least raises enough evidence to create a factual question on that point in this context it must be proven the acts of appellate city of palmer violated a policy or contracting practice of the federal government along the way the standard formulated in the recent united health care services vs escobar case from the us supreme court is to be applied namely whether the federal contracting authority for the e p a would disallowed the grant work being awarded palmer had that authority known about the plans of palmer alleged here to be wrongful the first issue is what i've phrases bittering the second issue is required to bid out this work rather than simply do it in house right you definitely want to call it tell me tell me where where the law requires that i'm having some difficulty concluding that having obtain this grant the city was required to bid it out rather than simply do it in house well indeed the underlying rant had a provision requiring that when he you say that but i read the grant i don't see a provision argued that i'm not suggesting you have preserved the argument tell me where in the grant document it requires that the work be bid out as opposed to being done by the city i will not have a cite to the number of the and what do they say they say the standard language all the construction work here has to be competitive leave bed to the maximum reasonable amount possible tell me where i find that in the record it's the application from palmer which later became the contract itself and it's contained on attachments forty five in the record  contracts as fixed price contracts in the use of competitive procedures to the extent possible yes now go back to the a are these the a or require them to  i read i just don't see a requirement that this contract be bid out and that's the federal government's position obviously did declined year it declined to prop two to move this case so i'm trying to find out where there's a requirement when when they i understand if they give it to a private contractor they have to have bid that's clear the question is if they do it and what's the what's the what's the point of a law that says they can't just do the work internally well there's a statute a labor department section of the code that says that all construction work of any kind across the federal government has to be competitive with construction work when it when it is when it is contracted out so the federal government does its own construction work many are and many occasions well they want to have a contract and they want to right that's right and that's the that's the question here does this grant require that they go outside the city petition the contracting authority to allow them to do the work and they have to prove it's an emergency situation or that somehow the money will be saved but that's when they're contracting with some here they've gotten a grant somebody give them a pile of money to do a job and you say when that happens when they get a grant to do a job they cannot do it internally they must get it out to the private sector well now a minute late there's no money being paid because the feds are paying for all that right but the actual contracts are call that the call grant contracts or are just contracts and it's because there is compensation because you're meeting all these additional requirements of the federal government especially in a statute that's as specific think fifteen fifty four would apply the question is the city required to award a contract to someone to do this work or can it simply do it itself and and you point to lots of provisions that say when you're contracting out work it must be done competitively my question is this what were some vision that says that the city simply can't do the work itself well that was just mentioned by another justice we read from the what was it what did a but if the grant itself is the contract that was an inner did have wasn't bad out because that's debts what your debts the grant i'm talking about the to do the actual work didn't the city not enter into any contracts for that but simply do it so yeah by dispensing with the bit taking it for themselves ok i understand your position did al give you a minute to make it you want to make there are two other issues here was the davis bacon wages and  the increase payments for benefits went directly to palmer like a bonus they'd have to pay the agreed price for the benefits and they would just get free money from the federal government on top of that i don't believe any contracting authority would approve a situation like that expression when it only applies to federal work well if they contracted out this work to the private sector would never have to pay the prevailing davis picking which if they would not how much that would have been  pay their workers forty percent more i doubt their workers in alaska there's no evidence in the record on this for private workers in alaska generally make less than public workers less so we've got a forty percent increase on that would have been a big a big savings now you determine on damages the district court is going to have to look at there's diversity use on that but certainly a private contractor the ticket with all these extra expenses palmer put into the ira funding easily could have been what's ok your earlier time yes i think you conclusion is that the complaint was properly dismissed because there really are did not plausibly allege that palmer violated any statute any regulation or any contractual requirement could it could we turn to the point t unlimited ability to raise the salaries of your employees to do the job without giving rise to keep him quite i think the answer i mean the the answer of course depends on a whole lot of circumstances regarding that so that's why i made up a  tripled the wages of your employees to do the job and therefore the drug use up the whole grid when it would not use it up otherwise you would you know find you would have to find a large rule or regulation a contractual provision that governed employee compensation such that hypothetical city that you're talking about would have to know that what they're doing is is not allowed because there's some rule on point that says we can't do this and they would have to intentionally omit that information from their claim for payment and you would also have to find that the government would have denied the claim that it's material that the government would deny that if they had known so you know assuming there is some regulation on point regarding the appropriate compensation under a claim under your city workers are going to be used they will be used to their existing way to oh no there's nothing the applications regarding that we should to the government with the government have assumed that in looking at it that you would use them at the wage level is there anything about their existing wage levels for example in the application you know nothing about existing wage levels nothing no you know no regulation on point no portion of the application where that where the city of hama represented anything to the federal government about what they would be paid and you know the reason this is this goes beyond what judge gleason considered and what the court consider for a motion to dismiss but the payment that the reason the city palmer did this is because they were concerned that it might be the case that they were required under federal law to pay davis bacon wages turned out that was not the case but there's a letter i think it's that fifty one of the excerpts of record where the city manager bill bill allen explains that they took the conservative course of action here because they thought it was possible that this might be required by the federal government so they better do it they later concluded that was not the case and they returned those workers wages back to their usual level so your jury returned to her usual level fo that on its face that statute applies only to contracts funded under the a r a s as you discussed with appellant counsel and even then it only requires competitive procedures to the maximum extent possible this is very different than what the s c section one twelve which is stature a provision applying to highway construction projects specifically sort of defined transportation projects and under those within that type of project there must be competitive bidding procedures in almost every case and there isn't very detailed regulations on point about what you have to do if you plan to use force account later none of that applies under fifteen fifty four to this type of project and so it's just extent possible but you never injury to a contract with any right not all work not work performed by grantees the third one is the alleged failure to create jobs just please incorrectly said here that the second amended complain takes an overly narrow view of what job creation means and what promotion economic growth means there is nothing in the application signed by the city of palmer to suggest that palmer was obliged to use the a r e funds to create some her order i think it's at fifty one the second amended complaint itself on its face acknowledges that pipes were purchased from first in enterprises in order which is private sector in order to complete this project because of course the city of commerce not itself fabricating pipe but had purchased that from someone else and so even if judge gleason and the city of palmer are wrong and somehow despite the absence of any regulation point job creation means something much narrower and more like the appellant suggest it is impossible and there is no plausible allegation at all that anybody at the city of palmer could have understood that new narrow meaning of job creation and knowingly intended to evade a short one minute because it's your and this question of science or it was a city manager and the advice of the public works supervisor who made the decision it's not the lady's writing the check or figuring out the amount owed they're not the ones making the decisions of the science or is directly with the highest officials in the city now it's up palmer had a question about whether this vetting can be done to the extent possible all i had to page twenty three or four not a highway contract but the h h s has a similar requirement and e p a has never been in the business of doing this kind of work this kind of grant work something totally new to them so the e p a had no opportunity to create the same kinds of rules now the rules that apply to highways into building making buildings for the poor by it should apply there's no reason not to apply across the