no i don't think there's anything particularly sensitive anymore i would just ask my colleague to be somewhat judicious in his discussion of confidential material well i don't know doesn't give me a feeling of confidence but i understand that the parties  where the solicitation and big protest rules collectively failed such that the agency the veterans administration improperly eliminated a very seasoned contractor based upon the addition of an unstated evaluation criteria and second by comparing the d s e i that's our client the sci's rates against a independent government cost estimate that was irrational and not consistent with what it stated it was going to do in the record the error was compounded by the court below when it allowed the agency to after the fact create a record through improper testimony of counsel and the addition of documents that had been withheld by the agency for some six months up until the very eve of trial post briefing the principle that is at issue here is that while there's a great deal of discretion with regard to the development of evaluation criteria and with regard to the development of t see the fact is that a court needs to hold an agency to do what it says it's going to do on the principles involved are far fifteen three o five which says evaluate you think the numbers that the government came up that because of what they said in the assumptions which was they were going to go parse all of the five thousand schedule seventy contractors there might be an issue but the fact was that there was no information to explain in the record how they came up with the numbers and so we asked for that from day one for six months through the jail proceedings and again in the court federal claims were savings and were given nothing at the  maybe i'm misunderstanding or maybe we're talking about apples and oranges certainly but my understanding is they came up with this cost appropriate cost for a way that i thought was appropriate and they serve a large number of contractors and then did a series of calculations with god which got them to a forty percent number or labor costs and then they compere your numbers to that forty percent number what's and you're claiming that that was irrational that process that process is how it happened but in fact what they they're starting point with how they started to get the numbers either was a rational or not explained in the records or if one believes what counsel said which we believe shouldn't have been considered then it was inconsistent with the record and if it's inconsistent with the record a contractor at least has the right to know what standard is going to be held to that's the concern the the math we don't know how they did the math the post facto statements of counsel if you read what the what the record says the contemporaneous record and then what the c e o said there are only nine lines of what they said they were going to do they said they were going to examine all of the g s a schedules and they were going to pick at random ten contractors which they apparently didn't do and then they go through a mathematical exercise and i would assume that that's what they did the mathematical part and the numbers they end up with a presumably were done correctly although we don't know the problem is the beginning of the process but we've heard people saying we don't we probably correct but we don't know well the standard of review is very limited he guesses and you've got some burden here given where we are absolute so you say ok they came up with certain numbers and we don't know whether they're right or wrong we've got to do better is and we don't know whether they were right or wrong to prevail in this context you know your honor we believe that they were rational based on their starting  we weren't given the record to do an analysis we asked for all the starting from what the starting ground is page one forty six of the appendix which is the assumptions and the assumptions say they're going to do three things which they didn't do one of our contentions is that an agency supposed to follow the rules it says it's going to set out and do it to me one one forty seven and one forty eight very simple assumptions what they say they're going to do they didn't do it they instead was some kind of thing that's interesting took an average of ten contractors seven large business three small business and that we're doing this is with due respect your honor they did not what they did instead of picking a average of ten because they said so because a thing manually did manually manually is not inconsistent with random but you have to do a computer with a random number generator in order for it to qualify in your mind until the the time that is a violation the court below did hold that it wasn't a random process they selected and i guess because of just basic numbers without mentioning the names they ended up with six of the fourteen largest contractors in america out of a list of four hundred seven people because that's the univers unlikely the concern is from a contractor's perspective if if the process was done incorrectly it could skew the process and while our numbers were low all we had to do was get into the bottom of that range that very low range and we would have been the next person we were the next person on the totem pole to get an award so the the air range wouldn't necessarily be that bin if you start with an incorrect premise if they had started within a random selection of five thousand contractors which is what they said they were going to do their results could have been dramatically different regardless of whether the math was done we're going to see a random selection of five thousand contractors because rates are developed using ten randomly selected contractors seven what that originally said was what is that in the record what was in the records my copy that i saw originally had that information and i don't know one one forty eight does it continue one forty seven is  continuation of page one forty seven where because look at the top it says scheduled seventy government sites raise right seventy where there are five thousand contractors that's where you start you take a random selection which includes large and small businesses and then you make a selection from there ned to me you know when you says you have to choose seven that are large some i believe are yes so you're saying that some of the people that they look to are not even on the g s a schedule and i believe i believe that they with you go through their five step analysis they started with people who came to a show trade show who expressed an interest who had the capabilities of doing schedule seventy work had done work like that and were interested in doing the work those are the five criteria so our concern that that wasn't how it started they started with an incorrect base and that if that had the ability to skew it the results if the numbers you start with are incorrect then the end product can be incorrect whether the math is incorrect or not and our concern is that the agency changed the process by which it said it was going to proceed if you used the same criteria for all time so that well but it took us around so the point is that having started incorrectly and having gone through the process and having been allowed to explain that process incorrectly or outside of what was the contemporaneous record that should not been allowed and of the court should have the agency go back and do the i g c e correctly in the manner that they said they were going to do and for  fifteen sixty eight of the record with g a o question five answer yes says that every one every one of the companies that was randomly selected was a schedule seventy contract hold and if they weren't to set schedule some of the contract holders they were rejected and in favor of another random selection to ensure that they were complying with their eye g c e assumptions so i don't see any evidence in the record you produced suggested any of the contractors were not schedule seventy g s a conrado that was a representation of agency counsel that wasn't the contracting officer who do that that wasn't anybody who did that was agency counsel making representations in our condition is that counsel to the i c c e assumptions say ten government contractors from the g s a schedule seventy in the government in answer to these questions says that's exactly what we did we t ten from the schedule seventy in fact we took some and if it turns out they were on the schedule seven rejected and picked another one you have no evidence to the contrary but why am i supposed to believe you're standing here saying well we're not sure but some of them might not be on the schedule seventy not a basis to reverse it is it is based a reverse that the way they got there was not going to schedule seventy in picking people it was going to he doesn't even have to go to schedule seventy and pick people interested ten people have to come from well schedule was where we came the point that i would if i may briefly addresses on in my rebuttal time the unstated evaluation criteria i think we have set out clearly in our record that section and if you look at the pre solicitation briefing it was a unique circumstance that said that the agency knew how to specific lee state that allocation of rates would be considered and then in the actual solicitation it believed that and a reasonable and logical contractor would have concluded that while looking at low rates would be something that would be considered the allocation of rates between different factor between different labor categories would not and explain for every labor labor hour under every labor category in this was sufficient provided a spreadsheet in that spreadsheet for every labor category it was a prescribed amount about and hunt for those calories that the protesters i'm starting to claim to are the contractors have to explain exactly how they would assign proportional allocate work between each of the primes and stuff and this case the primes had a significant number of subcontractors and what they would do is once all those numbers labor hours at work multiplied by the rate  that is how they evaluated cost of the overall price was a combination of hours and leave and labor hours multiplied by labor rates but as the contract nasr explained and this is a fourteen twenty nine and fourteen thirty per a simple analysis of the propose but if they would that hundred dollars an hour if they knew hey we can get a break and maybe drive down overall price by x amount of dollars we have to bet and so keep the contract now to understand all of that which you can talk to real is an analysis and if she didn't do that she would have importantly that they knew what they were doing they understood the work and the points of work state so for clinton to argue that it was on stated is simply wrong based upon the length of the solicitation but your honor alternatively even if we assume for a moment that fender say ok alternatively they see doesn't use the term allocation unfortunate which is fine becomes argument in this case because of that it's not that evaluation criteria first of all point is not shown any law or statute or regulation supporting the proposition that an a labor categories and that and so that random selection of these term random what they were really doing was trying to pull off their best estimate of contractors who knew the work want to do the work what a history of pricing it and where they could simply look at the prices come up with rates and they for a total of sixty six point five percent of the hours and hours there were approximately twenty thousand four hundred rapes and thousands upon thousands if not millions of dollars but sixty six point five percent of their hours or below to sixty percent mark hours out of the equation to very very few cells were unrealistic and in fact none of them realistic they were unrealistic if you look simply at their proposal and in certain instances in multiple instances they proposed a rate of one hundred thirty five dollars for themselves the problem and then they have any number of their subcontractors with a rate of thirty five dollars i think the number was just to be certain your honor the numbers were thirty one fifty seven but one of their subcontractors when they had the prime submitted a one hundred thirty five dollars per hour great on its face any reasonable person would look at that and say that's  to be an evaluation of allocation of hours the immediate proceeding document before the solicitation was issued explicitly stated in section and in one of the two technical areas sample test scores and management approach that the government's going to consider allocation about that little learn this contract or that it could in that in that draft that the government knew how to state when they were going to look at allegation of ours if they were going to when you get to the actual solicitation that language disappearance and so what you have is a contractor who reasonably would conclude that the government knew how to put it in and they took it out and it wasn't there when they started the proposal to appreciate the government what you can do is then say we're going to parse it on your allocation because allocation in this case the car contractor went and proposed something as a low cost approach something it's done before if you tell someone that allocation of hours is going to be a factor then you you make your strategy for how you visit projects will be different and the way to point this out that other contractors who are similarly situated had the same reaction as us in the infants we received in if in that said you have lots of low rates come up with a plan to show how you're going to deal with it our plan is to go back and ask our subcontractors are you to do with it are your prices good and they said they're good and we stayed with it the other people did one different thing they all raise their price nobody changed their allocation of ours and only one of them even made mention that they might change their allocation of hours so the understanding of the other contract