you know that is right yes ok am i correct that in december two thousand and eighteen your client identified found that not to be material fact at all to her to the award this court must set aside the agency's disqualification of net separates the severest form of corrective action because it was unreasonable under the circumstances and not rationally related to the underlying facts bridge between those two actions because i didn't see you maybe i missed it i didn't see you tease out the difference any compelling or resulting difference from those two separate even sending the contract is inappropriate where there was no deceptive intent certainly disqualifying a contractor is inappropriate and also against the government c you mean are you referring to our opinion in planning something called planning research yes thank you i'm not sure about your i think you're pretty much over reading the holding in that case and planning research we held that the agency improperly failed to take corrective action and respond to intentional material misrepresentation we didn't address whether or not agency has discretion to take corrective action in casing cases involving negligent material misrepresentation so i don't see it in this case that you're aware of any other federal circuit case law that resolves that question so we read planning research and united architecture in united architecture the court affirmed that corrective action should not occur or where there was no deceptive and had so raising these two together the only decision from the federal circuit we see a distinction based on whether there but did you i just want to follow up i thought judge pursed question was a good one which was are you aware of any federal circuits that specifically address whether there has to be deceptive intent  not aware of any decision by the federal circuit and we think that's part of the reason for the split in the lower court is that different courts read planning research and united architecture differently we read them as cases that have come up in the last ten years and deciding that issue once and for all would be very helpful for the government and for industry you have just going back to the st this is just going back to the st point i was making that that resending a contract and making a contractor ineligible for a war should only occur where that contractor had sought to mislead the government but we think that is even more so for disqualifying a contractor the severe form corrective action and we believe that under dell it was irrational based on the facts well let me ask you what do you what does it mean for misrepresentation to be mat to be current employee was not actually material at all to their evaluation they didn't care whether he was a current employer or not so it was immaterial to their decision whereas if i something maybe i'm misremembering the briefing and the decisions here there was no for to reality with respect to the misrepresentations with regard to employee a status in terms of his ready willingness to come back fact it were true then of course it wasn't true as we now know based on his subsequent declaration indicating that he certainly had led to impression that he would return and in fact he was ready willing and able to return that came through in his in his declaration but the real focus let me ask i guess i want to know when you're citing   affirmative from mr ray she's never asked for it but that's the basis on which she made her determination and we believe that was legal or as well so in the of that that the relevant inquiry is m proposed a fully intended to have him perform the job and he's confirmed that he was going to so what really comes into play is this is judge wallace let's go to the evidence if new lead is covered in the respect that mr a did not want to provide any statement in the context of a big protest because he did not want to endanger his current employment if this job did not of the facts that were set forth in that proposed statement the fact that he intended to return i believe they were aware of that and how is it newly discovered because it's evidence from mr a confirming his intent which is the basis on which the c e o actually made her determination  she made her determination and then we received a letter of confirmation from him just days later we believe that that would suffice it wasn't until we saw the declaration from m never asked for i mean you're putting on a case here and the set the heart of the case from the beginning to end is the status and the future status of the particular individual so i'm a little confused by your suggestion that in the absence of the c e o aggressively asking for you to put on evidence to support your case that sort of lets you off the hook i don't know if you want to respond to that observation or not r see this government this court was reviewing a decision from the board of contract appeals that had already found an intentional misrepresent intentional miss material misrepresentation this court in means for misrepresentation to be material it means not the agency relied upon that misrepresentation and here as the both the trial court in the contracting officer found the agency relied upon several some tricks offers in his proposal for example and his proposal to the government centered indicated that it would be providing key personnel and was not updated and as the trial court has recognized and commonly in other cases this is something that offerers are responsible for they are responsible to provide final proposals that contain accurate information because the agency relies upon the four corners of that final proposal in terms of evaluating the propos court found that when considering a material misrepresentation the it is appropriate for an agency to to decide on disqualification because of course the contracting officer provided a very full some analysis of both the cat liotta certification as well as the walker declaration which were submitted on feb th she devotes approximately six pages to a sample and the g a o in dealing with this whole intent to hire has rejected that and intend to hire is sufficient to avoid a material misrepresentation claim and this is discussed in our papers the a query as to all commitments that mr a had made to next century showing that he intended to perform on the contract at the time again the key tempo issue at the time correctly applied this court's axiom decision and concluding that that letter of commitment was not before the contracting officer when making her decision and should be could not be reviewed by the trial court but even if even that submission the letter of commitment again failed because it did not include a definitive statement from mr from mr a that he says a time of final proposal submission on december three was available for two to as the proposal offered to begin contract performance immediately and for one year again  johnson you've allocated three minutes for you to argue from you thank your honor and the quarter one billion dollars per chairman at issue the agency was entitled to of whether the current employee representation was material missed sores pointed to a number of places where the contract you know officer discuss that in her determination but the agency in its letter to nat centrex informing it of the disqualification decision also express lee identified the current employees statement as a material misrepresentation that appendix officer here at least was acting within the scope of her discretion and that's supported by this court's recent this is decision and del federal systems which say that contracting officers deference on the scope of the corrective action that they take and with the fundamental principle that underlies the argument that negligence is a right standard that deceptive intent should not be required and that's that agency contracting decisions aren't title to deference and that deference means that agencies should have the describe the discretion to protect the integrity of their  confirmed that he was ready willing and able what really happened is that the contracting officer disregarded the weight of the evidence regarding that sense it's reasonable to believe that he would return  and in favor of pure conjecture that he wouldn't retract and complete your thought that was against the weight of the evidence and that was clear er