so you don't if you don't cross that barrier to get to two and three i don't think so judge wapner and that's because when in order to invalidate the corrective action it was instituted by the agency here we have to o two but you're going to have to that limits agencies to it and this this is at all almost every one of these kind of contracts it says the agency doesn't have the two additional stuff but it doesn't say the agency can't do additional  and was within the competitive guidelines and term of the independent government process that when you have one event that is technically acceptable and one that is clearly not and not even close to it when the i mean there was basic documentation that was missing from metropolitan the proposal well that's that's certainly our argument now and in fact if you saw it then but then what you do is you fix it well it took two points your honor in fact the agency in reviewing the floodplains certification found it technically acceptable certifications met the material criteria set forth in the station substantively those what they certifications did tell the government that in fact none of the proposal occasions were in a one hundred year flood plain and that's an important criteria and terms of in terms of the form it was provided by an independent business a professional company that does this as not just does it but does it all time and does it very well and is recognized in the industry for doing it what did the er surveyor and was you're arguing under the clause three a disinterested third party professional engineer slash surveyor right that's correct i don't believe so we don't have any evidence that it was now not in this record but i would suggest that i mean that an argument is that that's not a material element to this consideration and in reading in that and in fact we know it's not material because location which was proposed to be used for this one was accepted by the government on a similar floodplains or if you by core logic's predecessor so we know on this record that they've least made a mistake in the past i disagree judge walk we know that in fact it's not material whether or not is performed by an individual professional engineer or by a professional company that doesn't have that basis and that was that is not the same thing at all in the engineeri needed is to corrective action to give this contract with the preferred bitter metropolitan that it manufactured this there that's our position on appeal it manufactured there yes so unfa needed to find their you know and in order to get to an area where it could know they love closely until that now i disagree or are they looked at very closely on several different occasions independently of reviewers for the government review th my knowledge and why would we interpret it that way when we're talking about government procurement where it's the contracting officer looking at these proposals for various reasons and here clearly looking at a you know competitors and saying this is a better price for us that wouldn't we allow them in the interest of fiscal responsibility to go back and reconsider and lao them to correct any errors i think it should be equally important seriously judge hughes that correct that it's original proposal was technically acceptable the corrective action was still appropriate in the circumstances still reasonable in the circumstances and that's because the corrective action has to be looked at in the factual circumstances of each case and what the agency pointed out here was that you had to have a a level playing field for these two or for rowers and that guardian had been given discussions in the first round and those discussions in able guardian to come up with an acceptable proposal and metropolitan was not given discussions so it was essential in doing this in moving forward with corrective action that we give both parties a level playing field and open it up for discussions to metropolitan this would give metropolitan and equal opportunity to that that had been given to guardian first off so   it went to other matters that made guardian's unusual submission and an acceptable technical proposal and the agency opened it up for discussions allowed them to formulate and come up with a new proposal which was technically acceptable so obviously if i understand the rule you've got to better them and then it turns out for sake of argument that in order that this guy and then  find out subsequently had a problem with this this guy doesn't the government you evaluate whether or not you should go for with them as to whether or not there were same level of discussions at the outset between the two and if they weren't then you get a do over and if they were very dark it's not a question of measuring the level of discussions with the extent of discussions in this case there were no discussions with metropolitan where you mentioned the standard being i mean in your words were i believe a level playing so i guess of the government has to make a determination as to whether at the outset there was a level playing field was an outgrowth of the fact that there were discussions with them and not with the other side that's a little problematic is it not what about the level playing field in that  circumstance it really depends on the facts of the case in this procurement there were issues in the first round that warranted during discussions with the guardian and what they did with metropolitan was just simply ask for a few clarification's then when it becomes apparent to the agency in february of two thousand and fifteen that the first award is affected by ara the agency has to design if you did that and metropolitan protested you would probably be up here defending that award the guardian right the problem then becomes that if you were to just spend what had given to guardian it doesn't i mean i'm just say i mean i get your position is basically when there's a bit protest and the government recognizes an error that they have broad discretion to take corrective action within the exercise of discretion and on the factual circumstances on this case where there had been deceased because during the initial round you had discussions with party into a pretty improved their bit and or make it technically acceptable and you hadn't done that with metropolitan so once the technical problem was pointed out with metropolitans you felt it income but that you have to give them the same opportunity to have discussions and improve the so is there a standard so if you then decide if you decided the other was deficient and you were going to give it to guardian would you say well wait a minute we have to evaluate whether or not here to four there's been a level playing field and if there hasn't we can't and if there has we can it's certainly the overlying principle is that also a forest have to be treated equally when you take corrective action and in these circumstances they looked at what had occurred so the government is really running a risk in the first instance and there's an imbalance i e a lot before i feel to use your terms when it's considering these contracts because that if that's the standard we look to we don't know how it's going to play out in the later days and it would always come up to bite them strictly speaking the standard is whether the agency is corrective action is reasonable in the circumstances the factual  directed to the to the first round of the idea that in the first round there are four provisions for when you conduct discussions and if there is something in the nature of the proposal that really needs to be addressed with discussions then you would you would have discussions with a party you don't necessarily have to have discussions with both parties because it has to be something materially that you need to you look at the pro procurement action overall and you're looking for fairness and equality and those are the principles like the agency used in designing the corrective action in this case you clearly overarching law and because it based its corrective action on those principles it was reasonable in the circumstances basically what it did is i said it looked it saw that there had been discussions with guardian given the fars requirement to have discussions to make technical corrections you would have had discussions and they could have corrected so that this reason you took the court action did the corrective action was taken for multiple reasons yes also because the floodplain requirement was not met but there were also as support pointed out other inadequacies for metropolitan  of these inadequacies were dealt with during the corrective action can i go back to just the criteria that you use to reject their their guardian's proposal which is that they didn't have dissed something signed by a disinterested third party professional engineer or surveyor so they had a company called core logic what if we went to court logic's website and we saw that all of their employees and everybody that does work for them is a professional engineer it looked at the form which was in their record and the requirement of the solicitation and said these forms are not from a disinterested third party it's just a core logic and there's nothing that indicates t i'm not sure what the question is now from the court but all of the questions the comparison of the two documents because the first one is from a corporate entity which cannot hold  professional engineer were surveyor and having that record if it concluded that the agency was not arbitrary and capricious and finding that this her requirement of the solicitation had not been met so therefore the first the proposal that was in the record initially was not a technically acceptable final proposal from guardian and as i understand it  the only thing that was moot was the validity of the original contract award back in december of two thousand and fourteen and the agency at the time of the court's decision we were not defending that that had are there any discussions with metropolit now but metropolitan was contacted about things in his proposal that were that were deficient in this case it was a cost element and then in metropolitan is given an opportunity to fix it the second point is that the fault that we're talking about here with the fire co certifications is not something that it's plausible that the government would have missed in this review it's not it's not it's not the floodplain certifications we're finding about whether or not the right person signed it or not disagree judge hughes that in fact the non responsive nature of metropolitans proposal the fact that there was no documentation on the fire and fire co safety issues may have actually wrote it metropolitan standing to make that protest