the contracting officer and it's not the appeal to the board the only issue before us i think is whether you can show that the board in its decision committed reversible error that's  at it it says that the solicitor the solicitation governs if there's a contradiction between what it requires and what some later piece of paper said i think the case of course it is well now what puzzles me about your position counsel is that you seem to reject the proposition that there was a mistake in that country when it seems to me the proposal on the one hand you can certify in writing that you complied with the seven with the r f pay with the government's request for veterans and on the other hand you included in your actual offer a factual statement that was contrary to your own certification seems to me that was a poor mistake on your part wasn't well i think yeah you rebid based on the new requirements we just know we were not of course you knew because you would have gotten the revised notice along with every other bit or if the c e o had accepted your departure your shift of the locus of the dirt all of you would have been advised because you would have all read the a changed solicitation and the process would have started all over again i'm sorry so you knew that didn't that we did but we didn't know the contents of the other folk you didn't need to know going about what she should have done i'm trying to but what you should have done you should have waited to see whether the change was made in the solicitation if it isn't made in the solicitation then you should conclude that your proposed the part your has advantage that they have but it contradicted what the solicitation required you to do which was to get the dirt from off site well i think that's like going to remove the requirement of the cost savings for holes that is also in no one's criticizing the worth of your suggestion everybody loved it the air force loved it and it was better for you the question is whether you took the steps you needed to take under the law to protect your position and hard for me to see how you did that when you didn't wait to see the contracting officer read issue the solicitation to all the bidders removing the do you think there was an offer and acceptance i e a contract in this case between you and the government just what was the term of that contract visa v the no no it's the solicitations you unequivocal he said we will do this job and you sort of thought that you'll do the job right according to the terms of the r and b so the government assumes you're did you not agree in writing that you had the government didn't make you an offer the government put out a proposal and you made the offer or the government you tell us accepted your offer did you not accept that the contract was the contract the one that you executed in which in the form seventeen you said yes this comports would be r f p which calls for offsite dirt where was the contract the one in the one you submitted in which you said the assumption is i'm using onsite which was the contract that was a mistake by both parties but that you made a unilateral mistake and mistake which she presumably would regard as unreasonable as well overall and so you have the issue technical volume but your argument implicitly is that your price proposal and the cost of volume was conditioned on a condition not mentioned in cost volume but maintained million if you force us as part of the solicitation to get off site dirt in that event our offer price is four million because it's going to cost us more but you didn't do that leave one fry with no express condition your are have yeah but but that's the very reason it doesn't get reviewed business because it's in the technical volume that's the sort of thing he'd deal with downstream maybe when you're making technical  please the court need your honour's this one is easy even if you don't be so sure you know let's let's see how easy it is we gave mr rawls a bit of a hard time we certainly don't want you to feel neglected so let me ask you a few questions how many contracts the you think were involved in this case there was one contract one contract they made an offer they made an offer and offered and age to seven offer document itself that form by the way was a separate form they put it right in their offer the following sentence we assumed a on base borrow ariel was available as a statement of fact i'm looking at page eight of your brief in which you quote ok and it it ends with a period the next sentence says is this correct or will a borrow site off the base be required and building much easier for everybody so we'll do it in langley would the technical team have said oh we don't need to worry about that and hazard a guess that that is not a curiously compliant response but but as judg yes she believes that this was a condition off effect ice this would be contained in the ice and he said this was not a material variance what's your any proposal was made they asked this question corps contract specialist received an e mail from a detainee with a list of questions one of which was the following is there a side area on the basis that we can use from that was pre proposal in may of twenty zero three in the proposal itself in june of zero three they put in this sentence we assumed an on base bari was available when they didn't get any reply either from their first question or from that the next thing that happened was in july of zero three the core issue didn't notice but on july seventeenth the contracting officers representatives sent an email to the project manager three on or about october the ninety nine c e o s coordinator for the project mr brown sent an e mail to mr weber that stated among other things also eighty he is looking for some areas to select so we briefly touched on that and that was followed by a email to the a c the project manager seeking this belongs response to a d t proposal to level nearby sites for a lay down area and guess what he replied by asking and mr musgrave if this isn't something that could be done and then finally in the fall of zero four is when we got around to actually government had no to even be for the first offer was made by them that they wanted to include that as a term we contract in they did what is the government duty in looking at the technical proposed by eight i'm good and you said that because was this just small business yes it was and what what are the implications of being a small business contract in lockstep why do why is it called the small business contract but do they do they get some kind of consideration for being a small business all of these is a this was a small businesses stations all the office all states state that never but what  but i think that the terms of the contract i'm just curious explicit did did you say earlier that you conclude that the contractor waived the right to any recovery because they performed the contract know but you can pay compensation for an equitable adjustment for the excess costs that they incurred by having to go get the diversity there elsewhere that's a very relief they're asking for made the offer to negotiate a change which the government accepted and therefore the contract as altered by their proposed the part you're in the location of the dirt was accepted by the government and therefore they say they are title to use on site there and yet you force them to use off site for your an argument is they didn't make them if they they varied the terms of a contract in their proposal and their proposal on their terms was accepted and yet this bite the government accepting it the government turned around and rejected it and side of this thing aren't part of the government the same government that the people who read the contract price that now and i understand that the technical people are told don't worry about price because that's not your problem and we don't want to influence by contract price so that you shouldn't shave that package will require you just look to see if it's technically correct but that's only because that's their little piece of the job that doesn't mean that the government isn't the big contracting party in the sky that dealing with all of this these are not isolated world the technical people and the contracting officer ought to be officer rather technical proposal after the pricing from the pricing information was present and the contracting officer was contracting also didn't go the ability of the technical team to room to respond to this question but does not mandate it it states i don't care about the technical team i'm trying to figure out why the contracting officer didn't answer the question but that doesn't answer the question of where is the contractor left if they make it clear very and their proposal as they've worded it gets accepted but the contract is the cantin bitter every do you think the government don't clearly with this contractor yes i do i think that the government could have done a better job in responding how poor a job can they do in that country and i think that depends upon the terms weber the assumptions flash question language in its proposal mr weber possessed an opinion on the meaning of the assumption question but wanted a separate interpretation mr tillman in turn asked an in house attorney from the corps for his opinion of the meaning of the assumption question in a d t s proposal there is no record that the attorney from the corps ever responded with an opinion on the meaning of the assumption question and then you have a footnote indicating that you invoke the attorney client privilege in front of the board to keep them from knowing anything more about this i mean it's us sorry record that is a very sorry record of the provide an alternative talk from seventeenth to be checked by the contact group that wants to propose a departure from the requirements of the solicitation i don't believe that it  so any contractor then have to check box seventeen and then be as clear as they can that they want to propose a departure so in that event it's not seventeen the view is that they weren't clear enough in proposing the