
The appealing party, Global Canine, appealed for an injunction and it got it.

[00:21:15] Speaker 01:
And that ended the live controversy between the parties.

[00:21:18] Speaker 01:
There was nothing else left for the parties to do.

[00:21:21] Speaker 04:
You don't usually think of this party succeeding as mooting the case.

[00:21:25] Speaker 04:
It's some extraneous event, like the termination, which under our case authority is boosted.

[00:21:31] Speaker 01:
Right.

[00:21:31] Speaker 01:
And perhaps if global canine had lost an appeal, or if the United States had appealed, maybe not.

[00:21:40] Speaker 01:
But that's not what happened.

[00:21:41] Speaker 01:
There's nothing left for the court to do.

[00:21:43] Speaker 01:
Ultimately, it's an empty exercise.

[00:21:44] Speaker 04:
In the termination proceeding, is the misrepresentation issue being litigated?

[00:21:49] Speaker 04:
I'm sorry, is the misrepresentation?

[00:21:49] Speaker 04:
In the termination proceeding, is the misrepresentation issue being litigated?

[00:21:54] Speaker 01:
I'm not defending that.

[00:21:55] Speaker 01:
I'm not sure.

[00:21:56] Speaker 01:
I can tell you that my understanding is the basis for that is the contracting officer terminated in bad faith.

[00:22:03] Speaker 01:
One defense certainly would be, well, how could it be bad faith if we have a judge telling us to terminate?

[00:22:10] Speaker 01:
And generally, a contracting officer decides on the basis of the facts before him or her, not something that happens much later.

[00:22:16] Speaker 02:
I don't understand that argument at all either.

[00:22:19] Speaker 02:
If the government loses a bid protest, it usually just terminates for convenience.

[00:22:25] Speaker 02:
Right.

[00:22:25] Speaker 02:
So you could have a basis for a T4D beyond losing the bid protest.

[00:22:32] Speaker 02:
In a case where... What is it?

[00:22:34] Speaker 01:
What did the contracting officer terminate for default?

[00:22:37] Speaker 01:
The contracting officer recites his reasons on page 910 of the record in the termination for default judgment, again, based on a litany of poor performance.

[00:22:46] Speaker 01:
Certainly, they had the choice.

[00:22:48] Speaker 01:
And Judge Holt recites the fact that there was a negotiation that's on the record of the Court of Federal Claims where the contracting officer said, you know, we can make this easy on everybody and simply terminate for convenience.

[00:23:00] Speaker 01:
But K2 decided not to do that.

[00:23:03] Speaker 01:
I guess the contracting officer felt it was the correct thing to do based on the performance to terminate for default.

[00:23:08] Speaker 01:
That was a judgment made by the contracting officer.

[00:23:11] Speaker 01:
And so he terminated for default.

[00:23:13] Speaker 04:
But when he terminated for default, did he say that was because of the misrepresentation in securing the contract in the first place?

[00:23:20] Speaker 01:
No, I don't think so.

[00:23:21] Speaker 01:
It was simply this litany of preceding circumstances of non-performance.

[00:23:26] Speaker 01:
And performance.

[00:23:27] Speaker 01:
That threatened the contract.

[00:23:27] Speaker 01:
Performance efficiency.

[00:23:28] Speaker 01:
Performance basis, yes.

[00:23:30] Speaker 01:
That threatened the contract.

[00:23:31] Speaker 01:
Performance.

[00:23:35] Speaker 01:
Another reason I'll just mention briefly is that

[00:23:40] Speaker 01:
The admission by K2 that has no interest in the contract itself, basically based on K2A and other cases we've cited in our brief, basically means that there's nothing really for the court to adjudicate.

[00:23:53] Speaker 01:
In order for it to intervene under rules 24A, 24B, rule 19, it has to have an interest common to the

[00:24:00] Speaker 01:
to the action, the subject matter of the action.

[00:24:02] Speaker 01:
The subject matter of the action was the government's failure to award essentially to K-22.

[00:24:08] Speaker 01:
Its interest is entirely separate and apart from that.

[00:24:11] Speaker 01:
That admission takes it outside of rules 24 and 19.

[00:24:19] Speaker 01:
And then finally, following the rules of the Court of Federal Claims, Mr. English notified K-2 of this.

[00:24:26] Speaker 01:
And if this is an opportunity to under Rule 19 say, well, we didn't come in, but we'd like to come in now, then the Court of Federal Claims rules might as well be scrapped.

[00:24:43] Speaker 01:
And the other thing, as far as timeliness, we've heard discussion of whether K2 was really on notice of what Global K9 was complaining about.

[00:24:54] Speaker 01:
So I invite the Court's attention to page

[00:24:56] Speaker 01:
504 of the joint record.

[00:24:59] Speaker 01:
That's the complaint.

[00:25:00] Speaker 01:
That's the complaint that was made public, that K2 acknowledged it read.

[00:25:04] Speaker 01:
And it basically identified K2 as one of the award winners.

[00:25:08] Speaker 04:
You and K9 violated the rules by not serving a redacted copy of the complaint on K2, right?

[00:25:17] Speaker 01:
No.

[00:25:19] Speaker 01:
The rules require, in three places, an appendix C of the court's rules to notify, to certify notification has been given, and then during the initial conference to determine whether the awardee should be admitted.

[00:25:32] Speaker 01:
Mr. English did everything he was required by the court's rules to do.

[00:25:36] Speaker 04:
Wait a moment.

[00:25:36] Speaker 04:
You're not required to serve a redacted copy to disclose a redacted copy?

[00:25:40] Speaker 01:
Not of the complaint, because the complaint was under seal.

[00:25:43] Speaker 01:
He's required to provide a notice that he's going to.

[00:25:45] Speaker 04:
Isn't that totally inappropriate to proceed with a case with the thing under seal and not serving a redacted copy?

[00:25:53] Speaker 04:
We just decided in a case in Ray, United States, talking about Court of International Trade and the importance of having a public record.

[00:26:02] Speaker 04:
How can the complaint be sealed without a redacted copy?

[00:26:07] Speaker 01:
We were sort of the complaint for sure, and had... Yeah, but the public can't see it.

[00:26:11] Speaker 01:
Right.

[00:26:11] Speaker 01:
Had K2 intervened, it could have seen it.

[00:26:14] Speaker 04:
And what it did see... You can't seal a complaint and not...

[00:26:18] Speaker 04:
provide a redacted copy for the public to see.

[00:26:22] Speaker 04:
Are you saying that's consistent with the Court of Federal Claims rule?

[00:26:25] Speaker 01:
No, because the rules require a redacted copy be filed.

[00:26:30] Speaker 04:
Yeah, that was violated, right?

[00:26:31] Speaker 01:
No, on February 24th.

[00:26:33] Speaker 01:
It's in the record.

[00:26:36] Speaker 01:
On February 24th, Mr. English filed a public complaint.

[00:26:40] Speaker 01:
And it specifically, and the public could have read this,

[00:26:42] Speaker 01:
Particularly named K2 as an entity that had been awarded a contract.

[00:26:47] Speaker 01:
Is that the original complaint or the amended complaint?

[00:26:49] Speaker 01:
That's the original complaint.

[00:26:50] Speaker 01:
We're not talking about the... We're not talking about that.

[00:26:52] Speaker 02:
I'm sorry, then I misunderstood.

[00:26:54] Speaker 02:
We're talking about the amended complaint.

[00:26:55] Speaker 02:
Was there ever a redacted amended complaint put on the public docket?

[00:27:02] Speaker 01:
Nothing in the docket now I think shows the amended public complaint.

[00:27:06] Speaker 04:
So that's a violation of the protective order, right?

[00:27:11] Speaker 01:
Mr. English can address this better than I am.

[00:27:14] Speaker 04:
Well, is the answer yes?

[00:27:16] Speaker 04:
You can't conduct a proceeding with a sealed complaint without a redacted copy.

[00:27:21] Speaker 04:
It's a violation of the protective order and the rules not to file a redacted copy, right?

[00:27:28] Speaker 01:
I'll let him address that, and yes, it should be filed.

[00:27:30] Speaker 01:
However, the question here really is one of timeliness.

[00:27:32] Speaker 01:
And because they were notified, as Judge Holt found, and could have read this and found that not only

[00:27:37] Speaker 04:
was k two asking where that was k two named in the complaint right after i think we're out of time thank you mister English you were required to file a redacted copy of the complaint right?

[00:27:59] Speaker 05:
right and of the amended complaint that's right yes sir and why didn't that happen?

[00:28:04] Speaker 05:
I don't know exactly why it didn't.

[00:28:07] Speaker 05:
You'll see at the end of the docket in March, I think, March 13th of 2024, Judge Holt realized there hadn't been redactions filed by anybody in a long time.

[00:28:16] Speaker 05:
And at that point in time, we put redacted copies on the docket.

[00:28:19] Speaker 05:
But it is true that in the course of the litigation, there were not regularly redacted copies filed on the docket after the litigation had been going on.

[00:28:28] Speaker 05:
At that point, it had been four years into this saga, the second time we've been here.

[00:28:33] Speaker 05:
But it is at that point you're asking that it's true.

[00:28:36] Speaker 04:
It's totally inappropriate to conduct a litigation in secret like that.

[00:28:42] Speaker 05:
Well, the docket showed what had been filed.

[00:28:44] Speaker 05:
But you're right.

[00:28:45] Speaker 05:
It is absolutely true that the redacted copies of the motions for judgment on the administrative record and things like that were not timely filed on the docket.

[00:28:52] Speaker 05:
That is 100% the case.

[00:28:54] Speaker 05:
To set the stage a little bit more, to answer some of Your Honor's questions, in December of 2023 was when the claims court finally decided the misrepresentation case or claim and entered the injunctions.

[00:29:10] Speaker 05:
That was December of 2023.

[00:29:13] Speaker 05:
In January of 2024, at pages 9, 10, and 9, 11 of the record, you see the back and forth

[00:29:18] Speaker 05:
between the government and K2 about the performance issues.

[00:29:22] Speaker 05:
The performance issues were reported to the Court of Federal Claims starting in August.

[00:29:25] Speaker 05:
That proceeding was actually stayed several times because we thought there might be a termination for default, which would have mooted that case.

[00:29:32] Speaker 05:
So there were several status reports saying that there are problems with K2.

[00:29:36] Speaker 05:
We're going to pause this case to see what the government decides.

[00:29:39] Speaker 05:
And the government continued to let them perform in part.

[00:29:42] Speaker 05:
But in January of 2024,

[00:29:44] Speaker 05:
there's a decision to terminate for convenience based on the performance default.

[00:29:49] Speaker 05:
And then they identify Judge Holt's decision as a separate alternative reason for justifying default.

[00:29:55] Speaker 05:
That is in January of 2024.

[00:29:58] Speaker 05:
It's about a week after K-2 filed its motion to intervene.

[00:30:03] Speaker 05:
And so that is sort of the timeline of events that we see here.

[00:30:09] Speaker 05:
And so to speak to a couple of the other points that came up, the one thing we did do right from a redaction standpoint was the original complaint.

[00:30:17] Speaker 05:
And it's at 504 of the appendix.

[00:30:19] Speaker 05:
And we did identify K2 as an awardee.

[00:30:23] Speaker 05:
We did serve a pre-filing notice on K2.

[00:30:25] Speaker 05:
And we say at pages 507 and 508, we challenge every aspect of the procurement.

[00:30:30] Speaker 05:
Because we knew there were other things coming.

[00:30:31] Speaker 05:
We couldn't save them because of protective orders in another case.

[00:30:35] Speaker 05:
Every aspect of the procurement, including the evaluation of our proposal, the evaluation of the awardee's proposal.

[00:30:40] Speaker 04:
But there was no notice in the original complaint that it was a misrepresentation issue, right?

[00:30:45] Speaker 05:
No, they weren't, but they knew that their contract was at issue.

[00:30:47] Speaker 05:
They knew that their contract was at risk.

[00:30:49] Speaker 04:
Why couldn't they rely on the government to represent them if the challenge had to do with government conduct rather than their own?

[00:30:56] Speaker 05:
I think they did rely on the government to represent them.

[00:30:58] Speaker 04:
Well, sure, why not?

[00:30:59] Speaker 05:
And the government did represent them.

[00:31:01] Speaker 05:
We had a heated, prolonged debate about the performance issues and the termination for default potentially coming down.

[00:31:08] Speaker 05:
And the government took the position that the judgment of the contracting officer to award the contract wasn't affected by any of these misrepresentations.

[00:31:17] Speaker 05:
So there was a substantial defense put up by the government in response to our claims.

[00:31:22] Speaker 05:
As Judge Hughes said earlier, they lost.

[00:31:25] Speaker 05:
And that's the time at which K2 came in.

[00:31:28] Speaker 05:
K2 had sat out this entire process, which started in late 2020.

[00:31:34] Speaker 05:
This is the second time we've been here in one of these cases.

[00:31:37] Speaker 05:
And they consistently sat out and got more awards.

[00:31:41] Speaker 05:
And so this time they decided not to defend their rights, to let the government do it again.

[00:31:45] Speaker 05:
And it didn't work out for them.

[00:31:47] Speaker 05:
But the main issue, I'd like to spend my last- They were not aware of the misrepresentation claim, right?

[00:31:54] Speaker 05:
They say they weren't, and I don't have any reason to believe they were.

[00:31:56] Speaker 05:
We didn't tell them.

[00:31:58] Speaker 05:
I had assumed the government was telling them, but they say that's not the case and I don't have any basis to dispute that.

[00:32:04] Speaker 02:
How could the government tell them if it was all in stuff filed under seal?

[00:32:10] Speaker 02:
I mean, the government's not going to violate the protective order.

[00:32:13] Speaker 05:
I don't think it would have been a violation of the protective order for the government to say they're making misrepresentation claims you should intervene.

[00:32:19] Speaker 05:
The protective order says what's protected is sensitive information.

[00:32:24] Speaker 05:
And I think the fact of the claim itself would not have been protected such that the government couldn't have disclosed it.

[00:32:31] Speaker 05:
In fact, when we were litigating the case, I thought that the K-2 was intentionally sitting out just to try and support the defense that the judgment couldn't be entered in their absence, because that was another argument that the government made.

[00:32:43] Speaker 05:
on K2's behalf in the middle of the proceedings.

[00:32:46] Speaker 05:
And so that's the way the case played out.

[00:32:49] Speaker 05:
I'm about to run out of time.

[00:32:50] Speaker 05:
So if your honors don't have any further questions for me, I'll sit down.

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

[00:32:54] Speaker 04:
Thank you.

[00:32:56] Speaker 04:
Mr. Hurley.

[00:33:00] Speaker 03:
Thank you, Your Honor.

[00:33:01] Speaker 03:
Very briefly, all of this, as you just heard, happened without K2's knowledge.

[00:33:08] Speaker 03:
K2 was on notice of the original complaint.

[00:33:12] Speaker 03:
The redacted original complaint that was filed in July 2023, when the amended complaint, which is what gives rise to the misstatement allegations, when that was filed, no redacted copy was filed with the court until, I believe, March 2024, which was weeks after.

[00:33:29] Speaker 02:
I understand.

[00:33:30] Speaker 02:
That's clearly a violation of the rules.

[00:33:33] Speaker 02:
They should have filed a redacted complaint.

[00:33:36] Speaker 02:
Is that necessarily lead to any relief on your part?

[00:33:41] Speaker 02:
Because you certainly had the opportunity to seek correction of that and you didn't do that at all.

[00:33:48] Speaker 02:
Even if you did, it was certainly not timely.

[00:33:51] Speaker 03:
Well, I think your honor, I think it does play into the timeliness because if we had received... When did you learn about the redacted amended complaint being filed?

[00:34:01] Speaker 03:
in December of 2023 when we received a copy of the order from the Court of Federal Court.

[00:34:08] Speaker 02:
Were you not under an obligation to follow the docket?

[00:34:12] Speaker 03:
I believe that they did file the docket, but there was nothing in the docket.

[00:34:16] Speaker 02:
The docket had the notice that a redacted complaint was filed.

[00:34:21] Speaker 03:
A sealed amended complaint.

[00:34:23] Speaker 02:
Right.

[00:34:24] Speaker 02:
So you were on notice about the time the sealed amended complaint was filed that an amended complaint had been filed.

[00:34:31] Speaker 02:
And you knew that the rules of requiring a redacted complaint were violated because it wasn't put on the docket in a timely manner.

[00:34:41] Speaker 02:
Right.

[00:34:42] Speaker 02:
I mean, we have to put that, that you have the obligation to follow that.

[00:34:46] Speaker 02:
Right.

[00:34:46] Speaker 02:
So you knew there was a violation.

[00:34:48] Speaker 02:
You didn't timely move to correct that violation.

[00:34:54] Speaker 03:
Correct.

[00:34:55] Speaker 03:
K2 was aware of the amended complaint from the docket, not the substance of the amended complaint.

[00:35:01] Speaker 03:
Sure.

[00:35:01] Speaker 03:
No doubt.

[00:35:02] Speaker 02:
You didn't know about any of these misrepresentation allegations, but you were aware that an amended complaint had been filed.

[00:35:10] Speaker 02:
I mean, aren't you required to have some kind of due diligence to ensure compliance with the court's rules so that you can gain access to that?

[00:35:18] Speaker 02:
You can't wait for like three or four more years or whatever the time was, have an opinion come out and say, oh, you violated the rules.

[00:35:25] Speaker 02:
If we'd known about the contents of this well before the litigation, we would have intervened.

[00:35:31] Speaker 03:
I think that in terms of the timeliness and the due diligence in monitoring the DACA, K2 was relying based on the original complaint on the government defending the award.

[00:35:42] Speaker 02:
Is that a good faith basis if you don't know what's in the amended complaint?

[00:35:46] Speaker 03:
I believe it is, Your Honor, because throughout this, and you just heard for months, there were discussions of K2's conduct and K2's allegations against K2, and without bringing the specifics of the allegations.

[00:36:00] Speaker 02:
It seems seemingly you brought all of this on yourselves.

[00:36:03] Speaker 02:
I mean, they made some mistakes, but if you wanted to defend the award to K2 and make sure that the decision didn't unfairly

[00:36:13] Speaker 02:
cause harm to your client, you should have intervened when the case was filed and at least tried to gain access to the sealed amended complaint so you knew what was being challenged.

[00:36:26] Speaker 02:
And now you want us to unwind everything because you waited too long.

[00:36:31] Speaker 02:
Either that or you want us to order the Court of Federal Claims to write a new opinion.

[00:36:35] Speaker 03:
Whether it's reconsidering it or vacating that portion of it, that is the relief that we were requesting from.

[00:36:44] Speaker 04:
I'm about out of time.

[00:36:44] Speaker 04:
Okay.

[00:36:45] Speaker 04:
Thank you.

[00:36:45] Speaker 04:
Thank all counsel.

[00:36:46] Speaker 04:
The case is submitted.