award pre prepared will protest the evidence is that they have a non trivial competitive injury because they are currently an e h r provider one of the v a s e h r providers so they're an incumbent for some of these services additionally the evidence of the remedy claims i'm sorry you know many things i'd be i believe that they have one hundred sit around a hundred and the evidence of the record is that there were one thousand six hundred total fee a wide they also had a commercially available product record establishes that would meet the v a s in iraq ability needs and finally they have a non trivial competitive injury because it would result in the loss of their business several cases of established a non trivial competitive injury that is prejudiced economic harm can be established where you're going to lose work from my question  recognizes that when the agency and then the court of federal points reviewing is looking at a contract and there is no solicitation there's no technical specifications there's no requirements that have yet been set forth that is it's pretty proposal situation unlike orion and other cases it's difficult to evaluate what you could meet here there is no prohibition on sub contracting so one as a matter of law one of the  contracting unless it's limited because there are some small business set aside you have the right to subcontract in fact the record the administrative record establishes that cerner is actually the sub contractor  subcontract as you can do as a matter of law and it gives them it any evidence to show that this clinic tom would be capable of subcontract in the war your honor there is no variance in managing  similar types of subcontract there is no evidence in the work and the administrative record as such are you aware of our most recent pre award k c g i thought all of the united states i'm not immediately familiar with all of the facts of the case standard that should be applied and that clinic comp is a qualified bitter and that it is for someone who's not a mere intermeddler the it is there and when you dispute the proposition that even under weeks the side myers you had to be qualified or any particular that you need i guess that's one question the second is that that means you had to show that you were capable of handling the job of this magnitude your honor i believe i agree with the court that clinic com has a duty to show its a qualified better i do not believe that that means it has to a centrally put in the administrative record a proposal to show all of its qualifications for a hypothetical contract that has never been put to a solicitation for you and you were able to put in evidence in the court of federal claims in support of your john we don't we don't contend that we didn't have an opportunity to put information in the record however back to the yardstick argument that i've made if you don't have technical requirements that show what this contract is going to require then you can't create a hypothetical proposal to meet the requirements of the contract when you show that you're a qualified bidder what do you show you show that you're not disqualified there's a number of cases that that talk about if you needs so the v a never evaluated that product it's somewhat like the plan to your case that was a pretty award case that the horrific claims of applied weeks marine and said plants here had offered a commercial product that it said could meet th or at least some of them and the government didn't evaluate that the v a did not evaluate the product that in a june twenty ninth two thousand and seventeen letter to to the v a as part of the v a agency level that brings up a good point your honor what kind of d o d and v a how among others so v a has experience with that they didn't evaluate this specific product to my knowledge and there's nothing in the administrative record that they evaluate this particular product they're offering i don't believe it's the product that is used to the clinics that the court mentioned but i'm not there's no evidence in the record as to that but chris when shall the c e o of one of com who is a company meet the requirements if you don't have a solicitation yet and the v a here was saying what we want to do is adopt whatever he has and at the time that is being discussed the hadn't rolled out the system cost its entire agency so there's no proof in the record that clinic conduct could provide the services to the entire v a and there is no proof that cerner could no one has ever performed this contract but they do perform services four via a day that are all or services i'm not sure of that the scope of the contract is clearly defined or the or the technical requirements there is one case i can recall magnum opus that involves health care services and i think one distinction here is we're talking primarily about providing a software system so your honour's correct it would be a bigger scale have to perform sir to perform services  at one thousand six hundred clinics versus one hundred but if you're providing nurses you're providing people that's one thing and if you're providing a robust software system to a larger group that is a different thing these are the types of things that are that an agency could evaluate if it did complete this contract did i answer the court's washington concern standing issues and i want to turn to the issue of the public interest exception  clinic and contends that the v a was precluded from invoking the public interest exception that is because other exceptions apply in particular one responsible source and unusual impelling him to urge itsy additionally they failed to show with clear and convincing evidence or clear and convincing justification how foregoing competition would would advance the public interest certainly providing health care benefits to veterans is in forgoing competition advances the public interest why they couldn't have competed this contract or at least undertaken market research the kind of things that was discussed in the plant here case gone out and looked to see evalu evaluate cerner product quad why did vance's the public interest to forgo competition itself the the court below it was correct in applying that in saying that courts can review the issue of the end vocation of public interest and for those reasons that were correctly stated in spirits and the test of determining whether the invocation was correct that's a procedural thing and the court was correct there the court erred in determining that the public interest had been on that they had that h r system and the description of what that horrify was talking about is that appendix eleven seven ninety six the second one is related to a user interface so essentially the doctors walk around with an i pad and you know data and that goes into the h r system that would be across the whole of the vista system so that it didn't respond to either of those two but we'd contend that's not determinative of anything because this is not the option that the v a went for that's not what this contract is about and i understand the record shows that cerner responded to the second but not persons is is my understanding may have misstated earlier what the two exceptions that we contend apply to the situation are one responsible source which is six point three zero to the actual one an unusual compelling urgency and even though the v a says that it was invoking the public interest exception it's precluded by the provisions of six point three zero two dash one and six point three zero two seven from doing so because what they're really doing is saying there was one responsible source we want cerner that's what the d o d has and we contend that that is pretext provide the top be comprehensive enterprise wide electronic health records system that you that you need and the single common system require management is irrational or illegal or something like that that would give that would get that assuming they can prove that they can provide the comprehensive enterprise wide electronic health records system that would give that company standing to challenge to challenge the decision and how do they well to think that what you're saying is just saying we can some contracted out different facets to it in patient outpatient and they haven't demonstrated they provide they provide that full full scope to to anyone as as far as why why can't be scaled i i don't know exactly that's their burden to demonstrate that their word processing program and can you really supply two million maybe we're just going to copy it so what's the difference and maybe and maybe maybe maybe that maybe that could be in terms of the software i don't know that's that's plain aspired to  posting organizational change management training and sustainment and licenses necessary to deploy so what is it that is in the contract now it has not been awarded yet so if it goes it goes well beyond simply handing over a specifically seek a commercial commercially replacement of this stuff so in that sense we didn't make an argument based on that use one of the things you're saying is clinic com says  fails to demonstrate they could perform a contract of this magnitude has anyone ever successfully made such a demonstration well cerner cern is currently implementing implementing done before in his press conference so in that and that sense no as far as that aspect goes i don't believe this is been done before but i mean if you could show that failed for a long time you could you could show the perhaps the possibility of that by demonstrating you know your size for example cerner so i think states they have twenty four thousand associates or something like that you know billions of dollars of revenue think things of that nature of nature might demonstrate that they recently done this with a little bit less scale we can we can scale up based on based on that clinic comp on the other hand has not demonstrated that they're anywhere and in that round this is simply not a close case and whether they're qualified better or we're reviewing  issue were relate to vista it also commissions brand thorton to look at various options for specifically replacing this stuff three of which were commercial commercial commercial off the shelf options and in fact they chose a commercial off the years and ultimately that was that was the you know to get to the merits a little bit i suppose that is the real basis of this this decision is that we've we've been we've been trying to make our separate systems in iraq program for twenty years would be trying to get to go to them to talk to each other in a way  gives us the high the highest level of care for veterans and it simply hasn't simply has or hasn't i don't know that the person who would do the army's taking care of them and then transfers them over and  yeah it would be great if the v a could simply look at the same records that these are the d o d s looking at here and said we what we've got into which is an improvement is this joint legacy viewer system where where that that information can be viewed in  johnson please the court i'd like to start with the question about the single comment system i want to emphasize that with respect to standing it's critical and it's critical to the d n a now that the v a issue it's not just that they want interoperability because that as we've seen in two separate systems while improving will never quite get you to the seamless care that you want so in terms of talking to each other i think of interrupt her ability more as kind of the playing telephone game whereas the single common system would be one person having all the information there's liable to be breakdowns every time you transfer from one person to another there's a lot of the data latency lags and so on and so forth so that's why the v surveying the history and all of the failures that went before decided it was critical for veteran and active military care to have one seamless single common system and so i want to focus the rest of my remarks today on the question of review ability because i think this case exemplifies exactly the type of discretionary decision that congress has committed to the agency what about the regulations that toronto discussed the most certainly so the regulation in question is one point seven zero four of the far and among other things it says here's the form that should be enough has to take it has to be signed it has to have an expiration date and it has to include clear and convincing evidence to support the decision and here's why that doesn't provide a stand if you look at the steam whole decision not from this corporate from the d c circuit but it's i submit very instructive in that case a similar argument was made that the evidentiary standard there substantial evidence provided enough law to apply in the court looked at it and said no that's just a standard of review a standard of evidence it doesn't ultimately provide substantive standard which is what the supreme court in webster and this court you know allman brothers in other cases has held and so when you look at that test we submit that this is squarely within the agency discretion for three primary reasons first the language of the statute itself determined in the public interest is identical to the language in the statute in claybrook where it said determined in the public interest now it was another statute dealing with another popular but the d c circuit in that case looked at it and said that indicates not just that you determine not just that it is in the public interest but that that the agency must determine that it is and the court said that's just like in webster where the agency had to deem whether something was in the core review ability where the government was a party and didn't argue for i don't have that such a case but i would submit that it's jurisdictional this court has said that it's jurisdictional in the mccarthy decision he said it was a jurisdiction apparently a couple of years ago just a couple of years yes i believe is twenty sixteen why would you consider that to be jurisdictional like since our world has become considerably more demanding about the use of that term in the last ten years a fair point your honor i think it was taking its cue from the supreme court in the i c c decision which also characterized it as jurisdictional and the d c circuit and the ski performer contractor comparables well i would submit that the d o d contract certainly provides evidence of similar scope is exactly the same in all four corners no i would say no contract would be exactly the same but in terms of the scope of that we know the deal of the contract is something around four point six billion dollars we know here the exact amount is is not public but we know it is billions and certainly the types of services that are provided are very similar  final point this was a matter that congress left to the political accountability not to the judicial accountability and we submit that that's exactly what happened when congress passed the appropriation just recently to fund this very pro i'll briefly address the issue of you building as the claims court recognized for one point seven zero four requires the agency to clearly and convincingly justify justify him obviously this record this record regulation itself recognizes that someone is going to review it the the administrative disputes resolution act provides for review of agency procurement decisions as to whether they relate to violations of statute or regulation so it  reviewable it should be reviewed and that's why the v a probably didn't object and review ability issue earlier the evidence concerning the d m v case the d o d roll out in the administrative record before this court is limited it has a total number but at least as the time of the decision by the court federal claims that had not been rolled out everywhere and i don't know that there is any evidence that shows that cerner has as done this  wide would be large or that the v a s comment the former secretary of the v a is comment that the v a one would be larger i don't dispute either of those i just point out that i don't believe there's anything the record that has been completed which would go acacias my point earlier was no one has done this yet so to put clinic onto a standard when you have no solicitation and serve themselves hasn't done it is an incorrect evaluation is a qualified bitter and has the should have the opportunity to put in a proposal it may not win but the v a s concerns that it's raised about whether clinic comp could do this would be to valuated in a full competition believe so i think they were throwing it out why doses they come is the prime cerner is the sub and the administrators record established i believe that they were rolling it out in one particular region first to try it out i don't know the status of that now my understanding is it hasn't been rolled out that's not in the records wrong clinic comp is a qualified there that is what they are required to establish for standing is nontrivial competitive inj they will suffer economic injury because some of their work will be taken away from them and given to cerner and they were not given an opportunity to bid on the perspective future contract