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 d o t person out as they move around the world the contract requires the contractor to create a complex but just work under the evaluation methodology that was laid out in the solicitation all five offer or that submitted proposals were deemed acceptable by the agency and the agency then about who waited their proposal for past performance and price which were considered to be of equal weight in the award decision is best value for care in other words the source election decision was a trade off decision with a trade off between have performance part of your argument is that this separate corporation global europe was not identified in the proposal as a separate corporation correct your honor it goes beyond that  all we found out over the course of the proceedings at the jail and at the core of a claim that was a separate corporation but it was identified in the proposal been submitted by international well what 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 or in it did your own bust your own or the way you described it was branch offices and never committed or specified the resources the personnel the basilica but but what i'm trying to get at is does it really make a difference whether it's identified as branch offices or division or a separate corporation is that is that fatal that it was not identified as a separate corporation no your honor i don't think it is even just identifying a branch office as we have the same problem they didn't identify there this company has five or six branch offices throughout europe and they didn't identify which branch office it was going to be what personnel facilities what resources were going to be committed and that's the standard that's been set up by the g a o for a level of detail saying the level of detail is insufficient yes your honor that's true there was no detail what about the past performance questionnaires never see t questionnaires what they're 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 tea get off was was performed by a company that was mentioned proposal that was the problem and there was nothing in the proposal that showed how he gal well global trends global how they were related to each other and then there was nothing in the proposal at all that mention the yes your honor the proposal handily it out is never mentioned which branch offices were going to be performing this contract for them in europe that not all and that's what the g a o has required for years in fact the the agency was well aware of this in the record when we talk about how they send out a valuation notices to the two international saying let us know it doesn't look like this and we don't have a commitment between global on the one hand and trans global on the other say that the resources of koreans global logistics including workforce management facilities all resources will be available for contract forms it does your it out so if this if europe had been a division rather than a subsidiary what would have been missing your honor the point is that that is a very broad description and g l has not accepted it over the years they they want  not just your events resources tell us what they have the specific you're writing the proposal don't make us guess and the fact that the importance of this is that it was it was those two past performance references that were viewed by the source election official as being the most significant most critical in support of the international past performance rating though so what you're asking us to do is to say that the contracting officer had to require more specificity then  required we believe there was and there were inadequate discussions in the sense that they didn't ask about trends global logistics europe they did they asked about the for the upper levels but not this one and we found out as we say through the course  proceedings that it was a separate corporate entity well how do you know they didn't actually mean when you say that it's in the questionnaire responses ultimately g a o and and the c s e made findings that in fact there was enough information and you say well they it wasn't up to them to give transcom a rationale do you concede that had trans com made those same findings that you wouldn't be here if transom had been to the same findings and actually address the existence of in the participation of tr vast resources but the jail for years in fact twice or two or three times since our geo decision came down denying our protests has found that the lack of specificity in a in an offer of proposal was fatal to that proposal very clear in both the issues that are before the court this morning and as the past performance issue and the contract interpretation issue we believe the court of federal claims reached beyond the record that was before the agency believe that the court is bound by the the record that was that with developed at trans com and not necessarily the record that was developed for that you all your honor on that point absolutely was bound by the record of trans com and with respect to shall be considered part of the agency record subject to review so the reports that are mentioned there are the agency report that they filed thirty days after probing the g a o that's not that's not involved here and the report to congress if an agency doesn't follow instructions which was not an issue the decision that was issued by the agency by g a o your honor as you know is six and a half single spaced pages they don't go outside the record that was before the agency but not also 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 close to work material to see whether that failure was in any way prejudicial well your honor first of all i i would take issue with the way you phrased the issue there they didn't identify trans global europe at all really in their proposal it shows up as a reference that 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 a p a the agency had it in front of you're on right and so if we're talking about what was before the agency why are you saying well you can 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 didn't they certainly probed the reference between global all the logistics but they didn't even bother to ask about the galley they didn't ask you just one of your branches this is one of your divisions what's the relationship what's their commitment of resources the way they did for the upper echelons they didn't do it and yet that's that those are the two references that are considered the most significant most critical to the past performance determination which is where the prejudices here the this was the global  global performance reference was the only relevant reference in all of international stable references so is that doesn't work for them then they're probably not going to get a satisfactory confidence rating that that they've got you now you're into limited competence and now have past performance tradeoff decision is much tougher it was tough you're trying to figure out whether past performance versus a thirty eight million dollars differential in price was  what was more important but this or this was the entire ballgame for this prepared and yet not a question was asked about it with respect to your other issue that major came up submitted performance information for major subcontractors yet when you get in the evaluation section which is where we are in terms of the evaluation process that we're challenging it says that there are going to equally ways if you will past performance information of a principle subcontractor that performs the arms of law the language but for forms critical parts of the job and there's another word in this the the court focused only on the word major in the instructions and yet as we looked at it we have a company here who at that best is going to contribute three to four million dollars a year in work roughly a two hundred million dollar annual b that particular activity to the overall contest your honor thanks for that question that's exactly the argument we've been having during the parties obviously we think there's if you if you read the r f p as a whole which we have to do you have to read the work principle on the one hand and the other words on the other hand and give them also mean principle we think goes to the dominant and with respect to the language in the c r s the we believe the other words go to the  i'll get the language right here major or critical aspect that is that's the nature of the work it's all three it's all things it's the dollar amount on the one hand and the nature of the work that's what the that's what the r f p says there was no indication in the record the trance companies looked at that the fact that someone submitted a sub contractors impact performance information doesn't mean that the agency is just simply supposed to roll over and the ok it must be a major subcontractor principle for a contractor gotta look at it but it's still the agency's realm to make the decision as to whether they think they're sufficiently major sufficiently principled rights within their discretion your honor and if there had been a discussion of it and they'd come down  this case there's no evidence the agency did anything just just accepted it and pushed it through and it's the only way they got to that performance evaluation and being able to hold international of satisfactory confidence we wouldn't to a business decision of the contracting officers and their contracting officer team a transco there's been no identification of any by aleisha of statue or regulation in fact the regulation is quite broad you want to address their contention  specificity as to the european operations thank you republic your honor i will the record contains several sites and primarily on point to just a couple and go through that i can give a serialist like what i have asked the court to first look at before transco 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  and was the contracting officer and their team in their expert in the expertise that dealt develop of the some out required by the r f p or the far to delve into the affiliate relationships in some detail of  sub contractor in their proposal at eleven eight five zero zero we see there's a three columns on that page on the far left where it says g a l global auto with just six has submitted past performance questionnaires to three customers the required information bridge past performance reference if you will see is included in that figure bill up in that figure they list the three companies allied international service which w evaluation questionnaires that were returned to the government government and that's at eleven one for one eleven for three one specifically they mention the  that was part of the proposal that's part of the proposal package we consider the past performance evaluation returns to the question is was going to be part of proposed package and moreover in the evaluation notice that my maybe if i looked at these in my capacity i might not understand these but 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 course and the only question that they had the question is what's the relationship between g l n t g l and that was when they did the a valuation notice that they sent out and in the response was coming back one two two four one twelve three four one  jail i think the court mentioned that they'd committed the resources in a letter response back to the transco and they basically lifted those same contracts as these are the types of contracts we've been performing on that shows that we can actually do this pastor complete the effort that grandson wants we're going to where i ended with your friend on the other side of the supreme court and i did say that question is whether you can reasonably discern the agency's rationale but it also specifically said that that as a matter of review the court is not supposed to substitute a rationale or provide around a reasoned rationale for the agency where  or three one the proposal i would i would say they were your honor only because as my friend said there were two very relevant past performance contractors for contracts that they thought were very relevant under the the conference or he did but that's just not supported by the record specially when you consider that it's a decision on past performance and if we look at the what would you away was they only got a satisfactory rating and they stung the r and that's it nine three three and nine three four those definitions were based on the offers recent and relevant performance record the government has a reasonable expectation that the offer offer will successfully perform the required effort and that's exactly i mean nothing worked because the other one they would have had to do would be limited to a low expectation and there's nothing in the record given nine sub contractors and shows that will be lost loved expectations in fact all the other offers of the five all ha initial proposals way back at the start of the process when g l said we sent out past performance questionnaires to three contractors that we think can provide you the information that you can that you agency transfer to develop confidence r rationale one way or another and in fact should have remanded but i think it's time that we talk about what really goes on at the g a o the g a o is a recommendation after that recommendation even after all that information is presented  that is all before the agency the contracting officer at that time or the agency could say that you know they made some good argument even if the g a o upheld the award we might want to go back and take a look because you know let's tie that up that  leads in this case they did it well as i always like to say sometimes what's in the references in porn but sometimes what's not in the records and porton and if an agency says well what you found out or what the information presented at the g a o is what we knew to be the case all or apparently at the time wasn't aware that it was a separate subsidiary that there i don't know if the contracting office or not well i mean there was anything in information in front of the contractor or so that identified it as a separate corporate and correct but i think that this yes there was not yes there was not what the fact that there was nothing in the record i'm sorry but i but given all the other references to g j l and the tides e g l europe and the fact that g l and g jail 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 who was acting with that with the experience of a contracting officer t as a separate corporate entity as i don't believe there is one that when you talk about the european branch you actually are talking about a separate quarter corporate entity and isn't the problems that your friend on the other side as it's posing is that a contracting officer had to be confident that all of the resources of that separate corporate anywhere were being proffered for purposes of th separate corporation but it's the resources and it's the same resources of the european branch office are managed by jove he's identified in the proposal the same resources pledge the allied contract and the volkswagen contract which is the two past performance references that the agency relied so heavily on and in response to the evaluation notice transpose specifically responded in mention just of that as being one of the people who are is resources are pledged to the performance of the contract and so i think thank you your honor the fact is that international did not provide the critical link between the description in the proposal which subs were doing what in the performance of the contract and the and there's nothing that ties them to the past performance questionnaires that were submitted for two gals need to t l you're just submitting a past performance questionnaire for a company not to mention the proposal does not show how the company is going to be involved in the actual performance  past performance information that they had submitted were for different at an entity there was no showing that the past performance questionnaire indigenes what did had or would commit its resources or personnel or facilities to the contract it's just fifteen years and performed very well as the record shows now they're going to a brand new entity that was formed in two thousand and twelve the major subcontractor of congress they were all i hear local was formed in two thousand and thirteen and here she wasn't told that the forms questionnaires that they're really relying on is some unnamed entity down below that's the problem here there was no link but shouldn't we assume that for the very reasons that you just stated that they were