to them in terms of their evaluation i try to project everything that was in my proposal i try to protect past performance information and it is a certain point it becomes very difficult to performance of the contract that contract and its performance could have no relevance to the future performance where the contractor isn't an incumbent facility and is successfully performing the not not unless the specific circumstances that the call act as a predictor to future performance because if the default involves things that can't recur it has no future applicability as in a facility that is it somewhat indicative of your abilities that you could not acquire don's zoning permit and you could not proceed the contracting officer found that the management of the permit process was the specific circumstance which relevant to the the future prediction of this contract it my government the problem with that is the contracting officer admitted in testimony that she had no knowledge or no evidence that permits were actually needed but that's an arbitrary find so if you can you say well the report not been an inability to correct a myriad of deficiencies in the pre inspection that that was there was something that the contracting officer did not cite as a reason for circumstances that can't recurrent a new contract i would go farther than that i would say that the performance can't be considered as a matter of law because the  specifically excluded performance involving facility this is this is no one disputes that the argument from the core federal claims was to call fix all factors but that's not the way has come back to it is big your this contract requires you to perform the identical services you would have been required to perform at austin and the same management staff would have had the responsibility of delivering the things services they could not deliver at austin why again isn't that relevant because the r f p has excluded any area of performance whether that performance is good test or whether that performance was bad if you were the greatest contractor in the world the facilities that performance will be excluded from their past performance evaluation and equally so with with better mrs assessment could certainly be considered right there is no risk assessment in the riskier to think contract couldn't be performed by the same people to receive that is a risk but the risk that the risk isn't suspended in the middle of reality that risk is specifically tied to is your you're making certain boxes and excluding things from it yes and i don't see when i look at this sort of selection authority decision it lists risk assessment of risks half performance hit list past five and six you will see the factors list there one of the factors it's not listed there is facility were sites are built suitability and availability which involve all the issues that occurred in austin you will find when the technical management evaluate evaluation basically you might be violated or when the oil and the medical because no one of the metals that says you have to adopt you have to evaluate and review the rationale in this case what happened was the  separate technical management factor not paul's perform the the the next issue is businesses past performance and it's related to this because business is past performance involve a community relations we attack we said the government of the kind of the good the contracting officer never evaluated in fact she had no knowledge of it she admitted she had knew nothing about the actual community relations aspect but all she knew were supposed to show positive in for affirmative relationship with the community the s s he for some reason said your readers come from a specific element of the community that doesn't count vote work shows that that specific element of the community is highly important to the successful operation of the bureau of prisons committee correctional senators court the trial court took into consideration all of mr horton's arguments presented on behalf of balance can you help us with this discussion we were having about the risk assessment of judge proceed and i were inquiring as to whether you could include the whole austin contract under a risk assessment i read to gordon a part of the r p v it says the risk assessment goes through evaluation criteria and he read back to me something on the thirteenth floor eighty three it seemed don't limit it can you clarify that yes the risk assessment component it isn't that it into the technical management evaluation so that and that's how the contracting officer and this for selection team applied it but the  as proposed based on their record of performance and current and past relevant contracts would be taken into consideration and that's exactly what the contracting officer did as required by the par but the contracting officer does have discretion under section fifteen three of five of the fire to take into consideration the past performance and to determine their relevance and of that past performance it's required it's not even discretion so she complied with the far and she complied with the four corners of the solicitation requiring her to evaluate past performance and rate them grain then we wouldn't be here would would i probably would still be here because in that case they would be arguing that they were entitled to a loan blue say but it's did she have to discretion to go down to agreeing she probably did but she chose not to and there's nothing unreasonable a facility would require substantial renovations the precise inspections that the government conducted confirmed this therefore it is relevant what happened in austin is relevant to what happened evidence in the record or any indication that permits were required bennett wasn't even at that point they hadn't started the renovation process but that's down on the spot sort of of the situation the conclusion by the contracting officer the bennetts actions and  the austin construct contract demonstrated a lack of management ability in the renovation process is in the source election decision and that is what the trial court relied  upon in deciding the case the trial court did not invent its own rationale or reach its own rationale it simply looked at the rationale that the contracting officer  so concerning its past performance evaluation then has not demonstrated that the contracting officer acted inconsistent with the far right outside the scope of the solicitation have at the bureau of prisons should have punished dismissed curt seeking legal action to resolve a conflict with the city that simply asking the court to substitute its judgment for that of the bureau and  that's not sufficient to disturb the award to dismiss and concerning that management and technical about you ations bennett has not demonstrated or even attempted to demonstrate how its proposal exceeded the requirements  conclusions of the source election team and the best value analysis conducted by the contracting officer but it hasn't demonstrated that the contracting officer or the source election team acted e issues in the administrative record about the supplementation to the administrative record the judge ruled on what the parameters of the trial court ruled on the parameters of the administrative record and none of the documents that then i'm cites to that are outside the scope of the the administrative record within the parameters of what properly make up the administrative corkery so on that basis or motion t strike the administrative records that the outside documents should be granted if the court has any questions apparently not overseen for two years old to be concluded was reasonable dismissed provisionally awarded this contract in november of two thousand and six and only started performing it in february first of this year and is now currently performing it to pick up on  to the contracting officer to determine the role in c and requires the contracting officer that it shall consider information obtained from other sources and then lose other contracts including ones that are terminated for the fall the art piece specifically defines what relevant and it at page one appendix one zero one nine one it defines relevant contract as those that are similar in size scope and complexity and the terminations for the fall of the contract involved a contract money would submit that it was in fact was of similar size scope and complexity and if you look at the store selection decision the source election authority in fact said that they were similar and made that finding and that is a joint appendix one one five three three distinct similarity as between what happened in the contract was terminated for the fault and what happened here as to the question as to whether or not facility could be  in discussions to respond to the terminations for the fault so it was given an opportunity in this picture made to respond to why i didn't think it was appropriate to consider that as to the propriety of the the bureau of prisons past performance evaluation of my client dismissed again dismissed it solve the problem where in some circumstances been did it should be noted that in the record you will see that not only did  join would with the government did in and believing what the parameters were of the judge we set parameters for the administrative record to believe that certain documents including the declaration that pages twenty thousand and twenty thousand and one should not for the government's explanation for the our people to one zero to two five of the record were two to five says specifically bed the past performance evaluation will be accomplished by reviewing aspects of an off relevant pressed present and past performance focusing on and targeted performance that is relevant to the past performance factors outlined below so this our earth is saying with its evaluated not to far  anything which in generalities the government is not explain why they have the for the way they do in it is what it is good were bad right the good the dismissive brought up this operational cable availability information that gets presented to the government the government also gets contractor evaluation forms that include a separate section that involves facility performance receiving information doesn't mean it gets evaluated because they say specifically here it doesn't so really the issue here in terms of evaluation of austin and all the things that happened there have to do specifically with only the factors they listed everything else goes in the technical management  now that the in terms of business is past performance so we're not asking the court to substitute judgment we're saying no judgment was ever actually sized because the contract an officer was unaware of the community relations past performance  in terms of the and i would have to say in terms of the other evaluation of the accountability factor that we were downgraded in conflict with our proposal and with the statement of work this wasn't just asked me talking about substituting judgment you have to read where someone said and say is that reasonable how can it be reasonable if the are a piece of something that contradicts the alleged problem with the proposal so i have a difficulty seeing that under the protective order it finally with respect to the administrative record i'll just make one comment the administrative record should constitute what goes to the g a o if the court is going to evaluate  those decisions those their information also goes to the agency so what is before the agency specifically in a case that involves multiple instances of corrective action that means the e c officials get that whole record back it's all before them i don't see why someone in the a c s can pick and choose what goes to the g a o and i'm not talking about arguments i'm talking about factual information in terms of the declaration the declaration was never challenged throughout all these proceedings until the appeal and all of a sudden it's it shouldn't be allowed in the administrative record or yes it was challenged at the court for the claims but still it's a declaration that's the kind of things you present at the government accountability office thank you diagnostic and statistical manual of diagnosis a linkage between that diagnosis and what happened in service and they confirmed stress or in this case what the court below did was to rely upon a mis interpretation that was relied upon by the board which allowed the board to consider questions of the sufficiency of the stressor which really slops over on to two of those three prongs and adds to those p those or provisions elements that are simply not part of the plain language of the regulation where the regulation does at least with respect to the third grade and i understand your thinking it applies to more than one part it says credible supporting evidence establishing whether the event occurred and in this case the event which is alleged to be the underlying stress or for mr pitt there is a diagnosis of post traumatic stress disorder is the death of his sergeant sergeant  different his stressor was built on factors not in the record of criminal activity and murder of dr i'm sergeant bell neither of which are part of the record and therefore no stressor occurred he wasn't playing the and self was the stressor he was saying the surrounding circumstances none of which are in the record and so my own stressor occurred and i'm missing something there well i mean beside all this is factual i'm wondering why we're even dealing with it well and that is frankly part of the point of the expansion of this to include the question of sufficiency of stress or because when you interpose sufficiency of stress or into the credible supporting evidence of what you've got to say well the stressor is more it's criminal activity and murder you know with respect under the d s and three a subjective reaction to an actual event which occur it is sufficient to support the diagnosis the quibble the attempt of both the v a and the court below to get into a question of whether or not the specifics of sergeant bell's death were sufficient is no longer relevant under the d s m criteria so we have to start with element one which is is the diagnosis made in a court what's the stress or the death of den there's no evidence on that because even pack says that's not enough you know but there is evidence in the record that confirms that sergeant bell died and that sergeant bell was in fact on the airplane but it's not a stress or even nobody will say that's a stress or not and it's not true that the sun came up that morning that can be proven to but that's not a stressor either you're on or they change the diagnostic criteria from object to subject in the court bellows to sit an incoherent versus brown they explain the clinical difference between a diagnosis based upon an objectively fact and a subjective reaction there is no dispute that sergeant bell dotted or that sergeant bell it was the sergeant for mr pin there and that photo because of his obsession for his psychiatric problem the question is his subjective reaction and the diagnosis made by this record is sufficient under d s m it is made in accordance with all of this medical evidence was accumulated in one nine hundred ninety seven the change in the d a s m took place around that time this case lingered in the system from one nine hundred ninety seven until the board sufficiency of the evidence or skewed view of the sufficiency of the stress or the stress or requirements under the change in the diagnostic criteria from object is to subject is was not considered by the board because they were lying upon the former standard the correct standard under this regulation is a diagnosis in accordance with four point one two five and four point one t you back to the diagnostic and statistical manual the problem here is that the board and the court below got involved in medical issues and those medical issues should have been resolved by medical experts not by lay persons by the requirements of their own regulations they are supposed to resolve that based upon the diagnostic criteria in the diagnostic and statistical manual under that diagnosis diagnostic criteria his subjective reaction is sufficient we're not here to argue the fact what the stress or the stressor is the death of sergeant bell and nobody says that allegations not all the drug dealing stuff just when was there ever a claim my sergeant died and from that minute i lost with respect your honor you are attempting to do precisely no i just think i'm just us i'm just using your allegation that all they have to do is shown that stressor occurred at a v a home one who claimed that his e a under four point one two five adopted that change in the diagnostic  statistical made that's what's discussed at length in the cold case and in the cohen case below they prescribe this whole subjective analysis my client was entitle to the benefit of the regulation as written not the rep benefit of the regulation as applied by the blue water using a standard that is no longer appropriate and the fact that this evidence may not be sufficient is not the issue here the issue here is whether or not when the court affirmed the decision below where they were lying upon a misinterpretation he made that the argument your brain that they were relying on the wrong version that they misinterpreted that based upon the that definition that appears in four point one two five yes i i don't think you argued about misinterpret don't ever get the point they relied on the wrong version while i may not frankly have explicitly said that your honor but that is implicit in the citation to the court decision below in cola that's what this entire case is premised about precisely the question that you focused in on which is it is the death alone sufficient and this record answers that  say that they can't rely on this sufficiency question and that simply is not consistent with what the regulation requires the regulation requires a diagnosis in accordance with four point one two five and all of the use the death toll on the stressor no your honor based upon the medical opinions in this case and the board's evaluation of those men both opinions the board determined that the stressor was the death of sergeant belt plus the surrounding has to do with the nature of the stressor in the board found the stressor to be plus all of these additional circumstances for which there was no corroborating evidence mr pender is here arguing that the nature of the stressor is simply the death alone which we agree has been corroborated so that's an argument over which this court lacks jurisdiction he seems to be raising for the first time here another argument concerning the board not considering the  new regulation that's not something that he's raised before and therefore should be waived but even if this court were to consider that argument that argument concerns the medical evidence the nature of the medical evidence that the medical  reports themselves are what say that the stressor is something more than the death it's not the board saying this transfer is the board simply looked at those medical opinions and found that those opinions were based upon stressor which was the death and the surrounding circumstances and mr pindar also argues in terms of interpretation that there's nothing in three point three zero four and that requires a look at the sufficiency of the evidence but that's plainly certainly allows consideration of the sufficiency also the second part of three point three or four asked which is a link to status by medical evidence between the current symptoms and service just or clearly all the board did was look at the medical opinions which found that those of the stressor which was hard bells to last the surrounding circumstances was sufficient that there was no evidence from the medical reports that sergeant bales to alone most efficient that finding a was consistent with the statute even if you accept mr pindar as argument the third prong of the claimed in service strasser that that part doesn't necessarily involve an evaluation of the sufficiency of this test or the other part certainly do so even if he were able to meet the third prong by showing that charging bell died alone he could not mean the first or second round and would not be entitled serv as it's not a question of the new version of the regulation it's a question of what the regulations require the regulation requires a diagnosis in conformance with she says even if you don't make the grade you still have to have going between the structure and the symptoms and i believe that dr petit opinion at least provides a link to that when you're not when you factor out this question of  pitter experience is sufficient stress or involving the death of sergeant bell to warrant a diagnosis of p t s d so he does say a sufficient stressor based upon the dead and the question here is the criteria under d s and four and not the criteria under object it verified cation of the specific details surrounding the event after only or as we're dealing here with a psychiatric disability we're dealing here with somebodies distorted perception of reality what's sergeant bell was or was not involved with is a part of what's going on in mr  reach a different medical conclusion yes and a newborn hides with them isn't this really a she said a question weighing the evidence no you're wrong because this that diet scuse me compensation for post traumatic stress disorder is unique amongst disabilities in the v a system there is no other specific regulation tied to a specific condition the conditions here are three fold under the plain language of the stress or it is the basis for the diagnosis and dr peck links that to the death which occurred during his period of service that should be sufficient as a matter of law on the correct interpretation of th regulation thank you very much