[00:00:00] Speaker 01:
Yes, I can hear you and see all three of the judges.

[00:00:08] Speaker 01:
Thank you, Your Honor.

[00:00:09] Speaker 01:
Thank you.

[00:00:12] Speaker 00:
Our next case for argument is 22-1966, ACI Technology versus United States.

[00:00:19] Speaker 00:
Mr. Schaeffer, please proceed.

[00:00:22] Speaker 01:
Good morning, Your Honor.

[00:00:22] Speaker 01:
This may please the court.

[00:00:24] Speaker 01:
ACI was the incumbent contractor for the Navy's electronic

[00:00:28] Speaker 01:
Manufacturing Center of Excellence since 1995.

[00:00:31] Speaker 01:
And this contract provided the overwhelming majority of ACI's work and was its primary source of revenue.

[00:00:37] Speaker 01:
And so the stakes were high for ACI to win the next contract when the Navy issued its RFP.

[00:00:42] Speaker 01:
But ACI never expected or asked for special treatment.

[00:00:46] Speaker 01:
Instead, all ACI expected was that the Navy would award the contract in accordance with the RFP terms.

[00:00:52] Speaker 01:
But the Navy failed to follow the RFP terms and arbitrarily awarded the contract.

[00:00:57] Speaker 01:
And there were at least three material errors.

[00:00:59] Speaker 01:
First, the source selection authority repeatedly ignored URP's requirement that the winning contract holder have electronic manufacturing experience.

[00:01:08] Speaker 01:
And this error impacted the past performance evaluation, the evaluation of key personnel, and the best value analysis.

[00:01:15] Speaker 01:
For example, on their past performance, Penn State had only one relevant past performance example.

[00:01:21] Speaker 01:
And the source selection authority determined that that was rated very relevant, and on that basis,

[00:01:27] Speaker 01:
assigned Penn State a substantial confidence rating.

[00:01:30] Speaker 01:
But the RFP says that a very relevant past performance example must involve essentially the same scope and magnitude of effort as the RFP's requirements.

[00:01:40] Speaker 01:
But Penn State's only relevant past performance example involved a different scope of effort and a different magnitude.

[00:01:46] Speaker 01:
And this is not an invention of ACI.

[00:01:49] Speaker 01:
As we look at the record, we'll see that repeatedly this is something that the Navy's own technical evaluators recognized.

[00:01:55] Speaker 01:
The respective statement at work for the Penn State and the RFP examples make this clear in their different descriptions of the technical work scope in section 1.3.

[00:02:05] Speaker 01:
And the Navy's government cost estimate especially notes that these centers can't be compared to each other because they don't perform the same or similar work or accurate comparison.

[00:02:17] Speaker 01:
And this difference is why the Navy's technical evaluators highlighted Penn State's misunderstanding of the material differences between the technologies.

[00:02:25] Speaker 01:
And Penn State's lack of experience in electronics manufacturing.

[00:02:29] Speaker 01:
Now, again, this is not an ACI invention.

[00:02:31] Speaker 01:
It's not an argument of counsel.

[00:02:33] Speaker 01:
But I want to point you to the appendix.

[00:02:35] Speaker 01:
I can't read it to you because of the protective order, but the appendix pages 2450 at the bottom of the page, 2451 at the top of the page, and the end of the first bullet, and 2458, the end of the last bullet.

[00:02:50] Speaker 01:
And I'll come back to those later.

[00:02:52] Speaker 01:
And on those pages, the evaluators

[00:02:54] Speaker 01:
addressed the need for electronic manufacturing experience and Penn State's specific weaknesses in those areas.

[00:03:02] Speaker 01:
Nonetheless, the SSA concluded that Penn State's past performance was the same identical, that was her quote, that it was the same identical as the R&P statement of work.

[00:03:12] Speaker 01:
And on that basis, she said that there was no advantage between Penn State and ACI on past performance.

[00:03:19] Speaker 01:
And so the SSA's decision is contrary to the record, and it's contrary to what the Navy's

[00:03:24] Speaker 01:
own technical evaluators found, and I'll come back to that.

[00:03:27] Speaker 01:
But the SSA also disregarded the RFP's requirement for electronics manufacturing experience when she said in her best value decision that Penn State had, quote, strong technical personnel.

[00:03:41] Speaker 01:
Now, technical personnel were to be evaluated by the technical evaluators, and the Navy's technical evaluators gave Penn State a rating of only acceptable for key personnel in stamping due to their lack of experience with

[00:03:54] Speaker 01:
electronics manufacturing.

[00:03:56] Speaker 01:
And again, it's the same pages that I pointed to before in the appendix.

[00:04:01] Speaker 00:
Council, what's the standard of review that we review, for example, the determination related to past performance under?

[00:04:09] Speaker 01:
Well, in terms of reviewing the lower court, I think it's a de novo standard of review.

[00:04:13] Speaker 01:
In terms of reviewing what the Navy did, there is deference.

[00:04:17] Speaker 01:
There are many cases in this court and other courts that say you owe a great deal of deference to the Navy evaluators.

[00:04:23] Speaker 01:
But the question is,

[00:04:24] Speaker 01:
Who is that deference owed to?

[00:04:25] Speaker 01:
Is it owed to the source selection authority, or is it owed to the Navy evaluators and the record as a whole?

[00:04:31] Speaker 01:
And I think under the Supreme Court state farm case and under this court's Alabama case on the standard of review, when it comes to arbitrary and capricious, the question is, did the source selection authority fail to address a significant issue, or did she reach a conclusion contrary to the record?

[00:04:54] Speaker 01:
The SSA can overrule lower-level value values, but under the APA standard, they have to explain why they're doing that.

[00:05:02] Speaker 01:
And that's what she didn't do here.

[00:05:04] Speaker 01:
And that happened in patent performance, it happened in staffing, and it happened in cost realism.

[00:05:09] Speaker 01:
In all three areas, the record shows that the Navy evaluators were extremely concerned about Penn State's lack of experience in electronics manufacturing.

[00:05:19] Speaker 01:
And it's not the case that the SSA said, I see that the technical evaluators said that.

[00:05:23] Speaker 01:
But I disagree, and here's why.

[00:05:26] Speaker 01:
Maybe that would have passed muster.

[00:05:27] Speaker 01:
But that's nowhere in the record.

[00:05:29] Speaker 01:
And they've never made that, even in post-op statements, they haven't made an argument.

[00:05:33] Speaker 01:
No one said that these technical, these Navy technical evaluators didn't know what they were talking about or that they made a mistake.

[00:05:38] Speaker 01:
And that's what we're relying on.

[00:05:39] Speaker 01:
So if there's any question of deference, the deference should be to those evaluators.

[00:05:44] Speaker 01:
And the SSA can't overrule them unless she states why she's doing that.

[00:05:52] Speaker 01:
Turn to the case information census for at the Court of Federal Claims, 73 Fed claims, 70 pages 120 to 121, where they discuss that issue that the SSA can't overrule lower level evaluators without explaining why.

[00:06:09] Speaker 01:
And with regard to the source election authority's conclusion.

[00:06:14] Speaker 00:
I have a question for you.

[00:06:15] Speaker 00:
Did you tease out this issue because you're

[00:06:19] Speaker 00:
drawing a line now between the SSA and the technical evaluators.

[00:06:24] Speaker 00:
Did you parse that out in your brief?

[00:06:27] Speaker 00:
Because I feel like I may have overlooked that and didn't appreciate it.

[00:06:31] Speaker 01:
Yeah, it was in our brief.

[00:06:33] Speaker 01:
It's where we cite this information sciences case.

[00:06:35] Speaker 01:
And it's in the best value section where we talked about that issue.

[00:06:39] Speaker 01:
Perhaps we rather should have led with that in our introduction to our brief.

[00:06:42] Speaker 01:
But it's certainly in there in our briefing.

[00:06:45] Speaker 00:
Where?

[00:06:46] Speaker 00:
Can you direct me to where in the brief it is so I can know and double check and reread that?

[00:06:53] Speaker 01:
Yes, Your Honor.

[00:07:05] Speaker 01:
I think it's on page 34 of our initial brief.

[00:07:10] Speaker 01:
And I'm referring to the pages in the bottom of the page, not the ECM pages.

[00:07:17] Speaker 01:
And then on page 24 of our reply brief, they look at the pages.

[00:07:29] Speaker 01:
And we say there, an SSA can hold the rule of technical evaluators, but the court law upholds this action only where it is rationally explained.

[00:07:36] Speaker 01:
And then we said the SSA provided no reasonable basis for crediting PSU with strong technical personnel given the actual weaknesses identified by the Navy evaluation team.

[00:07:48] Speaker 00:
OK, so you raised this issue with regard to the argument about strong technical personnel.

[00:07:54] Speaker 00:
But did you raise it with regard to all of these other things?

[00:07:58] Speaker 00:
I mean, it seems like now you're sweeping in this notion that the SSA came up short with regard to a number of the different determinations she made, not just this one determination.

[00:08:11] Speaker 01:
Yes, we didn't cite the information sciences case.

[00:08:14] Speaker 01:
But in the past performance section of our brief,

[00:08:17] Speaker 01:
We talked about how the Navy evaluators had these concerns about their lack of experience with electronic manufacturing.

[00:08:28] Speaker 01:
And we cited to the same pages that I'm calling to your attention now.

[00:08:32] Speaker 01:
And those pages, especially 2450 and 2451, really explain in the evaluators' own words why there's this difference between electronics manufacturing and other technical domains.

[00:08:47] Speaker 01:
And it's really focusing on what does manufacturing mean in this context and why it's important that the people and the offeror have experience in those areas.

[00:08:55] Speaker 01:
So yes, we did talk about that.

[00:08:58] Speaker 01:
It's in our library on page five.

[00:09:02] Speaker 01:
Maybe other places, too, where we cite those pages.

[00:09:05] Speaker 03:
Can I just ask a follow up on that?

[00:09:08] Speaker 03:
This is essentially not a contrary to evidence, but an insufficient addressing of evidence point.

[00:09:17] Speaker 03:
Did you make the, that is the SSA, insufficiently addressed evidence that was important, namely the evidence of its own evaluators thinking that there was this difference?

[00:09:29] Speaker 03:
Did you make that point in the Court of Federal Plans?

[00:09:34] Speaker 01:
Yes.

[00:09:34] Speaker 01:
Yes, we did.

[00:09:35] Speaker 01:
We repeatedly argued about the significance of the Navy evaluators' determinations on past performance, on cost, and on

[00:09:45] Speaker 01:
this technical staff issue and if I could just highlight I mean really under the cost we did dress below and in briefs under the cost realism analysis that again the source election authority and who also did the cost realism analysis is a very odd term in which the contractor officer was also the source election authority and she was the cost analysis but she was not a technical evaluator and she disregarded what the

[00:10:13] Speaker 01:
technical evaluators.

[00:10:15] Speaker 01:
They said, and this is on page 2451, they said that Penn State's lack of electronics manufacturing experience, quote, would create risk that would require additional cost and corresponding delay schedule to the government to mitigate.

[00:10:29] Speaker 01:
And again, that's the technical evaluator saying that this would create risk.

[00:10:33] Speaker 01:
It's not a question of maybe it would.

[00:10:36] Speaker 01:
The government cites some GAO cases that say, well, if the evaluators are not, I'm sure, might possibly create risk,

[00:10:44] Speaker 01:
It doesn't have to be included in a cost-realism analysis.

[00:10:46] Speaker 01:
But here in the evaluators from Chris McBlair, they said it would create risk that would require additional cost.

[00:10:52] Speaker 00:
And those costs.

[00:10:53] Speaker 00:
Can I ask a follow-up question back on page?

[00:10:55] Speaker 00:
You said, what page in the reply brief did you say that you made this argument?

[00:10:58] Speaker 00:
Again, the one that the SSA didn't provide a reasonable basis for disregarding the Navy evaluation.

[00:11:06] Speaker 00:
Where you said you raised it.

[00:11:08] Speaker 00:
You said page 34 in the blue brief.

[00:11:09] Speaker 00:
And then you said something about the reply brief.

[00:11:11] Speaker 00:
And I must have misunderstood.

[00:11:12] Speaker 01:
Yeah, on page 24 of the reply break, we addressed that issue in terms of personnel and staffing.

[00:11:22] Speaker 01:
And we cite the information that science has caged there.

[00:11:27] Speaker 01:
But on page 5, we talk about how the evaluation was unreasonable because it was inconsistent with what the technical evaluators said, which is really the same species of argument that the source election authority ignored what was

[00:11:43] Speaker 01:
in the underlaw, or to explain why she wasn't credited with the evaluators.

[00:11:47] Speaker 01:
So it's really the same issue.

[00:11:51] Speaker 00:
Where was this?

[00:11:53] Speaker 00:
I'm on page five.

[00:11:54] Speaker 00:
Where was this?

[00:11:56] Speaker 00:
Maybe I'm missing it.

[00:11:57] Speaker 00:
On page five, can you tell me the language that does that?

[00:12:02] Speaker 01:
Yeah, we said that it's confirming maybe a reasonable equivalence between the

[00:12:10] Speaker 01:
EO, SOW, EM, SOW, is that the native technical evaluators found PSU lacking EM efficiency under factors one and two.

[00:12:19] Speaker 01:
And that's citing page 2450 and 2451.

[00:12:22] Speaker 01:
And we had the same, we addressed the same issue in the initial brief too, and I'll find you that.

[00:12:36] Speaker 00:
Yeah, okay.

[00:12:39] Speaker 01:
Yeah, if you look on page 22 of our initial brief.

[00:12:47] Speaker 00:
I just don't see that.

[00:12:48] Speaker 00:
I don't see this argument really being made on page five.

[00:12:51] Speaker 00:
I see that you point to the technical evaluators, but I don't see the argument that the SSA failed to articulate a basis for ignoring the Navy's technical evaluator language.

[00:13:04] Speaker 00:
You just seem to claim that she's wrong in light of the

[00:13:08] Speaker 00:
technical evaluators, but okay.

[00:13:10] Speaker 00:
Is it page 22?

[00:13:11] Speaker 01:
22 of our initial reading.

[00:13:26] Speaker 00:
What would you like me to see here?

[00:13:29] Speaker 01:
Yes, starting at the top.

[00:13:31] Speaker 01:
To show the differences between the two

[00:13:36] Speaker 01:
between other manufacturing and optics, we get it cited to page 2450 and we say that we're relying on the evaluators.

[00:13:45] Speaker 01:
The evaluators identify PSU's misunderstanding of the material differences.

[00:13:50] Speaker 01:
And that confirms that the SSA's determination was wrong.

[00:14:04] Speaker 01:
And we continue to argue that until the next page, 223, that the SSA's equivalence determination is inconsistent with the findings of the technical evaluators.

[00:14:17] Speaker 00:
OK, you're almost exhausted all your time, including your rebuttal time.

[00:14:20] Speaker 00:
Is there any other point you really want to make before we move on to government?

[00:14:23] Speaker 01:
No, I think you and I will reserve any time left for rebuttal.

[00:14:27] Speaker 01:
Thank you.

[00:14:27] Speaker 00:
Very good.

[00:14:28] Speaker 00:
OK.

[00:14:45] Speaker 02:
I think I'll start off where the court left off.

[00:14:55] Speaker 02:
We're talking about page 22 of their brief, which is their past performance argument.

[00:15:00] Speaker 02:
And as best we understand sort of how ACI is presenting sort of this technical factor, the argument would be that the source selection authority in doing the past performance analysis focused upon center operations and project management rather than the technical aspects.

[00:15:21] Speaker 02:
of Penn State University's performance.

[00:15:28] Speaker 02:
And quite simply, this court does generally provide that path performance analysis are a subjective determination.

[00:15:34] Speaker 02:
The contracting officer here is the contracting officer for both the electro-optical and the

[00:15:42] Speaker 02:
electronics manufacturing centers.

[00:15:44] Speaker 02:
They understand what sort of work is required of offerors and what sort of past performance is relevant.

[00:15:51] Speaker 02:
So in assessing the relevance of the examples of past performance, the contracting officer focused, and we acknowledge this in our briefs, we acknowledge this below, upon center operations project management.

[00:16:02] Speaker 02:
And that is inherently a rational determination rather than focusing on the technical analysis.

[00:16:07] Speaker 02:
ACI's even acknowledged that the contrary officer didn't ignore the technical.

[00:16:12] Speaker 02:
They just simply didn't import it into certain other sections of solicitation.

[00:16:16] Speaker 03:
So how does what you are now saying bear on the central argument that we just heard, namely that the technical evaluators said there's a real problem here and the SSA

[00:16:35] Speaker 03:
in her decision did not say

[00:16:39] Speaker 03:
By the way, the technical evaluators say there's a real problem.

[00:16:43] Speaker 03:
Here's why I think, A, there's not a real problem, or B, there are overriding considerations, and it just isn't there.

[00:16:50] Speaker 03:
That's what I took away.

[00:16:51] Speaker 02:
Yeah, the source selection party didn't ignore it.

[00:16:53] Speaker 02:
I mean, we have a broad source selection decision, which they talk about the advantages with the appendix.

[00:16:59] Speaker 03:
Where in the SSA's decision is there an addressing of the somewhat negative evaluators

[00:17:09] Speaker 02:
Well, are we talking in the past performance analysis, the cost price analysis, or the SSA's Roger decision?

[00:17:16] Speaker 02:
I'm happy to have citations for all of them.

[00:17:18] Speaker 02:
Because the answer will vary.

[00:17:22] Speaker 03:
You've got to let me finish.

[00:17:23] Speaker 03:
My apologies.

[00:17:24] Speaker 03:
I am happy to have citations for all of the above.

[00:17:29] Speaker 02:
And I would say that the answer varies depending upon which area I'm focused on.

[00:17:34] Speaker 02:
For example, if I'm talking about past performance.

[00:17:38] Speaker 02:
Past performance, I'd say that the source selection authority is not addressing the technical aspects or concerns that the evaluators have raised.

[00:17:48] Speaker 02:
Those are generally considered as part of the agency's broader technical analysis here.

[00:17:55] Speaker 02:
with the we acknowledge and again as we acknowledge below with regards to past performance the source election authority is focusing on you know determining scope magnitude of African complexities based upon you know the statement of work and acknowledges contrary to what

[00:18:14] Speaker 02:
Council for ACI represented acknowledges the differences between the solicitations or acknowledges the difference between the various stages of work.

[00:18:25] Speaker 02:
And that's Appendix 1950.

[00:18:28] Speaker 02:
You can find a very direct addressing of that.

[00:18:33] Speaker 02:
Council said that the SSA simply said the same, identical in that regard.

[00:18:40] Speaker 02:
And I'm happy to address that and put that in context, but I think that's getting us further away from the points.

[00:18:49] Speaker 02:
With regards to the sort of cost price estimate, if you look at appendix 1992, generally, the agency isn't ignoring the fact that PSU didn't have, hadn't done, electro-manufacturing before.

[00:19:11] Speaker 02:
Instead, they

[00:19:14] Speaker 02:
determine that they would be able to leverage resources from their work on electro-opticals.

[00:19:19] Speaker 02:
In the technical analysis, I think you'd probably focus on pages 2, 4, 5, 7 of the appendix and pages 2, 5, 9, 9 of the appendix.

[00:19:32] Speaker 02:
That's the parts where the source selection authority is acknowledging advantages and disadvantages provided with regards to personnel.

[00:19:41] Speaker 02:
The SSA here

[00:19:44] Speaker 02:
went through and went through.

[00:19:48] Speaker 03:
Just so I understand, is 2450 to 1 and 2457 to 8, is that the SSA?

[00:19:56] Speaker 02:
Yes, that is 2450 and 2451 is the SSA's decision, the source selection decision.

[00:20:08] Speaker 02:
You can find, I mean, the source selection, there's only so much material in the brief.

[00:20:13] Speaker 02:
I don't believe this argument was fully developed in the briefs.

[00:20:17] Speaker 03:
So just bonded to it.

[00:20:19] Speaker 03:
Because we don't have a front page, so it just helped.

[00:20:21] Speaker 03:
And this may be all, I should know this, but in the table of authorities, the pages for 245 that we were just talking about says, excerpt, final proposal consensus report.

[00:20:33] Speaker 02:
Yes.

[00:20:34] Speaker 02:
And there's also a source selection.

[00:20:36] Speaker 02:
And is that the source selection authorities?

[00:20:38] Speaker 02:
Sorry, that's that's what the agency is looking at and the actual source if you want to cite from the source election decision document That's found at two five seven to two five zero six of the of the of the record and there if you're looking over the technical considerations again, you'll find that at two five seven eight through

[00:21:05] Speaker 03:
right then it's generally to five eight the table of authorities makes that clear and that's who produced this final proposal consensus report document for march fourth uh... i don't believe that was prepared by i don't know when the agency ultimately prepared but it's a consensus report of and it's not both right but it's not the source so it's no it's not the first of all okay so mileage okay because if that had been the social sources selection authority then it would have been

[00:21:34] Speaker 03:
self-evident that the SSA was considering these points, but it's not her document.

[00:21:40] Speaker 02:
No, but that is replicated if you look in the source selection decision.

[00:21:46] Speaker 02:
Ah, that's what I was going to say there.

[00:21:48] Speaker 02:
When talking about the actual technical factors, I apologize, I was trying to get to that.

[00:21:53] Speaker 02:
But ultimately, they acknowledge those differences.

[00:21:58] Speaker 02:
What, again, we view ACI's argument as being is that the difficulty is that, you know, the source selection authority didn't import those technical concerns onto their past performance analysis.

[00:22:11] Speaker 02:
Again, they don't have to.

[00:22:13] Speaker 02:
And the source election authority knows very well what the industry is procuring here.

[00:22:17] Speaker 02:
It's a subjective determination and inherently reasonable for them to focus on what they view as the most important parts of past performance.

[00:22:27] Speaker 02:
On this factor with regards to cost price, you know, the the source selection authority did acknowledge You know and the cost decisions and I think there's a little blending by the way with regards to cost price because

[00:22:42] Speaker 02:
As counsel for ACI represented the source selection authority not a technical evaluator also did some the initial path performance Information they also were involved in cost price.

[00:22:55] Speaker 02:
So the contracting officer is very involved in this procurement and

[00:22:59] Speaker 02:
And that particular cost realism evaluation is determining whether the costs that were provided by an offeror are realistic for the work to be provided, that they haven't priced things out too low.

[00:23:13] Speaker 03:
Can I just ask this?

[00:23:16] Speaker 03:
Nobody explained what I think is so fundamental that you all understand it, that at least it would have benefited to me.

[00:23:22] Speaker 03:
Do I understand the following right?

[00:23:24] Speaker 03:
The numbers here are all estimates.

[00:23:26] Speaker 03:
The reason for concern about cost is that, for example, if Penn State was going to incur significantly higher startup costs, it would be passing those on to the Navy?

[00:23:39] Speaker 02:
Yes.

[00:23:40] Speaker 02:
That's the concern.

[00:23:41] Speaker 02:
And that, you know, when

[00:23:43] Speaker 02:
Penn State began this contract a year ago that it would have incurred significant startup costs to start up a new center and that would have ultimately impacted the cost.

[00:23:52] Speaker 02:
This is a cost plus fixed price contract, but the cost component is concerned to the government because costs can be passed on to the government.

[00:24:01] Speaker 02:
So the government will perform a cost realism analysis to determine whether the costs are too low.

[00:24:07] Speaker 02:
In other words, you say that your costs are going to be $100, but reality, there are all these excessive costs you haven't brought into the equation.

[00:24:16] Speaker 03:
And because it's not a fixed price contract, that is going to hurt us down the road.

[00:24:21] Speaker 03:
Yes.

[00:24:22] Speaker 02:
And that's a sort of concern.

[00:24:24] Speaker 02:
But I mean, here you had the cost price analysis looking at direct labor rates, fringe, labor overhead costs, other direct costs.

[00:24:33] Speaker 02:
It focused on the task orders as required by the solicitation.

[00:24:37] Speaker 02:
So the agency did

[00:24:40] Speaker 02:
an adequate cost realism analysis here.

[00:24:45] Speaker 02:
And they did reasonably conclude that the cost proposal was realistic and reasonable for the work to be performed.

[00:24:53] Speaker 02:
It talked about the access of resources that Penn State University had.

[00:24:58] Speaker 02:
It talks about them being able to leverage resources from their work in electro-opticals and expressly conclude that effectively what can be done for one center can be done for another center.

[00:25:09] Speaker 02:
And again, the contrary officer was well positioned to ultimately make this determination.

[00:25:19] Speaker 02:
Unless there are further questions or concerns, for these reasons and the reasons set forth in our brief, we respectfully request that this court affirm the decision of the United States Court of Federal Plans.

[00:25:30] Speaker 02:
Thank you very much, Your Honors.

[00:25:32] Speaker 00:
Thank you.

[00:25:43] Speaker 00:
Mr. Schaffer, you have some rebuttal time.

[00:25:45] Speaker 00:
Please proceed.

[00:25:47] Speaker 01:
Thank you, Your Honors.

[00:25:49] Speaker 01:
Just a few quick points.

[00:25:51] Speaker 01:
The government counsel said that Penn State has access to resources, and that that's not the issue.

[00:25:57] Speaker 01:
It's not the access to resources.

[00:25:59] Speaker 00:
Neil, you have to start the time again.

[00:26:02] Speaker 01:
It's OK.

[00:26:02] Speaker 01:
Sorry, Eric.

[00:26:03] Speaker 01:
So the issue is not Penn State's access to resources, the last point the OJ counsel just made.

[00:26:08] Speaker 01:
It has to do with the lack of electronics manufacturing experience by its personnel.

[00:26:13] Speaker 01:
and then maybe evaluators' concerns, that would create risks that would require additional costs and delays to the government.

[00:26:20] Speaker 01:
And that's the point.

[00:26:21] Speaker 01:
That point is made in the technical evaluators' documentation, but it's not addressed in the cost realism analysis.

[00:26:30] Speaker 01:
The court below complained that we get sites of the cost realism analysis and the pages that raise concerns for us, but that would be proving a negative.

[00:26:39] Speaker 01:
The cost realism analysis in the record doesn't address

[00:26:43] Speaker 01:
technical evaluators' concerns.

[00:26:44] Speaker 01:
And that's what cause realism is supposed to do.

[00:26:46] Speaker 01:
It's supposed to say, the technical evaluators had this concern.

[00:26:49] Speaker 01:
They said it's going to cost extra because Penn State doesn't have experience in this area.

[00:26:53] Speaker 01:
And this is how we, the evaluators, dealt with that issue.

[00:26:55] Speaker 01:
And again, that's not what's in the record.

[00:26:57] Speaker 01:
And that's the problem.

[00:26:59] Speaker 01:
That's why it's an arbitrary evaluation.

[00:27:03] Speaker 01:
I think the rest of our points, I think we've made in our briefing, I think when you look at the source election decision, you'll see that in the tradeoff analysis,

[00:27:12] Speaker 01:
The SSA did not grapple with the technical evaluators' concerns in the areas that we talked about in past performance, in cost realism, and in technical personnel.

[00:27:23] Speaker 01:
She had the documentation.

[00:27:24] Speaker 01:
We're not just saying that she knew about these issues.

[00:27:26] Speaker 01:
What we're saying is there's no explanation for why she didn't credit what the Navy evaluators were saying, and that that was her obligation to do that under the APA standard of review and under the bar.

[00:27:41] Speaker 01:
question to address this claim.

[00:27:43] Speaker 00:
Okay I thank both counsel this case is taken under submission.