to respond well that's at least a sympathetic argument i don't know if it's an effective legal argument but it's like you've got one out of the car one arm the government telling you to do one thing and the other on the arm of the government prohibiting you from doing it but in this case at least the facts here seem a lot different because of the two way that the court playing three through two was well and you're seeking this verification in the other entities so i know this case is predicated on fundamental fairness but why doesn't that factor at least sort of put you on the other side of that while i think there are several responses to that question st you need to look at the practicalities of what was required to  d on this there are a lot of parts to that a lot of them i mean you had to submit documentation and to submit contracts you had to submit forms for each and every project and this is only one aspect of the picture i'm on this emerging technolog so there are twenty one dollars different projects and if you look at the way a contractor would put together a bid they would sort of start at the beginning they gather all the documentation now we didn't immediately seek the signatures when they become i came out because you really functionally can't you've got a compiling your paperwork and the delay was not a dispositive factor there's no indication that a delay would have helped things the bid was due in october when they began to seek the signatures which was sort of the final step of the submission in september you know do i wish they had started in june well did probably somebody with a quarter of a plane's judge somebody seemed to i don't want to say rest heavily but really point out the fact that not only was there time we're clearly and maybe you should have no recognize that this is a time when you don't want to be going into agencies and asking for stuff that the court of federal claims mentioned it in a footnote but it is not dispositive to the holding and there is no indication that had more time elapsed there would have been a different result the contracting officer in the one case simply said i haven't been the contracting officer for four years and this is not a description that i wrote some not going to sign more time wasn't play ball the sign the forms either because they misunderstood what it was or they just didn't want to do it and centex doesn't have any ability there's no recourse in the law there's no avenue for them to stand up and complain they did what any reasonable contractor would do in that circumstance which is continue to beg continue to email continue to make phone calls they did that in till the time of the documents on ice yes you would have no reason to know and maybe the government will  assume this was just a one off because it seems like the circumstance it was described which is the person wasn't really around at the time or whatever probably happens all the time but yeah and i don't have insight into how frequent i know there's not another protest so i don't know how often that actually happened but i think that really goes to the point of the fairness argument is that the contractor doesn't have any control over that everything that th offshore had control over in the circumstance we did appropriately we have trashed all the attachments we've provided all the subcontractors and listen to the future and so you want us to  say that except in circumstances when a person the better exercises reasonable diligence i don't even think the court has to go that far you what i think the what we are asking is that fundamental to procure a mountain the government's overriding obligation is to treat everyone fairly and the far section kind of underlies all the more specific roles talks about how the government as to exercise discretion the government shall exercise discretion to treat better spare lives in this case centex the better present of the government with all the documentation of its efforts so in that case we're not asking for a larger role what we're saying is that the government presented with this weird situation was required to do something i'm not even saying it had to be one thing or another they could have picked up the phone the evaluation form note that they knew who t contracting officers are responsive and explains the situations as a particular contracting officer refused to sign the form so during a valuation the evaluation team could have just picked up the phone all of the things that entitle two contract issues but with those checked because the government people had done an evaluation independently or they simply checked because centex had put down that that the requirements and they didn't challenge the school in other words we closed checks in the boxes based on an independent government evaluation yes the evaluators looked at everything the reason you know that is because we stated it's at the very had to attach the entire contract and so each project had you know balloonist documentation and so the evaluators were looking at it to see if it was over five years if it was over one year if it was in a row and if it was over one of them all of your discussions having a problem because these two people one hasn't responded and the other won't give us a signature you were in that was not a possibility into the scenario i mean i said frank i suppose they could have tried that i mean obviously they didn't have counsel at that point but the government had been very clear and it's not an ambiguous requirement so they did what i think any reasonable contractor would do which is just continue to try up until the moment they had to submit that what about the contract provision says when i'm sorry this is the contract provision i think this is the the side of the port of federal claims decision answers this is appendix ten one response was in regards of this question about the signature says or current contracting officer contracting officer representative or other cognizant official with cognizance over the project needs to so and so that suggests if the contracting officer is deceased in this case the c e o s were like we're just not going to sign the forms so i don't know that going around them you also had to notify the c l r it's clear they wanted the c e o to be the primary herson because the you had that a car secondly that concern is also completely inconsistent with what the government did in this particular man with the form j p five's j p five were very similar forms that related to past performance it also had a signature or a firem and the government ended up waiving that signature requirement in that case without form and they did so because there wasn't really a sufficient reason or justification a need for that to happen there you're saying we should just assume that anyone in your brief where you really argue the just the abuse of discretion issue which seems to be key here because the other side says it isn't challenging that they're saying this  a reasonable contract provision they're not saying it was improperly pure meant and what do you have to say about the arguments that ms mcmahon has been making because that's one of the key issues what will the primary argument is making is that it was an abuse of discretion not to seek clarification and relying on level three and very similar cases and this is simply not the clarification case this is absolutely the case of an unambiguous requirement that the government again reiterated was an ambiguous and would be adhered to cases like level three involves clerical  and the court said well as an abuse of discretion for not for the agency not to seek clarification of an obvious paper clearly ask you suppose in this situation and the contracts i believe that you're saying that that circumstance still would have been necessary for the contracting officer to inquire his mother would have at that point it would have been unfair to all the they have the same problem and made the same protest well st of all that nobody made the protest before the deadline for submitting bids and centex had the opportunity to do reasonable we don't challenge it but we've gone to these two folks and we can't get the answers what can we do could they have come to the contracting officer before the deadline for submission of postals and said th used could not have been more you know in more unequivocal that l e t certifications always require a contracting officer contracting officer representative signature but completed officers died well as as you noted previously the requirement wasn't just for a contracting officer it could have been a c e o or other individual who was cognizant so so the the bitters had response that as we understand it from one contract officer was that he was unable to verify that this was actually doing edge technology as defined in this particular solicitation that was integral to the performance of the project and that's you know a very important element of experience that's necessary for g s a especially with these leading edge services that it was preparing so you're saying that happens the time if if if what they're asking for doesn't match what you know the government agency originally had there might be instances with the government just says we just can't verify it we don't know enough the question backing up the whole point of the verification requirement was you know the government would receive up to you know thousands upon thousands of past contracts and and some of those would appear to involve leading edge technologies that were in the world of the project as required in the solicitation but the most you know important step here was that someone actually cognizant with the performance of that contract would step up and say commercial projects which qualify as only eighty s also so and the language is identical so i mean i think many of us up here to a little bit bothered by the fact that it was the government that didn't sign up the contract of officers but the problem here for me about happens to have been a government contract unless we were likewise going to make an exception any time somebody submitted a non government commercial contract which wasn't signed by any corporate officer for the company they had the agreement with does that seem fair you know that seems  absolutely fair we agree one hundred percent this is not just a government problem because these contracts can come from anybody and anywhere that would be an awful lot of a burden to put on the government to have to verify it it seems like i don't know i'm just troubled by the idea since the language i'd like to begin by addressing the point that you just made about the corporate and non corporate and i agree it shouldn't make a difference what makes a difference as in this case the evidence was submitted of the effort that had been made so if the effort had been made with a private company and somebody of the private company simply refused to sign a form i would say the same rule should apply what you need to look at is the particular facts of this case and understand if in the particular facts of this case the government line and parts has to be signed because the government didn't want to deal with having to do its verifications it wanted you will have to provide that verification and if your response to me is yes but but there ought to be a rule in all of government contracting that whenever someone can't this case where the government had itself evaluated the contract and found that the technology was integral itself check that box on its evaluation form so the signature requirement this case did not advance client didn't have any problem getting the verifications on the you know what i'm saying when when when you waited with a problem with these two people the air force and the d o t contract centex say ok we're having problems here let's go to down the road to contract x in contract y that we had with her we've i'm not certain there were others qualifying contracts because it's it was a very particular it had to be over one million had to be within the five years so it may have been a case of i simply don't know but my  it may have been the case that there were not those kind of contracts that would have qualified there or that were available being the problem with your argument as well the government was able to verify anyway is that then it sounds like you were making a direct assault challenge on to the signature of requirement and that would bring you into the waiver problem under the i don't think hearing the waiver public will go on as long as we steer clear of this being a direct challenge to the signature requirement when you're telling me your response to me was well they could have figured it out from the information they had in fact it kind of did already there for the signatures shouldn't have been required that the argument was made to me that's a direct challenge to the signature requirement in our p that's why even under blue and gold i would agree that  direct challenge it is waived without a doubt but what we are challenging is the evaluation what was not done during the evaluation process and this could have been very simply addressed in opposing counsel so this is not a clarification case but if you look at the cases that we cited on clarifications i think those are very instructive one of them involved an error in a route map that newton was mismatched with what the tech said and the other involved a copying error one pages copy twice and so they didn't have qualifying past performance and so on its face those more problems but what the court said is that in those situations in those particular facts it was unreasonable for the government not to do something the burden on the government in those cases was very minimal we're not asking for verification we're not asking for an establishment of a rule that would require thousands of contracts to be verified what we think is reasonable is that when presented with evidence that the contracting officers or whomever simply refused to sign a form and when the government had been able to verify all the substantive i'm going to say what we think is reasonable what's my standard review here standard that you're applying absolutely is abuse of discretion and the lack of government action can constitute abuse of discretion and so that's what this protest is challenging the lack of action during a valuation thank