[00:00:09] Speaker 04:
Thank you, Your Honor.

[00:00:10] Speaker 03:
Richard Raleigh for Clinicomp.

[00:00:12] Speaker 03:
May it please the Court.

[00:00:13] Speaker 03:
What's your best evidence for why Clinicomp would be able to compete for a contract of this size and scope?

[00:00:19] Speaker 04:
Your Honor, this is a good question.

[00:00:21] Speaker 04:
Thank you.

[00:00:22] Speaker 04:
In this case, a pre-award, pre-proposal bid protest, the evidence is that they have a non-trivial competitive injury because they are currently an EHR provider, one of the VA's EHR providers.

[00:00:36] Speaker 04:
So they're an incumbent.

[00:00:37] Speaker 04:
for some of these services.

[00:00:39] Speaker 04:
Additionally, the evidence of the record... How many clinics?

[00:00:41] Speaker 04:
I'm sorry?

[00:00:42] Speaker 03:
How many clinics?

[00:00:45] Speaker 04:
I believe that they have around 100, and the evidence of the record is that there's 1,600 total VA-wide.

[00:00:58] Speaker 04:
They also have a commercially available product, the record establishes, that would meet the VA's interoperability needs.

[00:01:05] Speaker 04:
And finally, they have a non-trivial competitive injury because it would result in loss of their business.

[00:01:12] Speaker 04:
Several cases have established that non-trivial competitive injury, that is prejudice, economic harm, can be established where you're going to lose work.

[00:01:21] Speaker 03:
So my question was, get your best evidence that they'd be able to compete for a contract of that scope and size.

[00:01:30] Speaker 04:
Your Honor, there is not a yardstick that has been established.

[00:01:34] Speaker 04:
And this Court's correct opinion in Weeks Marine recognizes that when the agency and then the Court of Federal Claims reviewing is looking at a contract and there is no solicitation, there's no technical specifications, there's no requirements that have yet been set forth, that is, it's a pre-proposal situation, unlike Orion and other cases, it's difficult to evaluate

[00:02:00] Speaker 04:
what you could meet.

[00:02:01] Speaker 04:
Here, there is no prohibition on subcontracting.

[00:02:05] Speaker 05:
So as a matter of law, one of the... When did you first raise this argument about you're small but you could have subcontracting?

[00:02:16] Speaker 04:
Your Honor, I think that the first time it was actually mentioned was in rebuttal in the oral argument.

[00:02:23] Speaker 04:
But subcontracting, unless it's limited because there's some small business set aside,

[00:02:29] Speaker 04:
you have the right to subcontract.

[00:02:30] Speaker 04:
In fact, the administrative record establishes that Cerner is actually the subcontractor to Lidos on the DoD contract.

[00:02:38] Speaker 04:
So subcontracting, you can do as a matter of law.

[00:02:41] Speaker 03:
And it goes- Did you submit any evidence to show that ClinicCom would be capable of subcontracting the award?

[00:02:51] Speaker 03:
Your Honor, there's no- You had experience in managing similar types of contracts?

[00:02:55] Speaker 03:
Subcontract?

[00:02:56] Speaker 04:
There is no evidence in the administrative record as such.

[00:02:59] Speaker 04:
Are you aware of our most recent pre-award case, CGI Federal of the United States?

[00:03:06] Speaker 04:
I'm not immediately familiar with all of the facts of the case.

[00:03:09] Speaker 03:
I know that... You know, we clearly apply a week's marine standard to a pre-bid contract.

[00:03:13] Speaker 04:
Yes, sir.

[00:03:15] Speaker 03:
I know that there are... Any reason to think that CGI shouldn't be persuasive here?

[00:03:20] Speaker 04:
Your Honor, I believe that Weeks Marine speaks correctly to the standard that should be applied, and that Clinicomp is a qualified bidder, and that it is someone who's not a mere intermeddler.

[00:03:35] Speaker 05:
Do you dispute the proposition that even under Weeks Marine, foot aside Myers,

[00:03:41] Speaker 05:
you had to be a qualified bidder, and in particular, that that means, I guess that's one question.

[00:03:48] Speaker 05:
The second is that that means you had to show that you were capable of handling the job of this magnitude.

[00:03:59] Speaker 04:
Your Honor, I believe, I agree with the court that Clinicomp has a duty to show it's a qualified bidder.

[00:04:06] Speaker 04:
I do not believe that that means it has to essentially put in the administrative record a proposal to show all of its qualifications for a hypothetical contract that has never been put to a solicitation.

[00:04:18] Speaker 05:
Were you able to put in evidence in the Court of Federal Claims in support of your standing?

[00:04:24] Speaker 04:
We did, Your Honor.

[00:04:25] Speaker 05:
The declaration... So you don't have a dispute here about somehow the record on which the Court of Federal Claims made its decision having been improperly truncated?

[00:04:37] Speaker 04:
That's correct, Your Honor.

[00:04:38] Speaker 04:
We don't contend that we didn't have an opportunity to put information in the record.

[00:04:44] Speaker 04:
However, back to the yardstick argument that I've made, if you don't have technical requirements that show what this contract is going to require,

[00:04:54] Speaker 04:
then you can't create a hypothetical proposal to meet the requirements of the contract.

[00:04:59] Speaker 04:
When you show that you're a qualified bidder, what do you show?

[00:05:02] Speaker 04:
You show that you're not disqualified.

[00:05:04] Speaker 04:
There's a number of cases that talk about if you aren't a small, disadvantaged, veteran-owned business, then you're not.

[00:05:12] Speaker 05:
Right, so you're not legally disqualified.

[00:05:14] Speaker 05:
Correct.

[00:05:15] Speaker 05:
Isn't there also a requirement that you have to show that

[00:05:19] Speaker 05:
As a factual matter, you have the ability to do this quite huge job.

[00:05:29] Speaker 04:
I contend that Clinicomp does have the ability to do it.

[00:05:32] Speaker 04:
For one thing, they have established that they have a commercial product kit that could meet the needs.

[00:05:38] Speaker 04:
So the VA never evaluated that product.

[00:05:41] Speaker 04:
It's somewhat like the Planteer case that was a pre-award case that the Court of Federal Claims applied weeks marine.

[00:05:49] Speaker 04:
and said Plantier had offered a commercial product that it said could meet the needs, or at least some of them.

[00:05:54] Speaker 04:
And the government didn't evaluate that.

[00:05:56] Speaker 04:
The VA did not evaluate the product that, in a June 29, 2017 letter to the VA as part of the VA agency-level protest, Clinicom said, we've got this product.

[00:06:10] Speaker 04:
Where does Clinicom use that product?

[00:06:13] Speaker 04:
Clinicom's work is primarily with government health facilities.

[00:06:17] Speaker 04:
And it uses the product across those lines.

[00:06:21] Speaker 04:
In fact, that brings up a good point, Your Honor.

[00:06:23] Speaker 03:
What kind of government?

[00:06:26] Speaker 04:
DOD and VA, among others.

[00:06:28] Speaker 03:
So the VA has experience with that product?

[00:06:31] Speaker 04:
They didn't evaluate this specific product, to my knowledge.

[00:06:34] Speaker 04:
And there's nothing in the administrative record that they evaluated this particular product they're offering.

[00:06:39] Speaker 04:
I don't believe it's the product that is used at the clinics that the court mentioned.

[00:06:44] Speaker 04:
But there's no evidence in the record as to that.

[00:06:47] Speaker 04:
Chris Hohenschahl, the CEO of Clinicomp, who is a company that provides EHR services to both DOD and VA, says that it can provide this interoperability.

[00:06:57] Speaker 04:
Again, this is back to the issue of, can you evaluate, if you're the agency, whether or not this proposed prospective bidder could meet the requirements if you don't have a solicitation yet?

[00:07:10] Speaker 04:
And the VA here was saying, what we want to do is adopt whatever DOD has.

[00:07:15] Speaker 04:
And at the time,

[00:07:18] Speaker 04:
is being discussed, DOD hadn't rolled out this system across its entire agency.

[00:07:23] Speaker 04:
So there's no proof in the record that Clinicom could provide this services to the entire VA, and there's no proof that Cerner could.

[00:07:33] Speaker 04:
No one has ever performed this contract.

[00:07:36] Speaker 04:
But they do perform services for VA and DOD that are EHR services.

[00:07:43] Speaker 04:
I'm not sure that the scope of the contract is clearly defined or the

[00:07:48] Speaker 04:
technical requirements.

[00:07:49] Speaker 04:
There's one case I can recall, Magnum Opus, that involved health care services.

[00:07:54] Speaker 04:
And I think one distinction here is we're talking primarily about providing a software system.

[00:08:00] Speaker 04:
So your honor's correct.

[00:08:02] Speaker 04:
It would be a bigger scope to perform services at 1,600 clinics versus 100.

[00:08:09] Speaker 04:
But if you're providing nurses, you're providing people, that's one thing.

[00:08:15] Speaker 04:
If you're providing a robust software system,

[00:08:18] Speaker 04:
to a larger group.

[00:08:19] Speaker 04:
That is a different thing.

[00:08:20] Speaker 04:
These are the types of things that an agency could evaluate if it did compete this contract.

[00:08:29] Speaker 04:
Did I answer the court's questions concerning the standing issues?

[00:08:32] Speaker 04:
I wanted to turn to the issue of the public interest exception.

[00:08:36] Speaker 04:
Clinicomp contends that the VA was precluded from invoking the public interest exception.

[00:08:42] Speaker 04:
That is because other exceptions apply.

[00:08:45] Speaker 04:
In particular, one responsible source

[00:08:47] Speaker 04:
an unusual and compelling urgency.

[00:08:50] Speaker 04:
Additionally, they failed to show, with clear and convincing evidence, or clear and convincing justification, how foregoing competition would advance the public interest.

[00:09:03] Speaker 04:
Certainly, providing health care benefits to veterans is in the public interest.

[00:09:07] Speaker 04:
All EHR services provide health care benefits.

[00:09:11] Speaker 02:
But how, in this case, interoperability

[00:09:15] Speaker 02:
in the public interest as well.

[00:09:16] Speaker 02:
You'd agree with that?

[00:09:17] Speaker 04:
Absolutely, Your Honor.

[00:09:19] Speaker 04:
I do.

[00:09:19] Speaker 04:
And that's why Chris Hohenschild's declaration where he says that we can provide a system to provide enhanced greater interoperability that VA seeks is important.

[00:09:31] Speaker 04:
But in this case, they didn't explain how foregoing competition advances the public interest.

[00:09:39] Speaker 04:
Why they couldn't have competed this contract or at least

[00:09:42] Speaker 04:
undertaken market research, the kind of things that was discussed in the Planteer case, gone out and looked to see, evaluate this Clinicon product, evaluate the Cerner product, quite advances the public interest to forego competition itself.

[00:10:00] Speaker 04:
The court below was correct in applying, in saying that

[00:10:08] Speaker 04:
courts can review the issue of the invocation of public interest and for the reasons that were correctly stated in Spheras.

[00:10:16] Speaker 04:
And the test of determining whether the invocation was correct, that's a procedural thing, and the court was correct there.

[00:10:23] Speaker 04:
The court erred in determining that the public interest had been, that they had, that clinical, that Cerner and the VA, rather the VA had explained

[00:10:36] Speaker 04:
and clearly and convincingly justified the invocation of public interest.

[00:10:41] Speaker 05:
Do I remember right?

[00:10:42] Speaker 05:
Your argument about judicial reviewability here is that even though the statutory language has quite strong discretionary language, it has been implemented in regulatory or other terms that actually do provide standards that a court can use to determine

[00:11:04] Speaker 05:
whether the exercise of discretion is proper.

[00:11:07] Speaker 04:
That's correct, Your Honor.

[00:11:08] Speaker 04:
I agree completely.

[00:11:09] Speaker 03:
Did Clinicom respond to the RFI?

[00:11:12] Speaker 04:
I'm sorry?

[00:11:13] Speaker 03:
Did Clinicom respond to the RFI?

[00:11:16] Speaker 04:
There were two RFIs, Your Honor.

[00:11:18] Speaker 04:
You're correct.

[00:11:19] Speaker 04:
And Clinicom did not respond to either.

[00:11:21] Speaker 04:
Neither RFI was directed at this particular option.

[00:11:24] Speaker 04:
The first RFI related to commercialization of VISTA, which is the VA's own EHR system.

[00:11:32] Speaker 04:
The description of what that RFI was talking about is the Dependix 11-796.

[00:11:37] Speaker 04:
The second one related to a user interface.

[00:11:41] Speaker 04:
So essentially the doctors walk around with an iPad and enter data and that goes into the EHR system that would be across the whole VA, the VISTA system.

[00:11:51] Speaker 04:
So it didn't respond to either of those two, but we'd contend that's not determinative of anything because this is not the option that the VA went for.

[00:12:00] Speaker 04:
That's not what this contract is about.

[00:12:02] Speaker 04:
I understand the record shows that Cerner responded to the second, but not the first, is my understanding.

[00:12:08] Speaker 04:
I may have misstated earlier, the two exceptions that we contend apply to this situation are one responsible source, which is 6.302-1, and unusual compelling urgency.

[00:12:22] Speaker 04:
And even though the

[00:12:24] Speaker 04:
VA says that it was invoking the public interest exception.

[00:12:29] Speaker 04:
It's precluded by the provisions of 6.302-1 and 6.302-7 from doing so because what they're really doing is saying there's one responsible source.

[00:12:40] Speaker 04:
We want Cerner.

[00:12:41] Speaker 04:
That's what the DOD has.

[00:12:42] Speaker 04:
And we contend that that is pretext when they're saying that public interest is what we're going under.

[00:12:48] Speaker 04:
It's really one responsible source.

[00:12:50] Speaker 01:
You're in your rebuttal.

[00:12:51] Speaker 04:
Thank you, Your Honor.

[00:12:59] Speaker 00:
May it please the court?

[00:13:01] Speaker 00:
Clinicom's protesting the VA's decision to conduct its procurement for its new comprehensive enterprise-wide electronic health record system on a sole source basis rather than a competitive basis.

[00:13:12] Speaker 01:
Given that the main requirement is to use the same system as the Department of Defense has, isn't that essentially limiting to one bitter sermon?

[00:13:24] Speaker 00:
Well, that was why the public interest determination was made.

[00:13:28] Speaker 01:
So you acknowledge that there's no one else who would have standing then to challenge this?

[00:13:33] Speaker 00:
No, Your Honor.

[00:13:35] Speaker 00:
If a plaintiff comes in and says, we don't agree with the Secretary that this single common system is needed, that we can provide the comprehensive enterprise-wide electronic health record system that you need.

[00:13:52] Speaker 00:
and the single common system requirement is irrational or illegal or something like that, assuming they can prove that they can provide the comprehensive enterprise-wide electronic health record system, that would give that company standing to challenge the decision.

[00:14:08] Speaker 01:
And how do they prove that?

[00:14:12] Speaker 01:
Just saying we can subcontract it out, that's not enough.

[00:14:15] Speaker 00:
Simply saying that, no, they could demonstrate, perhaps, that they've provided comprehensive electronic health record systems to similar sized organizations.

[00:14:25] Speaker 01:
So the size here, the size difference is, we talked about it before with Judge Wallach, 100 versus 1,600?

[00:14:31] Speaker 00:
My understanding is that they support 44 facilities at the VA and 56 for DOD.

[00:14:39] Speaker 00:
So 100 versus 1,600.

[00:14:42] Speaker 00:
This will be enterprise-wide for the VA, so approximately.

[00:14:45] Speaker 00:
1600 care sites.

[00:14:46] Speaker 05:
Intuitively, for a product like this, why does that scaling up matter?

[00:14:54] Speaker 05:
What's the challenge in scaling up?

[00:14:56] Speaker 05:
There may be an utterly obvious answer, in which case your answer won't take very long.

[00:15:02] Speaker 00:
For one thing, they haven't demonstrated that they've provided a comprehensive electronic health record system to anyone, let alone anyone the size of the VA.

[00:15:13] Speaker 00:
There's different facets to it, inpatient, outpatient.

[00:15:16] Speaker 00:
And they haven't demonstrated they provide that full scope to anyone.

[00:15:22] Speaker 00:
As far as why it can't be scaled, I

[00:15:25] Speaker 00:
I don't know exactly.

[00:15:26] Speaker 00:
That's their burden to demonstrate that their product is, in fact, scalable.

[00:15:30] Speaker 05:
I guess I'm just interested in something intuitive.

[00:15:32] Speaker 05:
If somebody said in the early days to word perfect, you're serving only 100,000 lawyers with your word processing program.

[00:15:44] Speaker 05:
And can you really supply it to a million?

[00:15:46] Speaker 05:
They would say, we're just going to copy it.

[00:15:49] Speaker 05:
So what's the difference?

[00:15:51] Speaker 00:
And maybe that could be in terms of the software.

[00:15:55] Speaker 00:
I don't know.

[00:15:55] Speaker 00:
That's plaintiff's burden to demonstrate that it is scalable.

[00:15:59] Speaker 00:
But this goes beyond simply providing software.

[00:16:02] Speaker 00:
The DNF states that the VAC can contract for the full scope of services.

[00:16:08] Speaker 00:
This includes integration, configuration, testing, deployment, hosting, organizational change management, training, and sustainment, and licenses necessary to deploy.

[00:16:18] Speaker 03:
What's the status of the contract now?

[00:16:20] Speaker 00:
It has not been awarded yet.

[00:16:23] Speaker 00:
So it goes well beyond simply handing over a CD to put into your computer.

[00:16:29] Speaker 00:
That's all I was asking.

[00:16:32] Speaker 00:
Yes.

[00:16:32] Speaker 00:
So because Clinicomp hasn't demonstrated that it's qualified to provide a comprehensive enterprise-wide... Is Clinicomp even a prospective bidder?

[00:16:42] Speaker 00:
Well, they stated that they would bid if such a competition were held.

[00:16:51] Speaker 00:
So we haven't disputed.

[00:16:53] Speaker 03:
Your opposing counsel said they didn't respond to either RFI.

[00:17:00] Speaker 03:
Does that matter?

[00:17:01] Speaker 00:
That's true, Your Honor.

[00:17:03] Speaker 00:
We didn't make an argument based on that, because while I'm not sure I agree with everything that Mr. Raleigh said, we agree that

[00:17:11] Speaker 00:
those two RFIs didn't specifically seek a commercial replacement of VISTA.

[00:17:16] Speaker 00:
So in that sense, we didn't make an argument based on that.

[00:17:21] Speaker 03:
One of the things you're saying is Clinicom fails to demonstrate they could perform a contract of this magnitude.

[00:17:33] Speaker 03:
Has anyone ever successfully made such a demonstration?

[00:17:37] Speaker 00:
Well, Cerner's currently implementing the new system for DoD.

[00:17:45] Speaker 00:
So that's an example that might be relevant.

[00:17:50] Speaker 00:
I don't know.

[00:17:51] Speaker 00:
It's exactly the size of the VA.

[00:17:53] Speaker 00:
It may be less.

[00:17:54] Speaker 00:
But another example, in the Grant Thornton report that's at tab 7 of the administrative record, I think it's around 10 to 33 to 10 to something.

[00:18:06] Speaker 00:
mentions in the cost section about the Kaiser Permanente might be another one that Grant Thornton considered similar in scope.

[00:18:15] Speaker 00:
So there could be other examples that might not be exact to the VA.

[00:18:21] Speaker 03:
And those are ones in which a doc at a military base enters information about someone who's been wounded.

[00:18:33] Speaker 03:
And when they transfer over to VA,

[00:18:37] Speaker 00:
uh... it it would pop up in other words it's it's it's integrated uh... patient electronic well i i don't know that i i don't know that anyone's ever i don't think anyone's ever done this this single common system between two entities the side of the day of the of the of the four i think secretary shulkin maybe even said this this has never been done before and his his press conference on so in that in that sense no as far as that that aspect goes

[00:19:05] Speaker 00:
I don't believe this has been done before, but I mean, you could show... It's failed a long time.

[00:19:10] Speaker 00:
You could show perhaps the possibility of that by demonstrating, you know, your size.

[00:19:15] Speaker 00:
For example, you know, Cerner's, I think, states they have 24,000 associates or something like that, you know, billions of dollars of revenue.

[00:19:22] Speaker 00:
Things of that nature might demonstrate that, hey, we've done this at a little bit of a less scale.

[00:19:26] Speaker 00:
We can scale up based on that.

[00:19:29] Speaker 00:
Clinicomp, on the other hand, has not demonstrated that there

[00:19:33] Speaker 00:
anywhere in that realm.

[00:19:34] Speaker 00:
This is simply not a close case on whether they're qualified bidder.

[00:19:39] Speaker 05:
Are we reviewing under a clear error standard the Court of Federal Claims determination that Clinicom did not establish that it was a qualified bidder?

[00:19:48] Speaker 00:
Yes, Your Honor, that's correct.

[00:19:51] Speaker 00:
It goes to prejudice, and the court stated on different occasions that prejudice is clear error.

[00:19:58] Speaker 00:
I think Diaz is the case we cited in our brief.

[00:20:00] Speaker 03:
Do you agree the Weeks Marine standard applies?

[00:20:03] Speaker 00:
We don't agree that the Weeks Marine standard applies.

[00:20:06] Speaker 00:
Ultimately, it doesn't really matter in this case, because Clinic Comp needs to demonstrate that it's a qualified bidder, whether it's under the, quote, non-trivial competitive injury test or the substantial chest test.

[00:20:21] Speaker 00:
Exactly.

[00:20:21] Speaker 00:
I mean, Weeks Marine itself emphasized the government's concession in that case, that Weeks Marine did have the capability to, and the financial and the technical capability

[00:20:31] Speaker 00:
to perform the contract that was at issue.

[00:20:34] Speaker 00:
We don't see any reason why.

[00:20:36] Speaker 03:
What about the duty to perform market research?

[00:20:41] Speaker 00:
Well, that doesn't have any relevance to the standing inquiry.

[00:20:46] Speaker 00:
But as far as any duty to perform market research, the government conducted market research.

[00:20:54] Speaker 00:
It did conduct the two RFIs while not directly on point to this issue relate to VISTA.

[00:20:59] Speaker 00:
It also commissioned Grant Thornton

[00:21:01] Speaker 00:
to look at various options for specifically replacing VISTA, three of which were commercial off-the-shelf options.

[00:21:10] Speaker 00:
And in fact, they chose a commercial off-the-shelf option by choosing Cerner.

[00:21:15] Speaker 00:
So that claim failed.

[00:21:17] Speaker 00:
Besides being irrelevant to standing, it fails on the merits as well.

[00:21:28] Speaker 03:
You know, that wasn't a throwaway that I said they've tried before.

[00:21:31] Speaker 03:
You said in the red break, VA and DOD have been trying for 20 years.

[00:21:37] Speaker 00:
That's true, Your Honor.

[00:21:38] Speaker 00:
They've been trying to make their systems more interoperable for 20 years.

[00:21:43] Speaker 00:
And ultimately, that was to get to the merits of a little bit, I suppose.

[00:21:47] Speaker 00:
That was the real basis of this decision is that we've been trying to make our separate systems interoperable for 20 years.

[00:21:54] Speaker 00:
We'll be trying to get them to talk to each other in a way

[00:21:57] Speaker 00:
that gives us the highest level of care for veterans, and it simply hasn't happened.

[00:22:01] Speaker 03:
That's my hypo, the person who's wounded.

[00:22:06] Speaker 03:
The Army's taking care of them, and then transfers them over, and it sure would help if the VA could read them.

[00:22:12] Speaker 00:
Yeah, it would be great if the VA could simply look at the same record that the DOD's looking at.

[00:22:18] Speaker 00:
Here instead, what we've gotten to, which is an improvement, is this Joint Legacy Viewer System where

[00:22:23] Speaker 00:
where that information can be viewed in read-only and transferred over in that sense.

[00:22:28] Speaker 00:
But it doesn't allow for that, you know, complete seamless care that the VA and DOD are looking for.

[00:22:36] Speaker 03:
And it's specifically stated in the DNF that if we don't... This envisions, as I understand what you're saying, this envisions the VA doctor effectively being able to talk to the army doctor in that type of thing.

[00:22:50] Speaker 00:
In a sense, yes, through the records where you're operating off of a single common system that you would be able to enter something in and then it would appear at DOD or vice versa that you would be operating off essentially the same system.

[00:23:05] Speaker 00:
So I see that my time is almost up.

[00:23:07] Speaker 00:
So respect for request that the court affirm the judgment of the trial court.

[00:23:12] Speaker 06:
Thank you.

[00:23:24] Speaker 06:
Good morning, Your Honors.

[00:23:25] Speaker 06:
May it please the Court.

[00:23:26] Speaker 06:
I'd like to start with the question about the single common system.

[00:23:30] Speaker 06:
I want to emphasize that with respect to standing, it's critical.

[00:23:33] Speaker 06:
And it's critical to the DNF that the VA issued.

[00:23:37] Speaker 06:
It's not just that they want interoperability, because that, as we've seen in two separate systems, while improving, will never quite get you to the seamless care that you want.

[00:23:47] Speaker 06:
So in terms of talking to each other, I think of interoperability more as kind of the playing telephone game.

[00:23:53] Speaker 06:
whereas the single common system would be one person having all the information.

[00:23:58] Speaker 06:
There's liable to be breakdowns every time you transfer from one person to another.

[00:24:02] Speaker 06:
There's liable to be data latency lags, and so on and so forth.

[00:24:05] Speaker 06:
So that's why the VA surveying the history and all of the failures that went before decided it was critical for veteran and active military care to have one seamless single common system.

[00:24:18] Speaker 06:
And so I want to focus the rest of my remarks today on the question of reviewability, because I think this case exemplifies exactly the type of discretionary decision that Congress has committed to the agency.

[00:24:33] Speaker 01:
What about the regulations that Judge Toronto discussed with your friend on the other side?

[00:24:37] Speaker 06:
Certainly.

[00:24:38] Speaker 06:
So the regulation in question is 1.704 of the FAR.

[00:24:42] Speaker 06:
And among other things, it says, here's the form that the DNF has to take.

[00:24:46] Speaker 06:
It has to be signed.

[00:24:47] Speaker 06:
It has to have an expiration date.

[00:24:49] Speaker 06:
And it has to include clear and convincing evidence to support the decision.

[00:24:55] Speaker 06:
And here's why that doesn't provide a standard.

[00:24:58] Speaker 06:
If you look at the Steenhold decision, not from this court, but from the DC Circuit, but it's, I submit, very instructive, in that case, a similar argument was made that the

[00:25:09] Speaker 06:
Evidentiary standard there, substantial evidence, provided enough law to apply.

[00:25:15] Speaker 06:
And the court looked at it and said, no, that's just a standard of review, a standard of evidence.

[00:25:20] Speaker 06:
It doesn't ultimately provide a substantive standard, which is what the Supreme Court in Webster and this court in Allman Brothers and other cases has held.

[00:25:29] Speaker 06:
And so when you look at that test,

[00:25:32] Speaker 06:
We submit that this is squarely within the agency discretion for three primary reasons.

[00:25:37] Speaker 06:
First, the language of the statute itself, determine in the public interest, is identical to the language in a statute in Claybrook, where it said determine in the public interest.

[00:25:49] Speaker 06:
Now, it was another statute dealing with another topic, but the D.C.

[00:25:52] Speaker 06:
Circuit in that case looked at it and said that indicates

[00:25:56] Speaker 06:
not just that it is in the public interest, but that the agency must determine that it is.

[00:26:03] Speaker 06:
And the court said that's just like in Webster, where the agency had to deem whether something was in the national interest.

[00:26:10] Speaker 06:
And we submit the language here is identical or indistinguishable from both of those.

[00:26:14] Speaker 06:
That's the first.

[00:26:14] Speaker 06:
Yes.

[00:26:15] Speaker 05:
Can I ask you this question?

[00:26:17] Speaker 05:
Do you have a case in which the

[00:26:20] Speaker 05:
either we or the DC Circuit or some other court found non-reviewability where the government was a party and didn't argue for it?

[00:26:29] Speaker 06:
I don't have that such a case, but I would submit that it's jurisdictional.

[00:26:33] Speaker 06:
This court has said that it's jurisdictional in the McCarthy decision, said it was a jurisdictional hurdle.

[00:26:39] Speaker 05:
How long ago was McCarthy?

[00:26:41] Speaker 06:
A couple of years ago.

[00:26:43] Speaker 05:
Just a couple of years ago?

[00:26:43] Speaker 06:
Yes, I believe it was 2016.

[00:26:45] Speaker 05:
Why would you consider that to be jurisdictional?

[00:26:49] Speaker 05:
our world has become considerably more demanding about the usage of that term in the last 10 years.

[00:26:58] Speaker 06:
A fair point, Your Honor.

[00:26:59] Speaker 06:
I think it was taking its cue from the Supreme Court in the ICC decision, which also characterized it as jurisdictional.

[00:27:06] Speaker 06:
And the DC Circuit in the Steenhold and Claybrook decisions both held that it was jurisdictional and disposed of the case on that ground.

[00:27:16] Speaker 06:
And so for that reason, I think this court followed suit.

[00:27:20] Speaker 06:
And so for that reason, it's sort of either here nor there whether the government raises it, although I would point out that the government didn't dispute it.

[00:27:27] Speaker 05:
Is that a Hobbs Act case, the D.C.

[00:27:28] Speaker 05:
Circuit one?

[00:27:30] Speaker 05:
That is directly to the Court of Appeals?

[00:27:32] Speaker 06:
I believe at least one of them was.

[00:27:34] Speaker 06:
OK.

[00:27:35] Speaker 06:
I believe at least one of them was.

[00:27:36] Speaker 03:
Has Cerner ever performed a contract of comparable size?

[00:27:41] Speaker 06:
Well, I would submit that the DOD contract certainly provides evidence of similar scope.

[00:27:46] Speaker 06:
Is it exactly the same in all four corners?

[00:27:49] Speaker 06:
No, I would say no contract would be exactly the same.

[00:27:52] Speaker 06:
But in terms of the scope of it, we know the DOD contract is something around $4.6 billion.

[00:27:59] Speaker 06:
We know here the exact amount is not public, but we know it is billions.

[00:28:04] Speaker 06:
And certainly the types of services that provided are very similar, whereas Clinicomp has not shown that.

[00:28:10] Speaker 06:
But to get back to the reviewability point,

[00:28:13] Speaker 06:
I would forego my rebuttal time and go ahead and use whatever remaining time I have now to please the Court.

[00:28:19] Speaker 01:
Well, you have none.

[00:28:20] Speaker 01:
In that case... Final point.

[00:28:22] Speaker 06:
Final point.

[00:28:23] Speaker 06:
This was a matter that Congress left to the political accountability, not to the judicial accountability, and we submit that that's exactly what happened when Congress passed the appropriation just recently to fund this very program.

[00:28:35] Speaker 06:
Thank you.

[00:28:36] Speaker 06:
Thank you.

[00:28:45] Speaker 04:
I'll briefly address the issue of re-ubility.

[00:28:47] Speaker 04:
As the claims court recognized, FAR 1.704 requires the agency to clearly and convincingly justify, justify whom?

[00:28:56] Speaker 04:
Obviously, this rec, this rec, regulation itself recognizes that someone is going to review it.

[00:29:03] Speaker 04:
The, the Administrative Disputes Resolution Act provides for review of agency procurement decisions as to whether they relate to violations of statute or regulation.

[00:29:14] Speaker 04:
It can be reviewable.

[00:29:16] Speaker 04:
It should be reviewed.

[00:29:17] Speaker 04:
And that's why the VA probably didn't object on the reviewability issue earlier.

[00:29:21] Speaker 04:
The evidence concerning the DOD case, the DOD rollout in the administrative record before this court is limited.

[00:29:29] Speaker 04:
It has a total number.

[00:29:30] Speaker 04:
But at least as a time of the decision by the Court of Federal Claims, that had not been rolled out everywhere.

[00:29:37] Speaker 04:
And I don't know that there is any evidence that shows that Cerner has done this DOD-wide.

[00:29:44] Speaker 04:
The considerations that the VA has, it says it has, that it would be large, that rolling out to DOD would be large.

[00:29:55] Speaker 04:
No, sir.

[00:29:56] Speaker 04:
I don't dispute that rolling out DOD-wide would be large or that the VA's comment, the former secretary of the VA's comment, that the VA one would be larger.

[00:30:07] Speaker 04:
I don't dispute either of those.

[00:30:09] Speaker 04:
I just point out that I don't believe there's anything in the record that has been completed

[00:30:13] Speaker 04:
which would go to Cerner's qualifications.

[00:30:16] Speaker 04:
My point earlier was no one has done this yet.

[00:30:19] Speaker 04:
So to put Clinicomp to a standard when you have no solicitation and Cerner themselves hasn't done it is an incorrect evaluation.

[00:30:28] Speaker 04:
Clinicomp is a qualified bidder and should have the opportunity to put in a proposal.

[00:30:35] Speaker 04:
It may not win, but the VA's concerns that it's raised about whether Clinicomp

[00:30:40] Speaker 04:
could do this would be evaluated in a full competition.

[00:30:45] Speaker 03:
One of the nontrivial... This is the first... I probably just missed it, but this is the first I remember hearing that Cerner isn't fulfilling a contract with the DOD.

[00:30:59] Speaker 04:
I don't... The point, Your Honor, is that it was not completed.

[00:31:05] Speaker 03:
They're doing it, are they not?

[00:31:06] Speaker 04:
They said that they were rolling it out.

[00:31:08] Speaker 04:
That's what is in the administrative record, as I recall, Your Honor.

[00:31:12] Speaker 03:
That it was being... Are they present operating at the DOD from the record?

[00:31:18] Speaker 04:
From the record, I don't believe the record establishes they are doing it across DOD, outside of... Are they doing it within DOD?

[00:31:25] Speaker 04:
I believe they are doing some of the services.

[00:31:27] Speaker 03:
Something like a thousand?

[00:31:29] Speaker 04:
Your Honor, I don't believe so.

[00:31:30] Speaker 04:
I think they were rolling it out.

[00:31:32] Speaker 04:
Lidos is the prime.

[00:31:34] Speaker 04:
Clint Cerner is the sub.

[00:31:36] Speaker 04:
And the administrative record established, I believe, that they were rolling it out in one particular region first to try it out.

[00:31:43] Speaker 04:
I don't know the status of that now.

[00:31:44] Speaker 04:
My understanding is it hasn't been rolled out.

[00:31:46] Speaker 04:
That's not in the record, Your Honor.

[00:31:50] Speaker 04:
Clinicomp is a qualified bidder.

[00:31:53] Speaker 04:
What they are required to establish for standing is non-trivial competitive injury.

[00:31:59] Speaker 04:
They will suffer economic injury because some of their work will be taken away from them

[00:32:04] Speaker 04:
and given to Cerner and they were not given an opportunity to bid on a prospective future contract.

[00:32:19] Speaker 04:
My point would be that weeks should apply, that a non-trivial competitive injury has occurred, and that there is a procedural problem here, and that is that this was not competed, and that the court should grant permanent injunctive relief, precluding the award.

[00:32:35] Speaker 04:
Well, then, Clinicomp and everyone could follow the rules of the Competition and Contracting Act and provide a proposal for the services.

[00:32:43] Speaker 04:
Thank you.

[00:32:44] Speaker 04:
Thank you.

[00:32:55] Speaker 01:
Judge Wallach had a final question.

[00:32:58] Speaker 03:
For Cerner.

[00:33:02] Speaker 03:
What's the status of Cerner's DOD contract?

[00:33:05] Speaker 03:
Are they doing it or aren't they?

[00:33:07] Speaker 06:
They are.

[00:33:07] Speaker 06:
They're currently rolling it out.

[00:33:08] Speaker 06:
It has been rolled out, I believe, in Seattle or in that region.

[00:33:11] Speaker 06:
And there's a schedule to roll it out in various stages.

[00:33:13] Speaker 06:
So they are doing it.

[00:33:14] Speaker 06:
OK.

[00:33:14] Speaker 03:
So your opposing counsel is correct in this statement?

[00:33:17] Speaker 06:
Yes.

[00:33:18] Speaker 01:
OK.

[00:33:18] Speaker 01:
Thank you.

[00:33:18] Speaker 01:
Thank you.

[00:33:19] Speaker 01:
We thank both sides.

[00:33:20] Speaker 01:
The case is submitted.

[00:33:21] Speaker 01:
That concludes our pursuing for this moment.