material in the in the record the record is heavily mark the briefs have more came in them are we free to discuss or those issues that are states and really from all over the world will only use to buy reservations for visiting national parks u s national forest and other federal facilities for recreational purposes there isn't really any question for the part of the evaluation involved an evaluation of four different parts and you're challenging only one of those spores which challenging that technical of valuation as well as rec even if we were to find in your favor what what do you win i mean for the year your opponent your competitor in this case prevailed in the other three sections you're only challenging one of those was obviously a critical aspect of that they would evaluate the merits of that they'll look at your pricing they'll consider that and they'll look at the other the other areas as well but at the end of the day the agency has to let's say the decision does that we and irrational and i'm equal in a number of different ways our view is that if we are successful our challenge the more likely scenario is that the agency would take this back to reopen discussions once for the court of federal claims said sent the case back to the agency for reevaluation once already with respect to the price of valuation it found that that was not sufficient center back it also found that active had raised legitimate concerns about aspects of the technical evaluation so even a quarter for claims of such things was the perfect valuation what this appeal number ninety nine point eight six or whatever it was nine eight eight six was is a very specific number and you came back with another very specific number ninety nine point five which was  was outside of the qualifying range i don't know what it is that the agency could have done more than say your first proposal is not qualifying on on so that's that's were were active had it's causal you know confusing presentation and you know certainly you know it is your fault but but it was clear from the start that that the agency looked at that and said we don't have a firm commitment to that system up time requirement can and they didn't bring it forward to active when they had questions about system of time  deficiency or weakness was attributable to something that had been clearly stated in the our peter solicitation and that's just completely inconsistent not only with the exact language of the federal acquisition regulations but also decades of case brought forth enough grievances under enough factors to ultimately change the rating which is why the trial court correctly found that there was no prejudice even f with respect to the and waited waited separately and then when together were more important than price however as the degree of technical differences between the entities narrows that price becomes more important in this instance in certain instances it challenges it got a nice a deficiency for two reasons it's only challenging one of those reasons before this court so even if this court were to find that that one reason to  so there's a clear requirement we are people ninety nine point nine eight six percent active in that works as an initial proposal well in the past we performed one hundred percent and we'll take monetary sanctions in the future for ninety nine point five i believe right but they didn't actually say well in the past we performed four hundred percent they didn't make any commitment for the future performance and so that failure to make a commitment at the initial stage was one of the many big and nebulous statements that the agency specifically responded to the time commit so the agent did the agency say you have no you haven't put in anything any specific commitment you have to put in a commitment to ninety nine of the evaluation notices there is however an evaluation notice one o one in that set up had x one three seven six to the more general overarching comment an explicit direction from the agency that their proposal was too contract and i can go on the several other comments in that regard but the fact that active networks initial proposal was only backward looking they were the income then they said oh in the past we performed at one hundred percent but didn't make any finite commitment for future forman is exactly one of those nebulous statements that the agency was tasking active network to fix if it wanted to stay competitive in the in the final proposal the agency goes on to say they offer quote shower vies their entire conduct says otherwise between your initial proposal and the final proposal they did in fact revise the up time commitment to adopt an uptime from him in the final proposal so clearly they knew something needed to this point active network has been the incumbent contractor on the last generation contractors in that last ten years or so they are but is that i mean that they continue to be the contractor pinin the disposition of this appeal is that  automatically lifted and was ownby began performance under the new contract however the first fifteen months of this new contract is a phase in where booz allen is setting off the new platform and such so whil standing is turban in part based on prejudice and just range is exactly correct there were four factors that were looked at one of which was price and the other which were equally weighted equally weighted all of actives objections relate only to factor one this isn't you use the word best value like it's some sort of nebulous term all that best value means is that the non price considerations get traded off against the price considerations analytically is there any difference between the what we would do by way of investigating whether this is a standing problem as opposed to a merits problem turning on prejudice analytically you would come to the same prejudiced analysis that would be correct it would be identical  of the outcome may be different in the sense that the once you've reviewed the merits of whether there was a flaw in the evaluation or far in the problem then you might decide that there was something wrong and at that point even though they had standing decide that there was not enough prejudiced to result in a and the need to go back and correct the problem this is the prejudice analysis that you do with the beginning is the front gate do you get in and do you know already without having even thought about the merits and we know based on what activ told us in their brief at the end of their brief they gave us a nice table and said here's what we think would be the outcome if we win it crossed or if they win across the board they're tied on one factor was alan still wins on factors two and three those of them on price considerations you don't have to do a trade off of price who's allen's also low price this case is over they have an obligation to achieve standing in this quarter in the court of federal claims to show that there's substantial chance that they're going to win the award if they prevail what they've told you in their brief is we don't have any chance of prevailing if we win everything that's a standing issue you can resolve this case it's positive we're done we don't have to worry about all the other issues let me turn to a moment though about t discussions question and i would draw your attention to one other aspect of the discussion from page fifteen vallance brief there were some very specific statements not about the specific percentage but about the specific problem discussions of you know government contract from is a pretty well known term of art agencies aren't required the classic languages to spoonfeed can be off or about what to fix in their proposal they need to flag an area of concern and there's a lot of cases they're all side in the briefs about that there's no obligation to go back in to gauge and multiple rounds of discussions so what the agency did here was flag an area were active had problems in this proposal multiple times multiple times they relied on a historic performance rather than making a commitment to the future and the quoting the language that we've got a page fifteen the agency in during the discussions with active told them you would be approaching the proposal use originally submitted was very much this is what we've done in the past it was hard for us to tell from that what you were going to do in the future so that's the biggest thing show us what it's going to be like in the next contract of the lance contract with that advice active forward in its not next proposal and made an addition about this is the one time that hadn't appeared in their initial proposal what did it add it added a specific commitment to what they were going to do in the future the correct the percentage that they were going to commit to the problem was the specific commitment that they made was not compliant with what was required the problem here was not the agency had not given them sufficient discussions or sufficiently alerted them to the problem the problem was with how active responded so they had plenty of discussions they  you know if there are any further questions i'm going to stop right there and no question w with respect to their discussions yes you are active so looking forward to being treated in accordance with what the federal that position regulation requires which is if there's something deficient about the proposal tell us what it is had it been clearly communicated they would have a chance to make it up they would have made a mistakes on their on their on their next admission they didn't get that vice the other thing that that's supposed to happen is people are supposed to be treated fairly and there's evidence very clearly in the record or other you an actual offer or would you have some chance of getting an award and that's pretty you're pretty liberal and then there standing comes back at the end but but i would i would agree that it's near a very base i think that if we succeed on all of our and if you look at the nature of the errors that plays into it as well and a case of the errors the discussions process the remedy is to allow people to get another chance to resolve that issue are you saying that the the contractor would be entitled to submit a completely new proposal on all issues are just a proposal limited to the up time commitment so i for sustaining a protest the other is a clearly prejudicial violation of war regulation many of the arguments that were raising falls squarely within the arbitrary treatment here you were arguing that there is how standing applies center of using the cases that come out of this court the conclusion there is that when you have arbitrary capricious action there is there may not be any requirement to to show