yes regardless of whether the individual subcontract game plan was characterized as a responsibility factor the individuals have project and plan was required to be acceptable for an offer to be eligible for award here after what the responsibility determinations came after they had evaluated ready and verified the top sixty five highest rated offers right and then they took that pool and they you would perform the contract it was a self scored proposal but the maximum of eighty three thousand one hundred points to offer were the top seventy one breath set aside based on their cell scored proposal for concurrent with this process of reviewing the sub contracting plans which were the only substantial proportion of the offer as a proposal that agency was reviewing the backup documentation provided for the various categories were off or as could claim points and that's how you get from seventy responsibility determination issues and you should recognize that when you're talking responsibility there can be some welcome news we're discussions you can be so conversations if you will how do you communications with offer as they must be communications your exchanges communications our position is that there is no exception for its communications about responsibility factors in the far that has been something that has been created by the board of federal claims the g a o the coo the rule that this court and the court of federal claims in jail also articulated is that discussions occur when an offer is given the opportunity to revise i proposal here the individual subcontracting plan was not something like a d c m a a approved cost accounting system it was a detailed narrative document where an offer was inquired to explain and justify and support its approach to how it was going to carry out sub contracting and performance we think the court should avoid the confusion that can occur when you have different rules based on whether something is a responsibility busy factor or a technical factor or some other factor there is a bright line rule it's very easy to follow if you allow an offer or to revise its proposal for an element of its proposal as was done here you're engaging in discussions you  what a particular allowance that was made you you susan problem here multiple offerers were told that they were parroting the g s a sample plan and they need to go back and provide their own explanations for why they were choosing different numbers they were one off or is accused of simply copying and pasting from a sample plan it's not the kind of clarifications and exchanges we're also covering the far will tell us about that but what what relief do you want specifically do you want them to disqualify these people or do you want to be added on as a qualified awardee what do you asking an nobody says you can't have discussions the requirement is that you you have discussions with one you have to have just others right right there are so the other option would be to engage in discussions with all of the offer ours discussions once they're open are not limited to a single issue another pretty fair amount you wouldn't have discussions with an offer about it staff in klamath not not have to discuss with another offer or if it had a significant weakness weakness with its ke personnel the standard is once you open discussion is going to have communications discussions with all offer or is and what does that mean in this context i mean you don't love the conversation but did i mean is it clear  identify what if the government had point to government had a specific problem with your proposal and what would have happened if the government had come back and told you about the problem is that what you're alleging here and you're funny yes you're out are all the consistently applied by the court of acclaims and the board of contract appeals and that is in cases like this where it goes over the responsibility determination and is not part of the score value so contractors do not affect persons score in create so much more work if they have to open up the discussion with every individual contractor when every component of their technical evaluation when the issues they have these other people have nothing to do with their technical evaluation here and i have a where an aid and an offer has argued that it did not get meaningful discussions because it was not alerted to a rather minor weakness in its proposal and those protests are denied because there is that there is this rule that your only were fired to engage in discussions with all striving for is clearly winds are appropriate but yeah i mean they are good even better yet you could just say that if government has discussions with my person about one off or about anything it has to open up and have discussions with corrections on anything corrections here on how they could use clarifications what we're dealing with here is an extensive revision of a portion of the proposal that was required to be eligible for award so i understand the concern but we're not asking for this to apply to every single circumstance well if not then i'm just going to the point that you said your one of your policy reasons for saying we need another mine is because the line that others have settled on is not clear and i'm just not sure now you far specifically allows for clarifications to correct minor clerical errors and it has parts fifteen point three zero six eight which do not allow material revisions to be conducted through clarification  possible i would like to reserve should i thank you good morning your honor smith pleased the court your honor is the axis of o b ex texas argument over time has become a little more nuanced more focused especially today here before this court we do believe that it still suffers from the three problems that we mentioned in our brief that's blue and gold waiver that is inconsistent with the statutes and regulations and an issue of prejudice but since iran is we're talking about a bright line perhaps what about what about her last argument that there just doesn't exist in the far any and the requirements of a solicitation we're talking about to me if the table is of what's being purchased here here in this instance we're talking about leading edge technology and other information technology services so the question becomes person and how does their ability or inability to perform all contracts requirement not sort of read into the notion of what is the base value based on the requirement in a valu i could answer generally and then specifically your honor for this case well generally other responsibility factors might give some more information on this like whether they are not the company has a financial resources to do a contract that is a all performance capability question whether this company is going to survive doing this business now the specific question that whether or not this company has the knowledge or experience to do cloud computing for instance that is a technical question whether they can do the job it all seems to me to go to best the here i'm not sure how it's not right i mean is it is that can be your best value to someone who's actually incapable of doing the job  no but that's why is it if they go where no question in responsibility if you can actually have a conversation station with the government to try to explain let me tell you why my cloud computing will meet your needs g that's something that can be negotiated that's something that is subject to discussions you can sit down and explain with the governments evaluators through letters or what have you as to why your particular suit solution is the best value for the price that you're offering whether or not you have for instance financial resources to a job or in this case whether or not you intend to use sub contractors per congress policy to use sub contracting it's an overall go or and about midway down that page there is m two basis for awards says at the last sentence of the st paragraph underneath and two for the master contract the highest technically rated offers with a fair and reasonable price will be term and the best value basis for master contract is the dean i need to correct your honor if i can point you in the right direction again do you see the mtu basis  it is the last sentence in that st paragraph i think they're part of it's underlined so what that is saying is that the best value in this particular man who was going to get the words of the individual companies with the highest technically rated offers to be determined by the rankings for us if we talked about it earlier with my colleague the ratings were based entirely upon the technical aspects of this proposal o b x x concedes that the small business  contracting plants was not rated not given a score it does not fall within the rubric of what a best value is for this procurement so certainly definitely not for this procurement is a small business of contracting plants part of the best value there are not subject to discussions but tell me what the rationale for a chain and stuff but there's a big big picture on the right right big picture congress has decided in the small business act that is the policy of the united states to have some subcontractors and small business acting as we restart that congress has decided that small businesses in the different variations of them should be subcontractors in is developed a policy that that is the policy of united states the intent of the small business act is to get these small business subcontractors involved in large part chairman's such as alliance to the small business act negotiation between the agency and the contractor to make sure that these plans are maximizing the potential for these small business subcontractors to be involved in government is asking for is to throw this out the window and have sub contracting fans become part of every single of valuation criteria that is ranked and compared against one another by sort of maximizing why the notion that prompts far just say if you have discussions with one you have discussions with the world all i guess it's a fundamental fairness thing why the concept contracting thing would be except exempt from that or something different from that the fact that congress is trying to get more of small stuff contractors doesn't really nice answer because it's a loop it's a collateral requirement your honor it's not about the actual services or technology or  services or products that the agency has purchased and is that true of all responsibility determinations but we have that outlier case of both parties discussing the brief in a computer science corp case in g a o where the agency determined that it would consider small business sub contracting as an evaluation criteria assigned scores to the plans and then compare them against one another of the different offers at that point that agency made a determination that it's best value included how much small business subcontractor got on it and you read that in the circumstances that subject to far away yes the computer science corp case that we both discussed in our briefs your honor we think it's consistent with our position yes absolutely at that point the agency determined that it's best value included small business on contracting plants here is it really is it your position that there can be any and all discussions about  maximizing the potential for these small businesses to be involved now as well they said that was yeah i was going to use the example that we just discussed earlier on if you wouldn't mind that there was a paring back of a plan  based plan for some of these offers well there was an example small business plan included in the solicitation and sure enough some offers didn't provide enough information in his lutyens to correct correct but the the far and the s b a invision negotiation with the offer is to make sure that these plans are maximizing the potential make sure that the numbers within them are attainable and they're not based on nothing agree that the far side is really the only difference between what it calls negotiations and discussions is that negotiations are negotiations if they take place before the establishment of the competitive range and they're called discussions of the team players that are correct and correct your honor so otherwise negotiations and discussions are really the same communications there isn't it is just timing it's a different part of part of it is tiring discussions do you have that that specific definition that we're talking about what what's the purpose of discussions as well and that's the purpose because between the government and offering their undertaking with the intent of allowing the offer to revise its proposal that is exactly what we have here exactly i don't see how it falls outside of that definition  think of the problem that i have with this argument is that we're not carving anything out the small business act trumps the far it's bigger it's a statute it applies not only to negotiate appearance remember fifty or fifteen of so far here only applies to  the small business act applies to all procurements it is a collateral requirements imposed by congress on agencies to get small businesses involved in contracting this right here this entire x x is asking this court to do then those offers that don't have a perfect small business of contracting plans would have to be rejected because there's no way to communicate with them sealed is that's why we know that the small business act is bigger it implies well no we haven't gone into the year on it there's been no research or any looking into what other responsibility factors and what is considered where they fall on what they do but we're talking about here where i draw the line with  off right has a federal law because i've gotten about the sub contracting stuff has been only in that unique circumstance where subcontractors included as part of the initial best value was only leighton i'm not sure i understand your question i thought you were talking i thought we were talking in generally not just about that one unique circumstance where some contracting is part of the best value initial determination but we're talking about responsibility terminations vs the other stuff that comes which kind of makes it fall apart what i thought the government's position was this differentiating the right value now i want to be absolutely wrong and yes there is the more general concept of responsibility issue is looking at whether or not that the particular offer itself could perform a contract it's a go no go look so all the stuff you said about me as as actually really not cooperative in terms of what you're asking us to decide which is responsibility ye a different case if the small business so contracting issues was a school board matter rector on there and that would result in a movable decision perhaps for his living and you're sa criteria this you know my son picks a class pass fail even though he's not doing a school or i still would like to see him yes of course he is still one of the criteria you are using to come up with your best fifty or sixty one dollars or whatever you fail on that right and you're not included in the sixty well that's not how the the solicitation to find the best value as to the definition of best value their honors says that it's the highest technically rated offers with a fair and reasonable price the responsibility question comes separate from that ok you have your best value your slice of them can we even give these guys a contract for another example are they suspended or to barred from doing government contracts that's a go nogo question the protestors would be in time your view i suggested the most one could do would be to send it back to the court of federal claims to go back to the agency and have a quote discussion close discussions about the two things that led to us losing points right from our strike well as we pointed out in our brief we do not believe that those two items themselves are significant weaknesses or discussions or a deficiencies so therefore the agency would not even need to engage in discussions on those particular two items which would leave o b extract below the numbers you say needed there are discussions on those points i could still be  that's what we detail in our prejudice are you man are brief so even if we send this back it's all going to be a pyrrhic victory frankly rather also there is the concept of limited discussions the agency would have to make a decision as to where w i would like to begin with the issue that took up a lot of hypos in councils time namely the small business act x factor is a former small business we fully support contract in the small businesses and the small business act in the corresponding far nineteen dollars contemplate these negotiations about subcontract and plans occurring after the identification of the apparent successful offer they can even occur after someone is already selected for a war so the idea that requiring problems here the timing g s a could have waited until it had its sixty one or sixty apparent successful offer and then allow them all to correct their unacceptable their failure of contracting plans and instead yes they did that co main argument we make here is that this distinction between score and not scored responsibility and technical is a distinction without a difference the issue is whether an agency allows an offer to revise its proposal and gain eligibility for award and that's what the homework assignments they were not acceptable and g s a gave them the opportunity to correct those problems and on the issue of prejudice the court a federal claim is in square one armoring has held that you look at the cumulative impact be required to engage in discussions and finally on this issue of the go nogo meat and potatoes this was not a check the box to do submit a some contracting planner didn't you it was a detailed review looking at whether things were explained and justified and substantiated and that's why we think it's goes to the best value if you're going even rely on that distinction to begin with and finally i have thirteen seconds i can say we don't believe that blue and gold applies because there was no way for off know the agency was going to engage in communications and allow offerers to revise their some contracting plans t