talking about the folks from oklahoma certainly your honor for me is that how i have described that particular better well your honor i had i had a vision trying to to refer to the appendix page number are those proposal in violation of the fars requirement for fair treatment of on force this disparity valuation manifested itself in two ways the agency allowed at least to offer oars with perceived flaws in their accounting verification right that is correct your honor there was at least one offer or that received go ratings under face two or excuse me under the second criteria that the agency below had indicated there was a new g a correct your honor and another admission that we did not have below was was perhaps that what was showed most recently in the government's most recent finally before that before this court in september this summer the clarification under the first phase one go no go criterion and in our mind supports our argument that those six offer or at least we don't know that we have to given the facts behind them we don't know that that's correct that's correct but but for tests we do not have to show but for the areas the agency that we would have won with a contract winstead what we think that we have to show is that we would have had a substantial chance of receiving the award it here certainly we believe that if we were allowed the opportunity to proceed to fail to do that you knew all this you don't have you didn't make any record on a substantial chance of prevailing on prejudice moyo well evaluation keep in mind that's all we're asking for here is the opportunity to compete under face to we're not asking for a contract award we're just not my problem has been in the you have in the nature of what the government is now the agency could be compelled to actually reevaluating our proposal under face to again that's that's all we're asking for here we were the agency didn't know and then you wait our proposal were free alliances proposal under the phase two with the haitians he said you didn't provide adequate documentation that your accounting would be satisfied as factory as shown by state prop a statement on the letterhead of a c p a the agency has said agency's decision was was improper if you look at the accounting verification forms that per that were provided by free alliance at appendix page six pages forty one and forty two they provide the substantive information that the agency needed to evaluate a firm in the contact information that's basically the information that is required for the letterhead the only thing missing that might be a logo but even if the letterhead argument was determinative for or found against us i got to judge newman you're talking about sixty one yes sixty one this was a company that is not on letterhead and that was alternately that company was awarded and show them basically what was happening was we were receiving if you're trying to assess whether that was a look would you give us enough information for us to know where we could you know that's correct and one of the requirements was he had to have your accounting system tested for different criteria under phase one the first was compliant proposal and we have seen a litany of offerers who did not meet those requirements and then you are correct that the other criterion is if in accounting system now unfortunately there just weren't that many offerers who received either passing marks on their criterion one and no marks or failing marks under criterion two in fact go under criterion two i would also point to i i realize might not like you and i was also going to point out to the court with when we looked at at the verification of the accounting forms to your honor's point this certainly does seem to have been all over the map for it with regards to the forms that some offer was provided if the court were to look at appendix page fifty fifty seven excuse me this is for  accounting verification form that says it's basically this offer or this company its accounting form is adequate to prepare their taxes at the end of the year and that is not acceptable accounting system that accounting form was found to be adequately at least as as part of appendix page sixty six when the government below has said well this there was another big protest about this case so we can't really talk about it but the record you have had before which is the government's admission that someone was competing with you at phase one also flunked accounting but they would have been allowed to go forward but for the fact that they flop some other test just like you are on the accounting issue right yes but that's no harm to do because they didn't make up for well and we i disagree with that you know i thought it might be my red light is on so i can either address it now the question so i certainly agree that had we had that same opportunity or if our proposal had been evaluated equally as was our friends from oklahoma as you call them then we would have proceeded on to face two and that is the was too narrow in that it focused on each individual criterion to learn to recognize the possibility of disparate treatment a question yes i have yes and he said well this is pretty troubling but i think i have an answer here is to lie don't have to worry about prejudice we were evaluated under the best value interface to and ultimately made an already we're not asking for anybody's award to be taken away we are asking to be added to the pool of g whack holders in this case is just like free alliance and then they both failed the accounting test yet they're both family and a friend from oklahoma also failed the s was no injury that is correct with the correct result be we were to decide that there was disparate treatment here with regard to the accounting issue going to finish to with the correct result be to vacate and send it back and i have a prejudiced examination at the court below i i don't under that hypothetical yes but that is not the factual situation that we their initial review of the documents we really do not know here what would have happened if my belief i'm sorry of home if oklahoma had been found compliant with the second the contracting officers to write up the basis for evaluation for competition so you have to have he had to pass both however in a lot of the far right i under but the record in front of us my point is that that the way that the contracting officers tackle makes up his mind right they didn't necessary or necessarily go back and review initial findings if they reached final the challenges with the administrative record in the way the right up to and so he knew that there was a problem and he said i don't have to worry about that the obama flunked never made it to finish to correct that was the that's what the opinion isn't choos we can see that they're non compliant your honor and there's a perfect world the contracting officer would have carried over the preliminary findings and polished up the final findings that include an every single  reason for exclusion it just wasn't done in this record it's not the way that the contracting officers decided to approach it but i can represent to the court based on my knowledge of this record and also based on the fact that plaintiff hasn't been able to point to any offer or that didn't have a complaint accounting verification that moved to face to none none of them moved to face to do with the  compliant accounting verifications none of them so when three alliance claims that there were some that had deficient accounting verifications that moved when on to  forms that were submitted that couldn't have been a letter and even though they were signed by a c p a and those accounting verifications were deemed acceptable as they should have been because the minor and the contracting officer in this case specifically in the solicitation retained and the ability to wait for minor errors and irregularit form some submitted forms signed by a c p a so no two submissions were identical however i can point to the court to pay twenty one of the s and it contained more substance than three alliances forms contained and they were rejected so that this for treatment argument doesn't work in this case because i information it wasn't letterhead and it was and they didn't contain any substance for both the c t a partners there was nothing that the government could have done with those forms other than reject the another you know face factor number two and yet when we look at the final findings they are not you know that there is no longer contract what are the final findings the final findings are the write notes they don't necessarily make it to a final stage if they were found noncompliant unfactored to the criticism notes from factor one so there was going as your prejudice is a separate issue but you address once there has been hard core armas from being treated differently but before you can show that you have been treated differently you have to at least make a finding my my friend is right that that in one sense that the law does not require a pyramid to be perfect but the law does require approval to be fair and i think is this court is articulating this a certainly was anything but as it relates to freelance when we look at page eighty seven of the appendix a cited by the government there is no information in that page that articulate the government had any concerns whatsoever with the accounting verification forms submitted by our friends from oklahoma and though the government says these were pre disposition all documents judge clevenger i believe you're correct that this is the record that we have before us and that page sixty six and sixty seven the government of the day has said below in articulated to give here that just because an offer was found to be no go under one criterion does not necessarily mean that the record would reflect that it was found to be no go under the other but if we look at pages appendix sixty six and sixty seven we see that there are six awful that are no go under both criteria so that certainly tells us that contrary to if it no it also noted that there were noncompliance and or criterion to it noted that is another reason to find offer as to be no go so so the argument that that perhaps this this doesn't matter that it wasn't really equal because you know the government had found them to be non compliant under a different criteria and i don't think is actually borne out by the how the record suggests that the about you ation actually took place we have pointed out in our briefing where some of these other deficiencies took place because if the court were to look at page appendix sixty one again this is this is a accounting verification form that was submitted by a company that is not on letterhead and yet this company was and ultimately named in a war of the as the government's most recent filing shows so they obviously proceeded to phase two even though they had a non indicated on page freelances forms at appendix pages forty one and forty two indicated the c p a and section three who were actually on their their records and attested to their accuracy  similar pages excuse me fifty eight appendix page fifty eight this is an accounting verification form for another award eight and though this one this county verification form is on letterhead the substance