think your honor may please the court the court of federal claims judgment in this pre war protests should be reversed because a court committed to legal errors first of all the court probably found that the solicited rak services were indeed commercial items  second that the new payment terms that they introduced in the following solicitations were inconsistent to customary commercial practice or care to the matter wall and concluding that c m s did not violate faster for part twelve by including those the government accountability office be filed a timely there's no doubt that we filed a timely protest at the government accountability office we filed for the submission of proposals and we have continued to diligently pursue that short by the time yes we had we had submitted to the government accountability office before the submission of proposals which is exactly the process that is longstanding and prescribed so we submitted our protest there was at the time prohibited from awarding the contract until into the protest as a result of that that doesn't somehow stand the closing of the submission period just the there is no enjoyment of the government's ability to award a contract here what happened is we have the automatic stage g a o we follow the court of federal claims in response to our motion for temporary relief injunctive leaves of the government agreed not granted why are you for the perspective that are to have standing at the time you filed in the c s c at that moment not some earlier period not some later period but the moment of your filing you had to  perspective that are right under the law so the standing of that and i correct about the law do you have to be a perspective that or at the time of your c s e filing in order to file you have to have standing  yes standing is is a set at the time of the filing of the command would have been our cases for better or worse adopted the standard that in order to be an interested party and therefore had standing you have to be either an actual for a prospective  each of those four cases are all those cases are instances where a protester failed to diligently pursue its protest options every single one of them and i can go through each of them if important like would like we've addressed them in our in our right because there was a nearly three months to lay after the agency rejected the protest and before then filed its court of federal lands challenges it is three months it reflects a non diligent pursuit it's the three approach i could see that issue going to waver right you appealed in one form or brought an issue to one forum you can much much later in time bring a whole different issue to a different form i could see how that could go to a waiver theory like a blue and gold waiver in theory but what i'm having trouble with is how that would affect the definition of perspective better i understand that that is a distinction between this case and rex and you want to capitalize on every distinction i'm just i don't i'm not sure you need that distinction but i'm also not sure it's a relevant distinction that we ought to import into the law of what the definition of perspective bitter is because your perspective better if you're somebody who would have bid does it really matter which of the reasons you argued before the agency is the reason you didn't bid and does it really matter whether you argue a slightly different reason before the court of federal claims does that really affect the notion that you are at all times nonetheless a perspective that i think the times lack it too i don't know about that are is granted and you you look at the cases you look at each of those cases and they all are consistent with that and alternately i may hear you that they're consistent with that test but but many of them have absolutely unequivocal language like federal data that said you are not a prospective bidder if you are simply someone who would have been on a repairman and if the agency part of the association usually like were corrected that you cannot be considered a prospective work context and if the court had the authority to and didn't grant the remedy requested would be in a position to bid that is consistent with the g a o test that is wholly consistent with the weeks test which is the  four cases that were that that were often awarded and it's a complete distraction the four cases that the government relies on are not free ward cases federal data gets a little bit confused because there was an award and then everything happened during negotiations there for several months i think all these cases are somewhat confusing to be honest with you and i don't have any objection in a vacuum to the definite he proposes possibly a much better one than the one i feel like we've of ours so i'm finding it a little difficult to circumvent that as limited to the facts of federal data or ignore it as not holding it isn't that i disagree with you it's that i'm feeling a little confined and you're not and here's why you're not number one  i want to give judge more really experience or two things first of all federal data if you go to the last page of federal data it set with what federal data could have done it could have continued to compete for the contract to work as the other bid and could have utilized the protests procedures of vailable terminus supported to correct any deficiency the perceived in the parent process the problem with said data is it didn't choose to do the latter and did not choose to avail itself of the protest detail adopted or whether i feel confined by that this president in some manner isn't there a narrow ground for you know which would be we were a prospective bidder  and it's completely consistent with what you just said that our protest here the court of federal claims was part and parcel of our and now we go to the language of the cases effort to utilize protest procedures available to an interested party to correct deficiencies one liked the preservation of rights which some great like characterize this the right way to characterize this is the congress set up a scheme and the scheme is that you can submit a protest to an agency you can then submit a language in federal data i'm not entirely sure whether you said that your position comes with the literal language of the quote that was read to you or whether you're saying that that quote to be read carefully modified or softened or in some way not given its literal other two sentences that i read in the last paragraph of federal data that say that what you really have to do is look at the if is to either force submit an offer or pursue your protest remedies that are available to an and so i think it fits within a the context of federal data and be the general test of the modern american follow up on that and i also think this is a helpful question so please try to take it as such but i think to follow up on that could it be that this sentence i read to you means if this is all you are bringing to the table is your coming to the table after bidding is closed and the only thing is you've done nothing and the only thing you're saying at that point that maybe this sentence is relegated to a universe where there wasn't a problem it's the the answer to your question is it is yes but it's even worse for the government's position that we're not an instant party because you have to review have to have to actually read the federalist sort of decision in light of the board of contract appeals decision that was an issue on appeal what what these guys did in federal data was they express lee said we are not in friedman or we're not going to going to compete in the second competition period when they say that they're interested in a refill of station all they were saying is if somebody to for some reason the government decides to cancel the solicitation down the road and can conduct a new competition then we would be interested in participating has nothing to do with their protest allegations  a under the facts of the case that i'm trying to give the language meaning and nonetheless find a way in which to protest part at the end has meaning to right and i think you can give that language meaning by the context of the perspective better at the time they found the g a o protest at that at the at the time they filed the g a o where they have perspective better throughout the g a o protest because i imagine if they weren't standing would be rude like suppose they came out and said we we've decided we have no interest in this  continuing to breach the contract even though i no longer own it i had standing at the time i brought this to but i ceased to be the owner of the contract no it was not right when they didn't have to actually yes you're right it's judged at the time of this issue you have standing throughout the proceeding  position that on february seventh two thousand and fourteen which i gather was the closing date for the bid at that point even though this was a couple of months away from completion of the g a o proceeding differently than the test than the test in this court and how could that be am i wrong in thinking that our that that c s e test the forty ninety one test which actually doesn't even have the language in that of  the need to construe the term interest of party narrowly as a waiver of sovereign immunity and i really don't understand i'm completely perplexed by your answer to just trying to a question are you saying that when they solicitation the harder it is for somebody to say well i'm going to roll the dice take my take a chance that i'll actually win this thing under this onerous condition  do you realistically think that a prospective bitter who wanted to protest that the g a o could get a resolution from the g a o in time to still file a court of federal claims complain that protest action before the end or in regulations or anything that suggested that congress meant to have multiple forms of red dress for actual bitters available to them and single forms of red dress available or not in forms of red dress available for perspective fitters my question to you is it seems quite clear an interested better could absolutely go into a series agency g a o c s e and have three bites at the apple that's what congress intended and that's what is allowed to happen the universe of the way that you've defined perspective better would absolutely in practice create a circumstance where they would definitely not have the ability to build realty of three bites at the apple and is there anything that would suggest that congress meant for differing treatment between actual bitters and perspective there isn't some way in terms of the red dress available to them if the if the plaintiff chose not to not to  but i don't actually think that's what it's relevant why aren't they a perspectives that are by virtue of having pursued the protest prior to the period expiring because they did because when when it came time to submit did they didn't put themselves in they didn't put themselves in the this week of a difference but you know that i don't understand i i just don't understand your argument about why that doesn't establish i can understand your argument that concluding that might run into our record well i can understand that  contract under the federal supply schedules you can leave out significant terms and then orders under the master contract insert highly noncommercial customary terms and there would be no objection to that the in the in the man in the master contract yes it's like you're not changing anything in the mass of your contract there are just certain terms that you're going to have to have once you actually have an order and you're now adding them in the order and those would not something of my question  permit that to take place it's conceivable that that could happen and that's something the plaintiff needs to address at the contractor needs to address that the master contract levelled at the problem with that because that's that the purpose of these indefinite delivery contracts the f s f there particular this all this again at that level explain it had a problem with the fact that the order putting through this term consistent with the g s a contract they should've addressed that at the at the master contract level what would be that what was the mechanism for correct on the merits point that there isn't a dispute and that the waiting until the second review to pay compensation or commission is contrary to customary commercial you are agreeing that it was not a customary commercial practice but you are i want to be very clear you are not relinquishing the agency's right to change its position on that below stipulated to we never we've never disputed it because it's not it's not relevant to the issues well what's relevant is whether the agency was required to go through this process of obtaining market research determining whether terms are the system of customary commercial practice and th critical factual premise for their legal contention to feeding their argument to say you know i have to decide and they have this legal stuff the fact is the term that they're complaining about was perfectly customary as a commercial matter as opposed to a matter of prejudice say that but they could have come into play we didn't we didn't we didn't make that make that argument so we're not we're not saying the court should decide this case based on the fact that the terms are in fact  practice or anything but by failing to dispute the argument having you affectively conceded are we supposed to suppose that we don't agree with you on your construction argue about the statutory terms and suppose we absolutely saying that this falls within this section of the farthest acquisition solicitation and we conclude that your wrong when the legal points once we get to that point what do we do i answered asked in or question on started for purposes of the litigation the yes we were not were not disputing that these were not consistent with customary commercial practice if for some reason that had to go back to the agency we believe the agency should be permitted to do the market research and make that determination itself not simply rely on the limited declaration that was supplied by by c g i through the process it's supposed to in doing the market research determining whether these are consistent with customary commercial practice and if not obtain a waiver necessary so you're saying there wouldn't necessarily be a recent attention with these particular terms stripped  issue an issue you chose not to dispute it i don't understand what set of circumstances and being then allows you to reopen that issue take it back to the agency and allow them to potentially proffer an argument about whether it is customary if it's because of the limited nature of the of the a fear of you issue here the agencies there the courts determine whether the agency is to follow the law here that it is conducted to conduct the market research or make that make the determination of pain a waiver if if necessary there's no dispute they didn't do that because our that our position the agency's position all along is that they didn't have to so it wasn't as we should have been having to dispute the nobel about whether or not these terms are effective system of customer commercial practice that took an action that they're saying is illegal the action would not have been illegal if in fact the action the agency took was consistent with commercial customary practices but in order in order to in order to demonstrate that it was consistent with customary commercial practice we would have to go outside the administrative record start seeking start seeking we began to do the market research that we that we don't believe the agencies required to do understand their statutes and regulations then move to supplement their records to include that in the in the ministry of records so the court can essentially make that a noble determination of whether or not these terms are consistent with customary commercial practice that that's not the court's role in this type of in this type of proceeding it would simply whether it simply for purposes of this issue was the agency required to use to follow the statutes and regulations that says they were if they were they they didn't they didn't do that and that for purposes of this case the at the end of that i pet think the government's position is something like in general when you read this statute the way that it sensibly is supposed to work is that everything significant should be done at stage one so that it makes perfect sense t at stage two we don't we won't have to worry about application of the commercial customary because these are these the federal supply schedule in the which is really the source of your question is is a vehicle that is intended to take advantage of the government all buying power for commercial items by getting better pricing on commercial items using commercial terms so you start with that premise the overall federal supplies go to contract or are largely  consistent with cause murder commercial practice and that are required by ball so when there are lots and lots of unanswered issues in a in a federal supplies schedule contract about individual ordering agency and what they may need to have what they may need in their waters so so if if if i thought it was relevant to trying to get a realistic assessment of whether assertion that you just made about normal practice lots and lots of contractually significant terms that are not owned in some place where would i go out and look for that you might find you might go on the g s a website looking for federal supplies schedule manuals but if that's the way i came out of that that's not what i intended to say your honor what i intended to say is that you have the basic times you can almost think of it as a a charge account you've got you're putting together the basic core terms if there's something different the four specifically says how you deal with that and with the far says is that in any commercial item contract you cannot submit broken to put in any contract or solicitation and that's key because this is the undisputed part about what they violate terms that are inconsistent with customary commercial practice solicitation is defined in for two point one wants to include or excuse which is the form of solicitation that had that operated here or there there can be no serious dispute they violated that they included terms that the trial court found as fact and they are not subject to clear error getting to the other point you were discussing judge moore with mr rale the trial court found as fact that these terms are inconsistent with customary commercial practice what was the basis of the same sorts of so that was a tell me if i've understood what you've just said right that the existence of the particular regulation that you just cited  plans contemplation of the possibility that there will be contractually significant which is to say that the parties care about this term that m a solicitation for commercial license which is exactly what we have here you cannot include them if they are inconsistent with customary commercial practice without going out and doing market research and obtaining a waiver and g s a prescribes for the what sounds like we may have a disagreement are our position would be the that the court having already found as fact based on rebutted evidence that we submitted and the government did not oppose it or submit countervailing evidence that the court has found as a fact that the terms are inconsistent with customary commercial practice as a result our position would be that that we would we would tell judge williams if this court didn't do it and just were mandated we would tell the judge williams do you need to i'm way over my time judge if you know why i thought you like me at the end of the day what the government is asking here is this court to play a scheme by which congress set out in fact to attract commercial companies that were not in the government marketplace to the government marketplace by dealing with them soley on commercial terms and that and their argument is while that prohibition that proscription may have applied to the overriding federal supply schedule contracts themselves they don't apply to the underlying orders themselves that construction is a good one but would violate the entire purpose of fats and be the exception that they advocate would swallow the rule because you don't know you can't get a good word served under a federal supplied schedule contract without placing an order the only way you can get a good or service is to place an order so if the i is you can include it up here in the can in the federal supplies at will contract but you can include it in the order which is the only way to get a good or service that would swallow the prescription itself the the last point drawn are deals with goes action for just one second because and i have to comment on that because the government is is making the argument that that we had to somehow by the by the time the proposal submission submitt bid and that obviously would be a completely futile act under dolan's we the the act of submitting a bid would be one where we would have to submit a non compliant quote that takes exception to the offending terms that we believe are on wall and then and in a period when the government when the government cannot by statute awarded contract at any rate that that is