it can i just be clear you have not disputed in this litigation that the that your proposal was in fact condition and that is to say you tempted would have committed you for the fix price to do everything necessary to comply with peoria yes your eyes that's exactly what you just said is exactly correct  did not offer a fixed price that included p r e a compliance but in fact your bid said here's our price t r e compliance is going to be extra did state that the pre a may or may not cost extra they were not a they could not determine that because at the time there was no problem there was no discussion as to what the prio would entailed because banham had repeatedly raised various concerns throughout the course of the bidding throughout the course of the and in the fifty six matter the forms matter i believe it was the b o p s even come back and said we will provide you more information when it becomes available for me here's here's way at least  in my current way of thinking this seems really quite critical put aside your challenge to the term of the solicitations you say p r e a compliance these should not have been clued because we don't know what they were etc put aside that you also have and must of just assume it will get back to this but you waived that challenge so we now have one more challenge which is taking the p r e a compliance included term of the solicitation as part of the solicitation nevertheless there wasn't a defective evaluation of  bids and on that question the c s e said the bid you submitted was not a fixed price it did not promise to eat all p r t a compliance costs without additional money and so unless you told the c s c to the contrary we actually would have eaten all those costs then it seems to me there's a real question whether you just non responsive yes your honor i believe we did bam did make that exact argument and while they did argue that had it's been accepted it would have been bound by do you happen to have a record citation for that because i didn't i did not see that i do not have that handy i can get that for you standing to challenge an award or the perspective better challenges the terms of the solicitation prior to submitting a bit but it's a good idea that one needs to divide your challenges into namely the challenge to the inclusion of the p r a compliance requirement in the source station and then separately a chap you've got some other challenges about the allegedly defect them about you ation of the two that claim on the ground that while you in a very loose and the informal sense complained about this term objected to it use the word protest in one of the cases didn't use the word protest in and in another you didn't diligently pursue a formal response and resolution from the bureau of prisons why shouldn't that be how we interpret our blue and gold waiver standard for an adequate pre award objection well your honor i believe that the blue and gold and comix the coleman case pretty clearly addressed that issue saying that in the future in cases like this come along words on certain whether you put in a real strong complying that or not those cases won't come up because you will have made your protest  forthcoming none was required and right the law doesn't require any i don't believe so where where do you find a source of authority that required the ange the or the department of justice here to respond to you your not having made a formal request i don't believe there is any formal such procedure however i do believe that in a pyramid such as this one the b o p it would be for one in the best interests of the b o p to communicate with potential but with better to work it out with the contracting officer contracting specialist and that appears to be what you were trying to do with those couple of letters yes but at the same time there was can i ask you have as your principal complaint the challenge to the inclusion of the p r e a legations assume for purposes of this question department offered as an alternative grounds for affirming the judgment below this notion of waiver i i understand you've taken the position that well the justice department needed to file across the fields in order to preserve that ar but assuming we disagree with you on that i didn't see anything in at least in the briefing to suggest that nevertheless if we were to consider and agree with the justice department's argument that you of standing which seems to me to turn on whether their bid was or was not one that if accepted would have found them to comply with the p r e a without any more money than the dollar amount in the contract you by their own bid and it appears at least three me but you can correct me if i'm wrong the contracting officer in both cases very much did consider the it from vendor and didn't make any indication of removing phantom from the process due to some kind of noncompliance in my row your honor i disagree we disagree with your honor the issue of jurisdiction is a about the ban the proposal being noncompliant iran is correct about that but what the agency decision making process entailed in fault is not relevant to this court legal determination about whether or not the proposal last offer their proposal their bid would have committed them to complying with p r e e a without any more money than the dollar amount in there because i could point your honor to the record where that is sealed and i haven't been able to get access to it i've looked at in one of the cases there i guess is that they're putting an injunction motion or their opposition to parliament and junction i don't remember and i don't see this point in there that is i ask d mr huntsman his kit was his position in the c s c that they actually did submit a firm fixed price offer and it's just a misunderstanding to say that they think he directly answered my question saying you know his position in the trial court was that that was a firm fixed price that was if it had been accepted they would have been stuck with that dollar amount and all the p r yeah obligation that was not and that was not their position in the trial court their position in the trial court and it's reflected in the record is that we're giving you pricing but we have not factored in the cost of the nation because we cannot and i could point your honor to a document in the record  present and that was actually evaluated was not actually an offer that anyone could be bound by your honor i believe it's in it's in their brief things before the trial court and have the record that i'm sorry and the record page number the record page number which means the i'm pointing to the record page number because i add one one one way we know about the weather right now we're working now we're onto the stage of the litigation yes or the federal plans in both cases and that's where i'm i when it should be in the actual briefs i mean that their position in the briefing was that they did not provide it i recall your honor their basic argument their basic argument is that they could not provide for the addition of prayer there was no disconnect in their briefing before either judge question williams or firestone related to this position they simply could not reach the extra issue of the prayer requirement has come back to the doctrinal question which you want to talk about early what case of ours hold on facts not to not just states more broadly than the facts  economic interest and essentially standing without challenging the terms of the sort of situation or challenging the evaluation when i went to this that case involved in our responses that are your honor and it's actually a non compliant think i think i haven't made my questions clear enough in a host of ward protests can complain of two different things the terms of the source taishan were illegal bad in some way defective issue is all about challenging the terms of the solicitor of the solicitation but if that's true and if you were if you're right on how waiver that still leaves the question whether the challenge to the evaluation of the two in each case the two bidders was actionable is your honor i mean if i may add in putting aside the waiver issue the standing issue stands on whether or not the proposal was responsive with compliance with the requirements of the solicitation that requirement the whether or not a permit is fixed price is provided is governed by the the far as a legal matter defines what if from fixed price contract is under part sixteen point two zero two thus one to four defines a firm fixed price contract as one that doesn't take into account the contractor's cross experience here what that bannon is trying to do is that pending that requirement by saying i'll give you a price but that's not a full price because the reason we don't know what our cost experience is going to be here that challenge is to the terms of the solicitation and actual bitter right who submits a bid that violates the terms of the solicitation and then complains saying i d your own code if you if you take it out of the equation the argument fails to submit a compliant offer and therefore can't be considered to have even been there to play if you take that aside then you would concede when you not the man amidst a substantial chance of winning the contract fear so we would i mean if it were compliant then they would fail under the waiver doctrine because they did not bring a pre award protest under the rules governing agency protests under the far and justice acquisition regulations as well as the expressed terms of this so the situation but just as to the challenge the solicitation the waiver rule does not apply to the evaluation preserved their challenge to be evaluation of the competitors as opposed to the inclusion of the p r a obligations in the source which we don't believe be preserved these issues are i mean the issue that they a challenge on the merits below right well that and both cases the trial court and reached a vicious one and so there is a trial set up exactly what happened they came in and they said well we've got an argument on the terms of the contract we've got an argument that man would make so he even show is even if we can upset the apple cart in our protest on that distances one hundred twenty days and the merit issue in five hundred six had to do with whether the contract awarding could complying with the requirements that sex offenders be housed in a particular way so that's what i assumed your there will be a piece that would go back to the trial court again that's what we're trying to find right but those again i agree as we discussed earlier those issues were not preserved the only issue that i've been raised in these two appeals relates to the standing as reflected in the appellate it's opening briefs in both appeals in this court i think maybe we should get through the matter thomas they have to please the court to represent business charities think the intervener in case number fourteen dash five zero eight five i have five points i would like to make number one the r f p specifically required the operators to provide firm fixed units and can you address this question that we've been trying to nail down about what was said in the c f c litigation particularly by banham about the nature of the that it submitted whether it really was a firm fixed price or wasn't which i take it and you can correct me if i'm wrong to be equivalent to saying if that had been accepted would they have found the five thousand dollar number in that bid to do all the p r compliance i think the answer your honor is their proposal was equivocal and their arguments before the lower court were equivocal however judge williams in the record of joining appendix three zero zero one six states the court get there which record i'm sorry to be the joint appendix in fourteen days five zero eight five which is the only case with which i'm familiar with three zero zero one six y honor thank you and judge williams in the third paragraph states man and contends that it that it's been was not qualified as it submitted a specific price that would have been banned  said by not qualified there they mean not conditioned as opposed to not meeting the qualifications i believe that is that america were qualified on this point and judge williams considered that argument i by the record in the spotlight by the record not once not twice but three times in the joint appendix at one one one zero nine in the joint appendix that one one one five two in the joint appendix one one one one six there have and what we have in the agency record is there are various statements in their proposals which tend to suggest him to suggest that bid was conditioned on the other hand there is this fact that the agency appeared to have treated it as meeting the solicitation requirements how does that record not present a factual question as opposed to one that can be determined on summary judgment i think it to the extent it is a factual question judge williams considered it unresolved on for a judgment on motions for judgment on the administrative record this was an expedited temporary restraining order preliminary injunction hearing she was trying to get this case resolved before the turn over the contract and she considered it and i would respectfully submit that this court should apply a clear air standard to that finding of fact and there is absolutely no error in judge williams decision that the proposal to ban submitted was non responsive non compliant and that deprived her of standing to consider the arguments on the merits which i will note if you turn to the very next page of the record which i cited judge williams then goes on and i'm at the joint appendix at three zero zero one seven she goes on to state in the last sentence of the first full paragraph the court deems it prudent to examine bannon's protest grounds grounds and a likelihood of success on the merits and then in the next three pages she proceeds to assess the likelihood of success on the merits because she's considering injunctive relief and of course that's one of the requirements so judge williams number one was required to consider whether she had a restriction and in doing so should make findings of fact respectfully submit are perfectly appropriate and justified by the record or not clear air nonetheless she went on to consider the merits of bannon's protest which she concluded would not pass muster and accordingly she denied the protest and there is no error in that i would submit on this point and in response to one of the questions of judge clevenger re this case is very much akin to the facts presented in common and what happened in common i think i've got if you give him five minutes please to address a couple of questions that you had asked previously whether or not there was any citation for blue and gold gold stating that all just some sort of protest has to be submitted to that's where your honor i believe that judge williams determine the band had not way this rights in the protest and i would direct your attention to fifty five fifty five record it thirty thousand nine hundred can i ask you a question about that explore just a little bit about whether there was anything on use the term procedur improper prematurely jumping the gun in making a factual findings and the answer may be no this is the way it's supposed to work and i think you're playing that to me in deciding whether your bid i think the judge custer williams simply rejected your position which she describes and which i'd forgotten so she says you actually did say no no we offered a fixed price home made a fixed price offer and she says no you didn't and then we have the words you used in the various offering letters and then you have the fact that the agency treated it as in compliance with their with their solicitation requests was it proper for her to make that finding in the procedural context and can you explain why yes or no well your honor i don't believe the film obviously contains the i know you disagree with  question was whether it was proper in the procedural for context for her to make that  to repeat that question and answer if this were summary judgment which i gather it was not findings fact would not be appropriate on our record that contains evidence pointing  ways so what was the context here and what a motion for judgment on the administrative record a motion for a preliminary injunction it cetera what is it that allowed the finding that you the american jobs and that's all we have in front of us is the denial of the motion for honoring junction or which was the case closed the case was subsequently closed sign i believe it was across a motion to dismiss if i recall correctly and what i'm asking other case and the other case was a motion for judgment on the administrator ok so let's take the motion for judgment on the administrative record what did you agree that the case dismiss so i believe judge firestone had reached we had made the decision to dismiss the case on the standing issue before reaching that issue claims to proceed isn't that correct yes so there's no court entitled to make repeat there's no point the question that's being debated here is whether or not there was a procedural defect in the proceedings below that is to say and then judge comes to what i have made a fact finding she shouldn't have made in that setting meaning she could have made it in a different set right i believe so and if the record was complete nothing else would be added isn't it harmless error that she made a fact finding in this proceeding as opposed to in some other dismiss in the course of the motion for the preliminary injunction i don't believe that we received a full admit there was no full administrative record so i don't believe so i believe a full ministry of records was not qualified well your honor i believe that in the source selection decision at least on the fifty six matter i believe i don't recall i believe it was also in the fifty five source election decision there were clear indications that the that bynum's bid was deemed acceptable