safeguard base operations l l c during this argument i may refer to the appellant simply as safeguard this case involves an unusual situation where the pertaining agency the federal law this qualification was arbitrary and capricious and based on the actions of a few key individuals who wanted to quote unquote send a message and quote unquote get rid of say card that decision which was spiteful perhaps even vengeful should not stand especially since this contract will run until two thousand and twenty five and say card was significantly less expensive than the awardee but let me answer a question about  motivation theory there were other or at least the price point was lower than yours correct your honor that your question broke up a little bit there were a total of orders for the small bits a disadvantage business award and the prices ranged quite a bit from low to high right so the answer to but the answer to my question has to be yes there were at least two or for orders who were disqualified for the same reason safeguard which is a contract for price was lowered and safeguard right i don't know what their price was lower in each instance there were actually a total proposal but they're right but if that's the case if there were lower priced bidders who were disqualified then how could you argue that that this was designed just to target safe it was designed to target safeguard because of the particular history that safeguard had with with flexi the protecting activity safeguards joint venture partner s r m actually performed the contract from two thousand and twelve to tw eighteen and it along with three other bidders was disqualified for not copying the schedule b prices of the plug numbers that flexi had provided the other offer or however had other issues with their technical proposals as reflected in the various decisions of mr williams the source selection authority so this was a protection in which price was an important factor but it wasn't the only factor  met because that as we point out in our briefs one of the key issues and respectfully were one of the areas we believe that the lower court made below is not reading the solicitation per it's plain direction in all caps an asterisk do not submit pricing for these plans bet appears that language appears without any strike through as without any commentary it's not deleted that language appears in amendment three it also appears and continuing through amendment five so at all times throughout the conduct of this particular moment the instruction do not submit pricing for these clients was part of the solicitation and we you're supposed to include in response to a question about that the we lose your numbers or nothing and the answer was to include the list of not to exceed amount or blah blah blah blah blah in in don't respectfully your honor i don't think that resolves the issue because you still have the language in amendment three in the in the contract line item schedule to not submit pricing for these clans buried in in an attachment to amendment three in the question and answers is a hortatory statement pleaded please include these numbers and i would note that these numbers themselves they don't include any labor costs this is all for supplies and what is referred to in in the jargon is as sort of other direct cost supplies t v s replacement t v s that sort of thing there's absolutely no discretion with respect to those numbers those  e numbers provided by the preparing agency flexi they were disclosed to all of the offer wars with the with the statement please include these numbers at the same  is less directional than the language that appears in amendment three itself in the pricing schedules where you have the language do not submit pricing for these clans in sixteen dollars separate instances the that she would have an obligation to enquire well st of all the lower courts found and this is in the appendix of page forty one that there was no ambiguity number one and we frankly share that view that there was no ambiguity that the language is in the in the schedule be clear and governed but if there if there were if someone were to found now that there's an ambiguity at worst it's a you've got the language do not submit and you've got the language please include because after after amendment three was issued you have amendments five weeks which repeats the same language in the clintons do do not submit pricing for these plans and furthermore if you go to and and to the extent we're getting into ambiguity questions there is a an order of precedence clause set forth in the solicitation itself which makes it very clear that the schedule the governs that is the most important item as one would expect because that lays out what the labor requirements are and what the pricing is and if we don't get st you have to find whether there's an ambiguity alright simming there is an ambiguity then you have to apply the pate ambiguity standard and only then would you get to the order of precedence right well we don't think there's an ambiguity just to be clear you're honoring we haven't argued one we we submit that the the solicitation considered it's entirety directed us not to submit pricing for these claims apparently three dollars other operators made the same reading and when ahead and did not submit pricing for these the most important thing is why does this matter what is that with everyone understood what the pricing for these claims was clipping interesting the council though you are cute earlier that it that the is that is that they should have just accounted for them right or that's not accurate either with with all due respect and the reason i say that is because there is one sentence in the g a o protest in which there is made a reference to the price evaluation but at the time that that g a o protest filing was submitted there was no understanding about what adjustments had been made it was only through the litigation at the at the court of federal claims in which i became involved that we found out exactly how the pledge he had dealt with the pricing issue so i don't think it's fair to say that we argued in the g a o that the government couldn't adjust prices i don't think that's actually a fair reading of what was said there was no understanding at the time that that protest was submitted how the evaluation had had an and the reason there was no understanding about that is because for two of the post were g a o protests the agency immediately reported it was going to take corrective action so there was never any full record about how the  agency evaluated the prices really until the until the decision of the merits by the g a o and even then only to a limited extent not the extent to which the record was revealed at the court of federal claims when the administrative record was produced by the government so i don't think our position with respect to this issue has changed respectfully we submit that the solicitation is not ambiguous that the language in the cl governed apparently other offer or spelled the same way and i i think the critical part of this is that we were disqualified we weren't considered on the merits and i think that the reason that the the lower court  big big government position and what court of playing that is this language do not the net pricing for these clinton was intended to mean that you shouldn't come up with your own  with that would you not if there is any ambiguity it should be clear if it can and should be clarified by questions than answers i would think that would be preferable all right so the question was this question with posters like do you that seems quite clear that i understand your position is because they said maybe they didn't really mean it but if we jacked that argument then they are clarifying what obviously some people may have thought with them very explicitly so would the problem they not allowed to clarify something that some people perceived them big are they not allowed to do that today not have the authority to do that if they had amendment three the language appears in in clear in item seven double a service request maintenance item it says explicitly do not submit pricing for the clintons and that language is part of amendment three dollars it was repeated in amendment five and i think if you view the solicitation in its in its entirety you've got language or directive language not saying please do not submit pricing for these claims and to a month right the i think the problem is is that it doesn't the claim language the direction doesn't say do much do not submit independent pricing for these claims it says do not submit pricing for these coin refers to the amounts that the government provided so you've got offer proper or provided pricing and government provided a map it could have said that your honor but it didn't and it didn't change again in amendment number five and we read the text literally which is i think with the law the circuit requires that at the solicitation language says do not submit pricing for these clans that means do not submit pricing for these claims and that's how we conclude government properly disqualify aren't because because of the things we talked about here do we have to reach the issue to appropriately reach the issue of preventing the record i think i think you we do when we raise that as a separate issue in our in our but if we conclude that the government had a legitimate reason to disqualify you then how could you ever prove that states prejudiced you in the it and the sequence of events is very troublesome and we submit that evidence would have been obtained that would have supported and proven the allegation of bad faith so i think respectfully that is still an issue before the court even if you conclude that that our reading of the interpretation was incorrect and i have another point i want to make about that but i believe i'm into my rebuttal time but i'm looking at the law there i mean you could have if the if you conclude that the government decision was originally to evaluate us on the merit and did you have the contracting officer in the record concluding we should be in the in the competitive range and then at the last moment on september th you have a two sentence decision of the source election authority basically disqualifying us something pretty significantly happened during the course of this particular moment and respectfully it doesn't make a lot of sense and had we've been unable to have some limits of discovery on that issue account three in the complaint and then we had two particular affidavits that we submitted that are part of the record and we submit those constitute what are referred to in the law as hard facts and that we should have been entitled to at least some limited state discovery connection with if we were to conclude hypothetically that the government acted appropriately in the disqualification yes i was starting that question the answer is no you do not need factors that safeguard didn't have not compared to be an open compared to safeguard in other words safeguard would have not been disqualified while those lower priced offer or some would confused by what you're saying because i thought the point was that the agency rejected the bid and their position is you should have just added those numbers in to make them all comparable so i'm not even if he did not at that six and you're telling me the history of this case is the agency in p was willing to put those numbers then and presumably in this like question and it would have done so in the absence of safeguards objection to it doing that  concerning the prices at issue in the agency in both instances unequivocally stated please include these government furnished prices in your proposal so that all those are sixteen different contract line items totally which is that had there been a permissible contrail ism that would have allowed the money to be put back in the only question would be whether any any other factor of course was sufficient to dis apologies well thank you mr oliver let's hear from the others died for rebuttal thank you alex thomas chuck again for safeguard i think the issue as reflected in the court's recent question is whether it was appropriate for sa uard to be disqualified based on this record or whether the agency flexi should have considered our proposal on the merits and we submit that the clear answer on this record is the latter we should have been our proposal should have been considered on the marriage and frankly we don't know what would have happened because even if you put back in the six million two hundred thousand dollar plug number and by the way the government in the record describes it as a plug number there was no discretion everyone knew what those were let me and let me interrupt you but they believe the palm tester at that time represented by different counsel didn't know what had transpired with respect to the price of valuation note that that is dated august twenty four of two thousand and eighteen that's the date of the document mr oliver side i'd like to point into the record then and appendix page three thousand one hundred and fifty nine where you have a letter from plexus counsel mr cain going back to the g a o four days later and this is what he said he's asking the g a o to quote unquote dismissed this protest specifically in response to the protesters allegations the agency discovered that it made mistakes in the consideration of protesters proposal the agency will correct the users in a new source election decision so at the time that the protest allegation was made safeguard suspected but didn't know there was no agency reporting it didn't have any of these documents that are now in the record do it do that that there was a price adjustment you didn't know the nature of the price adjustment your honor because there were other there's other suggestions earlier in the g a o the other adjustments were made to pricing for example there was there's a reference in the record to a two percent adjustment which not i don't think they knew anything for certain at that point in time and the temporal sequence of events is important because the protest was filed on the th and four days later what's he saying they're going to they've discovered a mistake and and fifty nine and then you get to the source selection decision which is roughly one month later and that's in the appendix at page eight thousand and three where you've got two sentences about safeguard the offers price proposal w technically non compliant because their price volume failed to include government provided amounts for the service work requests clients as required to mandatory therefore this offer was not eligible for work so we have no idea what would have happened had they adjusted our prices which they clearly had discretion to do to go ahead and include in fact for all younger operators that were disqualified they could have added the six million two hundred thousand dollars there was no discretion associated with that can i ask you when your time is up but let me ask can i ask you closer i think to flagging the issue but that's not what happened here and with respect to mr oliver's comment that dell federal controls it does not there's been no case that we found at the federal circuit where a vendor has been disqualified for failing to transcribe pug blood numbers all of the cases involve issues where a vendor had discretion with respect to how to price a particular line item there was absolutely no discretion involved here everyone knew what the numbers was that the agency clearly had the discretion and ability to add those numbers back in and do an evaluation on the merits which is what they should have done and we submit that the court heard below when it held that it was transcription error that happens to involve a dollar figure even if it's a government provided plug number involves a quote unquote material price term we don't think that's a correct statement of the law that can't be a correct statement of law this was a transcription error that did not impact the evaluation pledge we had every opportunity they could to safeguarding the protest that she spoke with mr cain who indicated that plessy had to terminate legal means to quote unquote get rid of suresh and that's referring to my client who is the owner of s r m my time's up thank you thank you very much we