requires the v a to consider veterans first under the rule of two before awarding contracts to other suppliers that mandate which applies only to the v a and reflects the agency's unique obligation to veterans contains no exception for the contracts formed when the v a makes awards under the federal supply schedule and the government's attempt to create such an exception there is no better than its prior attempts to resist the mandate it semantic distinction between contracts and orders conflicts with its own concession than an f s s order is a contract in the ordinary sense creek where you get to think deeply into the merits of the case could you just tell us what relief you could get at this point that's consistent with the talk or act receding into clear a tory judgment that with respect to these particular procurements the v a aerate in failing to conduct market see same situations occur numerous times even during the course of this litigation kingdom where continues to be actively competing for these contracts and these contracts are of a short duration what was the amount of this contract this contract was for based out of thirty three thousand dollars here's some of the strange to get a declaratory judgment that something unlawful occurred in the past but that no one other relief is available for this past violation along with no other relieve is available solely because of the passage of time it is taken for this case to work its way up t by that clear jury judgment than going forward would expect that the v a will comply with this court's interpretation of the law and so would be tremendous benefit to the veterans community going forward from that declaration from that of the sedation of the legal rights here you did your client stipulated the way the comics that it would have been entitled to have their winning before the g a o correct costs but the very point of this case is there wasn't an opportunity to bid this isn't a situation in which the opportunity was put out there and kingdom where was able to compete for it the it was it skips through the rule process required by a one to seven went straight to the federal supply schedule and the first that kingdom where ever learned of it was when the announcement wind up saying that the contract had been awarded on a sole source basis to someone else under the i absolutely not the f s s is still going to apply to a large number of procurements congress when it made this targeted provision mandatory and focused on the v a also said a one to seven easy that it only applies to the businesses that are registered in the v a s database and they did that for two reasons number one as opposed to the self certification procedures of the small business act which are more open to abuse it wanted to prescreen and make sure these are the real deal here in the database and that also ensures that the v a has this information at its fingertips currently there are about seven thousand people listening that database they're go a veteran or disabled veteran oh absolutely that the database at the end this is a point this very very the v a has its own v a specific database mandated by law that is limited to veteran known and service talking about the same no we're talk we're talking a separate v a specific database and so what's happening is the v a is gathering in this information it knows who the veteran and small businesses are and then the veteran own businesses not not under this mandate because the mandate here in the law is tied to the v a s database and people who are listed as a veteran and small business under the and reasonable price and best value to the united states so if there is truly an urgent need and it's not going to be met by going through the rule of two then i think you have we way within the best value determination well but that strikes me  a very thin protection for these terms imply a lot of discretion what's fair what's reasonable what's best value the idea that that's going to operate as a significant restraint on the requirement that people in the database all the v a has to do is fire up its own database and see who's out there for the heartland how is it apparent that a particular veterans business can perform a particular contract i mean what in the database shows y this veterans small business is capable of performing this contract in a reasonably effective way the because the database has the north american industry classification system codes which are actually the same code t correspond to what's in the f s s and to the extent there is additional information that's needed it's very easy to contact the veterans in that database counsel could you get back to your answer to my question and  there is for the heartland of the people of small business contracting the are going to fall into the simplified acquisition procedures under part thirteen of the federal acquisition regulation that's for services under  hundred fifty thousand dollars and for sherman of goods it's now up to seven million dollars and under that system you have a greatly streamlined process for the smallest contracts and micro purchases  it's it's really just you make the decision for the sort of lower tier of contracts certainly for anything under twenty five thousand dollars all the person all the government's doing is placing the purchase order under the simplified acquisition procedures there's a standard form it's it's form fourteen forty nine it's a single sheet of paper and that's the purchase order that they place and quite frankly the form looks almost identical to fs s form three four seven for how you place the order so for the lower price reductions and also if you think of how the f s s operates in terms of services you might be listed on there for the g s a as someone who can provide information technology customized computer programming but to go to justice kagan's question about how do you know can you actually do this work that same process plays out under the f s s for the services yes someone is listed as a custom computer programmer but the agency still has to issue a statement of work saying this is what we actually need done here or our requirements it puts that out there with their requests for quotations that come in from the various f s s suppliers now they will be constrained by you know the prices that they listed before on the f s s but it still is that interactive process it's not just firing up the computer and click when's it work and i suppose there's some system for the government to check to see whether or not this person really has been offering this goods has a has a track record because that goes with a fair and reasonable price yes absolutely and they can compare you know abroad when you're doing their market research they have a lot of flexibility to compare the other thing i will say is that there is a broad grant of discretion to the v a in terms of what it requires in the database so if it finds that it needs more information to make this law work upfront from the vendors then it can require that he can take quality its its needs in this case it would allow it to consider the urgency of a particular procurement as well the sort of thing that will be an awful lot of litigation about what you think against a framework that has if you prevail on your statutory interpretation argument and it seems to me that that provision is inevitably going to lead to litigation how do you tell what's best it's a combination of price and quality it's not any absolute that you can identify and you know what's fair what's reasonable and i think the business is that you represent would be litigating those terms it's hard to see almost in every case i've given that the standards for making that out i don't think you would see rampant litigation in this area in terms of this squishiness of the time cuts in favor of the government in that sense there how do how do we know how to evaluate your answer or the government's position if the government comes and says oh this is just unworkable it's going to be difficult if we've never been involved in government contracting are there findings are there are there writings in law reviews or what what do we look to to determine the empirical basis for your argument or the lack of empirical basis for your argument i think it's looking to them what we think is going to happen one who is looking to the  that exist on the face of the statute in terms of look at the simplified acquisition procedures and how streamlined they can be look at the f s s procedures and how complicated and they can be as the dollar values ramp up doing set asides and then it was made explicit that they could do set aside within the f s s we also have been dealing with situations for many years where you have other preferences outside of the small business act framework in terms of federal prison industry is the ability one program for the blind and the severely disabled they've always taken precedence over the f s s it's not proved to be unworkable to give those mandates  me that it works for the small ones is not answering the questions of how much is it going to complicate the big ones well for the bit for the big ones the f s s itself is already complicated it's already ramping up  complexity as the contracts get bigger and quite frankly when we get to those bigger dollar figures the idea that if if a small business is going to qualify for a contract that's above  hundred fifty thousand dollars that we can't go through the procedures that congress mandated here the v a can even consult its own database and see whether there's an eligible supplier before going straight to the f all inclusive term here and these policy judgments are judgments that congress made in terms of the administrative feasibility of this when it decided to move away from the failed small business act of pro choice and go to the mandatory approach here and that's why i wondered i'm not certain how this works but i read the statute it says the department shall ward contracts on the basis of competition restricted  ok who wouldn't be awarded according to doctors i mean what was surprising to me is that the goal was to have three percent or two about kids but if i read this the way you read it every not not at all what i would and that's what i want you to drop the value for the value of the given the limited number of veteran and small businesses that are out there and how many of them when when congress was going through the legislative history here it was hearing that maybe fifteen percent of businesses so there were maybe fifteen percent of businesses but the question is what does the department of veterans affairs buy and my guess is they buy lots of stuff they buy household stuff they buy paper towels they buy buildings they buy all kinds of things and in respect to all the things they bought if you read this the contracts applies to everything i guess they'll buy it all from veterans now now it's a super ninety percent i don't know it's very surprising to me that congress would have wanted the veteran's administration to buy everything from veterans now that's or nearly everything you explain to me i must be missing something and you explain to me what i'm missing first the very fair and reasonable price and best of all you know requirement you know i understand that i said they have certain qualifications of course you think the bathrooms and things aren't they have reasonable prices they they have they're qualified they do do a fine job they say it's surprising that congress would have wanted nearly everything to be book from that's all and where am i wrong right or wrong in terms of the natural cap on the limits of businesses that are out there but where there is a better known small business they can perform there i'm merely saying they can't i want you to address what you calling this natural cap you're saying to me you're wrong it wasn't mean everything it means like ten percent is what you're saying or what are you saying explain what it is i read it i thought it's everything now you explain why it isn't everything or nearly everything i mean if you're not a veteran congress would normally say you don't get a leg up or to shut you out entirely i mean  everything that brings and supplied abuse by by doctors and if i say is that everything it's not ninety it's not one hundred percent probably not ninety nine percent but it might be eighty percent i mean i'm guessing you tell me you're the expert what percent is hundred percent provided the statutory fit requirement for santa so yes that is correct when there is a business and we know how many businesses there are because they registered under a special procedure right and so when there is  percent so it seems odd for a statute to say for purposes of meeting the three percent rule you should do the following which will lead to ninety percent well a few points  three percent goal was the government wide goal under the small business act this provision for service disabled veterans requires the v a to set a higher goal how high it doesn't it doesn't seem acquire the specific number it has to be higher than three percent and we're talking about that to be four percent it could be but we're talking about a period in time where there have been goal since one thousand nine hundred nine discretionary authority since two thousand three and as of two thousand and five the government's progress towards a three percent goal was point six six tenths of one percent oh it sounds like the governments did very badly in meeting the schools and you can understand why congress would have done something to say the government and specifically the v a has to do a lot better toward beat in the schools but the goals are still you know pretty far down compared to what justice briar was indicating is the natural tendency of the system that you're describing to produce you know almost everything is given to a veteran where there is a veteran that's eligible but even at the time of this was done me the goals had always been a three percent government why goal individual agencies were required to set their goals based on the maximum practical opportunity and so even at the time going into this the v a had already set a higher goal i believe it was seven percent the goals that it has set under the statute have been even higher than that and the answer is yes the government was expecting the v a there is this to be an important mandate for the v a because this was tied to the  obligation to help veterans on small businesses rather than he said you know you mentioned that the you've mentioned several times i think that there has to be a veterans veteran own business that's eligible as is but don't you think they'll be a lot more veteran owned businesses if you prevail in other words if everything is open to the preference is so long as there's you know to they get the preference don't you think a lot more veterans will make a lot more sense for them to go into business end there could be and then that you know this is an active at a time in two thousand and six where we are facing incredible unemployment rate among veterans and so if this is encouraging the formation of more better known small business i can see many good things people would in list in the armed forces they would have careers assured after it just still surprises me but my question is not really aimed at you it's aimed at the of the saw and you would have a chance to answer this question i can argument pretty much i don't know why their d n a the exception for the s s the f s s or whatever it's cool but i was rather stopped by the lower courts argument which they've given up which is that right in the statute not in a preference but right in the statute it says for purposes of meeting the goals under section eight that on the stand and then what you do is you have goals they should be tough goals and and if you've weighed head of the goals then maybe you don't have to do it that was their argument the government's given that up so so i don't know what to do i'm in i'm going to ask them for help  and the same with the government's given that up because the stated purpose of setting those goals was to increase contracting opportunities and the house report here was referring to tools to meet if not exceed its contract ingles the goals were never intended to be ceilings here and if in retrospect it seems like there might be some mismatch between the mandate and the goals you have to remember that at this time they were so far from mean even the more modest goals that congress was thinking of this in mandatory terms we have to do everything we can here to ramp up this obligation because the old approach is the discretionary bridges aren't working and the idea that in doing that they would without saying anything to that effect in the statute we've an enormous loophole that lets the agency take up to sixty percent of its procurements off the top and just send them straight to the sas doesn't jive especially when you remember that at the time that the agency was missing its goals those contracting goals counted not just open market contracts b orders were being counted when the government was doing point six against the three percent goal that was both on the open market and on the f s s congress was worried about that failure crossed the board and enacted a mandatory  about the federal circuit's position we think the federal circuit's rationale is right so far as it goes but that it's incomplete and so the federal circuit has a complete answer for why petitioners sort of maximalist position is wrong which is that if if this mandate applies and one hundred percent of procurements then the secretary's discretion to set goals is pretty much wiped out and it's hard to even talk about them as goals at all but the fact that there needs to be discretion somewhere in the scheme doesn't really answer where the discretion needs to exist and the distinction that we're drawing first i want to be clear about that is you know we're dry and we're not saying that when you place an order under a preexisting contract that that's not a kind of contract of course it is we say that our right and our brief we're saying is that when congress establishes a procedure that applies when an agency quote awards contracts that's naturally read to refer to awarding wholly new contracts not placing orders under old ones and your answer to justice  the federal circuit was actually right even though you disagree with its reasoning it isn't the real answer to that is the real answer to this question that the the a regulations don't say anything about goals  contract we do it every single time under the regulations but those regulations never even come up you never like a contract an officer doesn't begin a procurement by turning to part eight hundred one thousand point seventy of the far there's a five thousand page document right the can open up march their way through placing f s s order under part part d and when you place an order under a preexisting contract before is crystal clear that you do not consider set aside  history and you yourself the government itself holds these orders order contracts it is an an order is a kind of contract you know i under the start of a kind it is a contract yeah yeah it's a contract under it'll tell me what kind of contract you have absent the order with the f s s that under the f s s there's already a government contract between the united states and the vendor to supply an indefinite quantity businesses take that database look at it look at what it is you need a state where and see if how many vendors on that list supply state fairs and then check that petitioners position would block us from being able to place orders under preexisting contracts the whole point no of hundred of you didn't listen to me you go to your veteran on the list you're looking for  better known businesses on your list that sell staplers but you won't say you need an f s s supplier because you don't want to negotiate a new contract you don't want to do all that hard work you checked whether there are two they are not qualified vendor here about the merits of whether it wins or loses i'm talking about the legal issue what is so difficult about that a couple points about that that that would significantly narrow our practical concerns are practical concerns are mostly driven by the by our by the interpretation that we would not be able to place orders under preexisting contracts at all we do this eighty five thousand times a year i don't i don't you know this is very important to us saw it said that it was going to be unworkable and that it was unclear whether would offer some as you know so i guess i'm not sure i understand i mean i understand your policy concerns and the way you think that this will damage procurement practices but the statute just seems pretty clear once you say that this is a contract one which you've said in your brief and right now and once you say that it just the statute says a contract an officer of the department shall award contracts on the basis of competition restricted to understanding of contract you just said this no no on track but the problem is that there's many federal procurement statutes that apply when the when the federal government quote awards contracts that's what five prior small business contract in preference that you'd say that they apply when first time deciding what this language opinions and this language means that you shall award contracts on the basis of this restricted competition and you say this is a contract so you know  a couple points the very basic statutes that govern seal bit in the goshi tidbit in the most heavyweight procedures for awarding a new contract they both say that the government shall award a contract under those procedures and if you extend those to the  totally break the whole point of entering into these kinds of contracts upfront is that you don't have to do that again and again and when a local v a hospital needs to order like stents or wheelchairs or ultrasound machine but i don't understand your policy argument the that the practical sort of front end of how difficult if we're if we're talking about using the rule of two to choose among the qualified f s s vendors how difficult is it to do that the upfront cost is not that big the bigger concern practical cost the concern that we would have is the litigation risk that that would expose right now our choice of whether to do a set aside when choosing among f s s vendors that is committed to agency discretion by law because when congress addressed this point head on and six forty four are it said that agencies may at their discretion do this but if suddenly the rule of two applies in every case then in every case a disappointed bitter can come in and say oh no you misapplied the rule of two you should have thought that nice there has to be qualified we're dealing with small business veteran and small businesses and the examples you gave stents wheelchairs ultrasound machines are there many small businesses that provide ultrasound machines i guess i don't know about ultrasound machines but we buy the younger like the expensive you big things that you expect you have to be a big company to provide like an ultrasound machine where you mention stents now maybe if they're commodities then to provide fair price  it also would help to be a big business as opposed to a small business but he said i can't imagine the small business is going to make a stent that is going to be at the same price and same quality as some you know but we do i mean we do thirteen percent of our f s s dollars go to small businesses and a lot are for things like professional staffing right so we hire temporary nurses in psychiatry cardiologists things like that through third thirteen percent of your acquisitions of our f s s dot when we're spending on the f s s thirteen why should it discount your parade businesses but it's only one of our priorities right our number one agency priority is caring for veterans and so our concern is that if you if you apply this with this wooden mandate across the board in every case that it would seriously impair our ability to deliver the quality care that worker is this is this the case do i understand this and my there are three parts to this question one in my mind is it the case that they lose because the agency does not have to apply veterans only where they wait exceeded their go the answer to that in the opinion would say we do not reach that question for there are no regulations that suggest that the agency has tried to take that approach and my right so far that is trying to take the approach of saying that we drop it if we're way over correct yeah right and then we reach question to left in one open question two is do they have to choose the rule of two in the f s s and there are two parts to that the first part is suppose to veterans qualified are already on the f s s list and there we might say yes you do in respect to them or we might say no you don't but if we say yes you do at least we don't in your opinion wreck the system then we get to step three  no veteran on the f s s now what do we do and there your argument is that look everyone on the f s s is a person who has entered into a contract which contract says that when called upon for further supply they will give it my right yes so therefore it is that contract not the contract within the contract that they're talking about and were we to say the contrary we would have to take an architect who has forty thousand pages of things he's going to do and we change the sentence on page three hundred eighty nine to read three hundred rather than four hundred and we say that's a new contract or something like that i'm trying to make an argument for you it's not a contract within a contract it is contractor we just refer and my way off base or is look these people on the f s s list have already entered into a contract this is just implementing the contract that they've already entered into if you're not saying that then how in heaven's name do you get out of his ark that we're saying that when we place an order under a preexisting contract that that is not awarding a new award in a contract within the meaning of these procurement statutes there's been i really do want to emphasize the historical context that's built up over decades about the understanding of this and one of the things that's very troubling about their position is that if you say well we want to read a lot into this special provision eighty one twenty seventy it was intended to help veterans but there's nothing special about the language it's almost identical to the language of the hub own preference that was in place from one thousand nine hundred seven to two thousand that had that had started one thousand nine hundred seven to two thousand and ten that had exactly the same shall award a contract opportunity i mean very powerful and that overarching problem in the document he's a very well very compact the federal circuit had a really simple take on it and all these regulations and provisions that you mentioning didn't figure at all in the federal circuits opinions are you putting us in the position of being a part of first  court usually doesn't do that it likes to know what other judges have thought of that you know and i totally understand that concern and you know obviously our first line position is that we're right for the reason that we say in our brief this to send this back to the lower courts to consider these arguments in the first instance we are considering that consider the argument or consider mootness consider both secretary when the sectors that's the goal it did the goals are committed to his discretion except for that the goal the minimum goal needs to be at least three percent the goals since the statue has gone into effect have been in the range of ten percent and twelve percent and i want to emphasize  consider and decided whether to go five ten fifteen the risk of litigation the higher the goal is or i know i think it i guess i i would have to speculate on that but i think it's more of the sort of practical reality of what seems like a goal something that we could push for that's attainable but not unrealistic and i want to have this question was that broader than it seems to me that maybe the federal circuit was wrong with these goals are simply aspirational but that doesn't have any real effect on the operation of the statute and they have a huge impact on the way that we actually procure or write this is had it i mean the statute before the statute was enacted we were falling short of even the three percent goal now the goals are in the range of ten to twelve ten to twelve percent and in most years we're crushing these goals right we're beating them even on the f s s where we are we're not applying the rule of two but we're doing two other very important things for veterans we put a thumb on the scale when we're considering offers th were submitted within the f s s by veterans and we also do set asides under six forty four are the statute where congress spoke very directly to this and said that we may at our discretion set aside orders placed against multiple award schedule contracts we do those set asides and the results have been very dramatic but i'm sorry when you say you're crushing the goals that means you're meeting them we're that we're we're far exceeding them and in many years we're we're we're nearly doubling them and i think this is something that we have this is had a huge impact on on our operations i think we should think it's had a big impact on the veterans community but the our concern is that if you take this or mechanical rule of two and apply it especially in the sort of the blocking interpretation that petitioners been been pressing that we would not be able to place an order at all would you could you explain why the fs use of the f s s was important with respect to this particular contract you provided examples of the v a s ordering standard commodities like a stand your pencils or something like that but this was my understanding i mean this is not right this was a custom service that you were seeking and you know what you did was to solicit a quote from a single contractor so how does that fit in with the arguments you're making about the need to use the f s s sort of two things about this is that the this is a somewhat unusual bid because if there is not explanation in the record because because this case was  just litigated on the agreed facts about the procedure the much more common to be a orders a lot of services on the f s s it's like one of the major ways that people that agencies purchase services and the standard way of doing it's you know it's not like amazon dot com but you can go onto a web site drill down see all the vendors who pool who were already pre qualified to provide that kind of service and the standard way that you would do this is that you would request request quotes from at least three of them and then consider them when they come in and when you request request a quote from them even if you request it from three or four of them every vendor on the schedule who's pre approved will see that it's open and can submit an offer and then and then the agency would consider all the offers that were given to it and it picks the one that offers the best value so that's how it would work if we were doing something like hiring a temporary psychiatrist that it knew that a new expanding a medical center  used to do things that would previously have been done on the open market i think so first i want to emphasize that the v a s primary use of this again is this is not right not talking about staples and paperclips we're talking about you know the medical related stuff that you know wheelchair stents or all that temporary staffing services but yes a lot of the f s s even for more complex procurement the f s s is still substantially easier and the f s s you tend to already be sort of aggregating the government's buying power and so the price in is the idea of the the f s s is that it's both easier to do and that the price will ordinarily be lower and so i mean that the agency wouldn't going into the f s s if the agency didn't think that that was the best approach and in fact whenever the procurement is over half a million dollars i believe the four requires the contracting officer to make an affirmative express termination on exactly that point that going through the f s s is going to provide the best value for us overall and i interest to respond to petitioners effort to put a lot of weight on to the best value language in the in the rule of two i'm a little confused by that because exactly because when whenever the agency is placing an order under the f s s under the far that that contracting officer is making a determination that that order is the best value so i guess i just i feel like that that may just collapse on its own weight on a quite understand where that argument goes to can i ask what effect would this statute really have on your view as i understand it the government does have to use the rule of two on all open market purchases is that right under the statute or regulations implement and above like a very low threshold is that thirty five hundred something might be a record so so if you are right what did th statute actually accomplish and other words you already have to use the rule of two for open market purchases or almost all of what is this that you do you know it is so easy when twenty seven d has it has a huge effect because on under the just the sort of the regular far you just have to do a set aside for small businesses right that's the sort of norm under there under the rule of two but under eighty one twenty seven d this required to restrict competition only to veteran own small businesses who are in our database so this is a far more only an art were verified is better known in our database so this is a far more powerful preference than the than the ordinary preference in in the far even when you take that and it with section eighty one twenty eight which they mention in the brief which it gets at again just sort of putting a bit of a thumb on the scale restricting competition is a very powerful thing and has a huge effect  so again i think i just want to emphasize at closing that our army major concern is with petitioners for blocking interpretation that would prevent us from her from placing orders at all even when we have them in place and even when we could place consequences are much narrower i have but i have a lot of trouble seeing how you limit that to this statute when the language of the statute is materially identical to what i would limit everything else once we say what we think congress then decides what it's going to do in the future right now there are them we know that it but that was decisively rejected by the far council the government wide body they considered this they said it was unworkable and it was unclear that it was going to have a significant upside congress responded to the park council six forty four r and establishing a procedure to do that but making it discretionary in all cases and if you extend the rule of two mandate there first of all would expose us to a lot of litigation but again i don't see how you restrict  sixty percent it was a sixty percent figure sixty percent of the transaction volume you know a lot of the f s s orders tend to be relatively small dollar orders so there's a lot more of them but they don't add up is it any dollars what are the kinds of things that aren't  under the f s s like what's the remaining eighty well i mean a big part of that are orders that we do under other contracts so so right we spend four billion dollars a year ordering pharmaceuticals under a preexisting contract and i mean if we couldn't do that that would be really really devastating to our just basic operations how much you know how many veteran owned businesses would be able to offer the best value on pharmaceuticals to the v a and you know what i want to i think actually if the question is just you know to if if a small business needed to deliver some penicillin tool a local hospital for an individual order by a local hospital i don't know maybe a better known small business could do that but we've done is to is as actually as congress directed us and section eighty one twenty five they required us to buy these things on national contracts or on the f s s and so that's what we've done and so we strategically source all of our pharmaceutical purchases or almost all of them through this one contract where we can get them in a matter of minutes we can place the order and we can get it delivered the next day if there's no further question thank you thank you this case should begin and for this court with the concession that in the ordinary sense of the term an order under the office as is a contract congress chose sweeping language  its mandate and that language and compass is f s s for us and to the extent there are you know changes that we need to be made or other policy considerations those can be made by congress in the future but the policy consideration it made is statutory language it shows now the idea that we're going to come back and limit this based on a specialized meaning of the word contract we should remember that that argument is not one that appeared in this case until the government's merits brief in this court if it's a settled background interpretation that congress was incorporating that limitation in the act you think it would have occurred to them in the last decade the car outs for the small business acting step shams were never justified based on providing a narrower meaning of the word contract and on their face words rashly limited to the small business act of provision that applied part for one thousand of the far implementing the small businesses well to the extent there's an exception for the small business act with congress came in here is it rejected the small business act broach rather than continuing to tinker with in the framework of small business act where this exception applied it said we're taking this mandate out of the small business act we're going to narrow it it's not going to be a government wide mandate will reply specifically to the v a in light of its unique obligations and set the v a op as the driver of procurement in this area have it set the example for the rest of the government congress was make it was balancing these policy considerations it was going to be blundering into something that was administratively on workable and if you the dire consequences that we're hearing today really stood any chance of coming to pass and don't think that you would have the american legion the iraq and afghanistan veterans forty one members of congress who dared care deeply about veterans issues supporting kingdom where's position in this case the reality is if the government's only doing twenty percent of its procurements from aphasic us you're already talking about a broad mand and then with respect to those existing ones you have to have a business that is eligible it has to appear in the database and it has to be able to offer a fair and reasonable price and best value and is the chief justice discussed for some of these big order commodity contracts that it's going to be a difficult fight for the for the drugs that are being offered here this is stash work provision that says that the government acquires its drugs at seventy six percent of the average price that wholesalers pay to the manufacturers so take the average price that anyone else in the world can get from the manufacturer and do a big discount on top of that those are tough terms to be and so i think that there's going to be you know the the reality here is not the dark consequences they are seen and the policy judgment is for congress and believe me if anything in this mandate enforced as written is going to hurt veterans in any way then you can expect congress will actually flee to correct that problem but none of this supports the sweeping carve out that the government is saying that it doesn't even have to look its own database it doesn't have to consider a single better known small business no matter how competitive it would be because he can go straight to the federal see what response we have to judge justice ginsburg question that really you're making  first impression here should we send this back and i don't think we should because the meaning of contract this is a straight up question of law and the reality is that the veterans were waiting for this law to be in force and written have already waited decades and for it to send it back and have additional delay on a pure question of law based on a new argument that the government's making for the first time here sets a very bad precedent thank you counsel to the cases s