please the court the court to reverse the court of federal claims judgment in this case the court below erred by failing to grant the government's motion to dismiss and instead improperly reach the merits of say text premature protest in this case a tech came running to the court of federal claims immediately after the army i now it's been in tension to take corrective action and approach chairman that would had been followed through with involved determination for tax contract and a reopening of bids on the solicitation requirement when mr white couldn't see if we allowed this to go forward couldn't the government always adopt this methodology we'll just announce an intention and kind of proceed with intentions and thus avoid any big protests challenges to our work well your honor the cases have demonstrated that there is a rightness concept that is a political here and where the government agency has simply announced an intention to do something but not decided to take this action and so they're pursuing a course which is going to cost us systems tech their their contracts and put them into a rebid situation the cost and expense and time now for a lot of consequences that you're just kind of dismissing does the government wrong does the government concede that g a o wrongfully dismissed the protests well we're not challenging at all the merits here so the court of federal claims determination when it did reach the merits is completely not challenged well the but apparently the g a o went ahead and acted in dismissed a protest based on a statement by the army that the army really didn't necessarily tend to carry a separate that fact your honor doesn't change the fact that there was only an intended course of action and the fact that that statement of intention could be said to have induced the g a o to dismiss the protest still doesn't change the fact that the act on the part of the g a o does not change   the letter of the g a o attorney with this statement and were and it minutely requesting that the g a o dismissed the protest based on its announced decision to take corrective action by that wouldn't have it still wouldn't be a right controversy and there still wouldn't have been standing on the part of say tag and there wouldn't be jurisdiction the port for planes off three but and but but again this is this case is distinguished from suzanne because the jurisdiction process and that's really what's at stake here this case is not a challenge on the part of a tack to the solicitation it's not a challenge to be a war in fact this is has to be analyzed as a pre award protests because while they came to court they were in fact thought contractor that had been successful in the first go around so it wasn't a challenge to an award or proposed award it wasn't a challenge is it do that's right they were the contractor with the property interest that you were threatening with a new solicitation as we've pointed out in the briefing your honor to whatever extent they are alleging that there are a contractor with contract rights they're subject to the agreed upon contract remedies which are provided in the contract mainly the terminations for convenience procedure they can submit a terminations for convenience settlement proposal if they're not happy with what the government does in response to that say have a judicial remedy in the court of federal claims to the contract disputes act that's an entirely separate matter but the from that the order that our clients have independent jurisdiction separate apart from the contract dispute that does it not for a preview in this context honor for a prelim word that protest so a challenge to aspects of the terminations of the original contract and again this is all in tension and never did happen and say type filed this case in court while it was the contractor but had the contract in fact been terminated for default prior to when or terminate for convenience excuse me prior to the filing of this lawsuit the court a federal claims would not have possessed jurisdiction under section fourteen ninety one one being to address contractor challenges to the terminations of its contract spec that aspect of the case would have to be through the procedures of the contract disputes act having a claim and a final decision of a contracting officer which is the mandatory exhaustion require ment of the c prior to challenging aspects of the contract you're saying that there's never any vehicle to get any kind of engines are really there would be had there been a right controversy for which the court would have had jurisdiction and a right controversy in a pre awarded protest context would involve those challenges which either in volved a exclusion of the protester from the from consideration such as and agency determination of a competitive range which excludes a particular bitter or it would have to involve a or analogy loon gould how would the ever challenge this amended solicitation because blue and gold wouldn't let him go to the court of federal claims if they had challenged it during the bidding process and you're saying they don't get to challenge it during the bidding process so how did they ever get the chance to challenge this amended solicitation our argument your honor is that they never did try to challenge the amended solicitation that's not what this protest is about what the protest is about is a challenge to the very fact that government attempt to try to make sure that this was a fair process had decided to start over and allow for a clarification of a solicitation which they don't have any problem with and in fact defended it down their bid prices out in the open and so their prejudice by that and now they've got to go through the expense again don't they have some remedy for these why arms and again these are not these are for either the purposes of the rightness analysis or for the pertness purposes of a standing analysis these are not arms we've pointed in our brief to their process when when now their competitor knows exactly what their numbers are that's just a normal consequence  of participating voluntarily in a government process for a government contract when they were originally decided when the government originally decided to award them the contracts that far specifically require that the government the decision is m once that decision is made but the fact that they are now because the government has decided to perec that self and make sure the process is fair that determination is one which has part of the process they have to just assume and that's no different from a lot of the other standing and ripeness considerations that have been addressed by this court in the supreme court where for example a determination that a party is required to defend to convert a government charge is going to cost money is going to involve some sort of a burden for the party but prior to the ultimate determination from which the legal obligations will flow which in this case is the award of a contract a party doesn't have a basis to claim that it has standing simply by having to participate in the process or that the behind those holdings of that sort is that an announced and i mean and t t s we're getting to the back to the point that this was wholly and announced and tension on the part of the army and no aspect of this corrective action ever been taken prior to the filing of the complaint by pan in t t s we see that you know even more so than the army still intend to go through with it if if the injunction is lifted well at this point your honor a lot of happened i mean obviously the government has been enjoined by the court of federal claims in the interim saitek has as the contractor been performing the contract and were the government to succeed in this appeal the army's  ultimate determination as to whether the current stage of the contract whether the army would immediately follow through with some sort of corrective action as it had announced earlier or whether it would decide at this point to continue on with this contractor is on but for the purposes you're likely to be sued by the other party you don't take the corrective action well part of the problem here is that the corrective action which was challenged by saitek prematurely is still up in action which is not right to be challenged by any offer or it's simply an intermediate part of this process so as to demolish pointed out we're not simply making an argument that's based on the fact that this was wholly announced intention but in fact this type of action the government deciding either at the end of the g a o protest where there is a determination of the g a o in a recommendation that the government acts on or in slightly different context like this one where the g a o process is aborted because the government announces a corrective action which then leads the g a o to dismiss the protest and either instance these type of corrective action challenges should not be filed in the court federal claims and less they either implicate the rule of blue and gold truly as a protest which must be filed in the court of federal claims in order to preserve an argument that is a challenge to the solicitation or a challenge which is to the solicitation in a manner that isn't strictly related to the terms of it but related to a determination to exclude and offer a similar to this court's decision in turn or where the g a o recommendation which the government was going to implement involved opening up the solicitation to new offers but excluding the particular offer or who the g a o had determined had an organizational conflict of interest it's your jurisdiction argument that says that there has to be at work with respect to the solicitation meaning the government doesn't have to go through the process of reaching a contract and opening itself up to it an attack on that it can just repeal it and then you say there has to be an award how did proposed award or the award of a contract or any alleged violation of statute or regulation and then it says it doesn't matter whether this occurs before or after the contract is the wording right yes your honor and we're conceding as i've just pointed out that priya ward challenges to corrective action of this sort are appropriate in certain circumstances where there is a final agency action of some sort through which a legal obligations are established the contractor who is the protester on the pre award is eliminated like turner that is one which we can see a pre award protest on that corrective action is appropriate for the corrective action  involves change to the solicitation of some sort which is being challenged as creating for example a situation where now the solicitation is on do we restricted and somebody wants to challenge that and that argument would be waived under the rule of blue and gold under that circumstance pre award corrective action challenge is ok but in general this type of action and here say tech is not challenging this  pointed out there is no challenge to that although that's what the court federal claims held incorrectly nor and looking at the fourth prong of fourteen ninety one b one nor is this a challenge to a statute or regulation that's been violated in connection with  my name is craig homan and i represent systems application and technology think say to for sure i want to store by noting my stern disagreement with the argument that operating under the contract now we are on ahead just how does the government correct a mistake if the feels like it was unfair in the first  complaint it is one of the statutory violations that we alleged before the court of federal claims ten u s c twenty three zero five f speaks to the process by which the government may take corrective action in  protest it speaks to it specifically the army did not follow ten u s c twenty three zero five at the judge judge sweeney in the court a federal claims in response to our arguments and that rigor determined among other violations of law that the army had violated ten u s c twenty three of five that is far as corrective action goes and it's important to understand this your honor because the government's argument is very very dangerous from a process perspective there are over a thousand protests filed at the government accountability office every year many of them are resolved by corrective action that corrective action moved the big protest as the army argued to the government accountability office when they filed their terminations that they are taking corrective action as the army stated in  that the that may be an argument they were making with respect to the attorney advisers communications before the g a o but with respect to the actual corrective action determination it was a clean and it was filed electronically but it was a pleading filed by the army a determination that they were going to take this corrective action and they asserted that it mooted the case that they were taking it not that they were going to think about it because if they had told g a o we're thinking about taking corrective action in this front of the process when i'm talking about they're trying to get this court to say that when the government files a determination that it's taking corrective action that the next day on there when they can change that they could change it five minutes after they filed but if this court were to say that that final determination has news legal consequence which is what they're asking for that no the goal weights are obligations or anything else flows from that corrective action if you were to do that there could be no corrective action in a protest because when the government came in and filed its determination the protester would say that's a meaningless piece of paper no you can't g a o you can't dismiss this case as moot that's just a meaningless piece of paper and the government has told the federal circuit that we're not bound by these corrective action determinations at all and from there and or xbox will start every time the government comes in to army's declaration that it was going to take corrective action and then you go to the court of federal claims the court of federal claims of no you can't take this corrective action where does that leave the protesters the protester certainly had the ability to protect itself the protester of course could have filed the counterclaim in the court of federal claims it could have filed the toon protest in the court of federal claims the so the protester is not without protection in this process the only what fundamentally is happening is the government is saying they can come into a forum that is hearing the big protest and tell the foreman they're going to do something but it not be true that the next very next minute after the protest cases mood they can turn around to decide we don't want to do that and making it doubly troubling for my client and similarly pasta postured companies were caught if this argument accepted in the past or what we now according to the army cannot protest that corrective action decision until we've gone through a termination a competition in amendment of a solicitation in a new war and that new war has to come out to somebody else then in the government's view we can file a protest was your argument  stronger if you had waited until the solicitation was actually issued i think from my perspective your honor i think it would have been foolhardy for me to do so to wait until my client is terminated has to lay off employees has to a competition is reopened all of which the government said authoritatively indeterminant in the determination that it was going to do as this court said impartial are supporting the forty nine there is no need for a protest or to wait until the illegal or improper action is consummated there was a determination that the government was going to do this and it would be dangerous precedent for this court to say we have to wait until the contract is terminated the jobs are lost the competition is and i want to swing back into fourteen nine you want to be a judge amount that you spoke about it really is quite important here because every one of the government's argument as this court said in distributed solutions the statutory language seems pretty clear in your favor are there some regs that go the other way it no you are ok got i've i've i believe the court as you know it's not just the merits decisions are not challenged as the court below noted i mean there were numerous regulations and statutes violated by the army in connection with this process and that's a conclusion frankly that was reached by the court and was not challenged by the army so tell me about the government's reliance on t p s because  dumpty's it's a completely opposite circumstance but i would encourage the court that if you were going to really apply g p s circumstance which would make no sense because it's not a big protest case and nine hundred forty nine be one but if you were going to look at t p s look at it closely because in t k yes what is interesting on the rightness count they don't find that the whole case wasn't ripe they find part of the case wasn't right they find the part of the case that actually impacted somebody was right incapable of being heard what they didn't find right was a part of the case in which the government had said they were giving it vance notice of a future separate proceeding that part the court said it was not right the part that impacted the parties immediately like saite and i i i know i've already said this but i do want to emphasize that they put in a final determination to the jail and ask the jail to end the protest proceeding because it was moot that action ended my client's ability to defend it contract award in the protesters protest that is quintessential final action that has a legal consequences they directed the legal consequences they cost legal consequences it flowed right from it of course that action is right to be reviewed i point to another court case from this court ram corps which is worth reading  context but ramp for actually talks about a challenge to fourteen ninety one a challenge under fourteen ninety one be related to the competition and contracting act override so while the g a o proceeding was ongoing regarding an award competition the agency issued an override decision it overrode the competition and contracting x day of performance the protester came over in that environment final action in the context of a bit protest and under fourteen nine b is a completely different animal than to take yes in fact that's why  act talks to violations of statute or regulation in connection with pure ment's in proposed presumes in distributed solution this court found it proper for a challenge to a request for information a big protest about a request for information a precursor to a solicitation we are now the government is now at the complete other end of the extreme ignoring the t act ignoring distributed solutions in ramp or in relevant precedent in trying to get this court to say t t s says you can't file that protest until after a second award and i know in this regard that as we as we talk about this judge queen's decision is quite thorough in her footnotes she cites fifteen separate post a d r s cases corrective action protests challenges one of centex it contradicts the point that the army made in its argument sent tech is a similarly situated corrective action protest where this court found jurisdiction existed under as a pre war protest under the tougher act in the a v r e amendments sent undercuts the very points that the government is making here today and in fact in centex they tried to say that don't don't consider turner which also undercuts them don't consider turner because turner was excluded when the centex sent that wasn't excluded pre war protests corrective action the government's arguments are undermined in each and every instance by either the tucker act itself or in all instances by the to correct itself but also by this court's decisions turner is notable as well again because that's a corrective action protest  turning to turning to the issue of standing the court has spoken to standing on a number of occasions most recently in relevance to this the court addressed a similar argument and weeks marine and this is an important from my perspective as a lawyer in the procurement community because if this court were to find that there were no standing here until the war decision claims we affected lee would be saying that this court had set has set up a judicial scheme whereby a party runs afoul of the waiver role if it waits to challenge a solicitation but it is properly dismissed on standing grounds if it raises the challenge free ward such a result would be anomalous that is the very result the army seeks to foist on saitek here if we wait we run afoul of blue and gold we do indeed do repeatedly challenge for cetacean in the men proposed amendment to the suspicion as i noted in our complaint if we wait we run afoul of blue and gold we must have standing now we are here to first clarify one point which i thought i made very plain during my argument which apparently was not understood by my opponent here the government is not taking a position that is contrary to the statutory authority provided to the court of federal claims for pre award protests as i thought i made very plain we concede that a preorder protest of the like turner or even weeks marine where there is either an exclusion action taken by the government as part of the corrective action which immediately becomes right or where there is a challenge to  jurisdictional limitations into the statute where none exist i mean we did say in ram or that the jurisdictional reach is very broad and sweeping right there read this as i asked are you relying on some sort of articulated read no we're relying on prudential law or berliner on the rightness and standing considerations which are jurisdiction of her lying on concepts like abbott labs and standard oil and the fact that she tell us itself happened to be a trade army has decided to dismiss a protest on the announcement ok the government has announced a corrective action which causes another agency to take some action reviewed in a good protest so it's not a final agency action from which the rightness of an action that is the first test of the rightness test of the rightness of doctrine is the action one which the agency decision is one that's fit for judicial review and it gets to the concept of finally agency action of the sort which he has addressed if said that if there are rights determined and consequences will slow that final year we've got consequences all over the place the consequences haven't even begun fact as saitek was in the running to be awarded this contract and had any of this happen it could have again reached in the contract and in fact under the same terms that it wanted for the first time so in fact no consequences have occurred other than the one that was that would have been a terminations for convenience of its definitely wanted to make the point as we definitely disagree there is no challenge to the solicitation here there is urge the court to look at the complaint and look for either a challenge to the terms of this was patient rather than a challenge to corrective action and the fact that the contract was being recent listed which they don't like or a challenge to a violation of statute or regulation in connection with the paternity there is no