[00:00:18] Speaker 00:
Thank you, Your Honor.

[00:00:20] Speaker 00:
All right, now this appeal involves the agency's round three reevaluation.

[00:00:24] Speaker 00:
And the first issue I want to address is whether the agency was required to reopen discussions with XPO when it downgraded XPO's announced past performance scores from the prior two rounds.

[00:00:36] Speaker 00:
The key question is this.

[00:00:38] Speaker 00:
Does the agency have to reopen discussions when information given by the agency to a bidder, accurate when given,

[00:00:46] Speaker 00:
is no longer accurate because of a re-evaluation in which the agency, based on the same proposal materials, significantly downgrades the scoring it reported earlier.

[00:00:57] Speaker 00:
The precedent of the Court of Federal Claims and the GAO is uniform that it does.

[00:01:03] Speaker 00:
In rounds one and two, the agency graded XBO as having relevant and very relevant references.

[00:01:09] Speaker 00:
It evaluated as having the highest confidence score, a substantial confidence, but then it downgraded that

[00:01:17] Speaker 00:
after telling XBO didn't have to supplement his proposal at all, having no questions of it, no concerns stated, to two of those references being not relevant, the other moving from very relevant to relevant, and then downgrading the overall confidence score as well.

[00:01:34] Speaker 00:
But it didn't give XBO the opportunity to address what the agency's newfound concerns were.

[00:01:44] Speaker 00:
In that situation, Your Honor,

[00:01:48] Speaker 00:
They had to reopen and allow us the opportunity that they'd given to others as well.

[00:01:54] Speaker 00:
The government's response is that the agency had indicated before the reevaluation that it didn't intend to reopen discussions, that they were closed.

[00:02:03] Speaker 00:
All the cases, your honor, finding misleading discussions in exactly this circumstance were in exactly the same procedural posture as this.

[00:02:13] Speaker 00:
The government has said,

[00:02:14] Speaker 00:
Discussions are closed, now give us your final price revisions, your FPRs or your best and final offers, your BAFOs.

[00:02:22] Speaker 00:
And then, though, they did a reevaluation internally without the offer or changing their proposal materials and downgraded them.

[00:02:30] Speaker 00:
The GAO, the courts say you have to reopen in that circumstance.

[00:02:36] Speaker 00:
Discussions are closed in this field does not mean and there's no way they'll ever be opened again.

[00:02:42] Speaker 00:
It means they're closed unless it's in the government's best interest to reopen or unless the law requires it.

[00:02:49] Speaker 00:
In this situation, the law required it.

[00:02:53] Speaker 00:
Now, the Court of Federal Claims incorrectly held that XBO's protest on this ground was untimely.

[00:03:01] Speaker 00:
Obviously, XBO could not know the results of its reevaluation and its downscoring until it had happened.

[00:03:09] Speaker 00:
The court of federal claims asserted that XBO should have known that it was likely to be downgraded.

[00:03:16] Speaker 05:
I'm sorry.

[00:03:16] Speaker 05:
Why does the question of whether there had to be discussions depend on whether you were going to be downgraded or not?

[00:03:25] Speaker 00:
I'm sorry, Your Honor, I don't understand the question.

[00:03:27] Speaker 05:
I thought your complaint is that they had to open the discussions and you're not disputing that you were

[00:03:37] Speaker 05:
that you knew that they were not going to open the discussions, is that right?

[00:03:41] Speaker 00:
Don't dispute that they didn't say they were going to reopen it when they started doing their re-evaluation.

[00:03:47] Speaker 05:
Right.

[00:03:48] Speaker 05:
So if you knew or there was patent ambiguity or something about whether there were going to be further discussions and you thought we really better have some more discussions, why is that not classic blue and gold?

[00:04:04] Speaker 05:
You don't wait to see if you win before you figure out.

[00:04:07] Speaker 05:
The whole point of blue and gold is that the terms of the solicitation have to be settled through formal protests and whatnot before you know.

[00:04:18] Speaker 00:
Right.

[00:04:18] Speaker 00:
What we are challenging here is the re-evaluation itself.

[00:04:22] Speaker 00:
It's OK to say we're not going to take any more discussions.

[00:04:24] Speaker 00:
However, if events unfolded like they did, and which, with the same RFP criteria, the same proposal materials,

[00:04:33] Speaker 00:
They now substantially downgrade.

[00:04:36] Speaker 00:
Now what they've said earlier in discussions when they had them with us is not accurate when they told us we had the highest scores and very relevant references.

[00:04:44] Speaker 00:
That's misleading to us and they must reopen as a matter of law in order to give us the same opportunity they gave to others to address their concerns.

[00:04:54] Speaker 00:
And as we showed Mr. Dyer's affidavit, it was prejudicial because there was a lot we could have said about these newfound concerns that they had.

[00:05:02] Speaker 02:
But before round three, you did know the agency was going to be reevaluating the performance of yourself and Crowley, correct?

[00:05:13] Speaker 00:
Actually, all that the GAO recommended, and the agency said it was going to follow that recommendation, was that it reevaluate Crowley.

[00:05:23] Speaker 04:
But reevaluate Crowley because the agency had misunderstood the scope of the analysis it needed to do, right?

[00:05:30] Speaker 04:
Because the agency only looked at the first two years of the contract and didn't appreciate that they should really be analyzing the past performance situation against really a seven-year contract.

[00:05:43] Speaker 00:
That's what the government argues, but it's not true.

[00:05:46] Speaker 00:
And if you read the JO decision, Your Honor, you'll see that's not accurate.

[00:05:51] Speaker 00:
There's nothing in the

[00:05:53] Speaker 00:
evaluation materials for round one that said they limited it to two years.

[00:05:57] Speaker 00:
Now, the government post-hoc, the agency came in at GAO and said, OK, well, let's just look at it against two years.

[00:06:03] Speaker 00:
But that's not what they did.

[00:06:04] Speaker 00:
And GAO said, there's no explanation in this record as to why references that are this small don't fit under the little or none category for relevance.

[00:06:17] Speaker 00:
And even if I take their post-hoc assertions that, well, they only compared it against two years,

[00:06:23] Speaker 00:
They're still too small, and there's still no explanation in the record why it doesn't fit under a little or no.

[00:06:29] Speaker 00:
So that was the back and forth at the GAF.

[00:06:32] Speaker 00:
So when we went into this situation, even if we assumed that, okay, they might look at us too, we have no idea what the particulars are, whether they will downgrade us.

[00:06:44] Speaker 00:
We don't know what the particulars are, why they downgraded us.

[00:06:47] Speaker 00:
There's no final agency action for us to complain about at this point.

[00:06:52] Speaker 00:
And we know that the law is- I'm sorry.

[00:06:54] Speaker 05:
If your grievance is you had to have the opportunity to talk to them, you either knew ahead of time that you were not going to have that opportunity or you didn't.

[00:07:07] Speaker 00:
I don't see any- That's not my grievance.

[00:07:09] Speaker 00:
My grievance is that they reevaluated me and downgraded me and had new concerns and came up with new sub-criteria without changing the RFP itself.

[00:07:21] Speaker 00:
And so what they told me before in discussion is no longer accurate.

[00:07:26] Speaker 00:
And the law is when that happens, then you must reopen and allow discussions to go forward again.

[00:07:35] Speaker 00:
Because what you told them before is no longer accurate.

[00:07:39] Speaker 00:
And it's not the bidder's fault.

[00:07:42] Speaker 00:
Because it's looking at the same proposal materials.

[00:07:44] Speaker 00:
The GAO says that the key question here is, are you looking at the same proposal materials or not?

[00:07:50] Speaker 00:
And if you're looking at the same proposal materials, you must, as a matter of law, reopen because what you did before is misleading.

[00:07:56] Speaker 02:
I don't understand.

[00:07:57] Speaker 02:
There was no change to the solicitation, and I didn't think there was a change to the evaluation process.

[00:08:03] Speaker 02:
What is the change apart from the one you actually requested when you successfully had your round two bid protest?

[00:08:11] Speaker 02:
What did the agency do differently this time that you should have had a right to respond to?

[00:08:20] Speaker 00:
We did not ask for the RFP evaluation criteria to be changed.

[00:08:24] Speaker 00:
I want to make sure that's clear, even though there were some suggestion of that in the government's brief.

[00:08:29] Speaker 00:
Our whole protest was they didn't apply the RFP's evaluation criteria consistently with what it says.

[00:08:36] Speaker 02:
I thought your protest was they didn't evaluate past performance properly.

[00:08:42] Speaker 00:
Yes, and they reevaluated it.

[00:08:44] Speaker 00:
They came up with additional

[00:08:46] Speaker 00:
explanations, they had a few additional criteria they were going to apply and they mis-did a lot of stuff and suddenly our evaluation from being the very highest is now not relevant and dropping the overall ratings and that made what they told us before misleading.

[00:09:07] Speaker 00:
We could not have known that until we got the information about what the final agency reevaluation was.

[00:09:14] Speaker 00:
It is simply not the rule of law that, uh, you know, they might re-evaluate us.

[00:09:19] Speaker 00:
And it's maybe... They might.

[00:09:22] Speaker 02:
You were told that you were going to be re-evaluating all of the offeror's proposals.

[00:09:28] Speaker 02:
I mean, that part you were told.

[00:09:30] Speaker 00:
No, we weren't told that.

[00:09:32] Speaker 00:
GAOs recommended that they re-evaluate Crowley's.

[00:09:36] Speaker 00:
However, even if we knew that, the standard that the Court of Federal Claims put up, you should have known it was likely you'd be re-evaluated.

[00:09:45] Speaker 00:
Well, that doesn't give us enough to protest on.

[00:09:48] Speaker 00:
We still have to know what's the result of that reevaluation.

[00:09:51] Speaker 00:
What are the particulars?

[00:09:52] Speaker 05:
After the GAO, what did the agency say it was going to do in round two?

[00:10:00] Speaker 00:
We quote that in our brief.

[00:10:01] Speaker 00:
It says it's going to follow the recommendation of the GAO.

[00:10:05] Speaker 00:
And the GAO's recommendation was that it reevaluate Crowley's past performance.

[00:10:11] Speaker 04:
Are you saying you

[00:10:12] Speaker 00:
And they did that.

[00:10:13] Speaker 04:
Are you saying XBO never had any notice at any wave, shape, or form that XBO's past performance part would be also taken a look at in view of what the GAO instructed?

[00:10:27] Speaker 00:
There was never any formal notice given by the contracting officer to our client that we would be reevaluated.

[00:10:33] Speaker 00:
There was indication during the litigation that they would probably do that.

[00:10:38] Speaker 05:
During the litigation, you mean in the GAO?

[00:10:40] Speaker 00:
Of round two, no, at the court.

[00:10:42] Speaker 00:
Said they're going to, we're going to follow the round, the recommendation of the GAO.

[00:10:46] Speaker 00:
And by the way, that means we're going to probably reevaluate you as well.

[00:10:50] Speaker 05:
So the first time everybody went to the court of federal claims.

[00:10:52] Speaker 00:
Correct, your honor.

[00:10:54] Speaker 00:
In the round two litigation.

[00:10:55] Speaker 00:
But again, okay.

[00:10:59] Speaker 00:
We don't know for sure that's what's going to happen.

[00:11:01] Speaker 00:
Even we do, we don't know what the result is.

[00:11:02] Speaker 00:
There's nothing for us to protest at that point.

[00:11:05] Speaker 00:
Only know that, or they should have reopened.

[00:11:11] Speaker 00:
when we got the results.

[00:11:13] Speaker 00:
And we also could rest easy, if you will, on that because... Can you help me on this?

[00:11:21] Speaker 05:
Suppose for purposes of this question that you knew that you were going to be reevaluated.

[00:11:27] Speaker 05:
Taking that as a given, what is it that the agency said to you earlier that you could rely on

[00:11:38] Speaker 05:
as not changing when they actually did the round two evaluation?

[00:11:44] Speaker 00:
There was nothing.

[00:11:46] Speaker 05:
I mean, if they said something to you before the GAO and then they say, oh, we're going to reevaluate, it seems to me the things they said before, I don't know what, in what context they said these things except their initial evaluations.

[00:12:00] Speaker 05:
But once I say we're going to reevaluate, are they bound by things that they said

[00:12:06] Speaker 00:
They're not bound by it, but there's also no reason for us to think that anything would reasonably change.

[00:12:12] Speaker 00:
And we also could rely on the rule of law that I've been talking about, which is that if they do make a material change and make what they had told us previously now inaccurate, then they have a legal requirement to reopen and give us a chance to address those newfound concerns that they have.

[00:12:29] Speaker 00:
That's what Ashbritt says.

[00:12:31] Speaker 00:
That's what Raytheon says.

[00:12:33] Speaker 00:
That's what the JO says repeatedly.

[00:12:35] Speaker 00:
So that's a situation we found ourselves in.

[00:12:38] Speaker 00:
We don't have to anticipate that the agency is going to violate the law.

[00:12:42] Speaker 02:
And you kept saying how they're not treating you the same as everyone else.

[00:12:45] Speaker 02:
But it's my understanding they also treated you and Crowley the exact same way with regard to this.

[00:12:52] Speaker 00:
Absolutely not, Your Honor.

[00:12:56] Speaker 02:
Didn't they downgrade Crowley's rating on past performance as well and not give them an opportunity to respond?

[00:13:04] Speaker 00:
No.

[00:13:05] Speaker 00:
When they downgraded Crowley, they gave them an opportunity to respond.

[00:13:08] Speaker 00:
When they downgraded Genco, they reopened it.

[00:13:11] Speaker 02:
After round three.

[00:13:14] Speaker 00:
Not after round three, after round two.

[00:13:17] Speaker 00:
After round one, they had both Genco, they had Crowley.

[00:13:21] Speaker 04:
The round that you're referring to that you're saying that you didn't get the opportunity to have a discussion with the agency.

[00:13:30] Speaker 04:
It's true for XBO as well, right?

[00:13:34] Speaker 04:
Crowley.

[00:13:34] Speaker 04:
Sorry.

[00:13:35] Speaker 00:
They did not reopen for Crowley, but they had previously identified what they had as a concern and given them a chance to supplement, and they did.

[00:13:46] Speaker 00:
They said, your references are too small.

[00:13:48] Speaker 00:
You're not showing any experience in air TDEF.

[00:13:53] Speaker 00:
So what are you going to do about it?

[00:13:56] Speaker 00:
Crowley comes in with 34 new references, and it comes in with more information.

[00:14:02] Speaker 00:
That's exactly what they should have done for us if they had a similar concern about these things.

[00:14:07] Speaker 00:
But they didn't do it.

[00:14:10] Speaker 02:
Let's save the rest of your time and hear from the closing counsel.

[00:14:14] Speaker 02:
Thank you, Your Honor.

[00:14:17] Speaker 03:
Dr. Harlow.

[00:14:19] Speaker 03:
Good afternoon.

[00:14:21] Speaker 03:
May it please the Court.

[00:14:22] Speaker 03:
The discussions-based argument that we've been hearing from XBO

[00:14:26] Speaker 03:
It originates with a protest from Expo that paralleled the protest that we were just discussing.

[00:14:33] Speaker 03:
In that protest, Expo argued that the agency had been too lenient on small pass performance and that pass performance that was too small had been too leniently rated.

[00:14:44] Speaker 03:
Now from that, the GA ruled in XBO's favor and TransCom said that it would initiate a corrective action plan to re-evaluate past performance.

[00:14:53] Speaker 03:
And that spawned a protest from Crowley in the Court of Federal Claims where the corrective action plan to re-evaluate past performance was put before the trial court.

[00:15:03] Speaker 03:
Now I know we've been talking a lot about waiver, but it's even more than that.

[00:15:06] Speaker 03:
You have to remember that during that protest, XBO defended the corrective action plan that was put forward by the government.

[00:15:12] Speaker 03:
And to say that they didn't have notice of exactly what that corrective action plan would look like is simply not true.

[00:15:18] Speaker 05:
I thought Mr. Claybrook said that at least until you got to the court of federal claims, and I could have been, could be misunderstanding, they had no idea that they were going to be reevaluated.

[00:15:28] Speaker 05:
Well, you know, I can't speak for what they would have known or not known, but to have said... The information from the government or the GAO told them that they were going to be reevaluated.

[00:15:38] Speaker 05:
Not specifically.

[00:15:39] Speaker 05:
There had really been no communication from... What point did they learn that they were going to be reevaluated?

[00:15:46] Speaker 03:
They learned that they would be reevaluated at the status conference of that protest because the issue came up then.

[00:15:51] Speaker 03:
And then if you look at the briefs that I filed in the trial court that I actually block quoted in the briefs before this court, we laid out a step-by-step plan of how this would work.

[00:16:00] Speaker 03:
And because to do the reevaluations would impact both of them, both of them had to be reevaluated.

[00:16:07] Speaker 03:
And along with that, we made it explicitly clear that discussions were not going to be reopened.

[00:16:11] Speaker 03:
Now, Mr. Claybrook has expressed some surprise that they were also going to be reevaluated.

[00:16:17] Speaker 03:
And I'm not in a position to evaluate that surprise.

[00:16:19] Speaker 03:
For that to be true, they would have had to have expected Crowley to be evaluated under some standard that no longer applied to XBO.

[00:16:27] Speaker 03:
So you would have had both Romanian offerors being evaluated by different criteria.

[00:16:34] Speaker 03:
I don't know how they could be surprised that they both had to be impacted by this.

[00:16:39] Speaker 02:
So you said at a minimum, they were told at the status conference before the Court of Federal Claims, and they were both informed that there would be no further negotiations.

[00:16:48] Speaker 02:
Correct.

[00:16:49] Speaker 02:
Is it your view that if they had a problem with that, they had a duty to object at that time and get on the record, or could they have?

[00:16:56] Speaker 03:
Yes, ma'am.

[00:16:57] Speaker 03:
I think the minute that I put in there that discussions were not going to be reopened, if they no longer wanted to defend that plan alongside me, they had every opportunity to either join Crowley's protest or have their own protest.

[00:17:09] Speaker 02:
But forget about joining Crowley's protest or have their own, or they could just say to you, wait, we want to put in a number of new references.

[00:17:16] Speaker 02:
if you're going to apply this to us, they put in, what, 30 new references at some point, he said, when you questioned something about them.

[00:17:24] Speaker 02:
XPO could have said, wait a minute, time out.

[00:17:27] Speaker 02:
If you're reviewing our past performance and you're doing it under this new criteria, we'd like to put some new references in.

[00:17:32] Speaker 03:
Yes, and I apologize.

[00:17:32] Speaker 03:
I think I was skipping all the way to the protest stage of that.

[00:17:35] Speaker 03:
But you're absolutely right.

[00:17:35] Speaker 03:
If they had raised it, there could have been a conversation about that.

[00:17:39] Speaker 03:
And if they had wanted to

[00:17:40] Speaker 03:
have discussions, I don't know where that would have gone at that point, but we would have at least raised the issue when it should have been raised, and we could have worked through that then.

[00:17:48] Speaker 03:
And that was the first reason that the child court rejected this argument, that was the time.

[00:17:52] Speaker 03:
We could have had those conversations, we could have figured out where all the parties were on this, and if discussions needed to be reopened or it was just the smarter path, we could have dealt with it then.

[00:18:02] Speaker 03:
And the trial court looked and said, you knew this was how it was going to play out and you did nothing about it.

[00:18:06] Speaker 03:
And in fact, you joined the government.

[00:18:08] Speaker 05:
And that- So what you just said seems, as I understand things, responsive to the argument that discussions were necessary in order to make non misleading pre-corrective action discussions.

[00:18:27] Speaker 05:
What about the unequal?

[00:18:30] Speaker 05:
That Crowley, I think Mr. Claybrook said, had some deficiencies in its submission that the agency contacted it about.

[00:18:42] Speaker 05:
And yet when the agency in conducting its reevaluation found

[00:18:49] Speaker 05:
you know, new deficiencies that is newly identified for the agency deficiencies in XBO.

[00:18:56] Speaker 05:
It didn't contact XBO about them.

[00:18:58] Speaker 03:
Why is that not a... Right, and it gets a little confusing here because there's a lot of different, what the parties have taken to calling rounds of this procurement.

[00:19:08] Speaker 03:
At the start, what is not disputed is that at every individual round, everyone was treated equally.

[00:19:13] Speaker 03:
So from the corrective action plan, discussions were not reopened with either one of them.

[00:19:18] Speaker 02:
What Crowley's point is... Let me see if I can try to respond and see if I understand the facts right.

[00:19:24] Speaker 02:
Isn't the scenario that Judge Toronto just explained, the post-Round 2 scenario,

[00:19:31] Speaker 02:
not the post-Round 3 scenario.

[00:19:34] Speaker 02:
Post-Round 3, nobody was given an opportunity to introduce new references or take corrective action.

[00:19:41] Speaker 03:
That is absolutely correct.

[00:19:42] Speaker 03:
And in Round 2, the discussions were centered on the different issues that were raised during that time with each offeror's proposal.

[00:19:50] Speaker 03:
So they each had the opportunity to respond to whatever issues may have come up in their proposals during that period of time.

[00:19:55] Speaker 03:
And they were both given the opportunity to deal with it.

[00:19:58] Speaker 02:
But XBO's response to that would be, yes, but you didn't have any concerns with our past performance after round one or after round two.

[00:20:05] Speaker 02:
So wait, you're doing great.

[00:20:07] Speaker 02:
Wait, let me respond.

[00:20:08] Speaker 02:
I mean, you wouldn't do that.

[00:20:10] Speaker 02:
You had problems with Crowley, and you let them respond.

[00:20:13] Speaker 02:
And the first time that you demonstrated any problems with XBO's past performance was post round three.

[00:20:19] Speaker 02:
and they felt a little blindsided.

[00:20:20] Speaker 03:
Yes, and that's what the trial court's second basis for its opinion was rejecting that argument.

[00:20:26] Speaker 03:
What they point out is the difference between the law that XPO relies on is where the agency has changed the evaluation criteria and told one subset of offerors, but not another.

[00:20:38] Speaker 03:
Or in this case, told one offeror and told the other.

[00:20:41] Speaker 03:
That situation is obviously unfair.

[00:20:44] Speaker 03:
It's obviously unequal.

[00:20:45] Speaker 03:
But that's not what happened here.

[00:20:47] Speaker 03:
To any extent that the criteria changed, I think we get into the semantics of whether or not their interpretation of the solicitation was corrected by XPO's protest or the criteria itself changed.

[00:20:57] Speaker 03:
What is undisputed is that there were no conversations with either one of them about that.

[00:21:01] Speaker 03:
So they were dealing with equal information at the time.

[00:21:05] Speaker 03:
And that's the second basis for the trial court's decision is that what XPO hangs its hat on is the fact that its ratings changed.

[00:21:12] Speaker 03:
That's not what the case law is looking at.

[00:21:14] Speaker 03:
The case law is looking at did the criteria change and somebody was told and somebody was not told.

[00:21:20] Speaker 03:
To the extent that we all disagree whether or not the criteria changed or not, it's undisputed that Crowley was not given information and XPO not.

[00:21:27] Speaker 03:
They were both coming from the same place.

[00:21:29] Speaker 03:
And the fact that their ratings changed, I think the trial court pointed out that they had to have expected that XPO's smaller contracts would no longer be relevant.

[00:21:40] Speaker 03:
And I think you see a line in

[00:21:42] Speaker 03:
XBO's brief that the common sense approach would have been for them to assume that their ratings would not have changed.

[00:21:47] Speaker 03:
I would assume it to the court is that there's no possible way that can be true, because if the smaller contracts for one were deemed not relevant, the smaller contracts for the other also had to be deemed irrelevant so that they could be treated the same.

[00:22:00] Speaker 03:
If there are no further questions, I think the court is adjourned.

[00:22:03] Speaker 02:
Thank you, Mr. Harlow.

[00:22:05] Speaker 02:
How do I say your name?

[00:22:06] Speaker 02:
Slackalino.

[00:22:09] Speaker 02:
Slackalino.

[00:22:10] Speaker 02:
It's a butchering of Italian, but it is what it is.

[00:22:19] Speaker 01:
I wanted to just help with the timeline here because we've been chipping at this protest for a long time.

[00:22:27] Speaker 01:
And Mr. Claybrook is saying, oh, Crowley had all of these discussions and we didn't have them.

[00:22:35] Speaker 01:
The discussions that were had

[00:22:37] Speaker 01:
And I'm using that term very generously with him.

[00:22:40] Speaker 01:
What the parties were told is, here are your interim ratings.

[00:22:45] Speaker 01:
And that's what we were told.

[00:22:46] Speaker 01:
We were told in rounds one and two, as was XPO, exact same information, received the same one pager, your interim ratings are X. Well, when those came in, either offeror had the ability to change their proposals in any way they wanted to,

[00:23:06] Speaker 01:
as a result of that information before FPRs came in.

[00:23:09] Speaker 01:
That is exactly, it was identical for both offerors.

[00:23:14] Speaker 01:
It just happened that Crowley took the opportunity, having received the exact same communication about its ratings, to change its proposal in the past performance area.

[00:23:25] Speaker 01:
XPO changed its proposal, presumably, in other areas, based upon, again, the information that it received identically

[00:23:33] Speaker 01:
Formatted just simply the ratings of the different offerors.

[00:23:37] Speaker 01:
There was no difference here.

[00:23:39] Speaker 01:
In round three, nobody knew anything.

[00:23:42] Speaker 01:
They got the exact same communications.

[00:23:44] Speaker 01:
There was no opportunity to change your proposal, no opportunity for discussions, no different information set.

[00:23:53] Speaker 01:
We've had a conversation here about the, could XPO have known that it needed to protest beforehand?

[00:24:02] Speaker 01:
Absolutely.

[00:24:03] Speaker 01:
I mean, here it's almost remarkable how divorced from the facts Mr. Claybrook's argument is.

[00:24:12] Speaker 01:
XBO argued at the GAO that in round two that TransCom's evaluation of past performance was unreasonable.

[00:24:20] Speaker 01:
It argued that it was unreasonable because it had used an incorrect...

[00:24:26] Speaker 01:
Comparing it against the baseline originally of the entire seven-year contract, these contracts are too low, okay?

[00:24:36] Speaker 01:
And then the agency came back and said, well, we used a two-year figure.

[00:24:41] Speaker 01:
Again, XBO says that's wrong too.

[00:24:44] Speaker 01:
Your evaluation is unreasonable.

[00:24:46] Speaker 01:
Not only is it unreasonable with respect to magnitude, it's unreasonable with respect to scope, it's unreasonable with respect to complexity, and you didn't document it well.

[00:24:56] Speaker 01:
Well, they won that.

[00:24:58] Speaker 01:
And so how could they possibly have been misled?

[00:25:01] Speaker 01:
If anybody knew how Transcom was going to react, it was XBO who argued for, advocated for this change.

[00:25:11] Speaker 01:
And maybe they didn't know what their ultimate rating would be, but they knew that Transcom would be evaluating past performance clearly for both offerors.

[00:25:21] Speaker 01:
There's nothing in the record that suggests

[00:25:23] Speaker 01:
that XPO's contracts were ever evaluated against, you know, any other baseline than the exact same one that applied to Crowley, that they would be evaluated against a full scope of the DFTS contracts for scope, magnitude, and complexity.

[00:25:39] Speaker 01:
And so it's just not credible that this would, that they wouldn't have known this.

[00:25:45] Speaker 01:
And it's not credible that they could have been misled by information in an evaluation they themselves called unreasonable.

[00:25:53] Speaker 01:
So there was nothing misleading, nor was there anything unequal.

[00:25:59] Speaker 01:
The offerors were treated entirely equally.

[00:26:02] Speaker 01:
And this is evidenced by nothing else other than the fact that our rating got dropped to neutral.

[00:26:09] Speaker 01:
Nothing favorable, nothing unfavorable.

[00:26:11] Speaker 01:
So any favorable inferences that Mr. Claybrook says came to Crowley's benefit, there is none.

[00:26:21] Speaker 01:
There is nothing favorable to be drawn from a neutral past performance evaluation rating as a matter of law.

[00:26:27] Speaker 01:
The one thing we haven't talked about here, and I only want to talk about it briefly, is the claim that the agency is switching from past performance to the best value determination, that the agency couldn't consider at all corporate experience in its final award decision.

[00:26:46] Speaker 01:
And that's just simply inconsistent with the terms of the solicitation.

[00:26:50] Speaker 01:
The solicitation itself says that proposals will be evaluated against five factors.

[00:26:55] Speaker 01:
The first of those five factors is corporate experience.

[00:26:58] Speaker 01:
There is nothing in the solicitation that says that it will fall out of the calculus.

[00:27:02] Speaker 01:
There's nothing that says that the agency has to ignore what it's learned about corporate experience.

[00:27:08] Speaker 01:
So, you know, the solicitation says what it says.

[00:27:12] Speaker 01:
Again, you know, if XPO did not want corporate experience ever considered as a factor, that should have been something it protested at the outset of the solicitation.

[00:27:23] Speaker 01:
Having put it into the solicitation, it clearly had some meaning to the agency that it wasn't required to ignore.

[00:27:30] Speaker 02:
Unless the court has additional questions, I would just let you know that when you raise an argument in rebuttal, an oral argument that wasn't raised in the affirmative, now you've opened the door for him to address it.

[00:27:42] Speaker 02:
In his rebuttal, prior, he couldn't.

[00:27:44] Speaker 02:
So by deciding to branch into that separate argument, I just want you to know you've opened the door, and now he's free to talk about new matters that he didn't talk about before.

[00:27:52] Speaker 02:
So you gave him that opportunity by doing that.

[00:27:55] Speaker 02:
Just an FYI for oral argument in the future.

[00:27:57] Speaker 02:
Go ahead, Mr. Claybrook.

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

[00:28:05] Speaker 00:
Quick bullet points.

[00:28:08] Speaker 00:
Procurement must be reviewed as a whole, not round by round.

[00:28:13] Speaker 00:
And all these cases that we've been talking about say exactly that.

[00:28:17] Speaker 00:
Also, even if there's going to be a reevaluation as to total contract value, which was the big crowdy problem, as we pointed out in our briefs, the government

[00:28:32] Speaker 00:
mis-evaluated our total contract values, value not price, by not including the freight under management, the transportation costs when this procurement does include that in the price.

[00:28:44] Speaker 00:
You have to compare apples to apples.

[00:28:47] Speaker 00:
And let me point out as well that there was no change to the RFP here, so we aren't in a blue and gold situation or a comment situation.

[00:28:58] Speaker 00:
And I can't say it any better than the government itself did in round two and Crowley was protesting and saying, oh, JO has recommended that you change the evaluation criteria and that we don't know what our corrective action is going to be.

[00:29:12] Speaker 00:
The government says there's been no change to the evaluation criteria.

[00:29:15] Speaker 00:
JO did not recommend that.

[00:29:17] Speaker 00:
We're not doing it.

[00:29:18] Speaker 00:
And if you've got a complaint about the corrective action that's taken on you, it's not right to complain about it now.

[00:29:24] Speaker 00:
Wait until it's done when there's been final agency action and then protest it.

[00:29:28] Speaker 00:
exactly what's going on here.

[00:29:31] Speaker 00:
On corporate experience, we're going to rely on our briefs, Your Honor, as she did reopen that in terms of best value, but the law is clear that corporate experience and the RFP is clear, may not be considered or any no-go-no-go considerations may not be considered in a trade-off.

[00:29:50] Speaker 00:
One final remark, if I may, and it's just to give a status update on our pending motion to stay.

[00:29:57] Speaker 00:
The transition has gotten started but it's not very far along at all.

[00:30:03] Speaker 00:
The first site of any size is the transition is basically starting today.

[00:30:12] Speaker 00:
So we would ask the court to consider our motion to stay in order to prevent any further harm to XBO and the government.

[00:30:21] Speaker 00:
Thank you.

[00:30:22] Speaker 02:
Thank all counsels.

[00:30:23] Speaker 02:
The cases have taken