ana i know this appeal involves agencies around three reevaluation and the first issue i want to address for the agency was required to reopen discussions with expedia when it downgraded past performance storage from the prior two rounds the key question is this does the agency have to reopen discussions with information given by the agency to look at or accurate when given is no longer accurate because of the reevaluation at which the agency based on the same proposal materials significantly downgrades the scoring it reported earlier the president of the court of federal claims and the g a o is uniformly that  around one in two the agency great experience having relevant and very relevant references at evaluated as having the highest confidence score a substantial competence but then it downgraded that after telling had to reopen and allow us the opportunity that they've given to others as well the government's response is that the agency had indicated before the reevaluation that it didn't intend to reopen discussions that they were closed all the cases your honor finding misleading discussions in exactly this circumstance we're in exactly the same procedural posture is us and the government has said discussions are closed now give us your final price revisions  ours or your best and final offer is your bath and then though they did a reevaluation internally without after or changing their proposal cheerios and downgraded them that the courts say you have to reopen in that circumstance the sketches are closed in this field this is not me and there's no way they'll ever be opened again it means they're closed unless it's in the government's best interest to reopen or a less requires it and the situation the law required now the court of federal claims incorrectly hell that expose protests on this ground was untimely obviously and they did you not disputing that you were they you knew that they were not going to open the discussions is that right i don't dispute that they didn't say they were going to reopen it when they started doing that re evaluation right so so  if you knew or there was added in the guity or something about whether there were going to be further discussions and you thought we really better have some more discussions why is that not a classic bl what we are challenging here is the reevaluation itself is ok to say we're not going to take any more discussions however if events unfolded like they did and which are the same are of peak right syria the same proposal materials they substantially downgraded now what they've said earlier in discussions when they have them with us is not accurate and they told us we had the highest scores and very relevant so that's misleading to us and they must reopen as a matter of law and order to give us the same opportunity to give to others to address their concerns and as we showed mr dyers affidavit or it was prejudicial because there was a lot we could have said about these newfound concerns if they  only the first two years of the contract and didn't appreciate that they should really be analyzing the past performance situation against really a seven year contract that's what the government argues but it's not true and if you read the g a o decision against two years but that's not what they did and g a o said there's no explanation and this record as to why references that are this small don't fit under the little or none category for relevance and even if i take their post hoc assertions that well they only compare against two years they're still too small and there's still no explanation in the record why it doesn't fit under little or no and so that was a back and forth that the  on we went into this situation even if we assume that ok they might look at us too we have no idea what the particulars aren't with it will downgrade us we don't know what the particulars of why they downgraded u there's no final agency action for us to complain about at this point and we know that some law as if if your grievance is you had to have the opportunity to talk to them you either knew ahead of time that you were not going to have that opportunity or you did i don't see any that's not my grievance my grievance is that they reevaluated me and downgraded me and had new concerns and came up with new sub criteria without changing the r f p itself and so what they told me before and discussion is no longer accurate and the law is when that happens then you must reopen and  and allow discussions to go forward again because what you told them before is no longer accurate and it's not the bitters fault of looking at the same proposal materials the c e o says that the key question here  what is the change apart from the one you actually requested worldviews successfully had you're around to protest what what what did the agency do differently this time that you should have had a right to respond to we did not ask for the are the valuation criteria to be changed i want to make sure that's clear even though there were some suggestion of that in the government's brief our whole protest was it doesn't apply th a few additional criteria they were going to apply and they've missed a lot of stuff and suddenly our evaluation from being the very highest is now not relevant in dropping the overall ratings and that made what they told us before misleading we could not have known that until we got the information about what the final agency reevaluation was it is simply not the rule of law that  jail's recommended that they reevaluated crowleys however even if we knew that the standard that the court of federal claims but of if you should have known it was likely you'd be reevaluated why doesn't give us enough to protest what the g a o instructed there was never any formal notice given by the contracting officer to your client that we would be reevaluated there wasn't occasion during the litigation that they would probably do that during the litigation even in the real need to know again so ok we don't know for sure that's what's going to happen and if we do we don't know what the result of us there's nothing for us to protest at that point i only know that what they should reopen that they should have reopened about at that taking that as a given what is it that the agency said to you earlier that if you could we lie on as and not changing when they actually did their round to evaluation there was nothing perth and if they said something to you before the g a o and then they say oh we're going to re evaluate it seems to me since they said before i don't know what in what context reasonably change and we also can rely on the rule of law i've been talking about which is that if they do make a material change and make what they had told us previously now inaccurate then they have a legal requirement to reopen it give us a a downgrade crawley's rating on past performance as well and not good form an opportunity to respond no the one they downgraded crowley they gave an opportunity response when they downgraded genco they reopened it after probably comes in with thirty four new references and it comes out with more information that's exactly what they should have done for us if they had a similar concern about these things but they didn't do it going to save the rest of your government and to say that they didn't have notice of exactly what that corrective action plan would look like it is simply not true that mr claybrooks said that at least until you got to a court of federal claims and i could have been could be misunderstanding they had no conference before the quarter final claims and they were both informed that there would be no further negotiation correct and are is it your view that if they had a problem that they have no duty to object at that time and and get on the record or give it they have in college have their own or they could just say to you wait we want to put in a number of new references if you are going to apply this to us they put in what thirty new references at some point he her and yes when you question something about them x p o could have discussions i don't know where that would have gone ahead but we would have at least raised the issue when it should have been raised and we could have worked through that then and that now is the first reason that the child who rejected charges that that was the time we could have those conversations we could figure out where all the parties seems as i understand things responsive to the the argument that discussions were necessary in order to make non misleading pre corrective that every individual round everyone was treated equally so from the corrective action plan discussions will not reopen with either one of them what carlie's planet let me see if i can try to respond and see if i understand the facts right  isn't the scenario that judge toronto just explained the post round two scenario not the post round three scenario yes and that's almost round three nobody was given an opportunity to introduce references or take corrective action that is absolutely correct and in round two their discussions were centered on the different issues that were raised during that time with each offer more suppose so that you had the opportunity to respond to whatever she's may have come because as we've been at this chipping at this protest for a long time and mr claybrook is saying oh you know crowley had all of these discussions and we don't have these the discussions that were had and  i'm using that term very generously with him what the parties were told is here are your interim ratings and that's what we were told we were told in rounds one in two and as well as expedia exact same information received the same one pager your interim ratings are x well when those came in either off or are had the ability to change their proposals in any way they wanted to as a result of ratings to change its proposal in the past performance area x p o changed his proposal presumably and other areas based upon again the information that it received identically formatted just simply the ratings of the different so there was no difference here and round three nobody knew anything they got the exact same communications there was no opportunity to change your proposal no opportunity for discussions no different information that we've had a conversation here about the could x p o have known that it's it needed to protest before hand absolutely i mean here and it's argued that it was unreadable because it had used and incorrect you know comparing it against the baseline originally of the entire seven year contract these these contracts are to lo ok and then the agency came back and said well we used a two year figure again x p o says that's wrong too your evaluation is unreasonable not only is it unreasonable with respect to magnitude it's unreasonable respect to scope it's unreasonable with respect to complexity and you didn't document it well well they won that and so how could they possibly have been the and if anybody knew what ga you know how was going to react it was expedia who argued for advocated for this change and you know maybe they didn't know what their ultimate rating would be but they knew the trans come would be evaluating past performance clearly for both offerers there's there's nothing in the record that suggests that x p o those contracts were ever evaluated against you know any other baseline than the exact same one that applied to crowley that they would be evaluated against a full  t as contracts for scope magnitude and complexity and so it's just not credible that this would that that they wouldn't have known this and it's not credible that they could have been misled by information in a no you ation they themselves called unreasonable so there was nothing misleading nor was there anything an equal the offer is were treated entirely equally and this is evidence of you know by nothing there's nothing favorite to be drawn from a neutral past performance evaluation rating as a matter of law the one thing we haven't talked about here and i only want to talk about it briefly is is the claim that that the agency switching from past performance of the best value determination that the agency couldn't consider at all corporate experience and it's final award decision and that's just simply inconsistent with the terms of the solicitation the proposals will be evaluated against five factors the first of those five factors is corporate experience there is nothing in the solicitation that says that it will fall out of the calculus there's nothing that says that the agency has to ignore what it's turned about at the outset of the solicitation having put it into the solicitation it clearly had so meaning to the agency that it wasn't required to ignore unless the court has additional questions no i've just let you know that when you raise an argument in rebuttal in oral argument that wasn't raised in the affirmative now you've opened the door for him to address it his rebuttal prior he could so by deciding to branch into that separate argument i just want you know you've opened the door and you know he's free to talk about new matters  thank your honour's it's for bullet points for chairman must be reviewed as a whole not round by round and all these cases that we've been talking about say exactly that  evaluated our total contract values value not price by not including the freight under management the transportation costs when this for chairman does include that in the price you have to compare apples apples to and let me point out as well that there was no change to the r of p here so we are in a blue and gold situation or a common situation and i can't state it any better than the government itself said round not doing it and if you've got a complaint about corrective action is taken on you it's not right to complain about it now wait until it's done when there's been final action and then protest exactly what's going on here on corporate experience we're go not be considered in the trade off one final remark if i may and it's just a bit of a status update on our pending motion to stay the transition has gotten started but it's