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

[00:00:34] Speaker 04:
We will hear argument next in number 161655.

[00:00:51] Speaker 04:
Telos Corporation versus United States.

[00:00:56] Speaker 04:
Whenever you're ready, Mr. Arnold.

[00:01:05] Speaker 04:
Is it Telos or Telos?

[00:01:06] Speaker 02:
It's Telos.

[00:01:07] Speaker 02:
Thank you, Your Honor.

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

[00:01:09] Speaker 02:
Thank you, Your Honors.

[00:01:09] Speaker 02:
May it please the court, Nathaniel Hartland for Telos Corporation Plaintiff Appellant.

[00:01:15] Speaker 02:
The United States military is the most advanced fighting force in the world today, and yet even the United States Army can make mistakes on occasion.

[00:01:24] Speaker 02:
This is a case involving such a situation.

[00:01:27] Speaker 02:
Unfortunately, this is a case where the Army tried so hard to make sure that a

[00:01:34] Speaker 02:
A bidder would be able to compete against an incumbent, Telos Corporation, that had accidentally skewed the playing field in the other direction and resulted in a situation where Telos couldn't win.

[00:01:47] Speaker 02:
This case is important because if the lower court's decision is allowed to stand, it will make it more difficult for the courts to review executive branch decisions.

[00:01:56] Speaker 03:
The decision we're reviewing, it's a denial of a permanent injunction.

[00:02:00] Speaker 03:
Is that the decision?

[00:02:02] Speaker 02:
It's a denial of our motion for both declaratory and injunctive relief, Your Honor.

[00:02:09] Speaker 02:
The court below on page one of its oral decision and also in its order of the same day on February 29th stated that it was resolving both our declaratory and our injunctive relief requests.

[00:02:23] Speaker 04:
And by now the transition was made?

[00:02:28] Speaker 02:
Yes, Your Honor.

[00:02:29] Speaker 04:
Because the voluntary?

[00:02:31] Speaker 04:
voluntary stay lapsed at the end of February or something?

[00:02:34] Speaker 02:
Yes, Your Honor.

[00:02:37] Speaker 02:
And we have just found out that the court below did deny our motion for an injunction pending appeal several days ago as well.

[00:02:46] Speaker 02:
This court will also render, will give executive agencies perverse incentives in the sense that the less they write down about whether somebody deserved a strength or deserved to be downgraded for something,

[00:03:00] Speaker 02:
the more easy it will be for them to defend their decisions.

[00:03:03] Speaker 02:
Because if an agency says nothing about something, it has nothing to explain.

[00:03:07] Speaker 02:
And if the court cannot look behind that and ask that agency, why didn't you give someone credit for this?

[00:03:14] Speaker 02:
Why didn't you give Ford Motor Company credit for being able to manufacture a car, for example?

[00:03:19] Speaker 02:
The agency would be able to say, we're not required to write down why we didn't give somebody credit for something or why we didn't downgrade someone for something.

[00:03:28] Speaker 02:
So we don't have to answer,

[00:03:29] Speaker 02:
that question.

[00:03:32] Speaker 02:
The backdrop for this case is a really very thin, contemporaneous administrative record.

[00:03:38] Speaker 02:
And we understand that this is a FAR Part 8.4 procurement and not a FAR Part 15 procurement.

[00:03:46] Speaker 04:
And do you agree that that makes some difference in the amount of explanation that the government needs to give?

[00:03:52] Speaker 02:
Yes, we do, Your Honor.

[00:03:54] Speaker 02:
How would you phrase that difference?

[00:03:56] Speaker 02:
Well, the requirements that are applicable for contemporaneous documents for FAR 8.4 procurements are listed in provision in the regulations 8.405-2D and F. And in those provisions, the agency is not required to give a detailed blow-by-blow analysis of every single issue that it looked at in the contemporaneous record.

[00:04:25] Speaker 02:
In a FAR part 15 procurement, there is more of a requirement to write down more detail about the evaluation contemporaneously.

[00:04:34] Speaker 02:
And, Your Honor, the Army has taken the position that we are saying the requirements are the same.

[00:04:40] Speaker 02:
And I want to be clear that we have never said that.

[00:04:43] Speaker 02:
That's not our position.

[00:04:44] Speaker 04:
At the end of the day, you need to have us look at specifics and say, here's something the Army says.

[00:04:54] Speaker 04:
decided and didn't give a good enough explanation, where good enough must depend on your showing us, here's material that casts a whole lot of doubt on it.

[00:05:06] Speaker 04:
I guess my first question is, how are we supposed to talk about this here?

[00:05:11] Speaker 04:
Half your brief is in yellow.

[00:05:15] Speaker 02:
Well, Your Honor, we don't believe it's necessary.

[00:05:17] Speaker 02:
Confidentiality does exist.

[00:05:19] Speaker 02:
Yes, Your Honor.

[00:05:20] Speaker 02:
In most of the cases, in fact, I believe in all of the cases where material is in yellow, the Army has not substantively denied that that information is correct.

[00:05:31] Speaker 02:
The Army's position is that it does not have to provide an explanation.

[00:05:36] Speaker 02:
The court below agreed with that and stated that I don't find there's a need for an agency to explain matters that are merely found adequate in a proposal.

[00:05:49] Speaker 02:
So that things that were not, TELUS has demonstrated, that the agency treated unfairly failed to give TELUS credit for significant strength in its proposal and overlooked deficiencies or weaknesses in the awardee's proposal.

[00:06:03] Speaker 02:
Can I ask this question?

[00:06:04] Speaker 04:
Just tell me, it may be completely off or maybe more theoretical.

[00:06:09] Speaker 04:
But suppose you had a situation where the service that's being purchased

[00:06:17] Speaker 04:
is one that has to meet just the minimum standard is extremely high.

[00:06:24] Speaker 04:
So on a scale of zero to 100, the minimum standard to be acceptable is 99.

[00:06:30] Speaker 04:
So there's just not a meaningful difference between acceptable and strong or significantly strong or something like that.

[00:06:42] Speaker 04:
Then it seems to me you're not talking about anything

[00:06:45] Speaker 04:
significant in terms of explaining why it was 99 rather than 100.

[00:06:52] Speaker 04:
And why is that not this case on a service that I gather is at least some evidence to suggest the minimum standard is very, very high?

[00:07:07] Speaker 02:
Yes, Your Honor, the minimum standard here is very high.

[00:07:10] Speaker 02:
We've contended that the awardee net centric did not satisfy that standard.

[00:07:15] Speaker 02:
We've also contended that under the evaluation scheme that the agency set up in its solicitation, it had proposed to give people strengths or weaknesses based on certain criteria and said that it would qualitatively rank offerors as being either not just acceptable or unacceptable, but being good or excellent or outstanding or marginal or not acceptable.

[00:07:41] Speaker 02:
And so the agency set up this scheme where there were multiple tiers

[00:07:44] Speaker 02:
not just acceptable or unacceptable.

[00:07:47] Speaker 02:
And our client, who is the incumbent and has over 10 years of performing these exact requirements, was basically treated as if it was a fly-by-night newcomer to the procurement.

[00:07:59] Speaker 02:
The agency has not at all attempted to rebut TELUS's claim that it has years of successful performance.

[00:08:09] Speaker 02:
And TELUS does not intend to argue

[00:08:13] Speaker 02:
that it deserves this award simply because it's the incumbent.

[00:08:17] Speaker 02:
However, because it is the incumbent and because it explained how it is doing the exact same work at the time when the award was made, the agency was not free to simply disregard all of that and treat the newcomer as if it posed the same or even lower risk as Tello's corporation.

[00:08:38] Speaker 02:
So we want, like the court,

[00:08:40] Speaker 02:
to require the agency to treat the offerors equally, recognizing that TELOS truly does have extensive experience and other capabilities that are relevant to this procurement.

[00:08:53] Speaker 02:
On the issue of experience in particular, the agency has been all over the place.

[00:08:58] Speaker 02:
The agency initially stated, the contracting officer stated to GAO that experience was not part of the technical evaluation with respect to TELOS.

[00:09:10] Speaker 02:
However, upon being confronted with the fact that the evaluation record did give NetCentrix a significant strength for its experience, the agency changed its tune and stated that what was really at issue was the knowledge and the understanding that experience provided to NetCentrix.

[00:09:32] Speaker 02:
The agency did not explain why Telos's extensive experience didn't deserve at least as much credit as NetCentrix.

[00:09:40] Speaker 02:
The court below did not address why Telos's undisputed experience across the full range of the requirements of this procurement didn't deserve some level of credit.

[00:09:53] Speaker 02:
And so we believe that there was clearly unfair treatment in that regard.

[00:09:58] Speaker 03:
Didn't the selection official at some point on the technical factor make reference to the fact that Telos had some experience with something since

[00:10:10] Speaker 03:
the inception of that program.

[00:10:14] Speaker 03:
That sort of lended some credit to the idea that TELOS had an advantage here which helped establish a strength.

[00:10:23] Speaker 03:
I guess what I'm trying to get at is that it appears that the selection official did contemplate the experience that TELOS had when evaluating the technical factor.

[00:10:40] Speaker 02:
The agency considered it under one of the 48 sub-factors, or excuse me, tasks and subtasks.

[00:10:47] Speaker 02:
But there were many, many other areas.

[00:10:49] Speaker 02:
TELUS has experience across the whole spectrum.

[00:10:52] Speaker 02:
The agency didn't actually refer to TELUS as experience under that particular part of the record.

[00:10:58] Speaker 02:
But I can see how the Army would say that it gave TELUS at least a little tiny bit of credit under one little area.

[00:11:05] Speaker 02:
But the issue is that TELUS has undisputed successful experience

[00:11:09] Speaker 02:
across the full range of these 48 tasks and subtasks.

[00:11:12] Speaker 02:
And so there's been no reason provided by the agency as to why TELOS didn't get credit for its other experience.

[00:11:20] Speaker 02:
Instead, the newcomer was given a significant strength, which helped to bump it up to a higher evaluation rating than TELOS, for having someone who could help the newcomer's team, quote, come up to speed.

[00:11:35] Speaker 02:
So even though the agency conceded

[00:11:37] Speaker 02:
that the newcomer didn't have experience that made it already up to speed, it still gave NetCentrics credit for its experience as a significant strength under the technical factor.

[00:11:50] Speaker 02:
Another issue with the experience in this case is that the agency specifically said in the RFQ that it would evaluate parties' proposed personnel for the caliber and depth of their experience.

[00:12:04] Speaker 02:
However, this is under the management factors, Your Honor.

[00:12:08] Speaker 02:
However, when it came to the evaluation of TELUS's management proposal, TELUS received not a single strength for any of its experienced key personnel who had been performing the work for the agency for years.

[00:12:21] Speaker 02:
That despite the fact that the procurement said that the agency's emphasis was uninterrupted performance and 24-7-365 performance.

[00:12:31] Speaker 02:
The agency made it very clear it needed top-notch personnel who were experts in this area.

[00:12:36] Speaker 02:
and Telos provided them, but received zero credit under the management factor.

[00:12:41] Speaker 02:
The court's decision below does not address why Telos did not receive any credit for its experience under the management factor.

[00:12:55] Speaker 04:
You're into your rebuttal time now.

[00:13:07] Speaker 04:
Is NEOC, is it?

[00:13:08] Speaker 00:
Yes.

[00:13:09] Speaker 00:
May it please the court?

[00:13:12] Speaker 00:
The record shows that the agency carefully reviewed all of the proposals and that what TELOS is asking for the court to do is to second guess all of the agency's discretionary determinations.

[00:13:26] Speaker 00:
The trial court properly applied the standard of review here, reviewed the record,

[00:13:32] Speaker 00:
to determine if there was a coherent and rational explanation for the agency's award.

[00:13:38] Speaker 00:
The trial court didn't pay lip service to that, nor is the government asking this court to just trust the agency on the evaluation.

[00:13:47] Speaker 00:
The trial court carefully reviewed to see if the agency considered relevant criteria, whether there were any inconsistent evaluations between the two offerors.

[00:13:58] Speaker 00:
looked to see whether the agency applied any unstated evaluation criteria, and concluded that there was nothing like that here.

[00:14:06] Speaker 00:
And the record supports that.

[00:14:08] Speaker 00:
This is a FAR Part 8 procurement.

[00:14:10] Speaker 00:
It's a simplified acquisition.

[00:14:12] Speaker 00:
But the source selection decision was 10 pages long.

[00:14:16] Speaker 00:
There are two memos to the file documenting a discussion between the source selection official and the evaluation board.

[00:14:26] Speaker 00:
where the source selection official asked the evaluation board to go back and be sure that it was describing proposal features that met the definitions for a strength or a significant strength.

[00:14:38] Speaker 00:
And then you had three rounds of evaluation board reports.

[00:14:42] Speaker 00:
So the record clearly supports the finding that the agency thoroughly reviewed the proposals and reached rational determinations

[00:14:52] Speaker 00:
that TELOS simply wants this court to second guess and to sit, frankly, as a source election authority to review pages and pages of its proposal and make essentially de novo determinations about whether TELOS deserves a strength or a significant strength.

[00:15:08] Speaker 03:
What if we were to conclude that there were some arguments or evidence positions raised by TELOS that we didn't see addressed in the selection official's decision or the underlying

[00:15:21] Speaker 03:
evaluation board's decision.

[00:15:23] Speaker 03:
And then so then we conclude, OK, it does look like the selection official did consider a lot of things, but maybe just didn't consider everything.

[00:15:35] Speaker 03:
Or at least maybe she said she did, but then we can't really see that she didn't do all her homework in terms of evaluating every little argument that was made.

[00:15:48] Speaker 03:
And what do we do under those circumstances?

[00:15:50] Speaker 00:
Well, the court's role is to look and see if, and this is what the trial court did, was to look and see if you can discern what the rationale was for the agency's decision.

[00:16:02] Speaker 00:
This is a FAR Part 8 procurement, so the source selection official on the evaluation board doesn't need to document the evaluation the way you would in a FAR Part 15 procurement.

[00:16:12] Speaker 00:
And she absolutely complied with the requirements of FAR Part 8.

[00:16:15] Speaker 00:
You see that she set out in the source selection decision, which is at pages 2279 of the appendix, she sets out all of the evaluation criteria.

[00:16:26] Speaker 00:
She describes the features of the proposals that she determines are distinguishing features between the different proposals.

[00:16:36] Speaker 00:
The fact that the agency doesn't document every

[00:16:40] Speaker 00:
feature and whether it's a strength or not a strength doesn't make the source selection decision irrational.

[00:16:48] Speaker 00:
And the level of detail that TELOS wants the agency to put into this evaluation isn't even required by FAR part 15.

[00:16:58] Speaker 00:
FAR part 15305 requires the selection official or the evaluation to include descriptions of features that are deficiencies

[00:17:08] Speaker 00:
weaknesses, strengths, or significant strengths.

[00:17:11] Speaker 00:
But even FAR part 15 doesn't require an agency to describe why a particular feature isn't a strength or is a strength.

[00:17:19] Speaker 00:
And so, for example, when TELOS's county council is referring to the fact that there's no explanation in the record for why it didn't get more strengths for its experience,

[00:17:32] Speaker 00:
What we can tell from the record is that the agency reviewed the technical and management proposals.

[00:17:39] Speaker 00:
And when it found something that warranted a strength, saw experience that justified giving a strength, it mentioned that.

[00:17:47] Speaker 00:
It described it in the evaluation reports, which were then referenced by the source selection decision.

[00:17:54] Speaker 00:
And so even if there isn't one document that sort of synthesizes all the information that TELUS would like to have in the record and describe in the record, that doesn't make the agency's decision irrational.

[00:18:09] Speaker 00:
As the Supreme Court said in Motor Vehicle Manufacturers Association, the courts will uphold a decision of

[00:18:16] Speaker 00:
even less than ideal clarity, so long as the agency's path is reasonably discernible.

[00:18:20] Speaker 00:
And that's exactly what the trial court did here.

[00:18:22] Speaker 04:
Can I ask, I guess, this version of the question?

[00:18:25] Speaker 04:
Ultimately, what the government official making the choice is doing is a comparative task.

[00:18:35] Speaker 04:
Why should that not require that on a particular required element of the

[00:18:46] Speaker 04:
of the qualification that the evaluating official may show a comparative assessment as opposed to saying, okay, we looked at net centric and where we found strengths on management or whatever it is, we said strength.

[00:19:07] Speaker 04:
separately did the same for the Telos, but we never did anything.

[00:19:14] Speaker 04:
Not we never, but, but doesn't, shouldn't the, the army in this case have to make a comparative assessment or is that wrong?

[00:19:24] Speaker 04:
And not just at the bottom line, but on particular, particular components of the analysis.

[00:19:31] Speaker 00:
The agency's requirement is to evaluate the proposals against the stated criteria in the RFQ.

[00:19:38] Speaker 00:
The agency, for example, where TELOS talks about staffing, the agency never said that staffing is going to be evaluated based upon what TELOS' proposal is.

[00:19:50] Speaker 00:
So there's nothing in

[00:19:52] Speaker 00:
the RFQ or the FAR that requires the agencies in evaluating proposal features, determining whether they have strengths or significant strengths, they don't have to evaluate that by comparing one proposal to another proposal.

[00:20:07] Speaker 04:
But what you do see here in this... How do we know, for example, if the evaluator says, TELOS is strong on staffing?

[00:20:19] Speaker 04:
And then no particular strength rating for TELOS.

[00:20:24] Speaker 04:
How do we know whether the evaluator has applied the same yardstick, wherever the yardstick comes from, or instead whether the evaluator has said NetCentric is strong on staffing because, you know, for reason X and then TELOS is not strong on staffing for a completely different reason.

[00:20:48] Speaker 00:
Well, what the courts will do is look to see if the same criteria is applied.

[00:20:56] Speaker 00:
For example, if the proposals have similar features, does the evaluation have reached similar conclusions about the features?

[00:21:06] Speaker 00:
But here, where the record indicates that the evaluation board

[00:21:14] Speaker 00:
would review the various features.

[00:21:16] Speaker 00:
And then when they saw a strength, a distinguishing feature, that's what they discussed.

[00:21:20] Speaker 00:
And so you can tell that the board reviewed the evaluation board and the source selection official, reviewed the proposals because there's detail about the features that each of the offerors presented that the evaluation board found to have strengths or significant strengths.

[00:21:40] Speaker 00:
So you look down into the details of what the agency describes as the strength or significant strength.

[00:21:48] Speaker 00:
And unless there's a situation, as the trial had recognized, where you have comparable proposal features but they're being treated unequally, then there's no basis to second guess what the

[00:22:01] Speaker 00:
what the agency's evaluation is, because you don't have to compare.

[00:22:06] Speaker 04:
And I guess, do any of Telos's arguments here, which are numerous and somewhat dense, but ultimately this is about specifics, not about the general proposition about which doesn't advance the inquiry very much, do they make any point of the sort that you just described, namely,

[00:22:28] Speaker 04:
The evaluator said net centric has a strength or a significant strength because it has this and their brief says we have the same thing and yet we didn't get it.

[00:22:39] Speaker 04:
We need an explanation.

[00:22:41] Speaker 00:
Not on specific features.

[00:22:46] Speaker 00:
What TELUS does argue is that, and I think we think incorrectly, is that the agency gave net centrics a strength

[00:22:58] Speaker 00:
for having experience under the technical factor.

[00:23:03] Speaker 00:
Yes, and that TELOS has as much experience and deserves a strength as well.

[00:23:08] Speaker 00:
But when you look at the evaluation report, the agency was not evaluating under the technical factor the proposals strictly based on who has more experience or who is experienced.

[00:23:24] Speaker 00:
At page 2072 of the

[00:23:28] Speaker 00:
of the record, the evaluation report indicates that the reference to net-centric experience was cited by the board to demonstrate that net-centric had deep understanding or significant understanding and an excellent understanding of the requirements.

[00:23:48] Speaker 00:
And so they're not judging experience per se.

[00:23:52] Speaker 00:
And there's a parallel, as a trial court found, a parallel situation

[00:23:57] Speaker 00:
also in the technical evaluations, where the board says, the evaluation board says, and TELOS has expert techniques and participated in development.

[00:24:07] Speaker 00:
Now, to be sure, it doesn't use the word experience, but it's the same concept.

[00:24:12] Speaker 00:
And so the trial court directly addressed the situations where TELOS was claiming that there was some kind of unequal treatment.

[00:24:21] Speaker 00:
And instead of relying on sort of just

[00:24:23] Speaker 00:
the broad word experience, the trial court dug into the record and said, that's not really what this evaluation report is saying.

[00:24:31] Speaker 00:
That's the only time that TELOS says that it was treated unequally and provides something that's close to a specific comparison.

[00:24:41] Speaker 03:
Under the experience heading.

[00:24:43] Speaker 00:
Under the experience, exactly.

[00:24:45] Speaker 03:
What about the transition plan under the management factor?

[00:24:50] Speaker 03:
Why wouldn't TELOS get

[00:24:53] Speaker 03:
the most superior rating for the transition plan given that they would have no transition as the incumbent compared to any other would-be supplier that would have to somehow transition in and then work with the incumbent to transition out?

[00:25:12] Speaker 00:
The transition factor was not just about transitioning in.

[00:25:15] Speaker 00:
The evaluation factor, which is at 1601 of the record and then the evaluation criteria at 1614,

[00:25:22] Speaker 00:
indicate that the transition factor dealt with transition in, transition out, and generally how the offerors are going to deal with the transfer of knowledge and the risk associated with transferring knowledge from one contractor to another.

[00:25:36] Speaker 03:
Right.

[00:25:36] Speaker 03:
And the selection official didn't seem to comment at all or address Telos's apparent structural advantage of not having to deal with any of those things.

[00:25:49] Speaker 00:
The RFQ, this RFQ was combining two contracts into one.

[00:25:55] Speaker 00:
And so as TELUS itself recognized in its management plan at page 1967 of the record, TELUS recognized that there were going to be new performance work statement requirements and that it needed to eliminate redundancy.

[00:26:09] Speaker 00:
And so this was not just about transitioning it.

[00:26:12] Speaker 00:
So first of all, the factor is not just about transitioning in.

[00:26:15] Speaker 00:
It's broader than that.

[00:26:18] Speaker 00:
With TELUS having been the incumbent, there's necessarily going to be changes.

[00:26:22] Speaker 00:
And the last thing I just want to point out is that the source selection decision, page 2285 of the record, describes this factor and explains that TELUS in finding that TELUS' proposal was adequate says that TELUS incorporated phases of personnel with proposed staffing

[00:26:42] Speaker 00:
demonstrated an understanding and concept of working with the government in preparing transition activities.

[00:26:47] Speaker 00:
And I cite that because that demonstrates the breadth of the transition factor, where TELOS is only relying on, in its brief, its transition in and that it's the incumbent.

[00:26:58] Speaker 00:
The factor is much broader than that, which means that the agency was not irrational in determining that TELOS and netcentrics were entitled to the same rating for the transition factor.

[00:27:11] Speaker 04:
Thank you.

[00:27:20] Speaker 01:
May it please the court, Jeremy Dutra on behalf of the Intervener NetCentrics.

[00:27:25] Speaker 01:
I won't repeat all the arguments that have been made.

[00:27:27] Speaker 01:
I want to focus on some specific issues that were unique to the criticisms of NetCentrics, and the first one dealing with the management sub-factor of staffing.

[00:27:38] Speaker 01:
You go back to the instructions to off floors, and the RFQ instructed the contractors to describe their staffing plan in support of each of the five functional areas in the floor's work statement.

[00:27:50] Speaker 01:
And you see that NETCENTRIX and the court down below, the court of claims noted this, that NETCENTRIX staffing proposal in fact did that.

[00:27:59] Speaker 01:
It provided a methodology and a rationale for each of the five functional areas in the performance work statement, and that's on 1777 to 1781.

[00:28:07] Speaker 01:
And the court was correct down below that the agency provided a required consideration

[00:28:15] Speaker 01:
They evaluated, as reflected in the evaluation board memoranda, this is on 2077, they evaluated NetCentrics proposal against the performance work statement, against the instructions that instructed offers how to respond and how they would be evaluated.

[00:28:33] Speaker 01:
They looked at each of the management sub-factors, including staffing, separately.

[00:28:37] Speaker 01:
And the agency found that NetCentrics had the adequate labor categories that satisfied the program requirements and also noted

[00:28:45] Speaker 01:
that net-centric proposal meets the task requirements and displays an understanding of the requirements outlined within the performance work statement.

[00:28:55] Speaker 01:
So the criticism that the agency did not review and provide the requisite evaluation of net-centric at the task level, that criticism just simply misses the mark as reflected in the record itself.

[00:29:10] Speaker 01:
And the agency's evaluation

[00:29:12] Speaker 01:
notwithstanding what Telus argues was not conclusory.

[00:29:15] Speaker 01:
You see in the evaluation board at 2078 and at the source selection decision at 2286 that NET Center's proposed key personnel that showed adequate experience and certification to meet the mandates required through the report's work statement.

[00:29:30] Speaker 01:
Nor was the evaluation perfunctory.

[00:29:33] Speaker 01:
You see at 2096 where the evaluation board went through in detail

[00:29:39] Speaker 01:
under staffing and noted that Netcentra proposes to utilize lessons learned with their past experience in providing support on this contract vehicle and in its customers and providing a more senior qualified staffing mix for providing experienced task support within all areas, reducing staff size, doing the bottoms up analysis,

[00:29:57] Speaker 01:
So the agency, as reflected in the record, actually did this evaluation and did exactly what 8.405-2D requires.

[00:30:04] Speaker 03:
I understand that you believe the selection official said enough, did enough, showed enough to justify the decision and the categorization of all these different factors for these suppliers.

[00:30:16] Speaker 03:
But where do you think the line is?

[00:30:19] Speaker 03:
What would not be enough?

[00:30:21] Speaker 03:
Obviously, if they just said for all these different factors, adequate, adequate, superior, adequate,

[00:30:28] Speaker 03:
And without any further explanation, that seems like it wouldn't be enough.

[00:30:32] Speaker 03:
But what would change with this opinion and then cause a vacator?

[00:30:41] Speaker 01:
If all the agency did was say, NetCentrics wins, they're the best award, I think that would cause a problem here.

[00:30:49] Speaker 01:
But again, under FAR Part 8, what the agency did was, here's the evaluation criteria that we've outlined in our RFQ.

[00:30:55] Speaker 01:
and they noted for each of the evaluations, and they documented it, we evaluated this proposal and each of these sub-factors against those requirements in the RFQ.

[00:31:04] Speaker 01:
And as the Court of Claims recognized, you look at the record before the agency, was there a rational explanation or was there a rational basis for the conclusion that the agency reached, noting that the agency complied with the evaluation criteria that they outlined in the RFQ, and the court correctly found yes.

[00:31:20] Speaker 01:
Here the proposals

[00:31:22] Speaker 01:
that the agency cited to, in fact, included all of this detail.

[00:31:26] Speaker 01:
It included the methodology and a rationale.

[00:31:29] Speaker 01:
And the agency itself here, in the evaluation board memoranda, noted the details from the offer awards, including that centric proposal, that just shows that the agency didn't just do a perfunctory analysis and reach a conclusion, but actually looked at the requirements in the performance work statement, looked at the requirements of the RFQ, and looked at the proposal and evaluated

[00:31:52] Speaker 01:
each of those proposals against the requirements set forth in the RFQ.

[00:31:59] Speaker 04:
Your time has run out.

[00:32:01] Speaker 01:
Thank you, Your Honors.

[00:32:02] Speaker 04:
I appreciate it.

[00:32:10] Speaker 04:
Four minutes.

[00:32:11] Speaker 02:
Thank you.

[00:32:12] Speaker 02:
Your Honors, I would like to address several things that my colleagues have said.

[00:32:17] Speaker 02:
One is that TELUS

[00:32:19] Speaker 02:
is allegedly saying that agencies have to write down, at the time when they're doing an evaluation, all the reasons why they didn't award a strength to someone or didn't downgrade someone for something.

[00:32:31] Speaker 02:
And I'd like to just be crystal clear, as I think we were in our briefs, that we are not saying that agencies have to do that.

[00:32:37] Speaker 02:
Rather, along the lines of the case that we cite to Domenico Garuffi, where the court found that a protester had raised sufficient grounds to ask an agency more questions

[00:32:50] Speaker 02:
about why it had done what it had done, or similar to the Overton Park Supreme Court case, where the court held that an agency can, if the record is not sufficient for judicial review, be instructed to provide additional reasons to justify its decision.

[00:33:06] Speaker 02:
We believe that we have abundantly carried that initial burden of showing that the agency acted irrationally and unfairly, and that in light of those circumstances, the agency should have provided an explanation for its conduct.

[00:33:20] Speaker 02:
The agency was free to supplement the record below.

[00:33:22] Speaker 02:
And indeed, it actually did supplement the record to some degree, providing a contracting officer statement that was provided at the GAO to explain a few things.

[00:33:31] Speaker 02:
So the agency recognizes it has that freedom to provide these explanations.

[00:33:35] Speaker 02:
However, the agency chose not to submit a more detailed explanation below about the issues that are now before the court.

[00:33:43] Speaker 02:
And we believe that the court should not defer to silence.

[00:33:46] Speaker 04:
as an explanation from the agency, where we have carried that initial burden of showing that the... But ultimately, there's just this sort of a judgment call here, like on an algebra class teacher says, don't just give me the answer, show your work.

[00:34:00] Speaker 04:
And there's a judgment.

[00:34:01] Speaker 04:
Have you shown your work without doing every single step or given enough to indicate what the basis of the answer is?

[00:34:11] Speaker 02:
I mean, so... Yes, we believe that

[00:34:15] Speaker 02:
Judgment college could fall very much in our favor, particularly with the fact that the agency has been so inconsistent about the way it was going to evaluate experience.

[00:34:24] Speaker 02:
We believe that that is a very clear area in which we have carried our burden.

[00:34:29] Speaker 02:
Also, the experience of the awardees expert or alleged expert in the AMHS software platform, we believe that we have provided abundant details to show that their expert did not have the required experience

[00:34:44] Speaker 02:
or the documented experience that was required for a person who didn't have a certain academic degree.

[00:34:51] Speaker 02:
The agency has not submitted any rebuttal of the detailed statements in the declaration submitted by Telos in the record that shows why that person, who's well known to Telos, does not have the qualifications needed.

[00:35:05] Speaker 02:
The agency and eccentrics were free to explain themselves and explain why Telos was wrong about that.

[00:35:13] Speaker 02:
but have chosen not to do so in detail, submitting only a conclusory affidavit stating by the person involved that I meet the requirements with no detail about the specific issues Taylor's raised.

[00:35:27] Speaker 02:
Your Honor, I would like to also just mention that the court below erred in finding that the agency evaluated staffing at the task level.

[00:35:36] Speaker 02:
The agency itself admitted on page 254 of the record

[00:35:41] Speaker 02:
that it only evaluated staffing generally and stated in another place that whether or not it had not needed to evaluate staffing at the task level.

[00:35:55] Speaker 02:
We believe that's clearly contrary to law.

[00:35:58] Speaker 02:
Finally, 8.405 to F8 requires that even in far party procurements, an agency

[00:36:07] Speaker 02:
must provide enough detail to show that it treated offerors fairly.

[00:36:12] Speaker 02:
Here we believe that the agency has failed to provide that level of documentation required by 8.405-2F8, which refers to another paragraph in that section.

[00:36:23] Speaker 02:
Thank you, Your Honor.

[00:36:24] Speaker 04:
Thank you very much.

[00:36:26] Speaker 04:
Thanks to all counsel and cases submitted.