[00:00:14] Speaker 01: The next case for argument is 15-5132, Guardian Moving and Storage Company versus United States. [00:00:50] Speaker 01: Help me out with your name. [00:00:53] Speaker 04: Joshua Rogoszewski. [00:00:55] Speaker 01: Good morning. [00:00:55] Speaker 01: Please proceed. [00:00:56] Speaker 04: Thank you, Your Honor. [00:00:56] Speaker 04: May it please the Court. [00:00:58] Speaker 04: The central issue in this bid protest appeal is whether the floodplain certifications found at JA444 through 447 met the material requirements set forth in U.S. [00:01:09] Speaker 04: TransCom's solicitation at JA400. [00:01:13] Speaker 04: Because they did, in accordance with the terms of the solicitation at 403, [00:01:18] Speaker 04: The agency should have awarded the contract to my client, Guardian, because at the initial bid stage, only Guardian provided a technically acceptable bid. [00:01:27] Speaker 01: Let me ask you, if we disagree with that, does that end the case? [00:01:33] Speaker 01: Or is there a basis upon which you still think you can prevail? [00:01:37] Speaker 04: I'm not sure how to answer that question, Chief Judge Post. [00:01:40] Speaker 04: I think there are three things that I have to show in order to win this appeal. [00:01:44] Speaker 04: I have to show first, [00:01:45] Speaker 04: that in fact, Guardian's proposal was technically acceptable in the initial bid state. [00:01:50] Speaker 03: So if you don't cross that barrier, do you get to two and three? [00:01:56] Speaker 04: I don't think so, Judge Wallach. [00:01:57] Speaker 04: And that's because in order to invalidate the corrected action that was instituted by the agency here, we have to show that in fact, one of the bids was technically acceptable and the other was not. [00:02:09] Speaker 04: Under the terms of the solicitation... That's a fair answer. [00:02:12] Speaker 04: Thank you. [00:02:12] Speaker 04: Well, it's the truthful answer based on the solicitation in this case and the bids and the way the process played out. [00:02:20] Speaker 04: As the solicitation sets out, what the agency was going to do is to evaluate the bids that were... Can I ask you this? [00:02:26] Speaker 06: Because I want to make sure I understand what you're arguing. [00:02:31] Speaker 06: If an agency does a solicitation and it's challenged and it finds that it made an error [00:02:38] Speaker 06: even if it could go forward and award to another bidder, is it required to do so or is that within the agency's discretion to go back, get new bids, get new information or the like? [00:02:51] Speaker 04: No, I think it depends on what the language of the solicitation were to say. [00:02:54] Speaker 04: I mean, I will admit that the agency has a wide range of discretion in procurement cases. [00:02:59] Speaker 06: Do you think in this solicitation, [00:03:02] Speaker 06: If there was any qualified bidder, the agency was required to go forward, no matter what the bid. [00:03:09] Speaker 04: That is how I read the language in this list. [00:03:10] Speaker 06: And what language is that? [00:03:12] Speaker 04: It's at the end of the evaluation criteria, and it says... You're going to need to give us an appendix slide. [00:03:20] Speaker 04: I apologize, Your Honor. [00:03:21] Speaker 04: It's J.A. [00:03:32] Speaker 04: at 402. [00:03:50] Speaker 04: And it's the language at the end that at the end of evaluating who has the lowest cost technically acceptable offer, it's the government's intention to award [00:04:01] Speaker 01: I'm sorry, I'm looking at JA 402, but you're going to have to... You're at the bottom paragraph, right? [00:04:07] Speaker 04: Yeah, the bottom. [00:04:07] Speaker 04: Thank you, Judge Hughes. [00:04:09] Speaker 04: Without further consideration of any other... And that evaluation criteria means that if, in fact, the agency was erroneous in concluding that Guardian's proposal was not... I mean, this is a standard clause. [00:04:22] Speaker 06: This is not a clause that limits the agency's discretion. [00:04:27] Speaker 06: I mean, this is in almost every one of these kind of contracts. [00:04:32] Speaker 06: And it says the agency doesn't have to do additional stuff, but it doesn't say the agency can't do additional stuff. [00:04:39] Speaker 04: Judge Hughes, I think the cases that I would direct the court to are the ones cited in our reply brief that instead talk about where institution of corrective action in this case to reopen it, even though it had a bid that was technically acceptable. [00:04:54] Speaker 04: and was within the competitive guidelines in terms of the independent government cost estimate, that when you have one bid that is technically acceptable and one that is clearly not, and not even close to, and I mean there was basic documentation that was missing from Metropolitan's proposal, that the way the procurement system is supposed to work, Guardian should win that bid. [00:05:14] Speaker 04: It was providing value to the government, it was the incumbent contractor on this. [00:05:20] Speaker 03: initial bid on the floodplain issue was technically acceptable, you say. [00:05:26] Speaker 04: Well, that's certainly our argument now. [00:05:28] Speaker 04: But then what you did is you fixed it. [00:05:32] Speaker 04: Two points, Your Honor. [00:05:35] Speaker 04: In fact, the agency, in reviewing the floodplain certification, found it technically acceptable several times. [00:05:41] Speaker 04: It was only once the government decided it wanted to issue a corrective action, it decided to find that it was not accurate. [00:05:50] Speaker 04: whether or not we, Guardian, in fact corrected the floodplain certifications and the corrective action. [00:05:55] Speaker 04: Guardian made very clear its position that it did not need to correct them, but it did submit additional floodplain certifications by individual engineers. [00:06:05] Speaker 04: But Guardian's position then and now is that it did not need to do so. [00:06:09] Speaker 04: In fact, the original floodplain certifications met the material criteria set forth in the solicitation. [00:06:15] Speaker 04: Substantively, those floodplain certifications [00:06:18] Speaker 04: did tell the government that, in fact, none of the proposed locations were in a 100-year floodplain. [00:06:23] Speaker 04: And that's an important criterion. [00:06:26] Speaker 04: And in terms of the form, it was provided by an independent business, a professional company, that does this, not just does it, but does it all the time and does it very well and is recognized in the industry for doing it well. [00:06:39] Speaker 03: What did the solicitation say regarding floodplains? [00:06:45] Speaker 04: Regarding floodplains, that is at [00:06:48] Speaker 04: J.A. [00:06:48] Speaker 04: 400, right? [00:07:00] Speaker 04: Instructed to provide a subparagraph G, a floodplain report from FEMA, the Corps of Engineers, or a disinterested third-party professional engineer surveyor. [00:07:18] Speaker 03: You're arguing under clause three, a disinterested third-party professional engineer slash surveyor, right? [00:07:29] Speaker 03: That's correct. [00:07:30] Speaker 03: But a professional engineer is a actual professional certification, isn't it? [00:07:37] Speaker 03: There is such a thing as a PE. [00:07:39] Speaker 03: Not all engineers are PEs. [00:07:41] Speaker 04: I think that I agree with your honor. [00:07:45] Speaker 03: And the initial certification was not from a PE. [00:07:48] Speaker 03: The company can't be a PE. [00:07:50] Speaker 04: It was from a company, and the company does this on a regular basis. [00:07:53] Speaker 03: No, no, you're not answering my question. [00:07:55] Speaker 03: The company was not a professional engineer. [00:07:59] Speaker 03: I don't believe so. [00:08:02] Speaker 03: You don't have any evidence that it was. [00:08:04] Speaker 04: No, not in this record. [00:08:05] Speaker 04: But I would suggest that, in our argument, that's not a material element to this consideration. [00:08:11] Speaker 04: And in fact, we know it's not material because the government reviewed these forms by core logic on several occasions, procurement, and not just saw it and passed over it. [00:08:23] Speaker 04: It reviewed it and found them acceptable. [00:08:26] Speaker 06: Well, maybe the government was wrong. [00:08:28] Speaker 06: I mean, if they would have awarded to you, you probably would have gotten a bid protest from the other bidder saying their floodplain solicitation or certifications aren't good. [00:08:38] Speaker 06: And then the government would have been forced to do corrective action on those. [00:08:42] Speaker 04: I don't think so, Judge Hughes. [00:08:43] Speaker 04: In fact, the incumbent location, which was proposed to be used for this one, was accepted by the government on a similar floodplain certification by CoreLogic's predecessor. [00:08:54] Speaker 04: So we know on this record that they at least made a mistake in the past. [00:08:58] Speaker 04: I disagree, Judge Walk. [00:08:59] Speaker 04: We know that, in fact, it's not material, whether or not it's performed by an individual professional engineer or by a professional company that does this on a regular basis. [00:09:10] Speaker 03: And that is not the same thing at all in the engineering profession. [00:09:16] Speaker 04: Judge Walk, I mean, I disagree. [00:09:18] Speaker 04: I have to show you that it's not material. [00:09:21] Speaker 04: And in fact, the government's ability [00:09:23] Speaker 04: to control how it reviews its specifications is controlled by materiality. [00:09:28] Speaker 04: It's not just a footfall. [00:09:30] Speaker 04: It cannot disqualify something from being considered responsive. [00:09:35] Speaker 04: And in this case, we know the government accepted these floodplain certifications in the past. [00:09:39] Speaker 04: It accepted them in this procurement on several different occasions. [00:09:43] Speaker 04: It was only when the government needed to institute corrective action to give this contract to its preferred bidder, metropolitan, that it manufactured this error. [00:09:52] Speaker 04: That's our position on appeal. [00:09:54] Speaker 03: It manufactured the error. [00:09:56] Speaker 03: Yes. [00:09:57] Speaker 03: So in fact, the company had a PE? [00:10:03] Speaker 03: You're saying they falsified. [00:10:04] Speaker 03: Manufactured means falsified, yes? [00:10:07] Speaker 04: I'm saying the government found an error in the floodplain certifications. [00:10:11] Speaker 04: It had not been there before, and in fact, is not there now. [00:10:14] Speaker 04: So it's they discovered rather than manufactured. [00:10:18] Speaker 04: Words matter. [00:10:20] Speaker 04: I agree, Your Honor. [00:10:21] Speaker 04: I think they do matter. [00:10:23] Speaker 04: But I think it's important to stress that, in fact, that the government did not find this error until it needed to find an error in order to get to an area where it could then... Until they looked closely. [00:10:36] Speaker 04: No, I disagree, Your Honor. [00:10:38] Speaker 04: They looked at it very closely on several different occasions. [00:10:42] Speaker 04: Reviewers for the government reviewed this documentation and found it technically acceptable. [00:10:47] Speaker 04: And in fact, it's because it is technically acceptable. [00:10:50] Speaker 06: This argument only matters if we agree with you that that solicitation requirement required the government to award rather than reopen and go back and re-review things. [00:11:02] Speaker 04: I agree, Judge Hughes. [00:11:03] Speaker 06: I mean, this is a very... And why... I mean, again, that's a very... I mean, I assume you know that's a standard clause. [00:11:11] Speaker 06: That's not the way that clause has ever been interpreted, to my knowledge. [00:11:15] Speaker 06: And why would we interpret it that way when we're talking about government procurements, where it's the contracting officer looking at these proposals for various reasons, and he are clearly looking at your competitors and saying, this is a better price for us. [00:11:32] Speaker 06: Why wouldn't we allow them, in the interest of fiscal responsibility, to go back and reconsider it and allow them to correct any errors? [00:11:40] Speaker 04: I think it's an equally important consideration, Judge Hughes, that when the government issues a solicitation and it says that this is the path that it's going to follow. [00:11:48] Speaker 06: Well, I get that, but I think you're interpreting that very standard clause in a way that's never been interpreted that strictly before. [00:11:55] Speaker 06: I mean, if it said, if one bidder is technically unacceptable, we will [00:12:02] Speaker 06: under all circumstances, award to the only technical responsible bidder, that's fine. [00:12:07] Speaker 06: If it really limits their discretion, all it says is that they can. [00:12:12] Speaker 04: Well, I think one of the things that the lower court in this case, I think, got right is the way that she framed this particular issue. [00:12:21] Speaker 04: And she says, in the lower court's opinion, that if Guardian is correct, that if provided the only technically acceptable proposal at the initial bid stage, the conflict should have been awarded to Guardian. [00:12:31] Speaker 04: I think Judge Sweeney was absolutely correct. [00:12:34] Speaker 01: May it please the court, the primary issue before the court [00:12:52] Speaker 00: is the reasonableness of the corrective action that was taken by the agency in February of 2015. [00:12:59] Speaker 01: Can you respond to the question that's been circling around here, which is assuming that guardian, assuming guardian is right, whether the government would have been compelled to give them the award if only there was a problem with the other side? [00:13:16] Speaker 00: If we assume that Guardian is correct, that its original proposal was technically acceptable, the corrective action was still appropriate in the circumstances, still reasonable in the circumstances. [00:13:31] Speaker 00: And that's because the corrective action has to be looked at in the factual circumstances of each case. [00:13:39] Speaker 00: And what the agency pointed out here was that you had to have a [00:13:45] Speaker 00: a level playing field for these two offerors and that Guardian had been given discussions in the first round. [00:13:56] Speaker 00: And those discussions enabled Guardian to come up with an acceptable proposal and Metropolitan was not given discussions. [00:14:08] Speaker 00: So it was essential in doing this, in moving forward with corrective action, [00:14:14] Speaker 00: that we give both parties a level playing field and open it up for discussions to Metropolitan. [00:14:23] Speaker 00: This would give Metropolitan an equal opportunity to that that had been given to Guardian first off. [00:14:34] Speaker 01: Earlier discussions with Guardian have anything to do with the issue we were talking about here, the adequacy of the documentation with respect to the fire marshal? [00:14:45] Speaker 00: It did not go to the floodplain issue. [00:14:47] Speaker 00: It went to other matters that made Guardian's initial submission an unacceptable technical proposal. [00:14:59] Speaker 00: And the agency opened it up for discussions, allowed them to formulate [00:15:04] Speaker 00: and come up with a new proposal which was technically acceptable. [00:15:08] Speaker 01: So let me see if I understand the rule. [00:15:10] Speaker 01: You've got two bidders, and then it turns out, for sake of argument, that you award it to this guy, and then this guy you find out subsequently had a problem with his bid. [00:15:21] Speaker 01: If this guy doesn't, you evaluate whether or not you should go forward with him as to whether or not there was same level of discussions at the outset between the two, and if there weren't, [00:15:33] Speaker 01: then you get a do-over, and if there were, you don't? [00:15:38] Speaker 00: It's not a question of measuring the level of discussions or the extent of discussions. [00:15:44] Speaker 00: In this case, there were no discussions with Metropolitan. [00:15:49] Speaker 01: Well, you mentioned the standard being, and your words were, I believe, a level playing field. [00:15:55] Speaker 01: So I guess, so the government has to make a determination as to whether at the outset there was a level playing field? [00:16:03] Speaker 00: Having decided to take corrective action, it's essential that both of the Ophirors be treated equally and that they have a level playing field. [00:16:12] Speaker 01: But let me ask you, in the outset, let's say they had picked Guardian and that was an outgrowth of the fact that there were discussions with them and not with the other side. [00:16:23] Speaker 01: That's a little problematic, is it not? [00:16:26] Speaker 01: What about the level playing field in that circumstance? [00:16:31] Speaker 00: It really depends on the facts of the case. [00:16:34] Speaker 00: In this procurement, there were issues in the first round that warranted doing discussions with Guardian. [00:16:45] Speaker 00: And what they did with Metropolitan was just simply ask for a few clarifications. [00:16:51] Speaker 00: Then when it becomes apparent to the agency in February of 2015 that the first award is affected by error, [00:17:00] Speaker 00: The agency has to design a corrective action that is fair to both parties and essentially puts them on a level playing field to evaluate who should get the award. [00:17:12] Speaker 06: Let me ask you this, though, hypothetically. [00:17:15] Speaker 06: Instead of taking the corrective action you did, you took the award back, you looked at it and said, [00:17:25] Speaker 06: Metropolitan's out because they're technically deficient. [00:17:28] Speaker 06: We're going to award to Guardian. [00:17:31] Speaker 06: If you did that and Metropolitan protested, you would probably be up here defending that award to Guardian, right? [00:17:40] Speaker 00: The problem then becomes that if the award had just been awarded given to Guardian, they would have had the advantage of discussions and Metropolitan did not. [00:17:52] Speaker 03: Well, they would have the disadvantage of having [00:17:55] Speaker 03: violated the floodplain guarantee requirements. [00:18:00] Speaker 03: Were they not? [00:18:01] Speaker 00: Well, both parties had to. [00:18:03] Speaker 00: In the corrective action, that was an error that was found. [00:18:07] Speaker 03: But Judge Keynes' hypothetical was you awarded it. [00:18:11] Speaker 00: Excuse me? [00:18:13] Speaker 00: Maybe I didn't understand the hypothetical. [00:18:16] Speaker 06: I mean, I'm just saying. [00:18:19] Speaker 06: I mean, I get your position is basically when there's a bid protest and the government recognizes an error that they have broad discretion to take corrective action within the confines of the solicitation and you don't view that solicitation requirement that your friend points to as requiring an automatic award to whoever's remaining, correct? [00:18:41] Speaker 00: Correct. [00:18:42] Speaker 06: But I was wondering what would happen is if under the same facts, [00:18:46] Speaker 06: we had a protest, and you agreed with Guardian that Metropolitan was deficient, could the corrective action have been to just award to Guardian? [00:18:57] Speaker 06: I think the answer is yes. [00:18:58] Speaker 06: You may have been subject to a bid protest from Metropolitan about the floodplain certification, but you were certainly within your rights to award to Guardian as corrective action. [00:19:09] Speaker 00: I would agree that there is a broad discretion. [00:19:13] Speaker 00: Here, what we're pointing out is it has to be a reasonable exercise of discretion and on the factual circumstances of this case where there had been... Because during the initial round, you had discussions with Guardian to improve their bid. [00:19:31] Speaker 06: or make it technically acceptable. [00:19:33] Speaker 06: And you hadn't done that with metropolitan. [00:19:35] Speaker 06: So once the technical problem was pointed out with metropolitan, you felt it incumbent that you give them the same opportunity to have discussions and improve their bid. [00:19:45] Speaker 00: That's exactly right. [00:19:48] Speaker 01: The reason it's not computing for me is the discussions you had with Guardian obviously weren't in the nature of what was wrong with their bid, right? [00:19:57] Speaker 00: It were other defects, not related to the form. [00:20:01] Speaker 01: So is there a standard? [00:20:03] Speaker 01: So if you then decide, if you decided the other was deficient and you were going to give it to guardian, would you say, well, wait a minute, we have to evaluate whether or not heretofore there's been a level playing field. [00:20:15] Speaker 01: And if there hasn't, we can't. [00:20:17] Speaker 01: And if there has, we can. [00:20:20] Speaker 00: It's certainly the overlying principle is that both or fours have to be treated equally when you take corrective action. [00:20:29] Speaker 00: And in these circumstances, they looked at what had occurred. [00:20:33] Speaker 01: So the government is really running a risk in the first instance if there's an imbalance, i.e. [00:20:38] Speaker 01: lack of a playing field to use your terms, when it's considering these contracts. [00:20:42] Speaker 01: Because then if that's the standard we look to, we don't know how it's going to play out in the later days, and it would always come out to bite them. [00:20:50] Speaker 00: Well, strictly speaking, the standard is whether the agency's corrective action is reasonable [00:20:56] Speaker 00: in the circumstances, the factual circumstances of each case. [00:21:01] Speaker 00: That is the appropriate standard. [00:21:05] Speaker 00: I've referred to the principle of equality, that both olferoors have to be treated with equality. [00:21:11] Speaker 00: And I'm relying on a level playing field meaning the same thing, that you treat both olferoors with equality in designing the corrective action that is appropriate in the factual. [00:21:24] Speaker 03: Supposing you don't need a corrective action. [00:21:26] Speaker 03: Excuse me? [00:21:27] Speaker 03: Supposing you decide you don't need a corrective action, you've talked to Guardian and the agency has in advance and they've figured out the problems and corrected them and so they submit a technically acceptable bid and Metropolitan doesn't. [00:21:50] Speaker 03: So you award it to Guardian and at that point Metropolitan comes in and says, wait a minute, [00:21:55] Speaker 03: This wasn't a level playing field. [00:21:58] Speaker 03: You didn't talk to us and tell us what was wrong with our bid. [00:22:01] Speaker 03: Are you going to accept that argument? [00:22:07] Speaker 00: Is this directed to the first round or the second? [00:22:10] Speaker 00: Yes. [00:22:11] Speaker 00: In the first round, there are four provisions for when you conduct discussions. [00:22:18] Speaker 00: And if there is something in the nature of the proposal [00:22:22] Speaker 00: that really needs to be addressed with discussions, then you would have discussions with a party. [00:22:30] Speaker 00: You don't necessarily have to have discussions with both parties, because there has to be something materially that you need to address through discussion. [00:22:39] Speaker 03: So if you look at... So then how does it make it unfair in the second round? [00:22:43] Speaker 00: Excuse me? [00:22:45] Speaker 03: Then how does that make it unfair in the second round? [00:22:48] Speaker 03: Is the FAR requirement unfair? [00:22:52] Speaker 00: It becomes, when you're doing the second round, you want to make sure that you treat both offerors equally. [00:23:01] Speaker 00: And because discussions- They or have treated in the past. [00:23:09] Speaker 00: You look at the procurement action overall, and you're looking for fairness and equality. [00:23:15] Speaker 00: And those are the principles that the agency used in designing the corrective action in this case. [00:23:22] Speaker 00: overarching principles in procurement law. [00:23:26] Speaker 00: And because it based its corrective action on those principles, it was reasonable in the circumstances. [00:23:32] Speaker 00: Basically, what it did, as I said, it looked at saw that there had been discussions with Guardian that enabled Guardian to come up with a acceptable proposal in the first round. [00:23:44] Speaker 00: And there had never been discussions with Metropolitan. [00:23:47] Speaker 05: Because you hadn't discovered the defect. [00:23:49] Speaker 05: when you reviewed the specification for or the solicitation for a movement in metropolitan? [00:23:55] Speaker 00: Correct. [00:23:56] Speaker 00: The defect with regard to the flood plan form was only realized in the corrective action. [00:24:04] Speaker 00: And I would point out that this was a defect for both parties. [00:24:09] Speaker 00: Both parties were given evaluation notices [00:24:13] Speaker 00: telling them that they had to meet this requirement of the solicitation. [00:24:18] Speaker 00: Wait a minute. [00:24:19] Speaker 01: I'm confused. [00:24:19] Speaker 01: I thought there were different problems, right? [00:24:22] Speaker 01: Wasn't Guardian's problem with the floodplain and the other Metropolitan's problem with the fire stop? [00:24:30] Speaker 00: Metropolitan also had a problem with the floodplain. [00:24:34] Speaker 00: Both parties did. [00:24:35] Speaker 00: And this is in the joint appendix in the evaluation notices at 944 [00:24:41] Speaker 00: 948 and 951. [00:24:44] Speaker 06: That wasn't the basis for the bid protest the first time. [00:24:47] Speaker 06: I mean, the basis for the bid protest was Metropolitan didn't comply with the fire stuff, right? [00:24:51] Speaker ?: Correct. [00:24:53] Speaker 06: You had not uncovered that defect during your review of the solicitation and subsequent award. [00:24:59] Speaker 00: Correct. [00:24:59] Speaker 06: It was only in the corrective action. [00:25:01] Speaker 06: And your argument essentially that if you had discovered that during the initial procurement proceedings, [00:25:10] Speaker 06: given the FAR's requirement to have discussions to make technical corrections, you would have had discussions. [00:25:16] Speaker 06: And they could have corrected it. [00:25:18] Speaker 06: So that's the reason you took the corrective action. [00:25:22] Speaker 00: The corrective action was taken for multiple reasons. [00:25:28] Speaker 00: Yes, also because the floodplain requirement was not met. [00:25:32] Speaker 00: But there were also, as the court pointed out, [00:25:36] Speaker 00: other inadequacies for metropolitan. [00:25:39] Speaker 00: So all of these inadequacies were dealt with during the corrective action. [00:25:44] Speaker 01: Can I go back to just the criteria that you used to reject their guardian's proposal, which is that they didn't have something signed by a disinterested third-party professional engineer or surveyor? [00:25:58] Speaker 01: So they had a company called CoreLogic. [00:26:00] Speaker 01: What if we went to CoreLogic's website [00:26:03] Speaker 01: And we saw that all of their employees and everybody that does work for them is a professional engineer or surveyor. [00:26:10] Speaker 01: And that the person that signed the letter, I mean, the company didn't sign it. [00:26:14] Speaker 01: Some individual must have signed something. [00:26:16] Speaker 01: And what if we ascertain that that person was a professional engineer or surveyor? [00:26:23] Speaker 01: So the company obviously can't be an individual person, but the person representing the company who signed for the company [00:26:31] Speaker 01: who did the evaluation was. [00:26:32] Speaker 03: Where is that in the record? [00:26:34] Speaker 03: Because I looked at the time, and I didn't see that there was a PE. [00:26:40] Speaker 00: The form? [00:26:42] Speaker 03: The submission, the core logic submission, where is it in the record? [00:27:06] Speaker 00: OK, at 444, these are the forms from Poor Logic submitted by Guardian Moving and Storage, Joint Appendix 444. [00:27:23] Speaker 00: But to go to the court's question, the trial court here made a specific finding that these forms were not from a disinterested [00:27:36] Speaker 00: third party. [00:27:38] Speaker 00: It looked at the form which was in the record and the requirement of the solicitation and said these forms are not from a disinterested third party. [00:27:49] Speaker 00: It's just core logic and there's nothing that indicates that it's a disinterested third party [00:27:55] Speaker 00: professional engineer or surveyor. [00:27:57] Speaker 00: So that is a finding. [00:27:58] Speaker 01: Would somebody go to them and tell them, well, we can't do it from core logic. [00:28:02] Speaker 01: Did the person in core logic that did this, is he a professional engineer? [00:28:06] Speaker 01: Did somebody go back and ask them to identify whether or not this person was a professional engineer or surveyor? [00:28:16] Speaker 00: What's being done is APA review of the agency procurement action. [00:28:21] Speaker 00: And the court looks at the record before it. [00:28:24] Speaker 00: And this is the record that was? [00:28:26] Speaker 03: Well, no, it's not entirely. [00:28:27] Speaker 03: Where's the later submission, corrective submission, that was made? [00:28:33] Speaker 00: Oh, the corrected submission. [00:28:35] Speaker 03: Yeah, where is it in the record? [00:28:36] Speaker 00: OK, that was the initial one. [00:28:57] Speaker 00: I'm sorry, I don't have that. [00:28:59] Speaker 00: It does come from a professional engineer, and it has the map with it submitted. [00:29:05] Speaker 03: And I want it from the record, too. [00:29:08] Speaker 00: OK, I'm going to just submit it. [00:29:13] Speaker 02: Why don't you ask your opposing counsel if you know his submission? [00:29:19] Speaker 04: 965, Your Honor. [00:29:20] Speaker 02: Thank you. [00:29:36] Speaker 03: Yeah, it's from a surveyor. [00:29:55] Speaker 00: I'm not sure what the question is now from the court. [00:29:59] Speaker 03: Well, the question is the comparison of the two documents, because the first one [00:30:05] Speaker 03: is from a corporate entity which cannot hold a PE license or an LS license. [00:30:11] Speaker 03: The second is from a licensed surveyor, an individual. [00:30:16] Speaker 00: So here the trial court looked at the record that it had in front of it and concluded that the first forms that were submitted were not from a third party professional engineer or surveyor. [00:30:29] Speaker 00: And having that record, it concluded that the agency was not arbitrary and capricious [00:30:35] Speaker 00: in finding that this requirement of the solicitation had not been met. [00:30:41] Speaker 00: So therefore, the proposal that was in the record initially was not a technically acceptable final proposal from Guardian. [00:30:52] Speaker 00: And as I understand it, Guardian has conceded that that is a necessary [00:31:03] Speaker 00: It must show that that is an error in order to succeed on appeal, and it has not done so. [00:31:12] Speaker 00: The only other question really that's raised is the issue of mootness. [00:31:19] Speaker 00: And here I just wanted to point out that the court's ruling on mootness was a very narrow ruling. [00:31:25] Speaker 00: The only thing that was moot was the [00:31:28] Speaker 00: validity of the original contract award back in December of 2014. [00:31:33] Speaker 00: And the agency, at the time of the court's decision, we were not defending that. [00:31:39] Speaker 00: That had been overtaken by subsequent events and had become moot because we were going forward with the corrective action and there were new submissions. [00:31:51] Speaker 00: Thank you. [00:31:52] Speaker 00: If the court has no further questions, we would ask that it be adjourned. [00:32:11] Speaker 04: Several points I'd like to make on rebuttal quickly. [00:32:13] Speaker 04: First, on demuteness, which my friend just talked about. [00:32:17] Speaker 04: Embedded in our appellate argument is that if, in fact, the court believes that the original bid was, based on the initial bids, the contract should have been awarded to Guardian and corrective action was improper, then it follows that, in fact, the appeal in the rest of the case is not new. [00:32:35] Speaker 04: Again, I admit that we have to win all those points. [00:32:41] Speaker 04: Going back, my opposing counsel mentioned some of the discussions that took place in the first round, discussions with my client, and suggested that, in fact, there were no discussions or communications between Metropolitan and the agency. [00:32:54] Speaker 06: She didn't say there weren't any communications. [00:32:56] Speaker 06: She said there were clarifications, not discussions. [00:32:59] Speaker 06: And you know those have very technical meanings in the protest law. [00:33:04] Speaker 04: I agree, Judge Hughes. [00:33:06] Speaker 04: But I think the important point is that... Is to... Were there any discussions with Metropolitan? [00:33:13] Speaker 04: No. [00:33:14] Speaker 04: But Metropolitan was contacted about things in its proposal that were deficient. [00:33:20] Speaker 04: In this case, it was a cost element. [00:33:22] Speaker 04: And then Metropolitan was given an opportunity to fix it. [00:33:24] Speaker 04: The second point is that the fault that we're talking about here with the fire code certifications is not something that is plausible that the government would have missed in its review. [00:33:33] Speaker 04: It's not like the floodplain certifications, where we're fighting about whether or not the right person signed it or not. [00:33:41] Speaker 04: There was no documentation at all on the fire code certification elements in Metropolitan's proposal. [00:33:47] Speaker 04: So it's implausible that the government did not notice this until it decided to see for itself. [00:33:53] Speaker 06: If it's implausible, then why wouldn't they have had discussions with Metropolitan to fix that? [00:33:59] Speaker 06: Clearly, they would have, because they have an obligation under the FAR to do that. [00:34:03] Speaker 04: I think, Judge Hughes, I think it's just an additional piece of evidence as to how this procurement was something was just not right about it from the start. [00:34:14] Speaker 01: But that argues for your friend's case, because if it's so clear that it was the government had an obligation to have noticed it and called it to their attention in the first instance and it failed to do it, that does suggest that fairness would require that they get the opportunity for a dual. [00:34:29] Speaker 01: Helps them, not you. [00:34:31] Speaker 01: No, I disagree. [00:34:32] Speaker 06: If they would have awarded this contract to you instead of taking this corrective action, Metropolitan would have filed a BITRO trust and said, you got the opportunity to have discussions to make your proposal technically acceptable. [00:34:48] Speaker 06: We didn't get any discussions and that violates the FAR. [00:34:55] Speaker 04: I respectfully disagree, Judge Hughes, that in fact the non-responsive nature of Metropolitan's proposal, the fact that there was no documentation on the fire code safety issues, may have actually eroded Metropolitan's standing to make that big protest. [00:35:11] Speaker 03: Well, they also would have objected to the failure to have an adequate floodplain certificate. [00:35:21] Speaker 03: And, you know, you can say [00:35:23] Speaker 03: or it's a technical difference? [00:35:25] Speaker 03: It isn't. [00:35:26] Speaker 03: That PE license survey requirement is part of the requirement. [00:35:33] Speaker 04: May I respond? [00:35:34] Speaker 04: Sure, of course. [00:35:35] Speaker 04: Thank you, Judge Walk. [00:35:36] Speaker 04: I'll just repeat what I said before, that materiality is an important element in this particular question. [00:35:41] Speaker 04: And the fact that the government, not just in this procurement, but in the past procurement, awarded a contract based on these types of floodplain certifications. [00:35:52] Speaker 04: I disagree, Your Honor. [00:35:54] Speaker 03: I think it shows that... It's more important that states license professional engineers, they make them take a test for a reason. [00:36:05] Speaker 03: It's a different category. [00:36:07] Speaker 04: And I would suggest that, again, because the government accepted it in the past, it shows that that is not a material difference here. [00:36:15] Speaker 04: May I ask the Court to reverse? [00:36:16] Speaker 01: Thank you. [00:36:17] Speaker 01: Thank you. [00:36:17] Speaker 01: We thank both sides in the case to submit it.