through not through competition but through a non competitive process involving a new a mandatory source why is that why is that clear that it only applied to a competitor work was it what war is what is it in the statutory language is there anything  framework which would be seek and the far the if you want twenty seven c tells me eight how to have a competition but it doesn't tell b a when to have the competition v a needs to look at seagull and the far to determine when it should have a up provides some important exceptions to when the agency must have open in full competition one is when there's a mandatory source and that's what we have here with the j why the ability one of thirty three zero four and five provides a specific exemption to open in full competition in the j y is one of those exceptions it says that the agency shall prepare the product or service from  i'm confused because it seems to me the government changed its position a few times as we got to this point so the position you're articulating today is consistent with the position at some point but it other points right the regulations  and said ok we're going to apply this for what's already on the caramel list but not for future editions is that right so how does the position that the government took at least a couple times as we were getting here comport with what you're telling us now about how competitive stuff is not included so it's important sorry your honor what's important to recognize is that v a has consistently taken the position that the j the ability one procurement list is a mandatory source and in later in two thousand and seventeen v a tried to draw a bright line rule but still understood that the j wide ability one project list was a mandatory source for at least a portion  of the time before january two thousand and ten and so again the distinction here is between competitive or carom and where the rule of two would arise with the rule of two is a form of over strict competition well it is a restrictive competition it's still a competition but we never get to whether v a needs to have a restricted competition if there is a mandatory source like we have here and the far tells us that this is a mandatory source so not only to see take the j wide completely out of competition and make rules for competitions such as the rule of two in a political but we have the far and that's an eight point zero zero two telling us that the ability is a mandatory source so sort of in the hierarchy you would have he would have the contracting officer would first look to see if there is a mandatory source if there is the sort of the end of the inquiry for the contracting off makes specifically prioritizes contracting preferences for b i that was in the two thousand and three veterans benefit act and then you have eighty one twenty eight a which is in the two thousand and six veterans benefit act but not a similar comp or not a comparable provision in the two thousand and three veterans benefit act so you see congress approaching the the issue differently and because congress didn't for for example in the re case where there was an issue about changing changes in the bill over time and congress deleting a provision in the final version we don't have that here we just have congress approaching the  issue in two different ways and providing for example an eighty one twenty eight but they but they did it two different ways through different time frames and one they specifically provided for a broad  exception and then the other they did write that is true but we can't read the two thousand and six b b a to alter the normal process where a contracting officer would go to a mandatory source and then if the mandatory source doesn't isn't if there is no mandatory source then to move on to non mandatory sources the court can't read the congress to be altering that it was not meant to apply to all contracts because first of all it's talking about restricted competitions which is a term of art that falls under eighty i'm sorry the falls under siege thirty three  three which is still competition but just one form of competition it's restricted to a particular usually a particular socio economic group that the congress is trying to promote so this is the language language referring to contracting generally but would scheme is that nowhere does the court indicate that it is addressing mandatory noncompetitive sources like we have here and the issue in that case wasn't  about mandatory sources or about the federal supply schedule which is not mandatory and noncompetitive it is a sorry it's a competitive process which the trial court got wrong the truck misunderstood that and the court never mentions or even discus mandatory noncompetitive sources but while the court silent on those on a mandatory noncompetitive sources the court does mentioned specifically in several places competition in competitive procedures so for example  hundred seventy seven in the ports opinion when the court says it minutely that the department is required to use the rule of two before awarding a contract to another supplier in the very next sentence the supreme court goes on to say the use of the word now demonstrates that anyone twenty seventeen mandates the use of the rule of two in all contracting before using for credit if procedures so that general language that's referring generally to contracting and came to where it needs to be read in in the context of the issue there and the fact that the court then goes on to specifically reference competitive cricket or mets i know your time is up so i'm not going to count this against you but i just have a housekeeping question that yes your friend can use can an swer as well i just want to make sure what contracts we're talking about what we're not talking about it's my understanding that the only issues in dispute here waited to the contract for the i s two and seven is that contracts and had to have dates september thirtieth two thousand and seventeen and the contract by twenty eight hundred january and then she proceeded to state her judgment so have those contracts not been a warded at all the ones that she was referring to are they just state the award of those contracts or stage the trial court stayed at her and junction which was going to require v a to dado september thirtieth twenty seventeen in january twenty first twenty eighteen has the government gone ahead and awarded those contracts the governor has gone ahead and awarded contracts to the ability one nonprofit agency once can salem and those contracts get on done does the other side a just get an award of new contracts what's the relief provided assuming of course that we would or from the c s c there are you know i don't i to be honest i don't know exactly what mechanism v a would have to use if they would have to terminate the existing contracts for let the first because some of them are and one of them is an r and has option  periods so the option period could run and then v a could choose not to not to renew or are trying to additional option periods thank you writers there's been a lot of discussion about the mandatory language in the two thousand and six phoebe end but the j walk statute also contains mandatory language and also has and what guide i appreciate that and i think we all understand what that language says so i don't mean to cut you off but so what to do with that one of the rules of construction when you've got there's no dispute you've got to mandatory statutes and what do we do is one of the principles we apply we just more specific or less specific do we apply a temporal thing the blast one important can and here is if you can try to reconcile the two statutes to give meaning and intent to both that's what the court should do and so here in order to do that it's important to think about the context not just that my colleague from the has been interpreted for over eighty years and so for congress to simply decide that it's going to make a big change in the way that this statute is applied without mentioning it would be at a minimum odd and so what are we to take from that what clues to congress give us there is a a to decide which of these are going to use you now have to put the veterans organizations first but isn't that the whole i mean that's the whole point of the two thousand and six act is that that it was to benefit that turns including disabled veteran it is our understanding that i appreciate you bringing this up because there has been some was falling down the court below as far as what contracts were at issue on this the government tried to evade some of that through some partial corrective action but as i understand it  the latest information i had was for visit and two there was a contract in place through september thirtieth two thousand and seventeen with an option to run into january thirty one twenty eighteen that's as far as have been various shorter term bridge contracts for the period between six nine twelve months i'm assuming that those have been awarded but i don't know exactly that to for certain that's for a visit and two for business here what kind of relief would you be entitled to with respect to friends that contract with fundamentally your honor we think we need to go back to a rematch to judge firestone so that she could set a new dates a p d s has never taken the position that a contract needs to stop in a moment and disadvantage the veterans that the v a is supposed to serve we've always recognized that there are main evidently need be a wind down period and we would recognize that that would be here we we were reluctantly ok with the dates the judge firestone set of september thirtieth twenty seventeen and january thirty one twenty eighteen for the transitions on visit two and seven those were not the dates that we would have preferred but those were the dates of the v a represented were all that they could accomplish and the judge firestone gave them the benefit of that doubt we think that frankly going back again there would need to be some discussion with the v a as far as what's practical what's feasible  case as well out in colorado and i don't know the exact steps on that but i believe that one has also been state yours one is david gallagher i'm here with miss emily kerio on behalf of p d s consultant to absolutely or are ok and so that leads her to say yes there is a way why is that wrong if that's a principle we're supportive try to a plot so we would agree on this point that is important to reconcile these statutes and that they are not necessarily in conflict although they do exist in tension the fundamental problem with the formulation that the government has presented is that it undermines the plain language of the veterans benefits act that is designed to put veterans first their attempt to reconcile the two statutes puts the ability one first and veterans second and with all due respect when it comes to the the two were in direct conflict they're both mandatory and with respect to this particular group of contracts there is a mandatory dictate in both statutes so there's a conflict right that there would certainly seem to be in the situation there's statutory interpretation you would have a supply is what specific versus general well we would start by looking at the plain language of the statute eighty one twenty seven d sets out and is the u s supreme court unanimously held in the kingdom where  decision it sets forth an unambiguous shout requirement for that is also true of the earlier statue that's absolutely true you're our head and so that would then lead us to some of the of the parallel or to the canons of construction that have been included in our and there's the issue of the more specific would override the more general and there's also the later in time would override the the earlier in time and i think frankly those two canons are informative here and they certainly seem to indicate th a in the v a only should apply the v a giving the veteran on small businesses priority over ability one for v a procurements fundamentally the ability one program will still have priority throughout the entire rest of the united states government that shall is clear because the mandate under eighty five zero four eight is clear that in the end really you're creating an exception to that statutory requirement that's that there are no exceptions from from purchases for purchases from anyone other than a veteran on small business kingdom where specifically recognize that doug didn't authorize purchases from the federal supply schedule but it says it's because there's no exception noncompetitive contracts versus competitive contracts that issue was not in any way shape or form presented to the supreme court in america well i would agree your honor that the facts here are slightly different from a kingdom where but i think that the whole being in the court twenty seven give me what mandate does eighty one twenty seven give to the v a to purchase from veteran and small businesses and the instruction was that subject to certain exceptions limited exceptions in some paragraph b and c of eighty one twenty seven that allows for for noncompetitive processes amongst a veteran of small businesses for lower value procurements eighty one twenty seven d mandate is that in all other instances the kingdom or decision here that says we quote hold that that eighty one twenty seven is mandatory not discretionary it's text requires the department to apply the rule of two to all contracting determinations and to  award contracts to veteran own small businesses the act does not allow the department to evade the rule of two on the grounds that it has already met its contract in goals or on the ground that the department has placed an order through  through the various advice get i don't think it's on the ground that the jury and sets have different priorities right that's not a question that was address it's not a question but specifically what was addressed by the court was whether or not there were any exceptions freely acknowledge that nothing today with twenty seven says that this will apply and override the ability one program it doesn't say that but what the court acknowledged is there is no language in eighty one twenty seven that allows for purchases from from any other source outside of that or in on small businesses do you agree with your friend on the other side that even before two thousand and three that the ability one was was you as an exception to of contracting even at th yeah i think that's i think that's true your honor and i think probably rightly so prior to the enactment of the of the veterans benefit act if there is a priority for the ability one program what was the import or the impact of having put the ability one exception expressly in the statute in two thousand and three and that it not appearing in the statute in two thousand and six well i think what it shows your honor is specifically congress knows how to set the priority that it wants t he agencies to implement and in one situation where congress considered priorities for veterans in the two thousand and three amendments to the small business act that's specifically considered discretionary set asides government wide for veteran ability one priority that's built into the statute it's subsection c but in this situation with v b a there's no such language that gives priority so i think what this court should take from that is this court knows how to express priority when it wants to another point on this your honor is that the ability one program the j watt statute actually also employs this this canon of construction that congress can specifically spell out when something has  priority forty one u s c eighty five zero four being specifically states that the federal prison industries program shall have priority over j wad when it comes to buying products so the fact of the matter is is even the ability one program that is trumpeted is so inviolate here throughout the briefing even though the statute recognizes that there are still priorities that ride over that this is important i think your honor because the v a has recognized that the v b a takes priority over federal prison industries so if we have j walk down here at level three federal prison industries by statute is above that and then above that we have the v a that has previously recognized including in federal register sites that we identify in our brief that the v a has priority over that i think it's clear here the order of the priority that congress is trying to express what the government tries to  reference in eighty one twenty seven v two mandatory is frankly the mandatory shout language but that word mandatory that the government has pointed to as requiring some sort of a special or a different  for ability one that's that's an invention that language does not exist anywhere in eighty one twenty seven d and the government's attempt to try to pull in and graft in concepts from the small business act and from the competition  contracting act in the far i think frankly that's that's not the proper way to interpret this statute the u s supreme court indicated that this statute was unambiguous and so i think we start with the language it's in the statute and when it speaks in terms of of competition amongst it when it speaks in terms of competitive procurements in any one twenty seven pm restricted competition i think it's rather clear that it's not referring to the ability one program but rather restricted competition amongst the veteran on small businesses when the rule of two is satisfied with regard to references to competition would override and should frankly drive the policy that six pressed in the federal acquisition regulation is it relevant that this contract was awarded by contracting officer rather than by the secretary i don't think that's unless the court has any other questions p d s respectfully request this court to affirm the trial court below and  the goal here is to harmonize eighty one twenty seven with the j wide and the court can do that by reading any one twenty seven these plain language and restricting at to the situation where b a has in accordance with a whole set of rules for determining whether it's going to have a competition rather be a has stepped into the competition lane if you will the j y it is not in that lane it's over here it's a different set of rules it's about a noncompetitive process and eighty one twenty seven big question is whether i'm sorry the question is whether the v a obligation to conduct the rule of two exists only once v a has determined that it's going to have a competition and that's what a restricted competition it is once once the v a has determined that it can have a competition what's it going to look like and here v a never gets to that step of determining what its competition is going to look like because the  can use that urgent and compelling basis for avoiding competition altogether is are we to read anyone twenty seven d to mean that now the v a must first determine if the rule of two will apply and can't go to that that exception competition all together that's that's what p d s is arguing is that the statute requires competition full stop then decide whether it's going to be restricted or not and you've now cut out of whole a whole  was whether the v a had an obligation sorry whether v a could use discretion to use had discretion to use the supply schedule once it met its contracting goals that's not the issue here and i just one last thing i'll say is that there's nothing in any one twenty seven that suggests that congress was trying to override seeker and the far and so again if a court puts anyone twenty seventeen in the competition lane and recognizes that