please the court but the underlying issue in this case is whether an agency may purchase consolidated software products together with software engineering products in one procurement action or whether the agency has to conduct a full and detailed investigation of whether a commercial software product meets all or part of the agency requirements as the army explained in the october two thousand and fifteen determination of the contracting officer and this height issue the what the army needs in this case is to acquire a complete package of commercial software products together with software follow that recurring menu full leader as you are only an additional requirement of the full we're just going to look at the statute right and do it an overview is that correct that's correct but also in addition to the statute the statute directs the court to look to the for the federal acquisition regulation and it's to the federal acquisition regulation that the court should have looked to in this case in deciding whether or not there was a violation of the statu clarification for example the fart in a paragraph or two point one point zero one defines market research as quote collecting and analyzing information about capabilities within the market to satisfy agency needs it's our contention that the court should have looked to the far interpret in the statute followed the far and in this case that horrific claims that it was really the problem here respect what the record showed here was that the contracting officer used the market research in making his determination that there was not either a commercial product or a commercial service that nets the entire requirements of incremental and they are the for his very specific definitions of a commercial service and a commercial product that constitutes a commercial item and he relied specifically on lowe's for provisions in making his determination the these are separate separate provisions of the four in section two point one or was specifically in paragraphs this is sub par graph five and six there is a definition of  of five and six which deal with services and for a service to come within a commercial item definition it was fall within those paragraphs five and six the contracting officer found and this is explained in his report to the g a o and also in his declarations that based on the market research engineering services the software engineering services that were particularly permitted to do not fall within paragraphs five or six this is a aspect of the contracting officers determination that was not addressed by the court of federal claims the court did not address the definition of a commercial service and it did not address the contracting office's determination that the software engineering services that are part of increment two are not a commercial item they do not fall within the definition if i could turn back to the market research itself the court here has added this new requirement that we have to have a investigation a full investigation of whether a commercial item for example now in tears platform meets all or part of the increment to requirements this is not set forth in the far and it's especially only reasonable in the context of the sec's the army knew based on its experience that commercial software products were going to be part of increment to in fact the solicitation of requires that the contractor list out all of the commercial software products together with government own software products an open source of source software products there are going to be part of the whole combination of services that is being provided to the government the government has not precluded the contractor from using any particular commercial software product for example wolf or could come in and it's proposal hypothetically hypothetically now could include a your platform as part of the solution for improvement to what the government did not know in this case is what combination of commercial software products government own software products open source software products for software engineering services would provide the best value to the government and that's are at th seven seven one one nine zero one one one eight eight zero one one eight seven six thank you further  the as i said the army hasn't placed any prohibition on the use of commercial software products that citation would be one zero zero zero  army's research method in this case was to issue a request for information and then to contact the contracting officers and product managers for the contracts that companies identified and verify the capabilities that companies asserted in response to these requests for information that's in our our brief the opening brief pages eighteen fifty eight reply brief that thirteen the record cites would be one one seven nine six one one eight two six just two seven one one eight four one one two two mcphedran one and one six three five zero this was a reasonable method of conducting market research and there are no hard facts in the records that demonstrate that the army abused its discretion what the court suggested as an s the requests for information were focused on developing as opposed to encourage in the supply of products or even seeking information about commercial products integration and development based on the requirements for increment to and what the requests for information ask for is what past experience do you have in integrating said developing yes also development but i with integrating with also some other software products and also developing new software now the reason this is important is going to take on this task has to be an integrator they have to have experience in integrating for example targeting software operations on the move software with other software so it asked that question there were also new requirements specifically this is kind of brought out in our briefing also in the record there is a new requirement for a  counterintelligence human intelligence single software solution that's addressed in our opening brief pages nine to ten page fifty nine and the reply brief at page twelve with the citations being there what this has this is part of the very first task order and it would be a new development what it is is a software solution that supports collection reporting and mission support functions in accordance with the overdue standards and it builds a software interface between the army's desexed and the defense intelligence agency system there's no commercial marketplace for such services and there are no commercial products that perform such services are still going to be saying that what was signed here is something that would be the use of commercial products made here practicable combined w there are additional sites in our brief there's a discussion of the december report and the july report and there i would point the court to our brief and the citations in our brief pages this is the government's opening brief ages forty nine to fifty five to fifty six in the reply brief ages ten to eleven and there there are citations to  specific paragraphs of the market research report that address the capabilities of individual companies and those paragraphs identify the commercial products of those companies and they assess those companies capabilities in terms of the products that they have as well as their capabilities in integrating government owned software with commercial software that's what the information we were looking for and specifically college here did not provide that agency had collected in response to the or vice it characterized over a thousand pages of information as being quote no evidence that body of information contains information about commercial products and information about engineering services and it was all assessed by the army for each company individually and they assessed their capabilities of providing the services for increment to based on the information they provided whereas here from the other side was fed up congress there's ample testimony and congressional hearings congress was fed up with wasteful corrupt expensive incompetent development contracts and therefore it unambiguous explicitly and without a single dissenting vote in congress ordered military procurement officials to research and seek out and give a preference to commercial items to the maximum extent practical in short what congress ordered the military services to do is to stop perpetually reinventing the wheel wailed at great expense and great delay and bad results the army in this case ignored that command it's important to focus on what congress explicitly did and congress could not have like to ask go out and buy and purchase the whole background of the enactment of this statute is and this statute is specific it's talks in terms of commercial items and then it says of commercial items are available go to non developmental items and then lastly go to a developmental item commercial item means that if it's out there in the marketplace and you can purchase it or you can purchase it with modifications or if you can suggest modifications in your requirements so to make it available to purchase something that already exists if there are wheels out there why wheels changed your configuration of your product if necessary but do all of those things so in ovoid developmental contracts so what it's interesting because congress could not have been more specific about the fact that it was a commanding focus on a  the marketplace there's a stipulation in this case and stipulation three i believe is that says and this is on page there are zero eight one six of the appendix  platform is a data management platform that is licensed to customers on a commercial item basis so what this new argument about somehow there wasn't commercial items out there is something that's new to me in this oral argument i don't see it in the briefing it's inconsistent with the stipulation itself that the platform  that the army kept saying when when these requests for information were on as the court of federal claims specifically thought about and determined were all predicated on the notion that the army started we're going to develop this from scratch this is after the first increment after fifteen years after six billion dollars was deemed by the g a o as inefficient ineffective i'm sustainable and even by the army and this is another stipulation it's stipulation seven which is the very next page of the stipulations on it is based on technology that is nearing obsolescence so what army did one time is develop this data management platform from scratch it was fifteen years into it now six billion dollars and it wasn't working and so that it then when it decided in a decider right at the beginning we're going to develop it from scratch that's what the court of federal claims found that's what these requests for information were all about they're talking about a development contract  not clued right and it wasn't included in the the litigation before the court of federal claims it wasn't included as a market research item before the g a o when the jail considered this  or at the oral argument on page one thirty seven was asked about this and specifically said the court said what was our f i d number one when was our ally number one issued she responded august two thousand and fourteen beginning the market research that's on page one thirty seven of that transcript and the deva by studying which was which was pres upposed various different items but it preceded the so called market research out and it wasn't listed before as an item of the market research it didn't tell the army there are commercial items out there you want to be considering those commercial items i think it said or view there's a rich rich field of commercial items but then what the army did with its requests for information is assume we're going to develop it from scratch when palin tear came back three different times in response to the request for information said we have it we have a data management platform it's being used by the army it's being requested often  the white units in the army it's being used by the f b i it's being used by the marine corps it's being used by the central intelligence command and it's been characterized by by the  intelligence community as the intelligence community as knowledge management tool and other words the i r four our five start with the premise that the army started with we're going to develop something from scratch they put out these requests for information all predicated tell us what your experience is and what your ability is with respect to development of these items talents or came back fully aware of section twenty three seventy seven it's important statute unanimously passed by congress and said we have commercial items available to you we can do it all come and ask us about it flight data management platforms do they take integration they take information they integrate that information they put it in a way in which you can analyze it and retrieve it and like your i phone you can put various defense and open application system you can put different applications on it if you want to put a weather thing on it you want to put something in by the geographical terror and you can put that on it however this quite sure but there's two footnotes a deal with this plus the stipulations plus the submissions by palin for now the fact is we don't really need to know all of these things because the statute is as explicit as it's put be it said it uses the word preference for commercial items twice that's the name of the statute preference for the acquisition of commercial items and the first word of the statute sa the statute and twice it says should ensure so what the statute specifically said is before you do this before you conduct before you award contracts before you develop specifications on three different occasions you must do research with respect to the availability of products in the marketplace that can satisfy your demands and i think it is trying to do congress as you know is not how is this explicit this is a pretty explicit statute that says we want before you go out there and decide what you want look at what's available then before you determine the specifications again and before you awarding a bid and then speaking of the far there's a provision in the far is all see through which says eat if you've made all of these determinations and then you will found that he commercial there is not of the commercial products art available to suit go back and rethink what you want you must use the research which wasn't done the research wasn't done here because there's no record of it having been done and the court of federal claims that i searched the records we don't find evidence that the research was done so the research wasn't don violation of the statute then the part that you're referring to them says you washed use you shall in use the research to ensure and then make these determinations you must make the determination that commercial whether commercial items are available whether commercial items can be modified in two different respects and then thirdly if that doesn't satisfy the requirements then go back and rethink your requirements because maybe if you modify your requirements to some degree then you will be able to go out and buy something instead of spending six billion dollars and fifteen years i'm getting something that doesn't work and why the record of army is humans of the army in the field are asking for additional talents or system there's plenty of records of that now for the we know that the army did not do this because the record doesn't reflect the research it doesn't reflect the determinations in any of these respects and the army is now saying well we didn't really need to do that this is you asked this question before drugstore they say we don't need to fully this is page thirty five of the army's opening brief at the bottom it says the court of federal claims unfairly imposed a duty on us to fully investigate to fully explore to examine to evaluate so what the army is saying to this court is that what this statute says the army wants to do they don't have to do now this is later flying something or and with the statutes required well the statute says so they expect maximum extent practicable now that is a commonsense term saying if it's not practica to do it if you would have to drill to the center of the earth you'd have to put you know it's there something that doesn't work i looked up the term practicable because i would thought that this question might come in so far as it can be done so the maximum extent you shel do this research you shall make peace be chairman asians we didn't we don't have a record of the research we don't have the record of the determinations they weren't done because the army never intended to comply with this statute the army that you would want to give deference to it but you have to have something to defer to there isn't anything to defer to there isn't any research in the record to defer to there if there clearly are not that he terminations that are required by the statute intending to develop this when you when there were commercial suggestions in response to the our advisors what the army said is those are not responsive nonresponsive so when the when the when they palaver my client was saying there's a statute here we have the product it's commercially available it's already been used by the government it's available we can do the work that and and calendars experts pointed out that it can do all of the things that the army is requiring when the army is expert was said what about that balance or says they can fulfill all your requirements the army's expert said well i don't have sufficient knowledge to be able to answer that question what with how could you have a more obvious admission why the army that they didn't do the research when they're expert at the end of all of this process as i don't have sufficient information to answer your questions about the suitability of the product so we know that section twenty three seventy seven wasn't complied with because from the outset this was a developmental project which congress said don't do if you can't possibly before the army does its research has said that there are commercial items out there of the full range of menu of things that you ought to be looking at and then if what the army does that they didn't intend to do that then they come up with their requests for information and then they talk about a developmental product and when someone comes back and said well we do have the commercial product which could have been something that the eva study was referring to they say well that's not responsive so basically that's further proof of the lack of in chance right from the beginning to comply with this statute and it's reinforced by the army saying we don't have to do the full research or full of the full examination or full review unfairly put to the test of examining they use the word examined in their break or evaluate you know what the statute wants this process to work this what the army did was right out of existence twenty three seventy seven and if their decision and their conduct in this case is sustained that we might as well repeal that statute because this is the classic example of consider what's available look at it make the terminations so you giving full deference so the agency have something to review they didn't do it you can't give deference to something that you it's a responsibility when when the statute says shelling sure that this research you must be used to make determinations and those determinations are here it's a clear case that the army didn't comply with the statute never intended to maybe well intentioned because of it they may have thought we'd rather invent ourself but congress unanimously require them to do so five that the army must set aside this solicitation and it as fail only after the army has properly and some seriously i think that means in good faith complied with ten u s c twenty three seventy seven should defendant proceed to award a contract in other words don't award a contract until you comply with going to question of and date with respect to how you get to that point and it is your understanding that  items out there going on i don't know where that exactly is and i don't think it's in the record and i do think that as far as the what the court of federal claims did it was fully justified completely justified on the record and it's the only outcome that would be appropriate the process that went on for before was not in compliance with the statute the army's being told that don't go forward until you comply with what congress told you i just want to make a couple points first of all this argument about commercial services and having to fall within the definition of a commercial service is not a new argument it is an argument that was made at the g a o it was made before the court of federal the second point is just a brief one the sec's in from one was not built from scratch it is in fact comprised of over one hundred fifty commercial software products and this includes software platforms we're not going to build increment to from scratch what it requires is a real use of available commercial software products and government owned software products to the maximum extent and that is was is going to be used together with software engineering services to build increment to with regard to the requirement to do market research what the statute says is that it shall be appropriate to the circumstances not that it shall be to the maximum extent practica investigate and also that you make a determination as to whether in commercial software products can meet part of agency requirements we already know that commercial software products  meet part of agency requirements there shouldn't be a requirement to go out and do a full investigation of that in the context of decent x what we don't know is what mixture of commercial software products plus government own software products plus software engineering services will prove to be the best value to the government and that's what increment two is supposed to d e based on the competition between competing proposals that are submitted  talent year would not agree to that particular wording therefore there are several paragraphs about the diva study but really it is just the beginning and what it tells the army is that you need both integration and development now i need to explain integration integration and the contents of dyslexic is not about bringing in more pieces of data but it's going to take in the components talk to one another  yes that's exactly right it's between software for example different software plath arms these different software platforms have to be integrated and it all has to have code going between it that works properly and this is referred to as group code and there has to be integration testing of that glue code and you test it all against particular military requirements to make sure those military requirements or met and why i'm doing that integration may involve modifying your commercial i know so that it would be seeking a commercial items and the ability to modify the it may or may not involve a modification of a commercial product perhaps there is a piece of software that is added to a commercial product to build the bridge to another platform but ultimately what you have to do is you have to build code that joins into for example a government platform  integration or development or modification of the commercial  don't it might for example if you if you have something as pelletier they talk about a toolbox they take a piece of lego out of their tool box and they stick it into their platform then perhaps that is a modification certainly a minor modification of their platform because they've got that in their tool box but what we're talking about here is bridges that from commercial software platforms to government owned software platforms and testing all this new development new glue code between these software platforms for example and that takes engineering services in the engineering services have to be then tested to see whether it happened they've actually been successful at that integration is unique to the government system  well i don't think i can speak to the entire i don't think i can speak for the entire universe but based on the record before the court the there is integration is necessary to build backbone is itself a government software platform and you have to increment to the contractor will have to integrate the government platform with all of the other software that is part of the increment too and then test it against unique military requirements to make sure it all works you know those are military requirements there's no commercial marketplace out there to make sure for example the software that goes between the sex and the defense intelligence agency there's no commercial commercial product within the definition nor would it be a commercial service within the definitions in paragraph five and six layers there much are saying i just one last question which  you this is from the first storify quote contract vehicles your company has been awarded that address the scope of services required to develop and integrate the system such as to six focused on software it says focused on integrating cards which is commercial off the shelf software products and then gots is the government owned software products and you have to integrate all of these software products into a software baseline and that's going to be the new baseline and then i would point the court to the the side for that with the appendix one one eight  in response to that challenge to your identified commercial item contracts then we asked in our if i number two for more information we need more information we want to know the contract because you've had in the company your company has experience developing and integrating with these types of software applications or capabilities so the concern here is what experience do you have integrating with state for example your software product and some other software product but specifically we identified the domains that were a can of concern to the government and these are particularly military domains for example counterintelligence and human intelligence targeting on the move operate and they do so that's the type of integration experience we we