and our next case this morning will be office automation versus the united states army  good morning on new year's eve please the court i'm dan abrahams i'm counsel for office automation your own poor reading and i believe the board small decision should be reversed in the first place i think you should just look and the question is whether that reference to wages or wage rates gave them the weight rates that they needed to comply with the service contract and your before the b c a that the government basically this was acceptable and that you did not contradict that you know if i understand the procedures of the board not much that's what they told the board and then the board concluded therefore it was accessible to the contractor for the do did you contradict what the government said yes we were in o would appear they didn't you're asking her to respond to something that wasn't in the motion and to give some magic language we don't require our pro se on of parties to source stand on one leg and fact that this is a government web site that access to government computers only and she couldn't possibly hear evidence is experimentation by council in two thousand or if the but the evidence is an official record of the us government indeed the very agency that administers this website is a party here saying that you cannot accept says the website and when was that that was in two thousand and  even things change don't they do and you don't know whether they change who you are i do know but it's not in the rapid i'll agree to that even if you would do it if it wasn't instantly you have to have wage rates and you get them by clicking on this if you clicked and it didn't often isn't it now your duty to say the way the rates are not disclose what are they like the the what the solicitation didn't tell her to click on a website or to put it in a browser there's no instructions in that cause you look at that  contract interpretation issue and you don't see any reference to the service contract act to a wage determination to a corporation by reference nor do you see any instructions to click on a web link or do i to put it in the you and so you have to know what the wage rate is don't do well here's here's what the contracts say the contract specifically said we've requested a wage rate from the department of labor it's a collectively bargain a special wage determination because there's a special who wanted service contract at the beginning c b a as a person regular area wage determination and the contract says we've asked for that and at that time you waited for the department of labor to issue a wage determination and a contract that says if no wage determination is attached pay at least the f l s a minimum wage and then the bar regulations specifically provide that if a wage determination comes out perhaps that's what the board actually said i think in its decision and i disagree with that but cannot ordinarily what government should physically put the wage determination in the comic that wa using the proper far clauses and referencing the wage determination in a manner that would alert me to what it is i think i could loose and if the court could find that that was a valid incorporation by weapons it's not the best that you can't simply not attach a wager germination a not and not a word the contract or that there's some place they're supposed to go to get it and then force them to comply with that wage determination that's the case you have here is an absolute wage determination not in the solicitation of contract which had been conjured up from a government website and and the contractor is being bourse to comply with that i determination when does a large and that's what the government says later you have to interpret the contract on its face it did incorporate the wage determination so that's one way i win is you interpret the contract and look at the clause the second to federal employees in the solicitation that's a mandate of congress and they didn't do that apparently here but that's what backboards looks like to me it's a reference to federal employee wage rates which are union used by the department of board originally it was a unilateral mistake claim that was being made and that's what it litigated through summary judgment only after summary judgment was injured in the government's favor did the appellate get new counsel who came in and tried to change that that seems to me to be a different question because it's something that was addressed by the b c s the first time and it was the first they relied on your statement and there is the failure of the contractor to contradict it and made a finding that the thing was available so that certainly had to be well within its discretion not to reopen the records to admit if some web page searches from two thousand and eleven as to constitute evidence of what would have been available two thousand and four certainly those web search  could have been done before the senate so it was in the government's favor and it certainly there's no abuse of discretion for two to have denied and that's really the issue that's before the court here whether the board had to admit this and then basically reconsider its factual find think you hit on the the summary judgment has to be supported by substantial evidence even if she didn't oppose properly what what the government stead you still have to went and you have evidence that was offered a year on an reconsideration standard is where there was a genuine issue of material fact on framing the summary judgment and what your were hearing this is there is no genuine issue of material fact or i disagree you on a respect for i think there was an issue she said it's not attached it's not found she just didn't give the same magic would stick you apparently wish to hear  but i'm trying to address the bottom now the other part of the summary judgment has to be supported by substantial evidence and you have to look at the evidence in the rapid and the evidence in the record is based on  misrepresentation from the government the government's never come forward and said that we have recent patient is truly correct and the no one has ever asked the government if that's the case and in fact the contract the agencies own