and we've we've talked about that so far from this first appeal your honor deals with two mistakes that the agency made during the round two evaluation of this particular both of these mistakes are highlighted by this uncontested fact the total evaluator prices are the temps or the t e p s for both crowley and four x three are over seven billion dollars but the internal government cost estimate what the actual cost of this picture most going to be is two point six five billion dollars now why is there such a big difference between the t e p's and the actual expected price is because the agency in the solicitation as a multitude of line items and this idea i q by that it never expects to use but still included plug number quantities for them to get firm fix prices in case they did need to use them it is he wanted every potential origin and destination pair or lane it's called sometimes that i could think of covered in the r of p including by the multiple transportation modes and by various time delivery requirements which brings us to the first mistake the agency's failure to do a complete unbalance pricing analysis which is mandatory and i us because they are one of the most susceptible to on balance pricing unbalanced pricing occurs when a bitters pricing for some line items is significantly understated and other prices  higher than those of other offshores at sea on balance part of the agency's own analysis show that crowley significantly under price items not expected to happen much traffic and it bit higher than x o on the traffic more likely to be used but the agency after determining the us never dead unbalanced pricing analysis to determine the key issue the key issue being whether there is a reasonable possibility that crawley's bid what not actually of the government the lower ultimate cost considering both its higher and us lower pricing now shows what is obvious from looking at the basic numbers crowleys that leaves a reasonable possibility that it will not give the government the lowest ultimate actual cost of the government nor crowley try to refute this with mathematical analyses of their own and this circumstance the last clear crowley's offer must be rejected as a matter of law and i should sure the judges have noticed the all of the regulation so that the agency may reject the case law although not decided yet by this court is uniform throughout the eleventh third d c circuit and in g a protest on this ground was not timely the court a federal claims disagreed and it was correct the agency had to do to carry out a sufficient unbalanced pricing analysis holding and this fixed the thing that i think you probably clearly did have to complain about earlier which is the inclusion of of all the line items in that make up that well there's no need to complain about that they use historical pricing or excuse me quantities when they hold that is fix when you when you find that you have on balance pricing like it was here then you have to determine what's the probability that i get the benefit of that really good low pricing versus what's a probability i'm going to going to have to pay higher prices so i can these people so in that case in this particular situation even though they didn't have historical pricing for majority of the line items as they were lanes as they set them out of the four hundred forty thousand  who had to take a look at all right we do have historical practice on the incumbent contract which covers about ninety five percent of this job and so what is the break out there and that's what we've been talking about in our priest that breakout was about eighty five fifteen so once you get this the e p which you know by definition is giving you exaggerated numbers it's not right it's not fitting up to the actual cost and you see there's unbalance pricing you say ok is that then the area that i'm most likely to get really low pricing as we have here is that in the area are most likely to to be able to utilize or not and in this situation it's not so you just there are different ways you can do it we outlined some of those in the priest but they all end up with the same conclusion that the government has a reasonable possibility of not getting the best price  remains no indication of unbalance pricing well what actually did they need to do more in your view that they did not do they started out correctly as you pointed out your honor they went through it at the tail analysis right so we went out three in particular were way well the baseline they se now at that point they were meant to do the analysis that i just talked about they did not do that as their to have to pay in order to get my price i guess what's what's confusing me in trying to think about this is knowing what what is going to trigger a concern about potential unbalance pricing how what number should have been enough to trigger it and i think i just can't be sure why that is necessarily so and it is true your honor that the federal circuit has never had to look at this precise however bot and said ok that's going to be the baseline against we compare and see whether there is unreasonably high and low pricing order or if it swings back and forth you know it's a situation of of course it's and if if all of secular offerers pricing across the board was low there's no one balance so you get a baseline they did it here by averaging everything and then they see ok if it's just teensy weensy around it that's not going to be a problem either but when three and so it does make it a little less clear why one side is might be off base especially when there is some evidence that maybe you doesn't really matter that much for unbalanced pricing analysis what you said is your base like you're just trying to figure out how do the bright the prices between the offerers compare and one is way lower so definitely lower than what others are betting then you have to check it out because you've got an idea if you situation if you don't know exactly what you're going to bid you have to give that more stringent analysis and you do that by taking the test in this case by rather wait all right thank you your honor the second issue the same problem doesn't deal with the imbalance pricing but when it came to looking at the arithmetically you know that's wrong because it's three times what they expected actual costs going to be for the same reason i've just been talking so instead of a over six hundred million dollar difference that should have been one way to do it divided by three you're only talking about a two hundred million dollars difference that should have been traded off it was error not to do that  shipments and they superimpose what they believe the ratio for these two types of ship should mention be over the ratio that's already built into the solicitation but there's a number of our good number of flaws in this argument that have been identified average of those three and then determine whether or not each one was either high or low but they also did was identify the percentage that that particular price occupied within an offer or a proposal so if a certain lane were certain line item was three percent of an for crowley they demonstrated a clear understanding of the requirements of this solicitation and that stemmed from their ability to identify the specific percentages for each price in the awful words overall proposed and yet still have how does million dollars but we get to say one unit and the other bidder can say seventeen units no no you are these the units were sent by the agency for all of them and there were eighty line items to start with and then each of those items spawn as mr paper indicated four hundred forty thousand different prices now with those four hundred twenty thousand prices the agency use a sort of information when it was available for those particular routes and when it wasn't available what they did is they assumed that each shipment would be the lowest possible we can that and so if it was a five thousand one pound shipment going from little rock to albuquerque they assumed that it would be a five thousand and one parent ship and then so from those four hundred forty thousand prices it's gone up about eight hundred thousand what would trigger a concern here of unbalance pricing and really when you think about unbalanced pricing one way to think about it is it's an extension of the price analysis that had to be done for a fixed price contract again this is a fixed price determining if any prices are too high unreasonably high the on balance pricing argument takes that analysis and applies it to the various different line items so judge moore in response to your question they had they didn't a balance to the government is the risk of unreasonably high prices there is no if the government wanted to know the rest of andris of low prices of risk and performance and inability to perform do what you say you're going to do it could have added and line items or some blind items shall be analyzed and included for unbalance pricing which include significantly understating quote the price of one or more line items so i don't i don't understand your argument that it's  where you have to look at low prices it covers a case where there might be a price realisable where you're looking at an understanding like i said before the exception in a fixed price contract where you're looking to see if prices are realistic and it a analysis or price analysis to determine whether or not prices are in balance here in this is solicitation the agency only provided for price analysis so price analysis is the exercise of seeing if there are reasonably high prices so that's what the agency did it did exactly what the g two says it did exactly what the solicitations at now to get your concern with there ever be a risk that the government would would face the performance risk which in a fixed price contract is unreasonably high prices it only arises if you change the quantities in the solicitation as a mathematical it's mathematically impossible you end up with numbers and you making a decision based on the significant part on which number is higher that might not actually lead to the government in the end during the that therefore when you say fifty thousand of these units realistically it's only going to be two of these things and if you have a really really low number for that line it's going to do and multiply that that disparity between that low number by eighteen it's going to create a you know a really significant helpful contribution to being lower on the t v when in fact realistically you're only going to do two wit fixed quantities but it can't stop there they also need to figure out if there are sufficient disparities within some categories whether that will those disparities realistically will propagate through into what the what the government will end up paying or not well your honor again it is protected by the quantities frankly and here are the quantities even as x p that the government really did not even need to look at whether you know eighty five fifteen or something is realistic or that he or they didn't need to look at it but here there is no indicate if i'm understanding your question and certainly if there were questions about whether or not the solicitation reflected anticipated quantities that was something that x p o has been complaining about from the moment th had they wanted trance come to correct that and reflect a different breakdown that had to be done prior to proposals going in as part of their and alice's though the agency did exactly what it needed to do and went through every single line item and looked at where there might be unreasonably high prices that's what it's protecting itself against and ask us roars against all about all of those prices and many cases got adjustments where the prices came down and other instances it got explanations for why the offers prices were what they were and satisfy themselves at the risk the only risk in a fixed price contract that the government needs to worry about from a pricing perspective is that the that the prices would our analysis what my esteemed colleagues want to do is say just please just assume everything is accurate then when we put in these plug numbers and it all come out right you know that's not correct yet i agree with the posing prices for every one of these potential lanes that might be used and it was the the slants in which they were unreasonably low and balance well that they troubled them by saying ok three of your argument i mean what sort of the point is there they need they want to get a fixed price for every length even though as they say we don't expect to use all of these there's nothing irrational about that to do that you must put a number in there otherwise you're going to zero because that's what your real has sort of us what you expect or at least for half of our zeroes then you're not going to get a price for it right so there has to be some plug creating the risk that you're worried about namely that it's quasi fictional what the figures are in compared to what realistically the government will end up writing checks for look at what actual cost is what you what it's all about then maybe you need to change things they came back and said we don't need to change matter fact we took into account we did our trade off that that g d p generated difference is not the actual cost difference they said they were going to do it exactly the same way but they didn't do it and that's the cost of our protests i don't want to the next case