and i would like to reserve two minutes of my time for a bottle your honor you for your honors you've heard my colleague mr neal explain how you p s is out to cheat every day consumers we just have you should feel free to argue whatever you want but we will consider all the arguments that have already been made and as we consider this case there's no need to repeat yes judgement or u p s set out to cheat the government the exact same way but the government had safeguards in place to protect itself and to protect its taxpayers specifically the government had contracting rules in place designed to secure a company's lowest prices for taxpayer benefit and that principle applied to how the government entered the schedule contract and it applied to how the government entered the standard tenders at issue here we can be certain that as to both the government did not want to pay something more for nothing at all but that is exactly what u p s tricked the government into doing when it fraudulent fraudulent lee induced both types of contracts and then submitted false claims for non existent air service is not correct that s did not commercially offer its ground service as a method for guaranteed next day or second day delivery even within the air and ground distances honor with respect to the question about guarantee delivery guarantee for the ground surplus for ground service that commercially offered grant commercial time guarantees for ground service are commercially offered to certain addresses but the but the issue here is that you can try to muddy the waters us to a different issue by pointing to commercial time guarantees the government did not request services that were commercially time guaranteed the only time of delivery requirement that the government imposed other than next day and two day shipping services was a good and guaranteed that the bitter would accomplish ninety five percent of deliveries on that is a factual statement that's not based on the specific guarantee provided commercially and u p s promised the government ninety five percent on time deliveries and what is sometimes mean then in this context that's what i think question was about what have governments contract require for time the government requested as relevant here your honor next and second day delivery services a ninety five percent on time guarantee means that ninety five percent of packages that the government shipped under the schedule contract would arrive the next day at special or the second day as schedule that's all the government was asking for the government did not request commercially time guaranteed services well it wanted it they are if people requested only proposals that were offered commercially to the general public if the general public was not being offered these time guarantees for ground services why would that make u p s ground responsive to the r p to the r v because ground was a next day and today service for air and ground distances and u p s offered that commercial ground service to the general public was that was that part of it was that guarantee part of u p s s commercial promises was it was u b s is commercially available ground service did it include a promise as to when it would be delivered it's and so you p s is your graphic coverage requirement under the r he was one hundred percent not ninety five percent now when you understand that you understand that u p s actually offered the government services in it bid that did not satisfy that one hundred percent coverage requirement for instance u b s offered three days select the government and you can actually set to the government that three day selected it was not available to all  and u p s said explicitly to the government not every zip code in the country can be serviced with every available service that we're offering that's true where and that is true ok so so far no in and responded to the r f p and that we satisfy the r f p because we can reach ninety five percent of the zip codes in the country and as to but but our but we can't offer same day next day to day three day to all of those zip codes and in fact it turns out that they can't offer it to ninety nine percent of the zip codes they do service they're just sending it by slow boat that wouldn't be a conforming claim what if they were really only if they really only offered one percent coverage that would be same day next day to day or three day that's not a conform that's just it just doesn't satisfy what the government is trying to do and everybody would know what i'm not sure i totally understand the hypothetical judged by the but what i can say is that the government wanted for u p s one hundred percent of cover services that would collectively reach all us at codes in neck and one day to day for three days way next day today in three days no no your honor you the government requested services that would in fact reach their destination in one or two days as routers and we're talking about next and second day service and ground service in fact is a next and second day service for those distances for some for some places for some work a ship for all of the air and ground distances one hundred percent of the time ground service is a next and second day service it is not just a next and second day service it is the only next and second day service that you p s offers and you don't have to take my word for it or my clients word for it if you look at the documentation attached to the operative complaint it shows the government providing ground service wh service level ground under the schedule contract to the government that's the only service that was provided under the schedule contract and so we know that the u b s could have made the same time guarantee so the government said ninety five percent of packages would arrive on time had it offered the government ground as a next and second day service because that's what it knew it was going to offer that's what it did in fact offer and the package just got there in next in one day or two days as required the other point that i want to make the court on that is that even if we say even if we have it which we submit you can't do with the pleading stage in the face of our client's allegation that ground service is commercially offered for air and ground just senses but let's  e for the sake of discussion u p s ground is not a it is not a service that u p s offers commercially for next in today's distances in a manner that would make it in the manner that we're describing what would still be true is that the government would still have wanted to receive a disclosure of u b s as ground rates and that's because we see in the commercial sales practices for that the government isn't just asking for the best prices the lowest prices in u general commercial practice it's saying tell us whether there are any deviations from your commercial practice that even ones even on a one time basis ever result in lower prices being offered to any customer then the next and second day error rates that you are offering the government in so even if we say somehow that that u p s ground was was not within u p s s commercial practice it was required to disclose its ground rates to the government in that case a to this goes to to a couple of the points that your honour's made in the prior argument us judge by the you know did do consumers actually asking when they go into the u p s store what's the cheapest way to get this from point a to point b there's at least one purchase asked and that's the government that is exactly what the government asked you on it's commerce there's always but there's almost always a second question like whether you're a commercial or whether you're a government which is how long is it going to take that's absolutely right and but what the government would have wanted to know here is that for large swaths of the country for that that the cheapest service in the only service available was brown and u p s lied to the government did not disclose the ground with the cheapest option let alone the only available option for next day shipping and second day shipping and let's let's just look at this practically and be clear about the harm that you p s so what give me an example of where ground shipping would have been the only service available that is the only service available according so to take your example of fast faster and faster are overcharged claim and are fraudulent inducement under the schedule contract claim are not in any way dependent on the transport they are dependent on u b s selling the government premium the fastest service while actually providing according to its own internal records cheaper fast service ok i'm going i want to go back and drill down just a little bit here so give me an example amended complaint as an example and i think ok so give me an example between where shreveport and baton rouge that's a great example ok is that the or and that's the only service that you have offers between shreveport and baton rouge is ground service with a capital if so if i went into a u p s store in batteries i need to strip something to shreveport and i'm willing to pay a great deal of money to get it there tomorrow they would have said gee the only service we offer not your honor because in that in their documents they say in the same documentation and i would refer you to see volume six of the e r thirteen sixty four three thirteen sixty six for example on the same page they show that the service level invoice is service level next day air and at the bottom of the page it says service level ground transport type trailer and my point is if that service the that the invoice service level was called fastest at the top of the page and at the bottom of the page it said the s level provided was called fast i would be making the same argument to you the use of the words air and ground is not relevant to either the fraudulent use nickname for the over charge claim that we have made except in the alternative i think i flight however unnecessary because u b s never made any such representations claim fails next to father sort of that u p s progeny induced the government to enter a contract by film to disclose the u p s ground service might meet the government's needs this claim wasn't based on do i think it would help here to step back and take a look at the services that the government has to find these are these are responses to the government's requests the government has to sign two categories of services that there's a special i don't immerse in four five one des no matter how far it's going you will get there in the same day if you select next day i'll get there the next day these are the services that u p s responded to with its b p s air services and u b s three day select service the second category of services and again this is the government's definition they call it next day shipment we don't know how long it will take until you put in the address and the destination so for example from from here to los angeles in sydney from here to los angeles at a likely take a day on ground either one of those two services will get there in the same time but you can't be sure how long will it take for a ground package to get to new york unless you ask the carrier so those are the two services as the government has defined now in the two thousand one hour of p which is the basis for the fraudulent mint claim the government just asked for express the livery service it said please give us your same day next day to day in three days services they can reach ninety five percent of zip codes nationwide didn't ask for services that might go between some points within the united states in one or two days but not ninety five percent of the codes so the ground was not responsive to that service because ground was not respond to that request because ground was not a response of service all of their ninety five percent of the codes conus is how the government find that cousin united states that includes ninety five percent of zip codes so you p s t s like was responsive to the government's request that's why u p s offered it it would not have offered it if it didn't satisfy th so if we could just jump a little bit to the fraudulent overcharge claim certainly on it i think it doesn't quite follow that same analysis but i think you have asked u correctly that is true in this case yes so a related doesn't have to identify a breach of contract term in every case they have to identify a false claims false claims act as to be some pos claim here the claim is that u p s build the government truck that were going by some other by some other level of service by some other service the u b s offered is irrelevant that's exactly right your honor the so the relator has to plead with particular again rule ninety applies here plead with particularly what was might say ok we have to bump some things off this truck and these things are priority and these things are not so the things that are that are not priority are going to get left on the dock i think that's when i got the job tomorrow night might be another reason that a rational consumer i think this actually goes more to the prior cases that might be a reason a rational submitted for that service is going to say what he's going to say there but that will not be what was provided correct that's not correct john it's only not what was provided if you distribution centers as part of the packages journey and so what that demonstrates is that as you guess acknowledges the many packages that are shipped via u p s the next day are u b s second there do in fact travel by truck they do travel via ground transportation and it would have been cheaper for the government if it had been billed that way doesn't the false claims act happens it's intent to leave all kinds of fraud without qualification that could result in provide that service so you can't have made any false claims of it gave the government exactly what it would promise the government was going to give it now and that's what happened here the relator hasn't identified anything that you p s promised the government the u p s didn't deliver source of the disclosure made to the government that's incorrect and i want to point you back again to your page thirteen sixty six volume six in which relator is the one who put before this court the key piece of information not capitalize the what the document illustrates is the government or is u b s providing a cheaper level of service in its own words and invoicing for a more expensive service level that's that's the disclosure at the his disclosure in this case i also wanted to call the court's attention to the fact that my opponent continued to argue that the geographic coverage requirement in the request for proposal was a ninety five percent requirement that is untrue for the reason i explained and he had no response to my argument that the geographic coverage requirement was one hundred percent of the codes that services were offered to the government that did not meet the one hundred percent opposed coverage requirement and that that shows that services that offered partial next and second day coverage whether ground or three days select were responsive to the request for proposal and u p s understood them to be responsive to the request for facts or the true state of facts was revealed apart from the relator disclosure in this case the misrepresented state of facts was that u p s offered u p s represented to the government in its request for proposal that it