[00:00:00] Speaker 04:
I'm Timothy Sullivan, Counsel to Appellant American Auto Logistics.

[00:00:05] Speaker 04:
For everyone's benefit, to avoid acronyms, I'll refer to them as American during our time together this morning.

[00:00:11] Speaker 04:
This is a bid protest relating to the agency's evaluation of proposals for a contract worth nearly a billion dollars over five years.

[00:00:19] Speaker 04:
The contract was awarded by the U.S.

[00:00:21] Speaker 04:
Transportation Command, and it covers the shipment of vehicles owned by DOD personnel as they move around the world.

[00:00:28] Speaker 04:
This contract requires the contractor to create a complex logistics network.

[00:00:33] Speaker 04:
Under the evaluation methodology that was laid out in the solicitation, all five offerors that submitted proposals were deemed acceptable by the agency.

[00:00:41] Speaker 04:
And the agency then evaluated their proposals for past performance and price, which were considered to be of equal weight in the award decision in this best value procurement.

[00:00:52] Speaker 04:
In other words, the source election decision was a trade-off between past performance and price.

[00:00:59] Speaker 05:
Part of your argument is that this separate corporation, Global Europe, was not identified in the proposal as a separate corporation, correct?

[00:01:10] Speaker 04:
Your Honor, it goes beyond that.

[00:01:12] Speaker 04:
It wasn't identified at all.

[00:01:14] Speaker 04:
We found out over the course of the proceedings at the GAO and at the Court of Federal Claims that it was a separate corporation, but it wasn't identified in the proposal submitted by International... Well, but the proposal did identify their European operations and describe how the people who were going to work on this had worked on the European operations, right?

[00:01:35] Speaker 04:
It did, Your Honor.

[00:01:36] Speaker 04:
But, Your Honor, the way it described that was branch offices.

[00:01:40] Speaker 04:
And it never committed or specified the resources, the personnel, the facility.

[00:01:45] Speaker 05:
But what I'm trying to get at is does it really make a difference whether it's identified as branch offices or a division or a separate corporation?

[00:01:54] Speaker 05:
Is that fatal that it was not identified as a separate corporation?

[00:01:59] Speaker 04:
No, Your Honor, I don't think it is.

[00:02:01] Speaker 04:
Even just identifying as branch offices, we have the same problem.

[00:02:04] Speaker 04:
They didn't identify.

[00:02:05] Speaker 04:
This company has five or six branch offices throughout Europe.

[00:02:09] Speaker 04:
They did not identify which branch office it was going to be, what personnel, what facilities, what resources were going to be committed.

[00:02:16] Speaker 04:
And that's the standard that's been set up by the GAO.

[00:02:19] Speaker 04:
You're saying the level of detail wasn't sufficient?

[00:02:23] Speaker 04:
Yes, Your Honor, that's true.

[00:02:24] Speaker 04:
There was no detail.

[00:02:25] Speaker 01:
What about the past performance questionnaires?

[00:02:27] Speaker 01:
There was detail in those questionnaires, was there not?

[00:02:29] Speaker 04:
There was, Your Honor.

[00:02:31] Speaker 04:
And one of the details was that these two contracts that were submitted as past performance information on behalf of TGAL,

[00:02:39] Speaker 04:
was performed by a company that wasn't mentioned in the proposal.

[00:02:44] Speaker 04:
That was the problem.

[00:02:46] Speaker 04:
And there was nothing in the proposal that showed how TGAL, global, trans-global, how they were related to each other.

[00:02:55] Speaker 04:
And then there was nothing in the proposal at all that mentioned the relationship between those two on the one hand and trans-global auto logistics Europe on the other.

[00:03:02] Speaker 01:
Well, is it your argument that you have to have that kind of specificity in the proposal, even where?

[00:03:09] Speaker 01:
the past performance questionnaires disclose the details?

[00:03:12] Speaker 04:
Yes, Your Honor.

[00:03:13] Speaker 04:
The proposal had to lay it out.

[00:03:15] Speaker 04:
It never mentioned which branch offices were going to be performing this contract for them in Europe, didn't it all?

[00:03:23] Speaker 04:
And that's what the GAO has required for years.

[00:03:25] Speaker 04:
In fact, the agency was well aware of this.

[00:03:29] Speaker 04:
In the record, we talk about how they sent out evaluation notices to international saying,

[00:03:36] Speaker 04:
Let us know.

[00:03:37] Speaker 04:
It doesn't look like we don't have a commitment between global on the one hand and trans global on the other.

[00:03:42] Speaker 04:
We need information on that, which they provided.

[00:03:45] Speaker 04:
So that was discussed, but not a piece, not a word was addressed to trans global autologistics Europe.

[00:03:51] Speaker 04:
And that's a fatal flaw.

[00:03:52] Speaker 05:
Yeah, but on 12,243, it does say that the resources of trans global logistics

[00:04:02] Speaker 05:
including workforce management facilities and all resources will be available for contract performance, right?

[00:04:08] Speaker 05:
It does, Your Honor.

[00:04:09] Speaker 05:
So if Europe had been a division rather than a subsidiary, what would have been missing there?

[00:04:17] Speaker 04:
Your Honor, the point is that that is a very broad description, and GAO has not accepted it over the years.

[00:04:25] Speaker 04:
They want to know not just your vast resources, tell us what they are.

[00:04:30] Speaker 04:
Be specific.

[00:04:30] Speaker 04:
You're writing the proposal.

[00:04:32] Speaker 04:
Don't make us guess.

[00:04:33] Speaker 04:
And in fact, the importance of this is that it was those two past performance references that were viewed by the source selection official as being the most significant and most critical in support of international past performance rating.

[00:04:47] Speaker 05:
So what you're asking us to do is to say that the contracting officer had to require more specificity than was required, right?

[00:04:57] Speaker 04:
We believe there were inadequate discussions in the sense that they didn't ask about trans-global logistics Europe.

[00:05:04] Speaker 04:
They asked about the upper levels, but not this one.

[00:05:08] Speaker 04:
And we found out, as we say, through the course of proceedings, that it was a separate corporate entity.

[00:05:13] Speaker 01:
Well, how do you know they didn't ask?

[00:05:15] Speaker 01:
I mean, when you say that, it's in the questionnaire responses.

[00:05:19] Speaker 01:
Ultimately, GAO and the CFC made findings that, in fact, there was enough information

[00:05:24] Speaker 01:
And you say, well, it wasn't up to them to give Transcom a rationale.

[00:05:29] Speaker 01:
Do you concede that had Transcom made those same findings that you wouldn't be here?

[00:05:34] Speaker 04:
If Transcom had made those same findings and actually addressed the existence of and the participation of trans global logistic Europe, we probably wouldn't be here.

[00:05:43] Speaker 04:
How could I deny that?

[00:05:44] Speaker 04:
But they didn't address it.

[00:05:46] Speaker 04:
And the court of federal claims below

[00:05:50] Speaker 04:
filled in for them what was missing in the Transcom record, which we think was inappropriate under the APA.

[00:05:57] Speaker 04:
That would be our view of this.

[00:05:59] Speaker 04:
It really is our view of this.

[00:06:02] Speaker 04:
And the fact is, in a billion dollar procurement, I can see we're blind common sense to it.

[00:06:10] Speaker 04:
You'd say, well, it was close enough.

[00:06:11] Speaker 04:
I mean, they've asked resources, but the GAO for years, in fact, twice or two or three times since

[00:06:17] Speaker 04:
Our GAO decision came down denying our protest has found that the lack of specificity in an offeror's proposal was fatal to that proposal.

[00:06:27] Speaker 04:
What case of ours has said that?

[00:06:29] Speaker 04:
I'm sorry?

[00:06:29] Speaker 04:
What case of ours has set aside procurement for lack of specificity?

[00:06:34] Speaker 04:
The Federal Circuit has not addressed this issue with respect to past performance.

[00:06:39] Speaker 04:
And in our view, Your Honor, as I believe our briefs make pretty clear,

[00:06:43] Speaker 04:
In both the issues that are before the court this morning, that is the past performance issue and the contract interpretation issue, we believe the Court of Federal Claims reached beyond the record that was before the agency as it made its evaluation decision and found in favor of the agency's action, and that violated DAP right there.

[00:07:05] Speaker 04:
They can't fill in the gaps in the agency's record.

[00:07:09] Speaker 04:
And that's why we're here today.

[00:07:11] Speaker 01:
So you believe that the court is bound by the record that was developed at TransCom and not necessarily the record that was developed before the GAO?

[00:07:21] Speaker 04:
Oh, Your Honor, on that point, absolutely it was bound by the record of TransCom.

[00:07:25] Speaker 04:
And with respect to GAO, they're bound by the statutory language, which we shared with the court in our briefs, but I've got the statute right in front of me.

[00:07:33] Speaker 04:
It says that this is 31 US CA 3556.

[00:07:38] Speaker 04:
In any such action based on a procurement or proposed procurement with respect to which a protest has been filed under this sub-chapter, the reports required by sections 3553 and 3554 of this title with respect to such procurement or proposed procurement and any decision or recommendation of the Comptroller General under this sub-chapter with respect to such procurement or proposed procurement shall be considered to be part of the agency record subject to review.

[00:08:01] Speaker 04:
So, the reports that are mentioned there.

[00:08:04] Speaker 04:
are the agency report that they file 30 days after approaches to file to the GAO.

[00:08:10] Speaker 04:
That's not involved here.

[00:08:12] Speaker 04:
And the reports to Congress if an agency doesn't follow instructions, which was not an issue here.

[00:08:18] Speaker 04:
The decision that was issued by GAO, Your Honor, as you know, is six and a half single page.

[00:08:25] Speaker 04:
They don't go outside

[00:08:26] Speaker 04:
The record that was before the agency, not at all.

[00:08:30] Speaker 05:
Part of your argument here is that there was a failure to identify Europe as a separate subsidiary as opposed to a division.

[00:08:37] Speaker 05:
Why isn't it appropriate to look at post-award material to see whether that failure was in any way prejudicial?

[00:08:46] Speaker 04:
Well, Your Honor, first of all, I would take issue with the way you phrased the issue there.

[00:08:52] Speaker 04:
They didn't identify trans global Europe at all.

[00:08:55] Speaker 04:
really in their proposal.

[00:08:56] Speaker 04:
It shows up as a reference, but it was not identified in the proposal part itself.

[00:09:00] Speaker 04:
And the going outside the record that was before the agency is simply unacceptable under the Supreme Court precedent interpreting the APA.

[00:09:11] Speaker 04:
The agency had it in front of them.

[00:09:13] Speaker 04:
They didn't do it.

[00:09:13] Speaker 05:
Yeah, but I don't think you're addressing my question, which is why can't you look at post-award evidence to see whether the failure to identify it as a separate corporation was in any way prejudicial.

[00:09:25] Speaker 04:
Because, Your Honor, it wasn't in front of the agency.

[00:09:30] Speaker 04:
It just simply was not.

[00:09:32] Speaker 04:
And in terms of prejudicial.

[00:09:34] Speaker 01:
I'm still having a hard time.

[00:09:35] Speaker 01:
The agency had the questionnaire responses, the past performance questionnaire responses.

[00:09:40] Speaker 01:
And in those responses, TGAL Europe was definitely identified, right?

[00:09:43] Speaker 04:
In the references, Your Honor.

[00:09:46] Speaker 01:
Right.

[00:09:46] Speaker 01:
So if we're talking about what was before the agency, why are you saying, well, you can look at what's before the agency, but only the parts we want you to look at?

[00:09:54] Speaker 04:
Well, Your Honor, the fact is that it was in there, but they certainly probed the reference between global and TGAL, trans-global auto-logistics, but they didn't even bother to ask about TGAL-E.

[00:10:06] Speaker 04:
They didn't ask, is this one of your branches?

[00:10:08] Speaker 04:
Is this one of your divisions?

[00:10:09] Speaker 04:
What's the relationship?

[00:10:11] Speaker 04:
What's their commitment of resources the way they did for the upper two echelons?

[00:10:15] Speaker 04:
They didn't do it.

[00:10:17] Speaker 04:
And yet those are the two references that are considered the most significant and most critical to the past performance determination, which is where the prejudice is here.

[00:10:25] Speaker 04:
This was the global past performance reference was the only relevant reference in all of international stable references.

[00:10:35] Speaker 04:
So if that doesn't work for them, then they're probably not going to get the satisfactory confidence rating that they got here.

[00:10:43] Speaker 04:
Now you're into limited confidence.

[00:10:47] Speaker 04:
And now that past performance trade-off decision is much tougher.

[00:10:51] Speaker 04:
It was tough here, trying to figure out whether past performance versus a $38 million differential in price was what was more important.

[00:11:01] Speaker 04:
But this was the entire ballgame for this procurement.

[00:11:06] Speaker 04:
And yet, not a question was asked about it.

[00:11:11] Speaker 01:
With respect to your other issue, what do you

[00:11:15] Speaker 01:
How do you articulate, in your view, the difference between a principal subcontractor and a major subcontractor?

[00:11:21] Speaker 04:
Well, Your Honor, first of all, I would start with the RFP itself.

[00:11:24] Speaker 04:
The instructions part of the RFP is where the word major came up.

[00:11:30] Speaker 04:
Submit past performance information for major subcontractors.

[00:11:35] Speaker 04:
Yet when you get into the evaluation section, which is where we are in terms of the evaluation process that we're challenging, it says that they're going to

[00:11:44] Speaker 04:
equally weight, if you will, past performance information of a principal subcontractor that performs, Your Honor, I've lost the language, but performs critical parts of the job.

[00:11:55] Speaker 04:
And there's another word in there.

[00:11:59] Speaker 04:
The court focused only on the word major in the instructions.

[00:12:03] Speaker 04:
And yet, as we looked at it, we have a company here who, at best, is going to contribute $3 to $4 million a year in work on roughly a $200 million annual budget.

[00:12:13] Speaker 04:
It's a very small percentage.

[00:12:15] Speaker 04:
And yet the entire performance decision is made based on this company's participation.

[00:12:21] Speaker 01:
So you're saying that it is a totally quantitative analysis, the amount of money, or can't it be how important is that particular activity to the overall contract?

[00:12:32] Speaker 04:
Your Honor, thank you for that question.

[00:12:34] Speaker 04:
That's exactly the argument we've been having between the parties, obviously.

[00:12:37] Speaker 04:
We think if you read the RFP as a whole, which we have to do,

[00:12:42] Speaker 04:
You have to read the word principle on the one hand and the other words on the other hand and give them all some meaning.

[00:12:47] Speaker 04:
Principle, we think, goes to the dollar amount.

[00:12:51] Speaker 04:
And with respect to the language in the RFP, we believe that the other words go to the, and I'll get the language right here, major or critical aspects.

[00:13:02] Speaker 04:
That is, that's the nature of the word.

[00:13:04] Speaker 04:
It's all three, it's all things.

[00:13:06] Speaker 04:
It's the dollar amount on the one hand and the nature of the word.

[00:13:10] Speaker 04:
That's what the RFP says.

[00:13:12] Speaker 04:
There was no indication in the record that Transcom even looked at that.

[00:13:16] Speaker 04:
The fact that someone submits a subcontractor's past performance information doesn't mean that the agency's just simply supposed to roll over and say, OK, it must be a major subcontractor or principal subcontractor.

[00:13:28] Speaker 04:
We've got to look at it.

[00:13:29] Speaker 01:
But it's still the agency's realm to make the decision as to whether they think they're sufficiently major or sufficiently principal, right?

[00:13:38] Speaker 04:
It's within their discretion, Your Honor.

[00:13:40] Speaker 04:
And if there had been a discussion of it and they'd come down on it, that would be one thing.

[00:13:44] Speaker 04:
But there wasn't.

[00:13:45] Speaker 04:
There's nothing on it.

[00:13:46] Speaker 01:
So you think the agency has to spell out every consideration that they make when they do an award?

[00:13:53] Speaker 04:
This agency went through a lot of detail in its review of the offerors that came in.

[00:13:58] Speaker 05:
What is it that says they have to spell it out?

[00:14:02] Speaker 04:
Well, Your Honor, it's a time-honored rule that agencies have time to abide by the rules in their solicitation.

[00:14:08] Speaker 05:
What's the site to the proposition that they have to address every issue?

[00:14:13] Speaker 04:
Well, Your Honor, I can't give you a site to a proposition that says they have to address every issue.

[00:14:17] Speaker 04:
But there are countless GAO decisions and claims court decisions that require agencies to abide by the terms of the RFP.

[00:14:25] Speaker 04:
And we believe that the words, principal on the one hand, and the major and critical aspects of the requirement on the other,

[00:14:36] Speaker 04:
all require addressing here.

[00:14:39] Speaker 04:
The numbers simply are too small.

[00:14:41] Speaker 01:
But didn't the Supreme Court say that really the role is to attempt to discern what the agency did, not to hold it to a particular set of phrasing in its analysis?

[00:14:55] Speaker 04:
True, Your Honor.

[00:14:56] Speaker 04:
However, in this case, there's no evidence the agency did anything, just accepted it and pushed it through.

[00:15:03] Speaker 04:
And it's the only way they got to that past performance evaluation

[00:15:06] Speaker 04:
and being able to hold international of satisfactory confidence.

[00:15:12] Speaker 04:
We wouldn't have gotten there without this.

[00:15:15] Speaker 05:
Okay.

[00:15:15] Speaker 05:
Thank you, Mr. Sullivan.

[00:15:16] Speaker 05:
We're out of time.

[00:15:17] Speaker 05:
We'll give you two minutes for rebuttal.

[00:15:19] Speaker 05:
Thank you, Your Honor.

[00:15:44] Speaker 03:
Your Honor, may it please the court.

[00:15:50] Speaker 03:
I'd like to just step back, though, and just really concentrate on what's at issue here.

[00:15:56] Speaker 03:
And this is a challenge to the single issue is to a business decision of the contracting officers and their contracting officer team at TransCom.

[00:16:05] Speaker 03:
There's been no identification of any violation of statute or regulation.

[00:16:09] Speaker 03:
In fact, the regulation is quite broad.

[00:16:11] Speaker 05:
Well, why don't you address their contention that there was a lack of specificity as to the European operation?

[00:16:16] Speaker 03:
Thank you, Your Honor.

[00:16:18] Speaker 03:
I will.

[00:16:18] Speaker 03:
The record contains several sites, and primarily I'll point to just a couple and go through those.

[00:16:24] Speaker 03:
I can give a serial list if the Court would like.

[00:16:27] Speaker 03:
But I've asked the Court to first look at A11850.

[00:16:32] Speaker 01:
When you say several sites, these are sites that you're talking about?

[00:16:36] Speaker 01:
the record that was solely before TransCom, not anything developed at the GAL or CFC?

[00:16:43] Speaker 03:
Yes, Your Honor.

[00:16:43] Speaker 03:
It's solely before TransCom in the proposal or in the past performance questionnaires that were submitted to the government for review.

[00:16:54] Speaker 03:
In their proposal, there are numerous sites.

[00:16:57] Speaker 03:
First, I don't think there's any dispute now that GAL global auto logistics is the same as TJAL.

[00:17:05] Speaker 03:
their affiliates, sister affiliates.

[00:17:07] Speaker 03:
The real issue is, is TJAL-E a separate and distinct entity from TJAL, and was the contracting officer and their team, and the expertise they've developed over the years, somehow required by the RFP or the FAR to delve into the affiliate relationships in some detail of a subcontractor?

[00:17:30] Speaker 03:
And in their proposal at 11-8-5-0,

[00:17:34] Speaker 03:
We see there's three columns on that page.

[00:17:38] Speaker 03:
On the far left, where it says GAL, Global Auto Logistics, has submitted past performance questionnaires to three customers.

[00:17:47] Speaker 03:
The required information for each past performance reference at POC is included in that figure below.

[00:17:53] Speaker 03:
In that figure, they list the three companies, Allied International Serva,

[00:17:58] Speaker 03:
which they were a sub, which I call the Canadian Forces.

[00:18:01] Speaker 03:
They essentially were doing transportation of POVs for the Canadian Forces throughout Europe.

[00:18:07] Speaker 03:
Howe Autolineers, and the second one was VW Logistics.

[00:18:12] Speaker 03:
In those past performance evaluation questionnaires that were returned to the government, and that's at 11-141-11-431, specifically, they mentioned the PGLE.

[00:18:35] Speaker 03:
For instance, on 11-1441, that is the performance review submitted by VW, contractor name, Transglobal Auto Logistics Europe.

[00:18:47] Speaker 03:
So there was a tie right there.

[00:18:49] Speaker 03:
That was part of the proposal.

[00:18:52] Speaker 03:
That's part of the proposal package.

[00:18:53] Speaker 03:
We consider the past performance evaluation returns to questionnaires returns to be part of the proposal package.

[00:19:02] Speaker 03:
Moreover, in the evaluation notice that Michael Rand mentioned.

[00:19:06] Speaker 05:
What page is that at again?

[00:19:07] Speaker 03:
I'm sorry, sir?

[00:19:07] Speaker 03:
What page?

[00:19:09] Speaker 03:
Alpha A11441, past performance questionnaire.

[00:19:15] Speaker 03:
That's the one provided by VW and GMB and company as agents for the carrier Peter Lamke.

[00:19:25] Speaker 03:
And the other page I'd like to cite to, Your Honor, would be 11431,

[00:19:31] Speaker 03:
which is the past performance questionnaire provided for the contract for Allied International.

[00:19:37] Speaker 03:
Again, that's the contract I just commonly refer to.

[00:19:40] Speaker 01:
You don't dispute that these are really the only references to TGAL-E, right?

[00:19:46] Speaker 01:
No, absolutely not.

[00:19:47] Speaker 01:
I don't think we've ever disputed that.

[00:19:48] Speaker 01:
So it's in these questionnaire responses, but they're fairly

[00:19:52] Speaker 01:
buried here.

[00:19:53] Speaker 01:
I mean, there's nothing in the agency's analysis, TransComp's analysis, that would actually point to these, right?

[00:20:02] Speaker 03:
I don't believe there is.

[00:20:03] Speaker 03:
And maybe if I looked at these in my capacity, I might not understand these.

[00:20:08] Speaker 03:
But don't forget, we're reviewing the actions of an experienced contracting officer in the transportation command who works with these contracts all the time.

[00:20:15] Speaker 03:
They obviously didn't have a question.

[00:20:17] Speaker 03:
The only question that they had was the question is, what's the relationship between GAL and TGAL?

[00:20:23] Speaker 03:
And that was when they did the evaluation notice that they sent out.

[00:20:27] Speaker 03:
And in the responses coming back at 1-2-2-4-1, 12-2-4-1, TGAL said, we'll assist GAL.

[00:20:36] Speaker 03:
I think the court mentioned that they committed the resources in a letter response back to the agency, the trans cop.

[00:20:42] Speaker 03:
And they basically lifted those same contracts

[00:20:44] Speaker 03:
And these are the types of contracts we've been performing on that shows that we can actually do this task or complete the effort that TransCom wants.

[00:20:54] Speaker 01:
Well, going to where I ended with your friend on the other side, the Supreme Court in Bowen did say the question is whether you can reasonably discern the agency's rationale.

[00:21:04] Speaker 01:
But it also specifically said that as a matter of review, the court is not supposed to

[00:21:12] Speaker 01:
substitute a rationale or provide a reasoned rationale for the agency.

[00:21:18] Speaker 01:
Where do you draw that line?

[00:21:23] Speaker 03:
Well, this is, as this court said in Glenn Defense, a past performance review is one of those minutiae of the procurement process.

[00:21:32] Speaker 03:
It's one of those decisions that happens all the time that

[00:21:35] Speaker 03:
There's really no tests or standards to apply.

[00:21:40] Speaker 05:
What did the agency say about past performance when it issued its award?

[00:21:47] Speaker 05:
What exactly did it say about it?

[00:21:50] Speaker 03:
The agency on past performance, that is at 12756.

[00:21:56] Speaker 03:
And there is a large paragraph.

[00:21:57] Speaker 03:
That's by the source selection authority.

[00:21:59] Speaker 03:
There was an interim past performance review by a team of contracting officers that looked at it.

[00:22:05] Speaker 03:
And for IAL specifically, it's from 12341 to 12351.

[00:22:09] Speaker 05:
Wait, wait, wait, wait.

[00:22:10] Speaker 05:
You're going too fast.

[00:22:11] Speaker 03:
I'm sorry, Your Honor.

[00:22:16] Speaker 05:
So this says exceptional performance by IAL subcontractors on two relevant efforts of similar scope and magnitude.

[00:22:26] Speaker 05:
That's the reference, right?

[00:22:28] Speaker 03:
That's the reference.

[00:22:29] Speaker 03:
But it all also flows from the detailed chart that was compiled, not just for IAL, but I believe there was nine major subcontractors that IAL proposed for their teaming effort in this matter.

[00:22:43] Speaker 00:
Is this a specific reference to the 11-431 and 11-441 questionnaire?

[00:22:53] Speaker 00:
Not questionnaire, I'm sorry.

[00:22:54] Speaker 00:
The questionnaires are what were cited at 11-441 and 431, the proposal.

[00:22:59] Speaker 03:
I would say they were, Your Honor, only because, as my friend said, there was two very relevant past performance contractors or contracts that they thought were very relevant under the definitions in the RFD.

[00:23:13] Speaker 03:
And that's what, and those... Where did they identify those two contracts?

[00:23:17] Speaker 05:
Where did the contracting officer identify the two contracts?

[00:23:21] Speaker 03:
Excuse me, Your Honor.

[00:23:21] Speaker 05:
Where did the contracting officer identify the two contracts?

[00:23:27] Speaker 05:
relevant efforts that are referred to here.

[00:23:35] Speaker 03:
I'm sorry, I want to say 12356.

[00:23:43] Speaker 03:
And it talks about the verification on subcontra GAL, two sources.

[00:23:50] Speaker 03:
And it talks about two people... Wait, wait, wait.

[00:23:58] Speaker 03:
Alpha-12-356.

[00:24:02] Speaker 03:
And at the very top, there's a synopsis of global.

[00:24:06] Speaker 03:
What is this document we're looking at?

[00:24:08] Speaker 03:
This is an interim source selection.

[00:24:11] Speaker 03:
Excuse me.

[00:24:12] Speaker 03:
Prepared by the contracting officer.

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

[00:24:15] Speaker 03:
It's prepared by Transcom.

[00:24:17] Speaker 03:
It was prepared by a team of contracting officers.

[00:24:21] Speaker 03:
Specifically, I think it's Alpha-12-341.

[00:24:26] Speaker 03:
Miss Chrissy Schneider and Emily Tiff, who were part of the contracting team.

[00:24:32] Speaker 03:
And that is all the review of all the offerors.

[00:24:35] Speaker 03:
I mean, the argument that my friend makes is that this was all made in the vacuum, and the transcom really could not make the confidence rating they did.

[00:24:47] Speaker 03:
But that's just not supported by the record, especially when you consider that it's a decision on past performance.

[00:24:52] Speaker 03:
And if we look at the review only was they only got a satisfactory rating.

[00:24:58] Speaker 03:
And based on the RFP, and that's at 933 and 934, those definitions were

[00:25:04] Speaker 03:
Based on the offer's recent and relevant performance record, the government has a reasonable expectation that the offer will successfully perform the required effort.

[00:25:14] Speaker 03:
And that's exactly, I mean, nothing more.

[00:25:16] Speaker 03:
Because the other one they would have had to do would be a limited, say, low expectation.

[00:25:20] Speaker 03:
And there's nothing in the record given IAL's nine subcontractors that shows they would be low expectations.

[00:25:26] Speaker 03:
In fact, all the other offerors of the five all had satisfactory confidence ratings.

[00:25:32] Speaker 03:
AAL obviously has an exception.

[00:25:35] Speaker 05:
Let me try to understand what's going on here.

[00:25:38] Speaker 05:
If you look at 123.56, and there's this sometimes after global auto logistic, their contention, if I understand correctly, is that what's listed here in this past performance description relates to GAL Europe, correct?

[00:25:55] Speaker 03:
It relates to GAL, but where the tie-in is to GAL Europe, your honor, is halfway through

[00:26:00] Speaker 03:
about halfway down in the middle left paragraph, there's a sign that says, two PPQs were submitted for TGAL, and it talks about Whiskey 6447, blah, blah, blah, and Volkswagen Logistics.

[00:26:11] Speaker 03:
Those are the two contracts that were referenced in the initial proposal way back at the start of the process when GAL said, we sent out past performance questionnaires to three contractors that we think can provide you the information that you, agency transcom, can develop a confidence rating.

[00:26:33] Speaker 00:
So these numbers, the W6447 ILEA 0835, that corresponds to 11431, and the Volkswagen Logistics corresponds to 11441.

[00:26:45] Speaker 00:
Those are the two questionnaires that expressly refer to TTA.

[00:26:51] Speaker 03:
Yeah, those are the numbers, right.

[00:26:53] Speaker 03:
And if you compare the numbers of W6447, they're on line B at alpha 11431, and the other one is

[00:27:02] Speaker 03:
on the other side.

[00:27:06] Speaker 03:
Switching to the other issue that the court has my friend about, and that dealt with what to do with the records at the GAO.

[00:27:13] Speaker 03:
First is, I don't know if we need to, we don't know if the court needs to reach that issue because the trial court made a specific finding that she did not rely on those records.

[00:27:21] Speaker 03:
She discussed those in her decision.

[00:27:25] Speaker 05:
If anything- It's an elbow review, isn't it, since it's on the administrative record?

[00:27:28] Speaker 03:
It is on the administrative record, Your Honor.

[00:27:31] Speaker 03:
And also, too, though, we believe that those records could have been considered by the trial court.

[00:27:37] Speaker 03:
Now, if, in fact, the trial court thought that they presented information that the agency didn't address, we would argue that the trial court would have committed error if it developed its own rationale one way or another and instead should have remanded.

[00:27:51] Speaker 03:
But I think it's time that we talk about what really goes on at the GAO.

[00:27:55] Speaker 03:
The GAO is a recommendation.

[00:27:58] Speaker 03:
After that recommendation,

[00:28:00] Speaker 03:
Even after all that information is presented at the GAO, that is all before the agency.

[00:28:05] Speaker 03:
The contracting officer at that time or the agency could say, you know, they made some good arguments.

[00:28:09] Speaker 03:
Even if the GAO upheld the award, we might want to go back and take a look because, you know, let's tie up that loose end on TGALE.

[00:28:19] Speaker 03:
In this case, they didn't.

[00:28:20] Speaker 03:
But as I always like to say, sometimes what's in the records is important, but sometimes what's not in the record is important.

[00:28:26] Speaker 03:
And if an agency says, well,

[00:28:28] Speaker 03:
what you found out or what the information presented at the GAO is what we knew to be the case all along, why would the contracting officer submit a memo to the GAO saying, we knew this all along?

[00:28:40] Speaker 03:
They didn't have to.

[00:28:41] Speaker 03:
By their inaction and the follow-on award and the fact that order IAL to continue performance.

[00:28:47] Speaker 05:
Well, the contracting officer apparently at the time wasn't aware that it was a separate subsidiary, right?

[00:28:52] Speaker 05:
Is that fair?

[00:28:55] Speaker 05:
I don't know if the contracting officer... No, I mean, there wasn't anything in information in front of the contracting officer that identified it as a separate corporate entity, correct?

[00:29:03] Speaker 03:
No, but I think that they assumed... Yes, there was not.

[00:29:08] Speaker 03:
Yes, there was nothing in the record, I'm sorry.

[00:29:10] Speaker 03:
But given all the other references to TGAL and the tie to TGAL Europe and the fact that GAL and TGAL talked about all their European operations and on past contracts that they performed upon,

[00:29:25] Speaker 03:
They actually had operations in Europe.

[00:29:27] Speaker 03:
It wasn't a leap for somebody with the experience of a contracting officer, Transcom, to tie those together.

[00:29:34] Speaker 03:
I apologize.

[00:29:35] Speaker 03:
OK, I think we're out of time, Mr. Mitchell.

[00:29:38] Speaker 03:
Thank you.

[00:29:38] Speaker 03:
Submitted to your question, we'd like the judge to be adjourned.

[00:29:40] Speaker 03:
And I'd like to turn to my co-depending counsel.

[00:29:45] Speaker 03:
I'm sorry.

[00:29:45] Speaker 03:
OK, Mr. English.

[00:29:56] Speaker 02:
Pleased to court.

[00:29:57] Speaker 02:
My name's Brad English, and I represent the Pelley International Auto Logistics.

[00:30:02] Speaker 02:
Much has been made in this case and this morning about the things that were not in the record before TRANSCOM when it made its award decision.

[00:30:09] Speaker 02:
And I'd like to spend my few moments pointing the court to the things that were.

[00:30:14] Speaker 02:
Starting with International's proposal, which listed a team of subcontractors that were to be part of, quote, team IAL.

[00:30:21] Speaker 02:
Now, among those subcontractors were Global Auto Logistics and Transglobal Auto Logistics.

[00:30:25] Speaker 02:
which were essentially proposed as one.

[00:30:27] Speaker 02:
The proposal identified their background, the relationship between those two companies, and also spoke generally about the background and business activities of each.

[00:30:37] Speaker 02:
On page A1152, I believe it is, they talk about trans-global auto logistics, work with the US dealing with shipment of privately owned vehicles, and it says, quote, in conjunction with European offices.

[00:30:51] Speaker 02:
The European offices are mentioned about six times throughout

[00:30:54] Speaker 02:
international proposal.

[00:30:56] Speaker 02:
And the proposal also includes bios of key employees of these various subcontractors, including Kay Lester, who's the president of both Transglobal and Global Auto Logistics, and Joseph Vest, who is the general manager of the European branch.

[00:31:11] Speaker 02:
The European branch, of course, is the branch that we now know to be Transglobal Auto Logistics Europe.

[00:31:17] Speaker 02:
I don't think there's any dispute about that.

[00:31:19] Speaker 01:
Right.

[00:31:19] Speaker 01:
But there's nothing in the record that expressly identifies

[00:31:24] Speaker 01:
transfer global auto logistics Europe as a separate corporate entity.

[00:31:30] Speaker 02:
I don't believe there is, Your Honor.

[00:31:31] Speaker 01:
So when you talk about the European branch, you actually are talking about a separate corporate entity.

[00:31:36] Speaker 01:
And isn't the problem that your friend on the other side is posing is that the contracting officer had to be confident that all of the resources of the separate corporate entity were

[00:31:53] Speaker 01:
being proffered for purposes of this proposal.

[00:31:56] Speaker 02:
Right, Your Honor.

[00:31:57] Speaker 02:
It is that latter test.

[00:31:58] Speaker 02:
Are the resources of this separate corporate entity being pledged?

[00:32:01] Speaker 02:
And is the access of this European branch?

[00:32:04] Speaker 02:
I don't think that the record or the APA requires the contracting officer to specifically know that it was a separate corporation, but it's the resources.

[00:32:13] Speaker 02:
And it's the same resources of the European branch office that are managed by Joe Betts, who's identified in the proposal.

[00:32:20] Speaker 02:
The same resources pledged to the allied contract and the Volkswagen contract, which is the two past performance references that the agency relied so heavily on.

[00:32:28] Speaker 02:
And in response to the evaluation notice, TransGlobal specifically responded and mentioned Joseph Vets as being one of the people whose resources are pledged to the performance of the contract.

[00:32:40] Speaker 02:
And so I think on the basis of the record, that might not have been as articulate as it could have been in terms of identifying the direct corporate relationship, but there's certainly enough

[00:32:48] Speaker 02:
for the contracting officer to have confidence that the resources of this European branch are being pledged to the performance of this contract.

[00:32:59] Speaker ?:
Thank you.

[00:33:00] Speaker ?:
Okay.

[00:33:00] Speaker 05:
Thank you, Mr. England.

[00:33:00] Speaker 05:
Mr. Sullivan, you've got two minutes here.

[00:33:07] Speaker 04:
Thank you, Your Honor.

[00:33:09] Speaker 04:
The fact is that International did not provide the critical link

[00:33:13] Speaker 04:
between the description and the proposal of which subs were doing what in performance of the contract.

[00:33:21] Speaker 04:
And there's nothing that ties them to the past performance questionnaires that were submitted for TGAL-E to TGAL-Europe.

[00:33:29] Speaker 04:
Just submitting a past performance questionnaire for a company not mentioned in the proposal does not show how that company is going to be involved in the actual performance of the contract.

[00:33:38] Speaker 04:
And it doesn't meet the GAO standard.

[00:33:40] Speaker 04:
And to help the court,

[00:33:41] Speaker 04:
I would respectfully refer you to the Health Net decision that's referred to in our briefs, a GAO decision from 2009.

[00:33:49] Speaker 04:
And in that case, the company that Health Net was challenging the award to, a major contract award to Aetna, which had addressed the involvement of a number of Aetna subsidiaries in their proposal.

[00:34:05] Speaker 04:
But it turned out that the past performance information that Aetna had submitted were for a different Aetna entity.

[00:34:11] Speaker 04:
There was no showing that the past performance questionnaire entity would have or would commit its resources or personnel or facilities to the contract.

[00:34:21] Speaker 04:
It's just like this.

[00:34:22] Speaker 04:
And, Your Honor, I would say that I'll finish by pointing this point out.

[00:34:26] Speaker 04:
The source selection official stands there and relies on what the staff submits to them.

[00:34:32] Speaker 04:
This is a billion dollar contract that's been performed by one company for the past 15 years and performed very well, as the record shows.

[00:34:39] Speaker 04:
Now they're going to a brand new entity that was formed in 2012.

[00:34:42] Speaker 04:
The major subcontractor upon which they rely here at Global was formed in 2013.

[00:34:48] Speaker 04:
And he or she wasn't told that the past performance questionnaires that they're really relying on is some unnamed entity down below.

[00:34:56] Speaker 04:
That's the problem here.

[00:34:58] Speaker 04:
There was no link.

[00:35:00] Speaker 01:
But shouldn't we assume that for the very reasons that you just state that they were shifting from

[00:35:07] Speaker 01:
someone they were comfortable with and it was a billion-dollar contract that they did drill down into all these documents?

[00:35:15] Speaker 04:
Your Honor, I don't think you can assume it.

[00:35:17] Speaker 04:
They drilled down to a certain extent, but they didn't drill down as far as the TGL Europe level came, and that was the whole ballgame on past performance.

[00:35:27] Speaker 04:
That's why the assumption becomes dangerous.

[00:35:30] Speaker 01:
Health Net's distinguishable because they were talking about a subcontractor that was going to fulfill only one small portion of the contract.

[00:35:37] Speaker 04:
Well, they did say it was small, but it's the link that is on point here, Your Honor.

[00:35:41] Speaker 04:
The failure to provide a link to the company that provides the past performance questionnaire information to the actual performance of the contract.

[00:35:49] Speaker 04:
And that's the fatal flaw here.

[00:35:51] Speaker 04:
OK.

[00:35:51] Speaker 04:
Thank you, Mr. Stang.

[00:35:53] Speaker 04:
Thank you, both counsels, all two counsels, in case that's submitted.