[00:00:32] Speaker 01:
All right.

[00:00:33] Speaker 01:
The final appeal we'll hear today is appeal number 18-1209, DynCorp International versus United States.

[00:00:45] Speaker 01:
Mr. Paner.

[00:00:48] Speaker 02:
Good morning, Judge Chen.

[00:00:49] Speaker 02:
May it please the court?

[00:00:50] Speaker 02:
We've explained in our briefs why each of three significant errors in the contracting officer selection decision

[00:00:57] Speaker 02:
requires at a minimum that the procurement be remanded to the agency for further consideration.

[00:01:02] Speaker 02:
And this morning, I'd like to focus on the first two of those issues.

[00:01:07] Speaker 02:
First, with respect to the evidence of impropriety on the part of AAR, the contracting officer's decision was arbitrary and capricious for both of two reasons.

[00:01:19] Speaker 02:
First, it failed properly to consider whether AAR's conduct created an appearance of impropriety.

[00:01:27] Speaker 02:
considering solely whether there was the appearance of a specific statutory violation or a basis for finding that AAR was not a responsible contractor.

[00:01:37] Speaker 02:
This court's cases make clear that that is not the correct standard.

[00:01:41] Speaker 02:
And secondly, the contracting officer's decision rested on a factual finding, including multiple factual findings, but in particular on the finding that AAR did not seek, obtain, or use confidential and proprietary

[00:01:57] Speaker 02:
DynCorp information that is contrary to the evidence in the record that the government does not defend.

[00:02:06] Speaker 02:
So that's with respect to the first issue.

[00:02:07] Speaker 00:
With respect to the second issue... With respect to the first issue, then, I know you're going through your list quickly, but just very quickly, you say that the contracting officer didn't address the question of appearance.

[00:02:21] Speaker 00:
I mean, he did say they didn't find an appearance.

[00:02:24] Speaker 00:
Your argument, I take it, is that

[00:02:26] Speaker 00:
implicit in what he said and the way he said it, the context and so forth, is that he used the wrong standard?

[00:02:32] Speaker 02:
Correct, your honor.

[00:02:32] Speaker 02:
So what he said was that he did say the words, I don't find an appearance of impropriety, see below.

[00:02:40] Speaker 02:
And then when he discussed the issue, he discussed it specifically with respect to whether there was an appearance of a violation of the Procurement Integrity Act, and he also found that AAR was a responsible contractor.

[00:02:53] Speaker 02:
But again, that really ignored the

[00:02:55] Speaker 02:
One of the principle points that DynCorp had relied on before the agency, which was that the various steps that AAR had taken to seek, obtain, and use DynCorp's confidential information created, at a minimum, an appearance of impropriety.

[00:03:17] Speaker 02:
Again, the contracting officer never appropriately addressed that question.

[00:03:22] Speaker 02:
Now, with respect to the disqualification of DynCorp

[00:03:26] Speaker 02:
for proposing that the IT associate contractor would take responsibility for the operations and maintenance of the MIS system after the transition.

[00:03:37] Speaker 02:
Not only did the agency mislead DynCorp with regard to whether that was something that was within the discretion of the aviation contractor to propose, but more significant perhaps that treated AAR's proposal as superior

[00:03:55] Speaker 02:
even though AAR's proposal, I think, reasonably read, takes that same approach.

[00:04:01] Speaker 02:
And with respect to this latter point, AAR said that as directed by the contract operation, with respect to the COR, that it would deliver responsibility for operations and maintenance to the IT associate contractor.

[00:04:18] Speaker 02:
And in saying that, moreover, that proposal needs to be understood in light of

[00:04:24] Speaker 02:
technical evaluation notices that AAR had received that specifically said the IT associate contractor will have responsibility for the MIS operations and maintenance after transition.

[00:04:37] Speaker 02:
And AAR's proposal actually refers to those TENs in the version that the agency accepted.

[00:04:48] Speaker 02:
And the only explanation for this, to be sure the contracting officer

[00:04:53] Speaker 02:
said that, well, no, I understood AAR to be proposing that it would handle operations and maintenance throughout, but that explanation came only later and therefore under the CRA case and others, it's really entitled to less weight because it is essentially admissible to be sure, but it's a post hoc rationalization for the decision.

[00:05:14] Speaker 02:
which should not be given the same weight as contemporaneous evidence of the understanding of the contracting office.

[00:05:22] Speaker 01:
Was there something ambiguous about the amendment to the solicitation that deleted the one sentence and replaced it with another?

[00:05:29] Speaker 02:
There was, Your Honor, because what the amendment did was it said, we're taking out this sentence.

[00:05:37] Speaker 02:
But what it replaced it with was it said that the IT associate contractor would have responsibility for the existing

[00:05:44] Speaker 02:
information system until transition.

[00:05:47] Speaker 02:
What it did not say, which would have presumably been the way to eliminate the ambiguity, was it did not say that after transition the aviation contractor will have responsibility for operations and maintenance of the new MIS.

[00:06:04] Speaker 02:
There's no doubt that design and implementation of the MIS was the responsibility of the aviation

[00:06:13] Speaker 02:
contractor, but what was not clear was what would happen after that transition.

[00:06:19] Speaker 00:
But when the Senate says that X will be the case until date Y, it seems to me the very strong implication is that the situation would be different after date Y. But the situation would be different if the question was whether the bidder chose to propose handling maintenance and operations itself

[00:06:43] Speaker 02:
or putting it in the hand of the IT associate contractor.

[00:06:47] Speaker 02:
And the reason that DynCorp was misled during the course of the evaluation was that with regard to several elements of the management information system, they received evaluation notices which said, in essence, is this going to be something that you handle, or is it something that you expect to be put within the responsibility of the

[00:07:13] Speaker 02:
IT associate contractor.

[00:07:16] Speaker 02:
And that, by posing that question, it suggested that that was something that was within the discretion of the offeror to choose that approach.

[00:07:28] Speaker 01:
Is there another way of reading it in the sense that perhaps the government felt like when it deleted the incorrect sentence from the solicitation and replaced it with something that's perhaps not as crystal clear as you would have liked it, but it's still

[00:07:43] Speaker 01:
informative and then perhaps also in context with a particular question and answer about who's going to be handling the MIS, then this particular inquiry from the government about maybe it could be understood as simply saying we cannot tell whether you've incorporated in your bid proposal that you will be taking responsibility over the MIS.

[00:08:10] Speaker 01:
Could you clarify that?

[00:08:11] Speaker 01:
Is that one way of

[00:08:12] Speaker 01:
reading it as opposed to inviting the bid proposal to either include operation and maintenance of MIS or not incorporating operation of the MIS into the bid proposal.

[00:08:28] Speaker 02:
Right.

[00:08:29] Speaker 02:
I apologize if I don't exactly understand the distinction your honor is drawing, but let me just say that I think that the natural thing to do in the course of this discussion

[00:08:42] Speaker 02:
if the proposal failed to address something that was within the responsibility of the bidder is to say, you have responsibility for this and you have not shown how you're doing it, so please tell us how you're doing it, rather than to say, are you planning to do this?

[00:09:03] Speaker 02:
Are you planning to have the IT associate contractor do it?

[00:09:06] Speaker 02:
I don't think that one should read that as being a sort of sarcastic inquiry.

[00:09:10] Speaker 02:
It's presumably

[00:09:12] Speaker 02:
suggesting that these are two approaches.

[00:09:14] Speaker 02:
Please tell us which one you're going to pursue.

[00:09:16] Speaker 02:
And again, I think that the idea that this was so utterly clear that this was something that had to be handled by the aviation contractor is belied by the fact that in the AAR's proposal, even read as they say it should be read, it says,

[00:09:41] Speaker 02:
will transition, as directed, will transition the operations and maintenance to the IT associate contractor.

[00:09:47] Speaker 02:
Well, why would they have said that if it was crystal clear that the aviation contractor was going to handle operations and maintenance?

[00:09:56] Speaker 02:
And so that's, again, at a minimum, because there was this misleading of

[00:10:08] Speaker 02:
with respect to this aspect of the proposal and this disparate treatment with regard to the proposals that were received.

[00:10:15] Speaker 02:
And because there's no dispute actually that if this disqualification was mistaken, that the contracting officer's decision cannot be upheld, that this should go back, the procurement should go back to the agency and be reconsidered.

[00:10:34] Speaker 02:
And I think that one of the things

[00:10:37] Speaker 02:
is significant about the third issue, which I said I wasn't going to talk about, but I'm going to now talk about it a little bit because I think it's significant to the relief.

[00:10:45] Speaker 02:
If you look at the plain language of the solicitation with respect to the inclusion of required elements within the four corners of the proposal, it made clear that anything that was not included within the proposal was not going to be considered.

[00:11:03] Speaker 02:
And there's no dispute that

[00:11:06] Speaker 02:
AAR failed to include necessary staffing within the four corners of their proposal.

[00:11:12] Speaker 02:
They included it in a response to a evaluation notice.

[00:11:19] Speaker 02:
What should have happened at that point is that the contracting officer should have done further discussion, said, we have this proposal.

[00:11:28] Speaker 02:
It's not good enough.

[00:11:29] Speaker 02:
We need to have the proposal

[00:11:32] Speaker 02:
revised to reflect the staffing proposal, otherwise it's insufficient.

[00:11:37] Speaker 02:
But had that happened, then there would have been further discussions with Dime Corp.

[00:11:41] Speaker 02:
So it's really by cutting off prematurely the process when the proposal was not complete and didn't address, simply accepting the proposal in its incomplete state, the contracting officer thereby

[00:12:00] Speaker 02:
disadvantaged DynCorp with respect to the opportunity to respond further.

[00:12:05] Speaker 02:
I see I'm into my rebuttal time.

[00:12:10] Speaker 01:
All right.

[00:12:10] Speaker 01:
We'll save the remainder of your time.

[00:12:13] Speaker 01:
And let's hear from Mr. Edelschick.

[00:12:20] Speaker 04:
Yes, Your Honor.

[00:12:25] Speaker 04:
May it please the Court.

[00:12:28] Speaker 04:
The trial court correctly held that the State Department had a rational basis with respect to each of the fact-intensive decisions that Dine Corp challenges in this protest.

[00:12:39] Speaker 04:
For example, on procurement integrity, the agency conducted a detailed review, gathered sworn evidence, and wrote a 24-page memorandum before concluding ultimately that AAR did not violate the PIA.

[00:12:56] Speaker 04:
Now on appeal,

[00:12:57] Speaker 04:
DynCorp does not argue that AAR actually violated the Procurement Integrity Act, the PIA, or any other statute or regulation.

[00:13:08] Speaker 04:
Instead, DynCorp is arguing that AAR engaged in what they call misconduct by obtaining five-year-old salary information pertaining to DynCorp's incumbent contract.

[00:13:24] Speaker 04:
However,

[00:13:26] Speaker 04:
The Procurement Integrity Act is not a catch-all for all business ethics issues.

[00:13:31] Speaker 04:
It only governs bid and proposal information.

[00:13:35] Speaker 04:
And none of the Dying Corp information in AAR's possession was used in any Dying Corp bid or proposal.

[00:13:46] Speaker 04:
That's undisputed.

[00:13:48] Speaker 04:
So the Procurement Integrity Act doesn't govern here.

[00:13:54] Speaker 04:
Business ethics is also a subject that comes up in the responsibility determination under part nine of the FAR.

[00:14:02] Speaker 04:
However, the contracting officer's detailed responsibility assessment is not challenged by dying corp on appeal.

[00:14:10] Speaker 04:
So the alleged impropriety is an appearance of a PIA violation.

[00:14:18] Speaker 04:
The contracting officer carefully examined that question

[00:14:24] Speaker 00:
and ultimately found that the PIA... Is it an appearance of a PIA violation or an appearance of impropriety not necessarily tied to the PIA, in your view?

[00:14:38] Speaker 04:
This appearance of impropriety concept comes up in a few different contexts.

[00:14:44] Speaker 04:
It comes up in the Procurement Integrity Act context.

[00:14:47] Speaker 04:
It also has come up in the organizational conflict of interest context.

[00:14:53] Speaker 04:
And it certainly can come up in the responsibility context.

[00:14:58] Speaker 04:
But the impropriety has to be connected to some violation of law.

[00:15:03] Speaker 04:
And there's been no allegation that there was any violation of law here.

[00:15:10] Speaker 00:
But could it be related to the theft of a trade secret?

[00:15:17] Speaker 00:
In other words, not a violation technically.

[00:15:20] Speaker 00:
I certainly am not familiar enough with the FAR to be able to say that the trade secret of misappropriation is not within the FAR, but if it's not, would that be sufficient to constitute an appearance of impropriety?

[00:15:33] Speaker 04:
If we're talking about the Procurement and Integrity Act, if that trade secret information that was stolen was used in a bidder proposal, then it would be an appearance of a PIA violation.

[00:15:46] Speaker 04:
Otherwise,

[00:15:47] Speaker 00:
Well, it would be a PIA violation, would it not?

[00:15:49] Speaker 00:
Period.

[00:15:51] Speaker 00:
Never mind appearance.

[00:15:54] Speaker 00:
Potentially.

[00:15:55] Speaker 00:
My question really goes to what the role of this notion of an appearance is, where you may not have an actual violation, but you have something that just makes the entire acquisition look very bad.

[00:16:13] Speaker 04:
An appearance versus an actual violation, there's an important distinction here.

[00:16:19] Speaker 04:
Where there is an actual violation, bid and proposal information is obtained by the contractor improperly, and that's a violation.

[00:16:31] Speaker 04:
When you're talking about the appearance, well, what if the offeror hires somebody who has seen bid and proposal information?

[00:16:43] Speaker 04:
They don't actually get the bid and proposal information in and of itself.

[00:16:48] Speaker 04:
So there's no violation of the Procurement Integrity Act.

[00:16:51] Speaker 04:
But nonetheless, because they hired somebody who has that bid and proposal information potentially in their head, that's an appearance of impropriety.

[00:17:02] Speaker 01:
Is that what happened here?

[00:17:04] Speaker 04:
No, Your Honor, because there is no dispute that none of the Dime Corp information

[00:17:11] Speaker 04:
that was in AAR's possession was used in any DynCorp bidder proposal.

[00:17:17] Speaker 01:
It's not the initial proposal?

[00:17:20] Speaker 01:
I understand.

[00:17:23] Speaker 04:
There's two separate questions here.

[00:17:29] Speaker 04:
Your question goes to AAR's initial proposal.

[00:17:33] Speaker 04:
Right.

[00:17:33] Speaker 04:
But for the PIA analysis, the question is, is this DynCorp bidder proposal information?

[00:17:41] Speaker 04:
And none of the DynCorp information that AAR had was DynCorp bid and proposal information.

[00:17:49] Speaker 01:
It's a... It was from DynCorp's predecessor contract, right?

[00:17:54] Speaker 01:
That's right.

[00:17:54] Speaker 01:
That information.

[00:17:55] Speaker 04:
That's right.

[00:17:56] Speaker 04:
And the contracting officer specifically found that, quote, seeking information about an incumbent contract is not uncommon and is generally done by offerors.

[00:18:06] Speaker 04:
He found no misconduct here.

[00:18:12] Speaker 04:
And regardless, the contracting officer found, based on sworn evidence, that AAR did not rely upon any Dying Corp information of any kind in its final proposal.

[00:18:24] Speaker 00:
Its final proposal, the initial proposal, different result?

[00:18:30] Speaker 04:
With respect to the initial proposal, there was some behind the scenes work where an employee did make use of the Dying Corp information, but due to

[00:18:40] Speaker 04:
An irony in this case, AAR actually forgot to include it in their original proposal.

[00:18:46] Speaker 00:
Was this the Hamilton information or the Peterson information?

[00:18:50] Speaker 04:
The Hamilton salary information was used to generate a spreadsheet that ultimately AAR forgot to use.

[00:18:58] Speaker 01:
So if AAR had not forgotten, it would have been part of AAR's final proposal?

[00:19:06] Speaker 01:
No, Your Honor.

[00:19:07] Speaker 00:
That was the initial proposal you were talking about, right, with me?

[00:19:10] Speaker 04:
Yes, the initial proposal.

[00:19:11] Speaker 01:
Actually, no, Your Honor, because... I guess I wasn't following your train of thought when you said they'd forgotten to include it in their proposal.

[00:19:20] Speaker 04:
AAR forgot to include the Hamilton salary information in the original proposal.

[00:19:25] Speaker 01:
In the initial proposal.

[00:19:26] Speaker 04:
The original proposal, that's right.

[00:19:29] Speaker 04:
They forgot to include their key and essential employee salaries, and actually, Dying Corp pointed that out in one of their many protests before the GAL.

[00:19:39] Speaker 01:
So I don't understand.

[00:19:40] Speaker 01:
Are you saying that the Hamilton information was not used in either the final proposal by AAR or the initial proposal by AAR?

[00:19:50] Speaker 04:
Correct.

[00:19:51] Speaker 04:
That's absolutely correct.

[00:19:55] Speaker 04:
And the contracting officer also did a deep dive and compared the two proposals side by side and found there were no similarities in the labor rates between the two proposals.

[00:20:08] Speaker 04:
No overlap at all in the two proposals.

[00:20:11] Speaker 01:
We're talking about the final proposal now.

[00:20:13] Speaker 04:
Yes.

[00:20:13] Speaker 01:
What about the initial proposal?

[00:20:16] Speaker 04:
The initial proposals, back in 2016, there was an initial PIA review that the contracting officer conducted.

[00:20:29] Speaker 04:
And he also found no overlap and no similarities between the labor rates.

[00:20:36] Speaker 04:
So the contracting officer did that analysis twice, once initially, and then again, during the remand.

[00:20:43] Speaker 00:
Could you address the IT associate contractor MIS issue?

[00:20:48] Speaker 04:
Certainly, Your Honor.

[00:20:50] Speaker 04:
DynCorp argues that the solicitation itself did not cover the O&M work for the MIS.

[00:20:57] Speaker 04:
This is directly contrary to the solicitation language that they don't even bother to address.

[00:21:02] Speaker 04:
Their arguments are predicated on an assumption

[00:21:06] Speaker 04:
that the things that eviscerate their arguments don't exist.

[00:21:10] Speaker 04:
For example, the very first evaluation criteria was administration and maintenance, including the MIS.

[00:21:19] Speaker 04:
And the solicitation says that the contractor, the aviation contractor, will input and maintain the preponderance of the data in the MIS.

[00:21:30] Speaker 00:
Of course, AAR wasn't clear about that, I take it.

[00:21:34] Speaker 04:
Yes, they were, Your Honor.

[00:21:36] Speaker 00:
Initially, did they not propose using a contractor for that work?

[00:21:42] Speaker 04:
No, Your Honor, they did not.

[00:21:44] Speaker 04:
What they did was they proposed to do all the O&M work from inception all the way to contract closeout.

[00:21:52] Speaker 04:
The entire life cycle, they proposed to do that work.

[00:21:56] Speaker 04:
They had included that work in their proposal in every single year of all of the potential out years of this contract.

[00:22:04] Speaker 04:
But they also included the sentence that's seized upon by Dying Corp, which is to say, if a contracting officer's representative asks us to transfer it, we'll do whatever the government wants.

[00:22:18] Speaker 00:
We didn't quite say that.

[00:22:18] Speaker 00:
It said, I think, as requested by the contracting officer's representative, not if.

[00:22:24] Speaker 00:
I mean, that's the argument that your opposing counsel is making.

[00:22:28] Speaker 00:
It's predicated on that difference, it seems to me.

[00:22:30] Speaker 04:
Well, I'm, I'm arguing as the agency understood it.

[00:22:34] Speaker 00:
And the language itself was more ambiguous.

[00:22:38] Speaker 04:
Yes.

[00:22:39] Speaker 04:
It's a potentially ambiguous sentence and it was incumbent upon the contracting officer to weigh that evidence in the first instance.

[00:22:48] Speaker 04:
It certainly could be.

[00:22:51] Speaker 00:
I understand the argument.

[00:22:52] Speaker 00:
I thought there was some point at which AAR actually did propose

[00:22:57] Speaker 00:
to have the MIS work done by a contractor.

[00:23:02] Speaker 00:
Is that not true?

[00:23:03] Speaker 00:
Am I misremembering?

[00:23:05] Speaker 04:
No, Your Honor.

[00:23:06] Speaker 04:
I believe there was an argument made to that effect by Dying Corp, and it's not supported by the record.

[00:23:13] Speaker 04:
OK.

[00:23:15] Speaker 04:
All right.

[00:23:15] Speaker 04:
Go ahead.

[00:23:15] Speaker 04:
Sorry.

[00:23:16] Speaker 04:
Just very briefly, Your Honor, the Q&A 197 specifically directed

[00:23:25] Speaker 04:
offerors to assign the MIS operation and maintenance costs to a particular line item.

[00:23:31] Speaker 04:
That's in the appendix 103.399.

[00:23:35] Speaker 04:
And amendment six to the solicitation at 103.966 says the requirements of that PWS line item are still the contractor's responsibility and pertain to the MIS proposed by the successful offeror.

[00:23:53] Speaker 00:
I know what I was thinking about.

[00:23:54] Speaker 00:
I think I was thinking about Q&A 21.

[00:23:58] Speaker 00:
Wasn't that response, you know, the Q&A I'm talking about, wasn't that a response to AARs in which the government said, no, no, this isn't to be done by the IT contractor?

[00:24:12] Speaker 04:
That's right, Your Honor.

[00:24:13] Speaker 00:
There were at least... That leads me to believe the AAR had a misapprehension before that.

[00:24:21] Speaker 00:
Now, the Q&A was,

[00:24:24] Speaker 00:
that the government's saying you can't do it with an IT contract, right?

[00:24:29] Speaker 04:
No.

[00:24:30] Speaker 04:
No, Your Honor.

[00:24:32] Speaker 00:
Q&A 21?

[00:24:32] Speaker 00:
That's what I'm talking about.

[00:24:33] Speaker 00:
I'm sorry.

[00:24:34] Speaker 00:
Q&A 21 is what I'm talking about, right?

[00:24:37] Speaker 04:
It supports the agency's interpretation of the solicitation.

[00:24:41] Speaker 00:
I understand that.

[00:24:41] Speaker 00:
But it was an answer to AAR, was it not?

[00:24:46] Speaker 04:
I don't recall who asked that particular question.

[00:24:48] Speaker 04:
But regardless of who asked it, the answer was clear and consistent.

[00:24:55] Speaker 04:
You need to be performing this MIS work.

[00:24:59] Speaker 04:
The IT associate contractor will not be performing that work.

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

[00:25:03] Speaker 00:
My only concern is that it sounds like somebody was not clear as to the proper allocation of work until at least Q&A 21.

[00:25:13] Speaker 04:
Your Honor, there was that stray sentence in the solicitation that was ultimately deleted that did create

[00:25:25] Speaker 04:
some questions about this, and that's why you had Amendment 6, Q&A 197, and the other underlying provisions in the solicitation never addressed by DynCorp, which clearly set forth the requirement for O&M work to be done by the aviation contractor.

[00:25:49] Speaker 04:
Very briefly, DynCorp was not misled in discussions.

[00:25:54] Speaker 04:
Essentially, the complaint is that the evaluation notices could have been a little bit more clear in reminding DynCorp, an experienced government contractor, that it should have been following the terms of the solicitation.

[00:26:10] Speaker 01:
Okay.

[00:26:11] Speaker 01:
Thank you.

[00:26:11] Speaker 01:
Let's hear from your co-counsel, Mr. Cohn.

[00:26:19] Speaker 03:
Thank you, Your Honor.

[00:26:20] Speaker 03:
May it please the court?

[00:26:21] Speaker 03:
The contracting officer most certainly did address the argument about the appearance and propriety.

[00:26:27] Speaker 03:
It did so on page 126092 of the appendix and 126095.

[00:26:32] Speaker 03:
And I quote from there, while DI appears to recognize that the information is not covered by the PIA, it argues that there are appearance issues and that AAR lacks a positive record of integrity in business ethics.

[00:26:46] Speaker 03:
I do not agree that the facts support these assertions.

[00:26:50] Speaker 03:
The contracting officer was correct in his thorough 24-page opinion, and the statute does not require any more specificity or analysis than the thorough analysis that he gave.

[00:27:01] Speaker 03:
I want to identify a few factors which he mentioned in the brief which confirmed that AAR was acting scrupulously and proactively.

[00:27:08] Speaker 00:
Before you do that, since this pertains to your client, or at least I think it does, am I misreading the exchange on Q&A 21?

[00:27:16] Speaker 00:
Was the question that was asked by AAR in Q&A 21?

[00:27:23] Speaker 03:
The identity of the questioner is not provided.

[00:27:26] Speaker 03:
So it does not say whether AAR asked it or DI asked it, but the government is correct that the Q&A 21, along with amendments five and six, made abundantly clear that we had to maintain the nerve center.

[00:27:40] Speaker 03:
In fact... But somebody asked the question presumably thinking... Someone asked it in the beginning, because there was the relic, the old relic from the prior procurement.

[00:27:48] Speaker 03:
But once the question was answered, and once you got amendments five and six, it was abundantly clear.

[00:27:52] Speaker 03:
In addition, the TEN that my colleague here mentions, TEN 130, said unambiguously that new MIS activities and any required IT components should be included in the proposal, in DI's proposal.

[00:28:07] Speaker 03:
It was clear to DI, and in fact,

[00:28:09] Speaker 03:
They never raised the argument they were duped until the court below, the court of federal claims.

[00:28:14] Speaker 03:
This is a new argument because it was a meritless argument.

[00:28:17] Speaker 03:
They knew full well that they had to maintain the nerve center and of course they did.

[00:28:22] Speaker 03:
It was the nerve center of all the operations.

[00:28:24] Speaker 03:
Their argument here is meritless.

[00:28:26] Speaker 03:
Going back to the integrity issue, if I have five seconds left.

[00:28:30] Speaker 03:
The record unambiguously confirms that we were scrupulous.

[00:28:33] Speaker 03:
We did the investigation.

[00:28:34] Speaker 03:
We're the ones who identified Anita Hamilton.

[00:28:37] Speaker 03:
We told the government.

[00:28:39] Speaker 03:
We shared everything.

[00:28:40] Speaker 03:
Those are not the actions of corporate espionage.

[00:28:42] Speaker 03:
Those are the actions of a scrupulous contractor.

[00:28:45] Speaker 01:
Thank you, Your Honors.

[00:28:59] Speaker 02:
Thank you, Your Honor.

[00:28:59] Speaker 02:
I think that my colleague's argument actually reinforces the reason that the decision below should be reversed and the case remanded to the agency because the contracting officer did improperly confuse the question whether there was a violation of the Procurement Integrity Act or an appearance of a violation of one with the question, the broader one, whether there was a

[00:29:29] Speaker 02:
appearance of impropriety, which could be caused by something like, for example, an effort to obtain the confidential and proprietary information of a competitor.

[00:29:39] Speaker 02:
And that's really the essence of the concern that was being addressed here and that the OIG, I think, recognized in its investigation memo.

[00:29:49] Speaker 02:
That is to say that AAR had an employee that it knew was a former employee of Dine Corp.

[00:29:55] Speaker 02:
and it obtained extensive information about Dine Corp's business practices from that employee, and those were sent to the highest levels, the high level executives at AAR who received that.

[00:30:10] Speaker 00:
sent them way up the chain, but it didn't look like there was any solicitation on the part of the high executives, correct?

[00:30:17] Speaker 02:
There was because not solicitation originally, in other words, she may have done that on her own initiative, but they responded and asked for clarification about the information that she provided.

[00:30:25] Speaker 02:
So they were well aware of what the information was.

[00:30:28] Speaker 02:
They knew that it was potentially useful to them in the preparation of their bid.

[00:30:34] Speaker 00:
When you say they asked for clarification, what exactly did they ask for?

[00:30:38] Speaker 02:
They asked for additional information that I wish I had.

[00:30:42] Speaker 00:
Where is this?

[00:30:43] Speaker 00:
This is not something I'm familiar with, that part of the exchange between Hamilton and the AAR executive.

[00:30:50] Speaker 02:
So I would point you, for example, to a lot of these documents appear in the joint appendix between AAR 26779 and

[00:31:09] Speaker 02:
There's a one at the beginning, I'm sorry, 126779 and going through to 127092.

[00:31:16] Speaker 02:
I'm trying to find the exchange where the... Yes, so you will see that Ms.

[00:31:27] Speaker 02:
Hamilton sends the document to Mr. McGillivray on 26779, who then forwards it on to another employee at AAR to use.

[00:31:39] Speaker 02:
So that's not an exchange.

[00:31:40] Speaker 02:
I do know that there are examples in the record where there were requests that went back and asked for further information about some of this material.

[00:31:51] Speaker 02:
And so this is all taking place in 2014.

[00:31:55] Speaker 02:
This information is used in developing the original proposal.

[00:32:00] Speaker 02:
And I do think that the record will reflect, as we address in our brief on page 17,

[00:32:07] Speaker 02:
And note seven, this information was used in developing the salary proposals, the cost proposals, as opposed to the technical proposals.

[00:32:18] Speaker 02:
It is true that Dyncorp pointed out that there was something missing in the technical proposal with regard to proposed salaries.

[00:32:24] Speaker 02:
But this information was used in developing the initial proposal.

[00:32:30] Speaker 02:
The OIG found that that was the case.

[00:32:33] Speaker 02:
But I do want to get back to the legal point that is significant, is that

[00:32:36] Speaker 02:
The PIA has specific aspects that it refers to.

[00:32:41] Speaker 02:
And I think that, again, my friend's argument underscores this.

[00:32:47] Speaker 02:
He says, well, it wasn't DI bid information, because when DI did its bid, it didn't use this information to develop the bid.

[00:32:55] Speaker 02:
But A, it was confidential and proprietary

[00:32:59] Speaker 02:
DynCorp information that was provided by a former employee to AAR.

[00:33:05] Speaker 02:
And AAR then used that information in developing its proposal.

[00:33:10] Speaker 02:
And so that could certainly be found.

[00:33:16] Speaker 02:
The government, in fact, acknowledges in its brief that given the fact-specific nature of the proposal, it would have been possible, or at least it entertains the possibility, that the contracting officer could have found

[00:33:28] Speaker 02:
that there was an appearance of impropriety.

[00:33:30] Speaker 02:
And yet the decision that was under review suggests that there's actually a legal barrier to finding an appearance of impropriety because of the nature of the information that was used.

[00:33:44] Speaker 02:
And that, I think, is erroneous.

[00:33:46] Speaker 02:
And with regard to the- Mr. Panin, we have to go.

[00:33:49] Speaker 02:
If you have 10 seconds.

[00:33:50] Speaker 02:
Perfect.

[00:33:51] Speaker 02:
Because I just want to point out that the very sentence that Mr. Cohn relied on in defending the

[00:33:58] Speaker 02:
decision of the contracting officer with respect to responsibility on 126095 is based specifically on the finding that nothing in the record shows that they solicited, obtained, or used confidential and proprietary information, which is contrary to the finding in the OIG and contrary to the evidence in the record.

[00:34:19] Speaker 01:
Okay, thank you very much.

[00:34:20] Speaker 01:
The case is submitted.

[00:34:22] Speaker 02:
That concludes today's session.