[00:00:00] Speaker 06:
First case for argument this morning is 24-1586, UTEC versus United States.

[00:00:07] Speaker 06:
Mr. Grayson, whenever you're ready.

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

[00:00:11] Speaker 02:
There is a protective order in this case, and I don't know how the court normally deals with that when there's an audience.

[00:00:20] Speaker 06:
I mean, the briefs are marked.

[00:00:23] Speaker 06:
confidential to the extent there's confidential material.

[00:00:27] Speaker 06:
Right.

[00:00:28] Speaker 06:
I don't know what else.

[00:00:30] Speaker 03:
I think that you could try not to state anything that you'd be concerned about being disclosed publicly during your argument.

[00:00:37] Speaker 02:
Yes.

[00:00:37] Speaker 02:
Actually, it's the awardee who has the confidential material, Your Honor.

[00:00:41] Speaker 02:
But I may.

[00:00:43] Speaker 02:
I may need to refer to it during argument.

[00:00:45] Speaker 02:
I'll try to let you know if I'm about to do that.

[00:00:47] Speaker 01:
Could you just direct us to the page and tell us what to look at without saying it in court?

[00:00:52] Speaker 01:
I can try to do that, Your Honor.

[00:00:54] Speaker 06:
Thank you.

[00:00:54] Speaker 06:
Any comment on the other side about that?

[00:00:56] Speaker 06:
Any concerns, special concerns?

[00:00:58] Speaker 06:
Because I didn't perceive any in going through the material.

[00:01:02] Speaker 06:
No objection.

[00:01:04] Speaker 02:
Thank you.

[00:01:05] Speaker 02:
All right.

[00:01:06] Speaker 02:
I hope I didn't lose any time there, Your Honor.

[00:01:10] Speaker 02:
Good morning.

[00:01:12] Speaker 02:
May it please the court?

[00:01:16] Speaker 02:
Let us contemplate a situation where the government solicits dump trucks and then goes ahead and procures nuclear missiles in the same procurement.

[00:01:29] Speaker 02:
Dump trucks versus nuclear missiles.

[00:01:32] Speaker 02:
Could the maker of nuclear missiles, Northrop Grumman, then file a protest, even though it did not sit on the dump trucks?

[00:01:38] Speaker 01:
I assume this is going to your cardinal change claim.

[00:01:40] Speaker 01:
Yes, Your Honor.

[00:01:41] Speaker 01:
Is that right?

[00:01:41] Speaker 01:
So can we just assume for the moment that the difference between 24 and 151 is a cardinal change?

[00:01:48] Speaker 01:
Let's just assume that for the moment.

[00:01:51] Speaker 01:
There are a lot of references in the papers to 24, but almost all of them, maybe all of them say, quote, 24 annually.

[00:02:01] Speaker 01:
And the solicitations for a contract that could be renewed, I think, for up to five years.

[00:02:06] Speaker 01:
How do we read 24 annually?

[00:02:09] Speaker 01:
Is that a total of 120 different sites, 24 times five, or is it the same 24 sites

[00:02:16] Speaker 01:
for each of five years?

[00:02:18] Speaker 02:
Under the solicitation, it's the same 24 sites.

[00:02:21] Speaker 01:
How can we tell that?

[00:02:22] Speaker 02:
Because the 24 sites are, it corresponds exactly to the 24 sites that were legacy sites in this procurement.

[00:02:30] Speaker 03:
Can you give us a JA page where you're supported with that particular argument you just made?

[00:02:36] Speaker 02:
I'm sorry, Your Honor?

[00:02:37] Speaker 03:
Can you cite us a JA page to support the response that you just made to Judge Stark?

[00:02:41] Speaker 02:
I can probably do that during my rebuttal, Your Honor.

[00:02:45] Speaker 06:
There were 24 legacy sites.

[00:02:47] Speaker 02:
Yes, there were actually 24 legacy sites.

[00:02:51] Speaker 02:
I'll read to you from.

[00:02:52] Speaker 06:
Well, just look at 10, 9, 1, 4.

[00:02:58] Speaker 06:
And my count was 27.

[00:02:59] Speaker 06:
18 that had none and nine that had.

[00:03:05] Speaker 06:
So that's 27.

[00:03:05] Speaker 06:
That's not 24, right?

[00:03:07] Speaker 02:
And three of those 27 sites were awarded to UTEC just before the solicitation was issued, Your Honor.

[00:03:14] Speaker 02:
So 27 minus 3 is 24.

[00:03:17] Speaker 06:
So your reading of the solicitation is that unambiguously, it was for 24 sites for one year?

[00:03:31] Speaker 06:
Or a total of 24 sites for the five-year period?

[00:03:37] Speaker 02:
No, 24 sites per year.

[00:03:40] Speaker 02:
Most many contracts have base year and option years.

[00:03:43] Speaker 02:
Same thing with this one.

[00:03:44] Speaker 02:
For these 24 sites, if they were individually ordered, they had to be individually ordered by the site, then you would have up to 24 sites each year, all of which would be the legacy sites.

[00:03:56] Speaker 02:
And by the way, there's another provision in solicitation that says the same thing.

[00:04:00] Speaker 02:
There's another provision of solicitation that says that the legacy data at these legacy sites has to be transferred using a particular tool, an Olympus tool.

[00:04:15] Speaker 06:
OK.

[00:04:16] Speaker 06:
But before you get into another point, the first point you made, though.

[00:04:19] Speaker 06:
So you read the solicitation, which I'm not sure there's a disagreement.

[00:04:24] Speaker 06:
I think the government's position, we'll find out, is it was 24 sites a year.

[00:04:28] Speaker 06:
They just said the contract, essentially, the bidding had to come in for five years.

[00:04:33] Speaker 06:
And I think that's confirmed with the bids that were submitted.

[00:04:36] Speaker 06:
They were for a five-year period.

[00:04:39] Speaker 06:
So I don't think they disagree that it was 24 sites annually.

[00:04:43] Speaker 06:
So maybe we're saying the same thing.

[00:04:46] Speaker 06:
And the only question is whether you construed this as having to submit a bid for five years for 24 sites a year.

[00:04:53] Speaker 02:
No, Your Honor, not in the least.

[00:04:54] Speaker 02:
We construed this the way it says, which is that this is for the 24 legacy sites only.

[00:04:59] Speaker 02:
And the government has already moved well beyond that, well up into the 151 range.

[00:05:03] Speaker 06:
So if this was a five-year contract, if somebody was going to submit a bid for five years,

[00:05:09] Speaker 06:
Would they have the same 24 legacy sites doing over and over again for over a five-year period?

[00:05:16] Speaker 02:
Well, yes, when you consider what this is.

[00:05:18] Speaker 02:
This is software for a particular internal procedure.

[00:05:24] Speaker 02:
So basically, reading x-rays, if you will.

[00:05:26] Speaker 02:
That's what this software does.

[00:05:28] Speaker 06:
So you're saying that you construed the contract to unambiguously say it's for 24 sites for the first year.

[00:05:36] Speaker 06:
And it's the same 24 sites for the second year, the third year, the fourth year, and the fifth year?

[00:05:41] Speaker 02:
Up to that many, because those are the only legacy sites.

[00:05:44] Speaker 06:
So you're just dealing with the same 24 sites each year.

[00:05:47] Speaker 06:
Isn't that contradicted by, I don't want to give stuff up, but if you look at the appendix, whatever title this document is, but it starts at page 10, 637.

[00:06:00] Speaker 06:
Do you have it in front of you?

[00:06:01] Speaker 02:
No, I don't.

[00:06:01] Speaker 06:
And it goes on for a bunch of pages.

[00:06:04] Speaker 06:
It's a listing per year.

[00:06:07] Speaker 06:
And in the first year, they have a provision for, at the very end, it's the annual maintenance support.

[00:06:15] Speaker 06:
And the first year, it's nothing.

[00:06:18] Speaker 06:
For the second year, it's 24.

[00:06:19] Speaker 06:
For the first year, which to me confirms

[00:06:24] Speaker 06:
one's understanding of the contract as being different 24 sites every year.

[00:06:29] Speaker 02:
That's not what that means, Your Honor.

[00:06:30] Speaker 02:
That's simply annual updates that are performed.

[00:06:33] Speaker 02:
That's why it's zero the first year.

[00:06:35] Speaker 02:
You don't update in the first year.

[00:06:36] Speaker 01:
What in the JA can you point us to that supports your reading?

[00:06:41] Speaker 01:
I understand you disagree with Judge Proce.

[00:06:44] Speaker 01:
reading of the portion she just said to, but is there something that says base year and updates or other language you've just used?

[00:06:52] Speaker 01:
How can we find something in the record that supports your view?

[00:06:56] Speaker 02:
OK, I don't disagree with what Judge Proce just read to me.

[00:06:59] Speaker 02:
I believe that I explained it.

[00:07:02] Speaker 01:
Well, let's get this absolutely clear.

[00:07:04] Speaker 01:
Judge Proce was asking you, I think, is it 24 different sites?

[00:07:09] Speaker 01:
for a total of up to 120 over five years.

[00:07:11] Speaker 01:
And you, I think, say no.

[00:07:13] Speaker 01:
It's the same 24 sites for each of five years.

[00:07:16] Speaker 01:
Do we understand your position?

[00:07:18] Speaker 02:
It's up to 24 legacy sites, and you could tell it for two reasons.

[00:07:22] Speaker 01:
But no more than 24 over the five years.

[00:07:26] Speaker 01:
If I looked back after five years, I would only see this contract performed at 24 sites, not 120, correct?

[00:07:36] Speaker 02:
Up to that many and only legacy sites.

[00:07:38] Speaker 02:
Up to 24.

[00:07:41] Speaker 02:
Right.

[00:07:42] Speaker 06:
We're talking about the same 24.

[00:07:45] Speaker 06:
We're talking about the same basket.

[00:07:46] Speaker 06:
That's what I thought you said to me.

[00:07:48] Speaker 02:
The same 24, that's right, the legacy sites.

[00:07:51] Speaker 02:
The legacy sites are the 24.

[00:07:52] Speaker 03:
So we're not going to just take your word for it.

[00:07:54] Speaker 02:
That would be great, Your Honor.

[00:07:56] Speaker 03:
We're not going to just take your word for it.

[00:07:58] Speaker 03:
So what I want to know is where in the appendix.

[00:08:01] Speaker 02:
Yes.

[00:08:01] Speaker 03:
Which hopefully you have somewhere.

[00:08:04] Speaker 03:
I want to know where it supports the reading that you just gave us.

[00:08:06] Speaker 02:
All right.

[00:08:07] Speaker 02:
I'm going to explain that.

[00:08:08] Speaker 03:
No, give me a page.

[00:08:10] Speaker 02:
Your Honor, I'll have to do that during my five-minute rebuttal.

[00:08:13] Speaker 02:
I cannot give you a page standing here right now.

[00:08:15] Speaker 03:
Was the list of 148 facilities included with the solicitation?

[00:08:20] Speaker 02:
The list is an attachment to the solicitation.

[00:08:23] Speaker 02:
It's 151 total facilities.

[00:08:25] Speaker 03:
151.

[00:08:26] Speaker 03:
And that was included with the solicitation.

[00:08:27] Speaker 03:
You agree with that?

[00:08:29] Speaker 02:
Yes, like many things.

[00:08:31] Speaker 02:
I mean, for instance, a building chart could be included with solicitation.

[00:08:34] Speaker 02:
That doesn't mean that it's a requirement for 151 locations.

[00:08:39] Speaker 02:
That's not what that means.

[00:08:41] Speaker 02:
I mean, you have to read this as a plain meaning page.

[00:08:44] Speaker 03:
Wait, I get to ask it, then you answer.

[00:08:45] Speaker 02:
Yes, Your Honor.

[00:08:47] Speaker 03:
OK, how do you interpret, then, when you said there were 151 facilities that were included with the solicitation, you interpreted that as meaning it's only 24?

[00:08:57] Speaker 02:
I interpret that as meaning that it's extra information being provided that doesn't contradict the terms of the solicitation and the statement of work.

[00:09:07] Speaker 02:
Section B of the solicitation says what you have to do.

[00:09:11] Speaker 02:
The list of 151 is not in section B of the solicitation.

[00:09:15] Speaker 03:
Counsel, didn't some bidders ask for clarification?

[00:09:20] Speaker 03:
Didn't they ask some questions to try to figure out whether or not it was 24 or some larger number?

[00:09:25] Speaker 02:
I don't remember that, Your Honor.

[00:09:26] Speaker 02:
I remember that happening.

[00:09:28] Speaker 02:
And I can understand why, because a plain reading of that solicitation is that it's limited to legacy.

[00:09:33] Speaker 02:
Sorry, Your Honor.

[00:09:35] Speaker 01:
I'm sorry.

[00:09:36] Speaker 01:
You don't remember it happening, or you are agreeing, yes, that happened.

[00:09:40] Speaker 01:
Questions were asked repeatedly.

[00:09:41] Speaker 01:
You have to know this.

[00:09:43] Speaker 01:
It's all over the briefing that questions were asked, what is the quantity?

[00:09:48] Speaker 02:
The quantity is stated in section B of the solicitation in the statement of work.

[00:09:52] Speaker 01:
Q&A, starting at 10-9-0-5 of the appendix and going to 10-9-0-8, there's three or four questions relating to what is the quantity.

[00:10:03] Speaker 01:
And the answer consistently is 24 sites annually.

[00:10:09] Speaker 01:
And I think a lot of this case turns on what does that mean.

[00:10:12] Speaker 02:
Yes.

[00:10:12] Speaker 02:
And I'm trying to explain what that means in the context of solicitation.

[00:10:16] Speaker 02:
That's right.

[00:10:17] Speaker 02:
I agree with you, Your Honor.

[00:10:18] Speaker 02:
I agree with you 1,000%.

[00:10:19] Speaker 02:
What does that mean, the 24?

[00:10:22] Speaker 02:
And I will point out that the government has said in its briefs consistently that it has already moved beyond the 24, and that we're no longer being limited to 24.

[00:10:30] Speaker 02:
That's the whole point of the government being here today.

[00:10:33] Speaker 02:
If we all agreed on that, then there'd be no need for this case.

[00:10:36] Speaker 01:
So to me, I think the issue is it's fair to read this solicitation as ambiguous.

[00:10:46] Speaker 01:
because while there are references to 24, 24 annually, there's also, I think you have to acknowledge, plenty of references to this being potentially a VA-wide, a national contract for sites around the country, throughout the United States.

[00:11:02] Speaker 01:
Isn't that a glaring facial inconsistency that definitely led others to ask questions at the pages I cited to you and reasonably should have gotten your client to ask questions too?

[00:11:15] Speaker 02:
Your honor, no one anticipated this to be uniform throughout the entire country.

[00:11:21] Speaker 02:
The 24 sites are located all throughout the entire country.

[00:11:24] Speaker 02:
They're national.

[00:11:25] Speaker 02:
They're not located in one state or one region.

[00:11:27] Speaker 02:
They're all over the country.

[00:11:28] Speaker 02:
The legacy sites are all over the country.

[00:11:31] Speaker 02:
There's just 24 of them.

[00:11:34] Speaker 01:
I'm not sure if that's responsive to my question.

[00:11:38] Speaker 01:
There's four pages of questions from somebody asking, hey, we can't figure out what the quantity of this solicitation is.

[00:11:46] Speaker 01:
And there's answers.

[00:11:47] Speaker 01:
Yes.

[00:11:48] Speaker 01:
Shouldn't your client have had to ask

[00:11:51] Speaker 01:
Shouldn't this court say your client also should have had to ask questions, and the fact that you didn't means there's a blue and gold waiver?

[00:11:59] Speaker 02:
No.

[00:11:59] Speaker 02:
There's not a blue and gold waiver for all sorts of other reasons.

[00:12:03] Speaker 02:
But to direct it to the point of your question, those questions and answers are in the record.

[00:12:09] Speaker 02:
They don't say anything indicating that this is going to be in all 151 locations.

[00:12:15] Speaker 02:
They just don't.

[00:12:17] Speaker 02:
So the questions and the answers seem to imply

[00:12:20] Speaker 02:
if anything, that everyone agreed that this would be 24 locations.

[00:12:24] Speaker 02:
And if you read the solicitation, you'll see it's referring to 24 specific locations, the 24 legacy locations.

[00:12:31] Speaker 03:
Counsel, what is your responsive argument to the indefinite quantity language in the solicitation?

[00:12:37] Speaker 02:
It's an indefinite quantity.

[00:12:39] Speaker 02:
That means that if there are no other terms in the solicitation that limit the quantity,

[00:12:45] Speaker 02:
then the government has discretion to change the quantity.

[00:12:49] Speaker 02:
In this case, there are.

[00:12:50] Speaker 02:
There are several of them.

[00:12:52] Speaker 02:
They fall into two categories.

[00:12:55] Speaker 02:
The first category is the 24, repeated over and over and over again, at least, I think, 20 times in Schedule B of the solicitation.

[00:13:05] Speaker 02:
And secondly, the fact that requirement six, you remember this is a UTEC plus equal or equal procurement.

[00:13:15] Speaker 02:
right, is a UTEC or equal procurement.

[00:13:17] Speaker 02:
It's a brand name or equal procurement.

[00:13:20] Speaker 02:
In order to have an equal procurement, you have to have salient characteristics.

[00:13:24] Speaker 02:
Salient characteristic number six says that among the things you need to do.

[00:13:31] Speaker 06:
Do you have a page site in the appendix?

[00:13:33] Speaker 02:
I'm sorry, Your Honor.

[00:13:34] Speaker 02:
I don't have it.

[00:13:35] Speaker 02:
I can give it to you.

[00:13:36] Speaker 02:
I'll try to give it to you later.

[00:13:47] Speaker 02:
And this is very important, Your Honor.

[00:13:48] Speaker 02:
Salient characteristic number six says that part of the statement of work is to be able to translate existing test results, these existing endoscopy results, translate existing results from the original format into the new format.

[00:14:09] Speaker 02:
That's possible only at the legacy sites.

[00:14:14] Speaker 02:
If we were to agree with you that it's a latent ambiguity here,

[00:14:29] Speaker 01:
My understanding is you would ask us, we're just talking about count one, you would ask us to vacate the motion, the dismissal and remand for further proceedings on the cross motions for judgment on the administrative record.

[00:14:42] Speaker 01:
Is that the relief you would seek on count one?

[00:14:44] Speaker 01:
Yes.

[00:14:45] Speaker 01:
And then what, if anything, could you see or could we foresee happening on those

[00:14:52] Speaker 01:
cross motions on count one, because we would have said your claim is at least plausible, that there is a cardinal change here, and you didn't waive it because the ambiguity is latent.

[00:15:07] Speaker 01:
Is there anything left to be litigated on that claim at that point, or have you won?

[00:15:14] Speaker 02:
I think we won.

[00:15:14] Speaker 02:
The judge would presumably enter an order based upon her review of the record and based upon no appellate fact finding.

[00:15:21] Speaker 02:
Her view of the record should indicate that I'm right and that the procurement is limited to the 24 sites.

[00:15:28] Speaker 02:
And it's gone haywire.

[00:15:30] Speaker 01:
And then what happens in the real world, because you've already suggested to us, I guess the contract has been awarded for more than 24.

[00:15:36] Speaker 02:
No, the government has implemented it for more than 24.

[00:15:39] Speaker 02:
That's why it's a cardinal change, Your Honor.

[00:15:41] Speaker 01:
OK, so what would happen?

[00:15:44] Speaker 01:
What would happen in the real world?

[00:15:45] Speaker 02:
The lower court would enter.

[00:15:46] Speaker 02:
Thank you for explaining that.

[00:15:47] Speaker 02:
All we're asking for is to be in the courthouse.

[00:15:50] Speaker 02:
The lower court, presumably based upon the motions for judgment on the administrative record, presumably, I would hope, would order that this procurement, this awarded contract, be limited to the 24 legacy sites only during the course of the contract, each option year remaining.

[00:16:09] Speaker 02:
There's no injunction in effect.

[00:16:10] Speaker 02:
It would only be the remaining parts of this contract.

[00:16:13] Speaker 02:
That's all we want.

[00:16:14] Speaker 06:
Under your view, and I don't know the answer to this question,

[00:16:18] Speaker 06:
Let's assume that happened, and the government said, yikes, that's not what we intended, even if the court said that it unambiguously said something we didn't intend to say.

[00:16:29] Speaker 06:
Couldn't the government do something going forward to remedy that?

[00:16:33] Speaker 06:
Couldn't they say, whoops, we better cancel this contract?

[00:16:39] Speaker 06:
and issue a new solicitation with less ambiguity for where we are.

[00:16:44] Speaker 06:
So at the end of the day, would the law preclude the government for the next three or four years, changing the contract to include legacy sites other than the 24 that were included in the list?

[00:16:58] Speaker 02:
Absolutely not, Your Honor.

[00:17:00] Speaker 02:
The government would be free to do this under

[00:17:02] Speaker 02:
For under the FAR provision that we cited in the briefs, this comes up all the time under FAR 15.204, I think.

[00:17:10] Speaker 06:
OK.

[00:17:11] Speaker 06:
All right.

[00:17:11] Speaker 06:
So your answer is that they wouldn't be.

[00:17:13] Speaker 02:
No.

[00:17:13] Speaker 02:
What they ought to do is they ought to reopen the competition.

[00:17:17] Speaker 02:
The judge below can start on that.

[00:17:19] Speaker 06:
Well, I don't want to get into further details of what to do.

[00:17:21] Speaker 06:
I just wanted to know if they were able to do it.

[00:17:23] Speaker 06:
Judge Cunningham, did you have something else?

[00:17:24] Speaker 06:
All right, you've exhausted your rebuttal time and all of your time, but we'll restore a couple minutes for rebuttal.

[00:17:31] Speaker 02:
Very kind of you.

[00:17:32] Speaker 02:
Thank you for the consideration, Your Honor.

[00:17:34] Speaker 02:
And I didn't speak at all about blue and gold, so if Your Honor, if anyone has any questions about that, I'd be happy to address that in a couple of minutes.

[00:17:41] Speaker 02:
You're graciously giving us.

[00:17:42] Speaker 06:
You're happy to rest on your briefs as well.

[00:17:44] Speaker 02:
Thank you, Your Honor.

[00:17:45] Speaker 02:
Thank you very much, you all.

[00:17:48] Speaker 06:
Mr. Long?

[00:18:04] Speaker 07:
Good morning, Your Honor, and may it please the Court.

[00:18:06] Speaker 07:
Just a few things, and then I look forward to the Court's questions.

[00:18:09] Speaker 07:
Judge Prost, you asked whether or not the government agrees that this is limited to 24 sites.

[00:18:15] Speaker 07:
We do not agree that it's limited to 24 sites.

[00:18:17] Speaker 06:
But what you agree is that your understanding of the contract is you had to submit a bid for five years, and that each of those five years, it would cover 24 sites annually.

[00:18:29] Speaker 07:
No, Your Honor.

[00:18:30] Speaker 07:
No.

[00:18:30] Speaker 07:
No.

[00:18:31] Speaker 07:
Our position in the brief is that 24 is an estimate on a per year basis.

[00:18:37] Speaker 07:
And so when offerors were to submit proposals, and this came up in the Q&A that Judge Stark alluded to, the offerors were to assume 24 sites as an estimate for purposes of their proposal.

[00:18:50] Speaker 07:
But the awarded contract is not limited to 24 sites per year.

[00:18:56] Speaker 07:
various VA medical centers could order off of this contract, and it could be more than 24.

[00:19:01] Speaker 07:
It could be less.

[00:19:03] Speaker 06:
Just say estimates.

[00:19:03] Speaker 06:
OK, moving on to the other kind of questions we explored with your friend.

[00:19:09] Speaker 06:
Given 24 as an estimate, so that's your position, 24 annually, his view, as I understand it, is it's the exact same 24 for each of the five years, and that

[00:19:23] Speaker 06:
bucket of sites is really limited to the legacy sites.

[00:19:29] Speaker 07:
No, Your Honor.

[00:19:30] Speaker 07:
And I think it's telling that my friend wasn't able to point to a place in the Joint Appendix that supports that.

[00:19:34] Speaker 07:
I think that the ordering sheets that were referred to during his presentation plainly are broken out by year.

[00:19:43] Speaker 07:
There's a base year and four option years.

[00:19:46] Speaker 07:
And each year offers an estimate of 24 sites.

[00:19:49] Speaker 07:
There's no reason why the same entity or the same VA medical center would have to

[00:19:54] Speaker 07:
could only order in base year and then that same medical center would be the only ones, or those 24 I should say.

[00:20:00] Speaker 03:
Are you saying it's 24 unique sites each of those years such that you would be potentially multiplying 24 by 5?

[00:20:07] Speaker 07:
Well, keep in mind it's an estimate, Your Honor.

[00:20:08] Speaker 07:
But yes, it is each year, if the government were to pick up option year three, a new VA medical center that had not previously used these services off of this contract could make an order and come into using the services through the awardee probation here.

[00:20:25] Speaker 03:
What is your best support in the record, pointing us to a JA page, that it should not be limited to 24, as opposing counsel argues?

[00:20:33] Speaker 07:
So I think it's those ordering sheets, Your Honor, that's at

[00:20:40] Speaker 07:
Is that this price-cost schedule right right we can see them at 109?

[00:20:51] Speaker 07:
One one one nine four five.

[00:20:57] Speaker 07:
I'm sorry okay.

[00:20:57] Speaker 07:
I had one oh six three seven is that essentially the same thing it is the the Contra the solicitation was amended and there are different versions here and

[00:21:05] Speaker 07:
They don't differ materially, but as the final version of the solicitation, I believe that 10945 is the price schedule.

[00:21:14] Speaker 03:
One thing I still am not understanding, like how the math is fully working, right?

[00:21:20] Speaker 03:
We've been talking about a bunch of different numbers.

[00:21:21] Speaker 03:
We're talking about 148, 151, maybe multiplying 24 by 5.

[00:21:27] Speaker 03:
Can you kind of explain what's going on with all these different numbers and calculations?

[00:21:32] Speaker 07:
Yes, Your Honor.

[00:21:32] Speaker 07:
So as I understand the solicitation, the estimate is 24 sites.

[00:21:36] Speaker 07:
That came out in Q&A.

[00:21:37] Speaker 06:
24 different sites per year, or it could be the same 24 sites for five years?

[00:21:44] Speaker 07:
24 sites.

[00:21:47] Speaker 07:
That's a good question.

[00:21:48] Speaker 07:
I think it's 24 sites per year, but I am not certain of a JAA patient.

[00:21:53] Speaker 06:
Well, his view is it's the same 24 sites, and it's limited to these legacy sites.

[00:21:58] Speaker 06:
And I assume that's not true.

[00:22:02] Speaker 07:
Hold on one second.

[00:22:03] Speaker 07:
If we look at the Q&A 10905.

[00:22:13] Speaker 06:
I'm sorry, again.

[00:22:14] Speaker 07:
10905, Your Honor.

[00:22:15] Speaker 07:
I apologize.

[00:22:17] Speaker 07:
So how many sites?

[00:22:19] Speaker 07:
This is maybe 2 thirds of the way down the page.

[00:22:22] Speaker 07:
There's a question.

[00:22:23] Speaker 07:
And these Q&As are incorporated into the solicitation formally.

[00:22:27] Speaker 07:
How many sites does the cost price schedule based off of?

[00:22:30] Speaker 07:
24 annually, the quantities provided are estimates only.

[00:22:35] Speaker 07:
VA makes no guarantee regarding actual quantities that may be purchased.

[00:22:38] Speaker 06:
Okay, but that doesn't answer my question.

[00:22:40] Speaker 06:
His view is that 24 sites annually, but it's the same 24 legacy sites that he points to in this chart.

[00:22:50] Speaker 07:
Right.

[00:22:50] Speaker 07:
I don't believe there's anything in the solicitation that so limits the approach for the VA.

[00:22:57] Speaker 07:
I think that my friend's view of 24 sites is based on his understanding of the facilities lists

[00:23:05] Speaker 07:
that was included as attachment 13 to the solicitation and his sort of parsing of which endoscopy systems are being used by which medical centers at the point of contract award and sort of developing an understanding of, he comes to 24 that way.

[00:23:23] Speaker 07:
I'm not sure the records, I don't believe the solicitation supports that.

[00:23:26] Speaker 03:
What about salient characteristics?

[00:23:30] Speaker 03:
That's something he argued to us.

[00:23:31] Speaker 03:
He argued to us salient characteristic six in its statement that data migration is necessary.

[00:23:38] Speaker 03:
What is your response to that in particular?

[00:23:41] Speaker 07:
So yes, characteristic six, I believe, refers to an Olympus migration.

[00:23:46] Speaker 07:
And some sites in attachment 13 to the solicitation reference that

[00:23:55] Speaker 07:
program software.

[00:23:59] Speaker 07:
But keep in mind that these VA medical facilities are able to, and I can see that it sounds like you'd only be using it if you were a VA medical center that had that type of system in place at contract inception.

[00:24:16] Speaker 07:
But keep in mind that a VA medical center doesn't need to order every item off of the price schedule.

[00:24:22] Speaker 07:
It can choose which it needs and how many it needs based on, for example, what system it has in place, or also based, for example, on the number of endoscopic procedures it needs to conduct each year and how many beds and systems are needed.

[00:24:37] Speaker 03:
One other question, and I know that Judge Stark has some questions for you as well.

[00:24:42] Speaker 03:
What about this patent versus latent ambiguity situation?

[00:24:46] Speaker 03:
Are you contending that it's at least a patent ambiguity?

[00:24:50] Speaker 07:
No.

[00:24:51] Speaker 07:
No, Your Honor.

[00:24:52] Speaker 07:
We think the solicitation is clear that there is no requirement that the VA limit itself to only allowing 24 VA medical centers to order on a per year basis or on a base year plus options basis.

[00:25:06] Speaker 07:
It's clear that these are estimates.

[00:25:08] Speaker 07:
And these estimates do not limit the discretion of the VA as to how it chooses to use this contract.

[00:25:14] Speaker 07:
And it doesn't matter whether or not in the back.

[00:25:17] Speaker 01:
If we reject that and we think it's ambiguous,

[00:25:20] Speaker 01:
You can still prevail if we say that ambiguity is patent as opposed to latent, right?

[00:25:25] Speaker 01:
Yes, Your Honor.

[00:25:27] Speaker 01:
Help me on that question.

[00:25:30] Speaker 01:
What is it that is obvious and glaring about any inconsistency?

[00:25:35] Speaker 01:
I recognize you don't think there's any inconsistency, but if I think there is some,

[00:25:39] Speaker 01:
Why would I call that inconsistency so obvious and glaring that it's patent as opposed to something lesser or latent?

[00:25:46] Speaker 07:
So the starting point, I think, is Appendix 10926, which says that this contract is VA wide.

[00:25:53] Speaker 07:
It then defines VA wide is given shorthand as national.

[00:25:57] Speaker 07:
which I think my friend is focused on the national piece, but it says VA-wide.

[00:26:02] Speaker 07:
It also says that the 24 sites are estimates and that actual quantities may differ.

[00:26:06] Speaker 07:
And it says that repeatedly in response to Q&As, which, as I said, are a formal part of the solicitation.

[00:26:12] Speaker 07:
So at the very least, with respect to the possibility of a patent ambiguity, again, we don't believe there is one, but if the court disagrees, that is enough to put a prospective offeror on notice

[00:26:24] Speaker 07:
that with perhaps UTEC's seemingly internal understanding of what systems are being used where and what's been awarded to whom, that it may be more than just 24.

[00:26:36] Speaker 01:
Do we have to think about if they had asked questions, what kind of useful answers, if any, they would have gotten?

[00:26:43] Speaker 01:
Because I have to tell you, when I look at the four pages of Q&A here,

[00:26:47] Speaker 01:
you know, what's the quantity?

[00:26:49] Speaker 01:
And you quoted some of it 24 annually.

[00:26:50] Speaker 01:
That seems ambiguous to me also.

[00:26:53] Speaker 01:
So if I think they should have asked questions, but they would have gotten the same ambiguous answers these others got, where does that leave me?

[00:27:01] Speaker 07:
So I think to go to one part of your question, Your Honor, and I'll try to answer the whole thing.

[00:27:07] Speaker 07:
Keep in mind that we're not talking about what the VA will do.

[00:27:10] Speaker 07:
It's what the VA is permitted to do under this contract.

[00:27:13] Speaker 07:
And the estimation language gives it the right to order more than 24 sites.

[00:27:21] Speaker 07:
And so I understand your concern about the Q&A being ambiguous.

[00:27:25] Speaker 07:
But our view is that, OK, maybe it's ambiguous as to what the VA will order.

[00:27:31] Speaker 07:
But it is not as ambiguous as to what the VA may order.

[00:27:34] Speaker 06:
The problem I have is maybe I'm the only one here who has this issue.

[00:27:40] Speaker 06:
But to me, the salient question is one, the one you just explored with Judge Stark.

[00:27:46] Speaker 06:
But the other question is whether or not there's something in the contract

[00:27:50] Speaker 06:
that requires or suggests that it's going to be the same 24 sites for each of the five years.

[00:27:58] Speaker 06:
Can you sort of address that?

[00:28:00] Speaker 06:
Was the VA, whether they were talking about 24 sites or 100 sites, is there something in the contract that suggests it's the same sites?

[00:28:07] Speaker 06:
Because as I read some of the backup material, it appears that there are different sites, or at least allows for different sites in each year.

[00:28:18] Speaker 07:
Well, Your Honor.

[00:28:20] Speaker 07:
So I'm not able to point you to an appendix page that says, this is going to be more than 24 sites, or does not need to be the same 24 sites per year.

[00:28:31] Speaker 07:
So concede that point.

[00:28:32] Speaker 07:
But first of all, there is an attachment, attachment 13, that lists some 150 sites.

[00:28:37] Speaker 07:
Why would the agency have attached that if it weren't possible that more than the same 24 were going to order off of this contract?

[00:28:44] Speaker 07:
And then there's the point that these are estimates.

[00:28:46] Speaker 07:
So I think that, again, and this to some extent goes to my response to Judge Stark's question, the point is that there's nothing here that limits what the agency may do with this in terms of going beyond an estimate of 24 sites.

[00:29:00] Speaker 07:
And so because of that, there is no such limitation despite the absence of an explicit statement that we are likely or may or could go beyond this.

[00:29:12] Speaker 01:
As part of what's going on here, any site that does choose to take advantage of what's being offered here, the EIS system in year one, the winner of this contract has to agree to make that available for each of five years to that particular site, assuming the government exercises its right to renew.

[00:29:35] Speaker 01:
That is, it's a software system.

[00:29:37] Speaker 01:
you all didn't want VA sites who opted in in year one to be cut off in year two.

[00:29:42] Speaker 01:
That's part of what the five years means.

[00:29:45] Speaker 01:
Is that fair?

[00:29:47] Speaker 07:
Yes.

[00:29:47] Speaker 07:
So the option is that the government's discretion.

[00:29:51] Speaker 07:
And so that would give the government the ability to continue ordering at the prices quoted.

[00:29:56] Speaker 01:
So my understanding of what you're saying the contract meant is, let's say all 24 legacy sites did opt in in year one.

[00:30:05] Speaker 01:
And they all want to continue for five years.

[00:30:07] Speaker 01:
And the government exercises its right.

[00:30:09] Speaker 01:
Those 24 all get to do it.

[00:30:11] Speaker 01:
Probation can't cut them off.

[00:30:14] Speaker 01:
Your point, though, is we, the government, can still have more than those original 24 legacy sites also opt in in year two, in year three, even in year one.

[00:30:25] Speaker 01:
Is that right?

[00:30:26] Speaker 07:
Yes, that's right, Your Honor.

[00:30:27] Speaker 07:
And keep in mind that there's a contract administration piece here for the contracting officer.

[00:30:31] Speaker 07:
contracting office representative at the central level sort of understanding which sites are taking using this and what.

[00:30:37] Speaker 01:
Can you help me on section 4.3 this legacy data migration services it appears at least 10 622 and I think elsewhere.

[00:30:46] Speaker 01:
I think what you're telling me is yes the winner of this solicitation has to at minimum

[00:31:00] Speaker 01:
be willing to migrate the 24 legacy sites, and there are 24, to at least allege that there's 24 legacy sites.

[00:31:08] Speaker 01:
And since we're on a motion to dismiss, I think I have to take that as true.

[00:31:11] Speaker 01:
Would you agree with that?

[00:31:16] Speaker 01:
It's a small detail.

[00:31:19] Speaker 01:
It's at page 60 where their complaint alleges it's 24.

[00:31:22] Speaker 01:
I would think we have to take that as true, but put that aside.

[00:31:27] Speaker 06:
Can I just ask you a sub-question of that?

[00:31:28] Speaker 06:
Is data migration possible in the 18 sites where there's no provider?

[00:31:39] Speaker 07:
I am not sure of the answer to that question based on the records, Your Honor.

[00:31:43] Speaker 06:
Well, if the answer is no, that blows up the whole notion that this is part of the 24 that you were talking about.

[00:31:48] Speaker 06:
But you don't know the answer to that.

[00:31:50] Speaker 06:
Right.

[00:31:50] Speaker 01:
I'm sorry, Your Honor.

[00:31:52] Speaker 07:
I don't.

[00:31:53] Speaker 01:
Thank you.

[00:31:55] Speaker 01:
On 4.3, what I understand you to be saying is 4.3 at 10-6-22 means that probation, since they ended up winning the contract,

[00:32:08] Speaker 01:
has to be, is agreeing to provide the migration services described at 4.3 to those legacy sites.

[00:32:16] Speaker 01:
That is at least part of what they're taking on as their contractual obligation.

[00:32:23] Speaker 01:
Is that fair?

[00:32:24] Speaker 07:
Yes, with a slight refinement.

[00:32:26] Speaker 07:
So all offerors needed to

[00:32:30] Speaker 07:
pose a solution that included that, and the government was free to order it as needed.

[00:32:36] Speaker 07:
But it didn't need to order every line item off of the contract.

[00:32:39] Speaker 01:
And so I think maybe the dispute here, it's becoming slightly clearer to me, is I think the appellant agrees that that's at least part of what the solution provided by probation has to be.

[00:32:53] Speaker 01:
But they're saying that's the full total of the contract, and the government can't

[00:32:59] Speaker 01:
give more than that, because you only solicited for that, for the legacy, for the 24, and that's it, and no more.

[00:33:07] Speaker 01:
And you're saying that was part of it, but we can go beyond that, and we reserved our rights to go beyond that.

[00:33:13] Speaker 07:
Exactly.

[00:33:13] Speaker 07:
There's no cardinal change here, because the contract has not been materially altered through amendment of the contract or otherwise.

[00:33:22] Speaker 07:
Because the solicitation always contemplated the possibility of going beyond 24 sites, if you assume the complaint to be correct, the 24 legacy sites.

[00:33:30] Speaker 07:
But whatever the case may be, the estimate of 24 could be exceeded.

[00:33:37] Speaker 01:
One more?

[00:33:38] Speaker 01:
Just one more.

[00:33:38] Speaker 01:
Sorry.

[00:33:39] Speaker 01:
Of course.

[00:33:40] Speaker 01:
We have described a latent ambiguity as a hidden or a concealed defect, which is not apparent on the face of the document.

[00:33:49] Speaker 01:
It took me a lot to understand your position on the contract.

[00:33:53] Speaker 01:
Why shouldn't I say, if there's ambiguity here, that it's latent?

[00:33:57] Speaker 01:
That is, it's hidden or concealed and not apparent on the face of the solicitation.

[00:34:02] Speaker 07:
So in my mind, Your Honor, latent ambiguity is an ambiguity that only becomes clear in the course of contract performance, meaning that

[00:34:12] Speaker 07:
you couldn't have known on the day of the solicitation that it was ambiguous because it was so, as you say, concealed that the conflict only became clear later through performance.

[00:34:26] Speaker 07:
So our view is that this is not that situation because while my friend says, OK, well, it only became clear later that they were going to go beyond 24, in fact,

[00:34:40] Speaker 07:
This is our point about patent ambiguity.

[00:34:42] Speaker 07:
It would be at most patently ambiguous, because as I've recited, there are several places in the solicitation that suggest that the VA is free to go beyond the 24 sites.

[00:34:56] Speaker 07:
And so the existence of those explicit statements in the solicitation include the finding of a patent ambiguity, because those statements go directly to the problem, alleged problem, that UTEC has identified.

[00:35:10] Speaker 06:
And I think you would possibly add to that this sheet that confirms that you're talking about potentially national nationwide.

[00:35:21] Speaker 07:
Right.

[00:35:21] Speaker 07:
And the VA why.

[00:35:22] Speaker 07:
The statement of VA why and the preface of the statement of work as well, Your Honor.

[00:35:26] Speaker 06:
Thank you.

[00:35:27] Speaker 06:
Why don't we get your friend on your side.

[00:35:30] Speaker 07:
Could I please, Your Honor?

[00:35:31] Speaker 07:
I just wanted to get to something that Judge Cunningham asked about.

[00:35:33] Speaker 07:
I didn't have a chance earlier.

[00:35:35] Speaker 07:
You asked about the question of a definite quantity, a definite delivery, a definite quantity contract.

[00:35:40] Speaker 07:
I want to clarify something.

[00:35:41] Speaker 07:
This is why I'm doing this well beyond my time.

[00:35:44] Speaker 07:
So I read this as being what's called a requirements contract.

[00:35:47] Speaker 07:
I read this as being what's called a requirements contract.

[00:35:51] Speaker 07:
That's not what the briefs say.

[00:35:54] Speaker 07:
That's slightly different from an IDIQ.

[00:35:57] Speaker 07:
Generally speaking, I don't think this is going to go to the court's decision, but because you asked about it.

[00:36:03] Speaker 07:
An IDIQ identifies minimums that the government must purchase.

[00:36:07] Speaker 07:
And beyond that, the government can decide what it wants to order.

[00:36:10] Speaker 07:
A requirements contract is a type of contract where the government agrees to get all services identified in the contract from a given offeror.

[00:36:20] Speaker 07:
And is the existence of that requirement provides consideration.

[00:36:23] Speaker 07:
So because our brief is, shall we say, not clear about this at least, I just wanted to point that out again.

[00:36:31] Speaker 07:
I personally have dealt with cases before this court that went into the difference between these two.

[00:36:35] Speaker 07:
So I was attuned to it.

[00:36:37] Speaker 07:
And I'm happy to answer any questions.

[00:36:39] Speaker 07:
But I just want to point that out.

[00:36:40] Speaker 06:
Let's hear from me.

[00:36:42] Speaker 07:
Thank you.

[00:36:58] Speaker 00:
Good morning, may please the court.

[00:36:59] Speaker 00:
Alex Hontos for probation.

[00:37:01] Speaker 00:
In the short time I have available, I may just give the court some sites as to this patent ambiguity issue.

[00:37:07] Speaker 00:
Appendix 10-610 refers to this IDIQ contract, which task orders will be placed off of.

[00:37:18] Speaker 00:
Appendix 10-618 refers to a national contract.

[00:37:24] Speaker 00:
Appendix 10-620 talks about contract ordering process is decentralized and will use ordering officers.

[00:37:34] Speaker 00:
And the same site talks about tasks under this contract shall be performed, quote, at VHA facilities throughout the United States and all of its territories.

[00:37:43] Speaker 00:
In addition, 10945 reflects cost sheets, which show that expansive ordering would be available under this, and 10905

[00:37:57] Speaker 00:
is the Q&A that has already been discussed that goes on for several pages.

[00:38:01] Speaker 00:
The bottom line is folks asked questions about the quantities that were needed under this contract.

[00:38:08] Speaker 00:
And when folks are asking questions, that is great evidence for this court to determine that there was some confusion.

[00:38:16] Speaker 01:
Can I ask you about another?

[00:38:18] Speaker 01:
All those sites are very helpful.

[00:38:20] Speaker 01:
12-3-15.

[00:38:21] Speaker 01:
It's, I think, confidential, so I won't go into the details unless you say it's okay.

[00:38:27] Speaker 01:
But it appears to me to be additional Q&A where the government is reaching out to probation in connection with whether they're going to award the contract.

[00:38:38] Speaker 01:
And it seems to be further sort of confusion between the government and probation even as to what the quantity

[00:38:47] Speaker 01:
is here.

[00:38:48] Speaker 01:
Are you familiar with 12-315 and those three questions?

[00:38:51] Speaker 01:
And does it have some relevance?

[00:38:53] Speaker 01:
If so, even if you speak in generalities, can you help me understand the relevance?

[00:38:56] Speaker 00:
Yeah, I'm happy to address that.

[00:38:58] Speaker 00:
Again, goes to the question before the court.

[00:39:02] Speaker 00:
Was there a patent ambiguity as to quantities or not?

[00:39:04] Speaker 00:
The answer is absolutely at a minimum there was a patent ambiguity.

[00:39:08] Speaker 00:
Now, the government's position is

[00:39:10] Speaker 00:
This is not ambiguous, because it's nationwide.

[00:39:13] Speaker 00:
But what the protestor has to show, to avoid the blue and gold fleet rule, is that the ambiguity that we've all been talking about for some time is latent.

[00:39:22] Speaker 00:
And that cannot be shown.

[00:39:24] Speaker 00:
People were asking about the question.

[00:39:25] Speaker 00:
There was back and forth with the government.

[00:39:27] Speaker 00:
There are multiple places in the solicitation that reflect that there was some concisely

[00:39:33] Speaker 01:
Because you're out of time.

[00:39:34] Speaker 01:
Tell me what this adds to that, 12-3-15.

[00:39:37] Speaker 00:
I think it shows continued confusion about the quantities available.

[00:39:43] Speaker 00:
And again, if we have confusion about that, if there needs to be further dialogue, that's more evidence that this was a pain in the ass.

[00:39:50] Speaker 01:
It looks to me like probation's understanding here was the same as the protesters, that it's only the same 24 sites every year.

[00:39:59] Speaker 01:
Am I misreading it?

[00:40:00] Speaker 00:
So that goes to the question before the court.

[00:40:04] Speaker 00:
Provations understanding at the time might have been the exact same as the protesters.

[00:40:09] Speaker 00:
That does not mean Blue and Gold Fleet saves the protesters.

[00:40:12] Speaker 01:
I get that it doesn't save them on Blue and Gold maybe, but as a factual matter, are you agreeing that probation did have the same understanding?

[00:40:20] Speaker 01:
as the protester is arguing here?

[00:40:22] Speaker 00:
Yeah, I can only agree to what's in the record there.

[00:40:24] Speaker 00:
I can agree that that dialogue happened and that it is what it purports to be.

[00:40:28] Speaker 01:
It is consistent with the reading that the protester is reading of the solicitation.

[00:40:34] Speaker 01:
Is that what you're acknowledging?

[00:40:36] Speaker 00:
I'm acknowledging that dialogue.

[00:40:37] Speaker 00:
Yes, Your Honor.

[00:40:39] Speaker 03:
I still don't think I understand the answer to Judge Start's question.

[00:40:42] Speaker 03:
Are you acknowledging that the dialogue occurred or are you acknowledging that probation had the same interpretation as

[00:40:50] Speaker 03:
interpretation that was described by Poulsen Council.

[00:40:52] Speaker 00:
So I don't know that I can say yes to the latter bit, because there's a lot more that we disagree with a lot, frankly, that protesters articulated here and in the briefs and then in the course of this.

[00:41:02] Speaker 00:
So I can agree that the dialogue occurred, and I can agree that someone at probation had that understanding reflected in the record provision that Judge Stark reflected.

[00:41:15] Speaker 00:
I think where you go with that is that gets you back to a patent ambiguity at best.

[00:41:21] Speaker 00:
And that's where Blue and Gold Fleet applies here.

[00:41:24] Speaker 00:
I know I'm way over my time.

[00:41:26] Speaker 00:
May I offer one other point?

[00:41:28] Speaker 00:
OK.

[00:41:29] Speaker 00:
OK.

[00:41:29] Speaker 00:
It's the Percipian AI en banc decision that this court is well familiar with.

[00:41:34] Speaker 00:
I think you should take a look at that decision and in particular

[00:41:38] Speaker 00:
This is at page 1243, where Percipient talks about any issue raised.

[00:41:46] Speaker 00:
It says, regardless of the type of challenge brought, one must be an actual or prospective offeror.

[00:41:51] Speaker 00:
So when we think about the cardinal change argument, I think Percipient may be relevant to your analysis of statutory standing on that.

[00:41:59] Speaker 00:
Thank you.

[00:42:02] Speaker 06:
All right, we're going to try to keep it even.

[00:42:03] Speaker 06:
So we'll rest you over your time.

[00:42:06] Speaker 06:
But we'll give you six minutes for rebuttal, which hopefully you will not need.

[00:42:10] Speaker 06:
We'll give you six minutes for rebuttal to try.

[00:42:19] Speaker 06:
But since I've been so generous, let me ask the first question, which is, I thought you acknowledged below that no migration was required for these 18 sites where there is no provider.

[00:42:31] Speaker 02:
No, Your Honor, I think that actually is a misunderstanding.

[00:42:34] Speaker 02:
These 18 sites are sites where the legacy systems were in effect.

[00:42:41] Speaker 02:
It's just that there was no current contractor.

[00:42:43] Speaker 02:
In other words, if you went in and got an endoscope done on you, it was done according to the legacy procedure.

[00:42:49] Speaker 02:
That's what happened.

[00:42:50] Speaker 02:
And thank you for asking.

[00:42:51] Speaker 02:
I was going to point that out.

[00:42:53] Speaker 02:
All right, by the way, I understand that you all are allowed on appeal, based upon the precedent of this court, to make findings regarding paid and related ambiguity on appeal.

[00:43:04] Speaker 02:
However, honestly, this seems to be a case that cries out for lower court fact finding.

[00:43:10] Speaker 02:
And Judge Horn is so good at that.

[00:43:12] Speaker 02:
So please do get a consideration to whether she be remand for that purpose.

[00:43:17] Speaker 06:
I've got a lot of cases this week, but didn't she say this was blue and gold applied?

[00:43:22] Speaker 02:
She did say that blue and gold applied, yeah.

[00:43:23] Speaker 06:
That means that she concluded there was a Peyton ambiguity.

[00:43:26] Speaker 06:
If there was an ambiguity, it was Peyton and not Layton, didn't she?

[00:43:30] Speaker 02:
That's a fair statement.

[00:43:31] Speaker 06:
OK, so she's already this wonderful judge that you just referred to is already considered that issue.

[00:43:39] Speaker 06:
Yes, I do love her.

[00:43:39] Speaker 02:
Before this case, she decided five on her own, my favor.

[00:43:44] Speaker 02:
Let me give you some citations to the record.

[00:43:48] Speaker 02:
The most, by the way, I'm reading to you from pages 5 through 14 of my brief.

[00:43:54] Speaker 02:
And I think every question that you asked before is a question I could have answered if I'd had that information at my fingertips.

[00:44:00] Speaker 02:
Now I do.

[00:44:01] Speaker 02:
On page 9 of the brief,

[00:44:03] Speaker 02:
I refer to salient characteristic six, quote, must include data migration now.

[00:44:09] Speaker 02:
This is very important because this is part of source selection.

[00:44:13] Speaker 02:
This is not part of the schedule in section B of the solicitation about what the contractor has to do.

[00:44:18] Speaker 02:
This has to do with choosing the contractor.

[00:44:22] Speaker 02:
The contractor can be chosen only if the salient characteristics are met, including salient characteristic 6.

[00:44:28] Speaker 02:
So on appendix page 10-6-19 and 10-0-0, sorry, 10-0-1-6, and throughout the whole solicitation and even the

[00:44:44] Speaker 02:
plan, the procurement plan, salient characteristic six consistently says that, quote, you must include data migration in the performance of this contract.

[00:44:55] Speaker 02:
This is completely clear to anybody who's familiar with this plan of work.

[00:44:57] Speaker 01:
But what if anything can you point to?

[00:44:59] Speaker 01:
I think that much is agreed that that has to be part of what the winner performs.

[00:45:05] Speaker 01:
But your contention is it's unambiguous

[00:45:09] Speaker 01:
that that's the full extent of what's being awarded.

[00:45:12] Speaker 01:
What can you point to that helps us see the contract that way?

[00:45:16] Speaker 02:
I can point to appendix page 10, 019 and 20, appendix page 10, 622, appendix page 10, 798, and appendix page 10, 930, all of which say that the contractor will

[00:45:35] Speaker 02:
migrate four years of prior exams from legacy Olympus ENDO work systems to the new IAS at each corresponding VAMC in accordance with specific task orders within a six-month period from the start of the clinical usage go live date.

[00:45:53] Speaker 02:
That is

[00:45:54] Speaker 02:
the beginning, middle, and end of the argument that it was only on a procurement at those 24 legacy sites, because those are the only sites where you could do that.

[00:46:07] Speaker 01:
The only sites where you could do that, but there is 130 or so other VA sites that give endoscopy exams and need to organize the results.

[00:46:16] Speaker 01:
And what can you point to that says the VA was not soliciting for an EIS system?

[00:46:22] Speaker 01:
that could potentially be used by all of those sites as well?

[00:46:26] Speaker 02:
Well, again, the salient characteristic six says you must be able to do this or you're disqualified.

[00:46:32] Speaker 02:
And the fact is, and this is reflected in the record, that at the other sites, the other 57 sites approximately, that Endosoft, my client, UTEC, was performing, that the awardee does not have the ability to migrate that data.

[00:46:48] Speaker 02:
They can't.

[00:46:49] Speaker 02:
They can't migrate the data.

[00:46:51] Speaker 02:
And that's true for the other sites as well.

[00:46:53] Speaker 02:
Only the sites where they can migrate to their own sites, about 30.

[00:46:58] Speaker 02:
And also the sites that were the legacy sites, because there's a special tool that allows people to do that.

[00:47:04] Speaker 01:
Are you acknowledging that the contract, at least unambiguously, was offered to the probation, was available for the probation sites that were probation sites before this all began?

[00:47:15] Speaker 02:
No, because the contractor couldn't be selected unless it could do the data migration, quote, from legacy Olympus and a work system.

[00:47:24] Speaker 01:
I guess we're going in circles.

[00:47:26] Speaker 01:
If they could do the 24 legacy sites,

[00:47:29] Speaker 01:
And they also happen to be probation and can do the probation 30 sites.

[00:47:34] Speaker 01:
This contract was clearly solicited for them to be able to do at least the 24 plus the 30, right?

[00:47:41] Speaker 01:
You have to concede that.

[00:47:42] Speaker 02:
I don't, because that's not what the solicitation says.

[00:47:44] Speaker 02:
In addition to the two-part solicitation that I just quoted, I also refer you to appendix page 10, 027 and 8, page 10, 631, page 10, 807,

[00:47:58] Speaker 02:
and page 10, 939.

[00:48:01] Speaker 02:
And in all those cases, the performance requirements for each site include, number three, legacy data migration services from those same legacy Olympics end-of-work systems.

[00:48:16] Speaker 02:
Legacy means

[00:48:18] Speaker 02:
from the Olympus systems.

[00:48:20] Speaker 02:
That's what legacy means.

[00:48:23] Speaker 02:
In addition to that.

[00:48:24] Speaker 06:
I know I'm missing something, but I don't understand.

[00:48:27] Speaker 06:
If that's a floor, why is that a ceiling?

[00:48:31] Speaker 06:
They have to, at a minimum, do this because that's required to some of the sites that are going to be in the pool.

[00:48:36] Speaker 06:
But why does that not allow for the argument the government is making?

[00:48:42] Speaker 06:
That's a floor, not a ceiling.

[00:48:44] Speaker 02:
No, because this is a performance requirement.

[00:48:46] Speaker 02:
It's labeled performance requirement.

[00:48:48] Speaker 02:
Performance requirement means it's required for performance.

[00:48:50] Speaker 02:
That's what the words are.

[00:48:52] Speaker 03:
It's part 14 of the statement of words.

[00:49:00] Speaker 03:
as opposed to a ceiling.

[00:49:01] Speaker 06:
Because we know that some of those sites are going to be included.

[00:49:03] Speaker 06:
So you've got to, at minimum, be able to do those.

[00:49:06] Speaker 06:
But that doesn't preclude other sites.

[00:49:08] Speaker 02:
That's not how anybody read this.

[00:49:11] Speaker 02:
That's not how anybody involved read this.

[00:49:13] Speaker 02:
The reason why my client filed a protest 10 days after learning from an internal government employee that it was spreading beyond the 24 sites is because my client, like the awardee, did not read it that way, Your Honor.

[00:49:26] Speaker 02:
Nobody read it that way.

[00:49:28] Speaker 02:
That's not what requirement means.

[00:49:29] Speaker 02:
It's not what the word requirement means.

[00:49:31] Speaker 03:
Because when people were confused potentially, they actually asked a question to try to get some clarification about what would be covered.

[00:49:39] Speaker 02:
I mean, you can go back and forth and back and forth about those questions and answers.

[00:49:43] Speaker 02:
I think that Judge Stark got it right.

[00:49:46] Speaker 02:
People somehow had some kind of nervousness about this, maybe.

[00:49:51] Speaker 02:
I don't know.

[00:49:52] Speaker 02:
And they asked amorphous questions, and they got very amorphous answers.

[00:49:56] Speaker 02:
And that didn't solve the problem.

[00:49:57] Speaker 02:
So where does that leave you?

[00:50:00] Speaker 02:
The other people did what the government is claiming we should have done, and they didn't get an answer.

[00:50:06] Speaker 02:
So where does that leave you?

[00:50:08] Speaker 02:
I'd like to also give you a couple more sites on this subject.

[00:50:12] Speaker 06:
OK, let's try to wind it up unless we have questions, because we're way over time.

[00:50:17] Speaker 02:
Yes.

[00:50:18] Speaker 02:
I just want to make sure that I've given the best answer I can to Judge Cunningham's question, which is why is this not merely a floor?

[00:50:28] Speaker 03:
That was Judge Prost's question, but I have the same question as well, so I want to know the answer.

[00:50:33] Speaker 02:
Thank you.

[00:50:34] Speaker 02:
So continuing, on page 1072, page 10699, page 10875, and page 11006, it says technical proposal, minimum technical requirement,

[00:50:51] Speaker 02:
must include data migration, the following errors must be addressed in your proposal, legacy data migration.

[00:50:57] Speaker 02:
Then it goes on to say, under the heading Attachment D, minimum technical requirements, MTRs, Appendix 10.

[00:51:07] Speaker 03:
Let me just ask you one final question, then I think you can

[00:51:15] Speaker 06:
You can give us the pages of your brief, and then we can look at them.

[00:51:18] Speaker 03:
Do you have any page that you can cite to us where it says it's a maximum of 24?

[00:51:24] Speaker 03:
You got anything in the record you can cite as you stand here where it says it's a maximum of 24?

[00:51:30] Speaker 02:
As answer that as best I can, Your Honor.

[00:51:35] Speaker 02:
Let me give me a moment, and I'll give you that information.

[00:51:37] Speaker 03:
No, I mean, that's a yes or no.

[00:51:39] Speaker 03:
Do you know anywhere in the record where it says it's a maximum of 24?

[00:51:42] Speaker 03:
That's all I wanted to answer.

[00:51:44] Speaker 02:
Yes.

[00:51:45] Speaker 02:
If you go through the facilities list, that's where you find that there are 24 legacy Olympus endowork systems sites.

[00:51:59] Speaker 02:
That's on attachment 13.

[00:52:01] Speaker 02:
That's the answer to your question, Your Honor.

[00:52:04] Speaker 05:
OK.

[00:52:04] Speaker 05:
I think we're almost there.

[00:52:05] Speaker 02:
All right.

[00:52:06] Speaker 02:
Can I just give you a couple more sites to the record?

[00:52:09] Speaker 05:
A couple.

[00:52:10] Speaker 02:
OK.

[00:52:10] Speaker 02:
Thank you.

[00:52:11] Speaker 02:
I appreciate it.

[00:52:13] Speaker 02:
Minimum technical requirements, salient characteristic 6, must include data migration.

[00:52:20] Speaker 06:
We've already been through that one.

[00:52:21] Speaker 02:
That's a different one, but OK.

[00:52:24] Speaker 06:
Are you reading from your brief at a certain page?

[00:52:27] Speaker 02:
Yes, I'm reading from the brief at pages 9 and 10.

[00:52:30] Speaker 06:
OK, well, we've already read that, but we want to make sure to take

[00:52:36] Speaker 06:
close look at those.

[00:52:38] Speaker 06:
Thank you.

[00:52:39] Speaker 02:
Okay.

[00:52:40] Speaker 06:
Other points?

[00:52:40] Speaker 06:
Thank you.

[00:52:41] Speaker 06:
All right.

[00:52:41] Speaker 06:
We thank both sides.

[00:52:42] Speaker 06:
The case is submitted.

[00:52:44] Speaker 02:
I appreciate the extra time so much, Your Honor.

[00:52:47] Speaker 02:
Thank you all.