[00:00:08] Speaker 02:
Thank you.

[00:00:39] Speaker ?:
Thank you.

[00:01:21] Speaker ?:
Thank you.

[00:02:09] Speaker 01:
All rise.

[00:02:17] Speaker 04:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:02:22] Speaker 04:
God save the United States and its honorable court.

[00:02:27] Speaker 04:
We have four argued cases this morning.

[00:02:29] Speaker 04:
The first of these is number 15, 5152, Sios Corporation versus United States, Mr. Duvall.

[00:02:48] Speaker 06:
Can you please the court?

[00:02:50] Speaker 06:
This case presents a relatively simple question.

[00:02:55] Speaker 04:
Before you begin, let me just mention that the confidentiality markings in your brief are excessive and seem to be unjustified.

[00:03:08] Speaker 04:
We can talk later about what to do about that, but just page after page as markings

[00:03:17] Speaker 04:
Go ahead.

[00:03:20] Speaker 06:
Yes, sir.

[00:03:21] Speaker 06:
This case presents a relatively simple question of whether this must defer to an agency's award decision, even though that award compels violation of procurement law and policy.

[00:03:30] Speaker 06:
Despite the government's assertions, the issue is neither trivial nor waived.

[00:03:36] Speaker 06:
The agency's failure to weigh the technical factors in accordance with applicable law combined with its failure to complete the evaluation in a manner

[00:03:46] Speaker 06:
contemplated by the Source Selection Evaluation Plan constitutes systematic flaws in the evaluation of CYOSAT proposal, which basically... How do we know the agency didn't complete the evaluations in a manner contemplated by the Source Selection Plan?

[00:04:02] Speaker 06:
The Source Selection Evaluation Plan contemplated an evaluation team reaching a consensus.

[00:04:09] Speaker 06:
This team approach, the only document that we have

[00:04:12] Speaker 06:
to show what the evaluation team did was the spreadsheet index, which shows a dominating influence.

[00:04:19] Speaker 05:
But the fact that that's the only document doesn't mean that they didn't do the team approach.

[00:04:25] Speaker 06:
I'm only bound to the administrative record, so I don't know what goes beyond that.

[00:04:29] Speaker 06:
But what I do know is that seemingly one person dominated the overall source.

[00:04:33] Speaker 05:
But that's not what they said.

[00:04:34] Speaker 05:
I mean, the lower court found and the agency said, we did this the way we were supposed to do that.

[00:04:41] Speaker 06:
That flows into the contracting officer's exercise of judgment whereby where information that calls into question whether or not the source election evaluation plan was followed might raise a flag as to whether or not the ultimate decision was.

[00:05:01] Speaker 05:
I don't understand what information calls into question whether the source election plan was followed or not.

[00:05:07] Speaker 05:
All you point to is a spreadsheet, but the

[00:05:11] Speaker 05:
The court and the agency said that spreadsheet is not indicative of the full evaluation.

[00:05:17] Speaker 06:
It's my understanding under the Jamco decision that the contracting officer is allowed to rely on reports and information from those below him.

[00:05:30] Speaker 06:
But where there's information that calls that into question, that could

[00:05:36] Speaker 06:
his independent judgment.

[00:05:38] Speaker 06:
And the only thing in the record that we have, which I'm only bound to what's in the record, to show that he evinces this team approach isn't there.

[00:05:47] Speaker 06:
All we have is a master spreadsheet.

[00:05:49] Speaker 06:
And I agree with the lower court that it was a series of unsigned documents.

[00:05:53] Speaker 06:
But to get from A to B to C, the only thing in the record that can show whether this was adhered was the spreadsheet.

[00:06:01] Speaker 06:
And it shows an overwhelming influence by one person.

[00:06:04] Speaker 06:
And so from our perspective,

[00:06:07] Speaker 04:
What was their testimony if they followed the proper procedure?

[00:06:12] Speaker 06:
Nothing I'm aware of, Your Honor.

[00:06:17] Speaker 06:
Essentially, what goes on beyond the scope of the administrative record?

[00:06:22] Speaker 03:
What's the record supposed to show?

[00:06:25] Speaker 03:
I mean, if you had been the primary official on the contract, what would you have done to decorate the record in a manner that would now satisfy you?

[00:06:39] Speaker 06:
Well, among other things, and putting aside our argument with respect to 2305, I would have liked to see some evidence that the plan set forth by the source selection evaluation plan was adhered to.

[00:06:59] Speaker 04:
Well, did you go into that?

[00:07:01] Speaker 04:
Did you depose the chair of the SSEB to determine whether

[00:07:07] Speaker 04:
They followed the proper procedures.

[00:07:10] Speaker 04:
To my knowledge, there were no depositions at the court below.

[00:07:13] Speaker 04:
Well, so isn't it your burden to establish that they didn't follow proper procedures?

[00:07:21] Speaker 06:
Ultimately, it is the protesters' burden to show competitive prejudice.

[00:07:26] Speaker 05:
But the government... I mean, you're complaining that you don't have the individual evaluations from all these people on the committee, right?

[00:07:35] Speaker 06:
That's part of the argument.

[00:07:36] Speaker 05:
Well, if you wanted to see them, you needed to ask to see them and to supplement the record.

[00:07:42] Speaker 05:
And you didn't do that, did you?

[00:07:44] Speaker 05:
No, Your Honor.

[00:07:45] Speaker 05:
Well, how do we know whether there's error or not?

[00:07:47] Speaker 05:
I mean, the Court of Federal Claims found there wasn't error.

[00:07:50] Speaker 05:
The agency doesn't seem to think there was error.

[00:07:52] Speaker 05:
If you didn't ask for those evaluations, which may or may not be out there, then what can we review?

[00:07:59] Speaker 06:
Well, ultimately, I think the chief concern we have is the failure to adhere to 2305, where these nine factors or sub-factors that we've shown were not weighted equally.

[00:08:14] Speaker 06:
Now, what that means to me is that no matter how you... That's a different argument, right?

[00:08:18] Speaker 06:
That's a completely different argument.

[00:08:19] Speaker 06:
That is the main argument we're making.

[00:08:21] Speaker 06:
The independent judgment argument and the abandonment of the source selection evaluation plan evinces

[00:08:30] Speaker 06:
As I understand from US Falcon and the Fort Carson case, that a departure from the source election evaluation plan, considering it's a relevant court document required by the Court of Federal Claims, could show an arbitrary act.

[00:08:49] Speaker 06:
And while the courts are allowed to review the ultimate rationality of the decision-making, they're also allowed to view, as Fort Carson says,

[00:09:00] Speaker 06:
the lineage of what goes before the ultimate decision-maker, which here would be the contracting officer.

[00:09:06] Speaker 04:
What about your argument about these items that the government says are criteria, you say are sub-factors, you rely on a FAR provision saying that unless they say otherwise, the sub-factors have to be weighted equally.

[00:09:22] Speaker 04:
Why are these sub-factors as opposed to criteria?

[00:09:26] Speaker 06:
Well, first, Your Honor,

[00:09:28] Speaker 06:
The master spreadsheet index shows on appendix 174 that they have been called determining factors.

[00:09:35] Speaker 06:
The reason it's important in terms of federal contractors is that the only information contractors get on how to respond to what the government's looking for goods and services is the solicitation.

[00:09:48] Speaker 06:
Now when we have sub-factors and factors, they're supposed to be

[00:09:55] Speaker 06:
clearly noted whether or not one is more important than the other.

[00:09:58] Speaker 06:
It allows government contractors to properly respond with their proposal to the government.

[00:10:06] Speaker 06:
So if one sub-factor is domineering, but we think it should be equally weighted, then our whole unlevels the playing field.

[00:10:15] Speaker 06:
Now, this comes from Izertrek's claims purposes.

[00:10:19] Speaker 03:
The first level of argument

[00:10:22] Speaker 03:
on this particular issue is the government's argument that you didn't raise this issue below.

[00:10:27] Speaker 03:
And this particular issue isn't ventilated in either the original opinion or the reconsideration opinion by the Court of Federal Claims.

[00:10:38] Speaker 03:
And the problem we have is that most of the documents you filed in the Court of Federal Claims are filed under seal.

[00:10:45] Speaker 03:
So when the government comes into this court and says, I'm sorry, you didn't raise that argument below,

[00:10:52] Speaker 03:
Your response is, well, we sort of thought we did in a general way.

[00:10:56] Speaker 03:
But you don't cite to any particular document.

[00:11:00] Speaker 03:
So can you cite us to a document that's filed under seal downstairs?

[00:11:05] Speaker 03:
We can go down and get it, in which we will see you having explicated this argument.

[00:11:13] Speaker 06:
In the motion for judgment on the administrative record on 21, the argument was made that the technical evaluation was flawed.

[00:11:20] Speaker 06:
I understand the government's argument that

[00:11:23] Speaker 06:
Ordinarily, the appellate courts won't consider issues not properly raised, but that same court, Hormel v. Helbring, also articulated that there may be issues where questions of law are presented.

[00:11:36] Speaker 03:
And my thinking... What you're saying is you didn't squarely present this particular argument to the court of federal claims.

[00:11:46] Speaker 03:
So that there would have been ventilated down below the difference between a criteria on the one hand and a sub-factor on the other.

[00:11:53] Speaker 06:
You're correct, Your Honor.

[00:11:56] Speaker 06:
The argument was a little bit more broad below.

[00:11:58] Speaker 06:
But I think the cases that the government relies to demonstrate waiver, I think given the nuance of this case to the extent that this 2305 criteria is part of the competitive prejudice and what we're showing is the court made clear error.

[00:12:17] Speaker 05:
How was the government or the court of federal claims to know that you were even going to make this argument?

[00:12:23] Speaker 05:
This seems like an entirely separate argument than the argument you made about the various aspects of the evaluations.

[00:12:30] Speaker 05:
You went to the Marita Beach technical thing and said, this is wrong and this is not wrong.

[00:12:34] Speaker 05:
And the Court of Federal Claims agreed with you on some and didn't.

[00:12:37] Speaker 05:
Now you're making a completely different legal argument that it should have been weighed entirely differently.

[00:12:43] Speaker 05:
But that wasn't in the record.

[00:12:45] Speaker 05:
The government didn't respond.

[00:12:46] Speaker 05:
They could have supplemented the record if there was any question about what happened there.

[00:12:50] Speaker 05:
How is it possible for us to review that as a matter of pure law when it's based upon what actually happened here and it was never raised below?

[00:12:59] Speaker 06:
Well, given what I understand to be the exceptions to this waiver rule under LEA Dynatech, I think that the pure question of law exception applies as well as exception four, which is the significant question of general impact as we're dealing with the federal procurement.

[00:13:19] Speaker 06:
We're dealing with a complete record, so I also think interactive comes into play.

[00:13:23] Speaker 05:
But more importantly, Your Honors, the... How can you say we're dealing with a complete record when we don't... I mean, this issue wasn't ventilated at all.

[00:13:31] Speaker 05:
There may have been some supplementation necessary to address it.

[00:13:34] Speaker 05:
I mean, we've already determined it's not a complete record with regard to your other argument, because you didn't... the government didn't put the individual technical evaluations in, and you didn't ask for them.

[00:13:44] Speaker 06:
I think ultimately, because I have the yellow light here, Your Honor,

[00:13:47] Speaker 06:
The court's error in its prejudice analysis is still predicated on what the lower court did was just simply tally strengths and weaknesses without framing them into this equal subfactor.

[00:14:00] Speaker 06:
At the time of the award, the contracting officer is left with a grossly inflated awardee to the detriment of size.

[00:14:08] Speaker 06:
Now had this been followed, as we have shown, we both are on par with the highest technical score.

[00:14:14] Speaker 06:
We both have the equal

[00:14:15] Speaker 06:
past performance rating, and then it's a trade-off.

[00:14:17] Speaker 06:
SIOS is the incumbent, and it would have been a decision for the contracting officer to make whether or not the 23% increase in price was worth going to a different contractor, which, as we said, as SIOS was incumbent, it could have been within the contracting officer's discretion to keep the award.

[00:14:42] Speaker 06:
As the issue with 2305 necessarily implicates in the court's error, I think one of these exceptions should allow it to also be ventilated enough for the court to hear it as it relates to what the agency did.

[00:15:00] Speaker 06:
You want to save your rebuttal time?

[00:15:02] Speaker 06:
Yes, sir.

[00:15:02] Speaker 06:
Thank you.

[00:15:12] Speaker 04:
Ms.

[00:15:12] Speaker 04:
Sanchez?

[00:15:14] Speaker 00:
Good morning.

[00:15:15] Speaker 00:
May I please the court?

[00:15:17] Speaker 00:
Contrary to science's contention, the government not only complied fully with the terms of the solicitation, but it also complied in this case with the parameters set forth in the source selection.

[00:15:32] Speaker 05:
What evidence in the record shows that the technical evaluation team followed the source selection plan?

[00:15:38] Speaker 05:
You didn't put in individual evaluations.

[00:15:41] Speaker 05:
I don't know if that's because there are no written ones or you just didn't do it.

[00:15:45] Speaker 00:
We filed a, not all of the offerors in this case, the documents for all of the offerors were included in the record based on an understanding with the court.

[00:15:57] Speaker 00:
But for the ones that we did include in the record that the court has in the administrative record below, there are

[00:16:08] Speaker 00:
notes that the individual evaluators generated.

[00:16:12] Speaker 00:
The source selection plan in this case required the source selection evaluation board to take the feedback and the evaluation details provided by each of the two individual evaluators for the technical factor and to generate a consensus evaluation document which she was required to sign.

[00:16:32] Speaker 00:
There is nothing in the source selection plan or the solicitation itself that requires each and every individual evaluator to generate its own evaluation, written evaluation that then would go up to the source selection authority.

[00:16:51] Speaker 00:
So generally, well not generally, the law is that the agency is bound to review proposals by the term of the solicitation itself.

[00:17:02] Speaker 00:
not by the terms of the source selection plan.

[00:17:05] Speaker 00:
In this case, however, the agency followed the source selection plan in its entirety.

[00:17:11] Speaker 00:
And I think that Sias's position is simply based on a misunderstanding and misreading of the solicitation and the record.

[00:17:20] Speaker 00:
The spreadsheet that Sias refers to, it's a working document.

[00:17:26] Speaker 04:
But what's the evidence that the other members of the SSEB participated the way they were supposed to?

[00:17:32] Speaker 04:
We don't know on this record whether they did or not, right?

[00:17:36] Speaker 00:
They met.

[00:17:36] Speaker 00:
And there's, in addition, the record that they met.

[00:17:38] Speaker 00:
There are documents in the record.

[00:17:40] Speaker 00:
They met?

[00:17:41] Speaker 00:
They're allowed to meet by consensus.

[00:17:43] Speaker 00:
And that's what the source election plan required.

[00:17:47] Speaker 04:
And there are also... What's the evidence that they met and discussed this?

[00:17:51] Speaker 00:
I believe it's noted in the individual notations by the individual evaluators.

[00:17:58] Speaker 00:
There were only three technical evaluators.

[00:18:00] Speaker 00:
It was a team of three.

[00:18:01] Speaker 00:
Miss Farley was the... Did any of them testify?

[00:18:04] Speaker 00:
There was no testimony below.

[00:18:07] Speaker 04:
Submit a declaration.

[00:18:08] Speaker 00:
No declaration.

[00:18:09] Speaker 00:
No declarations.

[00:18:10] Speaker 00:
There was no testimony below.

[00:18:11] Speaker 00:
This is a purely a record review case, Your Honor.

[00:18:14] Speaker 05:
Are there notes from the other two about their evaluations?

[00:18:18] Speaker 00:
I believe that there were sheets on which they describe their... They're not in the appendix in this case.

[00:18:25] Speaker 00:
We didn't rely on them for this, but there are...

[00:18:31] Speaker 00:
from remembering the record correctly, there are notations that they made on their individual scoring sheets.

[00:18:38] Speaker 00:
But Ms.

[00:18:38] Speaker 00:
Farley in this case did exactly what the source selection plan directed her to do.

[00:18:43] Speaker 00:
And her work product, the consensus work product of all three evaluators, was submitted in written form to the source selection authority.

[00:18:52] Speaker 00:
So on that point there was no error by the source selection authority in relying

[00:18:59] Speaker 00:
in the written consensus reports that were submitted by Ms.

[00:19:02] Speaker 00:
Farley.

[00:19:03] Speaker 04:
What about subfactors and criteria?

[00:19:07] Speaker 00:
As the court pointed out, this was raised for the first time in this appeal.

[00:19:11] Speaker 04:
Yeah, we'll put that aside.

[00:19:13] Speaker 04:
And what about the merits of it?

[00:19:15] Speaker 00:
It has no merit whatsoever.

[00:19:16] Speaker 00:
In this evaluation, in Section M of the solicitation, the agency set forth only three factors to be evaluated.

[00:19:27] Speaker 00:
None of the factors contained

[00:19:29] Speaker 00:
sub-factors.

[00:19:30] Speaker 00:
Every solicitation contains an explanation to offer.

[00:19:34] Speaker 03:
We only have one case here from a court as opposed to the agency rights, ISRA-TEX against the United States.

[00:19:42] Speaker 03:
I'm sorry?

[00:19:43] Speaker 03:
We're looking for some guidance in the case law here.

[00:19:47] Speaker 03:
Isn't ISRA-TEX the case we should be looking at?

[00:19:51] Speaker 03:
I don't... Are you aware of any other case that deals with the 2305 issue?

[00:19:57] Speaker 00:
I don't believe so, Your Honor.

[00:19:59] Speaker 03:
It's the only case that is cited in the brief, isn't that correct?

[00:20:02] Speaker 00:
There are not too many cases out there.

[00:20:04] Speaker 03:
That's what I'm trying to get at.

[00:20:05] Speaker 03:
So we're looking for some guidance.

[00:20:06] Speaker 03:
If you look at ISRA tax, in ISRA tax there were three factors.

[00:20:11] Speaker 03:
Product demonstration model, past performance, accelerated delivery.

[00:20:15] Speaker 03:
And then, according to the opinion, there were four sub-issues with regard to product demonstration models.

[00:20:23] Speaker 03:
They weren't described as some factors in the contract in that case.

[00:20:28] Speaker 03:
Correct.

[00:20:29] Speaker 03:
So they were nonetheless deemed to be sufficient to invoke the rule that they had to be treated equally.

[00:20:36] Speaker 03:
In that case, why should we treat these any differently?

[00:20:40] Speaker 00:
There were no ratings assigned to the, in order to be a, in a solicitation that includes sub-factors, whether they are labeled or not, the agency sets forth how the sub-factors themselves will be evaluated.

[00:20:56] Speaker 00:
And there is usually in the solicitation an explanation of either how much they were weighed or how a rating for each.

[00:21:04] Speaker 03:
How the sub-factors or how the factor itself?

[00:21:06] Speaker 00:
For the sub-factors.

[00:21:09] Speaker 03:
Which contract will say it that way?

[00:21:12] Speaker 00:
The solicitations that include sub-factors.

[00:21:15] Speaker 00:
Here all we have is an expert.

[00:21:16] Speaker 03:
Have you given us an example of that in your brief?

[00:21:18] Speaker 00:
No, I didn't cite to it.

[00:21:20] Speaker 00:
Well, why should I believe you?

[00:21:23] Speaker 00:
I suppose the court doesn't have to believe me on that.

[00:21:25] Speaker 00:
Oh, no.

[00:21:26] Speaker 03:
But I mean, you're supposed to come in.

[00:21:27] Speaker 03:
I have a court case here that lays out what were deemed to be sub-factors that seem to me to be laid out in the same way they're laid out in this contract.

[00:21:38] Speaker 00:
I cannot point the court to a specific case that explains the difference between a sub-factor and the criteria by which...

[00:21:50] Speaker 03:
Let's assume for purposes of argument that in this particular contract, items 1 through 9 were sub-factors.

[00:21:57] Speaker 00:
Then we would expect to see in the record, in the evaluation.

[00:22:00] Speaker 03:
Well, let's assume that we decided, for purposes of this case, they are sub-factors.

[00:22:06] Speaker 03:
Then they were not properly assessed.

[00:22:08] Speaker 03:
Isn't that correct?

[00:22:11] Speaker 00:
That would be correct because there were... Because they weren't given equal weight.

[00:22:15] Speaker 00:
No, not because they weren't given equal weight, because they were giving no specific weight at all.

[00:22:20] Speaker 00:
in the sense, I mean, the criteria.

[00:22:22] Speaker 00:
Wouldn't the law require them to be given specifically?

[00:22:25] Speaker 00:
Not to the explanation to the offerors on how a factor is going to be evaluated.

[00:22:30] Speaker 00:
All that, these nine elements that are listed under the technical risk evaluation approach is simply an explanation to the offerors on what the agency will look for in

[00:22:45] Speaker 00:
the one factor.

[00:22:47] Speaker 00:
It's not individual sub-factors.

[00:22:51] Speaker 04:
What's the difference?

[00:22:52] Speaker 00:
The difference is that if they had weighed them differently at all, as Syos is suggesting, then there would be some indication in the actual consensus evaluation.

[00:23:06] Speaker 04:
You mean because they didn't do their job, we have to assume there was no job to be done?

[00:23:11] Speaker 00:
No, Your Honor.

[00:23:12] Speaker 00:
What I'm saying is that

[00:23:14] Speaker 00:
There is no indication in this record, in any of the evaluation documents, that a specific weight was given to the instructions that were provided to the offerors.

[00:23:24] Speaker 00:
In order for, when we have sub-factors, the- And so when you don't know, you don't know how much weight might have been given.

[00:23:36] Speaker 00:
Well, no, because what plaintiff is suggesting is, what Sallis is suggesting is that

[00:23:41] Speaker 00:
The adjectival ratings that ultimately were assigned were a compilation of ratings, of other ratings, of other elements of these subfactors that it proposes.

[00:23:54] Speaker 00:
And that is not how the evaluation was done.

[00:23:57] Speaker 03:
The law presumes that in a situation where there are subfactors, the law presumes that unless the contract specifies the weight to be given, let's assume there are 10 subfactors.

[00:24:08] Speaker 03:
Yes.

[00:24:09] Speaker 03:
The law presumes that unless the contract specifies how each of the sub-factors shall be weighted, they'll be weighted in full.

[00:24:16] Speaker 03:
Correct.

[00:24:17] Speaker 03:
Now what's the purpose?

[00:24:18] Speaker 03:
Why does the law make that presumption?

[00:24:21] Speaker 03:
So that offers know how they will be evaluated and the relative weight and emphasis that they should put to... Isn't it to guard against the possibility that one of the sub-factors would be given dispositive weight?

[00:24:35] Speaker 00:
That also.

[00:24:36] Speaker 00:
That also.

[00:24:37] Speaker 03:
That also, no, that's the driving principle, does it not?

[00:24:41] Speaker 00:
Yes.

[00:24:43] Speaker 03:
So let's assume there were sub-packers in this case.

[00:24:47] Speaker 03:
How do we know that the deciding official didn't take one of the sub-packers and assigned it 100% weight?

[00:24:55] Speaker 00:
You wouldn't be able to tell from the documents, because that's not how the evaluation approach was set forth in the solicitation.

[00:25:05] Speaker 00:
or in the evaluation documents.

[00:25:13] Speaker 00:
If we're going to assume that they are sub-factors, that the instructions to the offerors on how to prepare their technical proposal are sub-factors, then obviously that there would have to be in this case a finding that there

[00:25:34] Speaker 00:
were that there was a flaw in the evaluation, but that's not what we have here.

[00:25:39] Speaker 03:
You said how to prepare the proposal?

[00:25:41] Speaker 03:
That's what you thought the nine factors were for?

[00:25:44] Speaker 00:
If we look at the actual evaluation, I mean, if we look at the factors, it says proposals will be evaluated to determine, and it has a list of the nine issues

[00:26:00] Speaker 00:
that the agency will look.

[00:26:02] Speaker 00:
I'm looking at pages 118 and 119 of the appendix.

[00:26:07] Speaker 00:
And they are just instructions on what areas the technical proposal should cover.

[00:26:15] Speaker 00:
We have these in just about every proposal.

[00:26:18] Speaker 00:
An explanation to offerors.

[00:26:23] Speaker 00:
So to the extent that

[00:26:25] Speaker 04:
there were sub-factors, then... Maybe you should say in the solicitation that these aren't sub-factors within the meaning of 23 or 5 or whatever it is.

[00:26:35] Speaker 00:
Well, the agency, when they have sub-factors, they label them as sub-factors and they provide an explanation on how each sub-factor will be weighed or otherwise they say it will be weighed equally.

[00:26:46] Speaker 00:
I mean, basically this is a back door challenge to the terms of the solicitation.

[00:26:51] Speaker 00:
This protester want to

[00:26:54] Speaker 05:
The GAO, I believe, four times before... So, is what you're saying, if the agency wants sub-factors, they'll list them as sub-factors, and either they'll be of equal weight, or they'll tell us how to weight them.

[00:27:05] Speaker 05:
If they don't list them as sub-factors, they're not sub-factors.

[00:27:08] Speaker 00:
That is correct, Your Honor.

[00:27:10] Speaker 00:
That is correct.

[00:27:11] Speaker 00:
And this... SCIOS filed a total of five protests in this case, inclusive of the one that was filed at the Court of Claims.

[00:27:18] Speaker 00:
They went to the GAO, I believe, three or four times.

[00:27:23] Speaker 00:
If they had a question about the terms of the solicitation and how the technical proposal was going to be evaluated, they had ample time to get guidance.

[00:27:31] Speaker 00:
There was even a question and answer period.

[00:27:33] Speaker 05:
Were there any questions about how these nine factors were going to be weighed by anybody prior to the award?

[00:27:41] Speaker 00:
No, Your Honor.

[00:27:42] Speaker 04:
I think your blue and gold argument is a very bad argument.

[00:27:47] Speaker 04:
I think it's extremely difficult to say that someone seeing the solicitation should have

[00:27:53] Speaker 04:
raised this particular question at that time based on the face of it?

[00:27:58] Speaker 00:
Well, SCIOS didn't have any concerns about it.

[00:28:00] Speaker 00:
Even in its own proposal, it doesn't refer to anything as sub-factors.

[00:28:03] Speaker 04:
Well, maybe they just assumed that they were going to be weighted equally, which is what the regulations seem to suggest if they're sub-factors.

[00:28:09] Speaker 00:
But there was no indication that in either the solicitation, the language in the solicitation, or in SCIOS's own proposal... But there was none in the Estrutex case either.

[00:28:18] Speaker 03:
The Esquitex case did not identify items 1, 2, 3, and 4 as subfactors.

[00:28:24] Speaker 03:
They simply said these characteristics for which the model will be tested or evaluated are 1, 2, 3, 4.

[00:28:35] Speaker 03:
Characteristic criteria, indicia.

[00:28:38] Speaker 03:
Didn't say subfactors.

[00:28:40] Speaker 00:
I am not familiar with the underlying record in that case, Your Honor, so I haven't seen... It should be.

[00:28:45] Speaker 03:
Shouldn't you be?

[00:28:46] Speaker 03:
With the individual?

[00:28:47] Speaker 03:
Since it's the only relevant case, we're supposed to follow the law, and we'd find it in the decided case law?

[00:28:56] Speaker 00:
I would suggest to the court that in a situation like this, that this issue wasn't raised at all over the past four years, that science has been challenging this procurement in one way or the other.

[00:29:11] Speaker 00:
To which they're entitled to.

[00:29:13] Speaker 00:
The issue has been waived.

[00:29:16] Speaker 00:
repeatedly at every stage of its challenge to the solicitation.

[00:29:21] Speaker 00:
So to raise it for the first time in appeal is inconsistent with this court's precedence.

[00:29:27] Speaker 00:
With respect to the lower court's prejudice evaluation, prejudice analysis, the trial court did exactly what this court set forth in its ban on opinion, and it conducted a

[00:29:43] Speaker 00:
a review of the errors that the two de minimis errors that the court identified in the evaluation process.

[00:30:00] Speaker 00:
And it determined that SIOs did not demonstrate that it was within the active zone

[00:30:12] Speaker 00:
consideration for its proposal even after the two errors.

[00:30:17] Speaker 00:
And Syas's request, or Syas's position that the court should have reevaluated the proposals and issued new ratings to its proposal and the proposals of others completely contradicts this court's precedence on that issue.

[00:30:37] Speaker 00:
OK.

[00:30:37] Speaker 00:
Thank you, Ms.

[00:30:37] Speaker 00:
Snyder.

[00:30:38] Speaker 00:
This contract has been performed.

[00:30:39] Speaker 00:
Is that correct?

[00:30:40] Speaker 00:
The contract, the base year was fully performed, and the one-year option was fully performed, and the agency granted a six-month extension under the FAR that is currently being developed.

[00:30:51] Speaker 03:
What's at stake here?

[00:30:52] Speaker 00:
Big preparation costs and that sort of thing, right?

[00:30:55] Speaker 00:
Just big preparation costs, Your Honor, yes.

[00:30:59] Speaker 04:
Thank you.

[00:31:04] Speaker 04:
Mr. Duvall, you've got a little less than three minutes.

[00:31:11] Speaker 06:
I think ultimately, Your Honor, is that because the lower court conducted its prejudice analysis, which was just a cursory tally of strengths and weaknesses, that analysis did not take into account the equal weighting scheme contemplated by Section 2305.

[00:31:38] Speaker 06:
Because of that,

[00:31:40] Speaker 06:
And because of what this court said in Bannum, which is that a protester needs to show that there was a substantial chance that we'll receive the award, but for the errors in the contract.

[00:31:51] Speaker 06:
And in Bannum, this court also said that that test is more lenient than actual causation, that we don't have to show that we would have won the contract.

[00:31:59] Speaker 06:
That we are in a position where congruent with what this court said in Dana General, which is to prevent unwarranted interruptions, that shield

[00:32:09] Speaker 06:
was also not designed to then be turned into a sword to make it virtually impossible for protesters to overcome this burden against the government's record.

[00:32:24] Speaker 06:
As an attorney, I agree that the federal government and its agencies should have a degree of deference in their decision making.

[00:32:32] Speaker 06:
That's important in federal contracting.

[00:32:34] Speaker 06:
It's important to have these processes in place so that contrast can get made.

[00:32:39] Speaker 06:
However, when there's a violation of law and seemingly departures from the source selection... How do you know there's a violation of law?

[00:32:46] Speaker 05:
I mean, my problem with you on the sub-factor argument is this wasn't raised until we got here, until we have no idea whether the government thought they were sub-factors, whether they could explain whether they were sub-factors or not.

[00:33:00] Speaker 05:
And you didn't apparently think they were or didn't care about that issue below either.

[00:33:05] Speaker 05:
And so we have nothing in the record to demonstrate whether the contracting officer and the source selection board treated these as sub-factors or not.

[00:33:15] Speaker 06:
Well, I agree, Your Honor.

[00:33:17] Speaker 06:
It was not argued below.

[00:33:19] Speaker 06:
In the master spreadsheet index on Appendix 174, they're called determining sub-factors and the determining factors, I'm sorry, in their list 1 through 9.

[00:33:28] Speaker 06:
At least another offeror in its debriefing questions for debriefing refers to evaluation factors and sub-factors.

[00:33:36] Speaker 06:
But in practice, in substance, in the technical evaluation on appendix 148, you can see them with granularity and specificity on how each one was outlined.

[00:33:47] Speaker 06:
Given that we believe we've shown that we could have been on par and they already wasn't as high as they were.

[00:33:54] Speaker 05:
Can I just ask?

[00:33:55] Speaker 05:
I know you're about out of time.

[00:33:56] Speaker 05:
And I don't know how I'm going to ask you this, because you've got to label it confidential.

[00:34:00] Speaker 05:
But in your brief, you go through and you chart

[00:34:04] Speaker 05:
your strengths and weaknesses and the winning bidder's strengths and weaknesses.

[00:34:12] Speaker 05:
It doesn't seem to me that you've even done that accurately.

[00:34:16] Speaker 05:
I'm going to see if I can ask you about this without talking about it too much, but can you look at page 27 of your brief and cross-reference page 13 of your brief?

[00:34:36] Speaker 06:
Page 27?

[00:34:37] Speaker 06:
Yeah.

[00:34:40] Speaker 06:
OK, I'm on page 27.

[00:34:41] Speaker 05:
So for SSB in that chart, you've got significant strengths, strengths, and weaknesses.

[00:34:51] Speaker 05:
If you look at the things you've got listed there and you compare it back to page 12, it seems like you're missing something in the strengths column.

[00:35:03] Speaker 05:
You made up these charts, by the way, didn't you?

[00:35:06] Speaker 05:
These aren't in the source selection documents?

[00:35:08] Speaker 06:
No.

[00:35:09] Speaker 06:
So basically what I did, Your Honor, was applied to equal weighting so that even though there was a number of strengths on one of the awardees, sub-factor one, that still garners equal weight.

[00:35:20] Speaker 06:
So that sub-factor one couldn't be worth more than 11% of the awardees.

[00:35:23] Speaker 05:
Yeah, that's not what I'm asking about.

[00:35:25] Speaker 05:
I'm looking at the chart from page 13, and it looks like you've missed

[00:35:30] Speaker 05:
a strength altogether in one of those categories for SSB.

[00:35:34] Speaker 05:
Was that on the reply brief?

[00:35:37] Speaker 05:
No, it's on page 13 of your opening brief.

[00:35:43] Speaker 06:
There were factors that were evaluated as neutral, and there were factors that were evaluated as strengths or weaknesses.

[00:35:52] Speaker 06:
And the difference between the chart on 13 versus the chart on 26 was on 26 is where I've shown that even though you've

[00:35:59] Speaker 06:
Even though there was a compilation of multiple strengths for one sub-factor, I transferred that.

[00:36:05] Speaker 05:
I'm just going to ask you about it.

[00:36:07] Speaker 05:
Sub-factor two for SSB.

[00:36:09] Speaker 05:
I mean, they're the awardee anyway, so I would think that this is in the record.

[00:36:12] Speaker 05:
It says it's a strength on page 13.

[00:36:16] Speaker 05:
In your chart, you don't list sub-factor two as a strength for them, do you?

[00:36:21] Speaker 05:
Or am I just reading your chart wrong?

[00:36:23] Speaker 05:
26.

[00:36:24] Speaker 05:
Or 27.

[00:36:30] Speaker 06:
SSP.

[00:36:35] Speaker 06:
I may have made an error.

[00:36:37] Speaker 05:
You either made an error in the chart on 13 or on 27.

[00:36:41] Speaker 05:
How are we to rely on any of this?

[00:36:46] Speaker 06:
The technical evaluation appendix, those charts were derived from appendix 148 where

[00:36:54] Speaker 06:
There were neutral ratings.

[00:36:56] Speaker 05:
But you used those charts to suggest that you and the winning bidder are technically equivalent.

[00:37:03] Speaker 05:
And if those charts aren't true, then how do we even know that?

[00:37:06] Speaker 05:
Why can't we presume the Court of Federal Claims lack of prejudice argument is right?

[00:37:13] Speaker 05:
When the evidence you're using to show prejudice is faulty.

[00:37:18] Speaker 06:
I think at the end of the day, the numerical tally based on Appendix 148

[00:37:24] Speaker 06:
We had strengths, significant strengths, weaknesses, and there was, I think, a few neutrals.

[00:37:28] Speaker 06:
When you compile all the strengths for category one and equate that against the others, that's where that chart was arrived.

[00:37:35] Speaker 06:
If I made a mistake before this court, it is sincerest apologies.

[00:37:40] Speaker 06:
I do not think that I made a mistake when I was compiling that chart.

[00:37:44] Speaker 06:
But at the end of the day, with this equal weighting, we think that Silas Stowe is a potential chancellor receiving the award.

[00:37:52] Speaker 06:
And ultimately, the lower court

[00:37:54] Speaker 06:
error by not applying this scheme in the competitive prejudice analysis, which is why I think the nuance of this case allows the court to hear it, although even though at the court below it wasn't a central issue.

[00:38:09] Speaker 04:
Before you sit down, I want to come back to the confidentiality markings.

[00:38:12] Speaker 04:
If you look at page 13 again, you mark as confidential that the SSEP was assigned evaluation responsibilities.

[00:38:21] Speaker 04:
That's marked confidential.

[00:38:22] Speaker 04:
You said

[00:38:23] Speaker 04:
The evaluation board is responsible for evaluating each offer.

[00:38:26] Speaker 04:
That's Mark confident.

[00:38:27] Speaker 04:
What is the basis for this confidentiality, Mark?

[00:38:30] Speaker 06:
I chose to be a little bit more cautious considering that... It's improper.

[00:38:35] Speaker 04:
You're not supposed to do that.

[00:38:36] Speaker 06:
I understand.

[00:38:37] Speaker 04:
This is not confidential material.

[00:38:39] Speaker 04:
OK.

[00:38:40] Speaker 06:
I was confused because it's the source selection evaluation plan or... I apologize.

[00:38:51] Speaker 04:
I was being overcautious here.

[00:38:53] Speaker 04:
All right.

[00:38:54] Speaker 04:
Thank you, Mr. Deval.

[00:38:55] Speaker 04:
Thank both counsels.

[00:38:56] Speaker 04:
The case is submitted.