final determination the final evaluation doesn't include any errors but that the advisory committee recommendation and the technical evaluation team recommendation do you include  errors and as i understand it under their regulations the contracting officer who breaks the final decision is required to make a quote independent determination so as a matter of valuating prejudicial error harmless error does it really matter whether the advisory committee and the technical evaluation team have made mistakes if the contracting officer who made the final decision didn't make a mistake your honor i think the issue that you're asking about if i can jump into it as a matter of prejudice is whether or not some but there are errors in the technical evaluation team and the advisory committees recommendations that are passed up the line to the contracting office or the those errors in the recommendations constitute prejudicial error or not i believe they do and the reason that they do is that is where you have a situ where the source selection authority in the source of legislation that is relying on those underlying evaluations as the basis for what he's determining how do we know the content or source rely on in this particular case the source selection decision document states exactly what the source selection already looked at and reviewed for purposes of making his decision and we think this from the reliance well but we can also see from the source election decision document that it it basically incorporates wholesale verbatim major portions of what the source  election advisory council wrote up in its report they took that he took those recommendations he took those that under my hypothetical that doesn't include the bad stuff well the bad it under your hypothetical your honor the source election authority if i can elaborate on that hypothetical had said i reject these negative findings and come to a different conclusion that's not what happened in this case in this case the source election to sort decision st election authority took those bad relying on for the short at least in the i can talk about the two different issues on the price issue the statement about the price differential let's put aside the price differential for a moment ok concentrate on exceed the other offers optimised demonstrated corporate experience represent a complete competitive advantage over both try west and well point he refers to up the only that's the problem that created the competitive advantage opportunity on the next page he does it well points general bergner background experience qualifications in addition to those of its parent company represent a benefit to the government i predict that there is a recognition that wellpoint parent companies has some advantages also as does well  subsidy then the final sentence is optimum try western wellpoint each have prior experience managing large health care contracts clearly when it referred to well point there was really referring to w points parent right well actually not well point standing alone not necessarily because the underlying evaluation recognized that wellpoint standing alone had some experience doing that the problem here is that there's no that point had prior experience managing large health care contract yes your yes your honor and that's reflected in the technical of team's evaluation that wellpoint did some but not that much that was the problem in this particular instance we're not talking about a single weakness being assigned to wellpoint based on well points lack of experience we're talking about is a fundamentally inconsistent different evaluation ok but but look let's go back to the question we are in the decision final your honor in this particular language optima possesses a competitive advantage over tri rest and well point if i read down through that competitive advantage i have to go back and compare it to the source election advisory commission says council's report but it is  essentially a repeat of the competitive advantage the problem with adopting the competitive advantage was that the competitive advantage resulted from having treated optum and o p s ass as a singular entity but i'm no i'm sorry i'm not seeing where the under the regulations it's very specific the contract the officer has to make a quote independent determination right yes your honor and so the question is in making that independent determination did he adopt  relied on your own or if you're looking for a sentence that says all of the things of the source election a valuation of the advisory committee and the technical evaluation team did i don't have all of that language quoted in his source election decision  have the body of the source election advisory councils language adopting the source election and topping that competitive advantage repeated verbatim in a source selection decision document the competitive advantage was not something that the source selection  invented through his independent evaluation is something he was presented with by the source election advisory council and used in his decision as the basis for his trade off that competitive advantage and there's a paragraph in the s s a is decision  and forty eight to forty that's devoted to analyzing old points corporate experience is there something inside that paragraph that to you reveals that contracting officer here was carrying forward some penalty against well points corporate experience because well point standing alone as really minimal managerial experience with large health care networks yes your honor ok so where in this paragraph is that well st let me reiterate that it's to the use of this competitive advantage in that particular paragraph the source election authority adopts the same analytical perspective that in addition to those of its parent company he's drawing the same distinction that's been drawn throughout the evaluation between wellpoint and its parents affiliates later in that paragraph he talks about the experience of the companies the if ileus but then notes that not all of the affiliates have been doing so for that long again making analytical distinctions between wellpoint as the subsidiary and op and found the corporate affiliates that it draws on in this case you had to corporate subsidiaries being put forward as the prime contract in this final decision by the contract officer that says specifically well points general corporate background experience and qualifications in addition to those of the parent company represent about in addition to those of the parent company he the same way that wellpoint military care is optimum p s s the prime contractor offer was never evaluated just just today and understand or correct me if i misunderstood your view is that the authority here had both wellpoint immediately and the well point family but did not look at o p s as individually just the optimal family correction and that's what's missing as to o p s at that's your grievance yes what is present as to well it's the fact that they adopted that perspective that analytical approach has which evolved into this competitive advantage that's the problem when they looked at well point they said well the wellpoint doesn't have the capability to manage large contracts welp we has only so many employees wellpoint has only such and such experience there's nothing in the record anywhere making any kind of similar that kind of specific differential treatment does not appear in the contract or courses decision well your honor what appears in the contracting office decision i think the government's priest make this point as well is  the current source selection authority traditionally relies on the evaluation record that comes to him and builds up the source election decision document how do we know because the source election decision document quotes from or or group replicates the language of the underlying evaluations and uses nor is there any evidence in the record about what concord or has traditionally relied on well there's there's evidence in the record about what this source selection of thirty rock about i'm asking about what they do traditional  a is there any evidence in the record that your honor as a matter of tradition i guess i would look to case law but in the in this act i can in terms of what they traditionally rely on they rely on the reports of the lower level of value waiters that are presented to them and those are the cases that are cited in the government's brief to that extent but in this particular case i know what they relied on because the source election of the worthy in his source election decision document reports say what he looked at and rel repeats the same language from those underlying evaluations and then uses the same findings from those underlying evaluations of the basis for his tradeoffs if i can i don't have a sense that matches your demand for i find the same thing that was found below but what he does is not use that finding and repeat those findings and use that as the basis for his trade off you agree that under harmless error analysis it's important to look at the final decision maker right i mean different corporate structures to the government if you read well point's proposal wellpoint provides it is significant this is their own language it is significant that wellpoint is at once new and yet built on the backbone of a fortune five hundred company they received a weakness for being new and for all of me having nine employees and at the same time received the strength for being built on the backbone of the fortune five hundred dollars company in contrast an optimist proposal they provided that for the purposes of the community care network for what the v a was building that often would be the sum of its affiliates even if we assume that o p s or that i see t and that increases the risk of unsuccessful performance by well point that plan was not set forth in optimal proposal o p s that even if we assume it's the equivalent of well point at  back i mean there's a difference you could have the exact same components and how to structure those who own it's for the purposes or proposal can determine whether you get a strength or weakness and again says just drains and weaknesses this is not of the overall score that they're receiving but if you take your bundle of sticks for example and you take those checks and you put the weakest stick forward is the sort of the tip of your spear but it's backed up by a very strong you know on t well it's relevant that you have that weak stick right at the outset you take that stick instead bundle it into something like a hammer where yes the same week stick is there but it doesn't matter anymore no longer becomes relevant so you have right under the heading of why is this  their proposals you have the fact of the essence of their original proposal and then if you look through the proposal you can see what sort of changes they made as they were in discussions with the government about their offer so that's why you would have a red line you know that it's it's affectively how the proposals were run presented to the governed and you know when you see that you know ok so we're this page they say that they're just belonging on the specific entity and not one overall can see it well they're not just relying on a specific again their specific language here under the heading reliable it is significant that w m c which would be well point that once new yet built on the backbone of the fortune five hundred company with vast experience and high quality performance new translates to weakness in technical evaluation teams evaluation you handle them different from the other one well presenting a sort of different structure and again that translates to they both have the same strength but at the end of the day they have different weaknesses ok let's assume we reject that and let's assume that  is that error assumed error in the contract you just issued a harmless error because it wouldn't have changed the result here it's harmless error because it wouldn't have changed the result evaluation where he doesn't say if if i were wrong about the corporate experience factor it still reach the same result we don't have anything like that now he does so how do we know let's assume that they both and redid rated equal on the corporate experience factor that that wouldn't have potentially affected the result well they were they weren't here i think it becomes i mean as we get into the more hypothetical territory it becomes more difficult to into these sort of ratings and see what actually happened here i mean here you know the source selection authority on specifically states what's important to him how he distinguishes between what is the source of the product work that that w well the finding of the trial court on prejudice that is at the outset and that i finding of no prejudice line st the record evidence shows the v a s evaluation proposals under solicitations corporate experience capability sub factor did not prejudice well point with regards to v a s award decision well point correctly observes th yes your honor and that finding is not clearly erroneous  equal treatment claim is on substantiate what's the support for it cites to the source election authorities decision noting the v a did not consider this weakness in making the agency's best value determination than quotes selection i mean he was the quote is not from the it's not from two well for one the quote is from the quote that was used is from oral argument script right after that specifically the record shows and then it cites the oral argument contract transcript rather than actually citing to the language which is actually found at two thousand and forty one about the source election authority not simply counting the relative strengths and weaknesses assigned during the evaluation process i don't know that language what does that mean if it means that the source election authority might be on a simple assessment of strengths and next several paragraphs they specifically distinguish between the two of them and then take the trade off analysis of the why even though wellpoint had a price advantage at the end of the day the source election authority would choose to go and hire technically rated proposal so we have i'm sorry i'm just not understanding how does that show us that he didn't consider the corporate experience that it was because it shows what they did find the contracting officer in his decision saying and i can't provide you with a call for something he didn't do i mean the technical evaluation team had one thousand two hundred and sixty five joint appendix provides that you know there's a weakness wellpoint has nine people this increases the risk of unsuccessful performance you find none of that in the source selection authorities decision instead you find the source election authority when it talks about wellpoint talks about a corporate experience in a favorable fashion so yes i required to independently set out his reasoning he does set out his reasoning he provides what distinguishes between the two off what is significant for him specifically and he talks about things like optimize expansive network he's not talking about this nine person wellpoint weakness it simply vanishes it's such a significant factor in the valuation that we don't see him saying the same were expressing the same concerns technical evaluation team did and let's be clear the technical valuation team's concerns are very specific based on that sort of nine persons based upon the increase of of unset risk of unsuccessful performance they set forth their reasoning clearly you don't by looking at the source election decision and in particular appendix page two hundred and four was thank you and and for context what's happening there your honor is the source election authority is explaining why despite the fact that wellpoint somewhat lower priced he thinks an award to optimum makes sense and he's identifying the reasons why he's making an award optum despite a modest premium and the reasons are number one the better provider network but then number two his determination optum had an advantage of corporate experience and the key your honour's is that his reason for concluding that an optimum had an advantage experience had nothing to do with the weakness that the lower level of value waiters assigned his reason for finding that optimum had an advantage of corporate experience had only to do with optum and the somewhere and somewhere or only there i think we were looking at it before it gives a sense it says for these purposes optum is kind of the whole group not just o p s that's that's correct and the proposal goes through in some detail and says two the source much of that explains why he thinks optimism better for corporate experience and just reading that paragraph you can see that the reason is all about the organizational strength optum they have nothing to do with the weakness that was assigned it to well point and so if that weakness was removed if that weakness had never existed the source election authority would have reached the same conclusion he still would have concluded that optimum has an advantage in corporate states comprising region three so this did well point standing alone provide have a preexisting network and in the states comprising region three  i believe that wellpoint relied on its anthem parent networks as well i guess that's my point is that the reference to the offer or well point in that sentence must have necessarily been contemplating the entire organization behind wellpoint that is its parent and all affiliates and not just well point the nine employee i believe that's right you're on  believe i under the r f p the r p stated that the agency would evaluate offer it was based not just on the specific offering entity but based on the overall organization and that's exactly what the agency harmless error theories here which are quite different one is that whatever errors the war and the technical valuation team of the advisory committee didn't influence or find  into the final decision by the contract office or alternatively there's an argument that even if they did even if the contracting officer made a mistake in the corporate valuation factor that the corporation valu on factor didn't play any role in the final decision do you support both of those not only the st year or so so certainly that the corporate experience factor played a role in the in the award decision because it was one of two discriminators that the source election was already pointed to to say optimism worth a modest premium but we can see from this record that the reason that corporate experience was an advantage for optum had nothing to do with the weakness and only time doing so so if i understand what you say you disagree with the government's theory that even if the contracting officer made a mistake on the corporate experience point that that was would have been a harmless error because the c e o would have reached the same decision anyway well there's there's no there's no indication here that the contracting officer made the same mistake that i understand as let's us a understand that art but the but i was so many that let's assume that he didn't make the same mistake and i know that you can test that and we've talked a lot about that but let's assume that he did make a mistake are you arguing that that would be harmless error yes that that would be harmless or why would that be harmless  because even if you and by and by mistake i'm interpreting the mistake to be that she also believed that wellpoint correctly had a weakness even if he even if he adopted that view that wellpoint crackly had a weakness we can see from this decision that that weakness had zero impact on his or decision because his award decision came down to three things number one the fact that wellpoint was slightly cheaper number two the fact that optima had a stronger provider network and number three the corporate experience the advantage for corporate experience for optum but that advantage had nothing to do with the weakness it had of the only thing it had to do i'm not following that well so so so you're  from from well point and the st part of the paragraph talks about the provider network and then only that the very bottom of that paragraph sorry the very bottom of page two thousand and forty one we get to the corporate experience and it says further with respect to corporate experience optum is a proven market leader that will allow v a to stay on the cutting edge of health care rather than being in a reactive mode as v a has proven to be a store clee optimum proposes to invest three billion two  technology annually going on in the next sentence demonstrated corporate experience represents a clear competitive advantage and if you then your honor tie that back to general corporate experience capability and he talks about the full range of the optimum affiliates the whole organization there he talks about optimal r a c say the corporate worse both often well point he's looking at the whole organization and he's concluding that the organization as a whole the united health enterprise as a big united health is stronger than i'm going to go to that seems to me  his question that he asked the earlier i think that gets to the heart of the issue that would be taronga up dipole gys i'm often kodaly so i do recognize the difficulty here the st time the problem here is that the s s a never considered s never evaluated if this is an independent evaluation the only thing that the source election decision document ever references is optima it does reference wellpoint and it does reference it's a different corporate parents but it never references anything about o p s the prejudicial error point being made is that doesn't matter because the contracting officer unlike the earlier stages didn't make any place any reliance upon the weakness of well calling itself so the difference whether there was a difference or not between o p s s and well point specifically just plays no role in the contracting officers evaluation with a contracting officer was a value a corporate experience he was plainly looking the argument goes at the families and not the individual and i think that argument's a mistake and the reason i think so is and twenty three you'll see the vote verbatim comparison this source selection authority never went back and looked at the proposals what he looked at was what was he was receiving from the underlying evaluators the underlying evaluators never looked at o p s ass the weakness a distraction this isn't about the weakness the prejudice here is that there was a disparate evaluation that evolved into a competitive advantage that competitive advantage was something that the s s a see were presented to the source election authority that he adopted and accepted without making any independent assessment of his own of the difference between o b s s and an off them did you ever ask to depose the contract officer now you're on why not there was not an opportunity before the g a o and we never tried to supplement the record because we thought the record was sufficient in showing that there's was a disparate evaluation right now what we don't have is in and present we approve the position of the contracting officer under so limited circumstances to figure out what the contractors are considered what you meant but you never asked for a no your honor we thought the record had enough information about the what contracting what the source election authority had considered here and the record is clear that while while there was apparently a view that it was important to evaluate the subsidiary prime offer when it came to wealthy there was never there was never an equivalent valuation of the purpose of the subsidiary prime offer o p s s in this case all of that turned around in the lower evaluations of all that into a competitive advantage and that competitive advantage makes its way unaltered into the source election decision document where he relies on the value of optum and then also notes differences between well what for example he says well point was created in two thousand and fourteen we have no idea when o p s s was created there that that differential evaluation led to the competitive advantage and that competitive advantage shouldn't have been the result of a disparate evaluation both of the entity should have been evaluated equally and that competitive advantage should say ok thank you thanks both counsel