pace's number thirteen ash fifty phoenix management inc versus united states people had to work for the better is that what it is you know the misrepresentation that we've asserted through g a o and that the court of claims was that the did not have the permission to use the credentials for the individuals who they put in their proposal but where they were represented they did they did they did the contracting officer investigate binding and related descriptions contradict the contemporaneous notes taken during the interviews which do not confirm that the employees provided permission prior to going to emphasize that the submission how does the failure in those notes tests use those words prior to amount to a contradiction the timing of when those three individuals that were interviewed gave permission to use their credentials is critical if at least in our opinion and the reason why but how is it contradictory how are those notes contradictory because it doesn't say that the consent was given prior to it just says it's a temporal argument the statements that the contracting officer was using to determine whether consent was given prior to was made after of course did submission and after the initial reader award during the context of corrective action so after all those things took place what happened was the contracting officer went back to the war said can you tell me when where and how you got permission to use these credentials there was the one to one paragraph boilerplate response that was given by all representation of the response to its bid for the government's bid about consent is no representation right but i believe these three pages eighty six eighty five and eighty four is the awardees response to the contracting officers concerns about whether there was consent made with respect to these these credentials what's the misrepresentation the misrepresentation in th more the had permission to use or is that representation of hearing about they had permission this is a mission of the credentials themselves as we mentioned of the credentials yes and it remember an assertion what does that submission itself is an assertion that they had permission to use just kind of as a matter of law yes it was under the restatement of misrepresentation it talks about an assertion can be a statement as we're required to do right spot what about why why it is the manner by which they came by nice credentials even real i don't think the fully intended to offer them positions and say that we're confident they are going to take them there's nothing in the differences and we're obliged to offer these to people these positions and we're going to do so where is where's the untruth in that that they had permission to use but i did in the huge thing i said i was careful to not include a representation and o by the way they gave us permission out their statements would seem to indicate that the ones that they want to do just refer to it would seem to indicate that they did give permission in advance of the proposals but what about the representation there was a just lack of ok it's the representation or suggest permission but it's the the representation is whether they had permission to use it but that that that representation is not specifically made in this dr right that's correct you know where then is it implicitly it's implicitly made based upon the case well that talks about look in order to have an a even playing field in any type of chairman we need to make sure that everybody commutes on equal basis you cannot simply put people into your proposal that you didn't their facts are those are situations in which people affirmatively said we would go to work for the for the new contractor or we refused to give our credentials we don't have that situation here there hasn't been a statement they would refuse to work with the new contractor and there's not even a statement that they refused to provide the credentials not with respect to the three individuals we're talking about with the group with respect to the other two individuals there was a specific after the fact after the fact yes this is this was part of the motion to supplement and it was a declaration that was attached to the to the complaint and then the contracting officer is concerned enough to go on top of them and the contracting officer describes the interviews and you say that his descriptions contradict his can contemporaneous notes and that bothers me intensely because i don't think they do in the slightest of it there's there's five people we're we're talking about a big three of them were but those were not those who were not among the group of three that the contractor the two nixon usually said you've used these three without their permission my  initial as i understand correct me if this is not correct nine percent phoenix comes up and says that you have used three names improperly and the c e o goes and talks to those three people no another i would agree to because there was a disconnect between what we originally submit and what the c e o eventually found out in its o c on the n p a investigations ok but you're not from about the other two you submitted those are the those are the statements yes fourteen for the record remit is a fourteen eighty seven in fourteen eighteen or in the reason why the but this doesn't say what you said where does it say they refused to allow the use it's a declaration again confirmed and clarifies i never authorized the use of my licenses and certifications in any one of a different state that's not a state and they potential they involve situations in one of the cases where the person actually said i will not work for the new contractor in the other case lisa said i was asked to provide my credentials and refute leading t potential inference that he would work well i think our situation is a little bit more it's a little worse if i don't want necessarily an offer more to hide behind the ball i'm not contacting people and then just submitted i think what you're what you're referring to your honor is well these people never really stood up and said hey look all off roaders out there i don't want you to submit my credentials i'm going to only submit my credentials under this proposal  contracting officer determined that right really happened is that indeed they were contacted the least the three people with whom we spoke and gave them permission and then your  i disagree because the other two weren't under our control so i don't believe there's any evidence that the two that were not in or had three isn't it clear that what the contracting officer good term is that these products are working for your client are contacted by your client backed off from their prior given permission isn't that what they did contact an officer determined yes based upon the three written statements offer the position to your incumbent employees so i see that i say i'm going to offer this position to the incumbent employees the government doesn't say in the you have to show us that it's committed government just says who are your prospective employees isn't it what is what more should i be required to do other than to say i intend to offer the job to the prospective employees if i think it depends on each solicitation what and then then suppose that the solicitation that i'm talking about is exactly this issue what about this solicitation no language that you need to provide written commitments or with your proposal i agree with that however based upon the context of this was patient language itself it says you need evidence evidence that each proposed staff member did not interview the two u r s employees at that point in the investigation after their statements were provided by phoenix to the g a o once every twenty eighth two thousand and twelve she had already determined by that point he already had the evidence before him he had a statement from the president of a t f that they had voluntarily the five incumbent boys in voluntarily provided their credentials and authorization to the contract manager there was also the statement from the contract administrator for santa barbara flight research being common contractor which confirmed the representations made by the president of a t f and that statement is on the record of the responding my question why not go interview other people since there seems to be a question about whether they had been visited these things allowed them to be submitted or not i think because he had a rational basis at that point is investigation decided based on the four sponsors provided by atheists and santa barbara and the interviews with these three phoenix employees were recently interviewed them based on their conflicting statements from phoenix and e t s in phoenix his own employees at that point had until had informed him during the telephone interviews on  two thousand and eleven that they had voluntarily provided their credentials to us using a proposal but that they signed statements from phoenix when their contract manager from phoenix asked them to sign on and that they fear retribution for phoenix and they fear for their jobs so i think at that point with his own employees told him that they had signed statements for fear of retribution from phoenix if they didn't sign that then two months later when contracting officer to rely on the representations made in those statements and it was reasonable to get a recent baby into the line with the effect of the first three well he interviewed the first three basing their conflicting statements because at that point of investigation well he ended up w conflicting statements from the other two also that is correct your honor he did after the initial protest submissions in november the response from a t f and some further it is correct in a supplemental submission there were twenty eight pm i did finally provide the statements from u s employees which contradicted their december first date we have the nay twenty second statement so far and the right time where are the earlier trier of fact and determines when somebody lied once that they're going to lie again that's correct your honor it's also important of that the trial court here correctly concluded that the contracting officers finding that the proposed staff members voluntarily authorization and copies of their credential to the contract manager for a t f to use in a proposal but they cannot remember the exact date and time so therefore the exacting time was not such force and the contracting officers determination fine action they kicked it back and the government took further steps to contracting officers in issues a decision a final decision right correct and that is is that the february seventeenth protest that protest shows up i think on nine twenty one for february twenty seventh right corner and that protest is the point at which the statements are attached to the protest and that is the first time that there are statements i from the to you were asking for right and my question is does the can the contracting officer at that point say well you know i'll just give these two guys call authority to do that while this case was pending on protests before the g a o he certainly have that authority because then yes and we can then it was reasonable for him to resolve the conflict in the statements that were submitted for the phoenix employees  samartha contract administrator at the totality of that evidence and the interviews with the phoenix employees themselves indicated that these five or twenty eight statements are from the twenty third statements were driving the same way decided i need to do some more investigating in this case let me just call these folks let me do this that me either and i'll just submit some supplemental evidence to the jail in the jail proceeding that would have an issue of fact with respect to the voluntary well your honor there was nothing i don't believe so because there's not been solicitation of required evidence of minutes there was no requirement that an offer describe the level of commitment of the f also had a reasonable basis to believe that these individuals would be available these incoming employees would be available to continue to work on the successor contre i think the central issue your honor is that a t f accurately represented its intention to hire these employee is it was the the leap that the contracting officer made after taking the interviews of the three individuals that we had concerns with the the c e o goes in he interviews these individuals based upon the boilerplate statements that they provided and if you look at the handwritten notes it doesn't specifically say that the consent was given prior to that submission ok that was our concern with the those and the specific finding the contracting officer may he said specifically based upon my interview they provided consent prior to vision issues but there's nothing in the notes that secondly probably the most glaring disconnect between the handwritten notes and his conclusion is you said one of the individuals actually talked to him a million random in his handwritten notes it's clear that this individual never talked to mr brown so there's a disconnect between his handlers the boilerplate statements and the ultimate findings that the there was consent made prior to that submission with respect to your initial question to the to the government the answer is pretty clear as to the reason why the c e o didn't interview these two people and that was he didn't believe those two people who were challenged in the original protest in that span and a ten thirty there's a specific reference he said look i'm not going to go interview these people because you didn't challenge these two people in your original protest even the drop court found that to be him and then even the trial court said in their her opinion that we're wrong they were challenge and probably the contracting officer