my name is keith grady my partner graham days with me at the counsel table we represent here tactical in this appeal this is an appeal from the dust records granted summary judgment on tears breach of contract claims excuse me against protective products enterprises and point blank referred to the defendant as point blank or the apple is point blank throughout this argument as we have in the district court the district court should be reversed because the court misinterpreted the three key provisions of the contract as sheer number one the bed protest provision number two the exclusivity provision and number three the best efforts provision of the contract the record demonstrates so you get into the guts of your argument i have one practical question which is if we agree with the put with your posing counsel that the comp consequence will damages clause means you can't get any consequential damages that issue there was litigation surrounding whether or not the expert report should be allowed a lawyer that you tell me if you don't get consequential damages what does that mean reliance damages the amounts of money to your expended in reliance on the contract and in reliance upon point blank performing its duties in accordance hostile to expanded just in helping to prepare the been tons of thing yeah so there are damages even if the court agrees that the consequential damages exclusion isn't forcible there are damages for to recover in the district court there is also an attorney's provision in the contract the prevailing party in the litigation can recover attorney's fees so there contract or the dose records determination that summary judgment was appropriate in this case pursuant to the paragraph thirteen of the agreement that's in the appendix said page eighty eight the florida  controls interpretation a contract to the extent it's not controlled by federal acquisitions law tear and point blank and turned into this teeming agreement to respond to a solicitation from the government for what's called  soldier protective system which is essentially a tactical vest with ballistic inserts that that's designed to protect soldiers in the field the ballistic inserts are designed to stop bullets and protect the issued new technical specifications this occurred after the tear point blank product was submitted and it was backed a did to d sound for of twenty fourteen and pursuant to these reduced technical specifications you army natick government design house that was collaborating with the marine corps and a cut and how to to call melt back and point blank surreptitiously supplied below stick materials the same bill lester materials that were used in the tear point blank submission to mel tec so that it could be used in connection with the army natick submission that submission was ultimately selected by the government when that occurred here asked point blank to file a bed protest in accordance with section five day of the agreement and point blank refused to do it we contend that's a breach of the plain language say about what their reasons were for refusing the record so i'm sorry what is the record indicate they gave as their reasons for refusing to the right yes that the record indicates that point blank didn't want to disturb its relationship with the government there testimony in the record from point blank employees point blank had a longstanding relationship with the government there the largest u s military supplier for this type of equipment and they  reticent to file a bit of protest because of their relationship with the government didn't want to interfere with that didn't want to cause a bit protest or file a bed protest and disrupt that relationship is that an unusual reaction government contracts i'm sorry on the government contracts of this nature is that an unusual reason to not want to protest a bid i would assume that happens all the time it may happen all the time i don't know the answer to whether it happens all the time but i can tell you in the context of the facts of this case it was unusual because prior to the execution of the agreement there were extensive discussions between mr back the hesitant to enter into this agreement with point blank because it wanted to ensure that point blank would follow through and file a bit protest and it does in discussions include a pid protest when the winning was not a private entity i don't know if the discussions address that specific issue but the big protest discussions were designed around  big protests discussions talked about if our bed is not selected and there are regularities and the bidding process goes as it were identified in the district court and agreed upon by both of the parties there were a number of irregularities identified and a number of internal discussions with point blanks officers indicated that there was division among the officers said point blank some of whom thought it was appropriate to  responsibilities five and the paragraph in there that says in the event the contractor of the subcontractor concludes the protest is in order the prime contractor shall be the protest and party if it was a big concern of yours that a bid protest be filed if you did not receive the bid should not the language have been a bit more explicit to make it clear that you had the say so to insist that that happened even if even i that a protest is in order the prime contractor shelby the protesting party it could have said shell filed a protest it says shall be the protesting party but you can't be the protesting party without filing the protest so to interpret this provision as being limited to a delineation of the roles as a district court did we think is a rewriting of the provision that excludes the words or the sub contractor from the provision which is at odds with the way a contract should be interpreted clearly the words or subcontractor appear in that provision and if those words are to have any meaning it's a conditional phrase in the event the prime contractor or the subcontractor concludes that a protest is in order the prime contractor shelby the protesting party you can't be the protesting party if you don't file the protest we think the district court's interpretation departs from the plain language of the agreement could it have been more specific perhaps we think it's clear enough that it's inherent in the in the role of being the protesting party that you have to follow the protest if it's not clear enough it's clearly a violation of the best efforts profession that appears in the contract that best efforts profession says the prime contractor has to do everything possible after submission of the bid to obtain the contract reading of the paragraph we've just been talking about d five d is as the district court says it is and how does the best efforts cause help you other words if there's no obligation of the contractor to actually file a protest how does the best deference clause get you over that hump well the best efforts clause supplements the responsibilities that the prime contractor has pursuant to the agreement under florida law best efforts the definition of best efforts with the circumstances surrounding the transaction here there was discussion about the bid protest provision and that there was certainly expectations on both sides that there would be a bid protest filed in the event there were irregularit point blank refused to do it and by refusing to do it they didn't discharge their best efforts to do this to get the contract accepted that's clear from the language of the agreement we've cited some cases in our brave first national bank of lake park vs it's a florida appeals court decision that talks about the best efforts provision and also there's a dish no case law that says when there is a dispute as to what what the best efforts provision means the answer is for the jury to determine not to be decided on summary judgment that's the first national bank of lake park for says guy i'd like to touch on the  provision which is the the second issue we've raised in that case as i indicated in the introductory comments point blank supplied the list of materials to a company called mill tech who works hand in hand with a exclusively restricted from individually or jointly with one or more third parties now turning into an agreement with her offering any other proposal to the government with respect to the project and in your brief you say that you wouldn't have objected if stock materials not specifically designed for an s p s it had ended up in the competing submission he wouldn't have complained about that at what point does the connection or chain of supply become too attenuated that it would no longer constitute a breach of this provision bought materials through a catalog or didn't collaborate with cheer on the design and the testing of the material said but how is that distinction rooted in the contract it's rooted in the contract by by the freds offering any other proposal to the government either individually or jointly with one or more third parties so that the prohibition you didn't didn't make an offering to the government  prohibited teir from acting as a prime contractor on a competing been allowed to hear i'm sorry allowed point blank to supply materials for a competing bed to test a competing bed in manufacture ballistics package to be submitted in direct competition to the project that point blank interior worked on together we think violates the exclusivity provision we've asked that the core versus the records decision on contract interpretation to remand the case for trial and i'll save the remaining time i have for a bottle thank you good morning your honour's may please the court i'm david solomon's on behalf of point blank the defendant police we asked that the careful decision of the district court be affirmed let me start with section five d of the teeming agreement that did protest provision it states that india been the prime contractor or subcontractor concludes that a protest is in order the prime contractor shelby the protesting party supported as appropriate by the sub contractor the district court was right to hold that this language assigns clear roles for any big protest but it does not impose any affirmative duty to file a protest there is a likeness to language in the event the sub contractor conclude your sign that that language should be disregarded not it really did not matter whether they concluded or not your got caught or shots we don't think that will let me just be clear your honor the essential point is that it doesn't impose an affirmative duty to file that language or the sub contractor we do not ignore it and it is not surplusage in our reading or the district court reading of this provision if you took the language in it just said in the event the prime contractor concludes that a protest is an order the prime contractor shall be the protesting party you would have an open question as to who would be the protesting party in the event the prime contractor did not the or the subcontractor plays a very important role this language does two important things first it makes clear that regardless of which party wants to file a protest only the prime contractor can be the protesting party and second it makes it imposes a duty on the head of said in the event the prime contractor of the subcontractor includes a protest is in order the prime contractor shall make the decision whether to protest and shouting the protesting doesn't say those extra words well it does your right your honor it does not say that although i would i do think it is a natural implication from saying this party shall be the protesting up with that role of being designated by law and by contract as the prime contractor should be as the sole protesting party inherent is that is the discretion as to whether or not to file a protest and any other reading of this language the only one who isn't a protest should be filed there is no protests and nobody's going to be the protesting party correct the dishes in that meter or subcontractor meaningless no because it's good it's not meaningless because it makes clear that even in the event where the it just doesn't do what the other side wants it to do it's not meaningless it says that even when the subcontractor is the only party that wants to file a protest only the prime contractor has that role of of  protesting party that language has meaning in our reading and in the district courts reading of it what it doesn't do is it doesn't say that the prime contractor shell file a big protest and the subcontractor concludes that a protest is in order the prime contractor shall be the protesting party would you agree with just that that would mean that if the subcontractor makes a decision then you would have to file a protest no no your honor i think th language shall be the protesting party is an assignment a role it is not an affirmative duty to file a protest if the parties had wanted that it should have said in the event the sub contractor decides a big protest is in order the prime contractor shell filed a protest but it doesn't it does not say that and that is an important textual distinction and if the court to the extent the court thinks it's  ambiguous and we strongly urge that it is not in the district court found that it is not and you looked at the context in the agreement you looked at the drafting history of this provision you come out to the same place your are this is in the section of  the agreement that details the sub contractors duties not the prime contractors duties and the version of this agreement that was initially drafted by tear and sent over for for review and inclusion into the agreement had a second sentence in fact if you look at the final version of the green you'll see two periods at the end of this ins it is because they took the second sentence out they didn't change persons it said exactly what the this provision says now but they had a second sentence that said if the subcontractor decides that a protest is in order but the prime contractor does not wish to pursue a protest then the sub contractor is authorized to pursue the prompt protest for the parties so to or tried to get this situation covered in the agreement and it was rejected and it was taken out and the meaning of that first sentence didn't change just because they took the second sentence out and there's no way the first sentence means if the if the sub contractor wants to file a protest the prime contractor has to and then have a second sentence that says if the subcontractor wants to in the prime country doesn't he can the sub counter can file and himself that doesn't make any sense the when you look at the the government to obtain the contract if that does not mean falling a bit protest when in good faith one could do so what would your best efforts be oh the best efforts clause has a variance important role and if you look at it what four b covers is that period of time in that process between which you put in tell me what it means what give me some examples of what your best efforts would be sure to show that that same provision that has the best effort clause for example says that the prime contractor shall be the sole contact for the government so and you have to provide accurate and timely information to questions after the proposal has been filed and you have to negotiate the contract if you win you have to negotiate the contract with your best efforts to try to actually achieve the contract that's what the best effort provision governs it governs that process after you put your proposal in your going back and forth there's always a communications with the government as they make their final decision as to who to award the contract to and then you have the negotiation process and the prime contractor absolutely has a duty to use best efforts to obtain that contract and that's in that process what it doesn't do is it doesn't say the of in the circumstances where the government has cancelled the solicitation by the way let me just make this point very quickly one of the deep confusions i think the other side has here is it keeps thinking about army natick as  competitor that filed a proposal in response to the solicitation and that there they were the winning bidder and stead of us i think you heard that today that's just completely wrong the solicitation was only open to private vendors and the solicitation said in addition private vendors to having to comply with all of the specifications here one of the requirements to getting the contract at the end of the day is that your design has to be selected as prefer bull by soldiers who use it in the field in what they call a human factor evaluations and it has to perform better than two government designs that were used as the baseline for that human factor evaluation and the army natick design was one of those baselines the other was an older version of the government's protective systems neither one of the government systems complied with all of the solicitation requirements all of  the specifications they weren't required to they weren't they weren't pretty didn't the army natick did not submit a proposal on the solicitation you look and in vain for anything like that in the record the term proposal is defined in the agreement the term project is defined in the agreement project is the solicitation and the proposal is the formal submission in response to the solicitation arm need never submit it wasn't it wasn't seeking a contract with the government it is the government it was used as a baseline to decide whether to award the contract to any of the private vendors and point blank in tears submission was the best of all of those private vendors and we thought we had it we were expecting to get it and we didn't get it because at the end of the day the the valuations that came in from the soldiers thought that the government designs were more range of motion were more easy to don and doff and they they range and ours second they didn't radars practice would've gotten very well i absolutely am suggesting that your honor in fact record bear that out we think it does in a couple of important ways so again tear did file a big protest despite the language in the agreement that says only we can be the protesting party and despite the law and and that was rejected and certainly was rejected in part because they didn't have standing but if you look at the letter that holder used in rejecting their big protests and this is at fourteen zero nine of the appendix it's very clear the letter says explain that the solicitation the solicitation stipulated that for a vendor to sign to be selected it had to be ranked higher than the government designs in the human factor evaluations that ours was not and that's the reason why it wasn't awarded and again the complaint that tear made in the big protest was yeah but that the military designs didn't comply with all the specifications that we had to well that's that's true it didn't but it wasn't required to under the solicitation the solicitation was only for private vendors it's just served as a baseline so there's this deep confusion at the heart of this dispute and when we looked at it what we did by the way it terms of best efforts if you wanted to think about what the process was with regard to making a decision about a big protest we don't think the best efforts clause applies to that scenario at all and for the reasons this record we think it would do harm to the structure of the agreement to read it that way but if you look at the actions that were taken what happened was as my friend on the other side just said the parties got together they came up with a list of issues they met about and they debated and there were some on point blank side that absolutely thought we had some good arguments if you can see why it felt unfair from the point of view if you go through this process and then you're you lose because your best word is comfortable as best that word is protective that seems unfair but if when you looked at the probably exact terms of the solicitation was not a strong argument to make the government reserve the right unilaterally to withdraw the solicitation and not make any award and that's exactly what it did so you can't sue and their challenge and say you warded it to this contractor that you know didn't comply with all the requirements that they cancel the solicitation and this is what this is really walk through in detail in the hughes report was our expert and he walks through the language this is a three hundred three ninety seven a four o two of the appendix if you want to see sort of all of it put together in one place and see how the requirements of the solicitation just weren't satisfied unfortunately for us and the other thing i would point out it was it wasn't just about well you know doing harm to our relationship with the government was that a factor that was considered of course it was any government contractor when they're deciding whether to file a big protest would not be well served by just ignoring that as an issue but it was much more than that there was this careful collaboration that took place to identify issues and if you look at appendix two eighty two you'll see deposition testimony from tom stephens who was who is the executive vice president for legal and special projects at point blank and he explained the process in detail and he said once they identified all of those lists and you have to do this very quickly you only have ten days once they identified all of those lists of issues they gave it to their government contract lawyers or outside counsel who reviewed it and they came back and he says that after the attorneys reviewed and evaluated it and at that the company determined that on the advice of counsel that the prospects of prevailing if we filed the protest were not great that's it again two eighty two  you can understand why that doesn't sing again is that it quite well i guess i guess i can from an into thetic standpoint i can from a legal standpoint looking at the language of the agreement i i can your honor in fact here's the fears that one of the important things i think to solicitation or not but nothing in the agreement have to mormons but you're right next i think they think your honor so while the while the parties who are normally competitors came together for the sole purpose of putting in a  proposal in response to this solicitation they agreed not to submit any competing proposals for the solicitation but that's all that they agreed to nothing in the agreement restricted either party from the montana state university and we had been arranged with them before we've had a ride with them since they buy things from us as a vendor many of the things they did buy were just off the shelf products otherwise they they what they do is they they put out a their own sort of bidding process and they ask they've come up with a design they asked someone to make it and so we did that and did we were aware that some of those were going to be used as part of the arming that it's design is that would serve as the baseline yes the record shows that we were aware that some of that was the case but nothing in the agreement limited either party's ability to continue to be a vendor it only limited their the or their ability to either in or into an agreement with the government about the solicitation or to offer a competing proposal on the solicitation which has defined meanings and in fact are neither army natick nor mil tech nor us you submitted any proposal was in the meeting of this agreement on this project does it make any difference the proposal is a little p as opposed to a capital p the language of the contract i don't think so the capital p refers to this particular proposal that we were going to file jointly and the language is any other proposal but i still think the proposal to a solicitation has a certain meaning you're not allowed to offer a proposal to a solicitation and again there's a very important textual difference between agreeing not to offer a proposal to a solicitation and saying i'm not going to be a vendor to other entities that might use my products in their submission even though that's actually not what army natick did here it's a court has a more questions thank you just a couple of points down or a bottle of food place a court first of all the language i'd like to address the question the language proposed by a tier that i wanted to get into the at the bed protest provision that was not  agreed to by the parties the reason that was one agreed to by the parties is because it wasn't legally permissible to or couldn't be a protesting party under federal acquisition long only the prime contractor can be the protesting party those lines the the the excise language shows what tier intended by this provision that to or wanted to be able to direct point blank to file a protest point blank understood that when they entered into both parties understood that when they entered into the agreement there's nothing in that bid protest provision that says point blank has the and parent discretion to make the determination absolutely nothing there are other discretion to point blank on certain issues but not those not the bed protest profession and again the best efforts profession we also think is very important here the best efforts provision was included into the agreement it has meaning it can't be ignored it was properly pleaded below it was addressed in the briefing on summary judgment and it was characterized by point blank in the briefing on summary judgments a hail mary pass well sometimes prayers were answered and best efforts provision was included in that agreement and under florida law it has meaning and it has it has it carries weight and to the extent the dish records constructions of the big protest provision and the exclusivity provision or game correct by the court we think that the case should be remanded to determine whether or not the bid protest provision i'm sorry the best efforts provision was violated here because that under florida law is a fact question and we think that facts are more than sufficient to show that best efforts doesn't include going behind your partner's back to submit product to for a competing bed wh they call it a competing better competing submission it was a product that directly competed with the tier point blank submission and it was a product that was recruit by the government as meeting the human factor