the court geos prediction that it would sustain your thirst misleading discussion protests did not provide a rational basis for the agency's corrective action both because northrop failed to clarify a solicitation ambiguity be made timely so that we don't really have that what we have here is a question of what the government no a reasonably chooses to do that we might not through a protest forced me most of your arguments are about the forcing standards not the permissive stand your honor the arguments that we're putting forward you believe is a forcing standard on the contractor at this point the government the question is what happens when this ambiguous statement appears in front of a contractor the rules of this court laid down as to just a code blue and golden comment and others cases is that if that ambiguity is presented the obligation  on the contractor to bring it to the attention of the government in a timely way to fix the problem on pain of not being able to win a protest that would undo the government decision correct but that's not this context we have a context in which i mean one way to put it might be that government has waived its right to invoke constructive acceptance or knowledge which it can do and therefore conclude on its own reasonably there was a problem here we would like to correct it in this particular instance your honor that's a interesting hypothetical but it's not the situation that we encounter in this case the government defended its decision and did not intend to take corrective action and felt exactly as we maintain here until until persuaded otherwise the g a o lawyer actually your honor that court a federal claims below recognized as a matter of fact that the agency took the corrective action regardless of whether g a o was right or wrong it took the corrective action because the g a o said we're going to stay nice to protest grounds and the government said ok we don't want to have a protest sustained so we will take corrective action on those two protest issues that's what the court a federal claim understood from the only documentary evidence of the agency's decision the agency's decision was announced in a letter to g a o that says in accordance with what you just said will take corrective action there is no evidence anywhere of any independent assessment by the government that the government agreed that it had made a mistake that it needed to fix it simply took corrective action based on what it was told by the g a o protest and the government under duress agreed to rebid the contract when the question is whether the g a o intended decision or whatever it is was rational yes and the reason that it was not rational your honor is that that decision if if there were a mistake in the evaluation letter and nobody objected to what are said anything about that the failure of under the blue and gold case to raise it at the time would foreclose lazing later as an objection to the or so let's assume that but it seems to me that we have here a somewhat different situation where the government has told one of the vendors that it made a mistake in the evaluation notice with respect to research and development costs but it didn't tell another printer that is northrop the same thing and that seems to me potentially quite different from the usual blue and gold situation was in particularly in light of the four provision about treat everybody equally your honor i would snip it there is no reason to create a different rule just because the agency didn't correct the mistake northrop claims that it was that you're referring to is one of a series of things that the court that the government has to take into consideration as it decides how to shape its discussions going forward in this case we really see why that decision that discretionary judgment should be the basis this was the issue that we were talking about a moment for in the tech in the closed session and i'd refer the court to pages fifty eight and fifty nine of our opening brief as well as page nineteen of our reply that knowledge told the government something and they have to make a decision about balancing the factors that's in there in the are about how to structure that discussion including what it would do in terms of revealing information about another competitors technical and pricing information the government's decision was we don't want to  decide whether or not in its discussions it was going to revisit the irony question with north korea and concluded that it should have should we can debate the agency's judgment about that about whether or not it might have done something different the question is in the face with the obligation to raise that ambiguity does northrop's failure preclude its ability to bring that protest notwithstanding the subsequent conduct by the agency we submit that that bright line rule is already established by this court produce showing of prejudice in order to remove it i'm not sure i understand why that is because of the government thinks it made a mistake in violated the falloff in treating people i'm equally why does it have to find prejudice to read in the  your honor this court has made clear that undertaking a disrupting apparent decision like this requires not only a mistake but some prejudice some impact that makes it worthwhile to have a court order read it yet well i would submit your honor correct that they did violate the far to the really have to find prejudice in order that were repeated under those circumstances your honor i think your question assumes prejudice your state if they felt like this communications have not had any impact then i don't know why it would be rational for them to take a dramatic step like reading the contract if it had a consequence then they would take that step but in this case what we have is a fish to a should not really easy fought that it had done anything wrong we have a situation where the g a o told them go back and fix this particular moment because we decided you did something wrong the government never found that there was any prejudice and g a o never found any prejudice to validate a statement that says we're going to fine that this protest should have or will then you try to answer my hypothetical not my hypothetical could the government legitimately rebid the contract the toes have violated the far with and need a finding of prejudice i think if the government were to read the entire contract after the proposals had on been in and been evaluated and weren't made and the price is revealed in the kind of situation we're talking about and then decided that well we're going to scrub out and start over even though the mistake that they identify had no consequential impact that might well be prejudice standard that would apply in a contest challenge to sticking with the award why wouldn't that the higher than any standard that would make the government's voluntary decision to read it i thought as a seer rational that we can't be sure that there was no impact there might well that maybe not enough that we could be doing that if they sued us but enough that it's reasonable for us to say let's we did this your honor i'm prepared to in fact hypothetically there may come a point where the agency has made what this court and others might view as a rational judgment call based on its determination of what would be the appropriate thing to do and i'm and i'm not going to debate that frankly i think that's a possibility in this particular case we don't have any of that we don't have any statement by the agency finding that there was any kind that it considered there was anything but i mean that seems to me to go back to this that the point that you've made several times about focusing just on what recorded in this litigation and i think that feels to me like that's a separate matter because of the the timing here actually i don't think there's a separate matter because there's the same prejudiced record that we've been talking about in terms of what was articulated below not sticking with the the award is the first ground the one that we've talked about if the government decision to he did is held is the second issue  reevaluate this one thing that we didn't we didn't evaluate quite enough the first time your honor we believe it remains a live issue because without a judge direction from this court otherwise the agency is going to be compelled to make a second  decision we don't think that our decision was necessary because we don't think either of the two rounds that g a o identify provided a rational basis for an award decision given to take a hypothetical is that you lose on the first issue and we hold th t the government was correct in repeating this because of the error in disparate treatment in respect of research and development because i think the question is if hypothetically i know you don't like the hypothetical but i that's what we decide why do we need to reach the second issue your honor the question really is whether or not the agency was right or wrong i think you receive reached the issue to decide whether or not the agencies or decision is going to be based on its prior action or it future action it may be that at this point the agency has completed that part of the corrective action if the corrective actually goes forward on one issue i'm not sure that it's going to matter a lot whether it goes on a second rick if you're on the second issue the  one of the questions here is whether the record of substantiation required testing yes and did you understand that that is the issue or does it go beyond that your honor we think that the if the only issue is what's in the what the solicitation require there's a right but is that limited to the question of whether testing is required or is it or for example is there a question as to whether the evaluators looked at the revised proposal  sufficiently reached an opinion about the fact that really didn't change much you are based on the review of the court below we don't think there remains an issue about whether the evaluation was reasonable or correct in terms of whether or not they knew the there's no there's nothing in the solicitation that says what's what you have to present a substantiation testing or anything else that of the nothing was present right the what was presented was the testing and substantiation that had been accomplished appropriate and then the r p turns to the evaluators as you decide if it if it's not here raytheon relied on the prior testing and analysis and gave that to the evaluators at vases for the  ultimately substantiation testing of that model then you have a difficulty i mean one of the problems we have here is is the government's focus was one alternately it was looking about how things relate  going to complain about if we had stuck with the evaluation and if no one was allowed to include i r and d within their proposals then there would be no problems here it would be too late for wor the same question about whether there there are four was there were an equal discussions or there was prejudice in exactly the same way it would if you were defending the original award and it was  protest against the award to the rating i mean it's been our position along the alternate lee raytheon has the burden of demonstrating his case and the agency has the court should be looking at whether the agenc imagine under some imaginary or under some of you of prejudice where where one says it was committed in error and it is absolutely clear has no effect on the bidding process then might in fact or is it enough for me to decide that it was a rational interpretation of the set of regulations and of the the sequence of events that there was an error do i have to decide that there was press prejudice or that it is a reasonable thing for the government to do in these circumstances to say there was enough of a chance of a difference in an outcome that you can go ahead even if the government was saying the opposite the government w prejudice i mean if the government says this was an error and we say no it wasn't her how can the government's action be irrational if it's based on the mistakes of law it's based upon a seminar  got a fair wage earner but at the end of the day it is still whether the agency rationally determine there was an error or not whether or not there was necessarily an error so you can go to a rational process and reach actually incorrect it is it is difficult rogers knowledge it's very difficult to say that the agency ultimately is acting rationally but that would all depend on facts of the case ultimately i don't think this case is anywhere near to engage in a because you want to find that upright you know for example the government found that raytheon had a they had a of a price but we thought we could get reward price resign from reopen the competition that you know we could not terminate in for convenience and we certainly would not be considered rational agency action to be able to do that but i think that if we're going with the presumption of good faith and there's no up into got faith there i think  me it concerns me less to giving the presumption a second starting from that understanding i would agree that the agency is actually deliberately taking action and there's evidence in the record that the agency is effectively manipulating the process then that would not be justifiable any more questions can i ask you the same question that i asked at the end of these argument suppose that you were right about deficiency in substantiation of the resulting evaluation i don't believe so given a number of factors on that i cannot discuss at this time in open court minute mr calling suggested with respect to the subject of substantiation that your honour's asked him about that it was permissible under the r p for the evaluators to rely on data that  thing is painted red and then the next they say we've made a change is painted green and they say this doesn't change anything at the evaluator said right this doesn't change anything so there substantiation was look at what we said before we addressed everything that mattered before no further testing is necessary your honor our position is that and that may be some somewhat absurd hypothetical but that the they might be right or wrong about that but that would be an argument about the specifics of whether they're right or wrong but not about the idea that substantiation it requires new testing without question the technical maturity of the t r module which is the basic building block of the radar that the offer or had to provide the current g r all and full is the basic building block for this radar it uses new technology that is higher power and a little device we're talking about here the circulator control how the outflow of power and the situation in this instance the record as it developed was sufficiently questionable that it seems perfectly reasonable for the agency to say something so fundamental as different instructions about a critical issue leads us to feel that it's a rational decision to institute corrective action and that seems perfectly within the latitude that agency would happen a circumstance like this the the facts in the case is this sort of thing ever happened before and that the government says well we don't think it was an error but we would be a good thing to do to reprint a contract well don't know but i don't think the government is saying there is no error i think the government here acknowledged that there were material unequal treatment of bitters and as a consequence are arguing that it was that's not the air force's task and it's not their expertise i think they look at the record and they say there's enough here that we need to redo this fort not only in this book your men but there's a procurement integrity  issue here about a significant disparity in how the officers were treated and under those circumstances it's hard to argue that it was not a rational decision to say we're going to step back and make this right that the the the the issue that we're talking about is an instruction to the offers about evaluation criteria and and it was so fundamental to this particular moment that when you look at the results and this is something that we would submit in our who started human paper when you look at the results it's clear that the people who got instruction acted one way and the people who got a different instruction actually a different way and that differential dispositive and under those circumstances whether there's a particular finding that it seems to the government was unfair even what was in the violation of war and therefore we are more reason i'm a little surprised frankly the judge clients would want contracts we did in the absence of corrective action you know live yes there's a spectrum there and i think we known we see it we would see when we see something that is rationally beast it seems obvious and this seems obvious when we see something that is in trinidad and all the way the other end of the spectrum maybe it will be obvious but i don't think there is a there would be a requirement that there be that kind of sort of black and white finding before the air force could rationally say we want we want to take corrective action here the times limited  evaluation criteria the record suggests that at some point later the air force and this is their words changed its mind about how the evaluation criteria would be a but only one person was not informed of that change of mind and under those circumstances it seems to me very difficult to say that the corrective  action wasn't reasonable this is a mistake of law this is the air force saying every evaluation criteria is going to be x that can be more restrictive than what the law apply and that can be a particular application of price religion in this particular prejudgment but when northrop received that instruction it is understood that to be an evaluation criteria the fact that that evaluation criteria was one hundred percent consistent with other indications from the same agency i don't think it's disputed that it was a mistake of law misunderstanding ability to impose an evaluation criteria on price realization that is more restrictive than what the law would hope would allow and keep in mind this is an instruction to your proposal on your this approach we feel that it was perfectly acceptable for the air force to with all due respect have a a somewhat more restrictive view the air force did not say we are making a decision about the allow ability ultimately of these kinds of costs they're saying in this instance our price relives i'm an analysis is going to have these criteria that original air force position which they are and that you are attributed legally constructively the knowledge that it was plainly erroneous or you're saying no that's not right it was actually and what circumstances it's allowable and how it should be treated is one that is subject to a fair amount of conversation dispute nuance and subtlety and you could find as many lawyers are sitting in this room different this is a development contract do the same rules about independent research and development apply in a production setting as an adult and setting that i believe is a fair question to ask but we don't the issue here was not an argument about what the whole case means and the different interpretations the issue here is the air force that here's what we want you to conform you proposal to and let's assume for a moment just for argument's sake let's assume it was a the the air force was wrong when they give us those instructions once the air force said my golly we now have spoken to four or five other people and edging our minds about how we want these costs to be treated there was a requirement in the far end from the idea of pure fairness to tell all of the offers and the fact that one offer was not told is employee played out in the consequences and in the way each of the offers treated those costs in their proposals and under those circumstances whatever you call the argument about the application of the rules and how irony should be treated whatever you call that not to tell one person that you are changing instructions to them for which there's a great deal of support in the world seems to me not a definition of unequal treatment that if this question might not be one that you can answer but he referred to the  extended discussions between offer and the government and there's an argument that in the context of the extended discussions it might well have been quite reasonable and correct for discussions with your client for the government not to talk to you about the i r d and its in its changed  would like to address in my post arguments and mission because i think when you look at the actions of the other officers it does i am pleased demonstrate that without that quite clear from the record entirely that north would have acted differently and would have analyzed the pricing strategy differently had the air force said oh by the way those instructions issue on which northrop has expanded expanded itself in a number of other for kiran's their work commonality with other programs for which northrop found that the the common ion the different applications and bidding strategies based on the instructions and the evaluation criteria that we proceed from our customers we respond to what's available and what's allowable and i don't think there's any doubt that from this record those instructions had a material effect on the air decisions and as you can see from the submission that will provide on the and on the activities and bidding strategies of the others just to start with this last point about the discussions issue i think it is very clear to understand what northrop was told in that year and statement it was a very specific message that said how indirect costs or how i accordance with the bar we will not follow the far in can in the same context where the r f p had said we will follow the far with regard to i r n t i don't think this court should walk away from the rulings of communication it was amazing to have northrop simply rely on that and say ok we will bid in accordance with this flatly ambiguous statement and go forward on that basis without raising any question the statistical principle is that when  offer sees that kind of ambiguity the system benefits officially from having those kinds of questions raised in a timely way so they can be resolved without complication and not wait until the end of the book your man after everything is all over with in this case north run its protest anyway northrop did sue northrop did bring a protest and it shouldn't have been allowed to bring that argument for because it had not lived up with the obligation to work the system the way this court has instructed it should be work these kinds of ambiguity as are raised at the time and clarify so the system isn't jammed up the way it has been in this case we don't the other idea that northrop in years the question of whether three zero five if the head of the agency may determine that the solicitation or word does not comply with the requirements of lot of regulation that's when the agency is alive the corrective action so no there needs to be an error in this case the agency concluded that it had not made an error and defended against the charge that it had made an error the only question is before this court is the one that this court identified and turner did the g a o those direction to the agency supply the agency with a rational basis for taking corrective action there has been no agency decision here there has been no agency finding that we made a mistake and we've got to go out and fix the agency's only decision that's in the record is we didn't mak mistake we're defending this a decision that we made before the g a o when g a o said no we disagree we're going to sustain these protests the agency said on that basis exclusively that was the finding of the court low we're going to take corrective action the question before this court as it was before the court a federal claims is did that g a o statement provide a rational basis for the agency to act not whether or not we can create some other theoretical basis or gee if i was sitting in the agency shoes at the time or what if the agency thought this or certainly the agency might appoint that there's nothing in the record about the any kind of agency assessment on met point and it's not for this court to come up with new reasons anymore than it was for the court blow for the agency to have come to a different result the question is whether the agency acted on a rational basis the only basis they acted on was the g a o decision our position is that the g a o decision was not one that should have provided that basis because northrop general raised the question on its own and because there had never been any showing that whatever the problem you might say the agency in gaijin through its discussions did not prejudice nor for the oil it is true isn't it didn't address the question of pr could have come up with enough irony of the if the rationality of the government's decision is based on the g a o war then prejudice finding a prejudice is not part of the government's decision there that's correct your honor there last foods this court is held regularly leave that a the a protest finding of sustain requires finding a prejudice the only basis on which the agency acted was a decision was a a a statement if there's going to be a protest if it didn't have that second component that essential component prejudiced that protest or statement doesn't have a rational basis to it without a prejudice fine you can't have a protest saying that this court's ruling what you read from ten u s c twenty three zero five and that rick doesn't require prejudice for the agency to correct this decision that only correct requires agency to determine that that the award was not in compliance with whatever prejudice is probably a term of art that's used in the protest realm that may not have found its way of the statute trauner but i submit that there's someone would have a pretty good case against the government if it blew up or cure meant because it found a mistake that didn't particular man and made an award and had offers built through millions of dollars of effort expenses expose their prices and do all the things that are involved and then so upset it because they find that the minimum error this court has said that you don't think protests for de minimus errors i don't know why that rule should be applied at the age of acting on its own that's just a rational sort of judge and i don't have a ski's that i can cite for your honor but it seems to me that if you are acting on a basis that isn't trigger by some compelling reason even if you found th let me just talk about for a moment also the the issue of the agency having changed its mind the agency did not change its mind that it's very clear what the agency did is come to a better understanding of the eighty the existence of  call to make in the far when it talks about discussions only regulation that keeps getting away from around here is the one that says true freedom body face more favorably than the other the regulations also direct the agency to tailor their discussions in a way that don't regulations in place there is no self evident non discretionary way of figuring out how a combination of those two regulations apply in a particular circumstance and therefore there is a range of reasonable judgments about whether there is error it's not there was error there was no error there is a range of reasonable judgments i would agree with your honor and the agency that there's also raise reasonable judgments about how the agency should could decide to go forward with this discussions and that's why i think that the veteran corps rather than trying to get into that debate in this case is to apply the straightforward rule of statistic or say this issue didn't even need to come into play if north what it was supposed to have done we wouldn't be here the agency would have been forced into that judgment if that rule applies there was no basis for a protest and there was no problem with this particular event let me make just one comment about the p r l level m madsen comes up and to you and quote the the language from the r f p but completely misrepresents it the language of the r f e does not say that you have to come in and substantiate your changes what it says and there's a very important difference what it says is you have to come in and substantiate in it the t r l v any system that has been change the green to read example is a terrific hypothetical if that p r l had already been is that have been established for the system and it was the entire system not parts of the entire system was tested and proven and demonstrated as mature in the pre e m t phase in the protium the phase raytheon put forward as it representation of maturity for that system the same assessment and testing that have been done before said you know the change we made here is so innocuous the maturity of this technology is not affected it's like the wrens agree we don't need it so we're go prove that the current p r l of this system based on the prior testing that was done is still valid and you know what the evaluators agreed with that and said it's perfectly mature is still fine we don't need any new testing the r f p didn't require