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Aug. 31 — Federal Circuit Judge Jimmie Reyna’s July concurring opinion in an Air Force base award protest has contractors taking a closer look at standing and waiver standards.
The month before, the Supreme Court unanimously adopted the rationale of Reyna’s 2014 dissent in which he said the majority incorrectly concluded a statute didn't require the Department of Veterans Affairs (VA) to always consider whether a small business could perform.
These opinions are just the latest he’s penned since joining the Federal Circuit five years ago that lawyers say could affect federal contractors on issues ranging from protesters’ standing to sue to their burden in identifying solicitation flaws.
Federal contracting law isn’t a topic the 63-year-old international trade law specialist thought much about prior to being confirmed 86-0 in April 2011 as the first-ever Latino to serve on the Federal Circuit in April 2011.
Reyna grew up in New Mexico, the son of Mexican-American Baptist missionaries who met at a seminary in El Paso, Texas. He and his siblings picked cotton and worked in onion fields to supplement the family income, Reyna told the Senate Judiciary Committee at his 2011 confirmation hearing.
He attended the University of Rochester on scholarship and then returned to New Mexico for law school before starting his career in insurance defense and, later, plaintiff’s work, according to a 2006 article in Virginia Lawyers Weekly.
He moved to Washington without a job because the area offered the best program for his autistic son. “We researched places for him around the country and decided that we would stay together as a family and all go wherever he needed to go,” Reyna told the University of New Mexico law school alumni magazine in 2002.
Reyna soon joined a Washington law firm specializing in international trade where he worked for 12 years before moving in 1998 to Williams, Mullen, Clark and Dobbins, where he remained until his confirmation to the Federal Circuit.
Since joining the court, it is a pair of Reyna’s dissents in federal contracting cases that have resonated most with judges above and below.
In June 2014, Reyna asserted that the majority in Kingdomware Techs Inc. v. United States got it wrong when it said the Veterans Benefits, Health Care, and Information Technology Act of 2006 gave the VA discretion to select a schedule contractor without first conducting a “Rule of Two” analysis to determine if performance by a small business was possible.
Judge Reyna disagreed with the majority's statutory construction, and identified flaws with the majority's view that the act allowed the VA to stop pursuing small businesses once it met set-aside goals.
The majority “adds a limitation that does not exist in the plain words of the statute,” Judge Reyna said, adding that the majority created a situation in which VA contracting officers won't know when or if set-asides are appropriate (102 FCR 257, 9/9/14).
Kingdomware brought its case to the Supreme Court, which unanimously agreed with Judge Reyna on June 16, when it ruled that the act says the VA “shall” award contracts to veteran-owned small businesses if a contracting officer has a “reasonable expectation” that two or more veteran-owned small businesses will submit competitive offers (105 FCR 546, 6/21/16).
Judge Reyna issued another important dissent in Tinton Falls Lodging Realty LLC v. United States, 2015 BL 283853, Fed. Cir., No. 2014-5140, 9/2/15, which involved the question of standing for a small business to protest the Military Sealift Command's transportation and lodging services award.
The awardee contended that protester Tinton Falls wasn't an interested party to raise this challenge. The majority found, however, that there was a distinct possibility that if Tinton Falls' challenge to the awardee's small-business eligibility was successful, and the agency rebid the contract on an unrestricted basis, Tinton Falls would be on equal footing with other interested parties (104 FCR 928, 9/15/15).
Judge Reyna critiqued this conclusion because Tinton Falls was other than small and didn't qualify to compete for a small-business set-aside.
Further, he said that even if the agency revised the solicitation and removed the small-business restriction, two other lower-priced offerors were next in line to receive the original contract.
“Nothing in the record suggests that a future rebid or Tinton Falls’ competition on such a rebid is even a possibility, much less a substantial chance,” he wrote.
Shortly after the ruling, the majority in this decision expanded the scope of protesters who have standing and could have significant repercussions for contractors involved in litigating bid protests before the Court of Federal Claims, according to a BNA Insights article written by Wiley Rein LLP attorneys Philip J. Davis, Nina Rustgi and Brian Walsh (104 FCR 1094, 10/27/15).
Based on a review of 13 Court of Federal Claims cases that cited Tinton Falls since the Federal Circuit's ruling, Walsh said Aug. 17, “the decision has not had a large impact, to date, in terms of expanding standing to protesters who would have been found to lack standing pre-Tinton Falls.”
However, Walsh and his co-authors' take is that “while the Court of Federal Claims is not directly citing Judge Reyna’s dissent, the Court of Federal Claims is essentially agreeing [that] what Reyna argued should have been the holding in Tinton Falls by almost exclusively citing it in cases where it finds the protester does not have standing.”
Judge Reyna also issued a potentially controversial concurring opinion in an award protest concerning an Air Force base in Greenland that has some contractors taking a closer look at standing and waiver standards.
In Per Aarsleff A/S v. United States, 2016 BL 221426, Fed. Cir., No. 2015-5111 et al., 6/23/16, the majority upheld the Air Force's original contract award after finding that the awardee's status as a subsidiary of an American company didn't disqualify it under solicitation terms (106 FCR 66, 7/19/16).
The protest shouldn't have progressed as far as it did, Judge Reyna said, because the challengers waived their opportunity to protest.
He said the protesters had questioned the Air Force about foreign-owned companies competing for this contract and didn't get a clear answer. Since uncertainty remained, Judge Reyna said, the protesters were required to file a bid protest before submitting proposals, but didn't.
Protester Per Aarsleff A/S soon after asked the court for a rehearing, arguing that Judge Reyna's opinion changed the definition of a patent ambiguity that protesters must challenge prior to the close of the bidding process to avoid waiver.
Per Aarsleff asserted that the Air Force gave an unambiguous answer on foreign entity ownership that was later discovered to be false. The Air Force's “clear and unequivocal assurance ended any possible reason” for protesters to object to the solicitation before submitting proposals, Per Aarsleff said.
Former clerks have nothing but praise for Reyna.
“At the heart of Judge Reyna's judicial philosophy is his unwavering sensitivity to ‘The Forgotten Man' — the person at the heart of each case and the countless lives each decision will impact,” said Abigail Perdue, a Wake Forest University School of Law professor and former clerk for Judge Reyna. “His opinions are consistently well-reasoned, accessible, wise and insightful.”
Natalie A. Bennett, a partner with McDermott Will & Emery LLP in Washington and a clerk for Judge Reyna in 2012 and 2013, echoed that sentiment. “No matter a person’s station in life, he treats everyone with respect and dignity,” she said.
Reyna is also attracting notice beyond Federal Circuit watchers.
NBC News included Reyna, who served as president of the Hispanic National Bar Association before joining the bench, on a list of five potential Latino nominees for the Supreme Court earlier this year after Justice Antonin Scalia died.
“Judge Reyna is a faith-driven moderate whose story of excellence and overcoming obstacles both inspires and informs his experience as a sitting circuit court judge,” Jim Patterson, Chaz De La Garza and Tony Zeuli wrote in a blog post endorsing a potential Reyna nomination to the Supreme Court. “His 180 written opinions evidence an unparalleled work ethic, and provide a clear insight into his judicial attributes: detailed attention to facts, cogent thinking, clear writing and admittedly a singular ideology: devotion to justice.”
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