than there was a standing but then when your yes your honor while i the result would be acceptable to the government we believe that prejudice is first and foremost a matter of stand this court however in cases such as ba has had instances in which it analyzed the question of prejudice in the second instance arguing that there was a a issue looking at the merits first and then turning to standing with regards to it depends upon the nature of their chapter if their challenge is with regards to their submission of them and said that they would have standing to challenge that because they were late there is an adequate independent ground which has  even if they have no standing to protest their submission two of amendment seven because they were late because there's an adequate independent ground they could challenge the late it's but they have no grounds to challenge their anything with regards to contest that the in the question of standing does intersect the nature of the challenge and the actual prejudicial impact both need to be looked at in this court in this case the court combined two different holdings combining both an analysis of prejudice which we could temps and correct along with a separate sort of ruling that the bat was able to test standing to bring this protest to be clear in the case before this court is a case in which injunction was was issued that sets aside the entire appearance and that injunction could only be issued if the quirk was focused upon the error or the alleged affair with regarding with regards to letting everyone submit their proposals via email at an earlier stage in the procurement not if the challenge was based upon  elements in this case one is there really is and the second element is whether or not they were prejudiced by the particular area they're alleging which is a lot everyone does that make via email and there there are two a the answer to that the reason why they don't have standing to challenge that the answer to that is not just simply that they're like the answer to why they don't stand a challenge that is because they were prejudiced because they're seeking to burn the very bridge upon which they have to stand it means that you can't get into the courthouse well you are this court has repeatedly described prejudice as a matter of standing throughout its case that you're saying there's no standing with the standing issue arises because of the it doesn't make any difference because everything was what because the whole thing was improper starting with i guess the responses to amendment or it was that's correct they'd say starting with the they're there because of the argument they're making it's not sort of the typical standing case where someone is protesting and they would have gotten a contract anyway me if they'd if they hadn't r determination that they were late but they had dropped that at the trial court level is under speeded that solicitation did not permit submission of email proposals or facsimile proposals and that wasn't because of a standard far clause this agency specifically crafted it solicitation used an amendment to the standard commercial items proposal it my client benefited by that by the agency not enforcing its solicitation in a timely manner and rejecting all offers my kind and benefit have my client been rejected at that time so would have all offers it would have been in the same position it is now  the position it wants to be on the position is trying to be in now if you had been rejected then there would have been harmed by client they would have been in the same position as every other office so when the government says that my client benefited by the non rejection of those initial email offers no all it did was delay the pain because the agency proceeded then a multiple occasions to accept proposal revisions by improper means and let's be clear there's no difference between a late proposal in a late proposal and one that submitted by fax or e mail and that's not authorized means in time of submission art coequal in the far no one is primary of the other so being late is not more invalid than being submitted by at that point my client has been harmed now because out of all offers it has been singled out for enforcement of the bit submission rules in this list station the agency allowed everyone else to go by submitting emails to me when it was rather muted except for one everybody sent in something you know hard copy right if they did all this in the other words there was no there were no women except the email that i guess your client said in two hours afterward right the other over in august of two thousand and seven when the agency select received proposals by improper means and accepted them and proceed it was written to do so i mean the you look at the record there were e mails friendly e mails going back and forth everybody knew what was going their e mails home to some government official says well you know it says four o'clock to four five is ok that's different i mean here they were everybody was communicated by mail and and nobody was complaining about it were there it was complaining about the only complaint was when somebody lost that's been the case in several that's been the case in several geo cases and court of federal claims cases where security agencies have communicated with offers by email or fax and then rejected  not rejected because of the back of the e mail signal aubuchon or it was well know well let's let's get to the final conclusion i mean the initial letter had two reasons in it and the very first one was email you know and then after i explained to agency council what the effect of that was going to be on the other proposals that is when the agency changed its tune and decided that it was only lateness that it was concerned about but that in his ribs critical point it's not there is no difference lateness or improper submission there not one is not primary over the other you're not more culpable because you're late than if you submitted by factory when it's not permitted in the same and you can say the same thing you c in press it was not present as it was eliminated from the competitive range it was decided it is proposal was not competitive should not have been included in the range of offers considered for award and yet this court decided that because of the secondary challenge that it raised would result in research station the requirement as here he was ill and press was allowed to go forward there's no difference if you say that i can't go forward with my challenge right for declar happened after going to war without right yes that's when the next year yes your honor it and i had knowledge the harshness of that result ninety nine times or nine hundred ninety nine times out of a thousand the harshness falls on the better and i know this because it's well known many of my clients i've had clients who submitted a proposal by facsimile i've been able to prove with evidence that the entire facsimile bid was in the memory of the government's machine but just hadn't finished printing yet and that it was rejected and that rejection was upheld you know protests so yes our bidding system our picture and system has very hard and fast rules and sometimes i don't know if harper rules produces harsh results but that doesn't mean you change the rules for an individual result here if you say that the submission by email is diminished then any offer can decide to cement by e mail any time they want because it's a de minimus violation well that gives them a competitive advantage if i have to send my bid in by mail a day before two days before depending on how far away i am from the area office well i can just wave to the day of submission and send it in by now it's de minimus it should be accepted so i mean we cannot the government the corps should not back off the hard and fast rules that we have for its mission and they say you must submit your bid at the time specified and by the means specified now th and really it wasn't disputed for the trough board and i don't think it's disputed here on appeal that email offers were not accepted there's been the argument that it's a de minimus violation to accept them but i don't think there's any argument that's been made that they are wor s it's not disputed on the record that all of the offers remaining in this competition submitted invalid proposed by failing to rules the government is asking you to ignore that primarily times a ruling here that it was allowing the government to slide on this allowing saying that it was ok because an offer was was there protesting officer was late later so he was double invalid it was ok to accept envelop polls holes will set a significant precedent it will back away from that horse that bright line that says proposals must be submitted in precisely the at precisely the time and in precisely the manner that the solicitation for require why didn't your client object that this was highly well for two reasons one objection i mean there was nothing to object to it hadn't the government hadn't yet decided to selectively enforce the submission requirements for proposals it was still in the competition and frankly it was the gauge and see that raised the issue itself first when rejected my my client's proposal in may frankly the offers just weren't clued into that issue until the gauge and see made it an issue by rejecting my client's proposal on that basis granted they attempted to withdraw that later although as as a judge one observed that's a bit of revisionist history once you i mean the the truth isn't twenty agency came out and said your proposals invalid because you submitted it by email oh it was late why wouldn't it be done it recently geoscience case that we've both both sides discussed it's very clear that the government cannot wave an envelop proposal so it would be very odd for this court to rule that offer or a protester could waive what the government cannot by a tortured view of standing up for prejudice in that the government is clear the government cannot wave the fact that there we don't see anybody in the record here while the e mails were going back and forth no one seemed to be contracting officer wait a minute we should be doing this in hardcopy that maybe not no one is and everyone should have been including the government all of it or should have been the government should have been the government was the one who picked up on the government was one that put it on the table and made it an issue but it's pretty it's evidence and nobody thought  so which you would still be here mr bailey even near the only thing the governor had said in both of its letters at the end was your proposal was rejected because you're late that would be a different univers because the proposals would still be invalid because of the e mail exchange yes or no rule one proposal is invalid it's invalid it can't be subsequently revived resuscitated brought back to life by any act of the offer or the government se your copy what we're did you say why is the prohibition against emails i mean we know e mails were used and everyone seems to be taking the position that you know they want to run our you would mr bailey says that was a prejudicial point you say that was not what we're exactly do we have to go and see the language that says you couldn't use email you are there's no language that says you can use emails but it doesn't specify that email is in approved method to submit a response to the offers so i do believe mr bailey did focus the court's attention in the right direction it's just that emails are copy to address a few of mr belize points and mr bailey raised the concern that he offer or consume it via email if they wanted to if this court rules in the government's favor that's not the case i mean in order to be allowed to piece of it but to submit via email where the r p does not specifically specify it to the far right still require that any sort of allowance of that would be non prejudicial in other words you cannot under the federal acquisition regulations simply allow one off or to submit via email and not allow everyone else to submit that same proposal via email it can change with regards to polls that can change with regards to visions not substance method of submission would normally fall within a matter of form not substance except in most cases simply allowing one person to submit by a different method of submission would be prejudicial when you allow everyone to submit response does actually rather simple there's a concept known as final agency action and the agency can start off going in one direction the question is where does it ultimately end up and in this case the final agency action was  supposed to submit a hard copy besides the contract if you look at page eight two zero three two zero four and two and five of the administrative record which is the e mail that was sent out with men it said and it expressly provides that submissions are the people fighting via fed ex and the other to offer a worse didn't understand that that meant for submission by a fed ex not issued by email and properly applied with that perversion finally offer or to find the nature of their challenge and solely rely upon the framing of their challenge as a challenge to solicitation to have a protest even where their challenge results from an error that was non prejudicial non