underlying evaluation issues the claims court erred when it held that the government reasonably evaluate a harmonious proposal under factor one despite the conflicting strengths and weaknesses of find the same proposal factor same example the specific name that was mentioned which i think is under the protective order was an example that was mentioned as one that the harmonia had used successfully for another agency it was not wedded to that particular tool and  contracting officer decided that or the evaluation team that the particular tool could potentially be incompatible and our money a wouldn't use another tool if that was the case and we don't think that's a fair request the point is the point is questioning once more the court of claims used jurisdiction as a shortcut and that they should have looked at something else don't you have a real problem with whether or not you have stated a claim where the regulation is not for the benefit of the contractor it's for the benefit of the government well you are our view is that the regulation gives the contracting officer an obligation and in this instance it would be for the benefit of the contractor because if it is a small business per curiam and this was and we were a small business but they were already is not then the benefit would be both of the government in terms of honoring the set aside and meeting the mandates but also for the other contractors who would be in a position with competing with the largest integrators in the world for a contract is supposed to be satisfied i can understand why you think the st clause in the regulation is for the contractor or the contractor has the right to make it a size challenge but the nd clause which gives the government the discretion to do it so espace would seem to be something that benefits the government regulation would have to benefit the competing eligibles small businesses because otherwise you're competing potentially with large business contractors and if it's not read as a whole so that the contracting officer has an obligation if there is reason to question the representation and make the referral then you have a situation where the largest businesses in the world can compete for small business contracts and there's nothing that the eligible small businesses can do or have to say about it and that's the situation we put but shouldn't the obligation be on on the purported small business because it's it's not because of the news so to speak to lose a contract as as a did  here because it was purportedly competing tests had to compete on sailing with a large company which is what you're saying is the deadline to file a timely size protest which is how you would normally raise this issue expired five years before the procurement when i left it was awarded the schedule contract under which this task order was competed and so any sized protest we filed would have been dismissed by the field office as a matter of law it would have been that dismissal would have been affirmed by the office of hearings appeals as a matter of law and that certainly would have allowed us to go to the court of claims but the court of claims standard of review would have been just to determine whether the regulation to make the referral even if yours would have been a timely and when we think we did you are we did not write a separate letter as i thought protest to the contracting officer but the contract scares me in this process from the very beginning of the case at the court a client was in the initial status conference and when we raised this ground the s b a was admitted to those proceedings as well into the protective order so they participated at every to the contracting officer with the same information in it and expecting a different result we think the government's position on that is speculative because they did nothing in the face of all this information in the record that they had access  our judgment really is as it relates to the exhaustion element that the court of claims focused on is the biggest problem we don't feel like there was a remedy that was available to us to exhaust it would have been a futile act to file size protest our argument your honor is that it is not a size protest we asked the court of claims to evaluate whether the contracting officer acted reasonably and in light of the face of the last excess proposal and did reasonably by failing to refer the matter to the s b a for its terminations there was no time where we asked the court of claims or this court to look at a size determination or to make a size determination just to determine whether under the circumstances it was reasonable for the contracting officer to fail to refer the matter to the s b a in our mind the difference between that and size protest is pretty fundamental because we weren't asking for determination it is true that that referral would have resulted in a determination but there was never a time when the claims court had to review or make one and i think that's an important distinction between the two different processes of a bit protest  more limited than tucker and they have absolutely no question that they have jurisdiction to deal with this specific issue that is when a protester alleges that the face of the awardees proposal should have given the contracting officer reason the question  representation that's all we ask for here and the claims court didn't reach that ground it said there was no jurisdiction to reach that issue because we didn't exhaust in a straight remedy but even judge them out even if it was a size protest and we said we did not agree that it was we think that any exhaustion requirement should have been excused because there was no remedy available to us the only thing we could have done is file the untimely size protest and work through the layers of dismissal to get to the court of claims and it could not have reached the merits either there was no way for us to bring a size protest at the time we found out about this issue and if the if the size protest avenue was at all if at all the contracting officers best value determination when the best tires are terminations didn't include size status as a factor well our point as it relates to the best we think that is a stage at which this obvious issue on the face of a less successful puzzle should have been recognized but secondly and some of this is under the protective order the we believe that even as evaluated because the decision came down to factor one we believe we were the awardee that was the best value given the constraints of the solicitation that the government was not going to make an award to a higher priced offer or for only slightly technical when her money i had not st exhausted s b s procedures for size protests our money is complaint here as a result of is sitting on its own right had a harmonious out of size protest with the contracting officer as is prescribe futility exception to exhaustion of administrative remedies is one that this court has applied narrowly and generally and circumstances where it would have been obviously useless for the parties to go through the administrative remedy process gun by calling this a church stiction question when all that you need for a big protest is a non frivolous allegation of a violation of a regulation and their allegation is not that  that they couldn't file a bit protest the allegation is that because of the regulations regarding size determinations the government had an obligation to request  determination whether that's true or not is a question that goes to the merits so why is this a jurisdictional question as opposed to something that relates to failure to state a claim or standing in in summary that regulation is that page nineteen no three of our brief and i'm happy to discuss why the interpretation harmonia put forth does not actually c to accept the representation which he otherwise must do shall and the last sentence of the regulation simply means that any challenge of an questions concerning a representation must go to the s b a clear last night we can make essentially a harmless error determination if we think there was jurisdiction and we can do that in the st instance because it's really just a straight up interpretation of the regulations that's correct your  regulation as a matter of it's point meaning does not warrant the result that our money is says it does which is that the contracting officer somehow was obligated to have preferred recognized would significantly undermine compliance with f d a regulation by allowing a plaintiff to circumvent the established timeframe for filing a timely size other than small sub contractor the name of that company is under the protective order in this case is simply based on speculation and this understanding of all the takes of postal and we detail that in our brief and pages thirty two through thirty nine assigned to her money of technical proposal for money is still provides no reason to overturn the trial of course conclusion that assignment of those risks was not irrational and said as the child appropriately recognize there is a lot of discretion when making technical evaluations and refusing to nd guess that evaluation was the appropriate course as it was amply supported by the record there was some discussion about risks associated with cross training and peer testing even  proposal the there was no error by the technical evaluation panel in assigning but they strength and a risk for the same proposal aspect that the agency reasonably believed could present both benefits and r for example with the cross training the there could be benefits by a four by eliminating single points of failure but there also could be delays to the action of having to cross train people regarding the strain extract transform and load the tool that our money references and everything before this court but the challenge there is similar even though harmonia contends that the agency should have understood his proposal to was not proposing to use that particular tool in the agency was grounded in its thinking that the tools compatibility with its systems could have caused delays and increased costs had in the end the assignment of these risks should be upheld in  couple of points that mr byrd raised a believe i heard him to say that harmonia could have gotten this the remedy it wanted which is over the size of a review by filing a size protest and that's just simply not true that as we discussed earlier the most we could have gotten out of a size protest from the s b a in terms of actually making a determination would have been a denial or a dismissal of our untimely protest the the contracting officer would have had an obligation as a sin that protests forward to the s b a but the contracting officer doesn't make this decision that we've never asked that he make that decision we've only alleged that under the circumstances he should have recognized that there was a question to ask the contracting officer being on notice is another point that mr b raised and there's no question he was he participated in the initial status conference and in every stage of the proceedings before the claims court and so if he was going to take action he had all the information he had the briefs he had the administrative record he had all the have taken the action and its own best interest well i think your honor we took the action that we could harmonia thought it could take and the only action that was available to it once it realized this oft subcontractor issue which we didn't know until we got the administrative record in the protest was to challenge the contracting officers failure to make to recognize the problem and refer the matter the f b i there's nothing we could have done at the quote under this regulation the c e o here was thus required to accept the awardees representations regarding its size unless one of the two exceptions to that rule was trigger as will be seen either those exceptions w as we live here always all we have challenge is the contracting officers failure to recognize that there was a potential issue that gave him reason to question less that the size of representation and that would have required to refer