[00:00:00] Speaker 04:
Earthquake Technologies versus the United States.

[00:00:04] Speaker 04:
Mr. Firmalwood.

[00:00:06] Speaker 03:
Good morning, Your Honors.

[00:00:08] Speaker 03:
May it please the Court.

[00:00:09] Speaker 03:
Your Honors, today I'd like to talk about the connecting thread or underlying flaw that winds its way through the two decisions that the United States is appealing here.

[00:00:20] Speaker 03:
And that is that the trial court overstepped its role and usurped the discretion of the government.

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First, in regards to the Small Business Administration and the discretion it has to find a small business to be not responsible under the Small Business Act.

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And secondly, with the contracting officer second-guessing the contracting officer's discretionary decisions that has a discretion under both this court's precedent and the federal acquisition regulation.

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Well, let me ask you about that.

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And that's the whole investigation kind of issue.

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Don't you appreciate the court of federal claims kind of frustration or feeling he wasn't getting the straight story into the whole history?

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One, this person's participation in the second solicitation at all, because the government either said they didn't know or said they didn't think so.

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I don't remember.

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getting the letter which indicated that not only he had some role, but essentially a leadership role.

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So without saying whether that violated the law, what it was, you can appreciate, can you not, the frustration and the fact that this was not

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the government wasn't forthcoming, even if it wasn't an intentional not forthcoming.

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And it was problematic.

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It raised questions.

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So what do you have to say about that?

[00:01:46] Speaker 03:
Well, Your Honor, I think that there's a couple of answers to this.

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I'm going to try to weave it all together here.

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But what was puzzling about the Conflict of Interest and Procurement Integrity Act decision is that the court found no OCI, found no PIA violation.

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But even the absence of that finding, and I don't know the answer to this,

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And the absence of that finding when they were at GAO and these concerns were raised, either the government voluntarily or whatever in lieu of something else happening agreed we're going to do a clean

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evaluation, second evaluation.

[00:02:21] Speaker 03:
Well, I mean, and this is where the court says it's not going to get into semantics, but then does and talks about what is a new evaluation.

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And to be frank with you, I'm not aware of any decision that talks about what's a new evaluation.

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But isn't it true that what's part of what led to this new evaluation

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were at least some of the allegations founded or unfounded that had gone into this particular individual's relationship with the prior existing contractor.

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And so a re-evaluation, one

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Could one not fairly assume that the reevaluation was to be done outside of this person's questionable activities previously?

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Well, to be very clear about, when we're talking about questionable activities, you know, RM was not removed because of questionable activities.

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He was cleared.

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He was removed because of his performance.

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I'll be frank about that.

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and inconsistencies in the actual evaluations, things not making it up to a consensus.

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If your honors look at appendix pages 2911 and 3440, those are two different pages, your honor, but they say the same thing.

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This is the OCI evaluation and the PI evaluation.

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by the contracting officer.

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And what it says is that the allegations put forth about RM, about having F3 write three of the four task orders, that that was actually normal behavior.

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Because the task orders for Raptor 4 were based on task orders from Raptor 3.

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right but then doesn't it turn out that some of his earlier work r m's earlier work evaluating past performance then ends up becoming part of the evaluation that he oversees when he's chair and and and taint for lack of a better word is still there uh... even under the so-called re-evaluation isn't it what's the taint though your honor he's been cleared of an o c i and a p i a the court this court in his axiom decision

[00:04:21] Speaker 03:
question whether it would ever be appropriate for the trial court to question the trustworthiness of a government official in this situation.

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The kind of bad feeling compounded by the fact that the court was interested and the government was not forthcoming into whether or not this person had a role at all.

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And then they had to pull teeth to get the termination letter

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which also demonstrates the role he had had.

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I mean, there's a little bit of a taint here.

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And I'm going to circle back to your original question about understanding the court's frustration.

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Yes, I understand the court's frustration.

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But it's arbitrary and capricious review.

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OCI investigations and conflict of interest investigations, the government is entitled to substantial discretion.

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And that's the precedent of this court.

[00:05:14] Speaker 04:
Well, what, in your view, the government committed did they not to do a re-evaluation?

[00:05:19] Speaker 03:
Correct.

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In your view, what are the parameters?

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I mean, to what extent?

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If they didn't do it at all, maybe that would be a problem.

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Oh yes.

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But what kind of boundaries are they within?

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Right.

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So what Mr. Wright did in the new evaluation was go through and check everything.

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Basically double check to make sure that the information that was provided by the evaluators flowed up to the consensus.

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Based upon that, technical things were changed.

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But if your honors look at the record, and we point this out in our brief, past performance ratings changed, prices changed,

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the results changed.

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Now, the trial court expressed an opinion that a new evaluation, when you use the word new evaluation, you have to start from scratch.

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That didn't appear in any case that I'm aware of before Oak Grove, yet we were sanctioned for that.

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for representing to the GAO of a new evaluation.

[00:06:24] Speaker 05:
Weren't you sanctioned for, and you're talking about the rule 11 sanctions?

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That was for you to disclose documents as part of the administrative record from the get-go.

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That's what the rule 11 sanctions were based on, right?

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Yes.

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And the court was upset about that, saying the document was necessary because the court felt a new evaluation to occur.

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So I don't think, I think that was a

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little off there saying that you were sanctioned because of the new evaluation language.

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Of course, that was some of the analysis for finding that something was potentially relevant, right?

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Right.

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But if we're talking about whether there's a legal basis to have sanctions, that factors into whether or not there was a legal basis.

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Let's talk about, go ahead.

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I had some threshold questions that I forgot to do.

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And that was just basically, what's the status, I mean, it's in general

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was in effect, so the government proceeded, my understanding is, to kind of do a new solicitation.

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And this has been going on for a long time.

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In this case, it's been pending

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at least from the filing of the briefs or whatever, another year, extensions of time, largely because the government accepts the request to extend the time.

[00:07:30] Speaker 04:
What's the current status of this resource?

[00:07:32] Speaker 03:
The current status is that there was not a protest as the government is attempting to comply.

[00:07:38] Speaker 04:
What is the protest over what?

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Has the bid been awarded or just?

[00:07:43] Speaker 03:
No, pre-awarded, Your Honor.

[00:07:44] Speaker 04:
Pre-awarded?

[00:07:45] Speaker 03:
Pre-awarded, yes.

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The government is attempting to comply with the court's injunction here.

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I'm just going to circle back for a second and say I was going to say one of that common thread that's going through this is that we think even if we were wrong on each of the merit issue, the trial court was required to remand to let the government in the first instance exercise discretion on the OCI, the discussions and

[00:08:07] Speaker 03:
So what's happening, why does that matter, and why am I raising that?

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Because what has happened is the Army is trying to, at this point, go by what the injunction was, which is one of two things.

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Start over or conduct discussions.

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And what the Army did do was conduct discussions by setting a competitive range for the most highly rated offers.

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That was protested by Oak Grove.

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And my understanding is that the Army is then now taking corrective action in that protest, because based on the Oak Grove decision that's on appeal today, setting a competitive range is not part of the injunction.

[00:08:48] Speaker 03:
It says, do discussions with all offerors.

[00:08:50] Speaker 03:
So what the Army?

[00:08:52] Speaker 04:
So just my basic understanding, you're way ahead of me.

[00:08:55] Speaker 04:
A new solicitation was issued, and bidders came in and now

[00:09:00] Speaker 03:
I'm sure that I will be corrected if I'm wrong in this, but I don't believe it was a new solicitation.

[00:09:04] Speaker 03:
It's just going to go back to do discussions on the previous proposal.

[00:09:07] Speaker 05:
And you were trying to explain who they had discussions with?

[00:09:10] Speaker 05:
Correct.

[00:09:10] Speaker 05:
Could you re-explain that?

[00:09:11] Speaker 05:
I'm sorry, I didn't follow.

[00:09:12] Speaker 03:
Yes.

[00:09:12] Speaker 03:
So discussions were to be held with a competitive range of the most highly evaluated proposals.

[00:09:18] Speaker 03:
OK.

[00:09:18] Speaker 03:
And then that was protested by Oak Grove.

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And I'm sure my colleague on the other side will correct me, because I have not read the complaint in that case.

[00:09:26] Speaker 03:
and corrective action was then taken by the Army in that matter in order to comply with the injunction in this oak grove that says discussions have to happen with all offerors.

[00:09:38] Speaker 05:
So at this point discussions have been had with whom?

[00:09:42] Speaker 03:
I'm not sure discussions have started yet, but it looks like discussions are going to be held with all offerors unless this court reverses.

[00:09:49] Speaker 02:
All 10, then?

[00:09:51] Speaker 03:
Correct.

[00:09:51] Speaker 03:
That's my understanding.

[00:09:53] Speaker 03:
OK.

[00:09:53] Speaker 04:
And what's going on in the interim?

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Is F3 continuing to do the work under?

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I mean, who's doing the work, or is it not?

[00:10:00] Speaker 03:
It's decentralized.

[00:10:02] Speaker 03:
And my understanding is that they're getting the work from all different vehicles, except for one piece of work, rehearsals, which is just not getting done at this point.

[00:10:13] Speaker 04:
OK.

[00:10:13] Speaker 04:
Now, in terms of what the impact is in the real world on the ground, in terms of what we do,

[00:10:19] Speaker 04:
If we, then you just continue what you're doing with this resolicitation.

[00:10:26] Speaker 04:
If we reverse

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Then what?

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Does F3, I guess it depends on the basis of our reverse solicitation.

[00:10:34] Speaker 04:
Is there potential for F3 to just get awarded the contract based on the earlier solicitation?

[00:10:39] Speaker 04:
Is that the relief that's being sought?

[00:10:40] Speaker 03:
That's possible, Your Honor.

[00:10:41] Speaker 03:
It depends on what your honors hold.

[00:10:43] Speaker 03:
Recently in CACI, and that's 67 F4 1145, this court talked about if there are discretionary decisions that are left over following a court decision, that this court should remand.

[00:10:56] Speaker 03:
The trial court should remand back to the agency to let those happen.

[00:11:00] Speaker 03:
So if Your Honours give us a blank slip.

[00:11:07] Speaker 04:
A complete reversal is not.

[00:11:10] Speaker 03:
Well, if Your Honors agree with us on the interpretation of the DFARs, the discretion of the contracting officer for OCIs, on the interpretation and solicitation for the teaming agreement, and that the SBA should have been doing a non-responsibility determination

[00:11:27] Speaker 03:
for Lucas, that's a clean slate victory for us.

[00:11:30] Speaker 03:
I think that's a reversal of judgment.

[00:11:31] Speaker 02:
Weren't there some additional issues that they raised that the trial court did not reach given the findings that it made against you?

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For instance, failing to submit signed SF 30s

[00:11:45] Speaker 03:
miss evaluating s three days past performance are are there not some things that would have to be remanded and i think that at that point of the trial court in this very comprehensive decision i mean this is a too lengthy decisions you're pointing out of many many things of the trial court felt that the government did wrong here

[00:12:01] Speaker 03:
government if the trial court that those were problematic there would have been a decision on those as well i don't get that we can't make that as something right?

[00:12:10] Speaker 03:
but this is exactly what i'm talking about right if there's something left over it should be remanded okay right that's what you're saying but what i'm saying is even if your honors disagree with us let's say you disagree with us that um... the responsibility of lukos is actually an issue and it needs to be looked at

[00:12:28] Speaker 03:
The trial court did here was reach that decision in the first instance.

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What it should have done is remanded to the contracting officer with instructions to set it on the certificate of competencies path with the SBA.

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Let the SBA fulfill its statutory duty.

[00:12:43] Speaker 03:
I mean, this is in the statute.

[00:12:45] Speaker 04:
And what does this do?

[00:12:46] Speaker 04:
I guess I'm interested in a remand because the amount of time that's passed in this is ridiculous.

[00:12:51] Speaker 05:
Yes.

[00:12:51] Speaker 04:
So if it gets to be a remand, then you continue with whatever you're doing now in terms of

[00:12:57] Speaker 04:
implementing the injunction.

[00:12:59] Speaker 04:
I mean, this could go on for another five years.

[00:13:01] Speaker 04:
We get remands and appeals of remands and so forth, right?

[00:13:04] Speaker 03:
I mean, if Your Honor orders a remand, I'm not sure what will be left over for Oak Grove to legitimately, genuinely appeal, or excuse me, challenge.

[00:13:16] Speaker 04:
Judge Still, I interrupt you.

[00:13:18] Speaker 05:
Oh, I was just going to ask you with regard to the administrative record.

[00:13:23] Speaker 02:
Yes.

[00:13:24] Speaker 05:
And what I was specifically wondering is, I looked at the Court of Federal Plains rules on how the content and filing of the administrative record.

[00:13:34] Speaker 05:
And it talks about how certain core documents are supposed to be provided from the get-go.

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And one of those categories,

[00:13:44] Speaker 05:
is pre-award audits, if any, and surveys of the offers.

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And I wanted to know your view on whether, to me, the DCMA would take the fall in that.

[00:13:55] Speaker 05:
And so I was wondering what your view was.

[00:13:59] Speaker 03:
Yes, Your Honor.

[00:14:00] Speaker 03:
So I'm scrambling Define, Appendix C, Power Graph, Transute right here.

[00:14:05] Speaker 03:
I don't seem to have it directly in front of me.

[00:14:06] Speaker 03:
But if I remember correctly, the word is may, right?

[00:14:08] Speaker 03:
So it doesn't set that these documents definitely 100% need to be in.

[00:14:12] Speaker 03:
Now, that's not my answer to your question.

[00:14:14] Speaker 03:
That's just context.

[00:14:15] Speaker 05:
It says early production of relevant core documents may expedite final resolution of the case.

[00:14:21] Speaker 05:
The core documents may include.

[00:14:23] Speaker 05:
So you really said, oh.

[00:14:24] Speaker 03:
Yeah.

[00:14:25] Speaker 03:
And now I'm going to tell you why.

[00:14:26] Speaker 03:
Right.

[00:14:30] Speaker 03:
The responsibility of glucose is an issue that Oak Grove wants to discuss.

[00:14:37] Speaker 03:
But as we demonstrate in our... I'm sorry, could you repeat that?

[00:14:40] Speaker 03:
The responsibility of glucose is an issue that Oak Grove wants to discuss.

[00:14:45] Speaker 03:
It wants it evaluated, right?

[00:14:47] Speaker 05:
It wants glucose to be found... The government is the one that brought up glucose for its standing.

[00:14:51] Speaker 03:
Absolutely.

[00:14:52] Speaker 03:
We lost that standing argument on page 13.

[00:14:54] Speaker 05:
I'm just saying, you're the ones who raised this, raised glucose.

[00:14:58] Speaker 05:
And then didn't produce the documents until after oral argument had occurred.

[00:15:01] Speaker 05:
It was late, right?

[00:15:04] Speaker 03:
What?

[00:15:04] Speaker 03:
Because there was never any responsibility determination of glucose.

[00:15:07] Speaker 05:
But this says, pre-award audits, if any, or surveys.

[00:15:10] Speaker 05:
My question to you is, is the DCMA a survey?

[00:15:15] Speaker 05:
That's my question.

[00:15:16] Speaker 05:
Does it fall within the broad, I understand your may argument.

[00:15:19] Speaker 05:
Yeah.

[00:15:20] Speaker 05:
But my question is whether it falls under category P, pre-award audits, if any, or surveys of the offered.

[00:15:26] Speaker 03:
Well, Your Honor, the reason why I think it doesn't fall under that is because the decision that the administrative record was assembled to represent was a decision to award to F3.

[00:15:37] Speaker 03:
And that DCMA document didn't factor in to... When did you lose your standing argument?

[00:15:45] Speaker 03:
I'm sorry, could you say that again?

[00:15:46] Speaker 05:
Why was the standing issue raised by the government?

[00:15:49] Speaker 03:
Yeah, yeah.

[00:15:50] Speaker 03:
Well, I mean, and that's the point, that the argument, the document is relevant to a defensive argument by the government that at that time was jurisdictional and is no longer jurisdictional, that kind of standing argument.

[00:16:02] Speaker 02:
But why didn't you put it in the record once you put Lucas at issue?

[00:16:06] Speaker 02:
You know what your honor I think we've learned our lesson on that and when we will be putting them forth in the future on that Is it related to all is it your contention that the Failure to put the document in the record was inadvertent or was it an intentional decision?

[00:16:19] Speaker 03:
It seems like it was inadvertent to me your honor now wasn't on this case in the ground floor I've read everything I've read everything that the trial court is right and it seems to be this underlying paper where the government says it was inadvertent because I thought that the government's

[00:16:32] Speaker 05:
Submissions to the court below were that it was intentional with the understanding that this was not relevant because of the SBA would be the one.

[00:16:42] Speaker 03:
Right.

[00:16:42] Speaker 03:
Yeah.

[00:16:42] Speaker 03:
I guess this is a little bit of a semantics, Your Honor.

[00:16:45] Speaker 03:
It was intentional.

[00:16:46] Speaker 03:
We don't think that's relevant.

[00:16:48] Speaker 03:
But then the court told us it was relevant.

[00:16:51] Speaker 03:
So we're like, oh, sorry.

[00:16:52] Speaker 05:
So it wasn't unintentional.

[00:16:55] Speaker 05:
Yeah, it was more of an accidental decision than I don't think this is a potentially relevant document.

[00:16:59] Speaker 03:
Yeah, yeah, yeah.

[00:17:01] Speaker 03:
See, and this is kind of a problem, like, just in general about the sanctions decision.

[00:17:07] Speaker 03:
agencies are putting forth these gigantic administrative records that no longer exist in what we used to call the contract file, right?

[00:17:15] Speaker 03:
A filing cabinet that had all the documents in it, and they would pull it out, they would photocopy it, they would send it to the Department of Justice, and we get these binders.

[00:17:24] Speaker 03:
And that was what the administrative rest would be.

[00:17:26] Speaker 03:
Nowadays, things are decentralized in computers and everywhere, and our contracting officers are making discretionary decisions about what they think

[00:17:34] Speaker 05:
What do you think happens in private practice outside of the government?

[00:17:38] Speaker 03:
I was in private practice.

[00:17:40] Speaker 05:
The same problem occurs.

[00:17:42] Speaker 05:
It's a client and the issue is communication with the client to make sure that they know what has to be produced.

[00:17:48] Speaker 05:
The warrior has to do that.

[00:17:50] Speaker 05:
Has to communicate with the client.

[00:17:52] Speaker 05:
This is not an issue unique to the government, right?

[00:17:56] Speaker 03:
uh... noted well i mean it is unique in the sense of producing an administrative record right i mean i guess this parallels to discovery for private clients i think so but there's a role that says this is what you're supposed to include

[00:18:08] Speaker 05:
And, you know, the same thing with responding to discovery requests or providing initial documents, required discovery.

[00:18:17] Speaker 03:
And, you know, Your Honor, on the practical side here, I'm a member of the bid protest team in our office, and I'm part of the assigning process when a protest comes in the door.

[00:18:26] Speaker 03:
And the outreach we have to the agencies, and that includes referencing

[00:18:33] Speaker 03:
Appendix C, paragraph 22 of the Court of Federal Claims rule saying, these are the types of documents.

[00:18:39] Speaker 03:
We do reference that to every single agency that has protested.

[00:18:43] Speaker 03:
But when it comes down to it, there's still an element of a judgment call when they click through their files and say, does this document belong?

[00:18:50] Speaker 03:
Does this one not belong?

[00:18:53] Speaker 03:
Everything would have been a lot easier in this case if when the individual at the army was going through saw this document included in the first instance.

[00:19:00] Speaker 03:
I think we can all agree that things would have gone smoother if this document had been included in the administrative record.

[00:19:06] Speaker 03:
The discretionary decision was made

[00:19:09] Speaker 03:
And the court disagreed with it because it wanted to find Lucas non-responsible in the first instance, which is SBA.

[00:19:20] Speaker 04:
You're suggesting that the court had some sort of agenda.

[00:19:24] Speaker 04:
They wanted a document because it was relevant, and they thought it was relevant.

[00:19:28] Speaker 04:
They thought it was relevant.

[00:19:29] Speaker 04:
That's not an unreasonable... Let me clarify what I'm saying.

[00:19:33] Speaker 03:
They thought it was relevant to an issue they never should have reached.

[00:19:36] Speaker 04:
Except that you put it in the government cases on the race decision.

[00:19:40] Speaker 03:
For purposes of standing, which the court, to be very clear, the finding of non-responsibility for Lucas was in the merits portion of the decision.

[00:19:48] Speaker 03:
Not page 13.

[00:19:50] Speaker 03:
Because standing is based on tinting, which basically says if you can upset everything and everything has to start over, then there's standing.

[00:19:59] Speaker 05:
Yeah, I understand your point about discretion, but I hope you recognize that we also owe discretion to the court below in reviewing the Rule 11 sanction that we're supposed to look at.

[00:20:10] Speaker 05:
It's only reviewed for an abuse of discretion.

[00:20:12] Speaker 03:
So that's why our primary argument on that DCMA document is that if there's an abuse of discretion because the basic legal premise was wrong,

[00:20:21] Speaker 03:
And our position is that the basic legal premise was that the court can, in the first instance, make a responsibility determination of Lukos.

[00:20:33] Speaker 03:
That's why the document was relevant to the court, and that's where the error is.

[00:20:36] Speaker 03:
What the court should have done is remanded.

[00:20:38] Speaker 03:
but i don't know relevant it's not with the right standard is it's questions is the document also you're saying okay once he saw the document he should have been and it will be had he had seen the document he would have a history man i disagree with you because it in the record itself as it existed before the document there was the statement that lucas was financially not responsible for this document added to that it's a rich itself and so it's relevant

[00:21:08] Speaker 03:
It adds to it, but the decision could be made without it.

[00:21:11] Speaker 04:
Well, you say the decision could be made, but some judges try to be thorough on a firm basis.

[00:21:16] Speaker 04:
It's clearly relevant even if you say he could have done it anyway, but this gave him a more solid basis for doing it.

[00:21:24] Speaker 04:
How can that not be relevant?

[00:21:26] Speaker 02:
what we again your honor i i'm i'm not trying to say it's not relevant things relevant to issue we think the court never should reach out can i just ask you uh... instead whether or not the agency made a responsibility determination of glucose there's a statement by counsel below at eight nine sixty seven where mister pixley tells the court i think the agency did make the responsibility determination and made the conclusion that all offers were responsible i understand your position to be

[00:21:55] Speaker 02:
So, Lucas's financial responsibility never was evaluated.

[00:21:59] Speaker 02:
So, what's the reality?

[00:22:00] Speaker 03:
I think that statement's incorrect, Your Honor.

[00:22:02] Speaker 03:
I'm just looking through the record.

[00:22:04] Speaker 03:
I have not seen a responsibility determination of the other nine offers.

[00:22:08] Speaker 03:
And the reason why, as afar says, do it for the prospective awardee.

[00:22:11] Speaker 02:
So, this is just a misstatement by counsel.

[00:22:13] Speaker 03:
It is a mistake.

[00:22:14] Speaker 02:
Thank you.

[00:22:15] Speaker 03:
Thank you, Your Honor.

[00:22:17] Speaker 04:
Thank you.

[00:22:17] Speaker 04:
We've far exceeded our time, but we're not going to cheat you out of your time.

[00:22:20] Speaker 04:
That's much appreciated.

[00:22:29] Speaker 00:
May it please the courts.

[00:22:30] Speaker 00:
My name is Josh Moe and I'm counsel for intervener in Appellant F3EA.

[00:22:34] Speaker 00:
F3EA is a service disabled veteran owned small business that incorrectly lost the contract that's the subject of this appeal.

[00:22:41] Speaker 00:
My intent today is to just quickly supplement just three points to the government's argument.

[00:22:46] Speaker 00:
First and foremost, beyond just the solicitation language, we argued in our brief that the solicitation made clear

[00:22:52] Speaker 00:
that the government did not intend to conduct discussions in this case.

[00:22:56] Speaker 00:
However, beyond the solicitation language, it also made clear the final rule implementing DFARS 2.15-1 makes clear

[00:23:06] Speaker 00:
that in order to have the DFARS policy that Oak Grove's relying on to require discussions in this case, in order for that DFARS policy to be implemented, you must insert alternate one into the RFP.

[00:23:20] Speaker 00:
This RFP did not insert alternate one.

[00:23:24] Speaker 00:
And I'll expressly quote what the final rule states.

[00:23:27] Speaker 00:
It says, use of the clause without alternate one will not accomplish the stated objectives.

[00:23:33] Speaker 00:
Only the clause with its alternate one will accomplish the purpose of the case.

[00:23:38] Speaker 00:
Therefore, under blue and gold, your honors, since this solicitation made clear that alternate one was excluded, Oak Grove then knew that the DFAR's discussions policy was not going to be followed.

[00:23:49] Speaker 02:
Are you here to address the teaming agreement issue as well?

[00:23:52] Speaker 02:
I am.

[00:23:53] Speaker 00:
Yes, Your Honor.

[00:23:54] Speaker 02:
Is there evidence, did you have an oral agreement as opposed to a written agreement with one of these subcontractors?

[00:24:02] Speaker 00:
What the record shows, Your Honor, is that the agency did not evaluate any teaming agreements for any offeror.

[00:24:08] Speaker 00:
And the purpose was because it just was not a material requirement of the RFP.

[00:24:14] Speaker 02:
Did you get credit for having some kind of relationship with one of these other companies

[00:24:20] Speaker 02:
as part of the evaluation that led to you getting the award?

[00:24:25] Speaker 00:
What the RFP stated is to get credit under the evaluation criteria, because there was no evaluation criteria addressing teaming agreements.

[00:24:33] Speaker 00:
The only way to get credit under Section M criteria was to describe your relationship with subcontractors or to identify them.

[00:24:42] Speaker 00:
There was no language in the evaluation criteria that... And did... Was your answer to Judge Jackson?

[00:24:49] Speaker 04:
question yes or no.

[00:24:51] Speaker 00:
I would say that to the extent that any credit for the subcontractor was there, it was there because F3A did describe its subcontract relationship.

[00:25:02] Speaker 02:
So you did get credit?

[00:25:03] Speaker 00:
Yes.

[00:25:04] Speaker 02:
You described and identified and got credit.

[00:25:06] Speaker 00:
That's right.

[00:25:07] Speaker 02:
But your contention is you don't need to submit the agreements in order for that credit to result.

[00:25:13] Speaker 02:
Yes, Your Honor.

[00:25:14] Speaker 05:
Did you answer Judge Shep's first question about whether it was oral or written?

[00:25:19] Speaker 05:
I don't think I heard an answer.

[00:25:21] Speaker 00:
The record doesn't show whether it was oral written, Your Honor.

[00:25:25] Speaker 00:
And plain and simply, the agency did not evaluate any teaming agreement submissions.

[00:25:32] Speaker 00:
The record doesn't show that at all.

[00:25:33] Speaker 00:
And the reason being is you only had to identify and describe per the Section M evaluation criteria.

[00:25:39] Speaker 00:
And then significantly, I do want to address one thing, too.

[00:25:43] Speaker 00:
Oak Grove has not shown prejudice.

[00:25:46] Speaker 00:
First, we believe, as we stated on our brief, that this is not a material requirement.

[00:25:52] Speaker 00:
The RFP made clear you're not locked into teaming agreements.

[00:25:55] Speaker 02:
What, by the way, is our standard of review on that materiality question?

[00:25:59] Speaker 02:
The Court of Federal Claims said it is material.

[00:26:02] Speaker 02:
What's our legal standard to say that it's not material?

[00:26:08] Speaker 00:
I believe it would be de novo based on the terms of the solicitation.

[00:26:11] Speaker 00:
It's what the solicitation reads, so it's a pure legal question.

[00:26:16] Speaker 00:
Your Honor, I do want to address prejudice.

[00:26:19] Speaker 00:
The issue of prejudice, Oak Grove has never addressed.

[00:26:23] Speaker 00:
Under case law, government contracts case law, to the extent a material requirement is relaxed, and we're arguing it's not material, but to the extent a solicitation requirement is relaxed, a protester is supposed to show, well, I would have submitted a different proposal if I knew about that alleged relaxation.

[00:26:44] Speaker 00:
Oak Grove's never argued that.

[00:26:46] Speaker 00:
They've never argued that.

[00:26:47] Speaker 00:
So they have not shown prejudice in relation to this alleged relaxation of a material requirement, which we dispute is material in the first instance.

[00:27:15] Speaker 01:
We're here today with my colleague Tom Pettit and I on behalf of Oak Grove Technologies.

[00:27:20] Speaker 01:
We also are a service-disabled veteran in small business, as is every company in this competition.

[00:27:29] Speaker 01:
I want to start just very quickly with Judge Prost.

[00:27:32] Speaker 01:
You were asking about what the status of this procurement is, because we raised it.

[00:27:37] Speaker 01:
We pointed out a mootness issue from our perspective in our brief.

[00:27:43] Speaker 01:
I'm hesitant to take too much time on that.

[00:27:45] Speaker 04:
Well, I don't want you to get into the bad or the good.

[00:27:48] Speaker 04:
what's going on in the current protests.

[00:27:50] Speaker 04:
I was just wanting to get a sense of the timing of this and what was going on on the ground.

[00:27:54] Speaker 01:
I do want to touch one issue though, Judge, because I think it's very relevant for you.

[00:27:57] Speaker 01:
I'm sorry.

[00:27:58] Speaker 01:
The outcome of that other case down at the Court of Federal Claims was the same solicitation.

[00:28:05] Speaker 01:
So during this lengthy time,

[00:28:08] Speaker 01:
This same solicitation, they reopened the competition.

[00:28:12] Speaker 01:
They've conducted discussions.

[00:28:14] Speaker 01:
They've done more evaluations.

[00:28:16] Speaker 01:
They then excluded Oak Grove again from the competition.

[00:28:21] Speaker 01:
We then protested that.

[00:28:23] Speaker 01:
We filed a notice of related case with this people.

[00:28:25] Speaker 05:
Did Oak Grove have discussions?

[00:28:27] Speaker 01:
Yes, Your Honor.

[00:28:27] Speaker 01:
Actually, you can see on that we actually attached to the back of our brief the discussions that were issued to Oak Grove.

[00:28:33] Speaker 01:
But in that other action where we were excluded, we filed another action that went to Judge Solomson.

[00:28:39] Speaker 01:
And in that other action.

[00:28:40] Speaker 04:
I really don't feel like we've got enough to do with our record.

[00:28:43] Speaker 01:
I understand, Your Honor.

[00:28:44] Speaker 04:
And we're not going to assess or evaluate this.

[00:28:46] Speaker 04:
So I just wanted to know what was going on.

[00:28:50] Speaker 04:
That's sufficient for us.

[00:28:51] Speaker 01:
Thank you.

[00:28:52] Speaker 01:
OK, Your Honor.

[00:28:53] Speaker 01:
Let me then dive into some of the things that the court

[00:28:56] Speaker 01:
asked about.

[00:28:57] Speaker 01:
And I'm going to do it in a little bit of reverse order and start with where you all were asking Mr. Grimaldi some questions.

[00:29:06] Speaker 01:
Judge Stahl, you asked Mr. Grimaldi, was the DCMA document a pre-award survey?

[00:29:17] Speaker 01:
Putting it into the rule at the Court of Federal Claims that it should have been in the record.

[00:29:21] Speaker 01:
The first page of the DCMA document says, at AR 3937, that it is, quote, a pre-award survey.

[00:29:30] Speaker 01:
It clearly belonged in the record.

[00:29:32] Speaker 01:
But let me take a step back.

[00:29:34] Speaker 01:
I'm not going to take too much time on this, but let me take a step back and help this court understand why Lucas-Fatzi came to be relevant in this procurement.

[00:29:44] Speaker 01:
When we initially filed our protest at the Government Accountability Office, the government

[00:29:51] Speaker 01:
said there was an intervening offer, Lukos Vatsi, who took away our standing.

[00:29:57] Speaker 04:
No, we understand.

[00:29:58] Speaker 04:
You can tell from our questions.

[00:29:59] Speaker 04:
I want you to talk to us a little about this investigation thing.

[00:30:04] Speaker 04:
And there was nothing in the government's commitment to do a re-evaluation.

[00:30:10] Speaker 04:
There were no parameters set.

[00:30:11] Speaker 04:
There was no, like, you have to involve all new people.

[00:30:15] Speaker 04:
Every single document has to be re-evaluated by someone other than RM.

[00:30:20] Speaker 04:
that was the government didn't commit to that and so none of that is enforceable.

[00:30:25] Speaker 04:
So even though some of the stuff that went down in the investigation including the non-disclosure of certain documents that may very well be relevant, how do you get to the point where there's sufficient basis for overturning what went down based on that?

[00:30:42] Speaker 01:
I'm sorry Judge, I didn't hear you.

[00:30:43] Speaker 04:
How do you get to the point where you said you said

[00:30:51] Speaker 01:
I think there's two issues with respect to the investigation that are important.

[00:30:59] Speaker 01:
One, with respect to what the government committed to.

[00:31:04] Speaker 01:
What is a re-evaluation?

[00:31:08] Speaker 01:
Specifically, the government committed in the first GAO protest that we filed to do a re-evaluation.

[00:31:14] Speaker 01:
They never did a re-evaluation.

[00:31:15] Speaker 01:
What is a re-evaluation?

[00:31:17] Speaker 01:
That was something Mr. Grimaldi called semantics.

[00:31:20] Speaker 01:
It's not semantics.

[00:31:21] Speaker 01:
This court can read the United States Supreme Court, and I'm sorry I don't have the citation off the top of my head, in its recent 2020 Regents of California decision, where the court sets forth that there are two steps

[00:31:33] Speaker 01:
when the government takes back an administrative procedure act case that it can take.

[00:31:39] Speaker 01:
One, it can consider the whole matter

[00:31:42] Speaker 01:
afresh.

[00:31:43] Speaker 01:
That's the Supreme Court's decision.

[00:31:45] Speaker 01:
Two, if it's not going to do that, then everything it does, everything it does is just supporting its earlier decision and a whole different standard of review applies to how it has to be reviewed.

[00:31:57] Speaker 01:
It's all now post hoc decision making.

[00:32:00] Speaker 01:
What the government committed to do sensibly under the Supreme Court standard in Regents

[00:32:05] Speaker 01:
is to follow the path that we're going to consider or do a re-evaluation.

[00:32:09] Speaker 01:
And the re-evaluation considers the matter afresh.

[00:32:12] Speaker 02:
They never did that.

[00:32:13] Speaker 02:
What record basis do you have that that's what the government committed to do?

[00:32:17] Speaker 02:
What's the words, Judge?

[00:32:18] Speaker 04:
Well, they said the word re-evaluation.

[00:32:20] Speaker 04:
They said re-evaluation can mean two things.

[00:32:23] Speaker 01:
Oh, no, no, no.

[00:32:24] Speaker 01:
I said the Supreme Court in Regents says in an Administrative Procedure Act case, when the matter goes back to the government,

[00:32:32] Speaker 01:
when it goes back to the government, it has to take one of two paths.

[00:32:36] Speaker 01:
This is the Supreme Court.

[00:32:37] Speaker 01:
It can either be considered afresh, like wholly redone, or

[00:32:43] Speaker 01:
If it follows a different path, then it is not considering the matter afresh, and everything that the government does in that circumstance is now post hoc.

[00:32:54] Speaker 02:
Does the trial court here see this as a regent's reevaluation that was committed to by the government?

[00:33:00] Speaker 02:
I didn't see that in its opinion.

[00:33:01] Speaker 01:
Well, I think that the reevaluation that the judge is pointing to, actually the reevaluation promise occurred at GAO.

[00:33:10] Speaker 01:
where, where the agency said in response to Oak Grove's GAO protest.

[00:33:15] Speaker 02:
Right.

[00:33:15] Speaker 02:
But does the trial court in.

[00:33:18] Speaker 04:
reasoning why it finds the investigation here to be inadequate does it say the government committed consistent with regents to do a full-scale i don't know that they cited regions i was trying to react to this is inside yet i'm trying to react to the comment i don't recall the court claims clearly he had a problem with the reevaluation of course he a large part predicated on the are involved he didn't say

[00:33:46] Speaker 04:
what you are saying Regents required and therefore they violated

[00:33:51] Speaker 01:
i was just i'm sorry judge i don't want to take us off track i was just trying to say what re-evaluation means and i don't think re-evaluation isn't going to be a strong question i think was that's you're going a field from the basis upon which yes i think what the what judge solomson says about this issue is judge solomson says the agency committed to do the re-evaluation simultaneously there are issues about

[00:34:17] Speaker 01:
in the procurement.

[00:34:19] Speaker 01:
RM, who was the chair, we didn't know this, but he was the chair of the source selection evaluation board.

[00:34:26] Speaker 01:
And Judge Solomson,

[00:34:30] Speaker 01:
makes the finding correctly that the government never did a re-evaluation.

[00:34:34] Speaker 02:
But what does that have to do with the adequacy of the investigation?

[00:34:37] Speaker 02:
I don't see any link in the trial court opinion between I'm disappointed with the re-evaluation and therefore more investigation needs to be done.

[00:34:46] Speaker 01:
I agree with you, Judge, in the sense that there are two different issues.

[00:34:49] Speaker 01:
The Judge found that the evaluation was never done.

[00:34:51] Speaker 01:
They had never committed to the evaluation in the sense

[00:34:55] Speaker 01:
that the agency had never performed the evaluation that it committed to, and where it was tied in with RM.

[00:35:02] Speaker 05:
What do you think the judge gave?

[00:35:04] Speaker 05:
Because I have to say, I thought the relief given was more along, or the reason given, the primary reason was that certain people, I'll call them the whistleblowers, should have been interviewed and talked to, and that RM, I'm sorry, should have been spoken to, interviewed,

[00:35:25] Speaker 05:
more than just being able to submit a declaration.

[00:35:28] Speaker 05:
I thought those were the reasons provided.

[00:35:30] Speaker 05:
And all of this other thing that we're talking about risk was to buttress those reasons.

[00:35:35] Speaker 01:
I agree with you, Judge.

[00:35:36] Speaker 01:
I agree with you.

[00:35:37] Speaker 01:
So I mean, Judge Solomson, when he looks at the investigation, sensibly says there are allegations received by a whistleblower about including, I think,

[00:35:47] Speaker 01:
The suggestion was that he was cleared in, you know, somehow in this, but some of the allegations are that RM was communicating with F3A.

[00:35:57] Speaker 05:
You are very familiar with the facts.

[00:35:59] Speaker 05:
I understand that.

[00:36:00] Speaker 05:
But I just want to ask you this.

[00:36:01] Speaker 05:
One thing I'm not quite sure about is what standard of review

[00:36:04] Speaker 05:
the Judge Solomon owed agency in looking at the adequacy of the investigation, specifically who they should have talked to and how they should have conducted the interview of Arendt.

[00:36:19] Speaker 01:
I think he clearly applied the arbitrary and capricious standard of review set forth at the front of his decision, Your Honor.

[00:36:25] Speaker 01:
And I think he actually goes to pains in distinguishing other cases, in dealing with investigations, and to reach the conclusion that on the facts in front of the agency and the court, where you have a whistleblower alleging that there is an improper coordination, oral,

[00:36:44] Speaker 01:
between a company and a high-level government official that it is insufficient for the government to do its investigation without interviewing RM.

[00:36:56] Speaker 01:
All it got was a written statement without speaking to anybody at F3EA and without speaking to the whistleblowers.

[00:37:03] Speaker 01:
How can you do it?

[00:37:05] Speaker 02:
We said that the trial court should be very deferential to the agency and how it conducts an investigation of a conflict of interest.

[00:37:14] Speaker 02:
And haven't we further said that they're supposed to presume that government agents are acting in good faith and that presumption has to be rebutted?

[00:37:24] Speaker 02:
Haven't we said both of those things?

[00:37:26] Speaker 01:
i think both of those are true and i think they're going to wear actually recognizes them is where it works to show me where he recognizes those in his decision in the context of the investigation and i think he does specifically when he goes up i'm sorry maintenance they can blow up for me with the site but we go through actually the decisions that involve discretion and says and says specifically that why this case is different and i think at the end of the day judge if you if i were to accept what what the standard the government is

[00:37:54] Speaker 01:
then the government can never do an investigation wrong, right?

[00:37:57] Speaker 01:
But at the end of the day, at the end of the day, there has to be some sort of line and some sort of reason about this.

[00:38:05] Speaker 02:
And in this case, what the judge... I'm sorry, are you asking this court to draw a line that says you have to always interview the whistleblower?

[00:38:11] Speaker 02:
No, of course not, Judge.

[00:38:13] Speaker 01:
Of course not, Judge.

[00:38:14] Speaker 01:
But likewise, you can't draw a line that says you never have to, right?

[00:38:21] Speaker 01:
I mean, you're drawing the reverse line, saying that you never have to.

[00:38:26] Speaker 01:
And Judge Thompson did exactly what this court wants.

[00:38:30] Speaker 01:
He applied the APA standard review.

[00:38:32] Speaker 01:
He looked at what the facts of this case were, what was in front of the court, what the allegations were, including the fact that RM was in, Mr. Grimaldi says, cleared.

[00:38:45] Speaker 01:
But let's be clear.

[00:38:49] Speaker 05:
The page A45 is the page of the record that you were referencing, I think.

[00:38:54] Speaker 05:
So I don't know if you've got a copy of the decision at the ocean.

[00:39:08] Speaker 01:
Did you say 45, Your Honor?

[00:39:09] Speaker 05:
A45, I believe.

[00:39:11] Speaker 05:
If it's not that exact page, it's thereabouts.

[00:39:20] Speaker 01:
Yeah, he says, as your honor notes, on appendix 45, he starts saying this case is far more concerning than other cases where the courts declined to find any impropriety.

[00:39:30] Speaker 01:
He then goes through and distinguishes.

[00:39:32] Speaker 05:
But that's not addressing Judge Stark's question.

[00:39:38] Speaker 02:
He clearly distinguishes other cases and some are more concerning than others, but I just don't see where he says we start out being deferential to agencies conducting their own investigations.

[00:39:50] Speaker 02:
And further, we presume that they're all acting in good faith.

[00:39:54] Speaker 02:
It can be rebutted, of course, but I'm just not seeing where he applies those legal standards.

[00:39:59] Speaker 01:
OK, from my reading, Judge, I think that's my understanding of what he's doing.

[00:40:04] Speaker 01:
I'm sorry if that's not sufficient.

[00:40:05] Speaker 01:
But that's my understanding of what he's doing.

[00:40:07] Speaker 02:
You see it in his distinguishing other cases.

[00:40:09] Speaker 01:
I do, Your Honor.

[00:40:10] Speaker 01:
And I think he was trying to be faithful to that standard.

[00:40:13] Speaker 01:
But I think it's important to say at the end of the day that the standard cannot be the reverse, where neither a trial court judge or this court can say an investigation is so bad

[00:40:25] Speaker 01:
is so bad that it's arbitrary and capricious.

[00:40:27] Speaker 01:
Of course, the court's got to be able to say that.

[00:40:30] Speaker 01:
Remember, from my perspective, what we have, I mean, in its worst-case scenario here, and I'm not saying because we don't know, nobody spoke to these people, is improper collaboration, who knows for what reason, between the government and a contractor on a $245 million contract.

[00:40:46] Speaker 01:
This has to, reasonable questions have to be asked when the whistleblowers come forward.

[00:40:53] Speaker 01:
And that's what the judge was saying.

[00:40:54] Speaker 01:
It's, look, he described, I think he described the government's reaction to this as ostrich-like, if I recall correctly, right?

[00:41:01] Speaker 01:
You don't ask, you don't talk to the, anybody who's, the people who've been identified who are part of this conspiracy, neither of them is talked to.

[00:41:09] Speaker 01:
The whistleblowers aren't talked to.

[00:41:12] Speaker 01:
How is this an investigation?

[00:41:13] Speaker 01:
It's not an investigation at all.

[00:41:15] Speaker 01:
And at the end of the day, Judge, there has to be some ability for a court to say that.

[00:41:23] Speaker 01:
Otherwise, these investigations that the FAR calls out, the FAR requires, are meaningless exercises.

[00:41:29] Speaker 01:
They can't be reviewed.

[00:41:30] Speaker 01:
They can't be questioned.

[00:41:32] Speaker 01:
They're meaningless exercises.

[00:41:34] Speaker 02:
Can I come back to Lukos?

[00:41:36] Speaker 02:
Yes.

[00:41:36] Speaker 02:
Even after the government put Lukos at issue in the standing context, it doesn't seem to me that you at any point questioned Lukos' financial responsibility, even though you had some evidence early on about Lukos' apparent financial responsibility.

[00:41:55] Speaker 02:
Am I misreading the record?

[00:41:57] Speaker 02:
I think so, Your Honor.

[00:41:59] Speaker 02:
Yeah, tell me when you, as opposed to the judge, questioned the financial responsibility of LUCOS.

[00:42:05] Speaker 01:
Sure.

[00:42:05] Speaker 01:
So all the way back to GAO, we were attempting to get the information about LUCOS and to attack

[00:42:15] Speaker 01:
uh... lucas because the government was making standing arguments against us so we were we were doing that our initial court of federal claims case has account related to lucas right now about the reported lack of financial responsibility of lucas when does o g t put that at issue if ever i think so in the amended complaint

[00:42:35] Speaker 01:
judge, we put additional information about Lucas, that's the issue.

[00:42:40] Speaker 01:
But we still don't have the DCMA document at that point.

[00:42:44] Speaker 01:
So the DCMA document is actually coming.

[00:42:46] Speaker 02:
Is the first time you raised the financial responsibility of Lucas in your amended complaint?

[00:42:50] Speaker 02:
Is that where you would have me find it?

[00:42:52] Speaker 01:
Well, we have challenges against Lucas in our original complaint.

[00:42:55] Speaker 02:
Let me just be clear.

[00:42:56] Speaker 02:
You have broader challenges to Lucas.

[00:42:59] Speaker 02:
Maybe you may have to encompass financial responsibility.

[00:43:02] Speaker 02:
One of the arguments the appellants are making is you never put in dispute the financial responsibility of glucose.

[00:43:09] Speaker 02:
The judge did that.

[00:43:11] Speaker 02:
And your response to that seems to be by the time of our amended complaint, we put a challenge out there to financial responsibility.

[00:43:20] Speaker 01:
Is what I said correct?

[00:43:21] Speaker 01:
Yeah.

[00:43:22] Speaker 01:
We put all kinds of challenges about leukostat C4 in the case below.

[00:43:27] Speaker 01:
I have to be careful, because there's a lot of redactions in this record.

[00:43:30] Speaker 01:
But there were other pieces besides this not financially responsible about leukostat C4.

[00:43:35] Speaker 01:
I got that.

[00:43:35] Speaker 02:
I just want to know when you put financial responsibility.

[00:43:38] Speaker 01:
Yes.

[00:43:38] Speaker 01:
We argued it as soon as we had the DCMA materials, Judge.

[00:43:42] Speaker 01:
I mean, we were arguing that.

[00:43:44] Speaker 01:
But not before that.

[00:43:45] Speaker 01:
I don't believe that we had that specific document.

[00:43:53] Speaker 02:
In terms of the relief, one of the arguments I understand from the appellants is even if everything that the trial court found is correct about all these problems,

[00:44:04] Speaker 02:
that at best for you there should have been a remand to the agency to perhaps set a competitive range but do something as opposed to this injunction preventing them from going forward with who they wanted to go forward with.

[00:44:21] Speaker 02:
Is the relief too much even on the assumption you win on all the issues here?

[00:44:27] Speaker 01:
I think the relief is appropriate because basically we won on an issue the judge found that they hadn't done an evaluation.

[00:44:34] Speaker 01:
They hadn't done a new evaluation as they committed to.

[00:44:38] Speaker 01:
The investigation was improper.

[00:44:40] Speaker 01:
The DFARS required discussions and F3EA submitted an unacceptable proposal.

[00:44:47] Speaker 01:
There was no way

[00:44:49] Speaker 01:
There's no way under this ruling to go forward with F3A simply because they put in an unacceptable proposal.

[00:44:55] Speaker 01:
So that's not a possibility.

[00:44:57] Speaker 01:
Once the judge, based on this court's decision in Dell, decided that discussions were proper, that that was the course of action, the expected course of action, the agency hadn't

[00:45:08] Speaker 01:
done it, that's the only path at that point, because F3A is unacceptable.

[00:45:16] Speaker 01:
What the judge does with LUCOS makes findings that, to me, they're substantively not an intervening offer, but LUCOS is not an option from the judge's perspective, and he sends it back for DFARS 215.306.

[00:45:30] Speaker 01:
discussions with the offer that that under del should have taken place so I want I do want to say one sure judges

[00:45:43] Speaker 01:
So the teaming agreement issue, I think, is straightforward.

[00:45:46] Speaker 01:
It's the plain language.

[00:45:48] Speaker 01:
It's the plain language of the solicitation provisions in Section L that, one, say all of the solicitation provisions require compliance.

[00:45:58] Speaker 01:
Two, they call out, as Judge Solomson notes, the requirement for these

[00:46:04] Speaker 01:
for the teaming agreements to be present there.

[00:46:06] Speaker 01:
And the argument that this is not material actually is picked up by Judge Stark's questions, and Judge Somsen points out that this teaming relationship is the basis on which F3A performs well in both the experience and past performance.

[00:46:23] Speaker 01:
categories of its proposal.

[00:46:26] Speaker 01:
So of course it's material.

[00:46:28] Speaker 01:
The government asked for it and clearly wanted it in writing, and it clearly impacted the procurement.

[00:46:34] Speaker 01:
It's the path to which F3A got the scores it got under both experience and past performance.

[00:46:40] Speaker 05:
What is your view on the standard of review that we apply to the court's materiality determination?

[00:46:48] Speaker 01:
I think that's a good question, Your Honor.

[00:46:51] Speaker 01:
I think I would say it's clearly erroneous, because I think it's more akin to a prejudice finding.

[00:46:59] Speaker 05:
Would you say it's an application of law and effect?

[00:47:01] Speaker 05:
I mean, I'm not sure what prejudice finding is.

[00:47:05] Speaker 01:
Yeah, I mean, I think, Judge, if it's not material, they're arguing it's not material, so you should disregard it.

[00:47:10] Speaker 01:
It's like a prejudice finding to me, where this court has said the judge's assessment is subject to a clearly erroneous standard.

[00:47:17] Speaker 01:
But I can see, Judge Stoll, you may not agree.

[00:47:21] Speaker 05:
No, no, I just don't know.

[00:47:23] Speaker 05:
It would be nice if somebody had put it in the brief and had a case and cited it so that I could confirm that.

[00:47:28] Speaker 05:
Well, I apologize for that, Your Honor.

[00:47:30] Speaker 05:
It sounds more like this.

[00:47:31] Speaker 05:
It seems more like that.

[00:47:32] Speaker 05:
So that's why.

[00:47:34] Speaker 05:
If my face is saying anything, it's saying, wow, thanks for your help.

[00:47:38] Speaker 05:
I wish I had a case.

[00:47:39] Speaker 01:
Yes.

[00:47:41] Speaker 01:
I apologize for that, Judge Saul.

[00:47:42] Speaker 01:
I will say, under whichever standard, I don't think the outcome changes.

[00:47:46] Speaker 01:
Because even if you're looking at it de novo, the language is clear.

[00:47:50] Speaker 01:
The language is clear.

[00:47:50] Speaker 01:
I mean, I'm not.

[00:47:53] Speaker 01:
going to use this myself.

[00:47:55] Speaker 01:
But I mean, the judge actually addresses, I think it's in footnote 17, the argument that Mr. Mullen just made on this issue.

[00:48:02] Speaker 01:
And the court can read it itself.

[00:48:05] Speaker 01:
Judge Solmson dismembers that argument.

[00:48:07] Speaker 01:
It makes no sense that you would have this requirement in the solicitation if an oral teaming agreement, which you wouldn't even tell us did or did not exist, by the way.

[00:48:19] Speaker 02:
But the teaming agreement

[00:48:20] Speaker 02:
They're supposed to, if you have them, you're supposed to put them in volume four, the administrative volume, which doesn't have any evaluation criteria and doesn't factor into the evaluation of the bids.

[00:48:31] Speaker 02:
Doesn't that at least open up the possibility that actually submitting the agreements, as opposed to identifying your relationships, but actually submitting the agreements,

[00:48:40] Speaker 02:
may in fact not be material to the solicitation.

[00:48:43] Speaker 01:
I would say two things in response to that, Judge.

[00:48:46] Speaker 01:
I would, you know, having argued from the other side about contractors being excluded from competitions based on failing to put things in their administrative volume.

[00:48:56] Speaker 01:
I think it would be, I mean, the contractor community might actually like a decision that says that that's... I'm sorry, I just want to be clear.

[00:49:02] Speaker 02:
There are cases, you would say, where

[00:49:05] Speaker 02:
Just like this, the solicitation is very clear that the administrative volume

[00:49:11] Speaker 02:
has no impact on the evaluation.

[00:49:13] Speaker 02:
You're saying courts are nonetheless striking contractors who don't know.

[00:49:19] Speaker 01:
No, no.

[00:49:19] Speaker 01:
I'm saying agencies routinely remove.

[00:49:22] Speaker 01:
And all solicitations are different, Judge.

[00:49:24] Speaker 01:
So I'm going to be very careful about that.

[00:49:25] Speaker 01:
But agencies do remove contractors based on failures to put things in the administrative volume with their proposal that are required.

[00:49:33] Speaker 01:
And of course, as Judge Solomson said in this case, the whole reason that's there is so that agency can figure out

[00:49:40] Speaker 01:
whether or not F3A can reasonably rely on the things it's saying about its subcontractor.

[00:49:47] Speaker 01:
Is it on the team?

[00:49:48] Speaker 01:
Has it committed to do the work that F3A is indicating?

[00:49:52] Speaker 01:
Et cetera, et cetera.

[00:49:53] Speaker 01:
And Judge Thompson goes through it at length and shows how that particular subcontractor

[00:49:58] Speaker 01:
is the driver in the scoring of experience and past performance for F3A.

[00:50:04] Speaker 01:
I do want to address just very briefly, if I could, and I know I'm over, Judge Stark's question about previously about what happens if the court were to decide to reverse.

[00:50:16] Speaker 04:
Yeah, and can you also include the

[00:50:18] Speaker 04:
Judge Stark's comments to your friend in the government about how there were remaining charges in the complaint that the judge never reached.

[00:50:26] Speaker 01:
Yes, yes.

[00:50:28] Speaker 01:
That actually is exactly what I wanted to touch on, Judge Prost.

[00:50:31] Speaker 01:
So we have complaint counts, including as related to findings that were made against Oak Grove.

[00:50:39] Speaker 01:
that haven't been addressed.

[00:50:41] Speaker 01:
The judge, we had an 11-count complaint.

[00:50:45] Speaker 01:
It sounds like a lot, but we're actually breaking in different counts, particular findings that we were challenging.

[00:50:52] Speaker 01:
But the judge did not ever address, Judge Solomson did never address whether the findings against Oak Grove

[00:51:00] Speaker 01:
the evaluative findings against Oak Grove were arbitrary and capricious.

[00:51:05] Speaker 01:
So this case would have to go back.

[00:51:08] Speaker 01:
It can't go to F3A, even if it made any sense to go to F3A.

[00:51:11] Speaker 01:
This procurement is from

[00:51:14] Speaker 01:
uh... eighteen twenty nineteen even that's even if it makes sense it to go to f three eight this uh... which it doesn't it could not sitting in front of this court because there are material portions of our complaint that have never been resolved if we were to remand solely to deal with issues that the trial court didn't reach i'm not saying we will but if we were to do that the injunction should be vacated in the meantime correct

[00:51:42] Speaker 01:
Yeah, I mean, if you were to reverse all the other issues.

[00:51:45] Speaker 02:
That was the question.

[00:51:46] Speaker 01:
I mean, I think there should be a, you know, from my perspective, Judge, there should be some kind of our ability at least to request the stay below, because at the end of the day, that was the state of play in the protest.

[00:51:57] Speaker 01:
We had a stay, an agreed to stay.

[00:52:01] Speaker 01:
on the procurement.

[00:52:03] Speaker 01:
But what I would say, Judge, and I know Judge Prost doesn't want me to go there, but the government already is committed to corrective action in another matter on all these issues.

[00:52:11] Speaker 01:
So in discussions, a separate case, they put in a commitment to do corrective action.

[00:52:17] Speaker 01:
So it's almost OBE in that sense, Judge, because

[00:52:22] Speaker 01:
i was hoping you know i don't think it's very overtaken by event thank you that's what that's uh... you know that if the government is already in a separate action that's not subject to this appeal the government committed to take the discussion take uh... due discussions the government committed to do a re-evaluation government committed to do a new award decision all in another action that nobody appealed judge so there's a whole nother separate action on this procurement

[00:52:50] Speaker 01:
where all of these same things that you're being asked to look at have been committed to by the government, whatever would be the reversal here, it wouldn't affect that other decision because that other case is not on appeal.

[00:53:01] Speaker 01:
Nobody has brought it up.

[00:53:02] Speaker 01:
The time to appeal it is run.

[00:53:06] Speaker 01:
I know it's kind of a complicated position, but I want to make the court understand that they've committed to that.

[00:53:13] Speaker 04:
I'm trying not to translate what you just said to everything we've done in this case.

[00:53:21] Speaker 01:
It's a complete waste of time and development.

[00:53:22] Speaker 01:
Judge, I don't want you to feel that way.

[00:53:23] Speaker 01:
We argued that it was new.

[00:53:25] Speaker 04:
We have a case free for us, and we're going to deal with the issue.

[00:53:28] Speaker 01:
Yes, I understand, Judge.

[00:53:30] Speaker 01:
That's all I wanted to make sure is that you were aware that that was the outcome of this other action.

[00:53:48] Speaker 03:
Thank you, Your Honors.

[00:53:49] Speaker 03:
I'll be quick to start with your question, Judge Stark, and remand.

[00:53:56] Speaker 03:
I prepared this introduction.

[00:53:58] Speaker 03:
Didn't get to it because of Your Honors' questions.

[00:54:00] Speaker 03:
And I just want to kind of circle back to it and talk for a moment that the most telling error here is that the court did not remand, that it issued this injunction that said start over or do a discussion.

[00:54:12] Speaker 03:
And what I would like to say is,

[00:54:14] Speaker 03:
If Your Honors believe that the United States was... But what is your view?

[00:54:17] Speaker 04:
A remand on what?

[00:54:19] Speaker 04:
A remand on Lukas, sure.

[00:54:21] Speaker 04:
What about a remand on the reevaluation?

[00:54:25] Speaker 04:
That's on the list.

[00:54:25] Speaker 04:
A remand on what?

[00:54:26] Speaker 03:
Four things, Your Honor.

[00:54:27] Speaker 03:
All four issues.

[00:54:29] Speaker 03:
What could happen if the Army still made mistakes?

[00:54:32] Speaker 03:
What they could do that's discretionary?

[00:54:34] Speaker 03:
Lucas is the big example, right?

[00:54:36] Speaker 03:
Because the SBA... Discussions.

[00:54:40] Speaker 03:
On Appendix page 34, the court says the error was not documenting the decision not to do discussions.

[00:54:47] Speaker 04:
Oh, you mean on the issues not addressed.

[00:54:55] Speaker 03:
And I'm getting confused.

[00:54:58] Speaker 02:
Are you talking about us remanding to the trial court or the trial court remanding to the agency?

[00:55:03] Speaker 03:
Yeah, I think we're talking past us, each other, Your Honor.

[00:55:07] Speaker 03:
No, no, I'm going to address that momentarily if I can, Your Honors.

[00:55:11] Speaker 03:
I'm talking about what the trial court should have done, even if we were wrong on all these issues, all of our interpretations, and so far.

[00:55:18] Speaker 03:
And that is remand to the SBA for responsibility to termination of glucose, remand to the contracting officer to either issue a notification saying discussions will not happen and this is why, just like the same judge did afterwards in the IAP decision we cite in our cases,

[00:55:35] Speaker 03:
For the teaming agreement on page appendix 26, the court recognizes that there could be a waiver of material terms, remand to determine whether it is material.

[00:55:47] Speaker 03:
Let the agency in the first instance set an interpretation to say whether it's material or not, and then that can be reviewed, Your Honor.

[00:55:55] Speaker 03:
And for the OCI, FAR 9.503 allows the government to waive a conflict of interest.

[00:56:02] Speaker 03:
That hasn't been addressed by the court.

[00:56:04] Speaker 03:
That entire concept was skipped over.

[00:56:06] Speaker 03:
So there are these four discretionary decisions the government can make if we're wrong on everything.

[00:56:13] Speaker 03:
So at a minimum, the trial court's decision is wrong on its relief on appendix page 52.

[00:56:20] Speaker 03:
regarding the remand from your court, Your Honor.

[00:56:26] Speaker 03:
What happens to the, and I appreciate that my colleague on the other side clarified that the remaining issues are technical issues about the evaluation of Oak Grove.

[00:56:38] Speaker 03:
Well, if on remand,

[00:56:42] Speaker 03:
They need to be addressed by the trial court.

[00:56:46] Speaker 03:
But these four issues, I think, need to be addressed first by the agency.

[00:56:50] Speaker 03:
Because whether or not discussions are going to occur impacts the evaluation results from the second evaluation of Oak Road.

[00:57:00] Speaker 04:
Okay.

[00:57:02] Speaker 04:
We really need to end this.

[00:57:05] Speaker 04:
We thank you.

[00:57:06] Speaker 00:
Thank you, Your Honor.

[00:57:08] Speaker 00:
Thank both sides.

[00:57:08] Speaker 00:
Were you going to take your minute?

[00:57:09] Speaker 00:
All right.

[00:57:09] Speaker 04:
We'll take your minute.

[00:57:11] Speaker 00:
Very quickly, Your Honor, Oak Grove never challenged responsibility at the Court of Federal Claims, never.

[00:57:17] Speaker 00:
Not only did they not challenge financial responsibility, they didn't challenge Lucas' responsibility at all, period.

[00:57:23] Speaker 00:
They did not challenge it.

[00:57:25] Speaker 00:
Second, Your Honor, the RM SSEB issue that the court identified, that also was in the record.

[00:57:33] Speaker 00:
The Lucas issue and the SSEB issue were both disclosed on February 10, and they were never challenged.

[00:57:40] Speaker 00:
They were never protested.

[00:57:41] Speaker 00:
The court raised those issues after all briefing was done.

[00:57:44] Speaker 00:
And with that, Your Honor, we would just ask that the court does reverse and grant our appeals.

[00:57:50] Speaker 04:
Thank you.

[00:57:51] Speaker 04:
We thank all sides in the case.