comment on behalf of the appellant emergency planning management incorporated your honor this case involves an issue that the federal circuit has not specifically addressed in the past mr compelled the agency to bundle these two things in a single procurement do you agree with that or do you disagree with your honor i disagree that the appropriations act of two thousand and nineteen specifically requires the department to bundle these activities i do believe that that's what it felt it required but i do not believe that limited exceptions within it which opens up the possibility of other potential contracting opportunities as part of this particular  program or solicitation so i would suggest that that simply by the nature of the verbiage in the appropriations act itself it contradicts the basis that must be bundled i do understand that that position however that the government has taken the department has taken but you didn't really argue this in your brief are you saying that the certain limited exceptions language in the appropriations  act means that it's not a universal requirement is that is that what you're arguing i think that's certainly true your honor and the reason why we argued this in the manner that we did we understand that the agency has a certain amount of discretion with respect to how it is to interpret a directive such as this and that's understood despite that discretion is our position that there was nothing in that appropriations of language which could be discerned as allowing the department to avoid going through and following through with the mandatory requirements of our parts well i don't understand that i mean if the if there procedural requirements here and they weren't followed in the government seems to agree that some of them weren't followed position there are a couple of different bases the st is as part of the mandatory what we consider to be mandatory bundling requirements of our part seven there is the  d during acquisition planning for the agency to coordinate with the small business administration and as part of that process to discuss alternatives to and to maximize the ability for small business to participate and that is extremely or was extremely important in this particular instance it never happened and i think the government will admit that it didn't happen at the acquisition planning stage but it was extremely important because had it occurred the way that it should have under far  part seven alternative strategies could have been identified that would have allowed companies like the appellant to participate on a limited basis which is consistent with the how does any procedural defect change the result because the agency wouldn't have a choice no matter what information it secured as a result of procedural  for example and said of using the contracting method that was actually used here they could've used a g s a schedule vehicle as the means by which this occurred and if they did it that way you could bungle these procedures that based upon the manner in which the g s a schedule contracts are are are used there was a possibility had they gone down that i don't understand a word of what you sent if in fact the statute requires bundling how could the agency not bungle as say as i indicated earlier on the actual language indicates that there are certain that there are certain limited exceptions that would permit the the use of contractors other than through this bundle understanding that the agency claims that it had as part of reading the language once it was issued so in other words there's no reliance you're sol theory is that the statu doesn't require bundling because it allows for exceptions and if they follow the procedure they might have allowed an exception here that your point they could have done that in precisely this instance  can i just confirm let's just put apart the exception stuff because i don't know that you clearly are good or d better even if you did let's just set it apart let's assume i think the statute in a typically require bundling and d we followed that statutory mandate and bundled could your client have competed for fully bundled services it could not have competed for a fully bundled service unless it was part a team your honor they could have competed as a prime which is what you're arguing about the opportunity to to try to get some work on this stuff right there is a the only way the only way you continue yes please yes thank you so what we have here is a case that the federal circuit  previously dealt with which is are the requirements of our sub part seven point one zero seven dash thirty five and those portions of the small business act there are applicable to it mandatory and if they are whether the agenc we feel that the provisions of far part seventy sub par one a seventy three through five are mid story they weren't followed and because they were not followed they violated the a p a and the court of federal claims if a picture of an action either could or will result in bundling or substantial bundling with respect to bundling under our seven dollars dash three it indicates that for conducting an acquisition strategy that involves justified is determined when an agency establishes that it would have pain measurable substantial benefits by bundling discrete independent requirements agency in that regard must  research to quantify and eventually conclude that it would it would have tamed these measurable but stansel benefits in terms of the quantification of those benefits are seven point one zero seven dash three is very specific in terms of what constitutes measurably substantial it's when individually in combination or in the aggregate the anticipated financial benefits are equivalent to ten percent of estimated contract or value the value is ninety four million or last or five percent of the estimated contract or value for nine million four hundred thousand whichever is greater if the value exceeds ninety four million dollars that's a very specific cost analyses why because the provision along with substantial bundling provisions up are part seven dollars and notice provisions take into account that bundling will very likely hurt small business especially  when it relates to becoming a product contractor but there needs to be some financial means by which to measure this potential benefits and it has to be rooted in data and it took a i believe so ok in page one hundred and ninety nine dollars of the senate report it talks about these limited exceptions it says that they don't want them to stop contracts which are already in existence and another similar exception for existing contracts so when we're trying to read the legislation talking about limited exceptions why wouldn't we read the limit exceptions in the light of the committee reports to refer to these continuing contracts i think what i think the way to read the appropriations language your honor is to read it in complete context it does say with certain limited exceptions for sure and i and i understand your honour's point with respect to the senate report but there isn't anything specifically in here which indicates that bundling is a necessity  understand the discretion with which the government is afforded when it comes to d reacting to what it considers to be a directive such is such as this but when looking at this in context there isn't anything in here which indicates that it has to happen and what you produce your basic argument as i understand it is that the agency could have read this language would certainly limited exceptions to allow exceptions for situations where allowing separation or promote small business correct and i think what you need to do  that the statute compels what it did and i'm not trying to be cute to have a say there but as a record so the the agency didn't think it was bundling because the type of change and that's one thing that didn't come through mr delilah's argument the type of change commanded by the statute is complete it going to a lifecycle approach to to servicing student loans requires a complete reinvention of how student loan work is done in this country before that have been a very siloed approach you can see that the records the administrative record which has you know the market research that sets the current way or the old way of doing things with where things are going and once you move to this sort of flatter landscape of servicing where students are going to be bounced around from you know you take out your loan and then some time goes by they get assigned to somebody to process the payments then they go in the delinquency and they move somewhere else they go to the default happens that may bounce over them to a debt collector like you know works as a subcontractor now  i get back and i'm not understanding what you're saying it's a simple quote what does that to compel bundling or doesnt it again it compels a complete change that results in all in all in what next gen is if that's viewed as bungling then it does compel and again the agency's position is it's not bundling because you're not just combining services into one contract you're completely reinventing the entire business these contracts awarded so that one provider profile the full life cycle of the loan from beginning all the way through the end including debt collection whether we have bundling or whatever deo you want to call it is that the government to deal with statute requires yes your honor and so while i mean are we just getting caught up in terminology or is the government's argument here because bundling h requirements that you don't think apply well we made the argument below the a lot of it education was i'm not i mean just let me just sorry let me just put into context why i ask you that question because the statute requires whether you call a bundling or consolidation or whatever or just use the words of a statute which is a server has to provide the full lifecycle alone and that's the government's position that that's legally required and there's no discretion there then it seems to me that your argument then and what does result in this case is the protester can't do that the protest right thin conceded that it can't do the whole life cycle from beginning all the way through the end including that collection so getting caught up in the terminology of whether it bundling or kampala nation doesn't seem to me useful as long as what we're talking about because this protestor can't provide that is that the government's position yes your honor and that's that's also judge wheeler's decision right that gets even stronger about how about the provision of the statute that they rely on about certain limited exceptions which suggest maybe that bundling or consolidation or whatever you want to call it is not required in every instance you know it can't be read that way on the committee notes you mentioned are important but because they point to the types of exceptions that are included which is about not upsetting you know current student loan accounts that are out there in current contracts and applying that language differently results in a contradiction right because the statute itself says lifecycle get that whole thing together with the goal of that is when you see with all the other supporting materials and what congress wanted the senate letter and other things is to avoid disruption of boyd having separate operations which of cause a lot of the problems that were identified and what brought this about so having the limited exceptions language you know given the committee comments but also just given why this was put out there there's evidence of why congress wanted this change to happen at a comports with the read market research and investigations that ed had done into the problems of student loans collection carving out  collection for debt collectors goes against the entire purpose of what was going on here most of the problems right down a side in the deck alexion area of loan servicing when you look at the administrative record and the problems that have been identified and that needed to be addressed a lot of it lives within the debt collection the default life part portion of the lifecycle of the loan so carving up that expense so perhaps we're in a chevron situation where maybe to statutes ambiguous in step one of chevron and if we then go to step two where has the agency told us what its construction of the statute is well i think if you're is the education department say the act compels us to do this or that compels a lifecycle approach to loans which is what mexico and is that it say that yes i believe that's in the cancellation memo is where it discusses and here it talks about the appropriations act specifically referenced stated in a number of provisos including one requiring the department award no funding for any source base and for a new federal student loan service environment including the next gen processing and servicemen less the environment it again i think that it's clear that the agency was mindful of the statutory language from congress took it into account as well as other communications from congress took into account in the development of this notes here in the memo that the development of this program which was aimed at life cycle was in process before this and was likely congress was likely aware of it and so i think that its interpretation of the language is a fair interpretation that they compel invision is not compel the language there does not say compelled your honor it says in vision but i think that i still think that given the language in the known for them to do this but that wouldn't necessarily excuse compliance with the procedural or mark on the other hand of the stench of compelled them to do as is the procedural requirements seem to be irrelevant and we seem to be in a harmless error situation well i also think your honor that it's important to note that in the situation here in terms of the nature of the error is we are in a situation where a party did not raise prejudice at all in the st instance raise it for the st time on  y offers no compelling argument for what exactly the harm is prejudice which is a requirement of the protests so i do think that even moving a move one move says it's not not necessarily compelled the fact that it's rational and that there's no prejudice here i think brings to the same result mesta result the judge wheeler and this is judges again even if if we don't find what you're pointing to is sufficient to get the agency chevron deference we're still in the world where we have to interpret as a court to know about the view of the statute whether it requires that or not  limited exceptions were the ones noted in the senate report and weren't open door for the education department not to do this kind of bundling or could tell a patient or whatever you want to call it exactly right and as i mentioned in my the entire program and everything that congress has said and that's in the record there's a statute but also the communications from congress on exactly this point everything in the build up of this program that collection was identified as one of the specific problems that needed to be addressed and brought into the lifecycle approach brought into a single service or handling students so they don't get bounced around and that you can't have that if the exception is oh we're going to give that to most students but some of the accounts are going to subject to the same problem we had before because we're going to give these small business debt collectors some accounts that make zero sense under the statute which i honestly don't see how this got you can be interpreted in that way and the only mention of prejudice was once faulting judge wheeler for doing a prejudice analysis is no argument there opening brief on what there are most and this course jurisprudence is clear bringing up on reply is not process maybe e p m winds up with what the twenty one thousand appropriations act says they can't get and that the small business administration isn't the power to get them anyway the provisions we're talking about don't give the small business ration the power to change the solicitation to force it to do something differently if it's necessary and justified then it can proceed it's not illegal and judge with its findings everything in the record things st i think what we've heard and what we've seen that there isn't anything in the record which compels what the government advocating here and the meaning of the appropriations language that's in the record for the court to consider that's that's number one number two with respect to prejudice ca the process the procedure that we believe to be mandatory was followed and s b a has been engaged when it was supposed to have been engaged during the acquisition planning stage and there's no indication at all that that  happened perhaps and again and we're sitting here speculating at this point because it never happened perhaps an alternative to what opted to do  could have been discussed and determined as between the s b a and the agency which would have allowed the pm to become a prime contractor to the department of education under some alternative scheme the problem is we sit here now we speculate as to that because the procedure itself which we believe was mandatory was not followed and that's all that i have here on thank you  we thank both sides and the case is submitted that concludes our proceedings but the smarting thank you tomorrow morning at ten a