good morning and may please the court this court should reverse the claims court's judgment for three reasons st and principly the claims court erred by conflating two legal doctrines that this court has recognized to be separate to hol harmonious satisfy the blue and gold waiver rule but still forfeited that solicitation challenge nd to the court decide to reach this issue in the st instance it's clear that the agency should have allowed offer or us to revise their entire propos to address the fundamental changes that amendments nine and ten brought about a rd and finally again to the court decide it needs to raise this issue the claims court erred by holding that the agency reasonably evaluated harmonious proposal they say separately harmonia had adequate time to bring a formal protest or in the court of federal claims prior to the award of the contract i have a couple of questions for you you  agree or disagree that you were aware of the other formal groups certainly we knew the g a o and the court of claims are available for prewar protest ok and sec nd do you agree or disagree that before the war decision of course that was the period of time that the government took to evaluate a proposal that was not known to us after the denial of the agency protests of course the amendments that we challenge came about after proposals were submitted  and so the decision could have been made at any time we filed this protest with the claims court within around ten or eleven days after the award decision was made public and you know our position is that we satisfied the blue and gold waiver rules with the formal agency protest that and micheline raised these grounds very specifically gave the agency an opportunity to change to address them the cargo applications identified and explained in attachment i want this contract is all about and they claim that you overlook the purpose of the contract if the cargo described on exhibit a d there's a list of fifty two of them and that's part of the technology stack that the government intends the awardee to use the question for us or the problem and aren't in our estimation is not that these applications were part of the technology stack but the idea that was never revealed in the solicitation that we had to organize our staffing around four of fifty five dollars applications and got a significant weakness for not doing so that's really the critical issue for us not that these applications were part of the work we had to do but for a fifty five or somehow core even though they were never identified as such and at any point in the formal protest at one of the three available venue but then continuously litigated through each of those bennies in the federal court in order to preserve its patient challenge and so  that the blue and gold waiver rule has generally been described as how you preserve a solicitation challenge the claims courts rule would require continuous litigation through multiple forms to preclusion essentially at the award judge shaw here from i'd ask you a question in looking at the case and looking at blue and gold fleet the court noted that one of the doctrines that's been recognized in this area is the doct or the government's briefing and a reference to the doctrine of latches are equitable to stop them and it seems to me that it may be inappropriate  area to look into in this case because otherwise we're sort of floating at sea without any real legal doctrine to bind us on the one hand you say correctly that you met the initial requirements  blue and gold fleet by filing the agency level protest that's certainly true as laid out and ban him and so forth on the other hand there was a period of time here that passed and the government says that important policy considerations compelled you to move forward sooner than you did and that's basically what the what i think the court of federal claims picked up on but it does seem to me to be an appropriate area to look at the doctrin and if that's a political has that been addressed here it certainly wasn't an issue that judge new judge smith raised in his opinion your honor i think that you know that also implicates at question i did want to ask you with regard to latches is assuming latches is pertinent in this area and via the language of blue and gold fleet it is can we decide the latches issue here or should it not be returned to the court of federal claims because it's inherently fact bound and there's been no fact findings on the issues of latches namely reasonable a sieve delay and prejudice we did not have to go back to the court of federal claims if we latches at all and i think a couple of policy points are important here mr kerr and his colleagues that at the department of justice have been incredibly effective using blue and gold to defend challenges the most of us on this side of the ledger don't believe or  their policy issues that affect the government customer but contractors know that rule two and so they're often times where contractors are going to need to file what amounts to protective solicitation challenges if they say anything that might pop up as an issue and the least expensive and most cost effective way to do that is with an agency level protests and if there's an issue like this where it turns out there's a long delay after the dial and before the award i think judge ran as the sent and are says also instructive there i think the appropriate place to deal with that is not by finding waiver under the blue and gold rule but by addressing it at the injunction factors a factor i in when you're talking about the balance of harms factor then we are talking about the public interest which is where i think these equitable issues the same we're talking about equitable latches are equable stoppel would would really come into play is that the relief level protest which you did blew harmonia had gone right on the same day instead to g a o and then and gotten an adverse g a o decision at that point  and then the contract had been awarded on december th and everything else it played out as it did would you be still here today making your argument or would you say that since they went to  o they did enough your honor if i could ask the clerk in question when you say everything played out as it did you mean they're still the full and a half month yes yes correct correct well i mean there are a lot of different variables but i believe we would be making the same argument because harmonium still have one more what this court is described as a formal protest let me ask you let me let me be rude if i could interrupt you  here because i just had a couple of thoughts and i apologize for jumping in in the middle of your answer there but assume for the moment that we have the same facts that we have here and that instead of waiting until  well if we have to think back to this case except to come in march the st that's still i believe three months in between the denial of the agency protest and then trying to renew it ok and then based on the principles and the court other holdings that we that's more than i'm adequate opportunity to to new and protest kind of let me just ask you and then i'll yield to any other my colleagues who have questions  as you as you heard and as you know in blue and gold fleet we recognize the a click ability of the doctrine of latches in this area of the law and can we decide the issue of latches if we think it's appropriate or would a latches inquiry in this case require a rematch and to the court of federal claims to look at the inherently factual issues that are involved in the doct case whether it would cut in favor of harmonia or whether it would cut in favor of the government it does appear that the issue wasn't addressed below that judge smith simply said well i'm going to rule this way  because it supports the policies behind blue and gold sleep in the related cases yes your honor judgments opinion didn't deal with latches directly but it did come up in the briefing because last year one of the princip what it feels is the wrong interpretation by the agency but they must must get a result they must get an answer they must diligently pursue their interpretation if they don't want to wait that argument another basis for blue and between ten days and four and a half or i guess the total of five months would make supposedly you raise a good you raise a good point there mr suppose and harmonia had followed up and w you're saying what statute is not a statute of limitations tucker act that gives court a federal claims jurisdiction overbid protests recognizes that these must be resolved specially for example twenty eight u s c one thousand four hundred and ninety one b three states that quote in exercising jurisdiction and or the subsection the court shall give due regard to the need for expeditious resolution of the action and that is what the court of federal now performing the contract is that correct it is still performing it is performing a bridge contract the actual contract has not yet been awarded solution and what is the what is the will that bridge contract keep going into this matter is resolved we hope so your honor but that is up to the agencies we have no control over did specifically have a section on latches it wasn't just a brief reference to it but it was a specific section that we believe coincides with the blue and gold cases for expeditious resolution my problem with the harmonia would be the harmonia exception to all of this is that that protesters disappointed bitters or not this one of the betters that had problems and concerns with solicitation terms would file an agency level protest which is the least expensive means of protesting of any term or condition that they disagreed with if they got a negative decision make and then do exactly what blue and gold council to guess which was to lie in wait until the war decision went against them and then raise that same very same issue in the at the court of federal claims because  if with i guess what mr keller was saying for the government do you agree that if harmonia after it received the denial of its protest that the agency level had within ten days gone to g a o and gotten another denial that it still after that would have had to proceed to the court of federal claims in the pre war stage rather than waiting till after recognized what harmonia has never explained even though it's by death tax and by the government is why they waited five months there's been no explanation no justification as to why they jurisdiction the waiver the limited waiver of sovereign immunity to sue the government as part of a big protest is based upon the need for expeditious resolution of the action and  so what what what are the markers here by which the trial court issued determine whether somebody has moved with deliberate speed or not you know we we know that the regulations don't give the specific easy as filing a letter of protest to the agency nor is it as easy as filing at the g a o but it may take longer than ten days at g a o but certainly would never take longer than thirty days so what do you look at that the taliban circumstances yes i would i think that would probably be the right test to say what was their explanation for failure to expeditiously pursue and that's the one fact even though that fact has been asked the question that that harmonix has never once responded to why they waited five months it wasn't because they didn't know how to file the court's calendar is filled with harmonia cases or are we looking at at forfeiting a the cause of action as a whole i'm sorry on the question i understand the question where we're looking at what i consider to be what the harmonia is arguing is for a loop hole in the blue and gold holding to allow them to file an agency level protests the easiest of all the protests to file and then sit on their rights for an inordinate amount of time without explanation to raise it again and delay the ultimate award which is still been has not been awarded a year and a half later while the litigate something that they could have easily litigated at that  time it's the final sort of positioned loophole that they are trying to create out of blue and gold so i'm interested why would they have to explain the wait why they waited well big because this is under the totality of circumstances test if you want to call it that there could be a valid reason why a protester did not pursue within ten days or twelve days or fifteen i could see a very very small business that did not have access to counsel maybe a month all but even then then turning around five months five months later it's the court of times procedures are more complicated but not too complicated ok so so i'm like like i said i as a private practitioner i look at this harmonious correct and i get to now file agency level protest on terms i'm going to counsel my clients to do so and then we'll wait to see if we win and if we lose on that issue or i can delay it particularly if i'm the incumbent because the delay generally helps the incumbent because the of of being able to continue to perform so it becomes a money making decision i'll wait and i'll continue to perform and that's what that's what the waiver of sovereign immunity specifically said should not happen this expeditious rebel resolution of the issues i think the honors from your time ok one last question did you you didn't argue latches correct before the respective interests by holding that the need for expeditious resolution was met by requiring one formal protest and one of the three forms of it when you say the blue and gold as a waiver be just as a matter of course to have knowingly intentionally waived its right because of pursue a solicitation challenge and you know this is not the situation that blue and gold was intended to address where a protester plays both ends against the middle we specifically raised our hand to the agency and said exactly what our issues were with respect of the solicitation is decided against us and the rules that  proposals were submitted we raised our challenge they denied it and we believe we had met the rule on the standard and we didn't know when the decision was going to get the war decision was going to be made and so particular potential for situation challenges early on to make sure there's no waiver and as i said earlier allowing one formal agency level protest which is exactly what pam said to preserve the issue as a and maybe that's a former chair of your your right to to to to bring a cause of action based on those issues but you know your honor certainly i think that aspect has not been developed at all in the