[00:00:11] Speaker 03:
the court.

[00:00:12] Speaker 03:
The Court of Federal Claims held that REV didn't have standing to challenge the bidders ahead of it in line, even though it and one other company had the next most highly rated proposals.

[00:00:24] Speaker 03:
And this misunderstanding of the Interested Party standard presents an important legal question and should be reversed for at least three reasons.

[00:00:32] Speaker 03:
First, the Court of Federal Claims was relying on inopposite cases that were about untimely proposals or proposals that were technically unacceptable

[00:00:41] Speaker 03:
on the merits.

[00:00:42] Speaker 03:
Here Rev was rated as good, acceptable, low risk across the board.

[00:00:47] Speaker 03:
Second, the VA never said that Rev's technical rating is going to disqualify it regardless of what happens to those of it ahead in line.

[00:00:58] Speaker 03:
The decision was a relative decision in which it was looking at the comparative strengths to find the most highly rated proposals.

[00:01:06] Speaker 03:
And so if the challenges succeed in knocking out a number of people

[00:01:10] Speaker 03:
had in mind, that's going to change that analysis.

[00:01:14] Speaker 03:
And then third, the Court of Federal Claims was applying or cited the correct standard earlier in its opinion.

[00:01:20] Speaker 03:
But when it actually came to apply that standard, it was applying a heightened standard, not the substantial chance standard.

[00:01:26] Speaker 03:
And it was looking at each of these errors in isolation rather than their cumulative effect.

[00:01:32] Speaker 01:
So on the issue of why isn't it just complete speculation?

[00:01:37] Speaker 01:
That had you succeeded in knocking out even up to six of those offers that were ahead of you That the VA would ever have redrawn the line Which they set after the second?

[00:01:53] Speaker 01:
stage test at good, that they would have lowered it to acceptable or some other place.

[00:01:59] Speaker 01:
Isn't that just utter speculation?

[00:02:01] Speaker 03:
No, it's not.

[00:02:01] Speaker 03:
I mean the original solicitation said a rating no less than acceptable must be achieved.

[00:02:10] Speaker 03:
The definition of acceptable here was one that, quote, meets all of the government's requirements.

[00:02:17] Speaker 03:
And it's very important to understand here that this isn't a situation where there's just one contract to give.

[00:02:23] Speaker 03:
This is an on-ramp where they're looking for multiple service-disabled veteran-owned small businesses for a $22 billion contracting vehicle.

[00:02:35] Speaker 03:
There's a lot of work.

[00:02:36] Speaker 03:
to go around and where they're up against the statutory standard of 8127D and the kingdom where decision by the Supreme Court where when possible they have to be setting aside those task orders for service disabled veteran owned small businesses.

[00:02:53] Speaker 03:
So they need to be bringing people on board here and in that context

[00:03:01] Speaker 03:
If they are, if we're knocking out six people ahead in line and they're only bringing on board three, I think there's every reason to think that is going to be too low of a number.

[00:03:12] Speaker 03:
They would look at the people who are going to be next in line.

[00:03:16] Speaker 01:
Maybe you're right.

[00:03:17] Speaker 01:
Maybe you're wrong.

[00:03:19] Speaker 01:
They said they were looking for seven.

[00:03:21] Speaker 01:
They said we reserved the right to change the number pretty much at any time from seven.

[00:03:25] Speaker 01:
They did change it to nine.

[00:03:27] Speaker 01:
how do we know that they wouldn't have been perfectly satisfied with three i understand why

[00:03:33] Speaker 01:
Maybe they wouldn't have been you got good reasons but do we have any evidence or we just left completely speculate what would have happened if you succeeded on knocking out.

[00:03:43] Speaker 03:
Well this question right when Congress liberalized the standard in nineteen ninety six and had an interested party challenge right.

[00:03:49] Speaker 03:
This is always going to be a counterfactual but I respectfully submit that the list I just submitted this is not the

[00:03:58] Speaker 03:
near speculation or impossibility.

[00:04:01] Speaker 03:
We're just looking at whether it's not an insubstantial chance that we would move forward.

[00:04:06] Speaker 03:
And we know that we in one other proposal were the next most highly rated, right?

[00:04:12] Speaker 03:
This is the sort of quintessential decision where you're next in line and the drawing the line at good didn't happen until the very end, right?

[00:04:23] Speaker 03:
They go through the entire procurement saying,

[00:04:26] Speaker 03:
Acceptable, acceptable, acceptable.

[00:04:28] Speaker 03:
And then when they go to do that, they don't say acceptable is terrible.

[00:04:34] Speaker 03:
We don't think you're going to be able to perform.

[00:04:37] Speaker 03:
They say people with that rating, quote, were not as strong when compared to the other offers.

[00:04:46] Speaker 03:
And they talk about considering all the factors and sub-factors and looking at the most highly rated proposals.

[00:04:53] Speaker 03:
They are sort of doing relative ranking, but that's relative ranking.

[00:04:58] Speaker 01:
Hold on.

[00:04:59] Speaker 01:
The comparisons were made.

[00:05:00] Speaker 01:
The evaluations were made independent of one another, correct?

[00:05:05] Speaker 01:
They looked at the 33 at the second stage.

[00:05:08] Speaker 01:
They didn't say number 50 isn't quite as good as number 49.

[00:05:12] Speaker 01:
They just looked at number 50 and said, here's your score.

[00:05:15] Speaker 01:
acceptable.

[00:05:16] Speaker 01:
It was only after they did the 33 independent evaluations that they then lined them up.

[00:05:22] Speaker 01:
Isn't that right?

[00:05:23] Speaker 03:
Right.

[00:05:23] Speaker 03:
They give everyone their score.

[00:05:24] Speaker 03:
You do have, you know, we have a good on one of the sub-factors, a good on the management sub-factor, and get an acceptable overall.

[00:05:34] Speaker 03:
Offer 96, which received an award, got an acceptable on one of the sub-factors and only an acceptable on the management sub-factor.

[00:05:42] Speaker 03:
But yes, that initial ranking is done

[00:05:45] Speaker 01:
individually so but then we make fair in that context to say this is a relative rating as opposed to 33 independent non-relative ratings that we then put you know we wanted to see how everybody played out in order after we did our 33 independent evaluation right but the relative right they they put everybody in order but then the decision of where are we drawing the line they don't come into that decision

[00:06:15] Speaker 03:
saying that this is going to be a disqualifying rating.

[00:06:20] Speaker 03:
They've been saying the exact opposite the entire time.

[00:06:23] Speaker 03:
They've already eliminated the people who are unacceptable.

[00:06:27] Speaker 03:
And again, the definition of acceptable is someone who meets all of the government's requirements.

[00:06:31] Speaker 03:
Instead, they then line everybody up at that point, do this comparison to say, OK, who's on top?

[00:06:39] Speaker 03:
And having done that, they get their nine and say, OK, well, then we can draw the line

[00:06:45] Speaker 03:
at this acceptable rating and eliminate.

[00:06:47] Speaker 03:
So I urge you, if you look at the way the decision's being made, this is 90-60 through 90-62 of the appendix.

[00:06:53] Speaker 03:
It's this relative ranking.

[00:06:55] Speaker 03:
And so rerun that in your mind.

[00:06:57] Speaker 02:
The words you're using, are they conveying the same thing as or different from saying that the setting of the second competitive range floor depended

[00:07:13] Speaker 02:
on the VA seeing that if it did that, it would get a ample number of contractors.

[00:07:23] Speaker 03:
Right.

[00:07:24] Speaker 03:
I think that's exactly how it's playing out in that decision.

[00:07:28] Speaker 03:
It sees that it has nine and then says, okay, so we can draw the line here.

[00:07:33] Speaker 02:
And this is against the background of having had an earlier line and you have some other evidence to kind of to

[00:07:43] Speaker 02:
Add to that if that's the right characterization is I'm trying to figure out is that something that We can decide is that's a Fact question that the CFC needed to decide but didn't decide can it be decided on the administrative record or I'm trying to figure out I think I understand the theory but I'm trying to figure out who is supposed to do what I mean

[00:08:12] Speaker 03:
I think in an ideal world, the CFC would have decided that and it didn't because I think it's applying the wrong legal standard.

[00:08:21] Speaker 03:
But in the context of this court's de novo review on this threshold question, that's something you can decide.

[00:08:29] Speaker 03:
All we're asking is to get back and get to the merits of our challenges.

[00:08:35] Speaker 03:
And so to do that, you assume success on the merits.

[00:08:38] Speaker 03:
You assume six of the people ahead in line are going to be knocked out.

[00:08:43] Speaker 03:
And then look at that decision, 90-60 through 90-62, and all the relative determinations it's making, and think,

[00:08:52] Speaker 03:
Is there a substantial chance?

[00:08:54] Speaker 03:
We don't have to prove any sort of certainty.

[00:08:57] Speaker 03:
We don't even have to prove more likely than not.

[00:09:00] Speaker 03:
It's just that the courts flipped it around and said, is it not insubstantial that we would have moved forward?

[00:09:04] Speaker 03:
The other thing just to highlight, you'll see in that same decision, is Reb and the one other offer being singled out.

[00:09:12] Speaker 03:
So there's everybody who doesn't make the cut.

[00:09:15] Speaker 03:
But two are treated by the VA itself as in a class of our own above everybody else makes the cut.

[00:09:23] Speaker 03:
But they recognize that these are the ones that received a good rating on one of the sub-factors and a good rating on the management factor, which couldn't be said about everybody else who was eliminated.

[00:09:34] Speaker 04:
And so... So you take that to mean that if the VA was to reconsider who's on the rack,

[00:09:45] Speaker 04:
But he would be on the left at that point.

[00:09:47] Speaker 03:
Absolutely.

[00:09:48] Speaker 03:
And this is, you know, it will play out in multiple stages.

[00:09:53] Speaker 03:
We got knocked out at the threshold here.

[00:09:55] Speaker 03:
But isn't this speculative?

[00:09:59] Speaker 03:
No, I mean, this is, as I said, it's always beginning.

[00:10:02] Speaker 04:
He doesn't have to say, OK, well, two dropped out, next two on the left.

[00:10:08] Speaker 04:
They don't have to say that.

[00:10:11] Speaker 03:
They don't have to, but in the

[00:10:13] Speaker 03:
context here where you have multiple awards to be given.

[00:10:20] Speaker 03:
These awards are primarily just an opportunity to compete for the individual task order.

[00:10:27] Speaker 03:
This is the onramping and then for any individual task order, if our proposal isn't good enough, they don't have to

[00:10:34] Speaker 03:
be awarding it to us.

[00:10:36] Speaker 03:
And so in that context, against the backdrop of Kingdomware, where they need to be unwrapping these service-disabled veteran-owned small businesses, they'd already, by the time they're making this decision, lost half that were on the procurement vehicle.

[00:10:52] Speaker 03:
It's really all you can.

[00:10:54] Speaker 03:
I mean, I can't think of where, if anybody's ever going to meet this standard, you could have clearer facts than being next in line

[00:11:03] Speaker 03:
with the multiple awards like this against the backdrop of that agency needs to do it.

[00:11:10] Speaker 03:
And one thing I'll just point out, I can't recite it in open court because it's part of the record seal, but appendix 15-647 talks about the agency's need to add more of the services table that are not small businesses.

[00:11:25] Speaker 01:
Quick comment.

[00:11:25] Speaker 01:
I think this is what you were talking to Judge Sharando about.

[00:11:28] Speaker 01:
But if we were to say you have standing and we send it back,

[00:11:33] Speaker 01:
Would you then have to prove not just that those six ahead of you would be disqualified for the reasons you set out, but also that the VA, having had to disqualify those six, would draw the line somewhere else?

[00:11:47] Speaker 01:
Would that be part of your burden on the merits?

[00:11:50] Speaker 03:
It comes back to the substantial chance standard, comes back at the end.

[00:11:53] Speaker 03:
At the threshold, you assume success on the merits, and then apply the substantial chance standard, statutory standard, are we an interested party?

[00:12:01] Speaker 03:
then it proceeds to the merits, then assessing how many of those challenges succeeded.

[00:12:09] Speaker 03:
It may be more difficult for us if we succeed on half of them.

[00:12:13] Speaker 01:
But even if you knock all six out, you still have to prove further that that would make a difference.

[00:12:19] Speaker 03:
Then the substantial chance standard gets applied again in the prejudice analysis at the end.

[00:12:24] Speaker 03:
It's not any sort of certainty.

[00:12:26] Speaker 03:
These are counterfactuals.

[00:12:27] Speaker 03:
You can't expect that much about people.

[00:12:31] Speaker 04:
Make that proof, or does the court of federal court, does the VA have to do a new comparative analysis?

[00:12:40] Speaker 03:
We, in the first instance, have to prove the substantial change, prejudice.

[00:12:45] Speaker 03:
So the court's not making a decision, it's not dictating the decision that the agency has to make.

[00:12:50] Speaker 03:
It's just deciding there is enough here for us to succeed.

[00:12:54] Speaker 03:
And if that happens, it will then rule, OK, these were the errors that were made.

[00:13:00] Speaker 03:
And then it goes back to the agency, and they can proceed from there.

[00:13:05] Speaker 02:
This is, I guess, getting back to the procedural aspect of the question that we've just been talking about and that we talked about a few minutes ago.

[00:13:14] Speaker 02:
Does everybody here agree, and agree for all time in this case, that the record on which these questions will be decided is complete?

[00:13:28] Speaker 02:
Is not to be reopened These questions about whether there was a substantial chance I can imagine, you know contract decision-maker testimony On that is that Off the table that possibility or what?

[00:13:47] Speaker 03:
I think it generally gets decided on the administrative record that which the government compiled itself and sort of

[00:13:54] Speaker 02:
have to be decided on the administrative record?

[00:13:57] Speaker 03:
I mean, I think at that point, there could be a motion to supplement the administrative record to preside.

[00:14:03] Speaker 02:
With testimonial evidence even?

[00:14:05] Speaker 02:
Right.

[00:14:06] Speaker 02:
And is that door closed, or is that still a possibility in this case, if we should read that?

[00:14:11] Speaker 03:
I mean, I think that's theoretically a possibility, and then the Court of Federal Claims would just have to decide

[00:14:17] Speaker 03:
I would exercise its discretion to decide, well, is it too late for you to be doing this?

[00:14:22] Speaker 03:
Or do I want to just decide these issues, and then you can effectively do that final laying when it's on remand to you?

[00:14:33] Speaker 03:
But what's so critical about this is this threshold legal ruling that the person who's next in line is not even an interested party to challenge it has major implications for going forward for people's ability to challenge it.

[00:14:47] Speaker 03:
and that's the legal issue for this court.

[00:14:51] Speaker 01:
The court of federal claims relied on one of its own precedents, Wisconsin Physician.

[00:14:56] Speaker 01:
Did they at least apply their own case law, correct, and have we ever adopted that?

[00:15:03] Speaker 03:
You have not adopted it, and no, they misapplied their own case law.

[00:15:06] Speaker 03:
So Wisconsin Physician

[00:15:08] Speaker 03:
was about a technically unacceptable proposal, a proposal that was never going to succeed.

[00:15:14] Speaker 03:
And in that case, what did it cite?

[00:15:17] Speaker 03:
It cited this court's decision in LaBotte, which was about an untimely proposal, one that came in two days late.

[00:15:22] Speaker 01:
But I guess I'm not clear on it.

[00:15:24] Speaker 01:
I know you're out of time, but I'm not clear on why

[00:15:28] Speaker 01:
If the VA has discretion to draw the line, which I think they reserved to themselves, to draw the line at any point, they decided after seeing how things played out to draw it at good, that effectively made your acceptable rating

[00:15:46] Speaker 01:
all but the same thing as a technically unacceptable or untimely.

[00:15:52] Speaker 01:
It was no longer above the minimum threshold criteria that the agency wanted to move forward with.

[00:15:58] Speaker 03:
Well, then one other way to think of it is temporally, which is that the decision below is taking this and saying, once you're out, you can't challenge the subsequent events.

[00:16:07] Speaker 03:
But we're really challenging what knocked us out, right?

[00:16:09] Speaker 03:
The decision of where to draw that line isn't independent of how many people are left and what

[00:16:16] Speaker 03:
and what they're rated.

[00:16:18] Speaker 03:
It would be very different.

[00:16:19] Speaker 03:
They came in from the beginning, or even sort of before this analysis, and said, we are redrawing the line here.

[00:16:26] Speaker 03:
This is the new bottom floor.

[00:16:30] Speaker 03:
But what they instead are doing is looking at it, saying, these are our nine.

[00:16:35] Speaker 03:
We look at a bunch of different factors.

[00:16:38] Speaker 03:
We decide we have enough.

[00:16:40] Speaker 03:
And then they articulate that as, OK, so we'll draw the line.

[00:16:43] Speaker 03:
They never then say in that decision,

[00:16:46] Speaker 03:
You are technically unacceptable in the sense that it is meant by Wisconsin.

[00:16:51] Speaker 01:
So if they had said only good and above before seeing how many fell above good, then you'd have no case.

[00:17:00] Speaker 03:
Yeah, that would have been a separate legal question about the terms of the original solicitation, but they would have substantial discretion to do that.

[00:17:08] Speaker 03:
We're not trying to interfere with that discretion.

[00:17:09] Speaker 03:
We're just trying to make sure that a party is next in line, isn't just shut off from being heard on the merits.

[00:17:16] Speaker 03:
In a case like this where the decision about where to draw the line is not independent of where their assessment is and how many people are involved.

[00:17:24] Speaker 04:
I think we used it up all year.

[00:17:26] Speaker 04:
We'll restore you to three minutes.

[00:17:28] Speaker 03:
Thank you.

[00:17:33] Speaker 04:
Mr. Singley, is that correct?

[00:17:34] Speaker 00:
Yes, sir.

[00:17:35] Speaker 00:
Thank you, Your Honor.

[00:17:37] Speaker 00:
All right.

[00:17:39] Speaker 00:
The bottom line in this case is that there is nothing in the record that indicates the agency would have accepted anything less than a good technical proposal.

[00:17:50] Speaker 00:
REV did not have a good technical proposal.

[00:17:53] Speaker 00:
It no longer challenges the technical reading rating that it received, so it cannot demonstrate prejudice.

[00:17:59] Speaker 00:
The technical rating was by far the most important evaluation factor.

[00:18:05] Speaker 00:
that the agency was considering.

[00:18:08] Speaker 02:
Can I just ask you, suppose the document in which the agency announced these, am I right in describing it as a second competitive range floor?

[00:18:19] Speaker 00:
Yes, Your Honor.

[00:18:20] Speaker 02:
Okay.

[00:18:20] Speaker 02:
Had said, we see in our results that we have an ample number of these

[00:18:34] Speaker 02:
bidders that succeed under a particular standard.

[00:18:40] Speaker 02:
We're going to set the standard to have those and no others at that floor.

[00:18:46] Speaker 02:
If we didn't have the nine that we have, then we would not do that.

[00:18:56] Speaker 02:
We would not change our floor standard, but we happily have enough.

[00:19:04] Speaker 00:
What would your, I'm glad you're asking that question because I think that would help them, but that is definitely not what happened here.

[00:19:10] Speaker 02:
But then, but then the question is how to read that document against the background of the, um, the history that started with a lower floor got raised in a program where they're trying to satisfy certain preference standards, where they're putting people essentially, um, you know,

[00:19:32] Speaker 02:
in a potential future contract bidding pool, all the things that Mr. Saunders lays out as pointing in a direction that says when the second competitive range floor was set, it was set dependent on having this ample number.

[00:19:50] Speaker 02:
And if there are challenges that would reduce that number to a third, that sounds like

[00:19:59] Speaker 02:
Well, what?

[00:19:59] Speaker 02:
And it sounds like there's a substantial chance that floor wouldn't have been set there.

[00:20:04] Speaker 00:
A couple of problems with the argument, Your Honor.

[00:20:07] Speaker 00:
I need to talk about the standing piece of it, but I'm going to do that after I make the first point, which is that if you are going to look at the background of the solicitation and everything that the agency articulated as it was explaining what it cared about, it made very clear throughout the solicitation that what it cared the most about was the technical proposal, that it wanted the best quality offers.

[00:20:31] Speaker 00:
And the competitive range determination does not anywhere, once they make that second competitive range determination that's at appendix 9061, they don't talk about whether they had a minimum number of awardees that they were looking for.

[00:20:46] Speaker 00:
All they talk about is the quality of the technical ratings because that was the evaluation factor that they cared the most about.

[00:20:54] Speaker 00:
This was a competitive range determination and the contracting officer has very broad discretion in deciding how to draw the line and can draw the line for a whole number of different reasons including just the efficiency of the procurement process itself.

[00:21:10] Speaker 00:
We talk about, in our case, we cite the KSC BOSS case.

[00:21:14] Speaker 00:
It talks about there being a natural breaking point between the highest rated proposals and everyone else.

[00:21:20] Speaker 00:
If you look at the competitive range determination at 9060, there's a chart.

[00:21:26] Speaker 00:
It shows what the agency was looking at.

[00:21:28] Speaker 00:
The first column of that chart is the technical rating, which was by far, again, the most important thing that the agency cared about.

[00:21:35] Speaker 00:
What the agency cares about is having the highest quality offeror.

[00:21:40] Speaker 00:
Okay.

[00:21:41] Speaker 00:
And, uh, there is a clear and, and they didn't, this is the other thing.

[00:21:46] Speaker 00:
They never ranked these offers.

[00:21:48] Speaker 00:
They keep, uh, rev, keep referring to itself as the tech for the 11th ranked offer.

[00:21:52] Speaker 00:
The VA never ranked them.

[00:21:54] Speaker 00:
What the VA did was it looked at 33 off roars.

[00:22:00] Speaker 00:
And in that first column of that chart, 24 of those off roars have A's.

[00:22:06] Speaker 00:
Nine of them have goods or outstanding.

[00:22:09] Speaker 00:
What the VA did, it didn't say, nowhere says that REV was in a class of its own.

[00:22:15] Speaker 00:
What it says is that REV is more similar

[00:22:17] Speaker 00:
to the 24 acceptables than it is to the more highly rated offerors.

[00:22:23] Speaker 00:
So that's the decision that the agency made and every indication in the record is that that's where the agency is going to draw the line no matter what, especially when you consider the fact that the

[00:22:35] Speaker 00:
agency explicitly said in the solicitation we reserve the right to award fewer than seven for any reason to make sure that the government receives the best value which is what the government's seeking.

[00:22:48] Speaker 00:
I also just need to point out that the competitive range determination is important

[00:22:53] Speaker 00:
Also, because it allows the agency to enter into discussions.

[00:22:58] Speaker 00:
They talk about this determination as if it happened at the very end.

[00:23:02] Speaker 00:
It didn't happen at the very end.

[00:23:03] Speaker 00:
Rev was, the award happened at the very end.

[00:23:06] Speaker 00:
In between the competitive range determination and the award, the agency enters into discussions and can address minor errors and inconsistencies like the errors that they're trying to allege here.

[00:23:17] Speaker 02:
I'm sorry, the discussions were

[00:23:19] Speaker 02:
only with those who were above the new floor, not with Rev.

[00:23:26] Speaker 00:
Correct, Your Honor.

[00:23:28] Speaker 00:
And in fact, it was a little confusing because their initial brief didn't mention the CTA, but they talk about the CTA certification requirement.

[00:23:37] Speaker 00:
I think it's important to note that those certification requirements make up four of the allegations that they have here.

[00:23:45] Speaker 00:
you know, to get down to three, which we say would have been sufficient anyway, because the agency cared the most about having a highly rated technical proposal.

[00:23:53] Speaker 00:
But to get down to three, they had to knock out four by raising kind of a certification issue that there's no support for the argument they're making in the language of the solicitation, the plain language of the solicitation.

[00:24:06] Speaker 02:
Go ahead.

[00:24:08] Speaker 02:
I just ask you.

[00:24:08] Speaker 02:
So I mean, Mr. Saunders has a number of

[00:24:13] Speaker 02:
the reasons that tend to support the idea that there is a real possibility that the agency might not have raised the floor if there hadn't been nine above the floor.

[00:24:27] Speaker 02:
You're saying, well, there is something pointing in the other direction, which is your characterization of the VA saying the thing we care the most about is the technical qualification.

[00:24:38] Speaker 02:
And even if we had three rather than nine above this floor, we would have stayed with the floor

[00:24:44] Speaker 02:
How are either we or the CFC supposed to decide which of those two pictures is the right one?

[00:24:53] Speaker 02:
Is this a factual question?

[00:24:55] Speaker 02:
Does the record have to be expanded?

[00:24:58] Speaker 02:
What?

[00:24:58] Speaker 00:
OK, so I think I can answer.

[00:25:00] Speaker 00:
There's a couple answers to that.

[00:25:01] Speaker 00:
And I promised you I'd get back to the standing issue.

[00:25:05] Speaker 00:
I think it is a factual determination.

[00:25:07] Speaker 00:
If you're only looking at the question of prejudice, the Bannon case explicitly says that for a motion for judgment on the administrative record, that's different than a typical motion for summary judgment, because it requires the trier of fact, in this case, the Court of Federal Claims, to reach a factual conclusion based on reading the record.

[00:25:26] Speaker 00:
And so that's exactly what

[00:25:27] Speaker 00:
the trial court did here.

[00:25:29] Speaker 00:
The trial court looked at the facts and the circumstances.

[00:25:32] Speaker 00:
And in the Alpha case, they talk about this court said that in determining standing, you have to look at all the surrounding circumstances.

[00:25:39] Speaker 00:
And that's essentially what the trial court is doing.

[00:25:42] Speaker 00:
I mean, you have essentially a factual analysis in the trial court's decision where the trial court is going line by line for each of these merits arguments that they want standing to make.

[00:25:52] Speaker 00:
and saying the important point here that I also want to make was that for standing, the cases that talk about standing, there has to be some connection between the alleged error and the protesters' reason for being excluded.

[00:26:10] Speaker 00:
And in this case, the only reason REV was excluded was because of its technical proposal, because it was at a lower quality technical proposal.

[00:26:19] Speaker 00:
All of the errors that REV wants to allege now would have no bearing on its technical proposal.

[00:26:27] Speaker 00:
It's not going to improve its technical proposal.

[00:26:29] Speaker 02:
I'm sorry, but their argument, as I understand it, is it wouldn't change the result of their technical evaluation, but it

[00:26:39] Speaker 02:
there was a substantial chance that it would change whether that was

[00:26:45] Speaker 02:
below or above the floor, because the floor might have been changed.

[00:26:48] Speaker 00:
Well, the point I'm making here, if you look at InfoTech, in InfoTech the protester asserted a challenge that if successful would have allowed it to cure the deficiencies in its bid that caused it to be eliminated from consideration.

[00:27:02] Speaker 00:
In that case, discussions were had with the awardees that allowed the awardees to change things that if the protester had been allowed to

[00:27:10] Speaker 00:
change would have improved its proposal with respect to the issue that caused it to be eliminated from the competition.

[00:27:17] Speaker 00:
In the Labatt case, this court reversed the trial court because there was no connection between the alleged error and Labatt's failure to secure the contract.

[00:27:27] Speaker 00:
The court explained that without a showing of harm specific to the asserted error, there is no injury to redress and no standing to sue.

[00:27:36] Speaker 00:
So that's the second point that I'm making here.

[00:27:37] Speaker 00:
The first point

[00:27:38] Speaker 00:
is that the agency, over and over again, repeatedly said that the evaluation factor that it cared the most about was the technical value.

[00:27:47] Speaker 00:
They wanted the best off-roars providing these services to veterans.

[00:27:52] Speaker 00:
And they explicitly reserved the right to accept less than seven.

[00:27:57] Speaker 00:
So yes, even if there were only three, which is the max that there's always going to be three off-roars that have better technical ratings than Rev, no matter

[00:28:07] Speaker 00:
all their challenges are accepted or not.

[00:28:10] Speaker 01:
But they also always said that Rev was acceptable even on the technical rating and when they drew the floor at a higher level at good they knew how many were in the good range and so the cure that Rev is saying and they only have to show a substantial chance that this would cure her

[00:28:31] Speaker 01:
their defect is that had there not been nine, it's at least possible that the agency would have gone back to accepting what it had said was technically acceptable all along.

[00:28:43] Speaker 01:
Isn't there at least a reasonable chance that that reasoning is correct?

[00:28:47] Speaker 00:
and that's articulating the wrong standard.

[00:28:49] Speaker 00:
It's not at least possible, it's not the standard.

[00:28:52] Speaker 00:
The court distinguished between likelihood and reasonable likelihood that the protester would have been awarded the contract, not just a reasonable possibility.

[00:29:02] Speaker 00:
So I had to push back on that.

[00:29:04] Speaker 00:
But also it's speculative because

[00:29:07] Speaker 00:
baked into that assumption is that these offerors that they're challenging are simply going to be eliminated from the competition.

[00:29:14] Speaker 01:
Don't we, for standing analysis, have to assume the merits of their challenges to those six offerors?

[00:29:20] Speaker 00:
No.

[00:29:20] Speaker 00:
I mean, that goes to Judge Taranto's question about whether this is a fact determination based on

[00:29:25] Speaker 00:
an analysis of the facts and circumstances of the record.

[00:29:29] Speaker 00:
There is a little bit of ambiguity as to the standing issue because I think there's a recent decision in CACU that talks about standing is no longer a jurisdictional question.

[00:29:40] Speaker 00:
So when you're talking about standing here, it's essentially a combined facts, fact, legal determination that the trial court made.

[00:29:48] Speaker 04:
Does it matter that the competitive range determination was based on a comparative analysis?

[00:29:58] Speaker 00:
Yes, Your Honor, in the sense that the agency compared the offerors, 33 offerors, and said in or out.

[00:30:07] Speaker 04:
The competitive range determination no longer considers the technical aspects of the offeror, but rather it's a comparative analysis of who's left.

[00:30:20] Speaker 00:
I don't think I agree with that, Your Honor.

[00:30:23] Speaker 00:
I mean, the agency made a competitive range determination, which the agency has broad discretion to make the competitive range.

[00:30:30] Speaker 04:
Is there any difference with its comparative or relative determination?

[00:30:37] Speaker 00:
I think there's two ways to look at relative.

[00:30:40] Speaker 00:
They want the court to think a relative comparison means that Rev was ranked 10th or 11th.

[00:30:47] Speaker 00:
That's not the case.

[00:30:48] Speaker 00:
The comparative relative determination that the VA made was that Rev was more similar to 23 other acceptable off-roers.

[00:30:59] Speaker 00:
So part of the other reason why this is speculative is that what happens to those 23 other off wars?

[00:31:06] Speaker 00:
Why does REV necessarily become the only off war that the agency is going to look at?

[00:31:13] Speaker 01:
Why is that a merits issue that should be fought out in the court of federal claim?

[00:31:17] Speaker 00:
Well, it wasn't Merritt's decision, Your Honor.

[00:31:18] Speaker 00:
I mean, that's the point I'm making about the Bannum and the Labatt case.

[00:31:23] Speaker 01:
They talk about the fact that- The Court of Federal Appointments held, and I think this is why we're here, that they lacked standing to litigate their challenges to any of the other offerors ahead of them.

[00:31:36] Speaker 01:
Wasn't that the holding that's being appealed?

[00:31:38] Speaker 00:
That's right, Your Honor, but standing

[00:31:40] Speaker 00:
whether or not in big protests in order to survive a protest to succeed you have to show a prejudicial error.

[00:31:46] Speaker 00:
So you can and the Bannum case talks about that that could be analyzed on the front end or the back end whether you are looking at standing

[00:31:56] Speaker 00:
for statutory standing purposes to determine whether someone can even raise an argument is something you would look at on the front end or you would look at standing on the back end after you determine that there isn't in fact an error.

[00:32:08] Speaker 00:
If the court agreed that there was an error, the court would still have to answer this question of whether or not they had identified

[00:32:14] Speaker 00:
prejudicial error, and the standard is still the same.

[00:32:18] Speaker 00:
They have to show that there was a substantial chance.

[00:32:21] Speaker 01:
Are you saying we have fact findings on the merits here that we have to somehow give deference to, even though the holding that's being appealed is they didn't even have standing to litigate those questions?

[00:32:32] Speaker 00:
I'm saying that the standard of review from Bannum is that for finding a fact with respect to prejudice, that the standard of review is clear error.

[00:32:44] Speaker 01:
Is that what's in front of us, or do we only have the standing question in front of us?

[00:32:48] Speaker 00:
That's what I'm saying.

[00:32:49] Speaker 00:
The standing question asks whether or not there's prejudice.

[00:32:53] Speaker 01:
They may be identical.

[00:32:55] Speaker 01:
Let me put it this way.

[00:32:56] Speaker 01:
If we think they're standing, you still win this appeal, or we have to send it back?

[00:33:02] Speaker 00:
Well, we would still win the appeal for all the reasons that we gave in the alternative in our brief, which is that on the merits, there's no substance to any of these remaining challenges.

[00:33:18] Speaker 02:
I assume otherwise.

[00:33:21] Speaker 00:
So, but either way, the standing questions still, they still have to show that they're either, whether it's for, you know, as a question of fact, or however you're defining standing, they have to show that their proposal, they would have an opportunity to improve their proposal in, with respect to the reason that they were eliminated.

[00:33:42] Speaker 00:
And the reason they were eliminated was because of the

[00:33:45] Speaker 00:
technical proposal being at a lower tier than the awardees.

[00:33:50] Speaker 04:
Okay, that's a good point to end.

[00:33:53] Speaker 04:
Let's hear from the other side now.

[00:33:54] Speaker 00:
Thank you, Your Honor.

[00:34:01] Speaker 03:
Thank you.

[00:34:02] Speaker 03:
Just to make sure we're all on the same page about the legal standard, I had reference to the data general case.

[00:34:07] Speaker 03:
This court had said in

[00:34:09] Speaker 03:
1996 in Statistica, this is 102 F3 at 1582.

[00:34:15] Speaker 03:
Data General did not, as it could not, replace the substantial chance standard with a more demanding one.

[00:34:21] Speaker 03:
We're under a substantial chance standard, not a likelihood standard.

[00:34:25] Speaker 01:
And what about, do we have to think about reasonable prejudice and whether it's the same thing as, you know, on the merits of prejudice argument the government's making now?

[00:34:34] Speaker 01:
Does that have implications for what we do in this case?

[00:34:37] Speaker 03:
It really comes

[00:34:39] Speaker 03:
after the merits have been determined.

[00:34:42] Speaker 03:
Because at the outset, you're assuming success on the merits and saying, are you an interested party to your statutory standing.

[00:34:50] Speaker 03:
And then the prejudice analysis generally says, OK, we've considered the merits, and whether we rule for you or

[00:34:58] Speaker 03:
or not, then depending on what we did there.

[00:35:00] Speaker 02:
I'm sorry, why does it have to be in that sequence?

[00:35:03] Speaker 02:
I certainly think, and I couldn't give you a citation now, but I'm certainly pretty certain that there are

[00:35:13] Speaker 02:
other courts say, we don't need to get to the merits of the question, because it's perfectly clear, I'd say under the APA, because it's perfectly clear that if there was error, there's no prejudice.

[00:35:23] Speaker 02:
Why could that not be decided first?

[00:35:25] Speaker 03:
Well, that would be the stand, I mean, they could say that would be the same thing as the first step, standing analysis.

[00:35:31] Speaker 03:
So that could be decided first, but you shouldn't, you shouldn't, you would have to- So one way to understand, I think,

[00:35:39] Speaker 02:
What Mr. Singley was arguing is that perhaps that the Court of Federal Claims, within the proper procedural context that was presented, actually made factual findings of no prejudice, even if you were right about the conflict of interest and the other things.

[00:36:03] Speaker 02:
And even if all six would go, I don't think actually CFC said,

[00:36:06] Speaker 02:
It says it individually has the three challenges, but not collectively.

[00:36:11] Speaker 03:
Right.

[00:36:11] Speaker 03:
So yeah, they're two big problems.

[00:36:12] Speaker 03:
It looks at them individually.

[00:36:15] Speaker 03:
And then what it actually says is it says, you haven't shown that you would have changed.

[00:36:22] Speaker 03:
It's applying a would-have-changed standard.

[00:36:24] Speaker 03:
The score is repeatedly rejected.

[00:36:26] Speaker 03:
And then it says that stating that the proposal was either next in line for admission to the competitive range or the second company in line is insufficient.

[00:36:36] Speaker 03:
and then it relies on Wisconsin physicians.

[00:36:38] Speaker 03:
So there's no factual finding from the Court of Federal Claims to which you can defer to because it's sort of making a double error in the legal standard, its finding.

[00:36:48] Speaker 03:
Where it comes closer to a factual finding is on Appendix 21, where it says, quote, plaintiff's proposal was effectively the 10th or 11th highest rated proposal.

[00:36:59] Speaker 03:
And Appendix 9061, you see the

[00:37:02] Speaker 03:
Agency itself when it's doing this analysis treating us and offer 36 as in this class of our own I think they're they end up being the same in

[00:37:26] Speaker 03:
in terms of looking at them and saying, when compared to other offers, it's making sure it has that sufficient number.

[00:37:33] Speaker 03:
And then it's drawing the line.

[00:37:35] Speaker 04:
So the merits, if it's remanded, the merits would be judged on determining on the same criteria that it's already been put in?

[00:37:45] Speaker 03:
Well, there's never been an analysis of the merits here.

[00:37:47] Speaker 03:
We got cut off at the threshold by the Court of Federal Claims.

[00:37:52] Speaker 03:
Decided it explicitly says I'm deciding this is a matter of statutory standing at the threshold Even assuming you speed on every claim and it shows you haven't shown you would have changed the outcome Which is the wrong legal standard being applied here?

[00:38:10] Speaker 03:
So any way you slice this there's nothing to which you can defer to factually in that decision there and