[00:00:28] Speaker 01:
Okay, our next case this morning is number 19-2225, Wellpoint Military Care Corporation versus United States.

[00:00:37] Speaker 01:
Mr. Colley.

[00:00:45] Speaker 02:
Good morning, may I please court.

[00:00:47] Speaker 02:
When a buyer

[00:00:48] Speaker 01:
Let me start out with a hypothetical here, which would help me if you could answer.

[00:00:55] Speaker 01:
Let's assume that the final determination, the final evaluation doesn't include any error in it, but that the advisory committee recommendation and the technical evaluation team recommendation do include errors in them.

[00:01:17] Speaker 01:
As I understand it under the regulations, the contracting officer who makes the final decision is required to make a quote, independent determination.

[00:01:29] Speaker 01:
So as a matter of evaluating prejudicial error, harmless error, does it really matter whether the advisory committee and the technical evaluation team have made mistakes if

[00:01:46] Speaker 01:
the contracting officer who made the final decision didn't make a mistake.

[00:01:53] Speaker 02:
Your Honor, I think the issue that you're asking about, if I can jump into it, as a matter of prejudice, is whether or not some of these elements that we're talking about from the prior evaluation entered into the source selection authority's decision, the source selection decision document.

[00:02:07] Speaker 01:
I think what I'm asking is that the hypothetical is there's no apparent error in the contracting officer's final decision.

[00:02:15] Speaker 01:
But there are errors in the technical evaluation team and the advisory committee's recommendations that are passed up the line to the contracting officer.

[00:02:26] Speaker 01:
Do those errors in the recommendations constitute prejudicial error or not?

[00:02:35] Speaker 02:
I believe they do.

[00:02:36] Speaker 02:
And the reason that they do is where the source selection

[00:02:41] Speaker 02:
authority in the source selection decisions is relying on those underlying evaluations as the basis for what he's determining.

[00:02:49] Speaker 02:
How do we know that the contracting officer was relying on those?

[00:02:53] Speaker 02:
In this particular case, the source selection decision document states exactly what the source selection authority looked at and reviewed for purposes of making his decision.

[00:03:02] Speaker 02:
That's different than reliance.

[00:03:04] Speaker 02:
Well, but we can also see from the source selection decision document that it

[00:03:08] Speaker 02:
It basically incorporates wholesale, verbatim, major portions of what the Source Selection Advisory Council wrote up in its report.

[00:03:16] Speaker 02:
He took those recommendations.

[00:03:19] Speaker 02:
He took those.

[00:03:20] Speaker 02:
Yeah, but under my hypothetical, it doesn't include the bad stuff.

[00:03:25] Speaker 02:
Well, under your hypothetical, Your Honor, if the source selection authority, if I can elaborate on that hypothetical, had said, I reject these negative findings and come to a different conclusion,

[00:03:38] Speaker 02:
That's not what happened in this case.

[00:03:40] Speaker 02:
In this case, the source selection authority took those bad findings and adopted them.

[00:03:46] Speaker 01:
I'm having trouble seeing that.

[00:03:48] Speaker 01:
Where does he say he adopted them?

[00:03:50] Speaker 02:
Well, in the narrative of what he's written out is exactly a replication.

[00:03:55] Speaker 01:
Can we look and see where in the appendix, what you're relying on for that?

[00:04:00] Speaker 02:
Sure.

[00:04:01] Speaker 02:
At least in the, I can talk about the two different issues.

[00:04:05] Speaker 02:
On the price issue, the statement about the price differential... Let's put aside the price differential thing for a moment and just concentrate on the corporate experience issue.

[00:04:16] Speaker 02:
On the corporate experience, if you look at the source selection decision document, he not only takes the... Are you at A2039?

[00:04:29] Speaker 02:
A2039, A2040,

[00:04:34] Speaker 02:
and A2041, where the demonstration of the competitive advantage to OPSS is adopted verbatim and the source selection decision, the source selection authority makes the same mistake of treating Wellpoint separate from its corporate parent as two different entities

[00:04:55] Speaker 02:
and treating Optum and OPSS as one and the same.

[00:04:58] Speaker 04:
And where do you do that?

[00:04:59] Speaker 02:
Can you quote us a line or two?

[00:05:01] Speaker 02:
Sure.

[00:05:02] Speaker 02:
First, he gives a verbatim repeat of the competitive advantage of 2309 and 240.

[00:05:08] Speaker 02:
But then his conclusions, he talks about Optum's robust network and extensive corporate experience far exceed the other offers.

[00:05:15] Speaker 02:
Optum's demonstrated corporate experience represent a clear competitive advantage over both TriWest and WellPoint.

[00:05:20] Speaker 02:
He refers to Optum only.

[00:05:22] Speaker 02:
That's the problem that created the competitive advantage.

[00:05:26] Speaker 01:
We'll put it on the next page.

[00:05:27] Speaker 01:
He does say Wellpoint's general corporate background experience and qualifications, in addition to those of its parent company, represent a benefit to the government.

[00:05:36] Speaker 02:
I appreciate that.

[00:05:37] Speaker 02:
There is a recognition that Wellpoint's parent companies has some advantages also, as does Wellpoint as the subsidiary.

[00:05:44] Speaker 04:
And then the final sentence is Optum, TriWest, and Wellpoint

[00:05:49] Speaker 04:
Each have prior experience managing large health care contracts.

[00:05:53] Speaker 04:
Clearly, when it referred to WellPoint there, it was really referring to WellPoint's parent, right?

[00:06:01] Speaker 02:
Not WellPoint standing alone.

[00:06:03] Speaker 02:
Not necessarily, because the underlying evaluation recognized that WellPoint standing alone had some experience doing that.

[00:06:09] Speaker 02:
The problem here is that there's no point had prior experience managing large health care contracts.

[00:06:15] Speaker 02:
Yes, your honor.

[00:06:16] Speaker 02:
And that's reflected in the technical of teams evaluation that well point did some but not that much.

[00:06:21] Speaker 02:
That was the problem.

[00:06:23] Speaker 02:
In this particular instance, we're not talking about a single weakness being assigned to well point based on well points lack of experience.

[00:06:31] Speaker 02:
What we're talking about is a fundamentally inconsistent, different evaluation.

[00:06:35] Speaker 01:
Okay, but let's get back to the question of where in this decision, this final decision about the award, he adopts these earlier statements from the advisory committee in the technical evaluation team.

[00:06:53] Speaker 01:
I thought you were going to tell us

[00:06:55] Speaker 01:
that there was prejudice here because of those statements by the advisory committee, the technical evaluation team, because the contracting officer adopted them.

[00:07:05] Speaker 01:
Where do we find that?

[00:07:06] Speaker 02:
Well, Your Honor, cited in the appendix, I can pull it out and read it, but the appendix language is a verbatim adoption of the SSAC's competitive advantage that was assigned to optum.

[00:07:19] Speaker 02:
It was assigned to optum.

[00:07:20] Speaker 02:
It was not assigned to OPSS.

[00:07:23] Speaker 02:
The fundamental problem- Where is the language you're relying on?

[00:07:26] Speaker 02:
The appendix of 2039 2039 Your honor in this particular language Optum possesses a competitive advantage over try rest and well point if I read down through a

[00:07:54] Speaker 02:
That competitive advantage, I have to go back and compare it to the source selection advisory commission's council's report, but it is essentially a repeat of the competitive advantage.

[00:08:05] Speaker 02:
The problem with adopting the competitive advantage was that the competitive advantage resulted from having treated optimum

[00:08:12] Speaker 01:
and OPSS as a singular entity.

[00:08:18] Speaker 01:
Under the regulation, it's very specific.

[00:08:21] Speaker 01:
The contracting officer has to make a quote, independent determination, right?

[00:08:25] Speaker 01:
Yes, your honor.

[00:08:26] Speaker 01:
And so the question is, in making that independent determination, did he adopt

[00:08:32] Speaker 01:
errors from the technical evaluation team, assumed errors from the technical evaluation team at their advisory committee.

[00:08:40] Speaker 01:
And I'm just having difficulty seeing where he adopted those things or specifically relied on.

[00:08:49] Speaker 02:
Your Honor, if you're looking for a sentence that says all of the things that the source selection advisory committee and the technical evaluation team did, I don't have all of that language quoted in his source selection decision document.

[00:09:01] Speaker 02:
But we have the body of the source selection advisory council's language adopting that competitive advantage repeated verbatim in its source selection decision document.

[00:09:12] Speaker 02:
The competitive advantage was not something that the source selection authority invented through its independent evaluation.

[00:09:19] Speaker 02:
It's something he was presented with by the source selection advisory council and used in his decision as the basis for his trade-off.

[00:09:26] Speaker 02:
competitive advantage.

[00:09:27] Speaker 04:
There's a paragraph in the SSA's decision at A2040, A2040, that's devoted to analyzing well points corporate experience.

[00:09:40] Speaker 04:
Is there something inside that paragraph that to you reveals that the contracting officer here was carrying forward some

[00:09:52] Speaker 04:
I have a question.

[00:09:52] Speaker 04:
Is there a penalty against well points corporate experience because well points standing alone has minimal managerial experience of large health care networks?

[00:10:11] Speaker 02:
The source selection authority adopts the same analytical perspective that's problematic throughout.

[00:10:17] Speaker 04:
Is there a sentence in this paragraph that you want to highlight for me that makes me want to believe what your argument is standing for?

[00:10:26] Speaker 02:
Two points in that paragraph.

[00:10:28] Speaker 02:
The first sentence talks about Wellpoint's general corporate background in addition to those of its parent company.

[00:10:33] Speaker 02:
He's drawing the same distinction that's been drawn throughout the evaluation between Wellpoint and its parents and affiliates.

[00:10:39] Speaker 02:
Later in that paragraph, he talks about

[00:10:41] Speaker 02:
the experience of the companies, the affiliates, but then notes that not all of the affiliates have been doing so for that long.

[00:10:47] Speaker 02:
Again, making analytical distinctions between Wellpoint as the subsidiary and the corporate affiliates that it draws on.

[00:10:56] Speaker 02:
In this case, you had two corporate subsidiaries being put forward as the prime contractor offer.

[00:11:01] Speaker 02:
Only one of those was evaluated.

[00:11:03] Speaker 02:
If it was important to consider the capability of one of the subsidiaries, then both subsidiaries needed to be considered equally.

[00:11:11] Speaker 02:
Here, there was no consideration at all for the OPSS subsidiary.

[00:11:13] Speaker 01:
That's not true.

[00:11:14] Speaker 01:
I mean, look at 2040.

[00:11:15] Speaker 01:
In this final decision by the contracting officer, it says specifically, Wellpoint's general corporate background experience and qualifications, in addition to those of the parent company, represent a benefit.

[00:11:28] Speaker 02:
In addition to those of the parent company, he made a judgment by distinguishing between Wellpoint and its parent.

[00:11:35] Speaker 02:
The only finding that he makes here about a corporate advantage is a corporate advantage for Optum.

[00:11:40] Speaker 02:
Optum is not OPSS.

[00:11:42] Speaker 02:
Optum is not the prime contractor offeror the same way that Wellpoint Military Care is.

[00:11:48] Speaker 02:
Optum OPSS, the prime contractor offeror, was never evaluated.

[00:11:53] Speaker 05:
Just so that I understand or correct me if I've misunderstood, your view is that the authority here did look at both

[00:12:05] Speaker 05:
Wellpoint immediately and the Wellpoint family, but did not look at OPSS individually, just the Optum family.

[00:12:16] Speaker 02:
Correct, Your Honor.

[00:12:16] Speaker 05:
And it's what's missing as to OPSS, that's your grievance.

[00:12:20] Speaker 02:
Yes.

[00:12:21] Speaker 05:
Not what is present as to Wellpoint.

[00:12:24] Speaker 02:
It's the fact that they adopted that perspective, that analytical approach, which evolved into this competitive advantage that's the problem.

[00:12:32] Speaker 02:
When they looked at WellPoint, they said, well, WellPoint doesn't have the capability to manage large contracts.

[00:12:37] Speaker 02:
WellPoint has only so many employees.

[00:12:39] Speaker 02:
WellPoint has only such and such experience.

[00:12:41] Speaker 02:
There's nothing in the record anywhere making any kind of similar assessment of OPSS separate from Optum.

[00:12:48] Speaker 02:
Optum and OPSS were treated as one unit.

[00:12:51] Speaker 01:
OK, but the problem is that what you're talking about there is in the advisory committee and the technical evaluation team.

[00:13:00] Speaker 01:
kind of specific differential treatment does not appear in the contracting officer's decision.

[00:13:09] Speaker 02:
Well, Your Honor, what appears in the contracting officer's decision, and I think the government's briefs make this point as well, is that the source selection authority traditionally relies upon the evaluation record that comes to him and builds up.

[00:13:21] Speaker 02:
The source selection decision document actually... How do we know that?

[00:13:24] Speaker 02:
Because the source selection decision document quotes from or

[00:13:27] Speaker 01:
replicates the language of the underlying evaluations and uses the- Is there any evidence in the record about what contractor officers traditionally rely on?

[00:13:38] Speaker 02:
Well, there's evidence in the record about what this source selection authority relied on.

[00:13:41] Speaker 01:
OK, but I'm asking about what they traditionally rely on.

[00:13:45] Speaker 01:
Is there any evidence in the record about that?

[00:13:48] Speaker 02:
Your Honor, as a matter of tradition, I guess I would look to case law.

[00:13:52] Speaker 02:
In terms of what they traditionally rely on, they rely on the reports of the lower-level evaluators that are presented to them.

[00:14:00] Speaker 02:
And those are in the cases that are cited in the government's brief to that extent.

[00:14:03] Speaker 02:
But in this particular case, I know what they relied on because the source selection authority in his source selection decision document reports, A, what he looked at and relied on.

[00:14:13] Speaker 02:
repeats the same language from those underlying evaluations and then uses the same findings from those underlying evaluations as the basis for his trade-off decision.

[00:14:23] Speaker 02:
I don't have a sentence that matches your demand for I find the same thing that was found below, but what he does is use that finding and repeat those findings and use that as the basis for his trade-off.

[00:14:37] Speaker 01:
You agree that

[00:14:38] Speaker 01:
Under harmless error analysis, it's important to look at the final decision maker, right?

[00:14:42] Speaker 01:
I mean, Shinseki versus Sanders says that specifically.

[00:14:46] Speaker 01:
Of course.

[00:14:46] Speaker 01:
Yeah, OK.

[00:14:49] Speaker 02:
Your Honor, I'm into my rebuttal time.

[00:14:51] Speaker 02:
I'll give you two minutes, OK?

[00:14:52] Speaker 02:
Can I make a point briefly about the price issue here?

[00:14:57] Speaker 02:
No.

[00:14:58] Speaker 02:
No?

[00:14:58] Speaker 02:
No.

[00:15:00] Speaker 02:
You can do that in your rebuttal time if you want to do that.

[00:15:03] Speaker 02:
OK, I'll wait for my rebuttal and see where that goes.

[00:15:04] Speaker 02:
Thank you.

[00:15:05] Speaker 02:
Any other questions before I sit in?

[00:15:07] Speaker 02:
No.

[00:15:07] Speaker 02:
Thank you.

[00:15:16] Speaker 01:
OK, Mr. Major, is that right?

[00:15:19] Speaker 03:
Thank you, Your Honor.

[00:15:20] Speaker 03:
May it please the Court, in assessing the question of prejudice and whether or not the source election authority simply adopted the weakness found by the technical evaluation team.

[00:15:30] Speaker 01:
Do you agree that the technical evaluation team and the advisory committee made mistakes in the evaluation?

[00:15:37] Speaker 01:
No.

[00:15:38] Speaker 01:
Why not?

[00:15:39] Speaker 03:
Because what happened was well-pointed,

[00:15:44] Speaker 03:
Optum offered different corporate structures to the government.

[00:15:48] Speaker 03:
If you read Wellpoint's proposal, Wellpoint provides it is significant.

[00:15:53] Speaker 03:
And this is their own language.

[00:15:55] Speaker 03:
It is significant that Wellpoint is at once new and yet built on the backbone of a Fortune 500 company.

[00:16:02] Speaker 03:
They received a weakness for being new and for only having nine employees, and at the same time received a strength for being built on the backbone of a Fortune 500 company.

[00:16:14] Speaker 03:
In contrast, in Optum's proposal, they provided that for the purposes of the community care network, for what the VA was building, that Optum would be the sum of its affiliates.

[00:16:25] Speaker 01:
Even if we assume that OPS- I'm not sure that I see that really as a glaring distinction.

[00:16:32] Speaker 01:
I mean, they're both relying on the experience of the overall network, right?

[00:16:37] Speaker 03:
Yes, but what you're presenting and what WellPoint did was put its weakest point forward.

[00:16:44] Speaker 03:
The tip of WellPoint's spear was this weak nine employee company.

[00:16:48] Speaker 03:
And the technical evaluation team reasonably looked at that and said, look, WellPoint plans to expand.

[00:16:54] Speaker 03:
They told us they've got nine employees.

[00:16:55] Speaker 03:
They're planning to expand to 245 employees.

[00:16:59] Speaker 03:
And that increases the risk of unsuccessful performance by WellPoint.

[00:17:05] Speaker 03:
That plan was not set forth in Optum's proposal.

[00:17:09] Speaker 03:
OPSS, even if we assume it's the equivalent of WellPoint, at the end of the day was rolled back.

[00:17:14] Speaker 03:
I mean, there's a difference.

[00:17:15] Speaker 03:
You could have the exact same components.

[00:17:18] Speaker 03:
And how you structure those components for the purposes of a proposal can determine whether you get a strength or a weakness.

[00:17:23] Speaker 03:
And again, this is just strengths and weaknesses.

[00:17:26] Speaker 03:
This is not ultimately the overall score that they're receiving.

[00:17:29] Speaker 03:
But if you take your bundle of sticks, for example, and you take those sticks and you put the weakest stick forward as the

[00:17:38] Speaker 03:
sort of the tip of your spear, but it's backed up by a very strong bundle of thicker sticks.

[00:17:44] Speaker 03:
Well, it's relevant that you have that weak stick right at the outset.

[00:17:48] Speaker 03:
You take that stick instead, bundle it into something like a hammer.

[00:17:52] Speaker 03:
Well, yes, the same weak stick is there, but it doesn't matter anymore.

[00:17:55] Speaker 03:
It no longer becomes relevant.

[00:17:57] Speaker 03:
So you have to look at the proposals, as the technical evaluation team did, in assessing strengths and weaknesses.

[00:18:05] Speaker 03:
It's about what the offers present.

[00:18:07] Speaker 03:
And at the end of the day, Wellpoint is- What exactly is the difference?

[00:18:10] Speaker 01:
Where do we see that in here?

[00:18:12] Speaker 03:
Well, we see that, ultimately, in their proposals.

[00:18:15] Speaker 03:
I mean- Yeah, but where?

[00:18:17] Speaker 01:
Just plain as two.

[00:18:18] Speaker 03:
You know, 883 of the administrative record, for example, is where Wellpoint is talking about- That wasn't a joint appendix site?

[00:18:27] Speaker 03:
That wasn't- oh, excuse me, in the joint appendix, yes.

[00:18:29] Speaker 03:
Thank you, Your Honor.

[00:18:31] Speaker 03:
883 of the joint appendix is where Wellpoint describes it as significant.

[00:18:35] Speaker 03:
It's a once new and built on the backbone.

[00:18:37] Speaker 03:
Wellpoint also describes itself on the same page as the accountable organism.

[00:18:42] Speaker 01:
Wait, wait, wait.

[00:18:43] Speaker 01:
Hold on.

[00:18:43] Speaker 01:
883?

[00:18:44] Speaker 01:
883, Your Honor.

[00:18:48] Speaker 01:
OK, so what do they say here?

[00:18:50] Speaker 03:
They describe themselves.

[00:18:52] Speaker 03:
They begin by saying it is significant.

[00:18:55] Speaker 03:
Where are we?

[00:18:56] Speaker 03:
Where are we on the page?

[00:18:58] Speaker 03:
I do not have the page in front of me.

[00:19:02] Speaker 05:
Right under the heading, reliable.

[00:19:14] Speaker 03:
All right, under the heading of.

[00:19:17] Speaker 03:
Why is this a red line?

[00:19:23] Speaker 03:
A red line?

[00:19:24] Speaker 01:
Yeah, my copy of 883 has a red line.

[00:19:27] Speaker 03:
Well, I think that's probably, there's confidential and non-confidential copies.

[00:19:34] Speaker 03:
I'm not certain if your honor is looking at.

[00:19:36] Speaker 05:
How is this like correcting in your Word document red line, not red board telling us?

[00:19:42] Speaker 03:
Oh, well, that's because this was a final proposal revision.

[00:19:50] Speaker 03:
So it was how offers would revise their proposals.

[00:19:54] Speaker 03:
You have effectively the essence of their original proposal.

[00:19:57] Speaker 03:
And then if you look through the proposal, you can see what sort of changes they made as they were in discussions

[00:20:03] Speaker 03:
with the government about their offer.

[00:20:05] Speaker 03:
So that's why you would have a red line.

[00:20:08] Speaker 03:
It's effectively how the proposals were presented to the government.

[00:20:14] Speaker 03:
And we see that, you know.

[00:20:17] Speaker 01:
OK, so where on this page do they say that they're just relying on the specific entity and not the overall thing?

[00:20:27] Speaker 03:
Well, they're not just relying upon the specific entity.

[00:20:30] Speaker 03:
Again, their specific language here under the heading reliable

[00:20:33] Speaker 03:
It is significant that WMC, which would be well point, is at once new, yet built on the backbone of a Fortune 500 company with vast experience and high quality performance.

[00:20:45] Speaker 03:
New translates to a weakness in technical evaluation teams evaluation.

[00:20:50] Speaker 01:
How's that different from the other one?

[00:20:52] Speaker 03:
Well, the difference would be if we turn, for example, to page 858 of the appendix.

[00:21:01] Speaker 03:
which I believe may be in the other volume, unfortunately.

[00:21:13] Speaker 03:
I mean, there, after describing some of the corporate instructions from the corporate background, they provide that, for the purposes of VA, CNN, optimizes the sum of its affiliates.

[00:21:28] Speaker 01:
Where is that?

[00:21:30] Speaker 03:
That's the last line of the paragraph.

[00:21:32] Speaker 03:
And so it's presenting a sort of different structure.

[00:21:35] Speaker 03:
And again, that translates to they both have the same strength, but at the end of the day,

[00:21:40] Speaker 03:
they had different weaknesses.

[00:21:42] Speaker 01:
Okay, let's assume we reject that.

[00:21:45] Speaker 01:
And let's assume that the errors, if there are errors, in the technical valuation team and the advisory committee found their way into the final determination by the contracting officer.

[00:22:02] Speaker 01:
Is that error, assumed error, in the contracting officer's decision harmless error because it wouldn't have changed the result here?

[00:22:13] Speaker 03:
It's harmless error because it wouldn't have changed the result.

[00:22:17] Speaker 03:
I think we can see.

[00:22:19] Speaker 01:
How do we know that it wouldn't have changed the result?

[00:22:23] Speaker 03:
Well, because we have the findings of the source selection authority.

[00:22:29] Speaker 03:
He states that, in this particular case, that he's not simply counting the relative strengths and weaknesses.

[00:22:36] Speaker 03:
He provides his reasoning on page 2041 and 2042 of the Joint Appendix, sets forth what he finds as significant.

[00:22:48] Speaker 03:
If you compare what the source selection authority said, you would have to have these side by side.

[00:22:57] Speaker 03:
But if you compare what the source selection authority said to the technical evaluation.

[00:23:02] Speaker 01:
But he doesn't say, if I were wrong about the corporate experience factor, it still reached the same result.

[00:23:09] Speaker 01:
We don't have anything like that.

[00:23:10] Speaker 01:
No, he doesn't.

[00:23:11] Speaker 01:
So how do we know?

[00:23:13] Speaker 01:
Let's assume that they'd both been rated equally on the corporate experience factor, that that wouldn't have potentially affected the result.

[00:23:22] Speaker 03:
Well, they weren't here.

[00:23:24] Speaker 03:
I think it becomes.

[00:23:26] Speaker 03:
As we get into the more hypothetical territory, it becomes more difficult to assess whether or not an error effectively is prejudicial.

[00:23:39] Speaker 03:
It's finding a fact by the trial court for a reason, because you actually need to look deeper into these sort of ratings and see what actually happened here.

[00:23:50] Speaker 03:
Here, the source selection authority specifically states,

[00:23:55] Speaker 03:
what's important to him, how he distinguishes between the purposes.

[00:23:57] Speaker 01:
Where's the finding of the trial court that that wouldn't be prejudicial?

[00:24:02] Speaker 03:
Well, the finding of the trial court on prejudice that is at the outset, and that is... Make sure I have the right volume of the joint appendix.

[00:24:25] Speaker 01:
Well, in the blue brief, we have the decision at hand.

[00:24:31] Speaker 01:
Yes.

[00:25:00] Speaker 03:
Leave the finding of no prejudice.

[00:25:10] Speaker 03:
First and second.

[00:25:17] Speaker 05:
Page 18 and 19 of the appendix.

[00:25:19] Speaker 03:
Page 18 and 19 of the appendix.

[00:25:20] Speaker 03:
I'm trying to find the exact line.

[00:25:27] Speaker 03:
First, the record evidence shows that the VA's evaluation proposals

[00:25:30] Speaker 03:
under solicitation's corporate experience capability sub-factor, did not prejudice Wellpoint with regards to VA's award decision.

[00:25:39] Speaker 03:
Wellpoint correctly observes that VA assigned a weakness in its proposal for lacking direct corporate experience.

[00:25:44] Speaker 03:
The administrative record shows that VA did not consider this weakness in making the agency's best value determination.

[00:25:51] Speaker 05:
And the citation is then to Appendix 2041.

[00:25:56] Speaker 03:
Yes, Your Honor.

[00:25:57] Speaker 03:
And that finding is not clearly erroneous and is correct.

[00:26:10] Speaker 03:
My time's about to expire.

[00:26:12] Speaker 03:
Where is that citation, Judge?

[00:26:13] Speaker 03:
It's on page 18, the paragraph of the appendix.

[00:26:18] Speaker 03:
The paragraph begins first.

[00:26:20] Speaker 03:
It is the second paragraph under B, well point, unequal,

[00:26:26] Speaker 03:
treatment claim is unsubstantiated.

[00:26:43] Speaker 01:
And what's the support for that?

[00:26:45] Speaker 03:
It cites to the source election authority's decision, noting the VA did not consider this weakness in making the agency's best value determination, then quotes

[00:26:56] Speaker 03:
selection from both the oral argument and then proceeds to go back to the SSA's source selection authority's decision.

[00:27:06] Speaker 03:
That would be the purposes of the court has referred him today, the contracting officer in this case.

[00:27:12] Speaker 01:
I'm sorry, I don't, I'm not understanding what you're saying.

[00:27:16] Speaker 01:
He cites to 17099.

[00:27:21] Speaker 01:
here, which is 17091 of the appendix.

[00:27:27] Speaker 01:
Yes, so where in 2041 does it say this?

[00:27:35] Speaker 03:
I mean, the quote is not from 2041.

[00:27:39] Speaker 03:
The quote that was used is from oral argument.

[00:27:47] Speaker 03:
Does that clarify, Your Honor?

[00:27:57] Speaker 01:
Well, I'm not seeing this.

[00:27:59] Speaker 01:
I mean, the site here is to 17099, which is 2041.

[00:28:03] Speaker 01:
Yes.

[00:28:05] Speaker 01:
OK, so where is the site to the oral argument?

[00:28:09] Speaker 03:
And then it cites to oral argument transcript right after that, specifically the record shows.

[00:28:16] Speaker 03:
And then it cites to the oral argument contract transcript rather than actually citing to the language, which is actually found at 2041.

[00:28:26] Speaker 03:
about the source selection authority not simply counting the relative strengths and weaknesses assigned during the evaluation process.

[00:28:34] Speaker 01:
What does that mean?

[00:28:36] Speaker 03:
It means that the source selection authority went beyond simple assessment of strengths and weaknesses, which they proceed to do.

[00:28:44] Speaker 03:
They then proceed to list what is important to them with regards to their determination of why.

[00:28:51] Speaker 01:
How does that show that they didn't consider

[00:28:55] Speaker 01:
the corporate experience thing.

[00:28:57] Speaker 03:
They didn't rely upon that corporate experience.

[00:29:00] Speaker 03:
Rather, they didn't rely upon that weakness.

[00:29:03] Speaker 03:
How do we know that?

[00:29:04] Speaker 03:
Because the contracting officer, or rather the source selection authority, lists what's important to them, specifically.

[00:29:11] Speaker 03:
On the next several paragraphs, they specifically distinguish between the two of them and then make the trade-off analysis of why, even though Wellpoint had a price advantage at the end of the day,

[00:29:23] Speaker 03:
the source selection authority would choose to go with Hopkins' higher technically rated proposal.

[00:29:30] Speaker 01:
So we have... But how does that... I'm sorry, I'm just not understanding this.

[00:29:35] Speaker 01:
How does that show us that he didn't consider the corporate experience thing?

[00:29:40] Speaker 03:
Well, because it shows what they did consider.

[00:29:42] Speaker 03:
I'm not saying they didn't consider... I'm saying they didn't consider the weakness

[00:29:48] Speaker 03:
that was found in corporate experience that is the whole basis of WellPoint's challenge.

[00:29:53] Speaker 03:
WellPoint's challenge isn't based upon the corporate experience rate, it's based on single weakness.

[00:29:57] Speaker 01:
You're suggesting that the Court of Federal Claims found that this was not prejudicial because it wasn't a factor in reaching the decision by the contracting officer.

[00:30:06] Speaker 01:
I am not seeing any support for that.

[00:30:09] Speaker 03:
Where is the support for that?

[00:30:10] Speaker 03:
I am saying the weakness was not a factor.

[00:30:13] Speaker 03:
How do we know that?

[00:30:17] Speaker 03:
Your honor, it's very simple.

[00:30:18] Speaker 03:
We can look at what the contracting officer said in his decision.

[00:30:22] Speaker 01:
OK, what, where?

[00:30:23] Speaker 03:
And we could look, well, your honor, I can't find the contracting officer in his decision saying, and I can't provide you with a quote for something he didn't do.

[00:30:34] Speaker 03:
I mean, the technical evaluation team at 1265 Joint Appendix provides that.

[00:30:40] Speaker 03:
You know, there's a weakness.

[00:30:42] Speaker 03:
WellPoint has nine people.

[00:30:43] Speaker 03:
This increases the risk of unsuccessful performance.

[00:30:45] Speaker 03:
You find none of that in the source selection authority's decision.

[00:30:48] Speaker 03:
Instead, you find the source selection authority, when it talks about WellPoint, talks about its corporate experience in a favorable fashion.

[00:30:55] Speaker 03:
So yes, I can't say where the source selection is.

[00:30:57] Speaker 01:
But he says, based on my review of the SSAC's comparative analysis and evaluation of technical past performance, blah, blah, blah, and my integrated assessment of wall proposal, it's my decision.

[00:31:09] Speaker 01:
So he's considering everything, including this, including the corporate experience.

[00:31:13] Speaker 03:
I can't disagree that he looked at those.

[00:31:17] Speaker 03:
If it is enough that he reviewed the technical evaluation team's determination, then yes, that would be

[00:31:24] Speaker 03:
But the source selection authority is required to independently set out his reasoning.

[00:31:27] Speaker 03:
He does set out his reasoning.

[00:31:29] Speaker 03:
He provides what distinguishes between the two offers, what is significant for him specifically.

[00:31:36] Speaker 03:
And he talks about things like Optum's expansive network.

[00:31:40] Speaker 03:
He's not talking about this nine-person well-pointed weakness.

[00:31:45] Speaker 03:
It simply vanishes.

[00:31:47] Speaker 03:
It's such an insignificant factor in the evaluation that we don't see him saying,

[00:31:53] Speaker 03:
We're expressing the same concerns that the technical evaluation team did.

[00:31:57] Speaker 03:
And let's be clear, the technical evaluation team's concerns are very specific.

[00:32:02] Speaker 03:
It's based on that sort of nine persons, based upon the increase of risk of unsuccessful performance.

[00:32:08] Speaker 03:
They set forth their reasoning clearly.

[00:32:10] Speaker 03:
You don't find that same reason in the source selection authority's decision.

[00:32:13] Speaker 03:
And therefore, I can't provide a citation for him replicating that reasoning in any sort of fashion.

[00:32:22] Speaker 03:
OK.

[00:32:22] Speaker 03:
All right.

[00:32:24] Speaker 03:
Thank you, your honor.

[00:32:25] Speaker 03:
Are there any further questions?

[00:32:27] Speaker 01:
No, I don't think so.

[00:32:34] Speaker 00:
Mr. Carey?

[00:32:37] Speaker 00:
May it please the court?

[00:32:39] Speaker 00:
I would like to first address the court's most recent question, how do we know that it didn't matter?

[00:32:46] Speaker 00:
And I think how we know is by looking at the source selection decision, and in particular, appendix page 2041.

[00:32:59] Speaker 00:
And for context, what's happening there, Your Honor, is the source selection authority is explaining why, despite the fact that Wellpoint is somewhat lower priced,

[00:33:10] Speaker 00:
He thinks an award to Optum makes sense, and he's identifying the reasons why he's making an award to Optum despite a modest premium.

[00:33:18] Speaker 00:
And the reasons are, number one, the better provider network, but then number two, his determination that Optum had an advantage in corporate experience.

[00:33:27] Speaker 00:
And the key, Your Honors, is that his reason for concluding that Optum had an advantage in corporate experience had nothing to do with the weakness that the lower-level evaluators assigned.

[00:33:40] Speaker 00:
His reason for finding that Optum had an advantage in corporate experience had only to do with Optum and the broad strengths of the Optum enterprise.

[00:33:51] Speaker 05:
And by Optum here, you mean the family, not OPSS specific.

[00:33:57] Speaker 00:
That's right, Your Honor.

[00:33:59] Speaker 00:
He's making a word.

[00:34:00] Speaker 05:
I hesitated, so I said something wrong.

[00:34:01] Speaker 05:
Tell me what I should be worried about.

[00:34:04] Speaker 00:
No, you didn't say anything wrong, Your Honor.

[00:34:06] Speaker 00:
So he's making a word to OPSS.

[00:34:08] Speaker 00:
But I certainly agree with counsel for the government that what OPSS was offering were the full capabilities of the optimum United Health enterprise.

[00:34:18] Speaker 05:
And somewhere early on, I think we were looking at it before, there's a sentence that says,

[00:34:24] Speaker 05:
For these purposes, Optum is kind of the whole group, not just OPSS, right?

[00:34:29] Speaker 00:
That's correct.

[00:34:30] Speaker 00:
And the proposal goes through in some detail and says, from this affiliate, here's what we're getting.

[00:34:35] Speaker 00:
From that affiliate, here's what we're getting.

[00:34:37] Speaker 00:
But back to the question of how do we know it doesn't matter, at the bottom of appendix page 2041 and going over on page 2042, the source selection authority explains why he thinks Optum is better for corporate experience.

[00:34:54] Speaker 00:
And just reading that paragraph, you can see that the reason is all about the organizational strengths of Optum.

[00:35:01] Speaker 00:
They have nothing to do with the weakness that was assigned to Wellpoint.

[00:35:05] Speaker 00:
And so if that weakness was removed, if that weakness had never existed, the source election authority would have reached the same conclusion.

[00:35:14] Speaker 00:
He still would have concluded that Optum has an advantage in corporate experience.

[00:35:19] Speaker 00:
And he still would have reached the exact same award decision.

[00:35:23] Speaker 04:
At near the bottom of A2041, in that last paragraph, the third sentence says, all three offerers have provided existing networks in the states comprising region three.

[00:35:37] Speaker 04:
So did Wellpoint, standing alone, have a preexisting network in the states comprising region three?

[00:35:49] Speaker 00:
I believe that WellPoint relied on its anthem parent networks as well.

[00:35:55] Speaker 04:
I guess that's my point is that the reference to the offeror WellPoint in that sentence must have necessarily been contemplating the entire organization behind WellPoint, that is, its parent and all affiliates, and not just WellPoint, the nine employee

[00:36:17] Speaker 00:
I believe that's right, Your Honor, and I believe under the RFP, the RFP stated that the agency would evaluate offers based not just on the specific offering entity, but based on the overall organization.

[00:36:33] Speaker 00:
And that's exactly what the agency did here.

[00:36:36] Speaker 00:
So that's why I think

[00:36:40] Speaker 00:
The source selection decision makes it clear that the weakness ultimately didn't matter.

[00:36:46] Speaker 00:
It played no role in the award decision.

[00:36:48] Speaker 01:
OK, but there are two different harmless error theories here, which are quite different.

[00:36:54] Speaker 01:
One is that whatever errors there were in the technical evaluation team and the advisory committee didn't influence or find their way into the final decision by the contracting officer.

[00:37:06] Speaker 01:
Alternatively, there's an argument that even if they did, even if the contracting officer made a mistake in the corporate evaluation factor, that the corporation evaluation factor didn't play any role in the final decision.

[00:37:23] Speaker 00:
Do you support both of those?

[00:37:25] Speaker 00:
No, only the first, Your Honor.

[00:37:27] Speaker 00:
So certainly, the corporate experience factor

[00:37:31] Speaker 00:
played a role in the award decision because it was one of two discriminators that the source election authority pointed to to say Optum is worth a modest premium.

[00:37:43] Speaker 00:
But we can see from this record that the reason

[00:37:47] Speaker 00:
that corporate experience was an advantage for Optum had nothing to do with the weakness, and only to do with the weakness.

[00:37:54] Speaker 01:
OK, so if I understand what you're saying, you disagree with the government's theory that even if the contracting officer made a mistake on the corporate experience point, that that would have been a harmless error because the CEO would have reached the same decision anyway?

[00:38:12] Speaker 00:
Well,

[00:38:16] Speaker 00:
There's no indication here that the contracting officer made the same mistake.

[00:38:22] Speaker 01:
Yeah, I understand that.

[00:38:29] Speaker 01:
Let's assume that he did make the same mistake.

[00:38:32] Speaker 01:
And I know that you contest that.

[00:38:34] Speaker 01:
And we've talked a lot about that.

[00:38:35] Speaker 01:
But let's assume that he did make the mistake.

[00:38:38] Speaker 01:
Are you arguing that that would be harmless error?

[00:38:41] Speaker 00:
Yes, that would be harmless error.

[00:38:43] Speaker 00:
Why would that be harmless error?

[00:38:45] Speaker 00:
Because even if he, and by mistake, I'm interpreting mistake to be that he also believed that Wellpoint correctly had a weakness.

[00:38:55] Speaker 00:
Even if he

[00:38:57] Speaker 00:
Even if he adopted that view, that WellPoint correctly had a weakness, we can see from this decision that that weakness had zero impact on his award decision.

[00:39:07] Speaker 00:
Because his award decision came down to three things.

[00:39:10] Speaker 00:
Number one, the fact that WellPoint was slightly cheaper.

[00:39:13] Speaker 00:
Number two, the fact that Optum had a stronger provider network.

[00:39:16] Speaker 00:
And number three, the corporate experience, the advantage for corporate experience for Optum.

[00:39:21] Speaker 00:
But that advantage had nothing to do with the weakness.

[00:39:24] Speaker 00:
The only thing it had to do... I'm not following that.

[00:39:28] Speaker 00:
I get it, Your Honor, but I think if you read the bottom of appendix page 2041 and going on appendix page 2042, that's the paragraph that talks about the two things that distinguish Optum from WellPoint.

[00:39:47] Speaker 00:
And the first part of the paragraph talks about the provider network.

[00:39:51] Speaker 00:
And then only at the very bottom of that paragraph, I'm sorry, the very bottom of page 2041, we get to the corporate experience.

[00:39:58] Speaker 00:
And it says, further with respect to corporate experience, Optum is a proven market leader that will allow VA to stay on the cutting edge of health care rather than being in a reactive mode as VA has proven to be historically.

[00:40:12] Speaker 00:
Optum proposes to invest $3.2 billion in technology annually.

[00:40:18] Speaker 00:
Going on to the next sentence.

[00:40:20] Speaker 00:
Optum's demonstrated corporate experience represents a clear competitive advantage.

[00:40:25] Speaker 00:
And if you then, Your Honor, tie that back to the discussion on pages 2039 and 2040, and particularly on page 2039 where he's discussing Optum, he says Optum's proposal is stronger in the area of general corporate experience capability.

[00:40:49] Speaker 00:
And he talks about the full range of

[00:41:01] Speaker 01:
Optum has a clear competitive advantage on corporate experience, right?

[00:41:07] Speaker 00:
But in doing that, he's looking at the entire organization.

[00:41:10] Speaker 00:
For both offerors, both Optum and Wellpoint, he's looking at the whole organization, and he's concluding that the organization as a whole

[00:41:22] Speaker 00:
The United Health enterprise as a big United Health is stronger than the big anthem.

[00:41:27] Speaker 01:
That seems to me to be an argument that he didn't make a mistake in the first place, rather than an argument that if he made a mistake, it was non-prejudicial.

[00:41:35] Speaker 01:
But I understand what you're saying.

[00:41:39] Speaker 01:
OK, thank you very much.

[00:41:40] Speaker 01:
Thank you, Your Honor.

[00:41:46] Speaker 01:
OK, Mr. Colley.

[00:41:54] Speaker 02:
If I go back to Judge Sharanto's question that he asked me earlier, I think that gets to the heart of the issue.

[00:41:59] Speaker 02:
That would be Toronto.

[00:42:01] Speaker 02:
I apologize.

[00:42:01] Speaker 02:
I'm often Coley, so I do recognize the difficulty here.

[00:42:05] Speaker 05:
It's about the first time.

[00:42:06] Speaker 02:
The problem here is that the SSA never considered OPSS, never evaluated it.

[00:42:12] Speaker 02:
If this is an independent evaluation, the only thing that the source selection decision document ever references is Optum.

[00:42:18] Speaker 02:
It does reference Wellpoint, and it does reference its different corporate parents.

[00:42:22] Speaker 02:
But it never references anything about OPSS.

[00:42:25] Speaker 05:
As I understand it, though, the prejudicial error point being made is that doesn't matter because the contracting officer, unlike the earlier stages, didn't place any reliance on the weakness of well point itself.

[00:42:47] Speaker 05:
whether there was a difference or not between OPSS and WellPoint specifically, just plays no role in the contracting officer's evaluation.

[00:42:56] Speaker 05:
When the contracting officer was evaluating corporate experience, he was plainly looking, the argument goes, at the families, not the individual.

[00:43:05] Speaker 02:
And I think that argument's a mistake.

[00:43:07] Speaker 02:
And the reason I think so is because, and I would highlight two places in the record to go back and take a look at,

[00:43:12] Speaker 02:
Appendix 2039 and 2040, which we've talked about a lot today.

[00:43:16] Speaker 02:
But go back and look at the source selection advisory councils to report to the SSAC, which he reviewed at 2022 to 2023.

[00:43:23] Speaker 02:
You'll see the verbatim comparison.

[00:43:26] Speaker 02:
This source selection authority never went back and looked at the proposals.

[00:43:30] Speaker 02:
What he looked at was what he was receiving from the underlying evaluators.

[00:43:35] Speaker 02:
The underlying evaluators never looked at OPSS.

[00:43:37] Speaker 02:
The weakness is a distraction.

[00:43:39] Speaker 02:
This isn't about the weakness.

[00:43:40] Speaker 02:
The prejudice here is that there was a disparate evaluation that evolved into a competitive advantage.

[00:43:46] Speaker 02:
That competitive advantage was something that the SSAC presented to the source selection authority that he adopted and accepted without making any independent assessment of his own of the difference between OPSS and Optum.

[00:43:59] Speaker 01:
Did you ever ask to depose the contracting officer here?

[00:44:04] Speaker 02:
No, Your Honor.

[00:44:05] Speaker 02:
Why not?

[00:44:07] Speaker 02:
There was not an opportunity before the GAO, and we never tried to supplement the record because we thought the record was sufficient in showing that there was a disparate evaluation.

[00:44:15] Speaker 01:
Right now, what we don't have is in... In Preza, we approved the deposition of a contracting officer under some limited circumstances to figure out what the contracting officer considered and what he meant, but you never asked for that.

[00:44:29] Speaker 02:
No, Your Honor.

[00:44:30] Speaker 02:
We thought the record had enough information in it about what the source selection authority had considered here.

[00:44:36] Speaker 02:
And the record is clear that while there was apparently a view that it was important to evaluate the subsidiary prime offer when it came to well point, there was never an equivalent evaluation of the subsidiary prime offer, OPSS in this case.

[00:44:52] Speaker 02:
All of that turned around in the lower level evaluations evolved into a competitive advantage.

[00:44:57] Speaker 02:
And that competitive advantage makes its way unaltered into the source selection decision document, where he relies on the value of optum

[00:45:06] Speaker 02:
And then also notes differences between Wellpoint.

[00:45:08] Speaker 02:
For example, he says Wellpoint was created in 2014.

[00:45:12] Speaker 02:
We have no idea when OPSS was created.

[00:45:15] Speaker 02:
That differential evaluation led to the competitive advantage.

[00:45:19] Speaker 02:
And that competitive advantage shouldn't have been the result of a disparate evaluation.

[00:45:24] Speaker 02:
Both of the entities should have been evaluated equally.

[00:45:26] Speaker 02:
And that competitive advantage shouldn't stand.

[00:45:28] Speaker 02:
OK.

[00:45:29] Speaker 02:
Thank you.

[00:45:29] Speaker 02:
Thank both counsel.

[00:45:30] Speaker 02:
The case is submitted.