happened the first time at the veterans court was not the joint the joint remained was not something that created a remand in a box it's not something that the court just said and went back down to the hearing officer if you believe everything was done at the veterans court level but that's not true what was done at the veterans for government was a list of things were noted to be done by the hearing officer and it's uncontested though those things were not so we don't think that that's a basis for you all t process and it limited that in gilroy by stating their fifth amendment right to extend were no statute or regulation addressing the error that occurred and that is precisely what we have here there is no statute or regulation not veterans court is true it wasn't really the bettors war because this is the first time it's been raised i think this court can rule on the issue find a constitutional right and then going forward create some sort of credential mechanism that the the right has to be raised at the veterans for before it comes here and is completely analogous to what happens in the immigration context with the lozada principles and immigrant cannot raise for the first time an effective assistance claim on appeal he has to raise it where it went the first time but i think it's an f one for this court to recognize the right and then create a mechanism that the veterans court can hear motions for reconsideration or some sort of mechanism to create a a right to appeal at the veterans court level before it comes up to the school that would be and pretty intrusive course of action for us it would seem to me for us to be telling the veterans court to create a particular mechanism to describe the mechanism that at the veterans court level and the veterans court can come up with whatever mechanism they would require to have either a there where they could say oh we would like it rains at the federal reserve thank you thank you i think both counsel in up counsel for comin in this federal government contract case  what prejudice was for not doing that in other words you don't indicate what the revised bid would have done differently it doesn't this doesn't change anything about the basic contract it just delete some of the works but how would you have changed how would you have changed the bid if you'd been given the opportunity to put in a revised bit well what happened is it was mess yes they're lies because it would have been a rebid instead of the original bad no it wouldn't have been to replace the regulation says that if there's a change unless it's a change that would bring in  and the reason they're there out in the cold is that they didn't have that chance it could have had a chance and so they decided very abstract well but what we're not every is was a man that was only part that was left was you put in a series of hourly rates for different kinds of jobs in a fact the bid became a nullity because all the work was taken out of it and it became an absurdity too in terms of trying to figure out what what were these people supposed to be doing the answer is there was nothing for them to do because all the tasks were removed all they did  because this is what the government said in the minutes this event ministers not require the submission of a revised proposal the government will not accept any revisions to the proposal not  in bold so they're saying don't you dare even try to get a rebid and that's all capital never you which is essentially you're reading it differently and it seems to say on the from doing anything no matter how ridiculous was the fact that a quarter of a billion dollars of work going to the government didn't think there was a change and the only thing that was left were hourly rates then what they did ended was supposedly evaluate the work based on just the basic contract but there's nothing there to evaluate i went through this and the seventeen thousand pages there was imploded because they just wanted to change and what really really happened was in september everybody put the bids in four months later there's a corp there's an internal reorganization in the pentagon above bringing in another group and putting it together and they all decided they're going to do everything differently and you're quite correct with they should have thought and said ok guys stop we're changing the big stuff we're going to give you a new proposal and i think in my grief you saw that this isn't wasn't the first time there was a problem or a situation where the department of defense was doing the same contract went on and on and on and on and on couldn't figure out what it wanted then terminated solicitation then followed up with this but again they really couldn't figure out what they wanted to do and they failed to follow exactly what your honor said is if you make that the material change you're this situation on its own and i don't think that the bitters should be serving from the ones who suffer suffer as a result of this says you know the government yes they should have done was standing in terms of what you needed to do in terms of going forward and my problem with the the standing ruling is the way the court looked at the evidence it to the judge and get the benefits of the ruling because for whatever reasons lack standing you can come in and i understand that burden is quite heavy yes but that's why the of the burden is much lighter in terms of the of other approach in terms of the court should say you failed to allows an amendment and the remedy for that is to allow of many meant for for all the people that were involved and that's where the the award should be reopened so that they can do that and even though that some time has  of the happened billion dollars has been awarded there is only about sixty five million of which only about fifteen million has even been done so the the situation of what's happened since then is relatively minor  extremely slow you know wording so that you can go back and say ok let's give everybody the rebate or we can do a new solicitation and then the parties will have access to it because clearly are a relatively small fraction of the awards have actually gone forward in the governments will very very slowly in terms of what they're doing with this contract and i have no evidence of that because it was an offered but the what would have him up in the is in the original bid there were nine out of fourteen that were disqualified if there had been  rebid not only my client but eight others there would have been fourteen bidders again to come in and so all fourteen had already indicated their interest because they put through all the effort on bidding and getting teams together and so and so it is very proper to say had there been another opportunity to bid there would have been fourteen bidders instead of only five that were left when the government finally basic contract and then the awardees for the basic contract would be eligible to compete for the top supporters so the original contract had the basic contract and a separate evaluation factors prices the prices that the operators proposed were used in the evaluation of the basic contract and the reason for that was as mr q doug pointed out the basic contract was basically a schedule of prices and so the government needed to know how that schedule played out as a practical matter in applying it to specific situations that might come up so you're just to cut to the chase your position i take it is that the amendment five did not alter in any way the amount of the contract in that as i understand your position the contract had a minimum amount which was tiny something like twenty five thousand dollars or twenty five hundred a hundred dollars even less so you say that this i thought that the original contemplation or slice of patients the past quarter is one and two were going to be awarded at the same time as the basic contract and those test orders were for a substantial amount of money in th is that correct that is that is doesn't remember that was being awarded initially was substantially changed there was a huge difference in that respect right no no your honor that will only thing the change of the it was the schedule for that we're we're not going to work tasks p m c is that essential is accurate description of what happened here not entirely your honor and the reason is because in the hypothetical that  you proposed you're proposing essentially simultaneous simultaneous award of of all three items a b and c and under the contract there was the could have either withdrawn its bid it could have protested at the time either to the agency or to the court of federal claims there was there was absolutely nothing to prevent a comment from raising an agency of a protest or raising a protest of the court of the claim saying that  what we submitted and bring ourselves more within which is a solicitation that is if that is correct to a point your honor but the reason that that argument fails is because  the court prep a pointed out commented that has not shown how amendment five would change its bid for the basic contract and of course as i explained amendment five changes nothing about the basic contract and it certainly does not change the valuation for the basic contract and common to receive a marginal rating which is what disqualified it from award on the basic contract so whether the task orders for real house quarters or sample pass quarters does not change the proposal that sufficient grounds to demonstrate how the agency erred in that event in evaluating common offer it has merely said that this and that its rating was wrong but it was given that rating because it had eleven weaknesses in significant weaknesses in its proposal at the agency and the solicitation provided that one weakness were significant weakness not offset by strengths would warrant a marginal rate in common and was essentially required to demonstrate how each one of those weaknesses was incorrectly determined by the agency and it hasn't done that and for that reason the court correctly  finally we would request respectfully request that the court strictly not record documents from the joint appendix that were submitted over the government's objections these documents are not part of the ministry of record they w not submitted to the trial court as part of the ministry of record and therefore they should not form a basis for this court's decision as they did not form a basis for the transport journey one ticket or a procedural reason which is strike them as opposed to simply which is really part of a recognised we hire feel competent to determine what's in the record what's not you pointed out your position that these are not hard records and i'm a little unclear as to why in this case unlike many others  come in when you struck your honor in this case we feel particularly strongly because the trial court struck these documents in the first instance it determined that these documents were not part of the record these documents should have never been  of the record on appeal so if there is a dispute as to the propriety of that evidence being before the trial court then there's nothing wrong with putting that evidence before us for us to  doug yes fun time in blue and gold the language in blue and gold that is appropriate here it says we also hold that a party who has an opportunity to object and does so before the close of the bidding process well there was no opportunity because of the bids were all in in september of two thousand and ten amendments five came out in january of two thousand and eleven five months later we would have to be have known what's going to happen five months later and there was no opportunity because the government prohibited and any kind of changing of your beard or doing anything like that about a protest i mean they didn't prohibit you from protesting they can well and this is the protest that would have come after amendment five was vicious yes but the the protest was to get a rebid but i think it's reasonable for the contractor to say look what the government saying with the big not and old said don't don't even try to do anything in the government or you in your protests would be that not  yes and they and you could have taken yes and the problem was my client believed with the government said that that there would never be a rebid and i think that was for a mistake and i don't think the government should profit from that mistake fixed it was what if the government picked up a project it was that a fixed price that was a house resulted in him and they had the option of saying well there's no work under this test they could have done