prejudice my client in connection with the award decision that went to a contractor with known errors and it's been that were identified by the agency at the time a bid was thirty percent below the government estimate and again your honor specific errors were identified by the government but then never followed through on we are asking the court under the arbitrary capricious standard to set aside the noted that error and required it did their occasion but then ignored the invitation in that big verification receipt from the awardee or the at that point the apparent awardee that it did not understand it to the availability of the labor or the information or the evidence in the record is that the lay down yard cost of the lay down yard was included in mark dunning mark dunning's proposal but you know my question was is what evidence is there in the records that they were provided with different information as to the government's supplying table laydown yard well as the ri k that that's the evidence that we have at that time that one off or did it and the other one didn't based on apparent assurances which as well you mean are with their care and ended up where the apparent issue where the assurances my question my question is is there evidence in the record that they were supplied with different information not of the actual conversation your honor if that's that's where you're going we have to go off of the way the different approach departure meant differently and we could also get go off of what actually happened only time the question of with respect to specific questions seven hundred and eighty nine what would happen if there was an overrun and the government specifically bonded to that question by saying that if there is an overrun you must  accepted that is defective and cannot be used as a basis for award lay down yard which if you want to put aside the issue of whether there was information provided the fact remains that the government has not provided a reasonable explanation why those costs w the in the government's brief is that the government reserves the right to provide material equipment or supplies those are different procurement where award is required to be made to the responsible bitter that's and that is the lowest bid the army awarded a contract for solid waste disposal services to zero waste solution honor there's no presumption of responsibility that is well case law says that acceptance is a determination of responsibility but in this case the contracting officer ma affirmative determination of responsibility to contracting officer requested information from zero waste financial information which zero always provided indicating it had some six million dollars in lines of credit and in addition the contracting officer requested past performance information which zero waste provided indicated and  experience on this type of work in addition the contracting officer contacted these references the financial references at merrill lynch and citibank spoke to them and also the points of contact at the other military facilities so the contract officer here made an affirmative decision of responsibility wrote  decision letter and a responsibility determination is a business judgment that is afforded great deference and the contracting officer here satisfied herself that zero waste was capable of performing the contract so there's nothing inherently wrong with submitting a fourteen percent below dunning's did hardly a huge discrepancy but the key point is that it's not in dispute that zero wasted is a lower bid and once the contract officer concerning the lay down yard what is the evidence in the record that there was different communications unequal statements made to the to the two bears well the answer to that question is there is no evidence in the record no this is what the trial court found and this is most apparent in appellants opening brief on page fifty two they address this issue and what they reference is their own complaint because there is d their bid is just not not evident not apparent and actually oh oh  you know now i what i would say is if disputed in the sense that we did not concede the point they're making it's it's actually not apparent from the bits from the proposals my question yeah i'm sorry i yes the government reserves the right to provide a free laydown yard it is not  itself solicitation did not require bidders to price that so there's sort of conflicting provisions in the solicitation and it's actually not clear from the bid submitted whether the bitter actually included it it's just not apparent from from their proposals neither proposal actually mentions the lay down yard the answer to judge movements question is yes the government is providing a free laydown right i'm sorry one i'm not actually not not fighting it just trying to be clear i think the matter this week let me interrupt mr pixley this is not a hard question either the government is or is not providing a lady  yard to zero waste it may not be in the record it may be post award it may not be relevant for any number read the actual page but it's a fact and either you know the answer or you don't to answer your question i believe that is the case and that is what dunning alleges in the rule sixty motions and the court found assuming this to be true so that i don't have any reason to doubt that yes answer to your or is yes you have arguments as to why that still doesn't you know should it make any difference in this case but the answer is yes but it shouldn't make any difference whatsoever we dunning may have included it or not it's just not apparent so we did not concede that point and actually the trial court in its decision on the rule sixty motion at footnote eight addresses this if the court notes the two proposals look very similar dunning itself in its proposal never makes references to laydown yard so the only time th dunning asserts that it included the cost to lay down your audience proposal was in its verification of of the bid but again there's no indication for either of these dinners they may well  agency sent virtually identical emails to both bidders to verify their bids because both its came in under the government estimate that was the reason but yes that is correct that dunning in its verification stated that it included the cost of a lay down yard quickly stated that the unit description for clinton to one thousand and five be changed from job to months and it is undisputed that zero waste did not submit a signed which states in effect that the contractor makes knowledge receive of an amendment to an invitation for a bit but only if the big receipt clearly indicates that the better received the amendment well there's no question that in its proposal zero waste for clinton two thousand and five changed the unit description from job to months clearly indicating that it received the amendment and therefore by virtue  paragraph the one excepted the amendment in its entirety including the q and a section amendment twelve is a one page document it makes no sense to divide this up  simply not not an issue that should be dispute