be what you compete against an incumbent tell us corporation that it accidently skewed the playing field in the other direction and resulted in a situation where tellus couldn't win this case is important because if the lower relief request and if by now that transition was made yes your honor is that the voluntary voluntary stay lapse at the end of february or something honor and we have just found out that the court below did deny our motion for an injunction pending appeal several days ago as well this court will also render will give executive agencies perverse incentives in the sense that the less they write down about whether somebody deserved a strength or deserved to be downgraded for something the more easy it will be for the for them to defend their decisions because of an agency says nothing about something that has nothing to explain and if the court cannot look behind that and ask that agency why didn't you give someone credit for this why didn't you give ford motor company credit for being able to manufacture a car for example the agency would be able to say we're not required to write down why we didn't give somebody credit for something or why we didn't downgrade someone for something so we don't have to answer that question the backdrop for this case is a really very thin contemporaneous administrative record and we understand that this is a far part it point for procurement and not a far off if part fifteen picture meant and do you agree that that makes some difference in the and your honor the the army has taken the position that we are saying the requirements are the same and i want to be clear that we have never said that that's not our position that i mean that i think at the end of the day you need to have a look at specifics and say here's something the army decided and didn't give a good enough explanation were good enough must depend on your showing us here's material that yes your honor in most of the cases in fact i believe in all the cases where material is in yellow the army has not substantively denied that that information is correct army's position is that it does not have to provide an explanation the court below agreed with that and stated that stated i don't find there's a need for an agency to explain matters that are merely found adequate in a proposal so that things you were not things that were not the tell us has demonstrated that the agency treated unfairly failed to give telus credit for significant strengthen its proposal and overlook deficiencies or weaknesses in the words proposal  es question i have to tell me if maybe become completely off or maybe more theoretical but suppose you had a situation where the service that's being purchased is one that has to meet just the minimum standard is extremely high so on a scale of zero to one hundred the minimum standard to be acceptable is ninety nine so there's just not a meaningful difference between acceptable and stronger or significantly stronger or something like that why is that then they could then seems to me you're not talking about anything significant in terms of explaining why it was ninety nine rather than one hundred and why is that not this case on a service that i gather at least some evidence t acceptable or unacceptable but being good or excellent or outstanding or marginal or not acceptable and so the agency set up this scheme where there were multiple tiers not just acceptable or unacceptable and our client who is the incumbent has over ten years of performing these exact requirements was basically treated as if it was a fly by night newcomer to the procurement agency has not has not at  all attempted to rebut tell us his claim that it has years of successful performance and tell us does not intend to think or does not intending to argue that it deserves this award simply because the incumbent however because it is the incumbent and because it explained how it is doing the exact same work at the top of the world was made the agency was not free to simply disregard all of that and treat the newcomer as does have extensive experience and other capabilities that are relevant to this picture much on the issue of the experience in particular the agency has been all over the place the agency an initially stated the contracting officer experience the agency changed its tune and stated that what was really at issue was the extent the knowledge and the understanding that a clearance provided to centrex the agency did not explain why telus has extensive experience didn't deserve at least as much credit as net centrex the court below did not address why tell us as undisputed experience across the full range of the requirements of this predicament didn't deserve some level of credit and so we believe that there was clearly unfair treatment in that regard and they didn't the selection official of lend some credit to the idea that telus had an advantage here which helped establish a strength yes the the i guess the i guess what i'm trying to get at is that it appears that this election of tasks and subtasks but there were many many other areas tell us as experience across the whole spectrum the agency didn't actually refer to tell us his experience under that particular part of the of the record but but i can see how the army would the agency as to why tell us didn't get credit for each other experience instead the newcomer was given a significant strength which helped to bump it up to a higher valuation rating than tell us for having someone who could help the newcomers team quote come up to speed so that even though the agency conceded that the newcomer didn't have experience that made it already up to speed it still gave netcenter x credit for it experience under the as a significant strength under the technical factor another issue with the experience in this case is its agency specifically said in the in the are a few that it would evaluate parties proposed personnel for the caliber and depth of their experience however it isn't the management factors runner however when it came to the evaluation of telus as management proposal tell us received not a single strength for any of its experienced key personnel who had been performing the work for the agency three years that despite the fact that the procurement said that the agency's emphasis was uninterrupted performance and twenty four seven three sixty five performance the agency made it very clear needed top notch personnel who are who are experts in this area and tell us provided them but received zero credit and to the management factor the courts court's decision below does not address may please the court the record shows that the agency carefully reviewed all of the proposals and that what tell us is asking for the court to do is to second guess all of the agencies discretionary determination the trial court properly applied the standard of review here reviewed the record to determine if there were if there was a coherent and rational explanation for the agency's award the trial court didn't pay lip service to that nor is the government asking this court to just trust the agency on the evaluation the trial court carefully reviewed to see if the agency considered relevant criteria whether there were any inconsistent evaluations between the two who offer ors look to see whether the agency applied any unstated evaluation criteria included and concluded that there was nothing like that here and the record supports the source election official and the evaluation board where the source election official asked the evaluation board to go back and be sure that it was describing proposal features that met the definitions for a strength or a significant strength and then you had three rounds of a valuation board reports so the record clearly art that clearly supports the finding that the agency thoroughly reviewed the proposals and reached national determinations that tell us simply wants this court to second gas and to sit frankly as a source election authority to review pages and pages of its proposal and make a centrally dunno determinations about whether tell us deserves a strength or a significant strength what if we were to conclude that there were some arguments or evidence positions raised by tell those we didn't see a trust in the selection officials decision or the underlying evaluation board she said she did but that we can't really see that she she didn't do all are working terms of evaluating every little argument that was vague what do we do under those circumstances will the courts rule role is to look document the evaluation the way you would in a far part fifteen for care meant and she absolutely complied with the requirements of our party you see that she set out in the source election decision which is a pain to use to twenty to seventy nine of the  the appendix she sets out all of the evaluation criteria she describes the features of the proposals that she determines are distinguishing features between the different proposals the fact that the agency doesn't document everything feature and whether it's a strength or not a strength doesn't make the her make the source election decision irrational and the level of detail that tell us w the agency to put into this evaluation isn't even required by far part fifteen part fifteen three o five requires the selection official or the evaluation to include descriptions of features that are deficiencies weaknesses strengths or significant strengths but even far part fifteen doesn't require and agency to describe why a particular feature isn't a strength or is a strength and so for example when  referring to the fact that there's no explanation in the record for why it didn't get more strengths for its experience what we can tell from the record is that the agency reviewed the technical and management proposals decision and so even if there isn't a one document synthesizes all the information that nets that tell us would like to have in the record and describe in the record that doesn't make this the agency irrational as the supreme court said in motor vehicle manufacturers association the courts will uphold a decision of even less than ideal clarity so long as the agency's path is reasonably discernible and that's exactly what the  require that on a particular required element of the qualification that the evaluating official make show a comparative assessment as opposed to saying ok we looked at centric and where we find straights management or whatever whenever it is we said strength and separately did the same for the tellus but we never did anything that we never think doesn't shouldn't be the army in this case have to make a comparative assessment q the agency for example or tell us talks about staffing agency never said that staffing is going to be evaluated based upon what telos this proposal is so there's nothing in in q or the far that requires the agencies in the valley waiting proposal features determining whether they have strengths or significant strengths they don't have to evaluate that by comparing one proposal to another proposal but what rating for telling us how do we know whether the evaluator has applied the same yardstick wherever the yardstick comes from or for instead whether the evaluator has said that cent same criteria is applied if for example at the proposals have similar features does the evaluation have reached similar conclusions about the the features but here where reviewed evaluation board and starts looking official reviewed the proposals because there's detail about the the features that each of the offer or is presented that the offer will that the evaluation board found to have  strength or strengths or significant strengths so you look down into the details of what the agency describes as the strength or significant strength and unless there's a situation is th where you have a comparable proposal features but they're being treated unequally then there's nothing there's no basis to second guess what the what the agency's a valuation is because they don't you don't have to compare and i guess deserves a strength as well but when you look at the evaluation report the each and see was not of value weighting under the technical factor the the proposals strictly based on who has more experience are or who is experience the page twenty seventy two of the of the record the evaluation report indicates that the reference to net centrex experience w treatment and instead of relying on sort of just the broad word experience the trial court dug into the record and said that's not really what this evaluation report is saying that's the that's the only time that telos says that it was treated and tell those yet the most superior rating so for the transition plan given that they would have no transition as the incumbent compared to any other it would be a supplier that would have to  transition and then work with the incumbent to transition the transition factor was not just about transitioning in the about a ration factor which is at sixteen zero one of the record and then evaluation criteria at sixteen fourteen indicate that the transition factor dealt with transition in transition out and generally how the officers are going to deal with the transfer of knowledge and the risk of associated with transferring knowledge from one contractor to another right and this election official didn't seem to comment at all or address to those as a parent or structural advantage of having to deal with any of those things and so new performance work statement requirements and that needed to eliminate redundancy and so this was not just about transitioning it so first of all the factors are not just about transitioning and it's broader than that and even with telus having been the incumbent there is necessarily going to be changes in the lessing i just want to point out is that the source election decision and page twenty two eighty five of the record it describes this factor and explains that tell  us in fighting the tell us this proposal was adequate says that tell us incorporated phase of personnel with proposed staffing demonstrated an understanding and concept of working with the government and preparing transition activities and that's just   that on seven hundred seventy seven to seven hundred eighty one and the court was cracked down below that the agency provided the required consideration and they evaluated as reflected in the evaluation two zero seven seven they evaluate in a central proposal against a performance work statement against the instructions that instructed offshores how to respond and how they would be evaluated they looked at each of the management sup factors including staff and separately and ins you found that net centric savvy adequately or categories to satisfy the program quadrants and also noted that centric proposal meets the task requirements and displays an understanding nine six where the evaluation board went through in detail on the staffing and noted that central proposals to utilize lessons learned with their past experience in providing support on this contract vehicle and its customers and providing were senior qualified staffing mix for pride experience tasks work within all areas reducing staff size to the bottoms up analysis so the agency is reflecting the record actually did this evaluation and did exactly what eight point four zero five dash to the requires that you believe this election official said enough good enough showed enough to justify the decision and categorization of all these different factors for these fires but where do you think the line is what would not be enough obviously if they just said for all these different factors at what adequate superior adequate and without any further explanation that seems like it would be but where where would what  part eight what the agency did was here's the evaluation criteria that we've outlined in our if q and a node for each of the evaluations and they documented it we evaluated this proposal and each of these some factors against those requirements in the art q and as  your time has run out i think your honor forming a minute's thank you your owners would like to address to several things that my colleagues have have said one is that telus is allegedly same agency have to write down at the time when they're doing an evaluation all the reasons why they didn't award a strength to someone org where didn't downgrade someone for something and i'd like to just be crystal clear as i think we were in our briefs that we are not saying that agencies have to do that rather long the lines of the case before the that that we say to dominica groovy where the where the court found that a protester had race efficient grounds to ask an agency more questions about why i had done what he had done or similar to the overture in park supreme court case where the court held that an agency can if the record is not sufficient for a judicial review instructed to provide additional reasons to justify its decision we believe that we have a that initial burden of showing that the agency acted irrationally and unfairly and that in light of the circumstances the agency has should have provided an explanation for its conduct the agency was free to supplement the record below and indeed it actually did supplement the record to some degree providing a contracting officer statement that was provided at the g a o to explain a few things so the agency recognizes it has that freedom to provide these explanations however the agency chose not to submit a more detailed explanation below about the issues that are now before the court and we believe that the court should not defer to silence as an explanation from the agency where we have carried that initial burden of showing that the the that a judgment call here like a an algebra class teacher says don't just give me the answer show your work there's a judgment he showing your work without doing every single step or you know given enough to indicate what the basis of the answer is i mean so yes we believe that judgment call should fall very much in our favor particularly with the fact that the agency has been so inconsistent about the way it was going to evaluate experience we believe that that is a very clear area in which we have carried our burden also the experience of the awardees expert or alleged expert in the a m a just software platform  believe that we have provided abundant details to show that their expert did not have the required experience or the documented experience that was required for a person can have a certain academic degree the agency has rebuttal of the detailed statements in the declaration submitted by tell us in the record that shows why that person who is well known to tell us does not have the qualifications needed the the agency and were free to explain themselves and explain why they tell us was wrong about that but have chosen not to do so in detail submitting only a conclusory affidavit stating by the person involved that i could that i meet the requirements with with no detail about the specific issues tell us raised your honor i would like to also just mention that the court below erred in finding that the agency evaluated staffing at the task level the agency itself admitted on page two fifty four of the record that it only evaluated staffing generally and stated in another place that whether or not you know whether or not it had of they had not needed to evaluate staffing at the task we believe that's clearly contrary to law finally eight point four zero five two f eight requires that even and far party for germans an agency