Government procurement law program on the Supreme Court's landmark decision in low pair of bright enterprises. B. Ramondo issued on June 28, 2,024.
My name is Chris Yukens. I serve as the Lind David research professor in government procurement law at Gw. Law school.
Wanna, as I noted in the chat. Already the recording materials from today's session are available in public procurement, international.com. The the actual link is included there in the chat, and the recording will be available on the Gw. Govern, Gw. Law government procurement law program. Youtube Page as well. Um. That will occur over the next 24 h.
Uh, we have audience questions and answers. We also have chat. If you'd like to ask questions in chat.
Um, the public chat will be part of the recording. This proceedings will be that'll be post on post or on public procurement, international as well. One emphasized that because several of the speakers are advocates as well, speaker statements are in their personal capacities alone.
There's a background discussion paper that that talks about both the lower right enterprises case.
In other cases it's available on public procurement. international.com on the page dedicated.
To this program.
I'm gonna give some introductions in just a minute. We're and we're gonna have 3 separate presentations. The 1st one's gonna be from Joshua Schwartz, Professor Joshua Schwartz.
From Gwline. It's gonna discuss the decisions and Skidmore and Kaiser, and touch on the major questions. Doctrine.
Nicole Williamson from Arnoldor is going to be talking about major government contracts, decisions under the chevron decision that was overruled uh by the court, and will provide enterprises.
Um, I'm gonna join her and talk about AI, which is a major recent decision in the Federal circuit, big protest decision and ask whether or not that, in fact, is the first.st
Post chevron decision ironically issue just a few weeks before lower bright enterprises. Whether it's a template for future cases.
Nathan Castellano and Block will be talking about the love of bright enterprises, case detail. Then we'll have panel discussion and questions from the audience as well. We're gonna try to wrap up in about an hour.
So going through our panelists, I'd like to introduce our very distinguished panelists for the session. Professor Joshua Schwartz is the Ek. Guin Professor of Government Contracts, law at Ew. Law, School.
Professor Schwartz joined the law Faculty 1,985. After serving for 5 years in the office of the Solicitor General in the Department of Justice, where he was responsible for briefing and arguing cases before the Supreme Court, and he was involved, as he'll discuss.
In the chevron case, while it justice.
In addition to his law degree, Professor Schwartz hold a man, hold some master's degree in city and regional planning. He served as a law clerk for Judge Marvin, of the US. District Court for the Southern District.
Of New York they were after he served for 2 years in the Appellate section of the Environment and Natural Resources Division of the Department of Justice.
Professor Schwartz teaches and writes in the fields of property, administrative law, government contracts and legislation, and he's a regular participant in domestic and international conferences on public procurement issues, including comparative public procurement.
Studies.
Nicole Williamson is an associate in the government contracts and National Security Practice Group, but Aren'tor Nicole recently joined A. And P. Rejoined, after finishing a clerkship for the Honorable Sharon, prost of the Us. Court of Appeals for the Federal circuit. So she's a recent.
Um experience in the Federal circuit. She previously clerked for the Honorable Richard Hurtling of the Us. Court of Federal Claims.
Nicole received a law degree from Harvard Law School and her BA. In Political science.
From Washington University in St. Louis.
During law school Nicole served as a legal intern for NASA, where she gained 1st hand experience.
In procurement and administrative law.
Nathan Costello a special counsel in the Government Contracts Practice Group. A general block.
He graduated from Gw. Law school as a Murray schooner and procurement scholar in 2,015.
Last year Nathan joined Ralph Nash and me as a co-author on the 5th edition of the formation of government contracts.
And Nathan is a contributing author, along with Vern Edwards, to the National Board.
Nathan, previously clerk for the Honorable Jimmy Raina, at the United States Court of Appeals for the Federal Circuit.
Intern for the Honorable Mary Ellen Costa Williams, at the United States Court of Federal Claims.
And he worked as a legal consultant to Pascal de Boer.
The World Bank Office of Suspension and the.
Just a quick note on our audience, their audience. We have audience members from 14 countries around the world, and in the United States we have folks registered for W. Uh registered for the program.
Will come from 33 of the 50 States in the District of Columbia.
With that I'll go ahead and turn it over to Joshua.
No, it's just on mute, on mute.
Thank you, Chris. Okay, good morning. Everyone. Thank you for joining us for this Webinar.
It's an exploration. It's intended to be an exploration of the Supreme Court's recent decision in Lower Bright, which you've heard.
And importantly, from my point of view, and maybe everyone's point of view is that Lower Bright says at least that it overruls the 40 year old Supreme Court decision in.
Chevron versus Nrdc. Which is a case I think many of you will know about. Even if it's not your practice area. It is literally the most cited Federal Court decision of all time.
More than Marbury versus madness, if you can believe that. So it's something you ought to know about. And since the law is not chevron.
I guess you need to know something about what Chevron says.
The other thing you ought to know, which many people in the administrative law community would know. But many people in the government contracts community may not.
Is, as Chris says, I was there at the inception. I'm the old guy in the room.
In 1,983 or 84 in the run up to Chevron. I was the assistant to the Solicitor General.
Who wrote a memo about that case.
I was the one who wrote the Government petition. In that case I did not handle it on the merits, or argue it.
Uh, basically, what I'm about to say probably once was a government confidence, but it's been leaked.
For 40 years now by other people, so I think there's no confidential value in it.
The memo I wrote said that the Government should not petition in this case, and that it would and ought to lose.
As Nathan said to me just before we got started.
In a certain sense I've now been vindicated just 40 years late.
Anyway, we did petition. It was shooting fish in the barrel to get cert granted.
Uh chevron had also already filed a search petition, 1 1 cute fun fact that you all ought to know that maybe, is of no legal relevance.
Is that EPA was going through a series of scandals at the time, and the there was an acting administrator which changed day by day.
One day before we filed a cert petition. The acting administration was woman named Anne Burford, and what you need to know about Ann Burford.
Is that before she divorced and remarried, she was angor. Yes, she's just such as Mother.
And of course you may also know the justice. For many years has been.
Uh! Famous for being the most.
Vigorous advocate for overruling chevron. There's a Freudian thing in there somewhere. Um! I just don't.
Undertake to explain it to you.
The dominant. You know I've been following the administrative Lawless on this subject about what Lope Bright did to chevron. They're not focused on the government contract situation specifically, which is basically why we.
Collectively, are here.
But the dominant view. It's not. The only view. The dominant view is that it's all much. You do about nothing, because the Supreme court says it's overruled chevron, but nothing will change.
In brief.
Uh. That would be that those who like to defer to agencies will still defer. They'll just use different language in different citations, and those who don't like to defer to agencies.
Uh will not defer. And there's a lot of that going around, particularly in the 5th circuit.
So it's possible that lobe it actually makes no difference whatsoever. But we're gonna at least examine the possibility that.
It does.
It's ah.
The next thing I need to introduce you to is something that Justice Kagan, who dissented in Bright, might call.
The chevron problem.
She says that before chevron.
And during chevron and after chevron, that's now.
There's always been and always will be, necessarily a chevron. Whether or not there's a chevron doctrine. There's a chevron problem.
And she cites and cases from the 19 forties in particular, Nlmr. Versus which.
When I got started in teaching was taught in every administrative law class engraved from the Supreme Court in 1941, which applied a kind of deference which many people think is indistinguishable.
From Chevron.
I used to say a little bit, Flip, that chevron had to be understood as the second coming of Hearst.
And that it actually did nothing new.
It's also worth knowing that it was always just a Stephen's view. Justice Stevens wrote Chevron.
That chevron did nothing new.
I've now got this corroborated from 3 separate sources, and.
Might as well briefly mention.
Uh, like important cases uh chevron came down at the end of a Supreme Court term.
And write it through the end of that term there was a Major Law Conference Administrative Law Conference at the Columbia Law School.
And Justice Stevens was invited.
And Professor Peter Strauss and eminent scholar in the area, now retired.
Was there, and he walks up to Justice Stephens and I have this from Peter's mouth.
Not just Stevens, but wait.
And Peter says to the justice, that's a very important and revolutionary decision you rendered, and Justice Stevens 1st effects to not even know what he's talking about.
Because.
I didn't do anything, nothing going on here, nothing to see here.
And then he said, this was meant to be a restatement of existing law.
He said the same thing to Dan Farber a a long time. Law professor, who was his law clerk.
And he said the same thing to Sam Estr a long time. Law professor at Nyu.
Who did an oral history of this stuff, and in each case he said, we didn't mean to do anything new.
So, if.
Overruling chevron means returning to the law before chevron. Possibly the law before chevron was meant to be the same as the law after chevron.
The reason there's a chevron problem. Whether you like the doctrine or not is that Congress frequently passes that contain ambiguities and gaps.
I'm tempted to say, but it's in decorus duh, I mean, it's hard to see how any lawyer could.
Doubt that proposition.
Uh he or she. You know you make your money by dealing with such.
Such things.
Um. The majority in Loper Bright doesn't quite acknowledge this, but it certainly doesn't deny it, and it.
Tacitly accepts it.
No matter what.
So.
There's a problem about what you're going to do when the statute is not clear on the question that an agency needs to solve.
Um.
And, roughly speaking, as the court says in Lope, you could either defer to what the agency thinks about the gaps.
Or you could have the court decided independently.
But, as I've said, there's a long time history of.
Uh deferring to agencies before there was a chevron doctrine.
And even lower. Bright says, well, we're not saying we won't give them a lot of respect.
Respect is the new deference.
It's like orange is the new black respect. It's the new.
Um. You can't call it chevron, but that doesn't mean you aren't doing the same thing.
I'm expecting that most of you are familiar with the what's usually described as the 2 Stepron test. Can we go to that slide? Chris? Um.
Yeah.
Uh, we're skipping skid more for a reason. We'll come back.
Um. Although chevron is described by Chevron as a 2 step test.
Uh, almost everyone, including Bright, will describe it as either a 3 or a 4 step test, and since lawyers are presumed to be a numeric.
And we need a number lower than step one.
What this has been christened as Step 0. Even Lowbright accepts that.
And.
At least most scholars accept that step. 0 has 2 parts, because.
Lawyers don't do negative numbers, so we can't have a step. Negative one in front of step 0.
So step 0 has part A and part B.
Okay, the basic idea.
Is, the chevron only applies when a statute is to be applied only by one particular agency.
There's some wrinkles in that.
But they don't much matter for our purposes. Notice that this is very important in government contracts. World.
Because most of our statutes.
Whether you're talking about the Apa or Foia, but also the.
Leave Fpasa.
Apply to multiple agencies.
No stage agency gets on what to do with that statute, how to interpret that statute.
Because which one would you defer to.
The only one who can possibly claim difference.
Is some the far council, or some part of the operation that produces the far.
Interprets those statutes.
Um and um. The office of Federal Procurement.
Policy Act also comes into play. There.
But only agencies which can claim they they uniquely have oversight over the whole shoot match.
And claim difference. There.
But.
May as well say this now. I'll say it again later. There's another way to get difference, which is, when a statute.
Expressly delegates authority to.
One or more agencies.
And we actually have that in with regard to the creation of the far.
So.
Deference to the far.
As an interpretation of the statutes that sit on top of it or underneath it.
Does not depend on chevron or lower bright. And I'm gonna say.
May not be changed at all.
So chevron applies only when you have a statute that applies to a particular agency. Second, it applies only when you do the right kind of administrative proceeding I'm going to mostly skip over that. That's.
Um 3.rd
The agency, the court, the reviewing court, is supposed to interpret the statute using.
Quote all the traditional tools of statutory interpretation.
Which means, if you're a text to list, do that.
If you're not a text list, do that.
Use legislative history or not. But whatever you would do, you use all those tools.
There's nothing special here.
If, after all that.
The statue doesn't yield an answer, chevron said. You should treat that as a delegation to the agency to fill in the gaps as though it were an express delegation, like.
EPA has tons of express delegations that say.
You know, make regulations for the Clean Air Act.
Make regulations for the Clean Water Act.
What?
Chevron rested on was that theory of implied delegation. And then, finally, the last step of chevron was.
If you get to this step, and you may not, because it's the wrong kind of proceeding, or the wrong kind of statute.
Or it's a clear statute, and there's no gap. But if you, if it's the right kind of statute and the right kind of proceeding.
And it's the.
Uh, and the statute really.
Using all the traditional tools is not clear.
Then you defer to the agency, and you uphold its decision the same way you would in any other delegation.
Express delegation.
If it's reasonable.
And reasonable means the same thing as arbitrary, capricious, under the um.
Under the Administrative Procedure Act.
Justice Stevens has also been asked why he didn't use the term.
Arbitrary and capricious the Apa term he, instead, he used the term reasonable.
And basically, the answer is no reason. Their synonyms.
It, took.
20 years of working that out, that their synonyms, but their synonyms.
So you'll notice that what Chevron does is says you apply the same approach.
To express delegations, and to implied delegations.
Because of this rule about.
Chevron only applies when you have a delegation to one agency.
Essentially that has to be true because otherwise.
Are you gonna defer to the Labor Department or the Commerce Department about the interpretation of the Apa? What if they don't say the same thing.
Okay.
Uh, so easy examples.
Uh the.
The we defer to the Nlrb.
Additional Relations Board and interpreting the National Labor Relations Act, because that's a single agency express delegation.
We defer to the EPA in interpreting the clean air or the Clean Water Act.
Notice that chevron probably doesn't really involve the Apa at all. The court seems to miss that fact.
We do we defer to the um.
National Wildlife Service of the Interior Department. In interpreting the Endangered Species Act.
We don't apply to anyone. Defer to anyone in the interpretation of the Apa.
And probably the same thing is true for Foia and any other.
Generally applicable statute. If it applies to everyone you defer to no one.
So that's the situation that we were in.
Under chevron.
And I'm about to run out of time, I suspect. But um.
The key thing is, the chevron is the case about.
Implicit delegations, and it's not the case about express delegations where the law.
Uh hasn't really changed at all.
The um.
Last thing I want to mention, and we can do some other things, and you can ask questions later. There is in recent years, last 4 or 5 years, particularly this thing called a major questions doctrine.
Um. And it turns out that there are 2 major questions most everyone agrees with that. One version of the major questions doctrine.
Applies only.
As an exception to chevron.
And if Chevron is gone, then that's gone.
Um.
But, on the other hand.
The other version, which is still, I think, very much alive.
Is that the major questions. Doctrine applies to say you need an unusually clear statement.
If a general statutory express delegation.
Is being relied on to allow an agency to do something politically controversial, and the best example of that.
Is the vaccine mandate.
Or certain environmental regulations. Um.
Which um say phase, out, call.
Power, entirely.
If Congress wouldn't have delegated this, then.
The statute shouldn't be read as delegating it.
But the statutes applicate uh the dot application of this doctrine.
Which was the original application under chevron, I think, is just a dead letter. There's no reason for it anymore.
I think I want to stop there, because otherwise I'm infringing on my colleagues time.
And I'm happy to take your questions later.
Chris.
Thanks very much. Joshua.
With that I'll turn it over to Nicole.
Great. Thank you, and let me begin by saying I'm delighted to be among such panelists today.
Um, I'd like to start my discussion um, by discussing the framework under chevron, and how chevron has been considered by courts in the past, and so there are a great number of cases that could be discussed here.
Um. But I'd like to just focus on a few representative examples here.
And so, as we just heard.
The uh the Federal acquisition. The far is the result of a 1979 statute.
Which directs the office of Federal procurement policy within the office of management and budget.
To issue policies for the purpose of promoting the development and implementation of a uniform procurement system, and so updates to the far are generally made by the Administrator of General services. The Secretary of Defense.
And the administrator of NASA, acting on behalf of the Federal Acquisition Regulatory Council.
And so, like other regulations.
Fire. Provisions are agency interpretations of the statutes that they implement, and courts generally review the fire. Provisions in light of chevron.
And considering whether the interpretations are entitled to deference. And so, turning to this 1st case, example here.
Newport News. Shipbuilding.
This case uh involved the question of whether the contractor had properly certified its claim to the contracting officer.
And so the Asba had properly had granted the courts. Uh sorry the Government's motion to dismiss for lack of jurisdiction.
Uh for failure to certify the claim to the contracting officer.
Under the Contract Disputes Act, section 6, c. 1.
In the implementing regulation, which was far 33, 2 ah, 7 c. 2.
Because the person who had uh signed the claim on behalf of the contractor was not authorized to do so.
And the Federal circuit in this case affirmed.
The court explained that the Cda. Was silent on the individual who can certify a claim.
And that left a gap.
In that gap uh far. 33, 2 0, 7 c. 2 uh provided direction on who could certify the claim? And it filled the gap implicitly left by Congress.
Respecting who who could certify the claim. And so the Court noted that the office of Federal procurement policy.
Had the statutory power.
Under 41, Usc. 6 0. 7 H.
To issue guidelines for the functions of agency boards. And so I'll directly quote from the Federal circuit here.
The court told us that on its face 33, 2 ah, 7 c. 2, which fills the gap.
That Congress implicitly left regarding who may certify under section.
6 c. 1 of the Cda.
Is clearly within the congressionally delegated authority of the PP.
Therefore we must accord considerable weight to the agency's interpretation of a statute.
It is responsible to implement.
End quote, and the court cited chevron. There.
And so this case demonstrates that where the statute was silent on a particular issue, the fire provision filled that gap implicitly left by Congress, and there the Federal Circuit deferred.
To the far provision.
If we turn to the second bullet here, deference to Sba regulations.
One example case is plenty of partners, which was a 2015 Federal circuit case.
And there it was an Nih solicitation that was set aside for small businesses.
And a prospective offer challenged the Naics Code, the North American Industry Classification System Code.
For that particular procurement to the Sba and the Sba office of hearings and appeals.
Um.
Considered the code, and determined that the contracting officer should change the code for the procurement.
Palladian then filed a suit at the quote a Federal claims, seeking to enjoy use of the new code without having participated in the Sba proceedings.
And so here Sba regulations provide that the appeal as an administrative remedy that must be exhausted before judicial review of a Naics code designation may be sought in court.
And Palladian had not done that.
So, the court explained. And again I'll quote from the Federal circuit here.
They said.
Whereas here Congress has specifically delegated role making authority.
To an agency.
Courts lack authority to undermine the regime established, unless the regulation is arbitrary, capricious.
Or manifestly contrary to the statute.
And so at the end of the day the court held.
The Sb. Is regulations require an interested party to participate in a pending. Oh, makes code appeal.
Or be precluded from filing suit. So the bottom line is that.
This is another instance of difference here to the Sba's regulations regarding exhaustion.
And so in the final bullet, you'll see on the slide here.
Cost accounting. This is another area where we've seen difference in the past, and so.
Specifically cost allowability concerns whether a particular cost can be recovered.
Uh from the government, in whole or in part.
And so allowability of a particular cost is governed by the cost. Principles which are expressed in far 31.
And so just as.
One example case, of course, there are several relevant cases here.
Um 2 in 2,003. The Federal circuit had a decision involving um allowable costs.
This was under a cost reimbursement contract.
And the contractor was seeking fees uh it incurred in defending against criminal charges that were brought against its employee for fraud.
And so here the employee was convicted of fraud. But the contractor was not.
The contracting officer denied the claim for costs.
And the board ruled in favor of the font factor on entitlement.
And so on. Appeal to the Federal Circuit.
The Federal circuit held at far 31, 2, 0, 5.
4 7 b. Defines the term contractor.
To include both the contractor.
And the contractors, employee.
And it disallows, costs incurred in the unsuccessful defense of criminal proceedings.
We're an employee is convicted, even if the contractor is not.
And so they're the Federal circuit. Found that the statute 10 Usc. Section 2324, as amended by the Major Fraud Act of 1988.
Was ambiguous.
The statue did not expressly provide.
Who may be convicted.
Or who must be convicted for purposes of cost, disallowance.
And so, having found the statute ambiguous, the court asked whether Congress.
Has left an explicit or implicit gap to fill. So it explained again that.
The far is the very type of regulation that the Supreme Court and Chevron has held.
Should be afforded deference.
Because Congress had specifically authorized far.
And so the court held that the regulations were a reasonable interpretation of the statute, and held that that far provision 31, 2, 0, 5, 4 7 b.
Was entitled to chevron deference.
And so I think these 3 cases just provide an example of how Chevron has worked.
In the past, and how courts have tended to defer to the regulation.
If we could turn to the next slide.
So I'll just discuss 3 additional cases, as many of us in the Government contract community know. There are very few.
Supreme Court decisions in the government contracts world. But we, we have this case kingdomware to 2,016.
Authored by Justice Thomas.
And this case shows a statutory interpretation where the court found the statute to be.
Unambiguous, and declined to defer to the agency. Here.
And so by way of background.
The Veterans. Entrepreneurship and Small Business Development Act established.
A 3% government-wide goal for contracting with small, disadvantaged veteran owned small businesses.
And so to reach that goal a separate set aside provision is known as the rule of 2.
It establishes that the contracting officer shall award contracts by restricting the competition.
To veteran owned small businesses. If the officer reasonably expects that there will be.
To such small businesses submitting offers, and that the award can be made at a fair and reasonable price.
And so, in finalizing its regulations to implement the act. The Va. Had stated in a preamble that the statute in Section 81, 27.
Those procedures did not apply to Federal supply schedule task or delivery orders.
And so in its decision.
Well. The court noted that kingdomware.
Had alleged that the VA. Had procured multiple contracts through the Federal supply schedule without having restricted that competition, using the rule of 2, as the statute required.
And so Justice Thomas explained for the court that section 81, 27 d. At unambiguously required the Va. To use the rule of 2 before contracting under competitive procedures.
And the court said that there are no exceptions for orders for the Federal supply.
System.
And that Fss. Orders are contracts.
And so, you know, as relevant for our purposes here in terms of deference, the court said, and again I'll quote directly from the court.
The Department asked us to defer to its interpretation that Fss. Orders are not contracts, and the court then cited chevron.
Even assuming, though, that the preamble to the agency's rule making could be, oh, chevron deference.
We do not defer to the agency when the statute is unambiguous. And so, for the reasons already given.
The text of section 81, 20 clearly imposes a mandatory duty, and then the court said, we declined the department into invitation to defer to its interpretation.
So this is an example where the court did not defer. They found the statute unambiguous, and that was kind of the end of the day. There.
And turn to the next slide.
Great. Thank you.
So this case it has a little bit of a complicated history, and.
Legislative history. Here. Um.
But this is a case where the Federal circuit interpreted. The Randolph Shepherd Act.
And so that's an act that provides blind persons with employment and economic opportunities by permitting them to operate. Vending stands in Federal buildings, and so amendments to the act.
A given blind vendor is a priority.
In operating new facilities.
And provided that any income from vending machines not operated by them was.
Required to be shared with the blind vendors directly or with State agencies, for the blind.
And so the statute had contained an exception for that income, sharing um.
For retail sale out uh vending machines in retail sales outlets under the control of exchange or ship store systems.
And so the Dod.
How to regulation that interpreted the statute to mean that income from vending machines operated by or for the military exchange.
Or ship store systems. Those were exempt from the statute.
And so here I'll quote again the relevant language from the Federal circuit. The Federal circuit had looked at the ambiguities in the statutory language.
The legislative history that supported the Department of Defense Position. The purpose of the exemption.
And the status of the military exchanges as non-appropriated.
Fund instrumentalities performing at essential government services.
And so the Federal circuit said, we are convinced that Dod's regulation is reasonable.
It is not in conflict with the intent of Congress, as expressed in the statute.
For the foregoing reasons we agree with the 10th Circuit that Dod's regulation is not void.
And so this is a great case to examine in terms of the different tools of statutory interpretation, and how the court had kind of come to that decision.
And then I'll I'll turn to the final case.
Thank you.
Okay. So finally, we have this 2,011 Federal circuit decision and Allied technology group.
And so this.
Post award bid protest brought by Allied of a Department of Justice award of a contract.
For an Internet job.
Listing website.
Which was awarded to monster. And so there were a couple of arguments at play here, but as relevant for us this morning.
Um Allied had argued that monster did not meet the requirements of Section 508.
Of the Rehabilitation Act.
And so here the Quarter Federal claims grantedment on the administrative record to the Government and to monster as an intervenor, and the Federal circuit affirmed and.
We'll focus on the majority. But really the chevron aspect comes in and the descent. And so in the majority.
Allies had argued that the contracting officer may not award the contract to an offeror.
Who had failed to meet the requirements of the solicitation and.
Allied had tried to show that monster did not meet the requirements of Section 508 of the Rehabilitation Act.
And so here the court agreed with allied that compliance with section 508 is mandatory.
But because Monster had explicitly certified in its proposal that it was compliant with section 5. Ah, 8.
Including, by submitting assigned certification.
Um. The court held that the contracting officer was entitled to rely on that certification in determining whether or not to accept the bid.
And so the court really was emphasizing the difference to the contracting officer. There.
The Dissent.
Which was by Judge Bryson.
Had a different opinion. The dissent emphasized that Congress had delegated role, making authority.
Under section 5. Elite.
To the architectural transportation barriers, compliance board.
Uh, which promulgated regulations that are known as the electronic and information technology accessibility standards.
And so.
Essentially the dissent was saying, there are regulations in place that specify exactly what the contractor was meant to do.
And master had not really shown that it was compliant. And so, to quote here the relevant language involving chevron.
Brys, Bryson had said, although the majority characterizes the comparable access requirement of Section 508 as flexible.
The regulations to which we owe deference under chevron.
Require specific modes of compliance which were not met in monstrous proposal.
Or in the contracting officer's response to that proposal.
And so the descent wanted to defer to the applicable regulations. But really, of course, the majority opinion is what carries the day, and the majority had left the issue to the contracting officer's discretion.
And so I think this case in the 3 cases show different levels of deference, and how.
These issues have, you know, played out in courts historically, all of which may uh.
Be impacted a little bit by this new decision.
Thank you very, very much, Nicole. It's very interesting. They just. And so we're Nicole was talking about the history of deference.
In the government contracts cases, and understanding the the difference between express delegation and implied delegation that Joshua went into that division, and the question of continuing deference. But, as Joshua said, the word is no longer deference, the word is respect.
How much respect.
The courts should show to agency interpretations that's going to continue into Nathan's discussion in just a minute. I just very briefly wanted to touch on AI and preserving AI was a decision that came down early in June, and in the decision the Federal circuit found standing in percipient.
Even though percipient.
Didn't actually bid on the contract at issue. So it was a big protest.
Where the plaintiff never actually bid.
The, the.
Federal circuit pointed to.
A statue which said that.
The prime contractor, the one the Id. IQ. Contract.
Should, if at all possible, reach out for alternative commercial solutions in the marketplace.
And the contractor didn't do that, and then recipient bought his bid protest.
The, the.
Federal Circuit also said the task order bar didn't apply because it wasn't really a task order being challenged. It was the overall way that the task order contract was being implemented.
This case through June generated enormous controversy within the community. You said in meetings of lawyers, and they say, How do we read this? Is it rewrite, rewrite, standing to give subcontractors subcontractor standings? When could a bid protest be brought? Could he brought at any point.
How do we read this decision? There was a lot of confusion about the decision which again was published, only there's a very good, by the way, very good commentary on the decision was published on June 24th by Jim Mcculla and his colleagues at Fred Frank. That's in the government contractor.
Well, that was on June 24, th but and then June 28.th
The decision was issued in Lower Bride Enterprises.
And you said Holy cow, maybe better understood against the tapestry of cases, and maybe it foretells for us.
What's gonna happen in the future?
What's gonna happen under lower bride enterprises. We enter this.
Post chevron era, and, interestingly, while a lot of the chevron and Lover bride enterprises controversy has to do with conservative, versus liberal judges, Conservative versus Liberal in the broader society. Interestingly, the 2 judges in percipient.
Those 2 judges were Obama administration appointees. They're not.
Part of.
They're not. They're not Conservatives, and yet.
They took a very aggressive approach.
To the existing case. Loas Judge pointed out in his descent in in in percipient AI.
And there. What we can begin to see here is that there are.
3. Separate elements, so 3. Separate.
Common elements in these cases that could be very important in the future, as we understand future cases as well after lower bright enterprises versus. There's a disturbing action in the in the administrative State. In this case the Federal circuit majority was very concerned about the fact that the agency hadn't ensured that the prime contractor reached out for what was, according. The pleadings are readily available. Commercial solution.
This is like in kingdom where where the department of veterans, affairs in kingdomware was arguing against a preference for veterans that seem like a disturbing action in the administrative State.
The the the decision is driven by a presumption that the statute regulations. And if you look at as as Nicole explained, if you look at the kingdomware case. That's a very aggressive assumption.
But that assumption under chevron. And now we much more freedom after Loper. Bright enterprises is Nathan's. Gonna explain.
The court can reach in and make its own interpretational law. That's a very important.
Part of that.
That forceful reading in the law as a as the courts take first.st
Authority for interpreting a law. That very forceful interpretation of the law.
Can disrupt an existing architecture. The law, such as in kingdom, in kingdom, where the idea of task orders versus contracts being different things.
So that seems to be an important 3rd element, as we think about cases.
After low overbrite enterprises, so percipient AI becomes not a confusing case.
But an interesting way of thinking about the future after Lupa bright enterprises. With that I'll turn it over to Nathan.
Thank you, Chris. I'm gonna comment on recipient. For just a moment. I've been um.
Hesitant to accept Chris's invitation to to put these cases.
Together. I think we could talk for a whole hour about recipient without ever saying chevron.
But the ideas in my head now, and I can't shake it so that there are sort of 3 parallels we can draw between them that that help.
The 1st is just like, why have we not seen chevron cited, and any of the precipient decisions of the briefs? And I think the answer is so far.
The disputes in that case have been all about.
Preliminary threshold issues of jurisdiction and interested party status and waiver. And those are the kinds of issues we never would have applied to everyone deference to. In the 1st place, we wouldn't ask.
How does the chevron think we should interpret interested party in 1,498? How does an agency think we should interpret the task or to bar those are jurisdictional issues. And they're really not in the agencies. Um.
Territory, to interpret.
If you move to the merits of recipient.
I'm not sure Chevron really comes into play there, either, because we have a it's a very strong statutory mandate.
Shall, to the maximum extent practical.
Prioritize commercial and non developmental items. I'm paraphrasing, but it's strong, broad language.
You have a whole far part 12, implementing it in detail with strong language.
And I'm not sure this is a case where agencies are coming back, saying, Oh, we interpret a little differently. We interpret far, part 12 a little differently. The response is more, hey, this is none of your business, and we have to have some room to decide how we manage this. And I I'm not sure that's the case.
That's an issue that changes with or without chevron. I do think that without chevron, you're gonna have a lot more agencies in that position of being hauled in the court, having to answer to statutory language that they've previously.
Thought of is something they could handle on their own, and is now going to be brought into courts.
And the 3rd point, um.
It's just starting decis. A lot of the lower bright opinion is about.
When is it appropriate for the Supreme Court to come in and officially overturn.
Prior established precedent.
As opposed to what we've seen over the past decade of just kind of ghosting the precedent, not signing it for 10 years.
And what we're seeing, I think right now, in reaction to the decision. And I recommend reading Judge Samson's recent contribution to the National Synbit Report.
Talking about the disruption and the discomfort that comes when the Federal circuit sort of issues, these piecemeal decisions, changing the statutory framework for jurisdiction and standing.
That has its own. It's like they're they're kind of the Federal circuit right now. Seems to be sort of ghosting some of their prior precedent on standing in jurisdiction.
And we have to wonder. Is it finally time for them to go on bunk? And actually, you know, put the tombstone on some of their prior cases. Or we just gonna see this piecemeal evolution that.
May work, but also leaves us uh as government contractors in a very sort of uncomfortable place.
And that's that's sort of where I think Lope or bright might overlap.
I mean moving on uh 2 local. It's an interesting case of the the actual background of the case about.
Um, who's gonna pay fees for having supervisors on uh hearing fish folks? And, Chris, I understand you have some connection to this from a.
Yeah, so just full disclosure. So my brother is actually commercial fisherman in New England, and we had dinner again last night. Every single damn family dinner we have together. He complains about this inspection fee.
It's a it's a very big deal in the in the industry, and I told them. Hey, overwrite! Said the inspection. Fee goes away.
He was very, very, very happy. Cause it's a big deal for the fisherman. They're paying for an inspector that, according to Supreme Court, takes away 20% of their of their daily revenue.
So if you haven't heard of bright, overturned chevron.
And the 1st thing I really want to focus on is the distinction between.
Overturning chevron on a constitutional basis under Article 3 and overturning chevron.
Based on the text of the Apa.
You. That's a 6, 3.
Decision really, of 6 justices.
Voting to overturn chevron.
The majority opinion.
Really does it. Everyone's invoking the idea at the outset. Hey, article 3. Marbury versus Madison, the.
Judiciary is there to decide what the law is to read the law and interpret it.
The majority decision moves on from that pretty quickly, and says, with that backdrop Congress passes the Apa, and the Apa tells.
To decide issues of law.
And chevron deference is actually inconsistent with that language in the Apa.
If you read the concurring opinions.
It's clear that.
There's also an argument out there that chevron deference is just.
Flat out. Unconstitutional. It's it's an abdication of the courts. Article 3. Duty.
To defer to an agency's interpretation of law.
And I think this distinction, if it holds.
Could matter, as we think about how this applies to government contracts cases, because.
A lot of.
Government contracts. Law really exists outside.
Of the Apa.
The Apa rule, making procedures actually carve out issues of public contracts. The far is not promulgated under the Apa rulemaking procedures. We have our own statute. It it looks similar. They're borrowing from each other, but it's a different statute.
We don't litigate, bid protests and claims under the Apa.
We litigate them under different statutory frameworks, and we borrow the Apa standard sometimes. So there's at least.
Some room to think about.
Whether or not.
If Loperbrite really is tied to the text of the Apa.
Does that necessarily.
Uh apply to any given government contract issue. And I think the common theme going through all this is moving forward. We're just gonna have to be much more thoughtful about understanding.
Where each regulation comes from. What's the underlying statute? What does it say.
And.
What are the implications.
From there. I think we can start that with just this.
Article 3. Apa. Distinction.
The second point I want to discuss, I think, uh.
Chris, this is the when do we defer slide.
So as uh, I think this.
Professor Schwartz was teeing up the idea that.
The chevron problem. You just sometimes you're gonna have an ambiguity. You're gonna have a hole in the statute, and there's no getting around it, and you have to decide.
Who's going to decide? When, if ever, would, you defer to an agency.
And then lower bright. You you get some lip service to well, sometimes agency will persuade us. Sometimes they'll have special expertise, sometimes maybe they were there when the statute was written, and they've kept to the same interpretation since then. It's just.
Persuasive.
Um.
Chris. It might be one slide.
Back. I'm looking for that lower delegation language.
Not there, maybe forward.
There we go!
So this last bullet.
I think has. And this isn't really just me thinking. This is something Professor Short said. While we're preparing, it turns out there's articles about this, and it's you know I didn't just make this up. But in this last bullet we've got a quote here from Loper Bright, where it looks like it's an escape valve.
To invite back in.
Some difference. And I'm I'm not gonna quote it. But the idea is that you know, if the course, the course job to interpret the statute, and sometimes the best meaning of the statute is that Congress delegated the issue to the agency.
And if you find that.
The the meaning of the statute is that Congress wanted the agency to decide.
It might end up just asking if the agency made a reasonable decision, and that might end up looking a lot like chevron deference. And you could go from saying, instead of chevron deference, we'll just call it loper delegation.
Sort of move around it in a lot of the underlying.
Government contract statutes. I I think you could fairly read them, is actually giving that delegation, and we may end up in a situation where.
There really isn't that much of a loss.
Uh from Chevron deference.
There are 2 areas I wanna just flag is.
Potentially up for um.
That that might. You know, we've we've spoken a lot about how, hey? Maybe this doesn't impact government contracts a lot. I think there are some places that are up for rethinking.
One, is.
There is a line of the cost accounting rules that Nicole flagged where it's really questionable whether the rules on allowability of certain costs relating to legal proceedings.
Are allowable.
Does the far rule.
Follow this, the underlying statute, the Federal circuit is deferred to the forest position invoking chevron, and if you really have a question there of.
Is that still true? And that's you know. That's 1 example has written a lot about it. So it's sort of already out there. But I think, as we really peel back the onion and start looking at. Where do all these far rules derive from? Where has the far council maybe taken some liberties.
Uh, we may find other principles and other provisions, just one by one, that are sort of open for question.
Um.
Another.
This is.
On this list of ideas of, you know here important issues of procurement law that might.
Be up for question. One that we don't have listed on here is just the paid ambiguity.
We defer to agency interpretations all the time.
We have government contracts written by the Government.
Full of regulatory terms written by the Government.
Normally under contract, those terms would be interpreted against the Government.
But we have a rule that just draws a line. If the contractor doesn't complain for the contract is formed, we'll defer to any reasonable interpretation the Government can come up with. I'm not sure that.
Does. I'm not sure that's overturned by local Bright, but I think this is enough to sort of make us.
Perhaps question.
Whether the Peyton ambiguity doctrine makes sense.
Um.
Just a few other points for us. Sort of open this up.
A lot of these.
To figure out the impact of this. I think we're gonna have to look beyond the Federal circuit.
The Federal circuit is gonna decide, protest claims a lot of important issues. But the real, like the big rulemakings.
Covid mandates. Ghg. Rules.
That litigation is likely going to play out in District court outside of Federal circuit. And we're gonna have the issues that uh Professor short, was talking about, of.
Is this a major? Questions doctrine issue? Is there room in the statute to permit these massive, regulatory frameworks? Or is this gonna be.
Sort of the end of um.
To whole new compliance. Regimes.
Plugged in through government contracts.
And on that point we, it's easy to say.
We often say the Federal Circuit is our Supreme Court, and that's true in many ways. It's true. If a client, you know, just lost. The Federal Circuit wants to go Supreme Court.
It. It is a good way to remind them that, empirically speaking, they're probably not gonna review your protests to your claim.
Um. If the Federal circuit issues a sloppy decision or has some stray language and a footnote. And you want to emphasize the the impact of that. It's good to remind you really isn't gonna weigh in here, and that that footnotes going to be the last word. But it's we can't let that be an excuse to not.
Watch what's happening at the Supreme Court. Watch what's happening in other circuits because they're issuing decisions every year that do impact government contracting.
And we can't just be laser focused.
On the Federal Circuit.
Um.
Just sort of this. All just comes down to just good lawyering, of keeping your eyes on all the different dockets.
That matter. Speaking of good lawyering, I think, with.
Between Kaiser lope. This focus on statutory interpretation.
And regulatory interpretation. It really sort of raised the premium on mastering the tools of interpretation.
Right these are. This is all just.
Things that we, we assume good lawyers know how to do, but you really have to train to do them.
You gotta, you know, read so one's statutory construction readily, and garner reading law right like this. There are rules written down that we have to follow, and I think.
In recent years mastering those rules is gonna look more and more like what we have to do to be good lawyers.
Another thing good lawyers do is.
Read the briefs.
Right.
You find an important case. You go look at the docket, you pull the briefs. You see what happened. You can do that. The Supreme Court. You can listen to the argument. You can do it. The Federal circuit there will be redacted briefs.
You can listen to the argument.
JO. The boards. There is no docket. You can't read the briefs.
We have a doctor. The core Federal claims.
But redactions are not always available, and so it limits our ability to really dig in and learn from the other lawyers litigating these issues.
So I'm gonna.
Stop my rant and open it up for uh.
Discussion.
You know. I thank you very just to amplify that Nathan's point. He's pointed as we prepare for this webinar the last few weeks he's emphasized again and again. How important it is there that we, as lawyers and his professors, understand.
Rules and principles, Tools of Stature or Instruction.
Uh, because those tools we apply both the statutes and probably regulations.
Under the local bright is it? Is the threshold matter trying to make sense.
Of what Congress or the agency meant. Before we turn to these other potential points of change, we did have a question overall um, which was.
How will this override enterprises? Decision affect line personnel? And the answer is is really hard to tell, because it's difficult to see where the courts will go exactly with this there's likely to be. We no longer use the word deference. There's likely to be respect to the agencies that are right that are under the far. So there's gonna be respect to the far. That's pretty well.
Develop in our laws, Nicole pointed out. But it's going to. It's very possible, as we're discussing just a second that there that the agencies are going to be less.
Activist less aggressive in terms of the rulemaking, because there'll be a possible attack under lap right where the courts will say no, you don't get to decide what the law is. We get to decide what the laws. That's what the function of the courts is.
Um. Joshua, I know, has had a point to pick up on what Nicole and Nathan say been talking about, and also Joshua, if you could also just talk briefly about whether or not now, after right, we're in a in a Skidmore world or in a Kaiser world.
Joshua.
Sure.
Uh second. First, st the court says we're in a Skidmore world.
World. It says it very explicitly. It says it 3 times.
You know my colleagues, administrative law professors, don't necessarily believe that. And there's some of them that, says Skidmore, has 2 consecutive sentences. They only quote the one. So, you know, is consistency, longstandingness, eh?
Remains to be seen. But they say they're doing Skidmore, and they don't say a word about Kaiser, though a lot of people propose that. So I think silence about Kaiser and invoking Skidmore is what was intended.
The other thing I wanted to do was underscore. What Nathan said about lawyers needing to be careful about where particular delegations come from.
This could not be more true. I wanted to just briefly illustrate.
If you think about the cases that Nicole brought.
They are cases that actually had expressions in them. Nathan also made that point.
Um.
But.
It's also true that the old cases were just careless about whether it was a general express or an implicit delegation. Judge Bryson, who's an old friend and the best lawyer I know in this world. When he says this is a chevron deference case. He's just wrong. There's a specific.
Delegation. There.
And so you don't need chevron. But no one cared about that in the old regime. And so there are a lot of old cases that site chevron.
Where now what careful lawyers are going to do if they're on one side or on the other, is to go back and say.
Does this depend on Chevron? And you might come up with a yes, you might come up with a no, you might come up with an argument for the court.
But that's what it's gonna be about. And Nathan's advice couldn't be better taken.
On on those points, enormously important.
Thank you very much, Joshua, and this I know. I want to go back to the specific examples here on the slide and with the audience indulgence because we do have a lot to cover, and we also have a couple of questions pending. Um, if if um, we could just talk a little bit about these points, and then go till go to 1015, and I apologize for going a little over time.
Um, Nathan, what's your view on the there's there's a final rule was issued with regards to green procurement agencies are supposed to make the maximum possible use of of green procurement using ecolabels. That's a finalized rule.
There is a pending rule back from November. I think it's November twia 23. The pending rule says that the the contractors that are significant contractors.
Are required to chronicled their greenhouse gas emissions and report those.
Really, it's a it's a if they don't, they could be found non responsible.
Yeah, it's a 1st step to eventually bringing greenhouse gas emissions into a technical assessment that the greener contractor would get the contract.
Um. But that's been derailed by the National Defense Authorization Act, which last Year's National Defense Authorization Act, said the Defense Department is not allowed to ask for that information permanently from the non traditional contractors and from traditional contractors, is is held up for a year. So there's a real. There's a stutter step here.
How do you think low proprietors will affect that pending rule, that that green procurement rule? Nathan.
I'm not sure that I think this this weather lope or bright, actually impacts it will sort of depend on what's left of the major questions doctrine, and I'm not. I'm not sure what cases are going to be cited right? I think it's a little bit of a of an open question. Now that I imagine the briefs will hit local bright and uh.
The major questions doctrine either way, as a broad, regulatory scheme. That's just gonna be um hard to pull off without some sort of statutory authorization.
I I you talked about cost accounting. I wanted to just talk quickly. We we've and Josh and I have discussed this over the years, Joshua. And how do you think Loper Bright will affect the far rulemaking process itself? One of the quirks of a far rule making process is that very common for Congress to pass.
Is make a best extension. It's really typically part of Title 8 of the National Defense Authorization Act, saying.
We want the Far Council within 180 days to publish regulations on X.
And then the Far Council doesn't do that. It may delay for years, sometimes in delaying it in. In issuing that regulation the Congress has called for.
It. How do you think Loper Bright will affect that that quirk in government contracting law, where the agency take the position? Look, it's not on the far. And yet there's a statute that says, Publish a rule that, says X, agent, is not X is not on the far yet, so agency is contracting. First, st let's say we don't have to follow it. How how do you think of over bright will affect that, Josh.
I mean very hard to know. The court's opinion does read like they know.
This is sort of constitutional in breath. I don't mean it's common law. I just mean, this affects a thousand statutes more than a thousand actually, and 150 agencies.
And we have to get this right for everybody, and we can't possibly do that.
So.
You. You all know how Congress has a process of.
Uh legislative corrections for major bills. It's so. The Supreme Court needs a Me. A process like that. But they don't have one. They actually, do, you know, correct typos and things like that.
But.
It is.
We're gonna have to have a case by case process.
Uh which I think Nathan and Nicole have already hinted that.
That will eventually bring this down to earth. And it's gonna be.
You know. What do lawyers hate? Lawyers hate uncertainty? I mean, some people's clients are actually benefited by it. But.
But lawyers in general hate not being able to know. And I think you had gonna have to tell your clients that you don't really know that the court didn't.
Figure these things out.
So on. The one you know. The best analogy I've got, and we discussed this in one of our planning meetings is um.
Is the international law situation. Some of our audience will know more about this than I do.
Um. But you have treaties which are self implementing and treaties that are not self implementing. So when you have a statute that tells the far Council to make a regulation, and they haven't done it. It's pretty clear that that wasn't meant to be self implementing.
But you know it. It rate in international law context that'll sometimes get litigated. If there's a clear prohibition, you know. Don't do genocide.
Even though somebody's gonna implement that maybe the preliminary proposition, the basic underlying proposition, is already the law. So that's gonna get litigated case by case.
I think low, bright, contributes 0 degrees of clarity to that analysis. I think it'll just be a thing.
Fight about, and there'll be more attention.
Too fatty about it, but I don't expect this is helpful.
You know. I I think, more generally looking at your list. There are a lot of statutes that make delegations here. They're generally not.
Chevron dependent.
So.
Nathan also said this, I think major questions is going to be a bigger issue going forward.
Um green procurement will be a major questions, because.
They'll say Congress wasn't thinking about green procurement because they couldn't have been in 1,940 whatever, because nobody heard of it.
Um. So that makes it a major question.
One of the best administrative law people I know. Dan Farber.
Uh has written in the last couple of days in the administrative law. The problem with the major questions doctrine is that nobody has yet said, here's the thing to which the major questions doctrine.
Doesn't apply.
It's like it's as elastic as hell.
And it. It causes the judiciary and our law to be in bad, because it looks like judges can do whatever the hell they want.
And that's not what I think the rule was for what it's worth. I don't think Justice Scalia thought that was what the rule of law is, I don't think he'd be happy with all this stuff.
He and I don't agree, but.
Don't think he'd be happy with this.
On the on the Buy American issue, the the regulations that have come out of the Infrastructure Act.
In some ways the buy American definitions, for example, of construction materials that conflicts with the regulations under the traditional.
Buy, American, act.
So that there's a there's a lot of mishmash in the most recent buy American regulations and questions. How local right enterprises make sense to that. I did want to talk about um just quickly, about bid protests, and Nicole and Nathan, you regularly handled, bid protests.
Um. How do you think of right? Will affect bid? Protests.
I don't think uh price gonna really affect protests except to the extent that.
Protest can be the mechanism to bring some pretty uh unique challenges, and they may end up being the vehicle that the.
That regulations are challenged like to the same. You know kingdomware. I think you might have more cases like that.
Um.
That work out a little smoother because of of Bright. But I'm not sure that on a on a.
Day, one basis uh.
Protest. Practice is going to be impacted by Lower bright. You just might have certain bid protests, arguments, uses the vehicle to challenge.
An agency's interpretation of a statute.
Nicole, I mean, we got a question from Hilary Erickson, said Nicole. Done an excellent job presenting case along which the far's ability to provide specificity has been upheld, such as who may serve our claim.
Is there any case? Law examples where agency supplements to the far have similarly upheld. The only example I can think of offhand is the case you talked about.
Which was the the uh the um.
Uh case the case regarding the vending machines that there was a Dod. There was Dod guidance.
That was.
Really. And Dod didn't have primary authority. Hw. Had primary authority. And yet the fellow circuit defer to the Dod guys. And are these any other cases that you can think of.
Yeah. And I'm not sure if I heard the last part of the question. There.
Are. Is there any case law? Examples where agency supplements to the far have been similarly upheld?
Um.
That's a good question. I can't think of one off the top of my head. Um!
Not that came up immediately.
I I wanna turn quickly to the corner pose question before we close out. Um! In the corner post. Decision was issued in the same slew of decisions.
At the the end of the term, and the Supreme Court there, there said that a party challenging a rule under the Apa can really doesn't have to bring that challenge.
Until it's actually injured. And so the normal 6, as as um Justice Jackson pointed out in our descent the normal 6 Year statute.
Could basically be.
Eviscerated to be raced because the party doesn't have to bring a challenge to a regulation within 6 years is when they're 1st injured, which could be 2030 years later.
So really, quarter post really opens up this issue of statual limitations.
Joshua, do? Am I reading corner post correctly?
Well, 1st of all you are, though I'll try to make it worse. Um!
The.
Consensus among the administrative law scholars. Post is far more damaging to the administered state than Lower bright.
Second.
The the reason that that's true is, although one could have a good faith claim.
Uh, you know, I wasn't born yet when this rule was implemented. So how could I have brought it 27 years ago?
It's also totally manipulable, and unless some standards are written, it's hard to see how that'll be. So.
Your general motors, you create a new subsidiary.
And then, as a matter of corporate law, they can bring the claim, even though General Motors has been around for a hundred years.
You're a trade association.
And you have a claim that you're bringing on behalf of members which you can do under applicable standing law. You have new members or newly born members.
Any claim can be brought at any time.
And seriously, if taken to its logical extreme. The degree to which opponents can challenge everything.
He's literally multiplied 100 fold or 1,000 fold.
You could just bring the system to its knees. The suggestion is th, they'll say, oh, we didn't really mean that.
Um. But exactly what they did mean is not clear.
Uh so corner posted is quite damaging. Good faith is.
You know you have a regulation, and I'm now a brand newly incorporated entity, and I do solar panels.
And your regulation was made in 1,947, and I didn't exist then, and I wasn't born then.
And I'm bringing it in good faith as soon as I see that it affects me.
But.
It doesn't sound like a good or feasible idea to say courts see whether they're bringing where they have a good reason for bringing it, partly.
A a good reason, so this could be a.
Big problem. On the other hand, this is like the Lawyers Employment Act of 2,024.
You put local bright, together with quarter post.
And you know you get get someone who's willing to invest in your lawsuit, and you're off to the races.
Nathan.
Yep, I would just add a few points on this. I think it's a it carries a lot of the themes we've discussed with lope.
Corner post is a very important.
Case for government contracts, lawyers, and it weren't for local bright we wouldn't be talking about it like this is just an example of the kind of case that comes out every year that matters.
That we might let slip past as a procurement community that we need to be watching.
Um.
The.
This is another one also, where I mean it. They are interpreting a specific limitations to drawing inferences from.
Other general principles of statute limitations.
But you really have to be careful of making sure, you know which statute limitations you're talking about, because we deal with a lot of different statutes, interpretations. Tucker Act has its own. This very special contract Disputes Act has its own. The special. So Corner Post might be informative. But you do have to always keep track of the unique statutory strands.
And.
The other point here is, even if it is a blow.
To the statute of Limitations.
And it creates some wishy-washiness. We also deal with that in the protest space with waiver rules. You've got blue and gold, and these rules that are meant to.
Help agencies, avoid certain protests.
If those rules.
Don't stop or protest on the front end. You always, when you get to the equitable factors, get to ask.
Was this unreasonably delayed.
And I think that, you know we always sort of when you get to the point of equitable relief. There's always a little bit of a judge saying, Hey, did you? Was there something in the in nefarious in this delay? Or could you have come sooner? Would it be unfair to enjoy this rule.
10 years after the fact. I think we there is room in a lot to deal with that.
But we got a question from Chatterek Stevens, how mighty impact state government procurement policies and contracting decisions. And when might we see those impacts.
I think there so many state. For example, many State bid protests are run under a State level. Apa Procedure Act.
And so you'll see a a parallel there between the Federal Apa and the State. Apa now is the one of the reasons to bring up AI was to show at least my perspective. Is it really illustrates that this is not a political thing in the Federal procurement space in the Federal procurement space. It doesn't, really. It's not a liberal versus conservative thing. It's a question of whether or not the courts are going to be.
Forward, leaning in terms of how they interpret the law. Um! But at the State level, where we, the very major protests will occur, will go on a very rapid basis, and the courts will be very rapidly involved.
At the State level. I think it's very possible the State courts, especially Conservative State courts.
When they have to make those decisions quickly, we'll look to the peril decision of the Apa and the Supreme Court, and will be more willing to be aggressive in their reading of the law, to take.
1st authority over questions of law in those scalable bid protests. That would be my guess, based on my own experience.
Do you all have any other observations on that.
Very good. So I did want to close out with a really nice comment that we got um.
From John Factor, John Baxter said, a wonderful webinar, thanks to all special nod to Joshua Schwartz, who has this stuff in his bones. That is a perfect way of putting it.
Thank you all. Thank you. All. Any final comments from you guys.
Alright, great! Thanks very much for the audience, and and have a great day. Take care, bye.