given your honor it is we believe it is indeed a prohibition with four exceptions to it and d o d invoked one of those exceptions incorrectly as the lower court found contention here on appeal is that the lower court indeed then won for it in erred breaking with extensive supreme court and federal circuit precedent when assessing the harmless error or competitive exception well i mean the exception would have to fit your honor and we don't know whether d o d indeed would even try to do that you know we've had congress to two different congresses speak out against a single word structure there's no whether absent the exception that was invoked she would have invoked one of the other exceptions isn't that a determination that he would be free to make i do believe the o t could make that determination for solicitation i would think it would just be a we would had we known that we could invoke the exception that we invoked we would have invoked another exception and then your argument would this court nor the lower court could take that discretion away from deity so how the department of defense would exercise that discretion on remand i'm not arguing for this court to to take that discretion from  telling this court that d o d didn't choose any of the other exceptions this was in front of d o d and they didn't believe that any of the other shoes fit the circumstance and there any other exception worked here so there is no basis for anybody what might or might not do on remand my my belief is that that you know certainly it could go back down and certainly if they were to exercise discretion on under another one of the exceptions the case could come back but that's you know none of that is an appropriate role for a court in this environment and that's what as we see versus generally tells us and indeed that's the very  even if there had been a multi source selection that gate one point two still would have been in place and you would not have been able to succeed flaw that that you just mentioned so for sitting here talking about what do you do you would do on remand so if this goes back congress put this prohibition in place precisely to stop contracts with technology refresh provisions like this one  started engaging in that type of decision making it was breaking with f c c versus chancery there is nothing in the record about how d o d would structure on multiple award german that's a decision that essentially no likelihood that the security provision in gate one point to be relaxed if there were multiple sources what's what's wrong with that conclusion there's two flaws with that conclusion one that is not the basis on which the department of justice asserted that the  security issue would remain the same indeed it's a completely different document that was pointed to then was pointed to by the department of justice with respect to that but nd of all that is a finding that was made in the rationale in connection with a single award decision it is not a description of what would be the right approach with a multiple ward and in indeed there is nothing in the record that would do that to depart what what we have shown what we showed below in the lower court was the d o d has entirely different guidelines for how to structure a multiple award than it does for a signal ward in what the record because you believe that there is no way for us to know for sure that gate one dollar would be reemployed with the same language and a multiple s contract is that right i believe that's absolutely correct your honor and i also i also assert that the judge when it when the judge talked when judge approving talked about one point two and when he applied the question about one two he did it the wrong point in time this court has repeatedly spoken to the issue of pre war protests and prejudice and what you need the question you need to ask in the question judge brooding should have asked was could you even if you thought one to remained was could based on the record in front of me or oracle me one point two on remains right this is exactly dressed precisely by the set of the federal circuit in common after a bit as been submitted so you know who the players are you know what their qualifications are and you know whether they can satisfy the gates i think that's a that's a that's a false argument in this context by the department of justice st of all because the question is on on on this particular issue and could oracle meet gate twelve in the st in neither the department of justice nor the quarter final claims ever addressed that what oracle's evidence presented was that what the evidence was presented was that oracle couldn't meet it in september twenty what oracle said in its proposal to the government was that it was on the cusp of meeting it indeed today it far exceeds that standard  so is it your theory under a proper application of generate that we wouldn't even be permitted to address your quit your argument that one dollar is on a forcible unless d putting out a solicitor when it put that gate one too in it was no different than vo do you saying to the world only eight of us in microsoft made it because it was their gait their system they knew who met it and they knew only those two companies did that's why this this competition went from sixty plus interested participants down to only four for the largest cloud computing companies in the world bidding in two of them oracle and i b m were out on these gate these are separate issues we think gate twelve clearly falls on its own but even if gate twelve doesn't fall we still went on twenty three for eight because the lower court never should have been asking the question how would today and that's what we were telling the lower court that's what we've been saying all along this is they continue at a particular point in time your honor they set this gate september twenty teens when oracle was on the cost of getting fed ramp high and even higher standard and they said that you had to meet it at the time of bid submission so if this case went back were a bunch of things unfortunately that were done wrong on prejudice because the department of justice invited the judge to engage in a speculation but you know one of the other things was he was applying prejudice time test at the wrong time it's quite please the court it's undisputed that the jackpot acquisition is an important high value for cameron but significant implications for our national defense for this reason the joint requirements oversight council led by the vice chairman of the joint chiefs of staff you should warfighting is entitled to a remand regardless of the gates because the case might be considered or reconsidered by d o t if we don't agree with that then your view is we need to re man to the trial court if we find one point two one in forcible is that records that's fair my only point there was that it's possible there could have been combination teaming combinations and we the agency didn't know what that was but nevertheless our main point is that it doesn't matter whether the agency knew that amazon and microsoft were the only ones th the terms that are in the solicitation gave one dollar in particular that we're talking about now was on duly restrictive of competition because it because it lacked a rational basis the o c c consulting is a great example there where the pla agency's decision to include both hardware and software maintenance requirements in a solicitation violated seek a full and open competition requirement because only one company in place and these supported the software for the system an issue and of course but the question is particular contract that it becomes a qualification requirement no your honor that that would be if it's not if it's not necessary for the particular program it would it would be on duly restrictive of competition because it's not it's not necessary to meet the agenc testing or quality assurance program that contractors are required to me in order to deming in order to be eligible to compete for for a fee for future for candidates for that particular is usually products for that particular product preferred pre qualified manufacturers it put those if put those names in the actual in the actual solicitation which seems to indicate that there was some sort of qualification requirement outside would essentially invalidate all all pre ordained criteria all the criteria that are designed to ensure that in a that an offer can perform the work issued in that in that solicitation the question that federal crazy seem to be wrestling with is where the boundary is in terms of the judicial rule surely that particularly as comply with the policy of the terms of avoiding the appearance in terms of avoiding the appearance of conflicts of interest but the the far the contracting officer discretion to determine be determined how to handle these issues determine what's what's the effect necessary actions for effect is contracting and in order to perform these responsibilities contracting officers should be allowed wide latitude to exercise business judgment and that includes ensuring that contractors receive impartial fair equitable treatment so this guilty to bribery so if that's not a conflicting incentive then i mean nothing is and so the contracting officer looked looked at the involvement of these these particular individuals particularly m conducting conducting discussions with webapp with amazon about employment while he was while he was working on jet he gave a completely different different explanation for why he recused himself in october two thousand and seventeen so the contracting officer duty was then to look at this situation and assess whether that was whether this impacts the parent and she did a did a very good a very thorough thorough review of this and i'm one way to look at this is you know if put all require us to assume that mississippi valley is no longer good law is that right absolutely not your honor no miss misses mississippi valley is is still good law and the guy but the godly court explained what mississippi valley than this court thus mr ray i have a question if i may on going back to the whole issue of generating and harmless error i mean we struggled and various cases with the field that is occupied by generating as opposed to the field where harmless or has a role to play when the reviewing court finds that there was ever but ultimately finds that the error was not prejudicial  can you explain why it is that you think in this case the court of federal claims harmless error analysis should apply as opposed to the cherry doctor overarching decision is reasonable because of a reason that the agent that the agency didn't give but the court has determined in its in its wisdom that's not but but in this case isn't what do you have to prove  gate one point two and in effect right and he based that on the administrative record that's a proper harmless harmless error analysis he wasn't he wasn't saying game one dollar is reasonable based moderate requirement would have remained because thirty can because in the o p s view which which he found to be reasonable security requirements increase in a multiple multiple award situ situation and that is a that's a perfectly logical reasonable harmless error requirement and it's the harmless error requirement that's required by by this court in you know cases such as clinical glenn defense wellpoint decision that was just issued issued a few months ago i mean points a great example where the the court the court found that even if the offer should have been given a higher rating for a particular factor it still is still there still not a substantial chance it would have it would have gotten the award i mean there's no suggestion in point case that the agency has done this hypothetical this hypothetical analysis with the increased court corporate experience and capability rating but the but based on the evidence of record this court the that the court was looking at the wrong time frame i guess for the for the prejudice in oracle's view in other words the the question is whether or not they could compete if there was a rematch and versus whether or not they were idea that we should instead be looking at what might happen in the future on remand i mean that raises that raises fundamental fairness concerns in a in the government procurement context just to give an example let's say a plaintiff came  argued that the government had conducted conducted improper discussions during the valuation that if they had told that particular offer something they might they might have changed their postal but in looking at as you can can say well there's no way they would have changed their proposal enough to actually get the award at that time so under prop president's analysis then you would say they're not prejudiced but if the question is instead what could they do want to remain and if the agency's forced to go back and look at those do those discussions again well now they know they will be all winners price so now they can set their set their proposals to try to match the winner after learning all this information during a debriefing and you know that were simply could you some piece in a rebid that would not be the appropriate standard for for that reason as well ok and to move questions individual conflicts arguments concern the actions of individual government employees in sharp contrast organizational conflicts some kind of companies actions and their allies on a completely separate set of regulations those regulations provide the contracting that thank you thank you thank you honor i want to pick up really where mr foreman just left off because i think it ties into some things mr rails indeed i may be one of the few things i agree with on mr foreman in this case but there are fundamentally different rules for government conflicts and contractor conflicts that the united states has conflated in its arguments what we're dealing with primarily when we're in which the contract was i think the quote is tainted by fraud and the conclusion that was reached in this case was this is not such a contract why isn't that a proper reading of mississippi well your honor i don't you know let me just say st of all if that's where you came out it wouldn't it wouldn't bother me because i think you would still have to rule in oracle favor but let me tell you why that i mean yes it wouldn't bother you i'm trying to find out what is the correct reading of mississippi valley and the reading that we have given is in the past is that there is some tape required otherwise if it were a per se rule that the contract is void if there's any  for overturning a contract let me let me answer that directly and then i do want to switch back to godly for one second but i want to answer that directly the test your honor is in eighteen u and that's what the court said in mississippi valley and that's what numerous cases it said sent in it's an objective test in the question is in every in that was talked about this court's predecessor  the question is on on the issue you're talking about was there personal and stan szell participation in the record the record not only not only all of the facts that we've laid out but the record itself particularly language from godley that says the record must show some causal link between the illegality and the contract provisions now mr ruby may have been involved to some extent at least early on in negotiations internal negotiations over the form that the procurement should take but if if the conclusion is correct that was reached by the contracting officer and sustain effect on the contract well for the universe to the question of whether it has an effect just looking at the rule isn't that a correct statement of the the proper rule i think that the that the test that congress said your honor was meant to be objective precisely because people hide people this is what this is the teaching of mississippi valley is that people who are doing things improper don't admit i'm not going to put because by the very nature somebody who is violating the law is going to hide what they're doing what's complicated in this case what becomes more complicated in this case is that indeed the contracting officer who's making the fi seeking to rely on was found by the court of federal claims to have missed these conflicts in the st place the contracting officer was responsible for this that's why mississippi valley says congress didn't empower that agency to review the eighteen u s c issues because the very people who missed this conflict in who picks excuse me made this mistake in this particular moment where the very ones who were writing writing things saying we didn't hurt anybody by the mistake we made unquestionable your honor that mr to be lied to the department offense that's unquestionable but indeed nobody screen mr ruby which is a rip department of defense defaulters requirement nobody ruby to sign his conflict of interest statement prior to participating in the procurement which he was required to do none of that occurred in this case so in this ten billion dollars per curiam it one of the four people that was leading it and that's their description of him one of the four people leading jet i was set on to this procurement is ten billion dollars acumen with nobody screening them for conflicts of interest and no indian place he then proceeded to lie about this stuff to  ruby was the architect of the single war decision which a w s was the only competitor pressing at the time he was actively lobbying the people this is all through the record in there is no way to say that mr  mit and that's why there's been so much public outcry about this about this particular issue your honor and is in that is the harm that mississippi valley was telling us that congress was trying to avoid and that indeed that the courts needed to try and avoid which was a lack of public trust in the park german because it conflicted government official and here we have somebody who's not only negotiating with a w are under section two hundred and eight i want to just very quickly touch on god because it's important the government keeps relying on godly and you know it's important to note that in godly what was happening was that the government was asking the court  reverse the lower court for not finding a contract void ab initio in this court did that in godley didn't involve a section twenty eight twenty eight finding it did involve references to mississippi valley but there's nothing helpful when you read godly for what it is which is the united states saying to this court in godley that it's imperative with these type of contracts that we have the ability to find them void add an issue because it's convenient in this large mr rale to stand in front of you and tell this court a different thing today doesn't mean what the department of justice was telling this court in godley reversed the lower court we can't have these kind of thing that contract is not the correct policy congress has spoken to section two hundred and eight through space section to await the supreme court has spoken to this issue in mississippi valley if i could very quickly turn to and very quickly to federal and i want to touch on some of the points about not asian of performance indeed fed ramp itself prohibited if you went to the fed ramp site when d o d was issuing this particular event you would have seen a note appear on fed ramp that they couldn't do exactly what they did which was use it as a