just like to say that we are fortunate to have the benefit of having with us this morning sitting by designation our colleague from the district court for the district of connecticut a judge arter on we are indeed fortunate to have the benefit of her experience and her wisdom and we welcome her to the federal circuit also for the attorney just who are here or we're going to argue these arguments are recorded and the recordings are available on the court's website and so that the public will understand who you are and who you represent when you come to the podium plea understand in this case that the council are going to split the argument is that correct it's wrong the government will begin its anna i'm going to leave it up to you that divide up your time appropriately so i'm not going to watch the clock for you i suggest you keep an eye on it yourself and with that we'll proceed is reflected in the administrate procedure act and is contained in the session such as camp of florida power and light and impreza of the federal claims in this instance air by disregarding the deferential posture admonition being that the record should be comprised of the record compiled by the contracting agency where by the by the age of the ask you about that point because you cite at length in your briefs the excerpts where the just with the court of claims judge said anything comes in and so forth if the court did it had not read law on any of the declaration and reaching her determination there's no problem right are you saying we should conclude that it's just a court of claims john durham district court judge abuse of his or her discretion under count simply by letting the material in even if it is never relied on and each in conclusion we believe that the court that is correct your honor and that is because by introducing these extraneous materials t court in essence adds to the desert a rotter of the contracting agency adds to those factors and expands the review beyond the record the supreme court in camp was very clear about this in fact and there's no hope at least a harmless error standard matter which you think was improperly let in is there any problem is there any basis for a challenge in that instance without knowing more details i would i would say there would not be a problem because the error is harmless and the court must based its decision on other on other materials however the supreme court camp who was was very specific about the rationale behind keeping the record confining the record to those materials considered by the contracting agent is limited by the agency is there any point in which those declarations could have been put in i mean i don't know enough about the precise contracting process but if absi in which some of the party once you have declarations put in the record how is that done is they're all controlled by the contracting officer or do they some reason those those declarations were relied upon by the contract officer now there isn't there would be an opportunity for the during the process for a better to submit declarations for as part of it procurement officer to be considering i think it's difficult to discern it because of the big nature of this contract that we're dealing with but i think that ordinarily that would depend upon the terms of this was  whether or not if the if the well naturally the contract the agency must do is is is using its own experience and judgment ascertain what are the factors what are the criteria that we need to consider in order to  award this particular contract left those declarations in this hypothetical instance were introduced as part of a as part of the bid then perhaps the contract the agency may or may not consider those but that's entirely within the contract agenc be before you get into that that point and we'll come back to it in a minute with respect to the supplementation of the record what what is the proper standard or review well i understanding is you're suggesting that it's a review on our but is it not an evidentiary question that should be looked at from up an abuse of discretion standpoint no your honor and other the court and banknote as passing it in passing no to that it should be  abusive discretion there is no evidentiary consideration to defer to in this case because traditionally district courts you have the record and that is that is built in the atman in the district court through evidence through papers but situations as discussed to some extent in the case there are situations where the record maybe supplement it was some evidence requestion or some some piece of evidence that was he th overlooked or some other special circumstance rare circumstance well we believe but that the records that ash is is overbroad and it cannot be reconciled with it may take but my point is that gets difficult to say that there are no exceptions ever to a court reviewing the record of supplementing the record with respect to certain materials court to do to review without deference the decision of the lower court as to whether the record is rationally related to the other to the conclusion of the agency and yet defer to the court for some reason  on what constitutes that record and so because of the abuse of discretion stant the abuse of discretion standard is traditionally employed because of the discrete decisions of the a trial court in  process of a trial and because that those sort of decisions are not ecstatic in administrative procedure act cases that deference is not is not necessary but to go to your earlier question your honor about supplemented in those rare circumstances where the rationale of the contracting agency is not evident from the face of the record but that doesn't mean that doesn't allow the permit the court to do what it did in this case which is to supplement the record not with the rationale of the contract mages but with the rationale of individuals hired by the probe by the protester who had no involvement in the preacher and who had acknowledged they had no idea about how the contract was to be administered in that instance the court the court accepted no self control it went far beyond the ambit of a people because the is after the fact that corporations had nothing to do with the rationale of the contract so what do you want to stu do here seems to me if we agree with you the we just got as far as the supplementation question and then you're looking at a remain and and and do whatever whereas on other issues arguably we could go further it just dispose of the matter decision as decided the traditional approach and this is reflected in this issue such as our ink is that an o c an unequal access to information o c i is based upon information derived from a prior contract that is used to obtain an in the instance where their information that is obtained and the protested contract and the existing contract is to be assessed as to whether or not that it could be used in future unreli hypothetical contracts but it ok in reaching that let's assume we want to go there what standard of review do we then applaud it should be denied this is the court the courts misinterpretation of far realize contracts this is the problem with that is that it was when a contracting officer contract means he sits down to make that determination they are left to speculate as to what how could this information possibly down the road be used to principally pointing at which is the inappropriate supplementation of the administrative record why shouldn't this court consider with out the supplement approach in impressed by it and so that that issue is sort of the this court certainly can engage in that sort of view and so you don't in that way get into the issue of what is the and nature of the far at issue but we would ask this court to address that because of this dichotomy that exists currently that there are these two approaches judge grades approach and the traditional approach are irreconcilable and so whichever morning thank you for the extra time i'm marsha madson with the from mayor brown of our representing lockheed martin federal health care and the p may it please the court you've got our briefs you heard from the government and there's really just one point on the merits that i would like to make regarding the standard of review and its regarding the court of federal claims conclusion that the army's contracting officer who i'm a problem for to is the c political regulation in the far in awarding this contract and not barring lockheed martin federal health care from future non purchased care contracts the court of federal claims concluded that it did not need to address whether the contracting officers decision with arbitrary and capricious because the court of acclaim said that there was a violation of the law however we believe that the court below failed to questions to ask counsel for the government the court of federal claims fail to properly sam in the regulation that that issue here far nine point five as we showed in our briefs i believe the regulatory structure of our nine point i commit to that the contracting officer the determination of whether an actual or potential organizational conflict of interest exists and the approach to addressing it the regulation requires that the contracting officer perform an analysis to identify and assess o c i is and to term and how they should be addressed far nine point five zero five emphasizes that a transaction by transaction  o must be made and it emphasizes that c e o should apply common sense good judgment and sound discretion in determining whether an o c i exists and if so do about all of which suggests that the there's some disagreement perhaps you have with the government because the government views kind of that determination to be a legal issue upon which we all draw a line and what you're saying suggests that the c e o does whatever he in she you know applies the standard however he or she thinks it might in the new just and that and i don't i don't think i disagree with the with the government here my point is that you have when you look at the regulation it's well it is a regulation it under which i think would very be very difficult to find an actual violation because it is a regulation that gives the government a very substantial amount of discretion to analyze whether there is such a conflict of interest and to determine what to do about it and it also gives in visions very broad range of reasonable and acceptable conduct so we actually think that the court a law in using the violation of law pronk into the a p a vandalised a law that the court below should have used that all the private protest cases that we've cited in our brief some of which were mentioned by government counsel focused on whether the agency reasonably analyzed the facts the court by law acknowledged the uniformity and prior case law but it nevertheless is failed to erroneous and that the arbitrary in capricious standard should have been applied to the contracting officers analysis well the why would the court this court need to address the standard or the form of analysis for a r nine point five analysis because there is an extensive record in that that is in the joint appendix here of what the contracting officer actually did to analyze the conflict of interest and the court below ignored that record actually in favor of those opinion declarations so we think obviously the are trying to push a standard should be applied and if it were to be applied properly under the regulation there is great deference that would be given to the contracting officer i think the reason this court needs to weigh in on the organizational conflict of interest point is because as mr canela said the opinion in the court below talks about how this analysis that the contracting officers post in congress should work and it's backwards and it's going to cause a great deal of confusion for the government and for offer or in these the operating assumption in the opinion in the court a law is that all future conflicts of interest have to be precluded despite the fact that you can't tell what they are and that the regulation itself in visions of process where each transaction is analyzed on its back to determine if there is a conflict how extensive it is and what's appropriate to do with it so the court the court below went overboard basically you very much willing to restore this three minutes of rebuttal time and we will give your adversary an extra three minutes and then i have eighteen minutes and it seem that judge braden engaged in sort of a wild wild west the action of just letting every thing possible one universe come in without any sort of consideration but there pointing to as a comment in a telephone conference call it did actually require us to file motions the supplement of which were done and we had to justify the supplementation of the record based on the factors that the court considers did she just allow anything the for which number one is agency action is not adequately explained by the existing record number two that the agency failed to consider relevant factors and it's the solution and number for the case is so complex that the court needs additional information for it to consider the case and in particular that for that last one the complexity seems particularly relevant since the contract officer himself took three trips to the wall the  figure out the situation because if you recall from the record there was initial jail protest in the summer of two thousand and six before the calm before the agency report was submitted the government decided was going to take corrective action of the cases the smiths they came back said that they reconsider their decision and made a new contract award protested once again before the agency report was submitted and action and the g a o dismissed the case then we come back to april of two thousand and seven they've once again said whoa ok we've gone back and relook at the and each of these instances when they're saying they're going to go and reconsider their decision it's based solely on the organizational conflict of interest issue it wasn't something also so clearly the contract the officer himself realized in some facts ssion that he didn't do an adequate job the first several are nine point five zero five but the language of our nine point five four which imposes upon the contracting officer not just to look at whether there's a conflict of interest and in this war which potentially you could well off each war and find that there is no conflict within every particular word but maybe because of the nature of  program where the nature of the work that particular company does that because they do work on another aspect of something that there might be a potential for other conflicts  suggest one that requires an impossible set of hypotheticals not necessarily in particular in this situation the government itself very wisely analyzed the nature of the work here ok and so in the request for quotations the government's declaration this is we want to buy some services they are analyzed internally their own business and said that there is essentially three categories of work ahead of everyone which is  purchase care category two which is support services which is what we're dealing with here in category three which was sort of information technology business support to the to the military health care facilities so the computer systems at the  an army hospital or something like that so in particular in the situation they said look we do arise that there may be a potential conflict of interest if a contractor is providing a computer support to do what army hospital for above are but i also acting as some sort of support contractor to our office of general counsel for german office and or colorado which is actually the contract though that's in dispute here so the government so recognize the potential conflict of interest which is supporting the government's health care system once and then work in the office of the general counsel for the tri care management activity and in the picture office they're going to learn all sorts of stuff information source election information plans that the agency has that may affect what happens in the health care facilities even though the the tri care management activity is just dealing with civilian health care sergeant and his wife need to go see a doctor  not go into an army hospital they're going to what's called a tri care facility you know in a suburban area they even though that isn't what that doesn't deal with the medical health military health care if those systems need to speak to one another so that if sergeant jones goes to the civilian doctor the next week he goes to the army hospital the army house will need to be able to pull up its files on those systems to be able to talk to another that's that round another of the  a contractor says in his proposal we're going to do x y and z the government relies on those assertions that there are a big that is the contractor is going to do something and the government finds out that the contractors failed to do mitigation plan and bidding on this contract that it was not necessarily going to be enforceable so she wanted to have as a condition of of her decision to have some someone  makes reference in her decision to actually a statement from me saying that that the mitigation plan should not allow them to bid on this contract that they had said in their plan trying to avoid the specific statements but it's in the open record of the decision that their plan stated that they wouldn't bid on any contract where they would have access to source election information clearly this category two contract would give them access the source election as were information but she said quote i don't have any problem with the mitigation efforts she she didn't have anything on their volunteer sheet yes and her concern was that lockheed martin would not necessarily not that malaki martin would violate it but that it seemed to me that the government wouldn't understand if a violation existed so that's what she meant by that solitary because even though the governments they are with were so i don't trust the government to enforce that i would say surmised it today why does that justify a supplementation of the record as she committed and her relian the opinion that it took to go back to the time line supplementation occurred months before she came to the decision that there was a violation ok and that she was not able declarations and not necessarily focused on whether the contracting officers conduct was rational or in violation of foreign i i agree she she she definitely believed the argument from the major general out of the senate and mr richardson was was something that convinced i was just trying to point out that she supplement of the record and then much later made that determination that there was a violation of law the reason it was appropriate to supplement the record in this instance and there's several won't because it was the complexity issues to these declarations were before the jail you know the law and the court case that it's appropriate for the court to supplement the record with the information presented to the to the government accountability office when you're having one protest there and then the same thing comes in the court of federal claims because  it was something that was before the g a o and also it's in the nature of the order and that's where it gets to the initial why it's appropriate to have this information be before the court because the court is considering it not as i mean we use the term supplementing the record but that would also mean that our arguments in our briefs before the court are federal plans are essentially supplementing the record it's in the nature of arguments explaining the facts to the judge so we're not adding something officer saying that it's simply in the nature of similar to the owner argument that they reviewed the materials and they have this opinion of the court was why is it held in it all to the same extent that what i say is that isn't the area of expert witnesses offering a legal opinion to the court not that's either necessary or particularly favor i don't think that they were offering legal opinions they're offering their opinion based on their experience at this agency and saying this is what we know and explaining some so that obviously we're not offering legal opinions they didn't talk anything about well maybe i was saying that they didn't talk  about the law they talked about this is the nature of purchase coverage of those is not purchased care and what the government what the contract officer is saying doesn't make sense because of the nature of the interplay between those two things but how and it is true that the administrative record is the basis for considering what a contracting officer did in these situations but obviously there is precedent and the court of a claims is implemented that allows it to supplement instances that are limited and restricted and the court here in rare circumstances and generally those rare circumstances relate to the questions of the evidence or questions of the record or questions with respect to the integrity that that record that's going to be reviewed not this is sara lee opinions of expert witness takes one issue with you your honor these are my experience with doing protests at the court of the claims that it is difficult to say categorically that x type things will always come in and supplementing the record and why things she substituted her post in judgment rather than deferring to the agency's determination her discussions about the potential anti trust concerns raised by the bidding process that hadn't been the subject of your big protest in iran to be close to the final decision then why on that i don't think it's necessarily rebel relevant it's one of those things she brought up it was something that she was concerned but i don't believe that the she was substituted for judgment in that instance it was that it was a concern that the judge raised the one when push came to shove she determined that there was a violation of law or regulation but i guess i guess maybe i'm not understanding the record al you do but it seemed to me that at the conclusion she did sort of incumbents the anti competitive the facts and talking about the mitigation plan she said it has to be a subject to the court order and otherwise does not impose any anti competitive acts on future competition so it seemed to me that that was really part of her ruling the that aspect came up in a speech and it sort of came up twice one in her concerns about follow the contract and not necessarily the the the employer so my understanding of what the judge was getting at at that at that point was that she was just concerned that if there was a  the second problem as madsen was talking about that what we're talking about here is that she didn't say that the conduct she was dry seeing the contract officers action there's a violation of law or regulation so that i not instant you don't necessarily peer into whether the agency's action was reasonable and out of it's a will by allusion it was a regulation one presumes it's per se unreasonable that you don't the surly have to get to that point demonstration that the record was lacking no articulation the wreckage at the record was particularly complex and in fact in this is contained it ages twenty nine hundred six through twenty one zero eight of the appendix you'll see a couple quick between myself and the judge why attempted to walk the court through the records and show the court that there existed a rational basis and the court didn't want to hear the court's and we said i don't know whether or not it's adequate or not but the only standard articulated by the court for supplementing the record is found on page twenty three of that if we review were to conclude that some of those criteria were met agreeing with your opposing counsel then we could still we could affirm her supply mentation of the record could we not i mean even though she might not be articulated the rationale for certain exceptions if we concluded that those exceptions are map then we could affirm on that point perhaps but i don't see how that decision the supplementation of declarations that were created outside that that were not considered by the contracting officer officer which were created solely for the purpose of litigation by individuals who are not i appreciate i appreciate it and i just ask you one quick question that's a little off but i just for my own edification what's the relevance of the g a o decision in context appeal i mean is that relevant to our review of the contracting officers decision this court has this court in the past has said that it's not controlling but certainly because the g a o does possess a certain a quantum of expertise with respect ancillary matters but not any declarations or evidence submitted in a particular g a o hearing but i want to make clear that the only reason that the court stated in any written opinion or any statement that it could say it needed to supplement the record that it was in its practice and i quote to let everybody put in whatever they want that is reversible error now with respect to the interpretation of the fall that i heard from opposing counsel i heard a lot about what opposing counsel's opinions were and i heard a lot  every organizational conflict creates a situation where a contract work must be precluded it talks about significant conflicts nine point five zero four eight two talks about mitigating conflicts not extinguishing them so even under the scenario where in lockheed employees would have access to work in a category two contract would have access to category three information that the contracting office or the and that that it was not extensive and therefore the far expressly contemplates that this sort of that the court's reasoning emulates to some degree but in page twenty eight twenty nine of the joint appendix you'll see her reasoning in her first opinion and there she says that the mitigation plan on the statements of mr rich is mr ms miss adams does not adequately mitigate then wait iran she says and it's inconsistent yes or no but but she does state bases as her reason for overturning a contract work she says that well i believe that the contracting officer would not basically enforce the contract so she the both reasons and both reasons basically were substituting her judgment for the judgment of the contracting office that it's not simply a matter of what a court should do in a traditional view where the court decided o there's an absence of evidence or there's an absence of reason here no the court said i don't agree with the contract officer i agree with mr adams and and miss adams and miss mr richards and therefore i'm going to because i don't know in this mitigation plan what adequately