[00:00:36] Speaker 04:
The last case this morning is Office Design Group versus the United States in Kuna Supply, 2019-1337.

[00:00:45] Speaker 04:
Mr. Whitcomb, when you are ready.

[00:00:52] Speaker 02:
If it pleases the court, my name is Joe Whitcomb, I represent the appellant in this case, Office Design Group.

[00:00:59] Speaker 02:
I'm going to try to be as concise as I can.

[00:01:02] Speaker 02:
Give the court just a little bit of context.

[00:01:04] Speaker 02:
This is obviously a bid protest case involving a half a billion dollar multi-region, what essentially boils down to a national blanket purchase agreement under which the awardees, if admitted under that blanket purchase agreement, would then have the ability, the authorization if you will, to bid on following task orders.

[00:01:30] Speaker 02:
The issues

[00:01:32] Speaker 02:
In this case, our unusual in that there were nine awardees in this case, I'm sure the courts are aware of this, four of which submitted and we are careful to use the terms nearly identical in our briefings.

[00:01:48] Speaker 02:
But the only distinctions in those proposals as it relates to the technical proposal have to do with the flower names of the contractors, which were given, I think for the purpose of anonymity, they were to use primaries and other things to identify themselves versus their names.

[00:02:09] Speaker 02:
Other than that, the four of the nine awardees' proposals were the same as we detailed in our briefings.

[00:02:17] Speaker 02:
right down to page numbers, amber sands, they were identical.

[00:02:22] Speaker 02:
Originally, when we saw that, again, as we briefed, our first suspicion was some evidence of collusion, but what seems to have borne out in the administrative record that it was simply a function of the four offerors hiring the same proposal writer for the purpose of putting together their proposal, which... But, Council, your client didn't

[00:02:44] Speaker 04:
to get a very good score.

[00:02:45] Speaker 02:
No, that's correct, Your Honor, and that's of course why we're here.

[00:02:48] Speaker 04:
On something that was very important.

[00:02:50] Speaker 04:
It got a score of 12 out of 36, is that right?

[00:02:54] Speaker 02:
It was actually a score of 12 out of 66, Your Honor.

[00:02:57] Speaker 02:
It needed a 39 to be an awardee.

[00:03:03] Speaker 02:
And the entirety of our briefings historically have been

[00:03:09] Speaker 02:
office design group in this instance was singled out language that was nearly identical to awardees was was not given points and the offers the awardees were given points and and not just partial points in most of those instances they were given six points and what i want what i'm hoping to point you know there's an old saying we taught law school that bad facts make for bad law this may be an instance where

[00:03:32] Speaker 02:
the law has made for, and not bad at all, but the law has made for some bad facts.

[00:03:36] Speaker 02:
So the case law that the government cites to a number of times in his briefing says that in order for the court to second guess or to rule on the issue of disparate treatment, the proposals have to be nearly identical.

[00:03:53] Speaker 02:
Well, in this instance, we have four proposals that are actually identical, which begs the question.

[00:03:58] Speaker 03:
The question isn't whether the winning proposals are nearly identical.

[00:04:01] Speaker 03:
It's whether the proposals that won are disparate from yours and are nearly identical.

[00:04:09] Speaker 03:
And the government and the court of federal claims believe they weren't nearly identical.

[00:04:14] Speaker 03:
Isn't that correct?

[00:04:15] Speaker 03:
And didn't the Court of Federal Claims go through in fairly excruciatingly detailed why on each section where you got no points or lower points and that other group got higher points that the VA had a reason and that reason wasn't arbitrary or capricious.

[00:04:33] Speaker 02:
Right, and I agree with you, Your Honor, that that is what the lower court said, and that's obviously why we're here, that we disagree with the lower court's findings in that instance.

[00:04:41] Speaker 02:
And the reason we find is that the differences that the court pointed out, respectfully, were differences without a distinction.

[00:04:48] Speaker 02:
So in other words, this understanding, contextually, that this is a blanket purchase agreement and an indefinite date, indefinite quantity contract with no specifics as it relates to the actual furniture to be designed and delivered

[00:05:03] Speaker 02:
any level of specificity with which Office Design Group or any other offer could have submitted proposals would have been guessing at best.

[00:05:15] Speaker 02:
And the best proof of that, Your Honor, is if you look at the individual... Isn't that true in a lot of these contracts?

[00:05:23] Speaker 03:
What they're doing is saying and describing their ability to meet

[00:05:27] Speaker 03:
future requirements and they government gives you a solicit proposal and solicitation and says describe to us in appropriate level of details on how you're going to do it in this case they found you didn't describe an appropriate level of some details and the other people did except that your honor in this instance they found the opposite in the specific where officers our group was afforded specifics

[00:05:53] Speaker 02:
How would you handle this particular problem?

[00:05:57] Speaker 02:
Office Design Group did so and got an excellent mark for that portion of their proposal.

[00:06:02] Speaker 02:
So where Office Design Group was given a specific example of how they were going to satisfy the requirement.

[00:06:08] Speaker 03:
I don't think we're talking about the portions where you got excellent remarks.

[00:06:11] Speaker 03:
We're talking about the portions where you got bad marks and whether that was arbitrary.

[00:06:17] Speaker 02:
And the reason, again, that we're here and we're arguing that it was, in fact, arbitrary is because, for example, as we've detailed in our reply briefs and our opening brief in some detail, in examples where it's cited in the appendix, where the contracting officer, source selection authority, gave a Pomeranian credit as an example and cited to a provision in their proposal, where that was graded satisfactory.

[00:06:43] Speaker 02:
When you look to that point citation in the proposals,

[00:06:47] Speaker 02:
It actually doesn't say what the government says it does.

[00:06:50] Speaker 02:
In fact, an example of that is actually in the government's briefing.

[00:06:56] Speaker 03:
In page 25 of the government's briefing, it plays a role of apologist for APRAMRAMS where it says that... I'm not so interested in talking about the other offerors' deficiencies because the trial court acknowledged that there were some deficiencies there.

[00:07:14] Speaker 03:
that they weren't enough to demonstrate disparate treatment.

[00:07:18] Speaker 03:
What you need to show us, because you got 12 out of 66 or something like that, where the government made arbitrary grading errors on your proposal.

[00:07:27] Speaker 02:
And Your Honor, that's actually kind of where we're going.

[00:07:31] Speaker 02:
So in each one of these instances where they weren't rated, they would have been afforded essentially $18,000.

[00:07:39] Speaker 02:
or six points.

[00:07:41] Speaker 02:
So there was two points in three different sections of the rubric.

[00:07:48] Speaker 02:
And so in an instance where they were given zero points, where their competitors were given two points, two of the available points, the discrepancy... Wait, did you just say you would have gotten

[00:08:02] Speaker 02:
In just three examples, we've cited seven examples in our briefings.

[00:08:09] Speaker 02:
We only need to understand, we only needed to get to 39 to get to quote unquote passing grade.

[00:08:14] Speaker 03:
Again, part of what we've argued in our briefings is that passing... You are arguing in very large generalities.

[00:08:21] Speaker 03:
Do you have a specific point where you think the VA arbitrarily

[00:08:28] Speaker 03:
Did not give you points when your proposal under the solicitation terms and that attachment should have given you points.

[00:08:37] Speaker 02:
Yes, and your honor to always score some.

[00:08:39] Speaker 02:
Those are cited in in great detail.

[00:08:42] Speaker 02:
In the first, in our opening and reply brief, which I have open and I'm happy to cite to, but in our opening brief, we cite seven separate examples.

[00:08:52] Speaker 03:
And didn't the trial court go through all of that stuff and disagree with you and say the VA's reasoning here is not arbitrary and it's supported by substantial evidence?

[00:09:02] Speaker 02:
And Your Honor, again, to the degree that that is a legal conclusion, which we find, which we argue it is, then it is up for de novo review

[00:09:11] Speaker 03:
by this court to the degree there but I you're now almost nine minutes in and you have yet to argue where a single point is not supported by substantial evidence yeah your honor I again

[00:09:34] Speaker 03:
I respectfully disagree that we've cited these examples in our briefings as it relates to... I understand, but your point, your opportunity here is to convince me why the VA was arbitrary and you haven't actually identified.

[00:09:48] Speaker 03:
Do you want to talk about the staffing plan and the key personnel plan?

[00:09:51] Speaker 03:
Because that's a place where you got zero points and the other people got two points, right?

[00:09:56] Speaker 02:
And in that example, Your Honor, you just brought up a staffing plan.

[00:09:59] Speaker 02:
And that is the closest example of Office Design Group being

[00:10:03] Speaker 02:
is essentially identical to the offers who were given.

[00:10:07] Speaker 03:
Well, that's not the finding of the trial court and that's not the finding of the VA, right?

[00:10:10] Speaker 03:
The finding of them is that you submitted a staffing plan that couldn't be compared to the others because it didn't say anything in particular about your staff's qualification.

[00:10:20] Speaker 02:
And Your Honor, again, I believe that the lower court was applying a level of deference to the Veterans Administration that doesn't belong in this particular case because the level of deference at the court... Is it true that your plan didn't say

[00:10:31] Speaker 03:
very much about staff qualifications?

[00:10:34] Speaker 03:
Is that supported by the substantial evidence?

[00:10:36] Speaker 02:
No, that is actually untrue.

[00:10:38] Speaker 02:
In fact, as we detailed in our briefing, Office Design Group pointed out the number of years that the individuals held, the level of education that the individuals held, and the key personnel, and provided a staffing plan.

[00:10:51] Speaker 02:
And the offerors who were afforded six points sometimes did nothing more than offer a treat.

[00:10:56] Speaker 02:
of personnel and this is the personnel that will be working on the thing.

[00:11:00] Speaker 00:
So you're making a... Councilor, wouldn't you say that, let's take for example the staffing plan.

[00:11:07] Speaker 00:
Yes.

[00:11:07] Speaker 00:
That's a technical provision that requires subjective analysis.

[00:11:15] Speaker 02:
Your Honor, again, what I was going with Judge Hughes is that that's a level of difference that is typically afforded a contracting officer in a negotiated procurement, where in this instance we're talking about a blanket purchase agreement.

[00:11:26] Speaker 00:
When you're looking at a staffing plan, aren't you engaged in a subjective analysis?

[00:11:35] Speaker 00:
I mean, it doesn't say you must have 25 vice presidents.

[00:11:39] Speaker 00:
and we're reviewing whether you had 23 or 24, it's reviewing the sufficiency of your staffing plan.

[00:11:45] Speaker 00:
That's subjective in nature, isn't it?

[00:11:48] Speaker 00:
Yes, Your Honor, but the... You started out with our standard review.

[00:11:53] Speaker 00:
So if it's subjective in nature, what's your standard review in this situation?

[00:11:59] Speaker 02:
Your Honor, the case law holds that the standard review for subjective is highly differential.

[00:12:05] Speaker 02:
Okay, it's highly differential, correct?

[00:12:08] Speaker 02:
Yes, Your Honor, it is highly differential.

[00:12:10] Speaker 02:
But that doesn't... Highly differential doesn't mean that the contracting officer's decision is beyond review.

[00:12:16] Speaker 02:
It's just highly differential.

[00:12:17] Speaker 03:
So what reason did they give here for finding your staffing plan deficient?

[00:12:22] Speaker 02:
One was brevity, Your Honor.

[00:12:24] Speaker 02:
Simply brevity.

[00:12:25] Speaker 02:
It was just not enough.

[00:12:28] Speaker 03:
That's not the only reason, is it?

[00:12:30] Speaker 02:
And it cited a lack of specificity as it relates to the individual, which is, again... It didn't talk about their experience enough.

[00:12:38] Speaker 02:
It talked about the lack of detail as it relates to experience.

[00:12:44] Speaker 03:
Doesn't A in that checklist say provide a staffing plan to include qualifications and experience working in a healthcare environment?

[00:12:53] Speaker 02:
And Your Honor, that is why the crux of our argument is in the disparity of the treatment.

[00:12:58] Speaker 02:
Whatever is lacking in Office Design Group's proposal in that staffing plan is lacking in at least three of the offers.

[00:13:04] Speaker 02:
And I'm well into my rebuttal time.

[00:13:05] Speaker 02:
I'm happy to continue and answer questions.

[00:13:07] Speaker 02:
I wanted to reserve three minutes, but the point I'm making is the deficiencies and the government's answer for that, the government's response is, well, if APOM or ADIT or one of the other offers was deficient, then the solution is to lower their score, not raise office design group score.

[00:13:23] Speaker 02:
And our position is that answer ignores

[00:13:26] Speaker 02:
the disparity of the treatment.

[00:13:28] Speaker 02:
So again, taking in the aggregate, the way that Office Design Group was treated in its evaluation was woefully disparate, in our opinion, from the way the other offers were.

[00:13:38] Speaker 02:
In each one of the examples that we cited, warranties, how, for example, Office Design Group was going to, this is another example in our briefings, but how Office Design Group was going to protect furniture.

[00:13:50] Speaker 02:
The obvious question is which furniture and which scenarios.

[00:13:52] Speaker 02:
But Office Design Group provides an answer that it was going to comply with all the rules and all the safety issues.

[00:13:59] Speaker 02:
One of the other offers said, we're going to make sure everything's warrantied.

[00:14:03] Speaker 04:
Council, why don't we save two minutes and throw a bottle for you?

[00:14:07] Speaker 04:
Yes, sure.

[00:14:07] Speaker 04:
Ms.

[00:14:08] Speaker 04:
Koenig?

[00:14:20] Speaker 03:
We didn't get a whole lot of specificity from him, but at least there at the end we talked about his argument that they were disparately treated in the staffing plans and the process for protecting furniture and that they didn't get points and the other people gave identically deficient answers and got points.

[00:14:42] Speaker 03:
Were the answers identical?

[00:14:45] Speaker 01:
Your Honor, the answers were not identical.

[00:14:49] Speaker 03:
And what was the difference, in your view, that allowed the other parties to get points and them not to get points?

[00:14:55] Speaker 01:
Well, Your Honor, if you were to look at page 98 of the appendix, which is part of ODG's Office Design Group service narrative, which is where they address their staff, they have a section called qualified staff, which states that the project managers have at least 10 years experience, that the interior designers have at least 10 years experience, and that installation supervisors

[00:15:18] Speaker 01:
have at least five years experience.

[00:15:23] Speaker 01:
None of the experience specifically references healthcare, which the agency and the trial court found to be deficient.

[00:15:30] Speaker 01:
And the agency found that this was not a staffing plan, like the other offers submitted.

[00:15:39] Speaker 01:
For example, one of the offers

[00:15:43] Speaker 01:
awardees that ODG compares itself to is 8 Pomerants.

[00:15:47] Speaker 01:
On page 30 of their service narrative, appendix page 30, they reference that they have 28 years of experience and that that experience includes broad healthcare experience.

[00:15:59] Speaker 01:
8 Pomerants also included a staffing plan at pages 36 through 38 of the appendix in their service narrative as well.

[00:16:08] Speaker 01:
The other awardee that ODG compares itself to, veteran office design,

[00:16:13] Speaker 01:
references the years and type of experience, including qualifications and accreditation for its key personnel at pages 66, 71, 76, and 80 of the appendix.

[00:16:25] Speaker 01:
And these are, again, just the examples as to the first key element is to the staffing plan, but throughout our brief we've explained why for each of the eight key elements,

[00:16:38] Speaker 01:
Office Design Group's service narrative was in fact efficient and we have also compared why the awardees service narratives were not in fact identical to or even substantively indistinguishable from ODG's service narrative as the case law requires.

[00:17:06] Speaker 01:
The last point that the Appellant's Council raised was as to the prejudice issue and the trial court found that ODG didn't suffer any prejudice because again to the extent that ODG's argument is that other awardees

[00:17:22] Speaker 01:
and proposals were equally deficient or equally vague.

[00:17:26] Speaker 01:
Again, the result would be to reduce their scores, not raise them.

[00:17:30] Speaker 01:
Well, how do we know that?

[00:17:30] Speaker 03:
I think this is a harder argument for you.

[00:17:32] Speaker 03:
We don't have to get to this if we decide that their proposals are different enough and that those conclusions are not arbitrary if the purchase was reported by substantial evidence, right?

[00:17:42] Speaker 01:
That's correct, Your Honor.

[00:17:43] Speaker 03:
Is there anything in the record that suggests that

[00:17:47] Speaker 03:
if there actually had been identical statements on both sides, that the VA would have reduced the winning offers or that they might have bumped up them.

[00:18:00] Speaker 01:
I don't know that there's anything in the record other than the statements in the evaluation documents.

[00:18:05] Speaker 03:
I mean, it seems to me that if we got to that point, wouldn't it be better of course to send it back and ask the VA to

[00:18:13] Speaker 03:
at least explain whether it would choose the course of bumping them up or bumping the others down because this is pretty clear a fairly major procurement and they may not want to on some of these things not have any qualifying offers or not have enough if they decide to you know find the other people deficient they may decide well maybe we should just give all of them points

[00:18:42] Speaker 03:
Well, Your Honor, and I don't think that we need to get there in this case because... Well, at least the point she just pointed to on the staffing, they seem significantly different.

[00:18:53] Speaker 03:
They have a very generic four-line thing about years of experience that doesn't, I think, even really discuss healthcare.

[00:19:00] Speaker 03:
The other two you pointed us to have, you know, not just years of experience, but specific examples of these types of healthcare experience they have.

[00:19:09] Speaker 01:
That's correct, Your Honor.

[00:19:13] Speaker 01:
I could also explain or run through some of the differences or deficiencies regarding the furniture installation, which I know that Office of Design Groups Council did.

[00:19:22] Speaker 01:
It's all in the briefs, right?

[00:19:24] Speaker 03:
It is all in the briefs.

[00:19:25] Speaker 03:
The trial court went through this in a fairly extensive detail and looked at each of these and said, no, these aren't different.

[00:19:34] Speaker 03:
a basis for the different scores and it's not arbitrary and capricious.

[00:19:38] Speaker 01:
That's correct, Your Honor.

[00:19:39] Speaker 01:
That's our position and we've explained that all in our briefs.

[00:19:42] Speaker 01:
Just one last point I want to make unless Your Honors have any other questions.

[00:19:48] Speaker 01:
The Appellant's Council raised at the beginning the four offerors that were similar.

[00:19:52] Speaker 01:
First, I want to know that that's an issue that they haven't raised on appeal specifically.

[00:19:57] Speaker 01:
I know they've mentioned it throughout their briefing, but did not specifically appeal the issue.

[00:20:00] Speaker 03:
Well, it seems like it's a pretty harmless explanation in any way that they all use the same.

[00:20:06] Speaker 03:
And is there any rules against that?

[00:20:12] Speaker 03:
That seems a little jinky to me that the same bid preparer can prepare multiple things for the same solicitation.

[00:20:20] Speaker 03:
Are you aware of anything in procurement law or the VA specific that prohibits that?

[00:20:26] Speaker 01:
I'm not aware of anything that was specifically prohibited, but I will note that as the trial court found, the VA referred the matter to DOJ to conduct an investigation, and that was all that the VA was required to do to conform with the FAR.

[00:20:43] Speaker 01:
But those four awardees aren't really even the awardees to which ODG compares itself in its briefs, and so we just don't think there's really anything

[00:20:54] Speaker 01:
any merit to that claim.

[00:20:57] Speaker 01:
So unless Your Honors have any further questions, I will sit down.

[00:21:04] Speaker 04:
Thank you.

[00:21:04] Speaker 04:
Thank you, Counsel.

[00:21:05] Speaker 02:
Mr. Whitcomb has some rebuttal time.

[00:21:09] Speaker 02:
Thank you, Your Honor.

[00:21:10] Speaker 02:
The only reason that Pellet Proponents Council raises the issue of the four identical proposals is to point out what is the contracting officer supposed to learn from the proposals, which is whether or not the offer has had the capacity to do the job that they're being hired to do.

[00:21:24] Speaker 02:
Was the contracting officer supposed to, in this instance, assume, for example, that all four of those offers were going to satisfy the staffing plan in exactly the same way, with the exact same level of experience?

[00:21:36] Speaker 02:
Or they were going to take care of furniture in exactly the same way?

[00:21:41] Speaker 02:
As it relates to, while I was sitting, as it relates to the differences, again, as it relates to just this argument of disparage treatment, an example we cite to in our brief,

[00:21:53] Speaker 02:
is in one instance the source selection authority points to APRAM on its submission and says for the first because some of these questions appear three times the first time the question appears as relates to a staffing plan the source selection authority afforded APRAM on its zero points and pointed to the deficiencies the second two times under staffing plan that that appears in the rubric

[00:22:19] Speaker 02:
The scoring rubric, which is where this whole 39 points came through, it afforded APROM2 points in each of those two instances for the exact same answer.

[00:22:27] Speaker 02:
And that same situation, so they gleaned four points for their staffing plan and Office Design Group gleaned zero for essentially for what was pointed out by the source selection authority as the same deficiencies.

[00:22:43] Speaker 02:
As it relates to, and again, it's done a number of times in our briefing, and again, where we disagree with the trial court, with the trial court's analysis, is that many of the awardees' responses to these were simply, were in strict violation of the evaluation criteria, doing nothing more than parroting back what the evaluation criteria require.

[00:23:05] Speaker 02:
I'm out of time.

[00:23:05] Speaker 02:
I thank the court for its time.

[00:23:07] Speaker 02:
Thank you, Councilman Taylor.