[00:00:28] Speaker 03:
Okay, the next argued case is number 18-1190, freealliance.com, LLC, against the United States.

[00:00:48] Speaker 03:
Mr. Schoonover.

[00:00:55] Speaker 06:
Just ask a question before we start the clock.

[00:00:58] Speaker 06:
There are briefs that are all marked for confidentiality purposes.

[00:01:03] Speaker 06:
And the names basically of everybody who played in this solicitation, other than Free Alliance, and maybe I think maybe even its own subs are blocked out.

[00:01:18] Speaker 06:
Are we stuck by that?

[00:01:19] Speaker 06:
I mean, how can we talk for your case, for example, without talking about the folks from Oklahoma?

[00:01:28] Speaker 01:
Certainly, Your Honor.

[00:01:30] Speaker 06:
I mean, is that how I have to describe that particular bitter?

[00:01:34] Speaker 01:
Well, Your Honor, I had envisioned trying to refer to the appendix page number where those particular companies are referenced.

[00:01:43] Speaker 06:
That's going to be confusing for us.

[00:01:47] Speaker 03:
Certainly.

[00:01:48] Speaker 03:
I think we're all right.

[00:01:49] Speaker 03:
There was no request to close the courtroom.

[00:01:52] Speaker 03:
And let's proceed with the substance of the appeal.

[00:02:01] Speaker 01:
Good morning, Your Honor.

[00:02:03] Speaker 01:
My name is Matthew Schoonover, and on behalf of FreeAlliance.com, may it please the Court.

[00:02:08] Speaker 01:
The Court should determine that the agency's evaluation of Free Alliance's proposal was improper for either of two reasons.

[00:02:15] Speaker 01:
First, contrary to the evaluation results, Free Alliance's CTA teammates provided accounting verification forms that met the solicitation's requirements.

[00:02:26] Speaker 01:
Second, and more fundamentally,

[00:02:28] Speaker 01:
the agency disparately evaluated Free Alliance's proposal in violation of the FAR's requirement for fair treatment of offerors.

[00:02:37] Speaker 01:
This disparate evaluation manifested itself in two ways.

[00:02:40] Speaker 01:
The agency allowed at least two offerors with perceived flaws in their accounting verification forms to proceed to phase two.

[00:02:49] Speaker 01:
And the agency allowed some offerors, but not Free Alliance,

[00:02:53] Speaker 01:
the opportunity to fix flaws in their proposals also before proceeding to phase two.

[00:03:00] Speaker 06:
In our briefing... When you say allowed the two to go to phase two, it would have let them go to phase two on the accounting issue but not on others.

[00:03:09] Speaker 06:
It didn't go to phase two.

[00:03:11] Speaker 01:
That is correct.

[00:03:12] Speaker 06:
One was taken back for re-examination.

[00:03:14] Speaker 06:
We don't quite know whatever happened to it, right?

[00:03:16] Speaker 01:
That is correct, Your Honor.

[00:03:17] Speaker 01:
There was at least one offeror that received GO ratings under phase two, or excuse me, under the second criterion that the agency below had indicated there was a new GAO protest that was filed and we don't know the results of that.

[00:03:33] Speaker 06:
So that one really come

[00:03:35] Speaker 06:
probably comes off the table.

[00:03:36] Speaker 06:
You have an argument about it, right?

[00:03:38] Speaker 06:
Well, Your Honor, I... It's the friends from Oklahoma that made the main problem, right?

[00:03:41] Speaker 01:
Certainly.

[00:03:42] Speaker 01:
Certainly.

[00:03:43] Speaker 01:
But I don't believe that it comes off the table.

[00:03:45] Speaker 06:
I think the record that we have... I know, but isn't your... You would prevail on your friends from Oklahoma... Yes.

[00:03:53] Speaker 06:
...if we agree that Judge Bergen was wrong in the way in which he dealt with that problem?

[00:03:58] Speaker 01:
That's correct.

[00:04:00] Speaker 01:
I believe that is correct.

[00:04:02] Speaker 01:
The record that we have shows that that particular offeror was... That particular offeror was going to be passed.

[00:04:10] Speaker 06:
I mean, so the government knows where all this is coming from.

[00:04:13] Speaker 06:
That particular offeror was described on page 39 of the red brief.

[00:04:22] Speaker 06:
That's why I refer to the O'Connell reverend, you'll have noticed, because of the name of the nation.

[00:04:29] Speaker 06:
And the argument in the government here is saying that the agency was incorrect to have given them a pass on the accounting issue.

[00:04:38] Speaker 01:
That is correct, Your Honor.

[00:04:40] Speaker 06:
So that's an admission that you didn't have in hand down below, correct?

[00:04:44] Speaker 01:
That is correct.

[00:04:46] Speaker 01:
That is correct.

[00:04:46] Speaker 01:
And another admission.

[00:04:47] Speaker 06:
Do you believe that admission undermines Judge Brunge's ruling that there was no harm here?

[00:04:53] Speaker 01:
That's correct, Your Honor.

[00:04:54] Speaker 01:
And another admission that we did not have below was perhaps, well, was shown most recently in the government's most recent filing before this court in September.

[00:05:06] Speaker 01:
This summer, the agency, as I understand, has completed its evaluation of these offerors.

[00:05:14] Speaker 06:
Oh, they sent us another saying good one.

[00:05:16] Speaker 01:
Yes, that is correct.

[00:05:17] Speaker 01:
And six of those offerors, Your Honor, six were originally deemed to go with clarification

[00:05:24] Speaker 01:
under the first phase one go-no-go criterion.

[00:05:27] Speaker 01:
And that, in our mind, supports our argument that those six offerors at least... Well, we don't know that.

[00:05:33] Speaker 06:
We'd have to get into the facts behind them.

[00:05:35] Speaker 06:
We don't know that.

[00:05:36] Speaker 06:
That's correct, but... The only reason why that subject is of record is because the government gave us a notice saying who won.

[00:05:43] Speaker 01:
That's correct, but that's why it's in the record.

[00:05:45] Speaker 06:
There was nothing... Isn't your strongest case based on the concession made on page 39 to 3940 of the red brief

[00:05:54] Speaker 06:
38, 39.

[00:05:58] Speaker 01:
Well, certainly the strongest case in the record, yes.

[00:06:02] Speaker 06:
Well, that's the record is what we have in front of us.

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

[00:06:06] Speaker 06:
Your argument is that because the government now admits that one party who was sent through on the accounting should not have been, then basically if that party was sent through to phase two

[00:06:21] Speaker 06:
You're saying, well, then you can't stop me from going to phase two just because I also font accounting.

[00:06:28] Speaker 01:
More or less, you're right.

[00:06:29] Speaker 01:
Yes, that is correct.

[00:06:30] Speaker 06:
Yes, yes.

[00:06:31] Speaker 01:
That if the agency allowed some offerors the opportunity to slip through, then it didn't allow us that that was an unequal evaluation.

[00:06:39] Speaker 06:
OK, so assuming that Judge Brunckley was wrong when he said, well, there was no harm here, the question for you is, where's your prejudice?

[00:06:49] Speaker 06:
Even if you could show that you should have gone to phase two, you can't prevail unless you can satisfy the prejudice test.

[00:06:58] Speaker 01:
Yes, Your Honor.

[00:06:59] Speaker 06:
And the prejudice test, as I understand it, is that you have to show a substantial chance of winning the contract.

[00:07:07] Speaker 01:
And certainly, I believe that if we... That's the test.

[00:07:10] Speaker 01:
That's correct.

[00:07:10] Speaker 06:
Not the week's test.

[00:07:12] Speaker 01:
That's correct.

[00:07:13] Speaker 01:
It is not a but-for test.

[00:07:14] Speaker 01:
We do not have to show but-for the heirs, the agents, that we would have won a contract.

[00:07:19] Speaker 01:
Instead, the only thing that we have to show is that we would have had a substantial chance at receiving the award.

[00:07:26] Speaker 01:
And here, certainly, we believe that if we were allowed the opportunity to proceed to phase two... But you knew all this.

[00:07:35] Speaker 06:
You didn't make any record on a substantial chance of prevailing on prejudice.

[00:07:41] Speaker 01:
Well, Your Honor, we were in the evaluation.

[00:07:45] Speaker 01:
We were denied that.

[00:07:46] Speaker 06:
I'm talking about in front of the Court of Federal Claims.

[00:07:50] Speaker 06:
So Judge Brunge didn't reach the question of prejudice because he said there was no disparate treatment.

[00:07:58] Speaker 01:
That's what Judge Brunge said.

[00:07:59] Speaker 06:
So if we take the government's concession here in its briefing to show that there was prejudice, then we need to decide the next question would be, pardon me, that there was disparate treatment.

[00:08:10] Speaker 06:
The next question is, was there was prejudice?

[00:08:13] Speaker 01:
And we certainly believe there was, Your Honor.

[00:08:15] Speaker 06:
I know you believe you do, but there's nothing in the record.

[00:08:18] Speaker 01:
Well, and respectfully, I disagree with that, Your Honor.

[00:08:20] Speaker 06:
Just getting to phase two doesn't tell you anything about your chances of winning the contract.

[00:08:26] Speaker 01:
Your Honor, we had to perceive

[00:08:28] Speaker 01:
proceed to phase two.

[00:08:29] Speaker 01:
Phase two was the best value evaluation here.

[00:08:32] Speaker 01:
So we were prevented that opportunity.

[00:08:34] Speaker 06:
I understand that.

[00:08:35] Speaker 06:
But in order to show prejudice, you would have to show that there was a substantial chance that you would have won at phase two.

[00:08:42] Speaker 01:
Well, we only had to show that we had a substantial chance at receiving the award.

[00:08:46] Speaker 01:
Well, that's winning.

[00:08:48] Speaker 06:
That's getting the conflict.

[00:08:50] Speaker 01:
I agree.

[00:08:50] Speaker 06:
And there are lots and lots of other bidders, and they were making

[00:08:55] Speaker 06:
Holistic choices as between who, once they got to phase two, right?

[00:09:00] Speaker 01:
Yes, that's the phase two evaluation was the best value evaluation and that's where offer or substantive proposals would be evaluated.

[00:09:07] Speaker 06:
And how do I know that you had any chance on best value?

[00:09:13] Speaker 06:
Do I know, I don't know anything about your pricing?

[00:09:16] Speaker 01:
Well, your honor, there's nothing in the record below.

[00:09:19] Speaker 01:
The agency did not evaluate.

[00:09:21] Speaker 01:
our proposal under phase two.

[00:09:23] Speaker 01:
And so what we are saying is that if we had the opportunity to proceed to the phase two evaluation, keep in mind, that's all we're asking for here, is the opportunity to compete under phase two.

[00:09:35] Speaker 01:
We're not asking for a contract award.

[00:09:37] Speaker 06:
We're just saying that we want... Well, my problem is just that, and given that

[00:09:41] Speaker 06:
nature of what the government is now saying as to why you were treated differently from our friends from Oklahoma at phase one, that if you get to phase two, you can't win

[00:09:56] Speaker 06:
in your protest, unless you can show a substantial chance of prevailing on the contract.

[00:10:02] Speaker 06:
The Bannon test, not the Weeks test.

[00:10:04] Speaker 06:
And there hadn't been any assessment of that.

[00:10:07] Speaker 06:
I wonder why perhaps a vacate and remand wouldn't be the order of what you'd be asking for.

[00:10:12] Speaker 01:
I'm sorry?

[00:10:13] Speaker 06:
A vacate and remand.

[00:10:16] Speaker 06:
I mean, you can't win unless you can show prejudice.

[00:10:19] Speaker 06:
You haven't yet had an opportunity to make that showing.

[00:10:21] Speaker 01:
That's correct.

[00:10:23] Speaker 01:
So I certainly believe that if this court were to vacate the ruling and send it back, the agency could be compelled to actually reevaluate our proposal under phase two.

[00:10:32] Speaker 01:
Again, that's all we're asking for here.

[00:10:35] Speaker 01:
The agency did not evaluate our proposal or free alliance's proposal under the phase two evaluation.

[00:10:40] Speaker 05:
But the agency said you didn't provide adequate

[00:10:44] Speaker 05:
documentation that your accounting would be satisfactory as shown by a proper statement on the letterhead of the CPA?

[00:10:56] Speaker 01:
The agency has said that, Your Honor.

[00:10:58] Speaker 01:
Has said that.

[00:11:00] Speaker 05:
That's the basic holding against which you're appealing, right?

[00:11:03] Speaker 01:
That's correct.

[00:11:05] Speaker 01:
And we believe, of course, it probably won't be a surprise to the court, that we believe that the agency's decision was improper.

[00:11:15] Speaker 01:
If you look at the accounting verification forms that were provided by Free Alliance at appendix pages 41 and 42, they provide the substantive information that the agency needed to evaluate our CTA members or the adequacy of our CTA members' accounting systems.

[00:11:31] Speaker 05:
But they were all hedged.

[00:11:33] Speaker 05:
It has been conducted.

[00:11:35] Speaker 05:
But there isn't a certification on the letterhead.

[00:11:39] Speaker 05:
It has not been performed.

[00:11:42] Speaker 05:
However, third-parting

[00:11:44] Speaker 05:
of review was conducted found to be adequate.

[00:11:47] Speaker 05:
This is not what they required.

[00:11:50] Speaker 01:
Respectfully, I disagree, Your Honor.

[00:11:52] Speaker 01:
And at the very top of the form, it says that this, and I'm paraphrasing here, it says that this accounting verification form is submitted under CIO SP3 because that solicitation requires, and I'm sorry, I'm in my rebuttal time here.

[00:12:06] Speaker 03:
There's no doubt that you didn't comply with the letter of what's in the regulation.

[00:12:12] Speaker 03:
Isn't that right?

[00:12:13] Speaker 03:
Isn't your point?

[00:12:14] Speaker 03:
that since others were permitted to remedy this flaw, that you were prejudiced because of disperse treatment, not that you complied.

[00:12:25] Speaker 01:
Yes, that is certainly part of it.

[00:12:27] Speaker 01:
We believe that we did comply, and that even if not... You cannot comply if it's not disputed, that it's not on the letterhead.

[00:12:34] Speaker 01:
Well, and certainly about that, Your Honor, but there were other offerors.

[00:12:38] Speaker 01:
who also submitted accounting verification forms.

[00:12:40] Speaker 03:
That's the discrete treatment aspect.

[00:12:42] Speaker 01:
Yes.

[00:12:42] Speaker 01:
And that's what I was going to suggest, Your Honor, is that we believe that we provided the substance that was required by the solicitation.

[00:12:49] Speaker 01:
And the argument about letterhead, the Forbes provided the CPA's name, CPA firm, and the contact information.

[00:12:59] Speaker 01:
That's basically the information that is required for letterhead, the only thing missing that might be a logo.

[00:13:05] Speaker 01:
But even if the letterhead argument was determinative,

[00:13:08] Speaker 01:
or found against us.

[00:13:10] Speaker 01:
Judge Newman, you are correct that there were other offerors that were allowed to submit verification forms that were not on letterhead that were nonetheless allowed to proceed to phase two or were determined to.

[00:13:23] Speaker 03:
The government says they were all eliminated on other grounds.

[00:13:26] Speaker 03:
You say that they were not.

[00:13:28] Speaker 03:
They proceeded, some of them,

[00:13:30] Speaker 03:
To phase two, is that right?

[00:13:32] Speaker 01:
The record suggests that at least one of them proceeded to phase two at appendix page 66, item 23.

[00:13:39] Speaker 01:
Or excuse me, appendix page 66.

[00:13:45] Speaker 01:
66?

[00:13:46] Speaker 01:
I'm sorry, Your Honor, my notes are.

[00:13:52] Speaker 01:
Oh, excuse me.

[00:13:54] Speaker 01:
If the court were to look at appendix page 61,

[00:14:00] Speaker 01:
This is a company that was... Don't go so fast.

[00:14:05] Speaker 06:
Appendix page 61.

[00:14:07] Speaker 01:
I apologize, your honor.

[00:14:09] Speaker 06:
Appendix got all these fold-outs.

[00:14:10] Speaker 06:
It's hard to figure out what page you're talking about.

[00:14:15] Speaker 06:
61, yes.

[00:14:17] Speaker 01:
61.

[00:14:18] Speaker 01:
This was a company that is not on letterhead, and that was ultimately... That company was awarded, ultimately, one of the contracts.

[00:14:29] Speaker 03:
We also have... Didn't they remedy?

[00:14:33] Speaker 03:
Well, they remedied.

[00:14:35] Speaker 03:
Isn't that correct that that company did remedy the flaw by providing the letterhead CPA certification?

[00:14:45] Speaker 01:
I don't believe that's correct.

[00:14:46] Speaker 01:
With that particular

[00:14:47] Speaker 01:
Offeror your honor, I don't believe that that company submitted resubmitted a new letterhead.

[00:14:53] Speaker 01:
No, I don't believe that's the case.

[00:14:55] Speaker 01:
We do have another instance.

[00:14:56] Speaker 06:
We need to know that.

[00:14:57] Speaker 06:
It has to be yes or no.

[00:14:58] Speaker 06:
It can't be I don't believe.

[00:15:00] Speaker 06:
I mean, there's no desperate treatment.

[00:15:05] Speaker 01:
We do have another instance.

[00:15:07] Speaker 06:
You're dancing all around for your targets.

[00:15:13] Speaker 06:
Do you need a target besides your friend from Oklahoma?

[00:15:16] Speaker 01:
Well, I think we have targets in there, and we've certainly talked about them in our briefing.

[00:15:25] Speaker 06:
There are several... The government dealt with all those in its briefing and said, well, there are other reasons.

[00:15:32] Speaker 06:
The problem was that

[00:15:34] Speaker 06:
Nobody was, maybe except for a couple of the potential bidders, were following the total letter of the requirement, a letterhead signed by a partner.

[00:15:44] Speaker 06:
And so basically what was happening was whoever was receiving this was trying to assess whether, did you give us enough information for us to know where we could go?

[00:15:54] Speaker 06:
That's correct.

[00:15:55] Speaker 06:
And one of the requirements was that you had to have your accounting system tested, for example?

[00:16:00] Speaker 06:
I disagree with that characterization.

[00:16:08] Speaker 06:
But the point is that for you to be able to show that there was disparate treatment

[00:16:13] Speaker 06:
You need to show that there was somebody who either made it to phase two, who flunked accounting.

[00:16:21] Speaker 06:
This is assuming you flunked accounting, made it to phase two, or would have made it to phase two for flunking accounting, but for another fault.

[00:16:31] Speaker 01:
And your honor, I don't necessarily

[00:16:34] Speaker 01:
We're looking at the phase one evaluation as a whole.

[00:16:38] Speaker 01:
And there were two, for purposes of this matter, there were two different criteria under phase one.

[00:16:45] Speaker 01:
The first, compliant proposal, and we have seen a litany of offerors who did not meet those requirements.

[00:16:52] Speaker 01:
And then you are correct that the other criterion is an accounting system.

[00:16:57] Speaker 01:
Now, unfortunately, there just weren't that many offerors who received

[00:17:03] Speaker 01:
either passing marks under criterion one and no marks or failing marks under criterion two.

[00:17:12] Speaker 01:
In fact, we were the only, Free Alliance was the only offeror that received a go rating under criterion one and a no-go rating under criterion two.

[00:17:21] Speaker 01:
There were three other offerors, I should note, that received a go with clarification and a no-go under criterion two.

[00:17:29] Speaker 01:
I would also point that, oh, I realized my,

[00:17:32] Speaker 03:
Proceed.

[00:17:34] Speaker 01:
I was also going to point out to the court, when we look at the verification of the accounting forms, to your honor's point, this certainly does seem to have been all over the map with regards to the forms that some offerors provided.

[00:17:50] Speaker 01:
And if the court were to look at appendix page 57, this is for an accounting verification form that says,

[00:18:01] Speaker 01:
Basically, this offeror or this company's accounting form is adequate to prepare their taxes at the end of the year.

[00:18:11] Speaker 01:
And that is not at all what the solicitation required.

[00:18:14] Speaker 06:
But they were eliminated.

[00:18:16] Speaker 06:
Where do they show up on this list on 66?

[00:18:19] Speaker 01:
Your Honor, that is item number 22.

[00:18:22] Speaker 01:
And they were go with clarification

[00:18:25] Speaker 01:
and go for the acceptable accounting system.

[00:18:28] Speaker 01:
That accounting form was found to be adequate, at least as part of Appendix Page 66.

[00:18:34] Speaker 01:
Now, the government below has said, well, there was another big protest about this case, so we can't really talk about it.

[00:18:40] Speaker 01:
But the record we have before us suggests certainly that this offeror's or this contractor's accounting verification form... Is that the one that went back?

[00:18:49] Speaker 06:
Yes, that was... Okay, so that's the one where the...

[00:18:52] Speaker 06:
The government recognized there was a potential problem, so they pulled them out of this chain and put them someplace else.

[00:18:59] Speaker 01:
Well, we don't know why the government pulled them out.

[00:19:01] Speaker 06:
Well, I understand that.

[00:19:02] Speaker 06:
To me, your friend from Oklahoma, from the government's brief at page 39, gives you the hook that you hadn't had before, which is the government's admission that someone was competing with you at phase one also flunked accounting.

[00:19:21] Speaker 06:
But they would have been allowed to go forward, but for the fact that they flunked some other test.

[00:19:26] Speaker 02:
Yes.

[00:19:27] Speaker 02:
Right?

[00:19:27] Speaker 02:
Yes.

[00:19:27] Speaker 02:
That is correct.

[00:19:29] Speaker 06:
And Judge Brunke's rationale was, well, that made a difference because they didn't make it to phase two.

[00:19:35] Speaker 06:
You weren't treated differently because you didn't make it to phase two.

[00:19:39] Speaker 01:
Yes, Your Honor, that was Judge Bergen's analysis.

[00:19:42] Speaker 01:
And again, we disagree with that.

[00:19:44] Speaker 06:
We think that that- Maybe you ought to talk a little bit, because that's the rationale the government's going to stand on when I point out.

[00:19:51] Speaker 06:
And they're going to say, yes, we admit that the friends from Oklahoma were just like you on the accounting issue, right?

[00:19:59] Speaker 06:
Yes.

[00:20:00] Speaker 06:
But that's no harm to you, because they didn't make it forward.

[00:20:05] Speaker 01:
Well, and we-

[00:20:06] Speaker 01:
I disagree with that, Your Honor.

[00:20:08] Speaker 01:
I apologize.

[00:20:08] Speaker 01:
My red light is on, so I can either address it now.

[00:20:11] Speaker 03:
Please answer the question.

[00:20:12] Speaker 01:
So I certainly agree that had we had that same opportunity, or if our proposal had been evaluated equally as was our friends from Oklahoma, as you call them, then we would have proceeded on to phase two.

[00:20:26] Speaker 01:
And that is the nature of the prejudice argument here, is that a stricter standard was applied against us.

[00:20:34] Speaker 01:
that kept us ultimately from proceeding to phase two.

[00:20:37] Speaker 01:
And I think that with respect to Judge Brigink, the analysis below was too narrow in that it focused on each individual criterion to determine.

[00:20:46] Speaker 06:
Well, he recognized the possibility of disparate treatment.

[00:20:48] Speaker 06:
There's no question of that.

[00:20:50] Speaker 01:
Yes.

[00:20:50] Speaker 06:
And he said, well, this is pretty troubling.

[00:20:53] Speaker 06:
But I think I have an answer here as to why I don't have to worry about it.

[00:20:57] Speaker 06:
Yes.

[00:20:57] Speaker 06:
Because none of you and the other people made it up to phase two.

[00:21:01] Speaker 01:
Well, and again, we disagree.

[00:21:04] Speaker 01:
I certainly think that if free alignments were allowed the same opportunity to fix its whatever perceived deficiencies were in its proposal that some of these other offerors were.

[00:21:13] Speaker 06:
Let me ask you what happened.

[00:21:14] Speaker 06:
Let's assume for purposes of argument the court agreed with you that there was disparate treatment and that we then need to decide whether you were prejudiced by it because if you weren't you can't go forward.

[00:21:27] Speaker 06:
And we decided or we sent it back to have that.

[00:21:30] Speaker 06:
If you can show prejudice,

[00:21:32] Speaker 06:
substantial likelihood of winning the contract.

[00:21:36] Speaker 06:
What happens if this contract has been let?

[00:21:40] Speaker 01:
Yes, the CIO SP3 contracts have been awarded.

[00:21:44] Speaker 06:
Eight or nine or 10 or 15 bidders have been awarded contracts.

[00:21:49] Speaker 01:
I believe the total is 16.

[00:21:51] Speaker 06:
Is it scary that you could just be added on?

[00:21:54] Speaker 06:
Would someone have to be taken off?

[00:21:55] Speaker 06:
Do they have to re-bid the entire contract?

[00:21:58] Speaker 06:
No, Your Honor, they would.

[00:21:59] Speaker 06:
Redecide the entire contract?

[00:22:00] Speaker 01:
I do not believe that they would have to do so.

[00:22:03] Speaker 01:
They could simply add us on if there was prejudice.

[00:22:08] Speaker 01:
We are not asking that anybody's award be taken away.

[00:22:11] Speaker 01:
And the nature of the CIO SP3 award

[00:22:14] Speaker 01:
is, again, this is a GWAC.

[00:22:15] Speaker 01:
This is one of these government-wide acquisition vehicles under which different people come in and make orders against.

[00:22:22] Speaker 01:
So we would certainly compete.

[00:22:22] Speaker 06:
And it works with the public income to any one of you?

[00:22:25] Speaker 01:
Yes.

[00:22:25] Speaker 01:
Well, basically, they compete the awards among the GWAC holders.

[00:22:29] Speaker 01:
The GWAC holders compete for orders that are issued by different government agencies.

[00:22:35] Speaker 01:
And so certainly then at that point, we could compete for those orders if the court were to find prejudice

[00:22:42] Speaker 01:
We were evaluated under best value under phase two and ultimately named an awardee.

[00:22:46] Speaker 01:
We're not asking for anybody's award to be taken away.

[00:22:50] Speaker 01:
We are asking to be added to the pool of GWAC holders in this case, or at least for that opportunity to be considered as part.

[00:22:59] Speaker 03:
Let's hear from the governor.

[00:23:00] Speaker 03:
We'll save you rebuttal time.

[00:23:02] Speaker 01:
Thank you, Your Honor.

[00:23:14] Speaker 03:
Ms.

[00:23:14] Speaker 03:
Sanchez.

[00:23:15] Speaker 00:
Good morning.

[00:23:16] Speaker 00:
May it please the court?

[00:23:18] Speaker 06:
Can we start with page 39 of your brief?

[00:23:22] Speaker 00:
Our friends in Oklahoma.

[00:23:23] Speaker 00:
Friends from Oklahoma.

[00:23:25] Speaker 00:
OK, so.

[00:23:25] Speaker 06:
So that is the friends from Oklahoma was a person that, like Free Alliance, was competing to try to win this, to be included in this contract, right?

[00:23:35] Speaker 06:
Correct.

[00:23:36] Speaker 06:
And they needed, at phase one, to satisfy the accounting test as well as the other test, right?

[00:23:42] Speaker 06:
Correct.

[00:23:43] Speaker 06:
And as I read what you're saying on page 39 is they should not have been deemed to have passed the accounting test.

[00:23:51] Speaker 00:
That is my understanding of the record.

[00:23:53] Speaker 06:
OK.

[00:23:54] Speaker 06:
So we start off and we say the bidder from Oklahoma is just like Free Alliance and that they both failed the accounting test.

[00:24:07] Speaker 00:
Yes.

[00:24:08] Speaker 06:
They both failed the accounting test.

[00:24:10] Speaker 06:
A friend from Oklahoma also failed the second test.

[00:24:14] Speaker 00:
Yes.

[00:24:14] Speaker 06:
So they were not allowed to go to Phase 2.

[00:24:17] Speaker 00:
Yes, correct.

[00:24:18] Speaker 06:
If they had passed the second test, they would have gone to Phase 2.

[00:24:23] Speaker 06:
Not necessarily, Your Honor, and that's where... Well, there's nothing in the record that shows they would not have gone to Phase 2.

[00:24:28] Speaker 00:
Well, and that's what I would like to explain.

[00:24:30] Speaker 00:
The charts... Let me finish.

[00:24:32] Speaker 06:
Let me go back.

[00:24:33] Speaker 06:
If it's true that the Oklahoma bidder who flunked the accounting test could have gone up to Phase 2, even with a flunked accounting test,

[00:24:44] Speaker 06:
then Free Alliance, who was barred from going to phase two from a flunk to counting test, would have been treated differently.

[00:24:52] Speaker 00:
If that had been the factual scenario, then I would agree with the court, yes.

[00:24:57] Speaker 06:
And if that's the case, then we would have an injury shown, but we would not know the answer to the prejudice question.

[00:25:07] Speaker 00:
That is correct.

[00:25:09] Speaker 06:
And the president's question was never ventilated below because Judge Brunkett found that there was no injury.

[00:25:16] Speaker 06:
That is correct.

[00:25:17] Speaker 06:
So would the correct result be if we were to decide that there was disparate treatment here with regard to the accounting issue going to phase two?

[00:25:27] Speaker 06:
Would the correct result be to vacate and send it back and to have a prejudice examination at the court below?

[00:25:39] Speaker 00:
Under that hypothetical, yes.

[00:25:41] Speaker 00:
But that is not the factual situation that we have here.

[00:25:45] Speaker 00:
The charts that Mr. Schoonover directed the court to, the charts at pages 62 through 67 of the appendix, those are pre-decisional notes.

[00:25:56] Speaker 06:
Wait, wait.

[00:25:57] Speaker 06:
62 to 67?

[00:25:59] Speaker 00:
Yes.

[00:26:01] Speaker 06:
Those are charts.

[00:26:04] Speaker 06:
It's hard to read the pagination in the thing here, 62 to 67.

[00:26:08] Speaker 00:
They are hard to read, Your Honor.

[00:26:12] Speaker 00:
I see 66, 67.

[00:26:14] Speaker 00:
What about them?

[00:26:15] Speaker 00:
Those are excerpts of pre-decisional charts in which the evaluators were keeping track of what they found in their initial review of the documents.

[00:26:26] Speaker 00:
We really do not know here what would have happened if Oklahoma had been found

[00:26:37] Speaker 00:
compliant with the second factor because they didn't get a chance.

[00:26:43] Speaker 00:
The evaluators didn't get a chance to.

[00:26:45] Speaker 06:
Well, if Oklahoma had been found compliant on both accounting and the second factor, they would have gone to phase two.

[00:26:54] Speaker 00:
That is correct.

[00:26:54] Speaker 06:
On the record that we have.

[00:26:56] Speaker 00:
Yes, but if we look at page 87 of the appendix, that is the write-up on Oklahoma and why

[00:27:05] Speaker 00:
And Oklahoma was a CTA partner for the offeror that is listed.

[00:27:11] Speaker 06:
And what about 87?

[00:27:13] Speaker 00:
On page 87, that is the write-up that applies to Oklahoma.

[00:27:18] Speaker 00:
Oklahoma is a CTA partner that applied, that submitted a proposal.

[00:27:24] Speaker 06:
What's the problem on why you hadn't cited this in your brief?

[00:27:28] Speaker 06:
Why are we talking about 87?

[00:27:30] Speaker 00:
No, I cited it in the brief.

[00:27:31] Speaker 00:
It's on page 39, Your Honor.

[00:27:35] Speaker 00:
in page A at the bottom of page 39.

[00:27:37] Speaker 00:
And we explain there that, and we've been very frank with the court on this, I mean, this record isn't perfect.

[00:27:45] Speaker 00:
There were pre-decisional findings that were not reviewed later on when it came time for the contracting officers to write up the basis for evaluation for competition.

[00:27:58] Speaker 00:
So you have to have, you have to pass both.

[00:28:05] Speaker 06:
However, in a lot of these write-ups... I understand that you can't go to phase two unless you pass both tests.

[00:28:13] Speaker 06:
Yes, but I... And Oklahoma was deemed to have flunked the compliant proposal, step one.

[00:28:20] Speaker 00:
Yes.

[00:28:21] Speaker 06:
But they were agreed to have found to have passed accounting.

[00:28:24] Speaker 00:
Not in the final consensus.

[00:28:26] Speaker 00:
The final consensus, Your Honor, is on page 87.

[00:28:30] Speaker 00:
They didn't... Page 87 of the appendix.

[00:28:33] Speaker 00:
That's the final consensus.

[00:28:35] Speaker 06:
What's it say about accounting in 87?

[00:28:38] Speaker 00:
It doesn't say anything about accounting, because in a lot of these summaries, if they had one.

[00:28:43] Speaker 06:
So we have to deal with the record in front of us.

[00:28:45] Speaker 06:
So far as we know, they were fairly compliant on accounting.

[00:28:49] Speaker 06:
But you admit in your brief that they were not compliant.

[00:28:52] Speaker 00:
No, but the record in front of us, my point is that the way that the contracting officers tackled.

[00:28:59] Speaker 06:
Makes up his mind.

[00:29:01] Speaker 00:
They didn't necessarily go back and review initial findings if they reached final findings on the second factor.

[00:29:10] Speaker 06:
In a lot of these summaries... Right, but whether or not the decision that they passed accounting preliminarily at some stage, the record that we have shows that they were found acceptable on accounting.

[00:29:23] Speaker 06:
The government, in a gesture of candor that I rarely see from the government, has come in and said, well, Judge Brunging made a mistake.

[00:29:34] Speaker 00:
No, we're not saying that Judge Bruging made a mistake.

[00:29:37] Speaker 00:
I mean, Judge Bruging, in his opinion, got it right.

[00:29:40] Speaker 06:
Judge Brunging said there was no disparate treatment.

[00:29:43] Speaker 00:
That is correct, Your Honor.

[00:29:45] Speaker 06:
There's no disparate treatment.

[00:29:47] Speaker 06:
So how can there be no disparate treatment when Freelance is treated differently from Oklahoma?

[00:29:54] Speaker 00:
I got the impression during the oral argument that Judge Bruggen quite understood the challenges with the administrative record and the way the write-up served him.

[00:30:03] Speaker 06:
And so he knew that there was a problem, and he said, I don't have to worry about it because Oklahoma never made it to phase two.

[00:30:11] Speaker 00:
Correct.

[00:30:12] Speaker 00:
That's what the opinion says.

[00:30:13] Speaker 06:
And that's his rationale.

[00:30:15] Speaker 06:
And my judgment is that that's an inadequate rationale.

[00:30:20] Speaker 06:
Because he divided fees one in two parts.

[00:30:26] Speaker 06:
If someone who failed the accounting test would have been passed forward, this free alliance was not passed forward because it fawned.

[00:30:40] Speaker 06:
So it's arguing that it was mistreated.

[00:30:43] Speaker 00:
Free alliance's deficiencies were so significant in both CTA partner submissions

[00:30:50] Speaker 00:
that they were so facially noncompliant.

[00:30:54] Speaker 06:
So there may have been more, but why?

[00:30:56] Speaker 06:
But isn't Oklahoma also noncompliant in your view?

[00:30:59] Speaker 06:
You say it is.

[00:31:00] Speaker 00:
We can see that they're noncompliant, Your Honor.

[00:31:02] Speaker 00:
And in a perfect world, the contracting officer would have carried over the preliminary findings and polished up the final findings and included every single reason for exclusion.

[00:31:17] Speaker 00:
It just wasn't done in this record.

[00:31:20] Speaker 00:
It's not the way that the contracting officers decided to approach it.

[00:31:24] Speaker 00:
But I can represent to the court based on my knowledge of this record and also based on the fact that plaintiff hasn't been able to point to any offeror that didn't have a compliant accounting verification that moved to phase two.

[00:31:41] Speaker 00:
None of them moved to phase two with the non-compliant accounting verifications.

[00:31:47] Speaker 00:
None of them.

[00:31:49] Speaker 00:
When Free Alliance claims that there were some that had deficient accounting verifications that went on to the second phase, that is inaccurate.

[00:32:03] Speaker 00:
The ones that didn't have any letterhead and that were submitted by CPAs, they were eliminated.

[00:32:10] Speaker 00:
And the ones that Free Alliance cites in its briefs, those were government forms that were submitted that couldn't have been a letterhead, even though they were signed by

[00:32:20] Speaker 00:
a CPA and those accounting verifications were deemed acceptable as they should have been because the government allowed for certain forms to be executed by CPAs.

[00:32:35] Speaker 06:
So I can't point the court... You have to admit it is rare when you have a situation where the government very candidly says, well, at least the preliminary judgment by the contracting officer with regard to Oklahoma's accounting skills was wrong.

[00:32:51] Speaker 06:
Your Honor, I can't speak... And that they, as being wrong, they're in the same kit and caboodle as free allies.

[00:32:57] Speaker 00:
I can't speak for everybody that stands at this podium, but I have been with my office since 1999.

[00:33:05] Speaker 00:
And I've always conceded where we need to concede.

[00:33:08] Speaker 06:
It's not something that... Well, I mean, I'm proud of the government that they do.

[00:33:12] Speaker 06:
But you have to appreciate it creates a little problem for your appeal.

[00:33:18] Speaker 00:
The law doesn't require a procurement to be perfect.

[00:33:23] Speaker 00:
And there are instances where we have errors that are so minor.

[00:33:30] Speaker 00:
And the contracting officer in this case

[00:33:34] Speaker 00:
specifically in the solicitation, retained the ability to waive minor errors and irregularities.

[00:33:44] Speaker 06:
Where do we know that?

[00:33:45] Speaker 06:
I mean, that's not in Judge Bargney's opinion?

[00:33:48] Speaker 00:
No, it's cited in our brief.

[00:33:51] Speaker 00:
It's in the RFP.

[00:33:55] Speaker 06:
Where's that argument taking you?

[00:33:57] Speaker 06:
Your argument's taking you that there are certain disparate treatments that are okay?

[00:34:02] Speaker 00:
No, no, no, not disparate treatment, just minor irregularities when we, when we, nobody, nobody, no offeror in this procurement was allowed to submit any additional documents after the deadline to submit proposals.

[00:34:16] Speaker 00:
Nobody submitted, no offeror submitted a revised proposal or additional forms.

[00:34:23] Speaker 00:
agency denied those requests, specifically denied those requests.

[00:34:28] Speaker 06:
And the... I had a mishmash when people filed their application, filed their proposals.

[00:34:33] Speaker 06:
A lot of people dealt with the accounting requirement differently.

[00:34:38] Speaker 00:
Well, there were different forms that were submitted.

[00:34:40] Speaker 00:
They weren't required to submit the same exact form.

[00:34:44] Speaker 00:
Some submitted federal forms, some submitted forms signed by a CPA.

[00:34:49] Speaker 00:
So no two submissions were identical.

[00:34:52] Speaker 00:
However, I can point to the court to page 21 of the appendix.

[00:35:00] Speaker 00:
That is the opinion below.

[00:35:04] Speaker 00:
There was one offeror that submitted the same exact form that Free Alliance submitted.

[00:35:09] Speaker 00:
Apparently, that form had been circulating as a result of previous procurements.

[00:35:16] Speaker 00:
And it contained more substance than Free Alliance's forms contained.

[00:35:20] Speaker 00:
And they were rejected.

[00:35:22] Speaker 00:
So the district treatment argument doesn't work in this case.

[00:35:28] Speaker 00:
Because an identical form submitted by another offeror was rejected on the same basis.

[00:35:33] Speaker 06:
Well, it's very hard to have identity because not all people are submitting the same information.

[00:35:40] Speaker 00:
Well, but the form.

[00:35:42] Speaker 00:
I mean, the problem with the form wasn't just the substance of the information.

[00:35:45] Speaker 00:
It wasn't on letterhead.

[00:35:46] Speaker 00:
And it didn't contain any substance for both the CTA partners.

[00:35:52] Speaker 00:
There was nothing that the government could have done with those forms other than reject

[00:35:58] Speaker 00:
the proposal.

[00:36:00] Speaker 00:
And there was no mechanism in place for the resubmission of proposals or the resubmission of forms.

[00:36:05] Speaker 00:
I mean, basically, Free Alliance is coming to this court and asking for a second bite at the apple, and there is no way to cure the deficiencies.

[00:36:13] Speaker 06:
They're asking not to be treated differently from the Oklahoma bitter.

[00:36:17] Speaker 00:
But again, Your Honor, I point to the court, to the fact that the

[00:36:21] Speaker 00:
initial findings on that.

[00:36:23] Speaker 06:
Well, I'll read page 87 to see what it says, but I mean, all you did in your brief was cite page 87.

[00:36:28] Speaker 06:
You didn't make an argument as to why there's something in 87 that tells me that there wasn't disparate treatment here.

[00:36:35] Speaker 00:
No, we didn't address disparate.

[00:36:36] Speaker 06:
I mean, we didn't address... I mean, your brief raises this red flag that is bigger than this whole courtroom on the disparate issue.

[00:36:47] Speaker 06:
because you say that the folks from Oklahoma flunked the accounting test.

[00:36:52] Speaker 00:
There were many that flunked the accounting test that didn't pass, and yet it's not... I mean, there are many that were... Many flunked the accounting test, flunked something else, too, so it didn't go forward.

[00:37:05] Speaker 00:
Yes, Your Honor, and there were also other offerors that were given a go in the pre-decisional documents that didn't pass another, you know, factor number two,

[00:37:16] Speaker 00:
And yet when we look at the final findings, they are not, you know, that there's no- You mean the people who won the contract?

[00:37:24] Speaker 00:
No.

[00:37:24] Speaker 06:
What are the final findings?

[00:37:26] Speaker 00:
The final findings are the write-ups that begin at page, the substantive write-ups begin at page 68 of the evaluation of the appendix exam.

[00:37:40] Speaker 00:
68?

[00:37:41] Speaker 00:
They begin at page 68.

[00:37:42] Speaker 00:
68.

[00:37:47] Speaker 00:
So 68 is not no no they these are the write-ups that were these are excerpts from the we couldn't put like all 75 What is 68?

[00:37:57] Speaker 06:
That's a write-up about a particular meter, right?

[00:38:01] Speaker 00:
Those are the write-ups that were in the final consensus evaluation by the agency at phase one at phase one and The pre decisional notes are in the charts what I'm trying to explain to the court is that

[00:38:17] Speaker 00:
The pre-decisional notes didn't necessarily make it to a final stage if they were found non-compliant on factor two, the pre-decisional notes from factor one.

[00:38:31] Speaker 00:
So there was going to be a second review before it made it to the pre-decision, the final

[00:38:39] Speaker 06:
I have to read this.

[00:38:42] Speaker 06:
You got me very confused because your briefing doesn't discuss this at all.

[00:38:46] Speaker 00:
It's a very messy record, Your Honor.

[00:38:48] Speaker 06:
No, it's not messy.

[00:38:49] Speaker 06:
The record is not messy once the government says that Oklahoma and free alliance were treated differently.

[00:38:57] Speaker 00:
There is no prejudice as a result.

[00:39:00] Speaker 00:
No, no.

[00:39:01] Speaker 06:
Prejudice is an entirely different issue.

[00:39:03] Speaker 06:
Prejudice is a separate issue that you address once there has been harm.

[00:39:08] Speaker 06:
Harm is from being treated differently.

[00:39:11] Speaker 00:
But before you can show that you have been treated differently, you have to at least make a finding or demonstrate that you had a responsive proposal to begin with.

[00:39:22] Speaker 06:
No, no, no.

[00:39:23] Speaker 06:
But where is that?

[00:39:25] Speaker 00:
In order, I mean, Free Alliance claims that it was treated disparately than our friends were talking about.

[00:39:32] Speaker 06:
Free Alliance is saying, I would have gone to phase two, but for the fact that I flunked accounting.

[00:39:38] Speaker 00:
We don't know that they would have gone to phase two.

[00:39:40] Speaker 06:
Well, there's no record that shows they wouldn't.

[00:39:42] Speaker 00:
Correct.

[00:39:44] Speaker 06:
Right.

[00:39:44] Speaker 06:
But there's no record that shows they would.

[00:39:46] Speaker 06:
I understand that, but it's all hypothetical in that respect.

[00:39:50] Speaker 06:
Yes.

[00:39:50] Speaker 06:
As the law requires us to greet Free Alliance's argument in the context that is presented to us.

[00:39:58] Speaker 06:
I understand.

[00:39:59] Speaker 06:
And you appreciate that.

[00:40:01] Speaker 00:
I appreciate the concern.

[00:40:02] Speaker 06:
And Free Alliance is saying we're supposed to be, under the rules, we're supposed to be treated the same as Oklahoma.

[00:40:08] Speaker 06:
Now, we were told that we flunked accounting, and therefore we couldn't go forward.

[00:40:14] Speaker 06:
Oklahoma was told you flunked accounting, but you couldn't go forward unless you have some other problem.

[00:40:20] Speaker 06:
And you have some other problem, so you can't go forward.

[00:40:22] Speaker 00:
There are no final evaluation findings on Oklahoma in the record.

[00:40:29] Speaker 06:
We know from Oklahoma that although the records we have show that they passed accounting,

[00:40:37] Speaker 00:
We made that concession after a careful review of the record.

[00:40:41] Speaker 06:
And I applaud you for it.

[00:40:43] Speaker 06:
But to me, it was raising a major red flag.

[00:40:47] Speaker 00:
I appreciate the dilemma, Your Honor, but we do.

[00:40:52] Speaker 00:
But our position is that, given the fact that none of the noncompliant offers when it came to accounting verifications move forward, that at the end of the day, there was no disparate treatment.

[00:41:08] Speaker 00:
They were treated the same in the sense that none of them were allowed to go forward.

[00:41:13] Speaker 00:
And none were awarded townhouse.

[00:41:14] Speaker 03:
Thank you very much.

[00:41:15] Speaker 03:
Thank you.

[00:41:17] Speaker 03:
OK.

[00:41:18] Speaker 03:
Thank you, Ms.

[00:41:19] Speaker 03:
Sanchez.

[00:41:20] Speaker 03:
Mr. Schoonover.

[00:41:26] Speaker 01:
Thank you, Your Honor.

[00:41:29] Speaker 01:
My friend is right that, in one sense, that the law does not require a procurement to be perfect.

[00:41:36] Speaker 01:
But the law does require a procurement to be fair.

[00:41:39] Speaker 01:
And I think as this court is articulating, this procurement certainly was anything but as it relates to free alliance.

[00:41:47] Speaker 01:
When we look at page 87 of the appendix, as cited by the government, there is no information in that page that articulates the government had any concerns whatsoever with the accounting verification forms submitted by our friends from Oklahoma.

[00:42:05] Speaker 01:
And though the government says these were pre-decisional documents, Judge Clevenger, I believe you're correct, that this is the record that we have before us.

[00:42:13] Speaker 01:
And that record shows that this evaluation was certainly on the fair.

[00:42:17] Speaker 03:
But they had a different noncompliance issue.

[00:42:20] Speaker 03:
So your position is, even though there were hundreds of bidders, that the government has an obligation to state every ground of noncompliance

[00:42:33] Speaker 03:
and offer an opportunity for remedy?

[00:42:36] Speaker 01:
Well, Your Honor, with regards to the first point, so I kind of believe that that was a two-phase question, with regards to the first point about does the government have to state every grounds for noncompliance?

[00:42:46] Speaker 03:
If we look in the record... That was really, I think, what the Court of Federal Acclaims was focusing on.

[00:42:54] Speaker 01:
Well, and if the court were to look at the record, it pages appendix page 66 and 67,

[00:43:00] Speaker 01:
The government has said below and articulated again here that just because an offeror was found to be no-go under one criterion does not necessarily mean that the record would reflect that it was found to be no-go under the other.

[00:43:15] Speaker 01:
But if we look at pages appendix 66 and 67, we see that there are six offerors that are no-go under both criteria.

[00:43:25] Speaker 01:
So that certainly tells us that contrary to perhaps what the court found below, that the government's notes in this case were cumulative.

[00:43:33] Speaker 01:
That if the government noted noncompliance under criterion one, it noted that in its evaluation notes.

[00:43:42] Speaker 01:
Similarly, if it also noted that there were noncompliance under criterion two, it noted that as another reason to find offerors to be no go.

[00:43:51] Speaker 01:
So the argument that perhaps

[00:43:55] Speaker 01:
This doesn't matter that it wasn't really equal because the government had found them to be non-compliant under a different criterion.

[00:44:03] Speaker 01:
I don't think it's actually borne out by how the record suggests that the evaluation actually took place.

[00:44:12] Speaker 01:
And the government noted also that none of the offerors with deficient accounting verification forms survived to the phase two evaluation.

[00:44:22] Speaker 01:
And with respect, I believe that that's incorrect.

[00:44:26] Speaker 01:
We have pointed out in our briefing where some of these other deficiencies took place.

[00:44:32] Speaker 01:
But if the court were to look at page appendix 61, again, this is an accounting verification form that was submitted by a company that is not on letterhead.

[00:44:46] Speaker 01:
And yet this company was ultimately named an awardee as the government's most recent filing shows.

[00:44:52] Speaker 01:
So they obviously proceeded to phase two even though they had a non-compliant version of their accounting verification form.

[00:45:00] Speaker 01:
Similarly with appendix page 55.

[00:45:02] Speaker 03:
Sorry, what's wrong with 61?

[00:45:05] Speaker 03:
61 is on the letterhead.

[00:45:07] Speaker 01:
I don't believe that's letterhead, Your Honor, and that letterhead, if it is letterhead, provides no more information than what our account or what free alliance's accounting verification forms also provide.

[00:45:18] Speaker 06:
Certified public account?

[00:45:20] Speaker 01:
Certainly.

[00:45:21] Speaker 01:
And so was free alliances forms.

[00:45:25] Speaker 01:
Those forms indicated on page free alliances forms at appendix pages 41 and 42 indicated the CPA in section three who had actually audited their records and attested to their accuracy.

[00:45:40] Speaker 01:
Similarly pages, excuse me, 58, appendix page 58.

[00:45:46] Speaker 01:
This is an accounting verification form for another awardee.

[00:45:50] Speaker 01:
And though this accounting verification form is on letterhead, the substance of this accounting verification form is deficient.

[00:46:06] Speaker 01:
By the way, it's not actually signed by a CPA.

[00:46:08] Speaker 01:
It's instead signed by the CPA firm, where the solicitation required it to be signed by an actual CPA.

[00:46:15] Speaker 01:
But this independent accountants report just says, if the court were to read it,

[00:46:20] Speaker 01:
that the CPA has reviewed this company's management's assertion that they have an accounting verification, an adequate accounting system, and I apologize if I may finish this thought, and does not have any reason to dispute that management's assertion of the adequacy of their accounting verification form.

[00:46:38] Speaker 03:
Okay.

[00:46:39] Speaker 03:
We have the arguments.

[00:46:41] Speaker 03:
Thank you very much.

[00:46:41] Speaker 03:
Thank you, Your Honor.

[00:46:42] Speaker 03:
The case is taken under submission.