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Marian Horn

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Court of Appeals for the Federal Circuit

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2014 - present
Marian Horn

Appeals Court Judge

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Marian Horn Oct 4th, 2018

instead of asking about commercial items, or asking more open-ended questions about the approach to the procurement, potential respondents only were asked about developmental projects similar to the existing DCGS-A1 program, the Army had not carefully considered whether commercial items were available.

This does not meet the minimal requirement of demonstrating that the defendant conducted a genuine inquiry that could enable it to reach a rational conclusion not to consider commercial items, even after Palantir had urged the Army to consider its product as a commercially available alternative.

Here, the administrative record plainly shows that the Army was on notice that Palantir’s product might be a commercial item that would satisfy its requirements, whether as-is or with modifications. Despite that notice, the Army’s ultimate determination regarding its market research excluded commercial items from consideration in a conclusory fashion. On this record, we conclude that the Army did not rationally use its market research results to determine whether there are available commercial items.


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