I'm Timothy Sullivan, Council to Appellant American Artificial Assistance. For everyone's benefit to avoid acronyms, I'll refer to them as American during our time together this morning. This is a big protest relating to the agency's evaluation of proposals for a contract worth nearly a billion dollars over five years. The contract was awarded by the U.S. Transportation Command and it covers the shipment of vehicles owned by DOD personnel as they move around the world. This contract requires the contractor to create a complex logistics network. Under the evaluation methodology that was laid out in the solicitation, all five offerors that submitted proposals were deemed acceptable by the agency. And the agency then evaluated their proposals for past performance and price, which were considered to be an equal weight in the award decision and that's value of procurement. In other words, the source selection decision was a trade-off decision, was a trade-off between past performance and price. Part of your argument is that this separate corporation, Global Europe, was not identified in the proposal as a separate corporation, correct? Your honor goes beyond that. Wasn't identified at all. We found out over the course of the proceedings at the GAO and at the Court of Federal Claims that it was a separate corporation, but it wasn't identified in the proposal submitted by the international. Well, the proposal did identify their European operations and describe how the people who were going to work on this had worked on the European operations, right? It did your honor. But your honor, the way it described that was branch offices. And it never committed or specified the resources, the personnel, the facilities. But what I'm trying to get at is does it really make a difference whether it's identified as branch offices or a division or a separate corporation? Is that fatal that it was not identified as a separate corporation? No, your honor, I don't think it is. Even just identifying as branch offices, we have the same problem
. They didn't identify. This company has five or six branch offices throughout Europe. They didn't identify which branch office it was going to be, what personnel, what facilities, what resources were going to be committed. And that's the standard that's been set up by the GAO. The level of detail, you're saying the level of detail wasn't sufficient. Yes, your honor, that's true. There was no detail. What about the past performance questionnaires? There was detail in those questionnaires, was there not? There was your honor. And one of the details was that these two contracts that were submitted as past performance information on behalf of TGAL was performed by a company that wasn't mentioned in the proposal. That was the problem. And there was nothing in the proposal that showed how TGAL, global, trans-global, how they were related to each other. And then there was nothing in the proposal at all that mentioned the relationship between those two on the one hand and trans-global autologistic Europe on the other. Well, is it your argument that you have to have that kind of specificity in the proposal even where the past performance questionnaires disclosed the detail? Yes, your honor. The proposal had to lay it out. It never mentioned which branch offices were going to be performing this contract for them in Europe, didn't it all? And that's what the GAL has required for years. In fact, the agency was well aware of this. In the record we talk about how they sent out evaluation notices to international thing
. Let us know. It doesn't look like this. We don't have a commitment between global on the one hand and trans-global on the other. We need information on that, which they provided. So that was discussed, but not a key, not a word was addressed to client-trans-global autologistic Europe. And that's a fatal flaw. Yeah, but on all of 1023 it does say that the resources of trans-global logistics, including workhorse management facilities and all resources, will be available for contract performance. Right? It does your honor. So if Europe had been a division rather than a subsidiary, what would have been missing there? Your honor, the point is that that is a very broad description. And GAL has not accepted it over the years. They want to know not just your vast resources, tell us what they are. Be specific. You're writing the proposal. Don't make us guess. And in fact, the importance of this is that it was those two past performance references that were viewed by the source selection official as being the most significant and most critical in support of international past performance reading. So what you're asking us to do is to say that the contracting officer had to require more specificity than was required. We believe there were inadequate discussions in the sense that they didn't ask about trans-global logistics Europe
. They didn't ask about the upper levels, but not this one. And we found out, as we say, through the course of proceedings that it was a separate corpredentity. Well, how do you know they didn't ask? I mean, when you say that, it's in the questionnaire responses. Ultimately, GAO and the CFC made findings that in fact there was enough information. And you say, well, it wasn't up to them to give Transcom a rationale. Do you concede that had Transcom made those same findings that you wouldn't be here? If Transcom had made those same findings and actually addressed the existence of and the participation of Trans-global logistics Europe, we probably wouldn't be here. How could I deny that? But they didn't address it. And the Court of Federal claims below filled in for them with missing in the Transcom record, which we think was inappropriate under the APA. That would be our view of this. We'll use our view of this. And the fact is, in a billion dollar procurement, I can see we're blank common sense to it. You'd say, well, it was close enough. I mean, the advanced resources. But the GAO for years, in fact, twice or two or three times since our GAO decision came down to NIR protest, has found that the lack of specificity in an offer or is proposal. Was fatal to that proposal because what case of ours has said that? I'm sorry. What case of ours has satisfied procurement for lack of specificity? The Federal Circuit had not addressed this issue with respect to past performance. And in our view, Your Honor, as I believe our briefs make pretty clear, in both the issues that are before the Court this morning, that is the past performance issue and the contract's interpretation issue, we believe the Court of Federal claims reached beyond the record that was before the agency as it made its evaluation decision
. And found in favor of the agency's action. And that violated the DAP right there. They can't feel in the gaps in the agency's record. And that's why we're here today. So you believe that the Court is bound by the record that was developed at Transcom and not necessarily the record that was developed for the GAO? Oh, Your Honor, on that point absolutely was bound by the record of Transcom. And with respect to GAO, they're bound by the statutory languages which we shared with the Court in our briefs, but I've got the statute right in front of me. It says this is 31 U.S. CA 3556. In any such action, based on a procurement or proposed procurement, with respect to which the protest has been filed under this subchapter, the reports required by sections 3553 and 3554 of this title, with respect to such procurement or proposed procurement. And any decision or recommendation of the controller general under this subchapter with respect to such procurement or proposed procurement shall be considered to be part of the agency records subject to review. So the reports that are mentioned there are the agency report that they file 30 days after a program filed at the GAO. That's not involved here. And the reports to Congress, if an agency doesn't follow instructions, which was not an issue here. The decision that was issued by the agency, by GAO, your honor, as you know, is six and a half single-faced patients. They don't go outside. The records that was before the agency
. Yeah, but not at all. Part of your argument here is that there was a failure to identify Europe as a separate subsidiary as opposed to a division. Why isn't it appropriate to look at opposed to word material to see whether that failure was in any way prejudicial? Well, your honor. First of all, I would take issue with the way you phrase the issue there. They didn't identify trans-global Europe at all, really, in their proposal. It shows up as a reference, but it was not identified in the proposal part itself. And the going outside the record that was before the agency is simply unacceptable under the Supreme Court precedent interpreting the APA. The agency had it in front of them. Yeah, but I don't think you're addressing my question, which is why can't you look at post-award evidence to see whether the failure to identify it as a separate corporation was in any way prejudicial? Because your honor wasn't in front of the agency. It just simply wasn't that. And in terms of prejudicial. I really am still having a hard time. The agency had the questionnaire responses. The past performance questionnaire responses. And in those responses, TGL Europe was definitely identified, right? In the references, your honor. Right, so if we're talking about what was before the agency, why are you saying, well, you can look at what's before the agency, but only what the parts we want you to look at? Well, your honor. The fact is that it was in there, but they certainly proved the reference between global and TGL, trans-global autologistics, but they didn't even bother to ask about TGLE
. They didn't ask. They just wanted your branches. They just wanted your divisions. What's the relationship? What's their commitment of resources? The way they did for the offered to echelons. They didn't do it. And yet, those are the two references that are considered the most significant and most critical to the past performance determination, which is where the prejudices here. This was the global autologes, the global past performance reference, with the only relevant reference in all of international stable references. So if that doesn't work for them, then they're probably not going to get the satisfactory confidence rating that they got here. Now you're into limited confidence. And now that past performance tradeoff decision is much tougher. It was tough here, trying to figure out whether past performance versus a $38 million differential in price was more important. But this was the entire ball game for this procurement. And yet, not a question was asked about it. With respect to your other issue, how do you articulate in your view the difference between a principal subcontractor and a major subcontractor? Well, first of all, I would start with the RFP itself. The instructions part of the instructions part of the RFP is where the word major came off. Submit past performance information for major subcontractors. Yet when you get into the evaluation section, which is where we are in terms of the evaluation process that we're challenging, it says that they're going to equally wait, if you will, past performance information of a principal subcontractor that performs your honor, I've lost the language, but performs critical parts of the job
. And there's another word in it. The core focus only on the word major in the instructions. And yet, as we looked at it, we have a company here who at best is going to contribute $3 to $4 million a year in work on roughly a $200 million annual value. It's a very small percentage. And yet, the entire past performance decision is made based on this company's participation. So you're saying that it is a totally quantitative analysis, the amount of money or is it can't it be how important is that particular activity to the overall contract? Your honor. Thank you for that question. That's exactly the argument we've been having between the parties, obviously. We think there's, if you read the RFP as a whole, which we have to do, you have to read the word principal on the one hand. And the other words, on the other hand, it gives them all some meaning. Principle, we think, goes to the dollar amount. And with respect to the language in the RFP, we believe that some other words go to the, I don't get the language right here, major or critical aspects. That is, that's the nature of the work. It's all, it's all things. It's the dollar amount on the one hand and the nature of the work. That's what the RFP says. There was no indication in the record that the transcom even looked at that
. The fact that someone submits a subcontractor's impact performance information doesn't mean that the agency is just simply supposed to roll over and say, okay, it must be a major subcontractor or principal subcontractor. We've got to look at it. But it's still the agency's realm to make the decision as to whether they think they're sufficiently major or sufficiently principal, right? It's within their discretion, Your Honor. And if there had been a discussion of it, and they'd come down at it, that would be one thing, but there wasn't. There's nothing that. So you think the agency has to spell out every consideration that they make when they do an award. This agency went through a lot of detail in its review, the offerors that came in. What is it that says they have to spell it out? Well, Your Honor, it's a time-honored rule that agencies have to abide by the rules and they're soliciting it. What's the site to the proposition that they have to address every issue? Well, Your Honor, I can give you a site to a proposition that says they have to address every issue. But there are countless GAO decisions and claims for decisions that require agencies to abide by the terms of the RFP. And we believe that the words, principle on the one hand, and the major and critical aspects of the requirement on the other, all require addressing here. The numbers simply are too small. Didn't the Supreme Court say that really the role is to attempt to discern what the agency did, not to hold it to a particular set of phrasing in its analysis? True, Your Honor. However, in this case, there's no evidence the agency did anything. Just accepted it and pushed it through. And it's the only way they got to that past performance evaluation and being able to hold international set of affected confidence. We wouldn't have gotten there without this
. Okay, thank you, Mr. Sullivan, we'll give you two minutes for a bottle. Thank you, Your Honor. Mr. Mikkel. Your Honor, Mr. Sullivan, the English may have pleased the Court. I'd like to just step back, though, and just really concentrate on what's at issue here. And this is a challenge to the single issue is to a business decision of the contracting officers and their contracting officer team at Transcom. There's been no identification of any violation of Statue of Regulation. In fact, the regulation is quite broad. Well, why don't you address their contention that they will select a specificity as to the European operation? Thank you, Your Honor. I will. The record contains several sites. And primarily, I'll point to just a couple and go through those. I can give a serial list of the quotes. But I've asked the Court to first look at A11850
. When you say several sites, these are sites that you're talking about the record that was solely before Transcom, not anything to know. I'm sorry, Your Honor. I'm sorry, Your Honor. Or CFC? Yes, Your Honor. It's solely before Transcom. In the proposal or in the past performance questionnaires that were submitted to the government for review. In their proposal, there are numerous sites. First, I don't think there's any dispute now that GAL Global Autologistics is the same as TJAL. They're a affiliate, sister affiliates. The real issue is TJAL E, a separate and distinct entity from TJAL, and was the contracting officer and their team in their expert, in the expertise they developed over the years somehow required by the RFP or the FAR to delve into the affiliate relationships in some detail of a subcontractor. And in their proposal, at A11850 or zero, we see there's a three columns on that page. On the FAR left, where it says GAL Global Autologistics has submitted past performance questionnaires to three customers. The required information for each past performance reference at POC is included in that figure below. In that figure, they list the three companies, Allied International Server, which were they were a sub which I call the Canadian Forces. They essentially were doing transportation of POVs for the Canadian Forces throughout Europe. How auto, we think how auto-liders and the second one was VW Logistics. In those past performance evaluation questionnaires that were returned to the government, and that's at 11141, 11431. Specifically, they mentioned the TJALE. See, for instance, on 111441, that is the performance review submitted by VW, contractor name, trans-global auto-legislate-sure. So there was a tie right there. That was part of the proposal. That's part of the proposal package. We consider the past performance evaluation returns to questionnaires, which are the parts of the proposal package. And moreover, in the evaluation notice that I'm sorry, sir. What page? Alpha, A111441. Past performance questionnaires. That's the one provided by VW and GMB and company as agents for the carrier P. Delamquee. And the other page I'd like to cite to you around, it would be 111431, which is the past performance questionnaire provided for the contract for Allied International. Again, that's the contract I just commonly referred to. You don't dispute that these are really the only references to TJALE, right? Oh, absolutely not. I don't think we've ever discussed these. So it's in these questionnaire responses, but they're fairly varied here. I mean, there's nothing in the agency's analysis, transcontinences, that would actually point to these, right? I don't believe there is, but and maybe if I looked at these in my capacity, I might not understand these, but don't forget we're reviewing the actions of an experienced contracting officer in the transportation command who works with these contracts all the time
. Specifically, they mentioned the TJALE. See, for instance, on 111441, that is the performance review submitted by VW, contractor name, trans-global auto-legislate-sure. So there was a tie right there. That was part of the proposal. That's part of the proposal package. We consider the past performance evaluation returns to questionnaires, which are the parts of the proposal package. And moreover, in the evaluation notice that I'm sorry, sir. What page? Alpha, A111441. Past performance questionnaires. That's the one provided by VW and GMB and company as agents for the carrier P. Delamquee. And the other page I'd like to cite to you around, it would be 111431, which is the past performance questionnaire provided for the contract for Allied International. Again, that's the contract I just commonly referred to. You don't dispute that these are really the only references to TJALE, right? Oh, absolutely not. I don't think we've ever discussed these. So it's in these questionnaire responses, but they're fairly varied here. I mean, there's nothing in the agency's analysis, transcontinences, that would actually point to these, right? I don't believe there is, but and maybe if I looked at these in my capacity, I might not understand these, but don't forget we're reviewing the actions of an experienced contracting officer in the transportation command who works with these contracts all the time. They obviously didn't have a question. The only question that they had is the question is what's the relationship between TJALE and TJALE? And that was when they did the evaluation notice that they sent out. And in the response is coming back at 12241, 12241, TJALE said, will assist GAL. I think the court mentioned that they committed the resources in a letter to respond back to the agency of transcontinences. And they basically listed those same contract as these are the types of contracts we've been performing on that shows that we can actually do this task or complete the effort that transcontinences wants. Well, going to where I ended with your friend on the other side of me, that's a prime court and Boeing did say that question is whether you can reasonably discern the agency's rationale, but it also specifically said that as a matter of view, the court is not supposed to substitute a rationale or provide a reasoned rationale for the agency. Where do you draw that line? Well, this is, this is court said in Glenn Defense, one of the, you know, past performance review is one of those minutiae of the procurement process. It's one of those decisions that happens all the time that, you know, it's a malignant, there's really no tests or standards to apply. I think that the agency say about past performance when it is issued. It's a word. What exactly to say about the, the agency on past performance that is that 12756. And there's a large paragraph that's by the source selection authority. There was an interim past performance review by a team of contracting officers that looked at it. And for IAL specifically, it's from 12341 to 12341. Wait, wait, wait, wait, wait, you're in too fast. So this says exceptional performance by IAL subcontractors on two relevant efforts of similar scope and magnitude. That's the reference, right? That's the reference
. They obviously didn't have a question. The only question that they had is the question is what's the relationship between TJALE and TJALE? And that was when they did the evaluation notice that they sent out. And in the response is coming back at 12241, 12241, TJALE said, will assist GAL. I think the court mentioned that they committed the resources in a letter to respond back to the agency of transcontinences. And they basically listed those same contract as these are the types of contracts we've been performing on that shows that we can actually do this task or complete the effort that transcontinences wants. Well, going to where I ended with your friend on the other side of me, that's a prime court and Boeing did say that question is whether you can reasonably discern the agency's rationale, but it also specifically said that as a matter of view, the court is not supposed to substitute a rationale or provide a reasoned rationale for the agency. Where do you draw that line? Well, this is, this is court said in Glenn Defense, one of the, you know, past performance review is one of those minutiae of the procurement process. It's one of those decisions that happens all the time that, you know, it's a malignant, there's really no tests or standards to apply. I think that the agency say about past performance when it is issued. It's a word. What exactly to say about the, the agency on past performance that is that 12756. And there's a large paragraph that's by the source selection authority. There was an interim past performance review by a team of contracting officers that looked at it. And for IAL specifically, it's from 12341 to 12341. Wait, wait, wait, wait, wait, you're in too fast. So this says exceptional performance by IAL subcontractors on two relevant efforts of similar scope and magnitude. That's the reference, right? That's the reference. But it all also flows from the detailed chart that was compiled, not just for IAL, but I believe there was nine major subcontractors that IAL proposed for their teaming effort in this matter. Is this a specific reference to the 11431 and 11441 questionnaire, not questionnaire, I'm sorry, the questionnaires are what were cited at 11441, 1331 and proposal. I would say they were your honor only because as my friend said, there was two very relevant past performance contractors for contract that they thought were very relevant under the definitions in the RFC. And that's what, and those, where did they identify those two contracts? Where are the contracting officers identified the two contracts? So excuse me, you're on the wrong way. Where did the contracting officer identify the two relevant efforts that are referred to here? I'm sorry, I think I want to say 12356. And it talked about the verification on subcontract GAAL, two sources. And it talks about two pieces. Where was it? This is an alpha 12356. And at the very top, there's a synopsis of global. What is this document we're looking at? This is the interim source selection. We're prepared by the contracting officer. Transcom. It's prepared by Transcom. It was prepared by a team of contracting officer. Specifically, I think it's alpha 12341, Miss Chrissy Schneider and Emily Tiff, who were part of the contracting team. And that is all the review of all the offers. I mean, the argument that my friend makes is that this was all made in the vacuum
. But it all also flows from the detailed chart that was compiled, not just for IAL, but I believe there was nine major subcontractors that IAL proposed for their teaming effort in this matter. Is this a specific reference to the 11431 and 11441 questionnaire, not questionnaire, I'm sorry, the questionnaires are what were cited at 11441, 1331 and proposal. I would say they were your honor only because as my friend said, there was two very relevant past performance contractors for contract that they thought were very relevant under the definitions in the RFC. And that's what, and those, where did they identify those two contracts? Where are the contracting officers identified the two contracts? So excuse me, you're on the wrong way. Where did the contracting officer identify the two relevant efforts that are referred to here? I'm sorry, I think I want to say 12356. And it talked about the verification on subcontract GAAL, two sources. And it talks about two pieces. Where was it? This is an alpha 12356. And at the very top, there's a synopsis of global. What is this document we're looking at? This is the interim source selection. We're prepared by the contracting officer. Transcom. It's prepared by Transcom. It was prepared by a team of contracting officer. Specifically, I think it's alpha 12341, Miss Chrissy Schneider and Emily Tiff, who were part of the contracting team. And that is all the review of all the offers. I mean, the argument that my friend makes is that this was all made in the vacuum. And the Transcom really wasn't, you know, could not make the confidence. But that's just not supported by the records, especially when you consider that it's a decision on past performance. And if we look at the, the review only was they only got a satisfactory rating. And based on the RFP, and that's at 933 and 934, those definitions were based on the offers recent and relevance performance record, the government has a reasonable expectation that the offer will successfully perform the required effort. And that's exactly, I mean, nothing more. Because the other one they would have had to do would be a limited, say low expectation. And there's nothing in the record given IAL's nine subcontractors that shows they would be low expectations. In fact, all the other offers of the five all had satisfactory confidence ratings. Of AAL obviously has a... Let me try to understand what's going on here. So if you look at 12356, and there's this subcontractor, the global auto-register, their contention, if I understand correctly, is that what's listed here in this past performance description relates to GAAL Europe, correct? It relates to GAAL. But where the, where the high end is the GAAL Europe, your honor is, oh, halfway through, halfway down in the middle of that paragraph, there's a sign that says, two PPQs were submitted for TGAL, and it talks about whiskey 6447, global block, and Volkswagen logistics. Those are the two contracts that were referenced in the initial proposal. Way back at the start of the process, when GAAL said, we've sent out past performance questionnaires to three contractors that we think can provide you the information that you can, that you agency trans-com can develop a confidence rating. So these, these numbers, the W6447 ILEA0835, that corresponds to 11431, and the Volkswagen logistics corresponds to 11441
. And the Transcom really wasn't, you know, could not make the confidence. But that's just not supported by the records, especially when you consider that it's a decision on past performance. And if we look at the, the review only was they only got a satisfactory rating. And based on the RFP, and that's at 933 and 934, those definitions were based on the offers recent and relevance performance record, the government has a reasonable expectation that the offer will successfully perform the required effort. And that's exactly, I mean, nothing more. Because the other one they would have had to do would be a limited, say low expectation. And there's nothing in the record given IAL's nine subcontractors that shows they would be low expectations. In fact, all the other offers of the five all had satisfactory confidence ratings. Of AAL obviously has a... Let me try to understand what's going on here. So if you look at 12356, and there's this subcontractor, the global auto-register, their contention, if I understand correctly, is that what's listed here in this past performance description relates to GAAL Europe, correct? It relates to GAAL. But where the, where the high end is the GAAL Europe, your honor is, oh, halfway through, halfway down in the middle of that paragraph, there's a sign that says, two PPQs were submitted for TGAL, and it talks about whiskey 6447, global block, and Volkswagen logistics. Those are the two contracts that were referenced in the initial proposal. Way back at the start of the process, when GAAL said, we've sent out past performance questionnaires to three contractors that we think can provide you the information that you can, that you agency trans-com can develop a confidence rating. So these, these numbers, the W6447 ILEA0835, that corresponds to 11431, and the Volkswagen logistics corresponds to 11441. Those are the two questionnaires that expressly refer to TGAL. Those are the numbers, right? And if you compare the numbers of W6447, they're online B, Alpa 11431, and the other one is on the other, on the other side. Switching to the other issue to talk to her, the court has my friend about, and that dealt with what to do with the record that the GAAL first is, I don't know if we need, we don't know if the court needs the reset issue because the trial court made a specific finding that she did not rely on those records. She discussed those in her decision. If anything, I'll vote review, isn't it, since it's on the administrative record? It is on the administrative record, you know. And also, too though, we believe that those records, these should, could have been considered by the trial court. Now, if in fact the trial court thought that they presented information that the agency didn't address, we would argue that the trial court would have committed a year if it developed its own rationale. One way or another, and then that should have remained it. But I think it's time that we talk about what really goes on at the GAAL. The GAAL is a recommendation. After that recommendation, even after all that information is presented at the GAAL, that is all before the agency. The contracting officer at that time, or the agency could say, you know, they made some good arguments. Even if the GAAL upheld the award, we might want to go back and take a look because, you know, let's tie that, tie up that loose end on TGALE. In this case, they did. But as I always like to say, sometimes within the records is important, but sometimes what's not in the record is important. And if an agency says, well, what you found out or what the information presented at the GAAL is what we knew to be the case all along, why would they, you know, write in, why would the contracting officer submit a memo to the GAAL saying, we knew this all along. They didn't have to
. Those are the two questionnaires that expressly refer to TGAL. Those are the numbers, right? And if you compare the numbers of W6447, they're online B, Alpa 11431, and the other one is on the other, on the other side. Switching to the other issue to talk to her, the court has my friend about, and that dealt with what to do with the record that the GAAL first is, I don't know if we need, we don't know if the court needs the reset issue because the trial court made a specific finding that she did not rely on those records. She discussed those in her decision. If anything, I'll vote review, isn't it, since it's on the administrative record? It is on the administrative record, you know. And also, too though, we believe that those records, these should, could have been considered by the trial court. Now, if in fact the trial court thought that they presented information that the agency didn't address, we would argue that the trial court would have committed a year if it developed its own rationale. One way or another, and then that should have remained it. But I think it's time that we talk about what really goes on at the GAAL. The GAAL is a recommendation. After that recommendation, even after all that information is presented at the GAAL, that is all before the agency. The contracting officer at that time, or the agency could say, you know, they made some good arguments. Even if the GAAL upheld the award, we might want to go back and take a look because, you know, let's tie that, tie up that loose end on TGALE. In this case, they did. But as I always like to say, sometimes within the records is important, but sometimes what's not in the record is important. And if an agency says, well, what you found out or what the information presented at the GAAL is what we knew to be the case all along, why would they, you know, write in, why would the contracting officer submit a memo to the GAAL saying, we knew this all along. They didn't have to. By their inaction, and the follow-on award and the fact that order IAL to continue performing. Well, the contracting officer apparently at the time wasn't aware that it was a separate subsidiary, right? That fair? I don't know if the contracting officer not, but I mean, there wasn't anything in information in front of the contracting officer that identified it as a separate corporate entity, correct? No, but I think that they assumed there was not. Yes, there was that, there was nothing in the record, I'm sorry. But I, but given all the other references to TGAAL and the type of TGAAL Europe and the fact that GAL and TGAAL talked about all their European operations and past contracts that they performed upon, they actually had operations in Europe, it wasn't a leap for somebody with that with that, with the experience of a contracting officer, transcom, to tie those, tie those together. I apologize. Okay, I think you're, I think we're out of time, Mr. McTorment. Thanks. Subject to your questions, like the judge of the bill, and I would like to thank the co-candy council. I'm sorry. Okay, very straight. Please support my Brad English and I represent the PLE International Auto logistics. Much has been made in this case and this morning about the things that were not in the record before transcom when it made its award decision and I'd like to spend my few moments pointing forward to the things that were starting with international proposal, which listed a team of subcontractors that were to be part of, quote, team IAL. And among those subcontractors were global auto logistics and trans global auto logistics, which were essentially proposed as one. The proposal identified their background relationship between those two companies and also spoke generally about the background and business activities of each. On page A1152, I believe it is, they talk about trans global auto logistics work with the US dealing with shipment of partly owned vehicles and it says, quote, in conjunction with European offices. European offices are mentioned about six times throughout international proposal
. By their inaction, and the follow-on award and the fact that order IAL to continue performing. Well, the contracting officer apparently at the time wasn't aware that it was a separate subsidiary, right? That fair? I don't know if the contracting officer not, but I mean, there wasn't anything in information in front of the contracting officer that identified it as a separate corporate entity, correct? No, but I think that they assumed there was not. Yes, there was that, there was nothing in the record, I'm sorry. But I, but given all the other references to TGAAL and the type of TGAAL Europe and the fact that GAL and TGAAL talked about all their European operations and past contracts that they performed upon, they actually had operations in Europe, it wasn't a leap for somebody with that with that, with the experience of a contracting officer, transcom, to tie those, tie those together. I apologize. Okay, I think you're, I think we're out of time, Mr. McTorment. Thanks. Subject to your questions, like the judge of the bill, and I would like to thank the co-candy council. I'm sorry. Okay, very straight. Please support my Brad English and I represent the PLE International Auto logistics. Much has been made in this case and this morning about the things that were not in the record before transcom when it made its award decision and I'd like to spend my few moments pointing forward to the things that were starting with international proposal, which listed a team of subcontractors that were to be part of, quote, team IAL. And among those subcontractors were global auto logistics and trans global auto logistics, which were essentially proposed as one. The proposal identified their background relationship between those two companies and also spoke generally about the background and business activities of each. On page A1152, I believe it is, they talk about trans global auto logistics work with the US dealing with shipment of partly owned vehicles and it says, quote, in conjunction with European offices. European offices are mentioned about six times throughout international proposal. And the proposal also includes bios of key employees of these various subcontractors, including K. Lester, who's the president of both trans global and global auto logistics. And Joseph Vess, who is the general manager of the European branch. The European branch, of course, is the branch that we now know to be trans global auto logistics. You're right. I don't think there's any dispute about that. Right, so, but there's nothing in the record that expressly identifies trans global auto logistics Europe as a separate corporate entity. I don't believe there is. So when you talk about the European branch, you actually are talking about a separate corporate entity and isn't the problem that's your friend on the other side is posing is that the contracting officer had to be confident that all of the resources of the separate corporate entity were being offered for purposes of this proposal. Right, you're right. It is that latter test are the resources of this separate corporate entity being pledged. And it's the assets of this European branch. I don't think that the record of the the the APA requires the contracting officer to specifically know that it was a separate corporation, but it's the resources. And it's the same resources of the European branch office that are managed by Joe Vets, who's identified in the proposal. The same resources pledge to the allied contract and the Volkswagen contract, which is the two past performance references that the agency relies so heavily on. And in response to the evaluation notice, trans global specifically responded in mention, Joseph Vets, has been one of the people who are whose resources are pledged to the performance of the contract. And so I think on the basis of the record, that might not have been as articulate as it could have been in terms of identifying the direct corporate relationship, but there's certainly enough for the contracting officer to have confidence that the resources of this European branch are being pledged to the performance of this contract
. And the proposal also includes bios of key employees of these various subcontractors, including K. Lester, who's the president of both trans global and global auto logistics. And Joseph Vess, who is the general manager of the European branch. The European branch, of course, is the branch that we now know to be trans global auto logistics. You're right. I don't think there's any dispute about that. Right, so, but there's nothing in the record that expressly identifies trans global auto logistics Europe as a separate corporate entity. I don't believe there is. So when you talk about the European branch, you actually are talking about a separate corporate entity and isn't the problem that's your friend on the other side is posing is that the contracting officer had to be confident that all of the resources of the separate corporate entity were being offered for purposes of this proposal. Right, you're right. It is that latter test are the resources of this separate corporate entity being pledged. And it's the assets of this European branch. I don't think that the record of the the the APA requires the contracting officer to specifically know that it was a separate corporation, but it's the resources. And it's the same resources of the European branch office that are managed by Joe Vets, who's identified in the proposal. The same resources pledge to the allied contract and the Volkswagen contract, which is the two past performance references that the agency relies so heavily on. And in response to the evaluation notice, trans global specifically responded in mention, Joseph Vets, has been one of the people who are whose resources are pledged to the performance of the contract. And so I think on the basis of the record, that might not have been as articulate as it could have been in terms of identifying the direct corporate relationship, but there's certainly enough for the contracting officer to have confidence that the resources of this European branch are being pledged to the performance of this contract. Thank you. Thank you, Mr. General. Mr. Sullivan, you've got two minutes here. Thank you, Your Honor. The fact is that international did not provide the critical link between the description and the proposal of which subs were doing what in performance of the contract. And there's nothing that tied them to the past performance questionnaires that were submitted for TGAL-E to TGAL-Europe. Just submitting a past performance questionnaire for a company not mentioned in the proposal does not show how that company is going to be involved in the actual performance of the contract. And it doesn't meet the GAO standard. And to help the court, I would respectfully refer you to the health net decision that's referred to in our briefs, a GAO decision from 2009. And in that case, the company that health net was challenging the award to a major contract award in Etna, which addressed the involvement of an number of Etna subsidiaries in their proposal. But it turned out that the past performance information that Etna had submitted were for a different Etna entity. There was no showing that the past performance questionnaire entity would have had or would committed resources or personnel and facilities to the contract. It's just like this. And Your Honor, I would say that I'll finish by pointing this point out. The source selection official stands there and lies on what the staff submits to that
. Thank you. Thank you, Mr. General. Mr. Sullivan, you've got two minutes here. Thank you, Your Honor. The fact is that international did not provide the critical link between the description and the proposal of which subs were doing what in performance of the contract. And there's nothing that tied them to the past performance questionnaires that were submitted for TGAL-E to TGAL-Europe. Just submitting a past performance questionnaire for a company not mentioned in the proposal does not show how that company is going to be involved in the actual performance of the contract. And it doesn't meet the GAO standard. And to help the court, I would respectfully refer you to the health net decision that's referred to in our briefs, a GAO decision from 2009. And in that case, the company that health net was challenging the award to a major contract award in Etna, which addressed the involvement of an number of Etna subsidiaries in their proposal. But it turned out that the past performance information that Etna had submitted were for a different Etna entity. There was no showing that the past performance questionnaire entity would have had or would committed resources or personnel and facilities to the contract. It's just like this. And Your Honor, I would say that I'll finish by pointing this point out. The source selection official stands there and lies on what the staff submits to that. This is a billion dollar contract has been performed by one company for the past 15 years and performed very well as the record shows. Now they're going to a brand new entity that was formed in 2012. The major subcontractor of Congress that they relied here at Global was formed in 2013. And here she wasn't told that the past performance questionnaires that they're really relying on is some unnamed entity down below. That's the problem here. There was no link. But we shouldn't we assume that for the very reasons that you just state that they were shifting from someone they were comfortable with and it was a billion dollar contract that they did drill down into all these documents. Your Honor, I don't think you can't assume it. They drill down to a certain extent but they didn't drill to down as far as the T. Gale Europe level came. And that was the whole ball game on past performance. That's why the assumption becomes dangerous. And isn't health net distinguishable because they were talking about a subcontractor that was going to fulfill only one small portion of the contract? Well, they do say it was small but it's the link that is on point here, Your Honor. The failure to provide a link to the company that provides the past performance questionnaire information to the actual performance of the contract. And that's the fatal flaw here. Okay, thank you Mr. St
. Holmer. Thank you both counsels