the district court there's been a lot of activity in the court of federal coin you've three lawsuits as far as i can tell and it seems to me that those lawsuits resolved the issue of whether the qualifications change was arbitrary and capricious does that in effect no doubt a lot of the complaint all a complaint or none of it well our position is that it does not move out the complaint because the issues that were raised in the court of federal claims are those in connection with a particular and the position that the forest service has taken is that it was deciding what to buy in a particular procurement issues that were before the arizona district court were more were broader than that were further reaching understood i understand that but i mean are you taking are you now saying that none i mean the forest she looks to me to be identical the c i c issue looks to me to be identical and to the extent that you're complaining about the change itself in qualification that appears to be identical and that's also not in the complaint at least as i read it is the way i read it that would leave only the question of whether this was a quote unquote rule making process somehow i would agree that it does leave the question of whether this is a rule making process i think there is to the extent that any issue with respect to yes and that's really the issue that caused the problem here it is still on appeal the the argument as to whether or not the forest service properly amended the specification to to exclude fire retardants containing y p excluding gum thickener has been appealed part of the problem is that that appeal may very well be resolved on different issues and so we don't know intil the court of appeals for the federal circuit rules what the grounds are on which it will rule and what it will we've still pending as we've been arguing it has been argued it was actually argued earlier this month but i mean i guess the difficulty here is even if there's a rule making aspect of this case that's left even if i'm not sure the reus but even if then doesn't that just bump squarely into what's going on in the federal circuit it does affect what's going on in the federal circuit certainly i mean there there are very similar issues but this issue is the adoption of regulation which applies across the board which is has been relied on for example by the state of california and so it is further reaching than just the issues that  back at it backwards into it what would happen if we or the district court agreed with you that this was a rule making proceedings and so it wasn't done correctly what would happen if it wasn't done correctly then i would anticipate that the forest service would be directed to go back and comply with the requirements under the a p a for adopting a regulation occurred as far as the current contracts i don't know i don't know that we will get through we will get to that point before the current contracts expire in fact i understand that there is a new procurement cycle that should be starting late this year early next year if they follow the traditional procurement cycle i'm not sure what the current factors are but could it be so i don't know that those contracts would be affected what would be affected is my client's ability to continue preparing fire retardants and would open up to my client the arriving at these changes in the qualifications well the decision was with a particular procurement the forest service could could have made that decision the issues understand the reason is that there is some amount of discretion given to the forest service to decide what it  in adopting a regulation which is a broader scope the administrative procedure act requires that certain information be taken and considered in this case unfortunately for my client the court found that the forest service didn't have to consider that information in deciding what it was going to procure in a particular procurement but under the administrative procedure act that information have to be considered and we remain convinced that if that information is actually considered that the finding would be that it is not in fact supportable that it is an arbitrary and capricious decision to ban this and that would require that in  to the pure rule making question reverse that's one possibility that is and i think that that's acceptable because we view the substance of the complaint to be a challenge to the rule making so to the extent this court did find there was some piece of it that was applied to a particular procurement i think that's fair but the majority of it really is the a p a and the other the other alternative on our travels to transfer the whole thing to federal circuit and let them sort it out and it's i think it's obvious making but if the i think procurement issues control that they would decide that that is true but i would urge this court to follow the teachings of the tenth circuit and define and actually to follow the teaching way different situations at all because they're there with the city wasn't in the ballgame in cities never has been a better isn't a better won't be a better it just it isn't in the it isn't the player but it is the no that's a standing question from the point of view of the courts federal claims whether you're an interested party or not simply is a timing issue they didn't entertain exactly the big protest i mean so it's a timing issue from their point of view it is but it's also a timing issue from our point of view because if you deny my client access to the arizona district court they never have the opportunity to challenge improper rulemaking because improper rulemaking is not properly before the court of federal claims as stated in the automated communication systems so the only opportunity for my client to challenge this rule making procedure under the a p a the violation of those  why that is because what they're asking for what they ask mr court to do was to stop this program and process stop the fire service from from moving ahead with this decision to only buy a certain product and the district court correctly held that was through the a p a but the a p a says that only final actions for which there is no other adequate remedy and a court are subject to review and there is here because what they were asking for is like i said to stop this that wasn't even amended until two thousand and five after this case commenced so all they're all there pointing to are the statements in letters and perhaps oral statements in two thousand and two thousand and two from forest service officials telling then come the two thousand and four p letters because they have their day in court on the foreign service the determination that it wasn't going to buy white the soda when it was going to buy fire return it without going thickener so therefore the a p a does not cover this action because the substance of this action can be heard and once or by the court of federal claims all they had to do was wait until a solicitation hit the streets and say look that's elicitation has to be set aside because it rests upon an amendment the adoption of which was arbitrary and capricious if this went back to the if this went back to the district court on on on that issue with respect to the two thousand and two thousand and two statements then that would run the that the science wasn't good the interpretation of the science wasn't good and congress didn't want that congress wanted to consolidate all those issues and not just solicitations and not just awards but any any decision any ninety one b one is very sweeping and it doesn't and it includes even the early stages of a procurement process including the determination of needs and that's all that is so in order to be consistent with congress intent well same category as the sitting in the tenth circuit case well fortunately these facts fortunately for the government these facts are not like those in the city because they were after all the income and that's the whole they were always going to be that they were in the incumbent there were only two manufacturers of fire retardant to begin with so they were somebody who congress expected would wait well it's the end of the day they didn't get their day in court they didn't get to a trial or i think hearing on hand i mean and your and your argument as they're not entitled to anywhere anywhere in the united states until until now they thought they did they did have their game court date they had their day in court on the issue whether the that the substance of the that would be the same substance substantive argument that would they would be making making to the district court and it's just a court were to get into that that would run the risk the very best that congress sought to avoid of different and then there wouldn't be any problem well there wasn't any problem this case i do want to because eventually this listening to the solicitation hit the street incorporating this determination of the far services needs and the very same arguments were heard and and lose when it's too late to do anything about not a very satisfactory solution for somebody who knows you've adopted a regulation that's going to make it impossible for them to comply and it may take some time little thank you for i think what this comes down to is really the fact that in order to challenge a rule making procedure the district court must have jurisdiction so that there is some process by which a violation of the a p a as opposed to a violation of procurement statutes or regulations can be challenged this is what we seek is the opportunity to raise that violation of the a p a that failure to  that would contain those restrictions i think that would be part because that would be part of the application of the rule yes that would be an necessary part of it otherwise it's meaningless to say you have to go through the a p a but we're going right th appeals for the federal circuit the issue is whether or not the amended specification which dr these rules into the specification was properly adopted whether they followed the proper procedure so i don't know that there's really overlap the issue of whether this constitute rule making and whether it was done properly is not before the for groups if that is not before the federal circuit but the issue of whether the specifications the call the specification was arbitrary there was a protest that raise whether using these specifications using a restriction on like the soda and a requirement for gum thickener was an abuse of discretion the court found that it was not an abuse of discretion in that instance but did not take any testimony or consider any of the evidence that fire trial would put in a rule making challenge in looking at that issue that is no longer at issue that has been decided and is no longer on appeal the current appeal is when the forest service attempted to amend the specification they didn't do the proper they didn't get the proper approval for adopting a restrictive specification and notice that's the problem i mean i just don't understand how you're going to end up with with with conflicting rulings or bruises that bump up against each other when they conflict ultimately aren't you know because in the a p a procedure there's a requirement that they consider public notice and comment and it's a rule making process and that's what we have contended in the complaint and that's why we say that the arizona district court has jurisdiction to consider whether it was an improper rule making process and they were required to take public notice and comment and consider what my client says shows this is arbitrary and capricious my client has no other