[00:00:03] Speaker 03:
The next case for argument is 182197, Syntax v. United States.

[00:00:54] Speaker 03:
We're ready whenever you are.

[00:01:02] Speaker 04:
Good morning.

[00:01:03] Speaker 04:
Beth McMahon on behalf of Centech Group.

[00:01:05] Speaker 04:
May it please the court.

[00:01:07] Speaker 04:
In light of the complexity of the cases this court's used to hearing, this case hopefully will be refreshingly simple.

[00:01:13] Speaker 04:
It does not arise of disputed facts.

[00:01:15] Speaker 04:
does not depend on nuances of case law or detailed regulations.

[00:01:19] Speaker 04:
It presents a very simple question, which is whether or not the government's desire for expediency can trump fundamental fairness.

[00:01:28] Speaker 04:
As a litigator, wouldn't you?

[00:01:29] Speaker 03:
Well, one of the facts that seems compelling about this case, and we can ask your friend in the government whether they think this is dispositive, but if you had asked

[00:01:40] Speaker 03:
for this verification, whatever we want to call it, right at June at the get-go, and the government failed to respond.

[00:01:48] Speaker 03:
Well, that's at least a sympathetic argument.

[00:01:51] Speaker 03:
I don't know if it's an effective legal argument, but it's like you've got one arm of the government telling you to do one thing and the other arm of the government

[00:02:00] Speaker 03:
prohibiting you from doing it.

[00:02:02] Speaker 03:
But in this case, at least the facts here seem a lot different because of the delay that the Court of Claims refer to as well in your seeking this verification from the other entities.

[00:02:14] Speaker 03:
So I know this case is predicated on fundamental fairness, but why doesn't that factor at least

[00:02:23] Speaker 03:
sort of put you on the other side of that wall.

[00:02:25] Speaker 04:
I think there are several responses to that question.

[00:02:28] Speaker 04:
First, you need to look at the practicalities of what was required to bid on this.

[00:02:32] Speaker 04:
There are a lot of moving parts to that bid, a lot of them.

[00:02:35] Speaker 04:
I mean, you had to submit documentation, you had to submit contracts, you had to submit forms for each and every project.

[00:02:41] Speaker 04:
And this is only one aspect of the procurement, this emerging technologies.

[00:02:46] Speaker 04:
So there were 21 different projects.

[00:02:48] Speaker 04:
And if you look at the way a contractor would put together a bid, they would sort of start at the beginning.

[00:02:53] Speaker 04:
They'd gather all the documentation.

[00:02:55] Speaker 04:
Now, we didn't immediately seek the signatures when the procurement came out, because you really functionally can't.

[00:03:01] Speaker 04:
You've got to compile your paperwork.

[00:03:03] Speaker 04:
And the delay was not a dispositive factor.

[00:03:07] Speaker 04:
indication that a delay would have helped things.

[00:03:11] Speaker 04:
The bid was due in October.

[00:03:12] Speaker 04:
They began to seek the signatures, which was sort of the final step of the submission in September.

[00:03:18] Speaker 04:
You know, do I wish they had started in June?

[00:03:21] Speaker 03:
Probably.

[00:03:26] Speaker 03:
I don't want to say rest heavily, but really point out the fact that not only was there the delay, but, you know, we all work in the same environment, which is end of fiscal year, September 30th, there's chaos in the federal sector.

[00:03:39] Speaker 03:
And so it wasn't just that you delayed until the last minute, but the impact was you delayed at a time

[00:03:46] Speaker 03:
we're clearly, and maybe you should have known.

[00:03:49] Speaker 03:
I mean, I would recognize that this is a time where you don't want to be going into agencies and asking for stuff, right?

[00:03:55] Speaker 04:
The Court of Federal Claims mentioned it in a footnote, but it is not dispositive to the holding.

[00:03:59] Speaker 04:
And there is no indication that had more time elapsed, it would have been a different result.

[00:04:05] Speaker 04:
The contracting officer in the one case simply said, I haven't been the contracting officer for four years, and this is not a description that I wrote, so I'm not going to sign.

[00:04:14] Speaker 04:
More time wasn't going to impact that analysis.

[00:04:17] Speaker 03:
So your argument with respect to that is you were precluded.

[00:04:19] Speaker 03:
I mean, you were never going to get it under those circumstances.

[00:04:23] Speaker 04:
That's correct.

[00:04:25] Speaker 04:
Time was not the problem here.

[00:04:26] Speaker 04:
The two contracting officers, for whatever reason, just refused to play ball to sign the forms, either because they misunderstood what it was or they just didn't want to do it.

[00:04:36] Speaker 04:
And Centech doesn't have any ability.

[00:04:39] Speaker 04:
There's no recourse in the law.

[00:04:40] Speaker 04:
There's no avenue for them to stand up and complain.

[00:04:44] Speaker 04:
They did what any reasonable contractor would do in that circumstance, which is continue to beg, continue to email, continue to make phone calls.

[00:04:51] Speaker 04:
They did that up until the time of the documents.

[00:04:55] Speaker 03:
Well, I guess you would have no reason to know, and maybe the government will or will not.

[00:05:00] Speaker 03:
Do you assume this was just a one-off?

[00:05:03] Speaker 03:
Because it seems like the circumstance that was described, which is the person wasn't really around at the time or whatever, probably happens all the time.

[00:05:12] Speaker 03:
Yeah.

[00:05:13] Speaker 04:
And I don't have insight into how frequent.

[00:05:15] Speaker 04:
I know there's not another protest here.

[00:05:18] Speaker 04:
So I don't know how often that actually happened.

[00:05:21] Speaker 04:
But I think that really goes to the point of the fairness argument, is that the contractor doesn't have any control over that.

[00:05:28] Speaker 04:
Everything that the offeror had control over in this circumstance, we did appropriately.

[00:05:34] Speaker 04:
We attached all the attachments.

[00:05:35] Speaker 04:
We provided all the subcontracting plans to listen to the future arguments.

[00:05:39] Speaker 03:
So you want us to effectively amend the rule?

[00:05:42] Speaker 03:
I mean, by saying that, except

[00:05:47] Speaker 03:
in circumstances when the bitter exercises reasonable diligence?

[00:05:55] Speaker 04:
I don't even think the court has to go that far, Your Honor.

[00:05:58] Speaker 04:
What we are asking is that fundamental to procurement law, the government's overriding obligation is to treat everyone fairly.

[00:06:08] Speaker 04:
And the FAR section that underlies all the more specific rules talks about how the government has to

[00:06:14] Speaker 04:
exercise discretion.

[00:06:15] Speaker 04:
The government shall exercise discretion to treat bidders fairly.

[00:06:19] Speaker 04:
In this case, CENTAC, the bidder, presented the government with all the documentation of its efforts.

[00:06:25] Speaker 04:
So in that case, we're not asking for a larger rule.

[00:06:28] Speaker 04:
What we're saying is that the government presented with this weird situation was required to do something.

[00:06:35] Speaker 04:
I'm not even saying it had to be one thing or another.

[00:06:37] Speaker 04:
They could have picked up the phone.

[00:06:39] Speaker 04:
The evaluation form notes that they knew who the contracting officers were.

[00:06:44] Speaker 04:
It responds and then explains the situations as a particular contracting officer refused to sign the form.

[00:06:50] Speaker 04:
So during evaluation, the evaluation team could have just picked up the phone

[00:06:55] Speaker 04:
All of the things that entitled Sentex to the points, the four different attributes that enabled them to get the points, were established.

[00:07:05] Speaker 04:
And the evaluators checked the little boxes.

[00:07:09] Speaker 00:
You're correct about the boxes being checked on the two forms for the two contracted issues.

[00:07:15] Speaker 00:
But were those checked because the government people had done an evaluation?

[00:07:21] Speaker 00:
independently or they simply checked because Centech had put down that it met the requirements and they didn't challenge the score.

[00:07:31] Speaker 00:
In other words, were those checks in the boxes based on an independent government evaluation?

[00:07:37] Speaker 04:
Yes, the evaluators looked at everything.

[00:07:38] Speaker 04:
The reason you know that is because we cited, it's at the very back of the appendix, other forms where the evaluators had not found those four things establishable from the documents that were submitted.

[00:07:51] Speaker 04:
In this case, you had to both textually explain why the technology was integral, and you had to attach the entire contract.

[00:07:59] Speaker 04:
And so each project had voluminous documentation.

[00:08:03] Speaker 04:
And so the evaluators were looking at it to see if it was over five years, if it was over one year, if it was integral, and if it was over one million.

[00:08:10] Speaker 00:
When you follow up your discussions you were having with the chief, you're saying you could not have gone to the procuring contracting officer, in other words,

[00:08:22] Speaker 00:
person running this procurement and said, you couldn't have gone to them and said, look, we're having a problem because these two people, one hasn't responded and the other won't give us a signature.

[00:08:35] Speaker 00:
That was not a possibility under the scenario?

[00:08:39] Speaker 04:
Frankly, I suppose they could have tried.

[00:08:41] Speaker 04:
I mean, obviously, they didn't have counsel at that point, but the government had been very clear, and it's not an ambiguous requirement.

[00:08:48] Speaker 04:
So they did what I think any reasonable contractor would do, which is just continue to try up until the moment they had to submit that bid.

[00:08:54] Speaker 00:
What about the contract provision says, well, no, I'm sorry, this isn't the contract provision.

[00:09:00] Speaker 00:
this cited in the Court of Federal Claims decision, answers, and this is in Appendix 10.

[00:09:06] Speaker 00:
One response was in regard to this question about the signature says, no, a current contracting officer, contracting officer representative, or other cognizant official with cognizance over the project needs to sign.

[00:09:22] Speaker 00:
So that suggests

[00:09:24] Speaker 00:
If the contracting officer is deceased or can't sign or won't sign, you can go to the COR, and then someone with cognizance.

[00:09:33] Speaker 00:
Was there any effort made to sort of step down the line, if you will, and try and get someone else beyond the contracting officers?

[00:09:46] Speaker 04:
fairly desperate at the right before bid submissions.

[00:09:48] Speaker 04:
Yes, they were sending emails to sort of a wide audience.

[00:09:51] Speaker 04:
But what the provision says is if access to the CO is unattainable.

[00:09:57] Speaker 04:
In this case, the COs were like, we're just not going to sign the forms.

[00:10:01] Speaker 04:
So I don't know that going around them, you also had to notify the COR.

[00:10:06] Speaker 04:
It's clear they wanted the CO to be the primary person, because you had to email the COR if

[00:10:14] Speaker 04:
I'm sorry, the CO, if you were going to bypass that person.

[00:10:17] Speaker 04:
And so in this case, there really wasn't much hope in doing that since the CO's had solutions.

[00:10:22] Speaker 00:
What do you understand if you mean if there wasn't the CO or the COR, or other recognized official with cognizance, who would that be?

[00:10:33] Speaker 04:
I suppose maybe if those people had died or were simply- This isn't in the procurement.

[00:10:38] Speaker 00:
This is an answers pre-bid, if you will.

[00:10:42] Speaker 00:
But I would just say, OK.

[00:10:43] Speaker 04:
Right.

[00:10:44] Speaker 04:
Right.

[00:10:44] Speaker 04:
So in this case, the straightforward avenue of getting the CEO's signature was just foreclosed.

[00:10:50] Speaker 04:
And so Syntek did not try to hide the ball.

[00:10:51] Speaker 04:
They submitted all of that information.

[00:10:54] Speaker 04:
And that was part of its bid.

[00:10:56] Speaker 03:
What about the court?

[00:10:57] Speaker 03:
I mean, you talked about fairness earlier and how they require you to operate fairly.

[00:11:02] Speaker 03:
What about the, I think it was one of the court of claims rationales for doing what he did, was that how unfair it would be to the other bidders.

[00:11:12] Speaker 03:
Yes.

[00:11:12] Speaker 03:
Because a lot of them, we don't know.

[00:11:16] Speaker 03:
But it could be the number of bidders who were unable to successfully and timely obtain the CO signatures just didn't submit those projects because this is an uncertain environment and they knew what the rules were.

[00:11:31] Speaker 04:
So how do you... I have several responses to that.

[00:11:34] Speaker 04:
First, there's absolutely no evidence that there were any other bidders that had that.

[00:11:38] Speaker 04:
There's no record evidence that indicates that occurred.

[00:11:42] Speaker 04:
That concern is also completely inconsistent with what the government did in this procurement with the form JP-5s.

[00:11:49] Speaker 04:
JP-5s were very similar forms that related to past performance.

[00:11:53] Speaker 04:
It also had a signature requirement.

[00:11:55] Speaker 04:
And the government ended up waiving that signature requirement in that case without form.

[00:12:02] Speaker 04:
And they did so because there wasn't really a sufficient reason or justification or need for that to happen there.

[00:12:07] Speaker 03:
So you're saying we should just assume that anyone similarly situated to you would have gone forward as you did and tried to get past that.

[00:12:16] Speaker 04:
Yes.

[00:12:16] Speaker 04:
And they've already

[00:12:18] Speaker 03:
acted inconsistently with that concern, because by waiving the JP-5 requirement, there could have been... Well, there are reasons why the JP... I mean, they have reasons why the JP-5 and the JP-3 were different.

[00:12:29] Speaker 04:
Are different, yes.

[00:12:30] Speaker 04:
But that's always a concern as well with clarifications.

[00:12:33] Speaker 04:
Any time a clarification is sought, you know, there could potentially be somebody else that, you know, we don't know the facts about.

[00:12:40] Speaker 04:
But as I said, there's no indication that there were any other bidders that had the same issue in this case.

[00:12:48] Speaker 03:
OK, why don't you reserve that, Maynard, and Tom, and we'll get from the government.

[00:12:52] Speaker 03:
Thank you.

[00:13:01] Speaker 01:
May it please the court, per RSOEF is dispositive.

[00:13:06] Speaker 00:
Let me ask you something.

[00:13:09] Speaker 00:
I've been looking at your brief, getting the argument point.

[00:13:15] Speaker 00:
Pages 16 through 23, you, I guess it basically addressed the Per-Arschleff agreement, saying this isn't timely.

[00:13:26] Speaker 00:
Correct?

[00:13:26] Speaker 00:
Yes.

[00:13:27] Speaker 00:
And then at pages 24 through 26, you say, I think quite correctly, that the signature requirement was reasonable.

[00:13:37] Speaker 00:
This is 24 through 26.

[00:13:38] Speaker 00:
Okay?

[00:13:40] Speaker 01:
Yes, Your Honor.

[00:13:41] Speaker 00:
And I agree.

[00:13:44] Speaker 00:
But I don't see anywhere

[00:13:46] Speaker 00:
in your brief, where you really argue the abuse of discretion issue, which seems to be key here, because the other side isn't challenging that they're saying this was a reasonable contract provision.

[00:14:03] Speaker 00:
They're not saying it was improperly in the procurement.

[00:14:07] Speaker 00:
And what do you have to say about the arguments that Ms.

[00:14:11] Speaker 00:
McMahon has been making?

[00:14:12] Speaker 00:
Because that's what I think the key is.

[00:14:14] Speaker 01:
Well, the primary argument that CENTEC is making is that it was an abuse of discretion not to seek clarification and relying on level three and very similar cases.

[00:14:27] Speaker 01:
And this is simply not a clarification case.

[00:14:29] Speaker 01:
This is absolutely the case of an unambiguous requirement that the government

[00:14:36] Speaker 01:
again reiterated was unambiguous and would be adhered to.

[00:14:41] Speaker 01:
Cases like level three involved clerical errors.

[00:14:45] Speaker 01:
And the court said, well, it was an abuse of discretion for the agency not to seek clarification of an obvious paid clerical error.

[00:14:55] Speaker 00:
Let me ask you, suppose in this situation it had been that the contracts that

[00:15:03] Speaker 00:
CENTAC was seeking to have qualified here where they couldn't get singers.

[00:15:07] Speaker 00:
Supposing they had been GSA contracts.

[00:15:13] Speaker 00:
GSA is a very large place.

[00:15:15] Speaker 00:
I believe that... You're saying under that circumstance, it still wouldn't have been necessary for the contracting officer to inquire.

[00:15:26] Speaker 00:
uh... is that it would have been at that point it would have been unfair to all the other bidders as uh... as the trial court no they're saying leaving that aside for the moment if this if they come in and said we have these two g s e contracts g s a contracts that were l e t

[00:15:44] Speaker 00:
situations, and the contracting officer was Mr. X or Ms.

[00:15:50] Speaker 00:
Y down the hall here, but we can't get their signatures.

[00:15:54] Speaker 00:
Under those circumstances, are you saying there shouldn't have been any inquiry?

[00:16:00] Speaker 01:
that Centec would have a better case, but adhering to the plain language of the solicitation, especially when there's a large number of bidders that need to be corralled and wrangled, would take precedence over having a separate rule for GSA contracts.

[00:16:17] Speaker 00:
What if the contracting officer here, the GSA procuring official, personally knew the two

[00:16:25] Speaker 00:
alleged contracting officers on the other procurements?

[00:16:29] Speaker 01:
I think it would be the same answer.

[00:16:31] Speaker 01:
And once again, it would be the fairness to other bidders.

[00:16:35] Speaker 01:
And we have to keep in mind here that the- What about Ms.

[00:16:37] Speaker 00:
McMahon's argument?

[00:16:38] Speaker 00:
She says, and she and the chief discussed this a bit, she would say, well, anybody could come in if they had the same problem and made the same protest.

[00:16:50] Speaker 00:
Well, first of all,

[00:16:52] Speaker 01:
Nobody made the protest before the deadline for submitting bids, and CENTAC had the opportunity to do that.

[00:16:59] Speaker 01:
To protest what?

[00:17:01] Speaker 01:
To protest the unambiguous requirement.

[00:17:04] Speaker 00:
Could they have come in?

[00:17:06] Speaker 00:
to the contracting officer was an option for them to come in and say, look, we understand this is a proper requirement.

[00:17:13] Speaker 00:
It's reasonable.

[00:17:14] Speaker 00:
We don't challenge it.

[00:17:15] Speaker 00:
But we've gone to these two folks, and we can't get the answers.

[00:17:19] Speaker 00:
What can we do?

[00:17:20] Speaker 00:
Could they have come to the contracting officer before the deadline for submission of proposals and said that?

[00:17:28] Speaker 03:
No, especially in this case where... We're talking about whether they challenged the solicitation.

[00:17:35] Speaker 03:
So in any event, they would have been untimely.

[00:17:38] Speaker 01:
They were on notice that that would not have mattered.

[00:17:41] Speaker 01:
I mean, the words that the contracting officer used could not have been more unequivocal that LET certifications always require a contracting officer, contracting officer representative signature.

[00:17:57] Speaker 01:
a completed attachment, JP3, with a signature is always required.

[00:18:02] Speaker 01:
No exceptions.

[00:18:02] Speaker 01:
So you're saying even if they come and said, we can't get these signatures, that wouldn't have been enough?

[00:18:07] Speaker 01:
Especially after having previously notified all other bidders that there would be no exceptions, then the bidder comes in and asks, well, what about my special case?

[00:18:16] Speaker 01:
I need an exception.

[00:18:18] Speaker 00:
One final question, then I'll turn you over to my colleagues.

[00:18:23] Speaker 00:
What would be the situation if, tragically, these two contracting officers died?

[00:18:31] Speaker 01:
Well, as you noted previously, the requirement wasn't just for a contracting officer.

[00:18:36] Speaker 01:
It could have been a COR or other individual who was cognizant.

[00:18:42] Speaker 01:
So the bidders had opportunities.

[00:18:43] Speaker 01:
So you're saying in that situation, if they learned that the two

[00:18:47] Speaker 00:
key individuals were deceased, the bidder could have gone to the agency and said, we have this form.

[00:18:54] Speaker 00:
The contracting officer is deceased.

[00:18:57] Speaker 00:
There's no contracting officer around.

[00:18:59] Speaker 00:
Please have a cognizant party to it.

[00:19:01] Speaker 01:
Is that what you're saying?

[00:19:02] Speaker 01:
Exactly.

[00:19:02] Speaker 01:
And agencies are still presumed to act in good faith, and there's no evidence of bad faith on the part of it.

[00:19:07] Speaker 03:
Wait, what does that mean?

[00:19:08] Speaker 03:
So nobody there knows anything about this contract and wasn't there at the time, and they're still required?

[00:19:13] Speaker 03:
That's going to take more time, right, for them to verify this stuff?

[00:19:17] Speaker 01:
Yes, but an agency is presumed to act in good faith and would generally make an effort.

[00:19:23] Speaker 03:
So what about the response that they got from one of the contracting officers?

[00:19:27] Speaker 01:
Well, the response that, as we understand it, from one contracting officer was that he was unable to

[00:19:35] Speaker 01:
verify that this was actual leading edge technology as defined in this particular solicitation that was integral to the performance of the project.

[00:19:43] Speaker 01:
And that's a very important element of experience that's necessary for GSA, especially with these leading edge services that it was procuring.

[00:19:53] Speaker 03:
So you're saying that happens all the time.

[00:19:58] Speaker 03:
If what they're asking for doesn't match what the government agency originally had, there might be instances where the government just says, we just can't verify it.

[00:20:11] Speaker 03:
We don't know enough about it, or the details aren't spot on enough.

[00:20:16] Speaker 03:
Is that what you're describing, what happened in this circumstance?

[00:20:20] Speaker 01:
That's what it appears, and you can ask Ms.

[00:20:23] Speaker 01:
McMann more, but it's the question backing up, the whole point of the verification requirement was the government would receive up to thousands upon thousands of past contracts and

[00:20:43] Speaker 01:
And some of those would appear to involve leading-edge technologies that were integral to the project as required in the solicitation.

[00:20:50] Speaker 01:
But the most important step here was that someone actually cognizant with the performance of that contract would step up and say, yes, I will verify that

[00:21:02] Speaker 01:
this project met the criteria to be a leading edge project.

[00:21:07] Speaker 02:
Because it takes the burden off the government of having to do that as part of the procurement process, right?

[00:21:11] Speaker 02:
I mean, you're talking about hundreds, thousands of potential contracts?

[00:21:14] Speaker 01:
Well, yes, there were 170 bidders, and each were allowed to submit up to 30.

[00:21:18] Speaker 02:
And not only that, I mean, this RFP contains two provisions.

[00:21:23] Speaker 02:
to contracting officers and government contracts, and one pertinent to non-government commercial projects, which qualify as LATs also.

[00:21:31] Speaker 02:
So, and the language is identical.

[00:21:33] Speaker 02:
So, I mean, I think many of us up here are sort of a little bit bothered by the fact that it was the government that didn't sign it, the contracting officers.

[00:21:41] Speaker 02:
But the problem here for me about going that way is that this

[00:21:45] Speaker 02:
RFP contains identical provisions for government and non-government.

[00:21:49] Speaker 02:
Both of them are even bolded.

[00:21:50] Speaker 02:
One on 1006 and 1007 must be signed.

[00:21:54] Speaker 02:
So I don't see how we could make an exception or force you to make an exception just because it happens to have been a government contract unless we were likewise going to make an exception any time somebody submitted a non-government commercial contract which wasn't signed by any corporate officer for the company they had the agreement with.

[00:22:11] Speaker 02:
Does that seem fair to you?

[00:22:12] Speaker 01:
That seems absolutely fair.

[00:22:13] Speaker 01:
We agree 100 percent.

[00:22:15] Speaker 02:
This is not just a government problem, because these contracts can come from anybody and anywhere.

[00:22:20] Speaker 02:
And that would be an awful lot of a burden to put on the government to have to verify it.

[00:22:24] Speaker 02:
It seems like I don't know.

[00:22:25] Speaker 02:
I'm just troubled by the idea, since the language is identical between the two of them, that we should hold against, in this case, against the RFP and the contract, the fact that it was a government agent that didn't sign it.

[00:22:35] Speaker 01:
And we agree, and we also note that with the 30 projects at 300 points each, you're still only talking about 9,000 points out of a total 83,000 possible points.

[00:22:47] Speaker 02:
Well, that's not such a great argument.

[00:22:50] Speaker 02:
That's actually 11%.

[00:22:51] Speaker 02:
So don't make that argument.

[00:22:53] Speaker 02:
Move on.

[00:22:54] Speaker 01:
I won't make that argument.

[00:22:59] Speaker 01:
If the court has no further questions, we respectfully request that the court affirm.

[00:23:13] Speaker 04:
I'd like to begin by addressing the point that you just made about the corporate and non-corporate.

[00:23:17] Speaker 04:
And I agree.

[00:23:18] Speaker 04:
It shouldn't make a difference.

[00:23:19] Speaker 04:
What makes a difference is, in this case, the evidence was submitted of the effort that had been made.

[00:23:26] Speaker 04:
So if the effort had been made with a private company and somebody of the private company simply refused to sign a form, I would say the same rule should apply.

[00:23:35] Speaker 04:
What you need to look at is the particular facts of this case

[00:23:39] Speaker 04:
and understand if in the particular facts of this case the government's inaction and refusal to take any action at all is reasonable.

[00:23:57] Speaker 02:
in bold, it's underlined in parts, has to be signed because the government didn't want to deal with the hassle of having to do its own verifications.

[00:24:05] Speaker 02:
It wanted you all to have to provide that verification.

[00:24:08] Speaker 02:
And if your response to me is yes, but there ought to be a rule in all of government contracting that whenever someone can't comply with a required provision of the RFP, it should be enough if they show they tried really hard.

[00:24:19] Speaker 02:
I'm not a trophy for all participants kind of gal.

[00:24:22] Speaker 04:
I understand that concern.

[00:24:24] Speaker 04:
And Senteck's argument is simply that any particular facts of this case where the government had itself evaluated the contract and found that the technology was integral, it itself checked that box on its evaluation form.

[00:24:39] Speaker 04:
So the signature requirement in this case did not advance the analysis any.

[00:24:44] Speaker 04:
The government had already made the findings and had been able to make those findings.

[00:24:49] Speaker 00:
Let me ask you, the problem here was with respect to the Air Force and the DOT contract.

[00:24:55] Speaker 00:
Was there any effort made by CENTAC to reach out to other past contractors?

[00:25:04] Speaker 00:
or not contractors, but clients, if you will.

[00:25:07] Speaker 00:
Oh, yeah.

[00:25:07] Speaker 04:
I mean, we submitted, there were 21 qualifying projects.

[00:25:11] Speaker 04:
And so we didn't have any, the client didn't have any problem getting the verifications on the other side.

[00:25:16] Speaker 00:
No, but I'm saying, when you ran into a problem with these two people, the Air Force and the DOT contract, did CENTEC think, OK, we're having problems here.

[00:25:25] Speaker 00:
Let's go down the road to contract X and contract Y that we had with HUD or with

[00:25:32] Speaker 04:
I'm not certain there were other qualifying contracts because it was a very particular, it had to be over one million, it had to be within the five years.

[00:25:40] Speaker 04:
So it may have been a case, I simply don't know, but my guess is it may have been a case that there were not those kind of contracts that would have qualified that were available.

[00:25:49] Speaker 02:
For me, the problem with your argument is, well, the government was able to verify anyway

[00:25:54] Speaker 02:
is that then it sounds like you are making a direct assault challenge onto the signature requirement.

[00:25:59] Speaker 02:
And that would run you into the waiver problem under blue and gold.

[00:26:02] Speaker 02:
I don't think you're in the waiver problem with blue and gold, as long as we steer clear of this being a direct challenge to the signature requirement.

[00:26:09] Speaker 02:
When you're telling me, your response to me was, well, they could have figured it out from the information they had.

[00:26:14] Speaker 02:
In fact, they kind of did already.

[00:26:16] Speaker 02:
Therefore, the signature shouldn't have been required.

[00:26:19] Speaker 02:
That's the argument you just made to me.

[00:26:21] Speaker 02:
That's a direct challenge to the signature requirement in the RFP.

[00:26:24] Speaker 02:
That's waived under blue and gold.

[00:26:26] Speaker 04:
I would agree that the direct challenge is waived, without a doubt.

[00:26:30] Speaker 04:
But what we are challenging is the evaluation, what was not done during the evaluation process.

[00:26:37] Speaker 04:
And this could have been very simply addressed.

[00:26:39] Speaker 04:
And opposing counsel said this is not a clarification case.

[00:26:43] Speaker 04:
But if you look at the cases that we cited on clarifications, I think those are very instructive.

[00:26:49] Speaker 04:
One of them involved an error in a route map,

[00:26:51] Speaker 04:
that was mismatched with what the text said.

[00:26:55] Speaker 04:
And the other involved a copying error.

[00:26:57] Speaker 04:
One page was copied twice, and so they didn't have qualifying past performance.

[00:27:02] Speaker 04:
And so on its face, those were problems.

[00:27:04] Speaker 04:
But what the court said is that in those situations and those particular facts, it was unreasonable for the government not to do something.

[00:27:14] Speaker 04:
The burden on the government in this case was very minimal.

[00:27:18] Speaker 04:
We're not asking for verification.

[00:27:19] Speaker 04:
We're not asking for an establishment of a rule that would require thousands of contracts to be verified.

[00:27:25] Speaker 04:
What we think is reasonable is that when presented with evidence that the contracting officers or whomever simply refused to sign a form, and when the government had been able to verify all the substantive facts... Your problem is you just say what we think is reasonable.

[00:27:39] Speaker 02:
What's my standard of review here?

[00:27:42] Speaker 02:
Denovo, you... No, abusive discretion.

[00:27:44] Speaker 02:
Yes.

[00:27:45] Speaker 02:
That's not de novo.

[00:27:46] Speaker 02:
That's abuse of discretion.

[00:27:47] Speaker 02:
So what you think is reasonable, which is a fact question, isn't going to get you over the hurdle of whether they abuse their discretion.

[00:27:55] Speaker 04:
Right.

[00:27:55] Speaker 04:
The ultimate standard that you're applying absolutely is abuse of discretion.

[00:28:00] Speaker 04:
And the lack of government action can constitute abuse of discretion.

[00:28:06] Speaker 04:
And so that's what this protest is challenging, the lack of action during evaluation.

[00:28:11] Speaker 03:
Thank you.

[00:28:12] Speaker 03:
Thank both sides in the case.