fearing competition and you're seeing it less we're saying that the it's the exclusive way that c m s must engage in to manage the marketplace for max services in the manner they're attempting to do this far six point two zero two and circumstances where somebody competing is not going to make it because you mean certainly says at the end of the day you know you will be awarded the competition so that person there's still full and fair competition even though at the end of the day a limited number of people are going to be excluded from getting the award so presumably they may not even bother to apply you would suggest that those criteria that might preclude someone from successfully trying to get a contract meet a technical need that the government has or something that goes the capability or performance across statutes regulations cases well enough open competition  government provides but if that were the case far six point two two would be read out of existence because far six point zero two says that if you want to exclude an offer or from an award in order to manage the broader marketplace you must issue a d must issue or determinations and findings like should we ignore forty one i see one and seven i don't think your honor that it would be ignoring one of one of seventy what you would what you have to do is interpret one of seven in light of forty one u s c thirty three  concerned about the types of things the government is concerned about that is to say the continuity of services or the competitive nature of the market in a manner that would exclude a otherwise capable offer of from winning then the means of doing so is to issue a determinations and findings if that is not the case then this court will write far six point two zero two out of existence because you could always formulate a solicitation provision to accomplish the same and that is something the government does far six point two zero two is meant to address the whole point is excluding a particular offer or a particular source to quote increase or maintain competition or in six to zero to a four ensure quote the continuous availability availability over a lot of all supplies or services so that is exactly the case that far six point two zero two is meant to address now what the government says is that because there's this other far provision that says as long as it's not excluded as long as it's not made unlawful we can we can do this other meets but of course that would have the effect of of reading any mandatory procedure out of existence unless the same mandatory procedure also contains a simultaneous list of and you may not accomplish this in any other way that is not something that this court is ever had held applies to a mandatory far procedures anywhere else so it's explicitly noted that they had considered these workflow caps as kind of a blanket rule and decided to go with a case by case approach because they thought that the blanket rule would limit competition as it entered new farfel an open contracting environment so so they would you have the same argument today is instead of the hard line capitals instead this was just one of many is addressed how well one award would impact to the general continuity of services or the competitive environment one that they have to why can't they just then sort of the small number of contracts you may have had around the contracts to ensure that one contractor doesn't have a computer crash which brings down just enormous number of government programs nothing at all you are but in that kind of a case the exclusive remedy for the government isn't far six point two zero two that is a mandatory procedure but if they want to exclude an offer or in order to maintain exclude an offer why can't they could they have just taken this factor into account as they used to do i believe in deciding whether or not to award the contract to an individual person does in fact right but in what they used to do in the case by case approach was assess the degree to which an award to a particular contractor given all of the material in the offerers in the proposal record could create that kind of risk and that kind of risk is something that they can assess on a case by case basis and if that were the case if there were no bright line rule if all they were saying is they tried to adopt a blanket right that's exactly right your honor what they said in the record multiple times and in the government's brief is that they went to the blanket rule the bright line rule if you will because they said that they did not they did not have the ability to make the record for the case by case exclusion or for the d n a s and which just astounding confession in our view that because they didn't have the data or the underlying rationale to be able to make a case by case assessment that the remedy for the government was to go more broad and limit competition even more so if they couldn't survive a challenge under six point two zero two that's what the government is of effectively saying here then this court should not permit them to take an enron around six point two zero two by allowing them to include this in they were seeking to obtain a competitive marketplace and still mitigate the risk to the to the national ab work yes your honor why doesn't that by itself satisfy our deferential very differential rational basis because the question isn't whether or not the caps are rational the question is whether or not the agency was obligated to follow star six point two zero two which is the implementing regulation for forty one c thirty three zero three and that that statute and that regulation have specific steps that the agency must take in order to effectively exclude an offer or an otherwise best value offer i mean the record is clear that they take the within the umbrella of whether or not congress is full and open competition the government also argues that there are two provisions statutory provisions in the mac which allow it to act contrary to full and open competition don't bother with the capability provisions because they're going to get nowhere with me on that but what about the other requirements of vision which i'll call the eligibility provision the eligibility bill the provision is expressed in forty two u s c one thirteen ninety five k k to one eight to yes according to the government which is something that the government argued below that the trial court in the trial court agreed was that the reason why it's full and open is because we can still compete and potentially still win if that is the case your honor that means that we are capable by definition there is no other way if you're not allowed to perform a government contract because there's a response of a finding of responsibility and or a finding of capability it cannot be the case that if there's no one else that's responsible we are suddenly capable but if there is anyone else that's responsible because o why isn't the government's argument a strong one that the eligibility criteria and in particular this other requirement section that the analogy guys if i remember right this  eligibility criteria to the conflict of interest eligibility criteria which they also have the authority to wage so you would you know you would think a conflict of interest would make you not eligible and that's the general rule but the provision expressly allows for government in necessary circumstances to waive that conflict of interest and all this is expressed under the eligibility prong right i mean this isn't this isn't the government just making up an analogy these are actually express factors that have been adopted and discussed and so why isn't this exactly like the conflict of interest which can be waived it's still an old you believe criteria and you might not be eligible to get the award because you're a conflict of interest or because you have to me there are contracts currently but the government has the ability to waive either of those i mean that analogy feels really close to me your honor because in forty one u s c thirty nine hundred five k k one eight six is where the congress said that the government must follow the far unless there is a specific requirement to the contrary the o c i regulations of far part nine exist in the far and there's no reason why the existence of the whole structure of foreign relations which allow the government to waive an o c i if it's in the best interest of the government for example does not compare to a case where the government is going to say well you're capable you're eligible if there's nobody else but you're not eligible if there is someone else when if you want to exclude us you have far six point two zero two i mean you have to interpret the statute that your honor was talking about the eligibility of and that is provision consistent with bar six point two  the government would have to support do is view the broad statement and wanted to d d as an implied repeal somehow a farce six point two zero two and forty one u s c thirty three zero three there is no reason for   let me just back it up so are you saying the conflict of interest analogy breaks down because the far stressfully articulate what happens in conflict of interest situations and the far doesn't express particularly what happens in workload cap type situations similarly and therefore the overall arching you've got to follow the far unless something specially tells you something different governs here even though it doesn't cover in conflict of interest i think i actually why why can't the interview things express statement with regard to conflict of interest but there isn't one for guard to rectify the far contains all of the o c r provisions including the waiver for vision so there's no reason why that can't be consistent with the notion with our argument that you cannot have workload caps because the exclusive way of affection waiting the management of the marketplace for max services in the way the government is trying to do is far six point two manage the marketplace for services in terms of restricting the amount of awards that someone who is otherwise eligible incapable can win which we most certainly are we have one thousand point eight percent as we stand here today so then there's the idea that somehow because we're through this provision and that's all they have to do in for zoomable if they have the goods in terms of being able to explain it then indeed that determination in finding would only be subject to a rational basis review but the government has said we we we can't come up with that and so what we've done is a court and its appeal n g s effectively ask this court to ignore the plain language of the statutory definition of phone open competition and second guess the agency's business judgment in determining how to best fulfill its vital need for continuous uninterrupted medicare claims administration services competition no no your honor because the statutory definition of for an open competition is that it means all responsible sources are permitted to submit some sealed beds or competitive criticism of the hindering of competition post submission hindering the competition well that we have to go with the statutory definition here and no it's not it's not a hindering of competition because if you if the government opted a rule like t reason why there is a go it goes beyond that though the agency had a particular reason for not just saying that if you have if you have twenty six percent at the beginning of the competition you can't you can submit a proposal these things can change over over time how much a particular entity has a chairman it's you know in the ordinary course they can last for you know many months or up to a year i thought a lot of them in this area working well for that i'm talking about the the actual competition in fact some some fewer i don't know so that's your argument for why this satisfies the competition our position is that they're committed to that satisfies for an open competition because they're permitted to submit proposals and they're permitted to compete pursuant to the same evaluation criteria  everyone else and they may in fact win the award whether it's because their position changes during the course of the greek airman or because there is only want to ward a book proposal whether it's his responsibility fair and fair and reasonable price whatever it is agency may provide for the particular moment of property or services covered by section thirty three zero one using competitive procedures but excluding a particular source so there excluding the source from the procurement under thirty three zero three so that's the agency has not excluded so it's a source it's a tool that the agency can use to permit other than phone open competition like losing the only submitting bidders exceed the  cap well in that case they with the exception would would certainly have to be aired out if there's no other responsible better of the rights and they would have competed pursuant to the same evaluation criteria as everyone else including the award limitation provision and they would competition and that the court doesn't need to reach the question answer i'm just trying to understand the point you were making about a one hundred three of one excluding a particular source or you're saying this only applies when the government decides it's not even go somebody submit like if you if you're a twenty six percent don't bother getting is that what you're saying this is limited to right if the if the agency had said and she asked because you're at one thousand point eight percent now you're excluded from the jurisdiction h for care meant they would need to justify that under thirty three thirty three o three a one day stay with you don't you think this is suggests a little bit of a gamesmanship that they don't the way to avoid going through these criteria is to bit prepare a bit go through the competition even know they they know at the end of the day is long as there is one of the responsible there that twenty six percent get guillotine is going to come down solicitations and it's something the agency has to apply and deciding who it's going to who's going to award the bid to it is it is certainly one of evaluation and factors for award and that's that's a position that we've taken throughout we  other valuation criteria that seems to be cool and have nothing to do with the parameters of this individual's with taishan it does it does have to do with the parameters of this individual solicitation rather because the agency has a has a vital need for tenuous uninterrupted medicare claims administration services in jurisdiction age and that's that's threatened if if a company becomes essentially too big to fail where the agency doesn't where the agency w going to circle stuff that their argument would be well yeah that's exactly why we have thirty three of three agencies have a mechanism under which to preclude that nobody's arguing that those safeguards are necessary the only question is how you get there so you're saying here that in every solicitation under the evaluation criteria you're including twenty six percent you're including one most of most of the most of the patients that have been issued since two thousand and ten have included included that provision under the evaluation i believe so yes i don't i haven't looked at every single one of them but yes i believe they're all in section m but of course and  section yes yes that would it would it would be essentially the same the same provision one of the arguments that your opposing counsel makes is that basically the government just threw up its hands and said we don't know how to do and what what they determined during during this time was essentially that it didn't it didn't allow the agency to put to put in the solicitation the clear criteria that was going to determine whether or not somebody would be eliminated from eliminated from the award so they they decided we think we want to do these award limitation provisions that we considered initially when the medicare modernization act was passed they took that question to industry and their response was very favorable some some quibble about what the percentage should be particularly whether affiliates should be included in that sort of thing but the but the agency took took this the industry and industry basically said yes this is this is a good idea you know it allows the industry to know right upfront what their what their position is going to be in the  you've got one offer room that's got twenty six percent and another that's got twenty five percent this would be the valuation criteria one gets in a month doesn't is that how it works so you so the  agency the agency puts criteria into it solicitation to exactly say who's going to get the what what the offers will be evaluated and get so yes for this particular provision if the if the offer exceeds twenty six percent as a single contractor then the then they will not be eligible for the award unless the exception comes into play if they exceed it at the time of the award there's other about the other and this is essentially a pass fail criteria  question the wisdom of the question is that in the day prior to this when it was one many factors one of the things the government could have looked at is this country has got contractors got twenty six percent of all but our next best guy has twenty five percent only one percent of this with much better package that they're offering the government overall so we should render them in eligible as a result of that in the day when it was one of many factors that was a very it would have been a very rational approach which i think in this question punt wait a minute you're telling us that as an automatic capital going to say no to twenty six percent person despite the fact you might have a much more valuable and better proposal prepared for you in the interest of the taxpayers quite considerably better because they've got twenty six percent even though all the other bidders are twenty five and that that i think part of what is bothering me about this being a black letter of sorts rather isn't just one of open competition clause you only have a requirement provision right so if it's inconsistent with full full and open competition but the questions that i think are being asked here is what's the best way for the agency to go about getting getting these ma services shouldn't it be able to compare and i think your question was should they be able to compare whether they have twenty seven or twenty eight percent versus whether they they submitted one hundred million dollars lower proposal or something like that and that  be a rational way to go about doing that but the agency has the discretion to and to instead say in the in the interest of transparency and in the interest of just saying twenty six percent is too much we've determined and that was one of the in determining the twenty six percent number so what the what the agency what the agency is basically saying is twenty six percent is too much if we look at the alamar report it was affectively recommending a cap of twenty twenty point eight percent at that time and one of the things the agency wanted to do in two thousand and ten was say well we want offers to be able to win at least the two largest awards we we could justify a lower cap perhaps than twenty and twenty six percent but in the interest of competition as well that balancing task the agency decided twent then and your contract you can never concede to the terms of that contract but what if you have another another contract that expires sometime with that right this is sort of a moving target is and it could be and that's i  mean it's possible that somebody could have that situation where you know five years into the confines of years into the contract they might get below a little below twenty six percent but we still have five years where the threat of a threat to the continuity of the agencies i don't medicare service medicare claims administration services would would be threatened because they all expire the same time you know it's a it's a staggered process and i'm still struggling with whether this is still an open competition can you help me by perhaps giving me another example of policies criteria technical specifications it has to be rationally related to the agency agency's legitimate needs so we have lots lots of case law like the c h p case where the agency was combining the hardware and software made into requirements and there was only one one company  licensees that could perform the software side of it so somebody that if you the hardware side came in and said you're not providing full and open competition you're in your own doing restricting that and this court said no that's an object unobjectionable because the combination is rationally is rationally related to b health medicare or administrative services but you know those criteria go to ability to perform under an actual contract and this criteria doesn't but look but one of the agency's key needs is continuous uninterrupted medicare claims administration services not simply claims administration services while while this company can do it but can't buy continuously and there's a provision specifically incorporated into the solicitation that provides that that that n g s hasn't challenged what and so no question about the shifting numbers over time people move say there's a substantial shift of people who are eligible for benefits from one region to another and as a result the percentages change when does that keep him or recalculation by the senses or i'm not sure when the in each solicitation there is there's a list of the percentages that will be applied for that particular so cetaceans so perhaps for the next next one maybe the numbers will be different i don't know but the agency could recalculate that basically  the government hangs a lot of its arguments on both of the timing of the caps and whether or not the caps really operate as an exclusion in some broad sense or whether there is a large percentage chance that at the back end of this process we can still win but the record is extraordinarily clear in fact at appendix four thirty two in the government's brief below which is the government's brief at twenty eight the government agreed that we were all not likely to win the j s contract due to the workload caps before we had even submitted our proposal number two there's a clock there's something there's a there's a document at the appendix eleven eight ten called the klotz declaration was a declaration submitted below b pass fail technical criteria sometimes they have argued that that they may suggest that their technical evaluation criteria do the citation of c h you know other cases but at least one point in their brief that page thirty nine the government concedes that the work load caps are not quote functional performance or design requirements they have nothing to do with our ability to perform the contract out more to ensure a reliable and continuous performing of the met counter and is the way the way i understand it works is they do everything until the end so you get whatever normal evaluation you get to be the other offer and it's only at the end of the day i guess that once they determine you know some other people offer has to be within certain criteria right now here on earth it according to these workflow tapped if there is any responsible offer or that would be below the twenty six percent cap that they would weigh them doesn't a definition of responsible offer  r someone who needs some sort of no no your honor the responsibility goes to the ability to do the work not to the best value evaluation and in fact that's why the government it's brief it's thirty seven which is appendix for forty nine they point out that we argue that the capture card counterproductive because they may result in the offer with the best value not receiving the award and the government says yeah we were well aware of this possibility when we implemented the work lo  at so we could be the best combination of price and performance and still not win even though the next best value offer or who would be below the caps would be ranked number five in a field of seven so our point is that to the extent the government maintains that the workload caps are rational in this instance they should be able to issue with the n f under six point two zero two they say they can't say that they can't have it both ways if it's six point two  two is too difficult to follow because they they don't have the evidence in the record to support a determination in finding that they have not issued then they should not be able to sustain the broader cap on the same basis it's saying why should we use a sharp tool that a blunt one will do competition the foreign dissipates that there may well be off or orders driven out of the marketplace as a result of full and open competition but that if the government wants to protect against that eventuality it's a remedy is and they can address that no problem if they have the evidence in the record to sustain the determination and findings that was never issued here thank you