from pursuing those remedies concurrently about his bidding and also complaining you're going to know your honor we could have done both we could have followed a few protest and we could have submitted a bit but based upon response to that we had filed the prior agency protest with the department of defense because in the prior procurement for these exact same goods they had in fact published a paper put a drawing which copy part and parcel our proprietary data so we were very concerned that there were possible violations the precursor to take a b ack for that reason we saw our three award administrative remedies we were only request for quotation to our client naming the exact same part that was specified in the solicitation so we believe it at all times we still had an opportunity to secure future delivery orders against the that's the way to do it he set this up this core having a lot of experience in a local property recognizes the importance of a technical data package in illustrating the quality standards on which deal he seeks to benefit when they wire critical our our price would have been exposed had our competitors been provided whether it was negligent li or purposely with copies of our intellectual property they were then in a position to offer the playing field and bid against us without having to incur the cost was a business decision on your proposal yes your honor was but we see in making that business decision we saw it for bill ourselves all our rights to clarify with the agency whether or not they had in fact data package in exchange my client should have a right to agree to protect its competitive position in the deal of the market for the parts that reflect the quality standards in that technical data package you are is correct we did make a business decision not not to compete with that business it was based upon information that we believed was reasonable under which we concluded they were possible violations of an application statute that would impede our competitive position in this market has a three year you want to be the second heir of the court may is concluding that we lack a direct economic interest in this procurement the court standard is so narrow that neither a perspective bitter or a actually bitter could ever file the post war protest the court literally interpreted this court's prior decision in m c i to state that once a contracts awarded you have no interest in that specific contract therefore you have no standing and that would apply to either a prospective better or an actual birth we believe that m c i yeah that could apply and m c i why would it apply so broadly may not it seems seems to me that the court was much impressed by the absence of an actual bid so far as your telling us all of the dire consequences of the trial court's decision and it seems to me that the lack  of actual did was a very strong factor in that decision it was a very strong factor you are in the court's decision but the court failed to recognize the effects of our prayer ward agency protest since this circuit ruled  parties that are concerned about problems of the acquisitions process will have to go directly to the former federal claims because if they went to the general accounting office or the agencies as court knows both those forms have the right to  to attack the award in the federal claims again your honor i recognize we made if this is decision not to pursue the bit if we just step sat back and did absolutely nothing i think we've been in trouble for we clearly right to seek relief after the after the award is made what about our decision in the federation of government poise versions leave where you need to have a direct economic interest in order to have standing to bring a big protest essentially prevent you from having any standing at all no sir you are the court has never really defined what they meant by direct economic standing we believe it could mean being off the ability of the or excuse me to remove the ability of second to first your sub contractors to follow rights but after impressive i think since the court i think the reason we're patient would be that your economic interests are not in the contract but in the services sought by that contract the services not such that not simply simply the contract but the service work goods they were thought to be acquired under the contract away i'm sorry with respect to the director canonical interest wouldn't you really need to file a bid first before you can file a protest to that bid is that a precondition essential we think it could have been we would be extremely prejudiced by potential violations of the current integrity act had we ignored that and filed a bid instead our price would have been exposed the agency for geo could then deny our protest believes their arm to assert their rights and you know are a man who watches a person doing such a circumstance the harm in a sense has been done that's if the position of the government is that that technical data was exposed or distributed in error how does one reading such an error well first of all you can file a create award protest if you believe the solicitation is so tainted that it should go forward exception for that the statute says you must be an actual well it says you have to be to party but the definition says you must be an actual perspective bidder on the day you file your protest for the solicitation that you are protesting period and i don't know any reason why it wouldn't have and certainly would be difficult for us to argue that it did since i think what council said about rex's standing up to this stage is not quite right but what rex was was the one pre approved source another the one it was the one company only complaining about the award too associated complained that associated was not qualified there were references in there to potential issues with proprietary information but it was no longer a claim as direction for the agency earlier order under this solicitation with rex and the fact that it could not that there is a purchase order in the record page twenty two of the joint appendix but if you compare that to the solicitation it has a different number has different contract number and the put the reason that's true is that rex has been the sole source fire of this part of the navy for many years and this was the navy once again ordering from rex as a sole source  garden variety of protesters where they stand as mr chadwick just pointed out what they were appealing for or protesting before the court federal claims was different than what they protested to the agency and that difference is the whole difference why we're here what one opponent doesn't seem to recognize that there is that at each stage of a  of interested parties or participants change so the law recognizes that read close of solicitation pretty offer the rights are very broad to allow the maximum amount of competition escaping what is undoubtedly a critical aspect although perhaps it's become submerged in the procedures that have been followed here and that is in fact taking the data package which was then made available apparently improperly eliminating if it is pursued as it has been the sole source aspect but also i gather permitting and enabling others  to using the proprietary data that they had generated and the bid may or may not have been successful and if in fact rex had competed for it that we don't know but it's more complicated isn't it that then when and how they chose to protest that would be true if either of rex's protests had been sustained and neither was the earlier protest than the drawing that  that protest was denied by the agency at that point and in fact when the solicitation was issued my client associated had become an approved source for the par so if you look at what the court of federal claims is looking at what the government did in this award action then the solicitation required as mr johnson said approved sources there is no evidence that that is the case that was a protester for the agency which the agency abandoned in this case the agency denied that protest of r gone after award went to the court of federal claims seeking the fourth federal client to take back the award to associated not because of the proprietary data there is no there is no evidence in this record that my client did anything improper my client went and did the technical work necessary to produce its own part i don't believe there's been a if something were done that was improper i hadn't thought that that was directed against the competing bidders if in fact the data should not have been released that was the government was it not not your client that's correct but the protest before judge allegro was that they word should not go through to associate because associated could not have made this part without the proprietary data no there's there's reverse engineering there is independent engineering to produce what is after all a switch it is it may be a highly technical switch but there's nothing precluding an engineering firm from producing a switch that meets a solicitation requirements and serial but iraq i didn't see the argument and i don't really mean to put you on the spot to try to defend the integrity of that aspect of the process but it does seem to me that there's something here that i haven't been quite able to to decipher because again it's it is hard for me to understand why rex didn't bid well and if i may just comment on that maybe no one ever thought of this and i certainly i haven't seen any of that in this record  x could have been under seal and requested that it not be opened pending the outcome of its agency protest rex head many opportunities to protect its interests and rejected on business decisions every single one of them the day that it received the decision from the agency denying its protest it could have gone to the general county accountability office it could have gone to the court of federal claims and sought an injunction it waited until after it learned of an award several days later when was the protest for the proprietary data denied by the agency when was it i believe the date is february twenty eight is that the agency decision came at the end of february and award to associate it was made early march several days later so would have been right after the bids were doing so that rex's protest on that the only way competition could exist is if proprietary down to have been exposed the government decided proprietary data had not been exposed improperly it tonight be awarded the protest and made of war properly to associate it now a year later rex wants this court to tell the court of federal claims to look at the matter again and again we're looking at a whole series of events that must of necessity narrow the court's jurisdiction or its exercise of jurisdiction because that's really what we're talking about before that before bids are due certainly anybody that could possibly  bid together should be allowed to bid and should be allowed to protest and should be allowed to make its concerns known after that the jurisdiction of the court has to narrow or else he would have a flood of appeals as we argued in our brief and i don't think that would be to the benefit of the government or to the procurement community as a whole i see i have a few seconds remaining i'd like to thank you for your protest our second was denied january twenty eighth the award to associate it was made four days later the first order under that award was made twenty days later on february twenty fourth was which was the first time  were the other way the deal it was conducting the acquisition we did not attack the solicitation we did attack the conduct of the acquisition because a solicitation was so now are off to require any party who could compete to prior notice to the agency before you can even go to the g a o for a possible violation the procurement integrity act and you have to give that notice no later than fourteen days after you first have constructive knowledge of the product of a violation were when to submit a reverse engineered product be because of the way deal deed for whatever reason drafted the data requirements they were still required to submit our technical data package and so on if you want to it's on page sixty of the record i would guess the court's knowledge to the fact that d o b referenced the fact alleged that they had absolutely no technical data available they required any party that was going to compete in this to submit our technical data package another point to talk to to priority protests it was that we did not prevail on them they were denied whole however the initial protest which we fall over the over the fact that the navy had published our data package the government took the exact correct of action we requested they cancelled that solicitation when they came back out the next time we follow the rates you protest they correctly said we're denying this protest but we're making the sole source of that war to you therefore they were correct you have no recourse to go to the g a o we had no available remained up on time except to possibly go to this court but you sorted before ga labor down below which is a while later the competition and contracting act ball dovetailed from the agencies own technical data requirements only a party that had access to our t solicitation we were very concerned when we saw that the word associated with now there has to be a violation of competition contracting out but we never gave sociedad our data package your are close we did make a business decision not to not to bid on this but we did it in the face of a record which indicated us possible violation of return to take the act we took the only available recourse we had at that point in time was that which was to address this with the agency i know we did submit a bit but we took we took