did a small business set aside because it believed that there were fewer than two potential small business competitors now if customs had consulted the s b a small business experts they could have almost instantly determined that there were more small businesses that could compete for the contract so that's the practical point but i think that's also the wrong question to ask and i think that the even qualifier top of the fact that art was qualified under the size the enters the simple checkbox was not checked in the government's database so like identifying potential small businesses like art that would not that would satisfy this i standards and it would make sense of the small business administration which has access to art science information could have to terminate almost instantly through search of the government's c m database that are again the existing incumbent small business contractor would have been qualified under the next code that the agency had selected so that's the reason why the s b a required in its regulation the government agencies when they're undertaking this type of market research lawyers are sent all that but the problem you're stuck with here is that ultimately the agency chose a particular nakes you can challenge it within a proper time period so we're stuck with that next code and based upon that next code their determination was not enough competition that was also into that they ratified it all and so how can you show prejudice your prejudice seems to me to be the speculative argument that if they had consulted in the st place as might have identified other people they might have convinced them to use a different nix code all that kind of stuff but i don't see how that meets the standard per concrete actual prejudice based on the facts here so you i think the place to look is in the supreme court's decision of luzon because in the core destructing about prejudice would it's talking about is article three standing that's what the prejudice requirement is and luan discusses it some length an earlier decision by the supreme court called robin involved procedurally carmen's undertake an environmental assessment the agency didn't do it the supreme court made clear that there is standing your respective of whether or not the plaintiffs could show in that instance that the environmental assessment would have changed the on the agency's underlying potential change in the agency's judgment in your favor but it would it would actually with some degree ready ready of certainty given you a chance at the result and i just don't see how that's possible here well your honor a couple points st of all i think there is a distinction between  prejudice regularly slightly i can recall something like about half a dozen of them that rely on little on to flesh out the prejudice requirement so we think this is the standard that's described in luan is in fact the right standard into the sea entered you know it's the case that's the seminal case that this court has come back to again and again in fleshing out the prejudice requirement and lou and makes clear that it's not our burden to show that there would have been some other competitors or something like that what are heard in this show is that there was a procedure we parliament that arc was in the zone of interest protected by that procedure requirement which has a small business it is and that the decision simply might have been different we don't have to prove that it would have been different we just have to prove that there is some possibility that's what luan says in other words the plaintiffs alone did not have to demonstrate that the dam wouldn't have been anything would have been and different well i think there's a reason to believe that something would have been different because the regulations specifically applies this is provides rather this is in section one hundred and twenty five b that the s b a will has a responsibility potential competitors that the during agency might not have identified such that the agency should then consider whether to institute a set aside for the contract that is the bread and butter of how the s b a inner beings in acquisitions and the market the facts here but the problem yours it seems to me your argument that that initial air could never have been fair or it could have been cured by the agency consulting with s b a regarding its market research i would say if i could but that's not a cure that's just doing  conclusions does the s b a sign off on the proposed acquisition plan that's rated appendix seventy eight that's the checkbox word so i don't think that's something that somehow ratifies with the agency did because there there was no consideration of the agency's market research as the as the that is in the a p a but i don't think that he gives rise to any type of additional requirements above and beyond article three standing requirements of criticism for the questions of the time orders are for balance of my time thank you a violation here because this was an order placed and several supply schedule simply suggesting that the consultation with s b a was you know merely a procedural formality that could have resulted in predecessor we have to reach that issue ready ready if we determine there is no prejudice now and there was no prejudice and in addition to the small business review form that an s b a concurred with and filled out on is part of the record there was also an email exchange with market strategies no we disagree with that there is a group of there's been no procedural violation here because this is an order placed against a federal supply schedule and as such such orders are exempted from the small business in under the what is that not a contract it is a contract it's a comedy president under the regulations weren't they wasn't c b p required to consult with the s b a when the incumbent under this contract it was given the order or the current order under the contract for the initial consultation were shooting suffices for this particular or it does because the fars very clear on contracts that's true explain to me why an order under that is an order against a multiple or contract it is an order against multiple work contract and there is so in the definitional section at least contract includes what we're talking about following regulations apply to all types of federal government contracts including multiple work on tracks so are you going to tell me there is an exception or a specific exception in is it's the we're talking about that makes the contract the officer can decide not to do is set aside or king and but it doesn't get rid of the consultation in the st place does it it does and the reason is because that language at least six parents via language from the standing the prior interpretations are far and regs to nonetheless set aside orders against a federal supply schedule it did not impose any additional requirements and it didn't give the agency's authority to it seems to me you're arguing that the statute governing the s p i and all this other stuff gives discretion to the agencies to set aside things and so because of that there is no consultation requirement on these orders is that what you're saying correct there's no requirements period right but the s a s b a under its regulatory authority has gone further and at least has arguably imposed that requirement if we read them that way i know you don't want to read them that way but let's just assume we read c two as imposing that requirement it or one specific orders against assess can they permissi schedules i mean i think i understand it well but the government has long argued that these orders from the us are not really ready contracts but i mean you've been consistently losing most of those positions i think the press in the court  parts of the car and in the s b a reg itself that treats orders issued against federal supply schedules differently what arc is arguing here are more general components of just regulation which don't need to apply here because they don't apply at this order stage so the market research requirement seed to which requires consultation with as b a it applies at the master ward level so requirements are addressed under part under part nineteen of the far and it's clear that none of those apply to orders placed under the federal supply schedule except by agency discretion and those contract thing or or the difference but the fact that these are mandatory and the discretion goes to the agency whether this to something that set aside so there or the prerogative and all is not automatic we declare the regulations inconsistent with the statute well the regulations as mark has read them would also be inconsistent with three parts of the federal acquisition regulation because those were also amended after the statute was probably here almost all your time can i just ask you to respond to the prejudice question because frankly i thoroughly confuse up your friends argument about how prejudice works in the protests before that things would have been different because there's really only one thing that s b a could have done differently or could have said that would have changed if that could have changed the outcome here and that is a that is the selection the  be a which seems to me should have taken place before as a result of that meeting they come out with this with the with the nation code and then say at that point you don't qualify under this n that's it seems highly regular there's actually record support for the back and forth between the agency n g o s say as to whether or not prior to the solicitation going out any not set this aside and even though it was only brought up to the s b s attention after the solicitation was issued ultimately that whole reason was shared with s b a and they agree because there could be consultation issue but i'm having a difficulty in seeing how you will credit us if one of the day hi how you approach it as well so i think the point here is to give weight to s p s views as to how it is that th entire rationale for ending the set aside we also did the same research for several of the other six companies that were listed under the old expose it took about two minutes we found that one of those was also qualified on the size basis under counselors without changing the next code or anything like that again the s b a could have made that inquiry that is the kind of thing that the s b a does on an everyday basis they call up small businesses they assess capabilities they say you can do what they determine you know what size standards apply and how they solicitation well st of all my friend conceded that the required consultation the seats you consultation regarding market research did not occur that's reflected in the decision of the court below it's also reflected in my friend's market research if you take it as a given that there was only one potential small business competitor well then of course there wasn't going to be a set aside and of course the s b a signed off on that there couldn't possibly be another result but that's why that's why the s b a instituted a separate stage where the it where the s b a would review agencies market research can supplement that research because the s b a knows that each and sees often don't take that task seriously as what happened here and the s b a knows that that's the time that's the opportunity that it has to in and to make sure that age that agencies do properly identify potential small business competitors so that when appropriate they're able to set aside contracts in closing we would ask the court to at reverse the decision of the court below