to focus on the first two of those issues first with respect to the evidence of impropriety on the part of a they are the contracting officers decision was arbitrary and capricious both for both two reasons first it failed properly to consider whether a conduct created an appearance of impropriety instead considering solely whether there was a parent's of a specific statutory violation or a basis for a finding that they are was not a responsible contractor and this court cases make clear that that is not the correct standard and secondly that contracting office decision rested on a factual finding  including multiple facts or findings but in particular on the finding that they are did not seek obtain or use confidential proprietary suncorp information that is contrary to the evidence in the record in the gover there was and he also found that they are was responsible contractor but again that really ignore the principle point that or one of the principal points that on court had relied on before the agency which was  that the various steps that they are had taken into a pain to seek obtain and use dying corpse confidential information created at a minimum an appearance of impropriety and again that contracting officer never never appropriately addressed that question now with respect to the disqualification of dyck or for proposing that the i t associate contractor would take responsibility for the operations and maintenance of system after the transition not only did the agency mislead dein corp with regard to whether that was something that was within the discretion or of the  latter point a are said that as directed by the contract operation that with respect to the c e o are that it would deliver responsibility for operations and mission and the i t associate contractor and in saying that moreover that proposal needs to be understood in light of technical evaluation notices that a r had received that specifically set the i t associate contractor will have responsibility for the my ass operations and maintenance after transition and proposal actually refers to those in the version that the agency  so and the only explanation for this to be sure the contracting officer said that well no i i understood they are to be proposing that it would handle operations and maintenance throughout but that explanation  came only later and therefore under the c r a case and others it's really we're entitled to less weight because it is essentially invisible to be sure but it's a post hoc rationalization for the decision which should not be given the same way as  contemporaneous as contemporaneous evidence of the understanding of contracting officers there's something in videos about the event to the solicitation that deleted the one sentence and replaced it with another that there was your honor because what the amendment did was it said we're taking out the we're taking out this sentence and what it replaced it with was it said that the i t associate contractor would have responsibility for the existing information system until transition what it did not say which would have presumably been the way to have eliminate the ambiguity was it did not say that after transition the aviation contractor will have  ability for operations and maintenance of the new on my ass so the question of there's no there's no doubt that implementation design and implementation of the on my ass with the responsibility of the aviation contra contractor but what was not clear was what would happen after that transition but winter when the senate says that x will be the case until date y seems to me the very strong implication is that situation will be different after well but the situation would be different if the question was whether that better chose to propose annulling maintenance and operations itself or putting it in the hand that i t associate contractor and that the reason that diane corp was misled during the course of the during the course of the evaluation was that with regard to several elements of the management information system the they were first received evaluation notices which said in essence is this going to be something that you handle or is it something that you expect to be put within the responsibility of the i t associate contractor and that by posing that question it suggested that that was something that was within the discretion of the offer two to choose it choose that approach is there another way of reading it in the sense that perhaps the government also in context with a particular question answer about who is going to be handling the m i a s then this particular inquiry from the government about maybe could be understood as simply saying  cannot tell whether you've incorporated in your bid proposal that you will be taking responsibility over the m i a s could you clarify is that one way of reading it as opposed to inviting a bit proposal to either include operation of maintenance of m i a s or not incorporating operation of the m i a s into that right and i apologise i apologize if i within the responsibility of the of the better is to say you have responsibility for this and you have not shown how you're doing it so please tell us how you're doing it rather than to say are you planning to are you planning to do this or are you planning to have the i g f so see a contractor do it i don't think that one should read that as being a sort of circuit ass tick inquiry and it's presumably suggesting that these are the these are two approaches please tell us which one you're going to pursue and again i think that the fact that you know the idea that this was so utterly clear that you know this was something that had to be handled by the aviation contractor because there's no dispute actually that if this was a mistake if this disqualification was mistaken that that contracting officers decision cannot be upheld that this should go back to the procurement should go back to the agency and be reconsidered and i think that one of the things that is significant about the third issue which i said i was going to talk about but i'm going to now talk about it a little bit because i think it's significant to the relief it really is if you look at the language plain language of the solicitation with respect to the inclusion of the required required elements within the four corners of the proposal it made clear that anything that was not included within the proposal was not going to be considered and there is no dispute that they are failed to include necessary staffing within their four corners their proposal they included it in a in a response to a evaluation notice the what should have happened at that point is that the contracting officer should have said should have done for other discussions that we have this proposal is not good enough we need to have the proposal revised to reflect the staffing proposal otherwise it's an insufficient but had that happened then there would have been further discussions with don corp so it's really by cutting  prematurely the process when the proposal was not was not complete and didn't address simply accepting the proposal in its incomplete state the contracting officer thereby  rather please the court the trial court correctly held that the state department had a rational basis with respect to each of the fact intensive decisions that dying court challenges in this protest for example  had integrity the agency conducted a detailed review gathered sworn evidence and wrote a twenty four page memorandum before concluding ultimately that they are did not violate the p they are in cape engaged in what they call misconduct by obtaining five year old salary information pertaining to dying corpse incumbent contract however used in any dying for it or proposal that's under spewed so the german integrity act doesn't govern here now of course business ethics is also a subject comes up in the responsibility of discrimination under part nine of the far however the contracting officers detailed responsibility assessment is not challenge by dying corp on peel so the alleged impropriety is an appearance of a p i m violation the contracting officer carefully examined that question and ultimately found concept comes up in a few different contexts it comes up in the procurement integrity act context it also has come up in the organizational conflict of interest context and it certainly can come up in the responsibility context but the impropriety has to be connected to some violation of law and there's been no allegation that there was any violation of law here  my question really goes to well at the role of this notion and appearance is where you may not have an actual violation but you have something that just makes the entire accusation  bad ok so an appearance versus an actual violation there's an important distinction here where that where there is an actual violation bid and proposal information is obtained by the contractor and it improperly and that's a violation when you're talking about the pierrots well what if the are for a war hire somebody who has seen that in proposal information they don't actually get a bit in proposal information in and of itself so there's no violation of the procurement integrity act but nonetheless because they hired somebody who has that bit in proposal information potentially in their head that's an appearance of impropriety and that's what happened here no your honor because there is no dispute that none of corp information that was in a arms possession was used in any dying court their proposal so the initial proposal it and none of the dine court information that a our had was dying corporate bid and proposal information it's as it was from diane corp's predecessor contract right that's right that information that's right and the contracting officer specifically found that quote seeking information about an incumbent contract is not uncommon and is generally done by offer orders he found no misconduct here actually no your honor because i guess i wasn't following your train of thought when you said they'd forgotten day included in their proposal that they are forgot to include the hamilton salary information in the original purpose national proposal the original proposal that's right they forgot to use include their kin essential employee salaries and actually dying corps pointed that out in one of their many protests before the jail so i don't understand are you saying that the hamilton information was not used in either the final proposal by a r or the initial proposal by a are correct that's absolutely correct and the  contracting officer also did a deep dive and compare the two proposals side by side and found there were no similarities in the labor rates between the two proposals no overlap at all in the two proposals we're talking about the final proposal yes what about the initial proposal the initial proposals the during back in twenty sixteen there was an initial p i a review that the contract is directly contrary to the solicitation language that they don't even bother to address their arguments are predicated on an assumption that the things that events rate their arguments don't exist for example  the very first evaluation criteria was administration and maintenance including the on my ass and the solicitation says that the contractor evasion contractor will employ it and maintain honor they did not what they did was they proposed to do all the o and m work from inception all the way to contract close out the entire lifecycle they proposed to do that work they had included that work in their proposal in every single year of all of the potential out years of this contract but they also included the sentence that seized upon a dying corps which is to say if a contracting officers incumbent upon the contracting officer to weigh that evidence in the first instance it certainly could be i understand the idea and i thought there was some point at which are actually did propose to operation and maintenance cost to a particular line item that's in the appendix one zero three three nine nine and amendments sex to the solicitation at one of three nine six six says the requirements agent was supports the agency's interpretation of the solicitation or said that but it was an answer to a r let's not i don't recall who asked that particular question but regardless of who provisions in the solicitation never addressed by dying for which clearly set forth the requirement for all of them work to be done by the country be a relation contractor very briefly court was not misled in discussions in this century the complaint is that the valuation notices could have been a little bit more clear in reminding diane corp an experienced government contractor that it should the information is not covered by the p i m d it argues if there are periods if shoes and that are actually positive record of integrity in business ethics i do not agree that the facts support these assertions contracting officer was correct in the star twenty four page opinion and the statute does not require any more specificity or analysis than the thorough analysis that he gave i want to get to play a few factors which you mention the brief which confirmed that the nerve center and of course they did it was the nerve center of all the operations their argument here is nervous going back to the integrity issue i have final point five seconds left the record on and biggest the confirms that we were scrupulous we did the investigation we're the ones for identified a need to hamilton we told the government we shared everything those are not the actions of corporate espionage those are the actions of a scrupulous contractor t think your honor i think that my colleague's argument actually a reinforces the reason that the decision below should be reversed and and that case remanded to the agency because they're the contracting officer did improperly confuse the question whether there was a violation the procurement integrity act or an appearance of a violation of one with the question the broader mind whether there was an appearance of impropriety which could be caused by something like for example an effort to obtain the confidential and proprietary and information of a competitor and that's really the essence of the concern that was being addressed here that the i g i think recognized in its investigation memo that is to say that they are had an employee that it knew was a former employee of dine corp and it obtained extensive information about  was any solicitation on the part of the high executives correctly there was because not solicitation originally over she may have done that on her own initiative but they responded and asked for clarification about the information that she provided so they were well aware of what the information was they knew that it was potentially useful to them in the preparation of their bid they asked for clarification what exactly did they ask for they asked for additional information that the i by which i had  something i'm familiar with that part of the exchange between hamilton and they and they are assessing so i would point you for example to a lot of these documents appear in the in the joint appendix between a r two six seven seven nine and that and there's a one of the beginning i'm sorry one two six seven seven nine  there are examples in the record where there were were a request that went back and asked for further information about some of us this material and so this is all taking place in two thousand and fourteen this information is used in developing the original proposal and i do think that the record will reflect as we address in our brief on page seventeen and no seven this information was used in developing the salar proposals t the cost proposals as opposed to the technical proposals it is true that aren't core pointed out that there was something missing in the technical proposal with regard to proposed salaries but that this information was was used in developing the initial proposal though i g found that that was the case but i do want to get back to the legal point that is significant is that the p r c has specific aspects that it refers to and i think that again my my friends argument underscores this is he says well it wasn't d i been information because when the i did its bit it didn't use this information to develop a bit but it was confidential proprietary di corp information that was provided by a former employee to a r and a are then used that information in developing its proposals and so  sort of it's that could certainly be found i don't the government in fact acknowledges in its brief that given the fact specific nature of the proposal it's would have been possible or at least as it entertains the possibility that the contracting officer could have found that there was an appearance of impropriety and yet the decision that is before that that was under review suggests that there is actually a legal barrier to finding an appearance of impropriety because of the in defending the decision of the contracting officer with respect responsibility on one two six zero nine five is base pacifically on the finding that nothing in the record shows that they