ok our next case this morning is number seventeen twenty one fifty five and i will service group versus united states before you begin mr major as are your grounds for two two things one we only want to hear we're bottle from one council so i guess that means mr snecking work needs to use his other minute in his opening argument and then second we'd like counsel in these  the result of the corrective action not the sufficiency of corrective action the agency spelled out what it was doing in terms of the corrective action into declaration before the court so it knows exactly what the agency was doing it submitted a proposal in response to the agenc challenge as a result of the corrective action if the crack that's unsatisfied and the result of the corrective action as could any other party that ultimately be a new lawsuit yes and it could also start it could have started a lawsuit were actually in this was another party that was not happy with the sufficiency of the corrective action they did institute a separate lawsuit and that was that was dismissed yes and i was dismissed do with this corrective action was found by the court to be reasonable in the circumstances and also with regards to continental continental at the time could have of jackson's death and i could have said simply and i and i i don't think it could have why don't it could have based on the facts but at continental felt the corrective action with insufficient could have said you know we have these claims in our complaint these claims are not addressed the only claim corrective action doesn't address is count seven which the court had already dismissed and which continent is the sort of tool for the corrective action your honor the agency is undertaking corrective action we don't know when it's going to be completed you know why now your honor the last time the government made an estimate or department education made an estimate it was a seriously incorrect and overly optimistic and we have to acknowledge that it h to complete the corrective action sometime in august that has proven absolutely untrue after started going through the proposals in attempting to evaluate them the agency has multiple tasks house to a value weight the i believe it's thirty thirty eight offers that it's received and it's to compare them and it's to consider you know which offers the best value to determine how many of warrants it's going to make and that involves a lot of back and forth between various components within the agency and so as a result started in may started in and if the second part of this injunction on the dilution theory is so harmful for the government why is it that you didn't renew the request for a stay here when the court of our claims didn't act on your stated motion in that court for months or your honor we already had a request pending this court has held that that was going to be held in abeyance i think we held the same perspective initially that the court of federal claims would act promptly on it and that request for a stay would ultimately be resolved it was not that's correct but we believe ultimately that this court is aware of what is going on and determined that we simply shouldn't be spending our time as much as we could going to the court and making requests for relief that we've already made and constantly asking this court for the same wealth in case you don't know there are two separate panels t deal with these matters one is the motions they enter their order and then the case goes to a merits now which was nice fine until six weeks before the argument and just for future reference and yes your honor and that's why also consistent with this the judge is the judge of the court of federal claims was aware of the motion and would act on it promptly we were incorrect but nevertheless we had hoped to give any given how motions to proceed in previous in the past in this case they were very quickly resolved that just simply there are no finding supporting it in terms of form but more to the point at the end of the day what this does is it stays contracts that are not at issue in being directly protested at or to federal client continental hasn't challenged the small business department of education who are in a position where quite simply the department of education can't provide them the help that it would like to and it would need to as a result of the court's injunctions you know we're not aware of any case in which the  pacific work but i could imagine a context say perhaps we had a requirements contract this is this is what's known as indefinite livery definite quantity contract in which case there's no particular set of account that are assigned to that particular contract should show when you get an award but requirements contract is a little bit different requirements contract you're supposed to give all of the work to one particular contractor and in that type of scenario i might be able to envision a situation completed the corrective action what it will do stay the ward saying you can't proceed on the contract you can't do any work on that particular contract and here it is so so if the department of education decides this corrective bringing back to life but in any event this case can't be said to be moot simply because the department has initiated and pretty even taken several steps down the path of corrective action well the agency has committed itself to corrective action it's put a stop work order in place you know simply the contracts do yes they do when used to exist in this case but again you can't because we're taking corrective action we can't proceed with those  something until it actually does it why that is the case well the age of government in finals motion to dismiss until the government had initiated its corrective action so we've actually started to do our our corrective action and there's no reason as the court may be entrapment to believe that we otherwise will not do it if someone did object to the substance then we having a dispute an ongoing dispute about the scope of our corrective action about what we are going to do and in that case yes the case will not yet protester in that case or elsewhere have available means for securing relief for a period during which the erroneous contract was in place no because the only s us and yours i would like to you for that reason i would like to address the second part of the injunction and specifically the eighty econ tracks you were term extension contracts at the beginning of mr makers discussion there was some talk about the different lawsuits that could be filed obviously it's a basic principle that an injunction is an extraordinary remedy that must be tied to the specific claims at issue here or there are no actual claims in the lawsuits in this case and in fact there are no claims anywhere at this time challenging one through six they only challenge the large business for current and the large business awards from december twenty sixth they do not challenge the eighty contracts well honestly that that is an insert to the question of whether requests that the court order education to give concert work under its eighty contract it was only subsequently that once it once its eighty contract expired they came up with this new idea that there would be dilution of large business contracts and now miner can never recover so pioneer and all tran are the only parties here that suffer irreparable harm by the by part two of the v i i and that's a factor that was never considered by the trial court and we agree with alternate d o j that the entire diversion right what what did you put in that would support the notion that the government was diverting work from the perspective a warning that would result from the corrective action to the small businesses in opera houses what evidence is there that it was going to divert or so what we presented to the court iran or is that prior to the improper conduct here that is alleged in december the large contract holders were receiving two thirds of all transfers small businesses were receiving one third and that was presented on a spreadsheet attached to our complaint what we also explained to the court is that immediately upon the illegal wards being in joined the government started sending one hundred percent of all transfers to the other contract effectively back during all the work we call it  on we are honored obviously we respectfully disagree with that view if it were loud to continue transferring accounts during the period of this protest as you can see one year is passed over one million what's the evidence the government was doing something different we respect the books or the small business contract and it was at your honour's if we would look at the complaint and we would look at the exhibit attached to the complaint chart full of data if we look at the storable transfer history you'll see that the large contractors five of them one of which was concer which is the predecessor contract the contract that's being protested were receiving two thirds of approximately two thirds of all transfers by month well you'll see is immediately after the conduct those contractors receive zero and all of the work was shifted over to the small businesses what we allege and what we believe to be the case is all of the work that would be going to those five large contractors is ultimately work destined for this and what's what's the evidence that was shifted over and i'm looking at this bottom of this page where it says total small unit it was numbers i guess these are numbers of accounts right correct so lords were receiving approximately two hundred thousand account transfers roughly give or take some months four hundred thousand some months one hundred seventy thousand but you'll see the activity up and through the legal awards you'll see it then dips down to zero well let's take the small businesses for us because that's what you were talking about pottle small but there's an easy to be a pattern of increasing the awards to count given to the small businesses run your honor your honor what we would submit to this court is that the department of education was not withholding transfers as you've heard counts for the government say these are these are borrowers that they want to assist so they're not withholding transfers they're sending all their transfers that are available at that point in time so you're correct that the numbers fluctuate in the point is that the large businesses this controversial we haven't heard it was novel the numbers fluctuate that there's was somewhat consistent in the sense that they're giving the one hundred thousand hundred fifty thousand or so pounds to the small businesses i don't see any change over time here that would suggest some sort of  consistency is in the proportion of distributions if you if you if you evaluate the historical data which we have the large businesses up until this illegal war were receiving approximately sixty six percent of all transfers puts focus on a small business what what's different about the small businesses they're receiving one hundred percent of all transfers are honor so limited let me see five if i understand what so if you look at like the last five columns i start with the november sixteenth and december sixteenth and you look at total large at am i allowed to read these numbers yes you're sure you have well that look at november so you have two hundred i can't see this is too small two hundred five thousand or something to the large and a hundred and forty to the small and then the next month you have fifty six to the large and one hundred thirty nine to this law and then the next month january of zero to the large  right and that's the shift here that's the shift and the reason in december we received some france versus because the awards came out on december ninth or eleventh and the department of ed makes their transfers that week so we believe they downshifted we've actually alleged that at one point that we believe we are being punished for pro pursuing our protest rights but you do see that shift goes from goes from a large number each month which we believe represents about sixty six percent of all transfers to zero and the key point we made in judge green agreed is that this was deluding this particular moment and we're here to preserve this for term and no one is harmed here because this these transfer under the twenty sixty opera the five large businesses that we're talking about your honor are surrogates for this contract that's effectively an award term extension bridge contract to your contract for this contract we challenge the diversion concerns diversion put those two contracts into the small business contracts correct no there's been no diversion to the war term extension contracts they were only awarded contracts three months four months ago in the midst of our lineage aversion the version was to the eleven small businesses and now the department of education desired this is a very important point i want and i want to make it very quickly the award term extension contracts that were just awarded were warded to over two years after their original protests they have no relief now because they didn't obtain an injunction like concert i don't understand the small business contracts were entered into on the two thousand and fourteen two thousand and fourteen there's been no challenge to those contracts are not the small businesses entitle to receive accounts pursuant to those contracts what's the matter with that you're honor the i fully understand and appreciate the concern you're expressing in so during our may twenty second hearing we had actually suggested to the government and we noted this in our complaint that the status quo before the illegal conduct was a situation where there were parallel procurements with two thirds going to the largest one third going in the small zone what we proper but there's no cap on this injunction it just says you can't do it because the department of justice was unwilling to provide data to the court and it's in the may twenty second hearing on the record in the appendix they refused to cooperate with the court's efforts to fashion appropriate relief here so with its hands tied behind its back the court did what we believe was reasonable and we don't believe it's an abuse of discretion for the court to say i'm going to pause these contracts is soon as these awards were made and if they were made promptly you would have a situation where the department of education could begin to say it's because the government didn't agree to the catch it was appropriate for the court a federal one it was not to impose a catch the court a federal claims does not have access to the data first of all to start micromanaging or administering that contract this is going to be your job to provide the data and if you can't provide it from your own resources you can ask for discovery to get it but the you're complaining about is the potential i guess that the small businesses would get more business than they would have otherwise as a result of the corrective action or action by the government and that you wanted to make sure that they didn't transfer the businesses that accounts for the small businesses that would seem perhaps justified injunction saying well it's much smaller businesses have to get the same amount they were getting before they can get anything additional but that's not what the injunction sets your honor man addressed the court respond to this particular issue so the small businesses are not entitled to any account transfers it's not a question of entitlement it's a question of whether you have any basis for denying the kind of level of service and that they had before so so that was point more and there is no legal entitlement want to make that point second of all the small businesses received over three hundred thousand account transfers during the january february march timeframe of two thousand and seventeen they were continuing to service those accounts there's also been millions of transfers before that the they were continuing to s the problem for the court of federal claims as you can imagine the number of divergent interests arguing here would have been for the court to get involved into the administration of that contract and to set a cap and to manage that as you can tell the department of education would ask for discovery on the stage we i believe we did your honor i believe we did even we didn't think it was about march timeframe your honor march or april time for it probably it will time from your honor and what we did have the e mails we exchanged courson are you did  file a motion no motion your honor compel the stuff and no we did request the record in the case but but the final point i want to make on this particular issue is that the for the court of federal claims to get involved in the in the business of caps and setting ca would require the court of federal claims on a monthly basis to trust the department of education's pool number so the department of education would have to give the court a pool we have two hundred thousand transfers available and now we want you to cap those at one hundred you know at sixty sixty  or seventy thousand to reflect a third the court could not get into the business of administration in even if this court believes a cap could have been employed employed the fact that the court did not employ a cap does not render its decision an abus the court was was was doing its very best under the circumstances to effect to fashion appropriate relief it balance the party's interests here it considered the divergent interests and it ultimately determined that the best approach to preserve this particular moment was a pause and it was invision to be a temporary because the government told the court since may second that it would be taking corrective action your honors i want to make three final points here and that is the issues that are involved and you're actually out of time so i will give you thirty seconds and thirty seconds thank you your honor the issues involved in this case are so significant for government contractors that the way that you come out on these issues could determine how agency structure prevents in the future and moreover how protests are litigated if if the agencies are allowed to set up and structure parallel or term and see protest will never have the type of effect it was intended to irreparable harm will never be able to rest in the agencies can always  thank your army to please the court tom cole to represent progressive financial services inc my client progressive has a slightly different interest before the court and as you heard the government say a party can in fact challenge the sufficiency of corrective action and if they so challenge corrective action their protest is not moot that is precisely the position that progressive is in that is precisely what progressive challenge progressive has in repayment account s under its former incumbent contract that had the process been completed timely and correctly it would have been a position to retain those accounts so that was the status quo at the time of the illegal improper for chairman action that the g a o overturned at that point all we asked was the right to retain those accounts until a new award decision could be made such that we would be in the and we would have been in had a proper preacherman process taken place education would not allow that to happen they insisted on trying to recall those retained accounts and so we pushed forward with an injunction i think the trial court probably saw that without an injunction we would suffer a media limited pie of work ultimately it's more like a river as the court itself ultimately did recognize you have a contract for a period of time you can receive an account on that contract during that period of time while you have that you're not given a certain percentage of work you're not guaranteed a percentage work as for the numbers and explaining the history of those you know in december was when the g a o protest was filed we weren't assigning you work to other contracts the smalls had been in a ramp up period those who had existing or term extension such as continental when a ramp down period because their contracts works firing in april of two thousand and seventeen so ultimately because the small business is no let up of a demonstrated that they could sufficiently handle the work they were handling the majority work as of december of two thousand and sixteen and in that in that chart and it's the number in the pool remains steady indeed slightly increases between december sixteenth in january and february seventeenth the dollar amounts will drop some of that the number so and yet the smalls get everything in those two months yes because at the time the remaining eighty s were in ramp down period and we had existing contracts to small who had been spending the last several years ramping up and demonstrating that they i could handle capacity at the end of the day the peak the what the amount of accounts  receive will depend upon the number of the fault accounts that come into existence in the future which will depend on things like the economy a number of other factors let's not saucily the education of our brains to favor small businesses yes it is as really a question about the