Futures, Inc.

DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Futures, Inc. ) ASBCA No. 61566 ) Under Contract No. 000000-00-0-0000 ) APPEARANCE FOR THE APPELLANT: Jason P. Matechak, Esq. Impresa Legal Group Arlington, VA APPEARANCES FOR THE GOVERNMENT: Dana J. Chase, Esq. Army Chief Trial Attorney LTC Sean B. Zehtab, JA John C. Degnan, Esq. Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE PROUTY The appeal before us involves appellant, Futures, Inc. (Futures), attempting to obtain the effective award of a government contract for which it was formally rejected and to retroactively apply the never-awarded contract to cover services it voluntarily provided as a subcontractor under the auspices of other contracts in the hope or expectation of obtaining the later contract. As explained in far greater detail below, the Office of the Secretary of Defense - Reserve Affairs (OSD-RA) had engaged a private contractor and its successor to operate a website, built and maintained by their subcontractor, Futures, that assisted military reservists find civilian employment. Shortly after the first contract was executed, the website was opened to all active duty soldiers in the military, including the United States Army (the Army) without any change to the contract or objection by Futures or either prime contractor. Futures, in fact, was an advocate of extending the reach of the website and attended many meetings and events to promote its widespread use. The Army subsequently sought to award a sole-source contract to Futures to continue to run the website, but as the prime contractor, rather than as a subcontractor; to formally make it available to all soldiers within the Army; and to add far greater functionality to the site. Though many high-ranking Army officers wanted such a contract to be awarded to Futures – and made that ambition clear to Futures as early as a December 2011 meeting at the Pentagon – Army efforts to make a formal award to Futures in late 2012 through 2014 foundered, and the attempt was ultimately ended because it was decided to use a different service government-wide. During all this time, Futures explicitly recognized that it had no contract with the Army and it never submitted an invoice to the Army for its services. Now, however, Futures seeks to be paid for the support that it provided  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. gratis during its efforts to obtain the proposed contract. At the end of the day, none of the theories that Futures propounds to support its reimbursement have the evidentiary support or legal bases necessary to create a contract with the Army or otherwise entitle it to payment. FINDINGS OF FACT I. Preliminaries: Futures Creates its Pipeline System and Begins to use it with the Military Futures was created by its chief executive officer (CEO), Mr. Geoff Cramer, in 2005 after a nonprofit that he had previously run, Futures For Kids, lost its funding (tr. 1/44). Futures, with the help of other corporate entities, created software, known as “Pipeline,” which Mr. Cramer characterized as “a navigation tool [that] breaks down language barriers” (tr. 1/45-46). In its original iteration, it helped connect people to jobs for which they were suited; in its application to the military, it essentially translated military positions and skillsets into their civilian counterparts and matched them with companies seeking to hire employees (tr. 1/46-51; 1/56-58). Mr. Cramer asserted in his testimony that it was not merely a “portal,” which he stated could be put together in a weekend, but was a cloud-based application that had taken a decade to create (tr. 1/88). At some point after its formation, Futures worked with the Army around Fort Bragg, NC to help transition separating soldiers into job opportunities in the local area (tr. 1/48-49), presumably using its Pipeline software. Futures subsequently (apparently sometime during the 2008-2009 timeframe) got involved in helping “Wounded Warriors” in the Fort Bragg area find civilian work (tr. 1/49-54). Though it did not seek to get paid for the Wounded Warrior work (see tr. 1/51-52), this work did begin a relationship between Futures and the Army, including a meeting between Mr. Cramer and then-Brigadier General (BG) Gary Cheek, in 2010 (tr. 1/54-55). According to Mr. Cramer, his meeting with BG Cheek led to a meeting shortly thereafter in Washington, DC with Major General (MG) 1 Rick Mustion, then Adjutant General 2 of the Army and another general, Jeffrey Horn (tr. 1/60-61). After that meeting, the Army declined to pursue matters any further due to cost (tr. 1/61). 1 We suspect that MG Mustion would have been a Brigadier General at the time that he was Adjutant General, but we have not seen his rank at the time reflected anywhere in the record. We refer to him as MG here because, as will be seen, he was later involved in this matter when he was no longer the Adjutant General and had attained two-star rank. 2 The Adjutant General is responsible for personnel matters for the Army (tr. 3/214 (Adjutant General Corps is the Army personnel community)). 2  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. According to Mr. Cramer, approximately two years later (which would be the 2011-2012 timeframe, but we believe it to have been some time before late September 2011 to be consistent with matters discussed immediately below), the Army approached Futures to ask for help in transitioning soldiers. Apparently, this change in heart came about because the Army was downsizing and finding that its unemployment insurance obligations were substantial for those soldiers who did not find immediate work upon discharge (tr. 1/61-62). II. The Initial Step: The Contracts for Support of the H2H.jobs Website At some point, apparently prior to September 28, 2011, OSD-RA approached Futures and informed it that it was interested in using its Pipeline technology as a job-seeking solution for the entire reserve component (tr. 1/113-14). Though Mr. Cramer did not directly identify who at OSD-RA approached him, his testimony suggests that it was Mr. Ron Young (see tr. 1/120; see also R4, tab 38 ¶ 7), who was the Director of the OSD-RA Family and Employer Programs and Policy office (R4, tab 38 ¶ 3). Rather than accomplish this through a direct contract with Futures, on September 28, 2011, OSD-RA awarded a contract to Hooah LLC (Hooah) 3 to provide the website that would help military reservists obtain civilian employment. 4 Futures was the nominal subcontractor to Hooah and ran this site, the H2H.jobs 5 site, through its Pipeline technology. (R4, tab 1 at 1, 7-11; Joint Stip. ¶ 3) The URL for the website, H2H.jobs, was owned and controlled by OSD-RA (tr. 1/222-23). The period of performance for this contract (the Hooah contract) was one year (R4, tab 1 at 3). III. After the Award of the Hooah Contract by OSD-RA, the Active Duty Army and Futures Agree to Opening the H2H.jobs Portal for use by Active Duty Soldiers and Actively Encouraging its Widespread use As discussed in this section, Futures performed more work than was required by either the Hooah contract or a successor contract with TASA Information 3 The record does not directly tell us why OSD-RA chose to obtain the Pipeline services from Hooah rather than directly from Futures. Hooah was an “8(a)” contractor, however, and Futures was not (tr.1/115; 1/119). We take judicial notice of the fact that contracting through the 8(a) program can significantly streamline the contract award process, subject to certain limitations. 4 The entity that effected the award was the Defense Human Resources Activity (DHRA) (R4, tab 1 at 1), but the parties have recognized in their Joint Stipulation of Undisputed Facts, that the DHRA-awarded contracts were effectively awarded on behalf of OSD-RA (see, e.g., Joint Stipulation of Undisputed Fact (Joint Stip.) ¶¶ 3, 4). 5 “H2H” is short for “Heroes to Hired” (tr. 1/188; Joint Stip. ¶ 5). 3  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. Technology, Inc. (TASA). It did this intentionally and with the knowledge of the Army, with both parties hoping that it would inure to their mutual benefit. A. H2H.jobs is Opened up to the Active Duty Army The evidence before us supports our concluding that OSD-RA, the Army, the two prime contractors, and Futures supported a no-cost expansion of access to the H2H.jobs website to include not only reservists, but active duty members of the military. Mr. Walter Herd, who was the National Director for the Army’s Transition Assistance Program (TAP) and started that job sometime in late 2010 or early 2011 (see tr. 8/6), testified about meeting with Mr. Cramer at Fort Bragg shortly after taking the TAP position (tr. 8/14-19). This would have been some time in 2011 or 2012 6 (tr. 8/14; see also tr. 1/112). During this meeting, Mr. Cramer demonstrated the H2H.jobs site to Mr. Herd. Mr. Herd testified that Cramer was “adamant” that he wanted it to be free for everybody and that it was at no cost to the Army and that it was, in fact, in everybody’s interest that more soldiers use it so that more companies would be incentivized to utilize the platform. (Tr. 8/15-16) This version of events was contested by Mr. Cramer, who testified that he was not, in fact, “adamant” to Mr. Herd that he wanted the website to be free to all service members, active and reserve, at this meeting because the OSD-RA contract did not yet exist (tr. 1/120). Mr. Cramer did not, however, directly testify that he had never said such a thing to Mr. Herd. Later in his testimony, Mr. Cramer testified that Futures was instructed by OSD-RA not to “gate” the system, meaning that it was to allow all service members, not just reservists, to have access to it (tr. 1/262). When he was cross-examined on the subject, however, he could not identify who made that direction (tr. 2/5). 6 Mr. Cramer testified that his first meeting with Mr. Herd would have been at an October 2010 meeting in Washington, DC (tr.1/112), which is consistent with the parties’ Joint Stipulation of Undisputed Facts (see Joint Stip. ¶ 9). The parties’ Joint Stipulation of Undisputed Facts also provides that they met on December 16, 2010, at Fort Knox, KY (id.). Since the meeting, as Mr. Herd described it, involved a demonstration of the H2H.jobs site and as discussion of the OSD-RA contract, and as Mr. Cramer testified, the site was not running in October 2010 and the OSD-RA contract was not in existence at that time (tr. 1/112-13), we find that the meeting at Fort Bragg that we are discussing here most likely took place some time in late 2011. Moreover, we find it plausible that the vagaries of memory may have been such that a discussion between the two happened in late 2011, but that it was not at Fort Bragg. 4  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. Mr. Cramer’s allegations about directives from OSD-RA, in turn, was contradicted by Mr. Dan Allen, who ran the H2H program for OSD-RA at the relevant time (tr. 7/94). Mr. Allen testified that he had been forbidden by his superiors from using the OSD-RA contracts to provide services for active duty members and had so informed Mr. Cramer (tr. 7/98-101). According to Mr. Allen, Mr. Cramer was reluctant to limit the access to H2H.jobs because it would let down the active duty service members who needed help (tr. 7/102-03). Indeed, Mr. Cramer agreed with this version of events in his own testimony, except that he emphasized that he believed he had a deal with the Army that he was obligated to honor (tr. 1/232-33). Mr. Allen further testified that he had raised the issue on subsequent occasions, in particular, seeking the removal of the “active duty” button from the website (tr. 7/102-03). Mr. Allen, however, also testified that at a later time, he became aware that Futures was providing free services to active duty members, not under any contract, but as a “proof of concept” to obtain more work from the Army (tr. 7/105-07) and that he had been encouraged by his superiors to stay out of Futures’ way as it attempted to obtain business from the Army for active duty soldiers (tr. 7/108-09). From the testimony before us summarized above, it appears that OSD-RA made some efforts to keep the provision of services to active duty members from being characterized as part of the Hooah and TASA contracts, but, having made the point, did not go out of its way to prevent the provision of these services voluntarily by Futures, which both sides saw as serving their interests. Mr. Herd and Mr. Allen were not the only witnesses to testify that Mr. Cramer had encouraged the use of the OSD-RA-provided H2H.jobs by the active duty force. Lieutenant General (LTG)7 Jason Evans, who was the Army Adjutant General from July 2011 through March 2013 (tr. 5/110), testified that he was at several meetings in which both OSD-RA officials and Mr. Cramer, himself, encouraged the use of the H2H.job site by active duty members (tr. 5/157-59). LTG Evans testified similarly to Mr. Herd, that part of the motivation for opening up H2H.jobs to more people (i.e., active duty members) was the notion that it would provide better results (tr. 5/157). LTG Evans testified that, in general, he had viewed the use of the website by active duty members to be free of additional charge and that subsequent contract actions on the active duty side were aimed at getting things not already provided, such as metrics of success (tr. 5/135-36). 7 At the time he was Adjutant General, LTG Evans was a Colonel and then promoted to Brigadier General (see R4, tab 59 at 1 (COL) and R4, tab 103 (BG)). For consistency, we will refer to him as LTG, the rank he held when he testified before us. 5  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. The clanging absence in the record of contemporaneous complaint from Futures about the matter 8, when it was clear that the website was being made available to all, combined with the plausibility of Mr. Herd’s testimony as supported by LTG Evans’s (i.e., it would make sense that H2H.jobs with more users would be more appealing to businesses, and this does not seem to be the kind of rationale that Mr. Herd would have fabricated out of whole cloth) give us cause to believe Mr. Herd’s version of events is more likely than not accurate. We hasten to note that we make this judgment without needing to conclude that Mr. Cramer made an intentional misrepresentation in his testimony because it is not at all unlikely that Mr. Cramer was correct when he stated that he had early meetings with Mr. Herd in 2010 in which universal access to the portal was not discussed. Further supporting our conclusion in favor of Mr. Herd’s version of events is the fact that we have observed nowhere in the record any complaint from the erstwhile prime contractors (Hooah or TASA) about the expansion of access of the H2H.jobs website to active duty members. 9 To the contrary, the record includes an undated document from TASA in which it boasts of its dealings with OSD-RA in which it provided access to the H2H.jobs portal to “employers and veterans at no cost” (R4, tab 57 at 1; see also Joint Stip. ¶ 27 (recognizing it to be a TASA document)). We add an important note for context, which helps explain why the notion of opening up the H2H.job site to active duty members was not as significant a change as it might seem and why Army leadership did not perceive it to radically alter the requirements of the OSD-RA contracts: the vast majority of active duty soldiers transitioning from the Army to civilian life joined the reserves. The reason for this is not solely patriotism, but that the typical Army enlistment contract included a requirement that active duty be followed by a set period of reserve duty. There was testimony at the hearing that 85% of soldiers leaving active service joined the reserve component. (Tr. 8/8) Of course, as reservists, they would have had access to OSD-RA programs, like the Hooah and TASA contracts. Moreover, and very importantly, those soldiers who were only on active duty and would not become reservists did not (as will be noted later in this section) have access to the same suite of services provided by the Hooah and TASA contracts to reservists, further 8 Not only has Futures failed to provide any evidence of complaint, but the cognizant contracting officer testified affirmatively that she had no recollection of such a complaint (tr. 7/70-71). 9 Futures might argue that it did not complain because (as discussed below), by the time of the site’s widespread use, Futures thought it had a contract with the Army to cover active duty use. But this would not explain the silence of the prime contractors (even if Futures did the majority of the work) nor would it explain silence lasting over several years during which no invoice was submitted nor payment made. 6  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. diminishing the relative impact on Futures of its opening the H2H portal to the active duty Army. B. The Army Internally Decides to Pursue a Single Employment Portal for Veterans – the one run by Futures – and Advocates for that Solution Government-Wide At about the time that Mr. Cramer was urging Mr. Herd to make the portal available, free of charge, to all, outside events were making the broad availability of the portal of greater importance to the Army. This began, at least symbolically, on November 21, 2001, when President Obama signed Public Law 112-56, the Veterans Opportunity to Work (VOW) to Hire Heroes Act of 2011 (Joint Stip. ¶ 14). On November 22, 2011, then-BG Barrye Price 10, who had recently met Mr. Cramer and been favorably impressed with the H2H.jobs platform (see tr. 6/142- 45), asked Mr. Cramer to send information about navigating Pipeline to him so that the Army Vice Chief of Staff (General (GEN) Chiarelli) could play with it over Thanksgiving (R4, tab 46 at 1-2). Later in the same email string, BG Price invited Mr. Cramer to attend the Army “Transition Summit” to be held at the Pentagon on December 5 and 6, 2011, so that he could demonstrate to the attendees how the Pipeline system worked (id. at 4; see also tr.8/48-49). Mr. Cramer agreed and was placed on the agenda to make his presentation on the afternoon of December 5, 2011 (R4, tab 49 at 1; see also R4, tab 50 at 3 (slide identifying Cramer as the person to do it)). As will be discussed below, according to Mr. Cramer, this was the meeting in which Futures was awarded the contract to provide support for active duty members for which it seeks recovery today (tr. 1/245). We read it differently. This was the meeting where the bureaucratic lines were drawn between the Army and other federal agencies with Pipeline/H2H as the alternative that the Army preferred as an employment portal, but no contract award was actually made. We draw these conclusions based in large part upon Mr. Cramer’s own testimony. Mr. Cramer testified that during the meeting, the attendees discussed how they were going to implement the VOW Act. Representatives from the Department of Veterans Affairs (VA) and Department of Labor (DOL) proposed that their two agencies handle matters on behalf of the Army and recommended that transitioning soldiers be essentially sent to them. (Tr. 1/130-31) It is fair to say that the Army did 10 BG Price, at the time, was Director of Human Resources Policy in the G-1 section (tr. 6/137). We take judicial notice that the G-1, is the Deputy Chief of Staff for Personnel (see also tr. 3/147 (G-1 is “the chief people officer”)) and that the Adjutant General reports to him or her. 7  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. not like this approach. LTG Thomas Bostick, the Army G-1 at the time (see Joint Stip. ¶ 24), told the attendees that the Army did not concur with the VA/DOL proposal and that it wished to follow a different approach (tr. 1/131). A little later, GEN Chiarelli, elaborated that the Army had evaluated the solutions proposed by those agencies and that they did not work; however, (as Mr. Cramer testified), “he told them that the Army had selected H2H and Futures to provide the universal transition solution for soldiers.” After that surprising 11 statement by the General, Mr. Cramer demonstrated H2H to all persons present. (Tr. 1/132) After the demonstration, GEN Chiarelli re-iterated his view that he was responsible for soldiers until they separated from the Army, and that the VA and DOL would not be involved with them until that point. The VA and DOL representatives were apparently still surprised at the turn that things had taken that day, and the VA representative (Mr. Gingrich, the chief of staff to the Secretary of Veterans Affairs) proposed that the VA perform its own evaluation of the Futures technology compared to the VA’s National Resources Directory. GEN Chiarelli responded by stating that he liked the idea of “a good Coke-Pepsi test” even if, as far as he was concerned, it had already been done and the Army solution of Futures was the way to go until the VA and DOL “[got their act] together.” (Tr. 1/133-34) We will return to GEN Chiarelli’s version of “the Pepsi challenge” shortly. In the meantime, Mr. Cramer and LTG Bostick were excused from the meeting during which time LTG Bostick told Mr. Cramer what a good job he had done. According to Mr. Cramer, LTG Bostick further explained, in the context of GEN Chiarelli’s announcement during the meeting that Futures had been selected to perform services for the Army, “that his office would handle the contracting and the paperwork, that they would expedite everything out of his office.” (Tr. 1/135) Mr. Cramer testified that this all came as a surprise to him because he had thought he was going to the meeting to perform a demonstration, rather than get awarded a contract. Indeed, he ultimately conceded that he did not believe a contract was actually finalized in this meeting because such things as cost and time of performance were not discussed. (Tr. 1/245-47) Mr. Cramer would later testify that he had subsequently set forth the cost to LTG Bostick in “round numbers” of “approximately $8 million a year” (tr. 2/12). This discussion, though, was not in writing, and Mr. Cramer described it as “roughly” that amount (tr. 2/13). Moreover, when he discussed the $8 million figure in his testimony as something the Futures had “always told the Army,” the breakdown of upfront costs and monthly maintenance fees (see tr. 1/142) looks very much like the formal proposal 11 The parties have pointed to no evidence, written or testimonial, that GEN Chiarelli had shared this determination to use H2H and Futures prior to this meeting. 8  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. that was submitted near the end of 2012 that we will discuss below and which included substantial upgrades compared to what was provided by piggybacking onto the OSD-RA Hooah contract (see discussion in Section V. A., below). Except for unrelated job fairs to be discussed further below, no figure, much less, the $8 million one, is to be found in any writing before the proposals in so-called “white papers,” also discussed below, which came in late October 2012. Nor has anybody but Mr. Cramer testified about it. Putting this all together, we are skeptical that a firm $8 million cost figure was set forth by Mr. Cramer in late December 2011 or in 2012 before late October and find, more probably than not, that it was not. Adding to our skepticism about an oral contract being awarded by the Army in this time frame, we have no testimony from LTG Bostick in this matter nor from GEN Chiarelli in support of such a finding. LTG Evans, who was present during Mr. Cramer’s presentation, testified that he heard no offer of a contract to Mr. Cramer at that time, though he did not purport to be present with Mr. Cramer and LTG Bostick during the time that LTG Bostick purportedly promised the contract to Futures. Moreover, according to LTG Evans, neither BG Price nor LTG Bostick ever told him that the Army had contracted with Futures and nothing he observed in the transition summit meeting gave him cause to believe that such a contract had been promised or awarded to Futures. (Tr. 5/160-62) Nobody at the transition summit was a contracting officer (tr. 1/246). Moreover, there was no evidence presented, whatsoever, that any immediate action was taken by the Army on this “contract award.” Futures never once in the course of two years submitted an invoice to the Army (tr. 1/220). 12 Thus, though we do not doubt that Army leadership was enthusiastic about the H2H.jobs portal at the time of the December 5-6, 2011 summit, we view GEN Chiarelli’s announcement of its “selection” by the Army as premature – perhaps posturing to forestall the imposition of the VA/DOL solution. In fact, in a near contemporaneous email sent on December 10, 2011, Mr. Cramer recognized just how contingent everything truly was, voicing his concern that the “bakeoff” would be a “trap” because “VA would do everything in their power to crush and discredit us to be the national portal” (R4, tab 53 at 2). Our interpretation of the contingent nature of the Army’s decision making is reflected in a follow-up briefing to GEN Chiarelli from COL Mason of Army G-1 on the afternoon of December 22, 2011. Present at this briefing were the VA Chief of Staff and a representative from the DOL. (R4, tab 52 at 1) The briefing slides state that the DOD-VA task force was still “reviewing 3 applications for single application 12 Futures asserts in its post-hearing brief that it wanted to get paid and that it said so to the Army several times (app. br. at 37-38). But expressing a desire for money – which is the point of seeking a contract award – is not the same as submitting a specific request for payment under an existing contract, which never happened here. 9  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. (portal) for employment: Veterans Job Bank (VA), My Next Move (DOL), and H2H (OSD-RA/Army). Voice of the Soldier assessment favors H2H which best enables outreach component proof of concept. TF [task force] review ongoing.” 13 (Id. at 4) (boldface type as in original) This particular slide added in its next bullet point that, “Army prepared to leverage OSD-RA-H2H application to connect Soldiers with private industry; will work parallel/bridge with TF solution” (id.). A later slide referred to “Hero 2 Hired connection to private industry jobs” as a component of the unemployment compensation solution (id. at 7), while the slide after that, discussing the element of the transition, indicated one task (apparently to come) being: “Select the application to serve as the primary location Soldiers and Veterans can connect to potential employers 24/7 worldwide” (id. at 8). The final slide in this presentation, entitled “Way Ahead” included a task labelled “Single Application (Portal) for Employment Implementation Plan.” The “lead” for this task was the Task Force (not the Army) and the status of the task was stated as “Army functional requirements submitted. TF to determine milestones.” (Id. at 12) In total, these slides made a few weeks after the December 5 and 6 meetings, are consistent with a desire to use Futures by the Army, but no finality and certainly nothing resembling a firm agreement upon terms or a meeting of the minds. These slides also show that the “Pepsi challenge” was about a survey of which portal the soldiers liked better, not a formal competition where potential service providers were given an opportunity to compete for a contract, prices and other considerations were considered, and a contract award made (R4, tab 52 at 10). A document in the Rule 4 File entitled “Coke-Pepsi Survey Results” confirms this, inasmuch as its 55 pages reflect head-to-head comparisons of H2H and another portal from the individual user’s perspective, but nothing about costs or programmatic issues (R4, tab 51). C. H2H is Adopted as an Interim Solution for use by the Army Though the VA and DOL appear to have been taken aback by GEN Chiarelli’s announcement about the use of H2H.jobs as the portal, it is clear from the discussion of the December 2011 transition summit above and the follow-up briefing for GEN Chiarelli, that even at the December 5, 2011 meeting, these two agencies did not agree to subordinate their decision-making on the portal to the Army and that the decision would not be made on the basis of Mr. Cramer’s brief demonstration of the portal at the transition summit (indeed, as will be seen, the VA and DOL would prevail about two years later). That said, as discussed below, the Army obtained authority to 13 The “Coke-Pepsi” survey results reflected in another slide in this presentation showed a marked preference for H2H compared to the other alternatives tested (R4, tab 52 at 10). 10  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. use H2H.jobs as its interim portal solution until the task force made a final decision one way or another. On Feb 10, 2012, LTG Bostick sent an email to BG Price explaining that he would be briefing the Chief of Staff of the Army (the CSA) the following day and that he needed to make a final decision about where to tell people to go for the employment portal. BG Price was directed to make an appropriate slide for that briefing. (R4, tab 55) The briefing slide presented the next day didn’t quite make a final decision. Instead, it reflected that there were many portals in the “garage” available for use, including H2H, but that by the end of Fiscal Year 2012, they had hoped to have just one, though which portal it would be was to be the decision of the task force. The text of the slide ended by stating that, “Until DOD completes its recommendations, Army has proposed H2H as an interim solution.” (R4, tab 56 at 19) By March 2012, the use of H2H.jobs as an interim solution for the Army was official. On March 8, 2012, the TF ESC (executive steering committee) agreed that the Army was “free to proceed with the of use H2H on an interim basis” (R4, tab 58 at 2). The next day, there was an email from COL Ed Mason stating to a number of recipients that “[a]t this time, the Army is implementing www.H2H.jobs as our interim solution.” This email would be forwarded by Mr. Young of OSD-RA to Mr. Cramer as an “FYI.” (R4, tab 58 at 1) At about the same time (March 9, 2012), LTG Bostick sent an email to GEN Raymond Odierno (the CSA) and GEN Lloyd Austin III (the new Army Vice Chief of Staff, who succeeded GEN Chiarelli) informing them of the decision to use the H2H portal. GEN Austin commended LTG Bostick for his “great work” and urged him to “get the word out ASAP.” In response LTG Bostick conferred with LTG Evans about the best way to do so. LTG Evans recommended the use of a so-called Fragmentary Order (or “FRAGO”) to the already existing transition execution 14 order (or “EXORD”) and the use of a “GOMO Sends.” 15 LTG Bostick agreed with the LTG Evans’ recommendations, though he posed an interesting question (for our purposes) to BG Price that does not appear to have been answered in the email record before us: “I need to understand if there are any funding issues related to this, or if OSD RA is covering all costs.” 16 (R4, tab 59 at 1-3) 14 On occasion, some witnesses or attorneys referred to an EXORD as an “executive” order, but in fact, it is an “execution” order (see tr. 5/112-13). 15 “GOMO” is the General Officer Management Office and “GOMO Sends” is an email communication that goes out to all General Officers (tr. 5/169). 16 We remind the reader that this question was posed on March 9, 2012, by LTG Bostick who was present with Mr. Cramer during the December 5, 2011 briefing and his subsequent meeting with GEN Chiarelli during which Futures alleges a contract was made. It can and should be taken as evidence that no agreement between the Army and Futures was made at that time and that it was seen as plausible by Army leadership that the existing contractual 11  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. An important post script to this decision-making is that, at a transition summit on May 22-23, 2012, the TAP was transferred from BG Price’s purview to LTG Evans’s as the Adjutant General. The reason for this was basically that BG Price’s job was more policy oriented, while LTG Evans’s position as Adjutant General was more operational. (Tr. 5/173-74) D. The Army Publicly Embraces the H2H Portal It is undisputed that the Army went “all in” on the H2H.jobs portal and that, true to the direction from its highest leadership, widely promoted the use of the H2H.jobs portal in many instances throughout 2012 and into early 2014. A non-exhaustive, but representative, 17 list of actions follows: The FRAGO recommended by LTG Evans was duly issued (the parties did not stipulate to a date for the FRAGO, and there is no date apparent on its face (see R4, tab 60), but it appears to have been in mid-March 2012), stating that H2H.jobs was selected as the primary location for soldiers to connect with future employers (see Joint Stip. ¶ 35). Additionally, information about the selection and availability of H2H.jobs was widely circulated to Army leadership (see, e.g., R4, tab 67 at 17 (Senior Leader Forum); R4, tab 69 (email from LTG Bostick to fellow generals through the GOMO informing them of the H2H.jobs site and encouraging its use) 18). Moreover, the Army issued several press releases about H2H.com, including, but not limited to, a March 20, 2012 Army News Service article (see R4, tab 62); an almost identical article on the “Soldier for Life” website (see R4, tab 64); and a re-posting of the article on www.army.mil. “the official homepage of the United States Army” (see R4, tab 65. LTG Evans appeared on FOX News on September 20, 2012, and mentioned the program (see R4, tab 102). As late as April 10, 2014, Mr. Herd mentioned the H2H.jobs portal in a relationship between Futures and OSD-RA would address the Army-wide use of H2H.jobs. Coming as it did, well before any dispute arose between the Army and Futures that could conceivably color LTG Bostick’s posture, the existence of that question is particularly salient. It is also another nail in the coffin holding Mr. Cramer’s allegation that an $8 million price had been discussed amongst the parties. 17 Additional articles and communications may be found in the parties’ Joint Stipulation of Undisputed Facts, which we have reviewed carefully and considered in making our decision today, but omit here because they do not materially alter our findings and the reader does not need even more additional and repetitive details. 18 With respect to the GOMO Sends, LTG Evans testified that it would never have been sent if access to H2H.jobs for active duty members was seen as requiring an additional contract, because promising such a contract would have been beyond the Army’s authority (tr. 5/171). The same concern would apply to any other public statement the Army made regarding H2H.jobs. 12  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. speech to a Tennessee Rotary Club (Joint Stip. ¶ 338). Reference to the H2H.jobs portal even made it into Congressional testimony to the Senate Appropriations Committee on March 21, 2012 from the CSA, GEN Odierno, who identified H2H.jobs as the Army’s “official employment portal” (R4, tab 63 at 2) and LTG Evans, who testified to the House Veterans Affairs Committee in September 2012, though about job fairs, rather than the portal (Joint Stip. ¶ 104). IV. Actions Taken by The Army in Furtherance of VOW Act Compliance After it Adopted H2H.jobs as its Interim Portal A. Pilot Job Fairs Part of the suite of efforts to help transition service members to civilian employment was the holding of job fairs at