election document sept fourth the rationale to the sought selection authorities decision role would of this contract and then at the very end says based on the information presented in this document then accordance with they make the determination morning when you look at those too statements isn't i find it difficult to say that because the thing is kept in that the last page says the word decision that somehow that means we should ignore everything that's gone before even pages already considerations in deliberations read the reflection of the air force performance confidence assessment not the contracting office secondly officer on the session page nowhere considers or ops the preceding seven pages contracting office and not the court not the purpose before the court that is to be reviewed its air force contracting officer who is to make the decision in this case this is a special case normally in the procurement kind of tax you look at quality you look at performance and you look at price because in this case the air force engineers clearly decided that all three of these instruments are equally acceptable these are commercial off the shelf instruments what do you mean by off the shelf you keep her in throughout  requirements of the air force and in this case how the air force is determined that all three instruments meet those requirements and that all three estimates are fail off the sh never even attempted to explain i did before the trial court or now before this court how the administrative record this pick your opponent supports be factual finding a prejudice now before responding to the specifics of the  the government feels briefly it's important to reach the walk to the standard under which the trial court's decision will be reviewed it is a fundamental legal principle that to prevail and you pick your protest it is not enough for the protests or violation of statute or regulation rather the protester has the burden to demonstrate as a matter of fact based on the context of the administrative record that absent any violation it would have a substantial chance to receive the contract awar price is the only fact to be considered and what could be more prejudicial the move the lowest bidder and we didn't get the contract with the first step in that analysis your honour's make a legal determination of whether or not there was a violation of the regulations case and the case law in this court said that showing there was a violation it's not enough you have to go to the second stop whether or not there was a factual prejudicial impact on the well  don't you agree that if we were to agree with his could go out of what was before the administrative as well if the only issue now and supplies you know question that he has privately you are under that scenario for your honor you know the court was determined that an awful lot with an unknown competent assessment rating with the lowest price on the terms of the slow station was automatically unknown confidences ask me it's clearly contradicted as the trial court concluded by the terms of the solicitation the terms of the solicitation clearly state that even if an offer or has a neutral or a new confidence assessment that the contracting officer would still include out within its best value determination so there's two steps that analysis under the regulation because the appellant had no demonstrated past performance capability it was to receive a competence rate the second step however the regulation does not speak to the contracting officer is still zero how to take that rating and factor it into the best value equation which in this case performance even a confidence rating would be factored into the equation or performance is considered significantly more important than price and it cannot be stressed enough that this is a far part fifteen competitive negotiating negotiated per c like when you say it's time like we're talking about something that isn't really just a generic off the shelf unit what are we talking about here we talking about something as to which there is room for debate that judge friedman suggested you can go to home depot and if you have a tall enough reach you can grab it can take it and the only question then remains is whether you as a contractor have a truck that can get it from whom to my place in that not this case and if not why you know it's not your honor how does that differ from this case when you're talking about off the shelf what's different about this off the shelf item from the who the police i do not use the term off the shelf this is a very sophisticated electronic equipment designed let me raise the question a little differently assuming th whatever gets this contract do they then manufacture the device in order to meet the contract owns the stuff already there do you already in this case is a product as an off the shelf something analogous to going to department store picking up a lender or a coffee maker is a very sophisticated piece of equipment to serve a very important aircraft maintenance purpose so i don't think that's a term and getting back to the question of performance there is more to this contracting simply providing this problem providing this product it is a life time of providing warranty support and product to support and there was a this contract performance altered or is it still on hold no your honor after the trial court issued a decision this case in the government's favor the air force began to contract performance in the base year of testing and product any guidance from the regulations just as to what you do in a situation in which you have competing then doors that in which one has a track record but a track record which let's say by hypothesis is not terrible but it's spot versus one that has no track record we have any guidance as to how those two are to be assessed prior history cannot be given a negative assessment solicitation which the regulation does not discuss the best value trade off portion solicitation to this list of patients stated that it would still factor in neutral per formance rating into the best value decision if you know what you think that you factor in and doesn't tell me what the factor elipse what would give me some idea of what this elicitation or any regulate guidance there is as to how make those competing levels of performance art is it just to pick on tracking officer says miner i suppose this is i actually think that some performance even though it's been factors can be taken into account i'm really saying that the contracting officer can do whatever he or she pleases with the question of lack of prior experience versus some break that into a value that greater than a neutral performance assessment under the terms of the solicitation for performance was specifically designated as significantly more important points and is an offer going into the  and page two hundred which is cakes and it's a very close case because this acquisition is for hundreds of these engines there is no experience with the of the united states government the navy the air force and this is in join the price between which happens to be nineteen percent or seven hundred sixty five thousand dollars for those three days of product that's a very close question