post litigation adoption of a new policy moods mr jaime says clean than the new policy is ambiguous at best was only two weeks old when the motion was filed and is not subject to any procedural safeguards that woods constrained to service for a ban amending it or abandoning it in the future in light of the given the history of arbitrary conduct of the service the district court dismissal solely relying on the new policy should mean should be reversed the new policy does not show that the service will stop the longstanding practice of awarding cooperative agreements the same set of incumbents in mcnairy and what you are refugees on its face it does quite the opposite while the promise is an open and competitive process that is different from what was operating earlier because there was no bit of process for the generally applicable regulations of terrier and also fish and wildlife service is own policies that apply to all cooperative agreement or words they read they encourage and expect competition and require it and fact the original complaint was that bidding process this in so far as it's very clear about the fact that there's going to be a competitive process is changing what happened on the ground earlier is to the extent that they say they will now follow an opening competitive process if there is a cha however it's really a big us because the the new policy also declares that service will not follow the deep department in tears regulations and policies that require objective merit based evaluation of it says what the service now calls cooperative agriculture agreement is quote not a financial assistance award and is not subject to the regulations at title two c f r two hundred dollars that's the regulation that requires a public notice and a married review process so instead the new policy allows each refugee to come up with its own set of criteria to use in evaluating applications one of which may be quote experienced in the type of agriculture opportunity posted specially personal experience on refugee lands work on comparable land and code in practice this policy will allow for the past practice to continue only under another name and the government provides no facts supporting that the new policy makes absolutely clear that the complaint behavior here could not reasonably expected to recur the policy has only a perspective effect when we for future awards in mcnairy why wouldn't the two thousand and fifteen agreements be entirely separate process so it's a product of very interesting procedural history of this case so the current procurement contract that are in place in mcnairy and went to refugees were granted through a procurement process when during the period when the claims court injunction was effective and that injunction was vacated by the federal circuit saying that the the relationship he seeking to set aside those contracts right now because it was only used the procurement process was used only because of the permanent injunction so i'm kind of i'm still confused are is the  forbid preparation costs from the previous year because it i guess they understood it to not require any additional preparation that they were that that what he did in two thousand and fourteen just carried forward so he would  incurred those costs anyway that's what i understood the district court to be saying and i'm it will not come not really sure that i follow your answer to the time question so this is about the  and there was no bidding process is the problem there but the underlying trend theory of mr highnesses breach big preparation cost claim is that there was implied breach of implied promise that his bid would be fairly and honestly consider the case isn't new when he at least have two men just complaint to clarify what aspects of the new policy still complaining about because it's not i mean at st as i said before there does seem to be a competitive bid process now and there wasn't before also there may be at this point be some track record as to what's actually happened under it it's kind of odd because we keep circling as the case different issue i think there may be an issue whether the policy is the issue is not right now and has to be challenging something in the two thousand and seventeen policy or because otherwise totally useless but you're saying you're saying that but the truth as a seventeen policy isn't sufficiently yes sure to continue that's correct but for that purpose it doesn't really make any difference at the two thousand and seventeen whether the refugee violated those department manual regular department of interior regulations and policies and title two of c f r part two hundred dollars whether the service violated those laws still remains alive in live case in controversy has two questions one factual one legal do you have a case where a plaintive can recover bid costs even though the agency didn't make a solicitation we do not but no case proposition then there has to be a formal public notice for bit preparation cost claim to lie so mr high mrs claim is based on a theory that there was implied promise that was breached and that's exactly what happened here while the service did not post a formal bid notice in two thousand and thirteen the refuge official promised mr hi ms repeatedly that he could prepare his bid especially for those empty croplands that none of the other incoming farmers were going to farm and then we come around to tw saw the reports at all of the argument and week or two ago the supreme court in the gun case but it's kind of a similar situation i mean i understand what you had there was a statutory change but the question is whether it's one of the questions that seemed to be the center of the our argument is that if the statutory change was not complete and there is still something that that's relating to what they were complaining about whether that goes looked at the briefing and in new york state rifle no it's attacking no one's drawing the the the further extension that it could be voluntary voluntary cessation could qualify even absent legislative intervention i cannot make that the presentation but i can check i'll reserve me making that time it please the court the court should affirm the dismissal because the seven year old challenge to expired contracts under obsolete policies has become moot back in twenty i'm going to ask you about the twenty seven thousand policy it's to me it has two problems that cause me to wonder whether they were smooth as here the st is that there's no rule making is just a policy so presumably it could be changed next week if someone wanted to change it right that is true the agency can always revise the if there retain the authority to revise their own policies but it's harder if they're done by rule making because and you'd have to go through another rule making and explain the need for the change of the reason for the change and so on but this is sort of they can change it back and the other i guess the other concern i have is it does seem to preserve the preference by listing as the st objective criteria and whether you have personal experience  longer a preference there are under the new policy there are objective scoring criteria and one of the relevant considerations not surprisingly is the offer  relevant experience experience in the type of agricultural opportunity that sounds awfully like companies well if you're on earth the whole purpose of evaluating a candid it is in part past performance is always a part of that actually personal experience and or as slams which seems to be experienced not only with growing these kinds of crops on this kind of land but this particular kind of yes indeed and under the old policy under the refuge manual you didn't have a competitive process there was a priority system if the incumbent well it's sort of competitive in name it seems to me i mean i guess that's the question whether the new policy is truly competitive drive someone comes in and says you know i've grown but i don't know what i'm grown potatoes for you know forty two years and i use these practices and i'm fantastic and you know somebody says well i won't potatoes but i've done it here and so i have personal experience on these lands it seems to me to build the i'm the incumbent preference no your honor there is no preference it is just one of many relevant committees that are also true and this is to me even a bigger problem that it doesn't say that these it says objective criteria may vary depending on the needs and objectives of the n w r s lands we will post the objective rule that propose that your honor that is not what the policy says because the policy calls for open competition right it calls for objective which this court recently decided in was the subject there were twenty eight j letter where the agency revoked the policy and two years later by the time it came to this court the the policy had been well established by that point and the court held that use of the revoked policy was not reasonably expected to occur the only but that's rare if it's a situation dependent and what's concerning here is not only that the whole thing  be changed tomorrow but also that within it if if not the actual important something come and see it allows forte it says it'll vary depending on what we decide and we'll let you know whenever we post a notice of it and those that notice next week again without even changing the policy that says being the incumbent is one of the objective criteria they haven't yet but there's nothing to prevent them from doing so i don't see why it moots the matter ok well you're out of that there's this two pieces to this one is the quick the concern that you're on a raise that there could be violations of agency policies in the future notice what they are it's not a violation they could say incumbency if they want and there's no challenge to either the new policy itself or any that there have been scores your honor but the question is whether the new policy the because means that the old problems can't recur well what were those problems let's talk about them because the the problem as mr haim is defined it was that there was an old priority system that gave priority to incumbents and the agency created that policy because there were policy reasons for doing it at the time and mr high miss did not qualify for that private priority status old refuge manual provisions that established the priority system for awarding cooperative agreements that has been an  were it's in the record your honor there's an old refuge manual which is around one hundred and fifty dollars or so in the appendix and there there was there's no practice separate and apart from that the policy provisions that were in place it might i guess two questions because i judge graves st questions are the ones that i still can't kick at best either but as a threshold question you're not asking for a hold for the supreme court case i heard nd amendment case are you know you're on earth ok so then the were in terms of looking at the language of the twenty seven thousand it's you're drawing it seems to be by priority preference and experience those seem to all for incumbents to get an advantage but the but the the question of past experience is not a violation of age of any agency policy the only thing that's about that and they'll get in your brief this is the lead question i have for you legally you say at the end well the difference is that quote federal agencies retain authority and discretion to revise their own agency policies but that's right then those but those cases all just localities i mean we've never said we trust the federal government more than which was locals local entities i would think that's that's not our point your honor our point is that in those cases there were violations of a constitutional or statutory dimension and agencies of any level do not have authority to amend the constitution or to be arbitrary and capricious that's the pro and i guess i would ask about american diabetes and i may be misremembering that but didn't the army in that case go through rulemaking and change a regulation as opposed to just putting out a policy i mean there were memoranda also but didn't they also put out a new regulation your honor i don't believe there was actual formal notice and comment the way it normally works in the military is they will way would there be any public input before they could change their mind your are the agency has the discretion to review their policies and i would give a compliment to mr high mass for shining a light on the old policy which ultimately prompted the agency to conduct a detailed policy review that ultimately concluded there was a better way to know that though in the analysis though it is relevant whether the government admits it was prior wrong in the brief your categorically or not admitting now you st time i've seen in the record here is your oral compliment to him today well that is part of the a calculation that there were there was a better way to do it but not it was nothing unlawful about what was done before there was an old policy which was set up for reasons that i can go into but how am i now managed to the court of federal claims have to do with the alteration as distinct from i mean you have a nothing your honor that the policy review did not commence until after the agency won in the federal circuit and there was a there was a desire to go back lessons learned from the experience and re evaluate in a constructive way was their policy in keeping with the way they wanted to do business in the american diabetes case stresses that the policy change was evidence by language that is broad in scope incumbents well let's here's the key point we we've touched on this a few times your honor and i just want this to be clear this is an a p a claim the claim is that there was a violation of agency policies and those agency policies that were allegedly violated no longer exist here and that there is there is a completely new system that has been adopted there have been scores of new cooperative agreements many many of those sat with her counsel but the language still seems open to priority but that hasn't been implemented as to these fields but that that is that is a policy judgment that is not an a p a claim if someone doesn't like incumbents getting awards i mean in the government contracting world incumbents get a lot of business it's not in and of itself a violation of any law policy or procedure the only thing that matters here your honor there is no separate practice separate and apart from the policies that are required to be followed and the new policy provides for an open competitive process you may prevail the trouble is the new policy also allows you to morrow to change it and therefore mr highness will be in this arguments that go to the merits that's beside the point for today's discussion but there is nothing left that there are big contracts the underlying contracts which a need to touch on this point the assertion was made that there was different the all of the two thousand and fourteen agreements that were terminated were multi year contracts that were three or five years in duration and pursuant to the claims courts then i thought they stated that the agreements will terminate after the harvest of the two thousand and fourteen crop that's right because that's what that's what the claims court ordered ok but those those those underlying agreements had duration of three to five years right but they were terminated after the two thousand and fourteen crop which was already in progress ok but if that was true then starting in two thousand and fifteen there would be different agreements at least that's an fourteen crop harvest yes and then you said well that doesn't matter because they say they look longer than that but it's seems to me that at the basically at this stage of the proceedings it it seems to me that there is at least an implication that the two thousand and fifteen bid was for something different no your honor same parcels same same parcel different conditions potentially from year to year is that each year is separate from that process that the plaintiff wanted to go through there was a two thousand and thirteen process which was  which mr highness asked to participate in and he was not per permitted to and response to judge take instance question before the law is that unsolicited beds are not eligible for a claim for preparation costs there is a claims court decision on this point from approximately two thousand and five i want to say bowen or brown it's not in the briefs i apologize for the but there is case law on that point and it all goes back to be issue of authority in the implied in fact contract what is implied in it in fact is from an the government acting going out to the public and soliciting bids the employee implied facts that's that's that and fly in fact contract but here we had a contract that wasn't really implied in fact it was a fact i somebody in particular child him that there was going to be a bid process and that he should participate but there never was i know but but you're saying here that that the that implied in fact contract was based on a affirmative contract was based on what he was specifically told your honor everything goes back to authority and there was no authorized request for bids put out for two thousand and thirteen and oh i'm sorry i'm so you're saying that the they in the government government contracting room where the implied in fact contract has been extended to a situation as you your honor described thank you that you have exceeded your time we asked a lot of questions though and mr han you have a minute left thank you thank you manual was restored after mr heigham has filed this lawsuit in two thousand and thirteen and here nothing in the record shows how the this new policy would be applied the government has provided no record or evidence of any sorts of involved in the court of claims procedure because they just search and that that doesn't apply presumably that's over with so what are you what's the basis for it is the arbitrary and capricious whether agency action had a rational basis and title two two hundred that department in terre dop did through two c f r fourteen o two which requires public notice and married review process and department of interior zone policy part five hundred and five section two that strongly encourages and expects competition and also requires awards based on merits and through a quote independent objective evaluation mr hi mrs claim little tucker act remain just to