rather unique position because what he did here is before filing suit he filed the foyer of qwest and based on the information that was revealed during the four requests there were clear indications that what the judges complicated than that and that that brings that to important but what's more complicated because if you're on it it's not just about prosecuting it's about working with carriers to provide a technical solution on preventing calls and i will i will preface all of this is that these are technical complicated solutions and that's why that we had two of the three judges who are technical people who are technical solution is a little different it's really a tracking  re those who do not receive the award these hundreds of people who provided suggestions who are known to move to selected is just that there is no because in terms of content there that the the judging criteria or the rules of the contest have not been followed then that is a party in a right to challenge the contest in court the johnson versus b p oil case is a classic example scores for a strong preference for solutions that worked on both types of phones both wireless and landline phones and it's clear that the judges and this is clear from the deposition testimony that the judge ignored that requirement and the third is also the numerical score and if you look at the way that this process was developed the scores were only applied after there was some selection and when doing down of anything in the moves that required a new mirror the support for each of the with respect that's the only way this can be feasibly done and judge belvin and his deposition testimony acknowledge that you had to score and it was required by the it was required by the rules of the  with respect judged i don't think we are the score set out three categories they put numerical weight the first category doesn't work is worth fifty percent of the score in the end the judges applied numerical scores and in fact and i think this is the the submissions will be scored what will be judged according to the criteria and the criteria by necessity include numerical scores and that and judge belvin acknowledged during that his deposition that the scoring is required and  the judges actually one of the judges actually scored mr frankl submission they gave him one of the top scores in fact is a score that was equal to a score of one of the ultimate winners now only when the judges implemented this new filtering requirement after the judges noted that this process was untenable that they had too many submissions that some of the judges were only working on weekends only after they implemented implementation of that voting requirement that mr frank honor i think anytime you have a way to score a contest and of judging criteria include numerical categories fifty percent twenty five percent twenty five percent that inherently and necessarily  not the judges can apply its own interpretation of the rules meaning that they can't interpret the rule that's contrary to the plain meaning of the contract and this goes to the just general interpretation of this contract and the most reasonable and in fact only reasonable interpretation the contract is when you set forth judging for a period and some of them are ignored such as the big categories in the numerical categories that's a violation of the rules otherwise you're left with the process and this is what this process was we left with a process where they find out there are too many submissions they have a staff or categorize the submissions within three days after the categorization by the staffer they select two winners who just happen to have the same score and only after that that they score then to figure out here but in addition we have to make sure that the agency complies with the rules and here they are there was no compliance there was complete ignorance of the requirement that that submissions work for both types of phones that's readily admitted during the day in the deposition testimony and to get your answer specifically there are several forms of relief that we can remanded to the trial court for a full trial on the issue the context rick nobody would be in a position to know your client may prove up where he was but i don't think he's ever going to be able to prove these are the other candidates that he's exceeded the years whatever they did to him he did to the others option there's nothing to prevent this contest from being classified as a procurement because the activity is clearly soliciting the services of individuals to provide them with submissions he said there's nothing that would case law support that when you have these prize competitions a contract is formed and so there's clearly a contract and are our point is that we've shown a breach of the rules and once we've gotten to that point is that why what's the remedy and if it's a contract it could testimony that post contest the briefing about what that process was and what that process shows is the judges reviewed all the submissions all two hundred sixty six of them each of the judges independently did that they did express frustration at the start answer that two ways never want that idea that there was a filtering requirement imposed is merely another way of saying when the judges thought my solution would work in a limited it that was not in accordance with the rules it's merely going back to the criterion the jerk because it wasn't walking well so that argument is raise that was a little bit more than merits and i'd be happy to answer that question mr frankel solution is what the judges call the traceback solution meaning it traces the multiple hops between the work yeah because it would  type jurisdictional and force minimal type carrier cooperation it would require private phone companies to disclose all their private information and provide access to the government the judge just didn't think that solution work but they told mr frankel that his deposition and mr frank at the end of his deposition said i'd read the judges that weren't being unfair they're not biased or not me nefarious they're not acting with malice they didn't commit fraud they didn't act in bad faith it came down to a technical disagreement and if a fine now because in the rules doesn't at least gover that there's very little else it would guard against because when a contest rules say the determinations of the judges are final in mining and you just say i have a different interpretation of that rule i'm going to bring a lawsuit then you're brenda ring the fin important because the f c c when it decided to proffer this contest did it under the impression that they wanted to stimulate innovation in the private sector they wanted to get people interested in the problem they anticipated a lot of people would supply solutions and there would be unfortunately many losers and so you had to have provisions that hey look you guys are all smart people you guys might disagree with what these very accomplished academics and people in the industry think but their decisions are final and you agree to that mr stated was when by the usual sense of the parts you decide that a certain individual will be the decision maker and those those determinations are final that determination is binding unless you can show gross mistake necessarily implying because anybody can disagree a number of people can disagree about eight hundred because it had contestants in this competition and mr frankel is probably not the only one that disagrees with what the judges did this on will panel may disagree but at the end of the day we have to enforce what was agreed upon in the rules because this is what the f c c condition the contest on not only that but there was a release clause that said if you are the one condition of applying it for a solution in this contest is that any liability arising from your participation in the contest you're waving that is one condition we know there are going to be a lot of interested people we can't afford to have these competitions if every time we hold one we get hundreds of lawsuits and if defend all of them speaking of which this is outside of the record but is this of common sense sometimes the private sector does things better than the government can if you want to tap into that knowledge and one way to get people interested in solving problems common problems is it give a little prize give a little reward it's a very cost that's why these clauses have to be in force and that's why the f t c envision putting these in as a condition for contestants participation in the contract even assuming we can ignore that the solutions are that they're the contest rules just did not contain these and he couldn't point to anywhere in the rules where it said every solution would be score and the fact the matter is it's because the rules didn't say that he had to cobble together three sections to get the suggestion in his mind that somewhere along the lines he believed every solution would be score principles the contestant was robbed of being judged and with this come there are certain examples that mr frankel provides in his brief for example flipping coins throwing darts on the wall those would be clear violations if that was uncovered in this case a persuasive phones and they got outcome determinative well i'm sorry that was vested to the discretion of the judges and everyone understood this going in you can't nit pick with the rules when the judge when all the evidence shows that the judges when they were carrying out the rules and carrying out their function acted in good faith tried the best they could and mr frankl acknowledged and his deposition these people are reasonable or reasonable people with reasonable integrity generally this this procedure was kind of a mess and it's nobody's fault but they got contemplated the uncertainty and said look there's no strict criteria if you look at the rules the contest criteria on page forty six of the appendix almost everything is a value determination how well does it work in this way will it do this these are all factors you consider but ultimately all that decision making is vested in germany of the judges when the judges were deciding to when it went down to the filtering category they were discussing all the solutions they saw fatal flaws in all of them across broad categories they specifically told mr frankel look trace backs just won't work there's a lot of problems associated with that including multi character cooperation access to private data jurisdictional enforcement a lot of these calls from there come from third world countries where they have no interest in enforcing american laws against their indigenous people just doesn't work that way this was the determination the judges made and at the end of the day we might argue well you could have documented it better you could have had more document you could scored everything even though the rules didn't express the you could have done that but at the end they've critical question is when the judges did what they did was anything in direct contravention of the rule such that it would rise to the level that would offend the judging process critically offend the judging process the examples that mr frankl raises are not even close to this case he talked about a dog show where you awarded the prize to a poodle in a german shepherd category this is not even close to that just like you design that he didn't originally proposed what the court said is hey look this is not a particular mint contract the contest contract ended when they awarded you the prize money if the government wanted to procure your idea after that they would have bought it from you and then chose license for solutions but what the rules make clear is all intellectual property rights remain with the owner the inventor when you submit your idea the government is not claiming ownership of it it removes all intellectual property rights remain license where you can call it under sixty three o three and acquisition of a property or service but also really has to come down to what's the principal purpose is the principal purpose of a contest to acquire a property or service we know that's not the case here because it's baked into the statute what is the principle is to stimulate innovation in the private sector to and the government gets no benefit out of it i mean this guy comes up with the terrific solution to the problem  he just walks away with it make him fifty thousand dollars you know i'm not sure if the f t c has been working on it for years i mean one reason why this competition was promulgated was because they wanted to get private sector ideas now the f t c wanted to get it for themselves so that they could use that or you know you know the f t c in the aim of the f t c was not to get the best idea and ultimately purchase it or gain ownership rights from the inventor it was literally this idea that if you get the public  private sector interested in solving public problems it just benefits the public in general  that would fulfill the first prong of the statute the next prong is it would have to provide a direct benefit to the united states now here this is in the language of the statute or i'm sorry the language of the contest but it was to advance the agency's overall mission hi mr cited this advance of the agency's overall mission is an indirect benefit it's not a direct benefit and indirect benefit is to stimulate ideas in the private sector and have them develop at all separate and apart from anything you see yes when you can pull together the private sector knowledge to address the problems it's a very powerful tool to combat a very serious public problem that he doesn't govern how that's done but if you can get people interested in it on their own volition spending their own time now th could have entered into a procurement contract with a contractor and say invent a hardware solution that does x y and z and maybe even do performance be specific ations or something like that by and large that would be far less effective than what the contest  which is you get eight hundred people just thinking about a problem you pull that vast knowledge from a very been studies done in terms of the impact that i believe mr frankel cites of white house report i believe the reference or and studies and there i haven't personally read those studies i haven't read the white house report and it cites data suggesting that this is a very innovative way to get people interested in idea and they've generally seen and this is one thing that was cited they've generally seen that people outside the industry actually provide the best ideas because they provide a fresh you don't this is what is a question you don't have to you don't at all you don't necessarily have to i think it's still an important question because you have a contract there's no dispute that is a contract and there might just be a breach of a contract but it might be a contract that doesn't fall under the but our position that is that it does so you can reach both issues but i would like to emphasise and i think this is a really important point that for the facts of this case is that there's been just repeated statements that mr frankel's solution doesn't work and that the judges told him that it wouldn't work all of this is after the fact the only evidence in the record about mr frankel submission is that it was scored as one of the top submission it hides one of the eventual winners that's the only evidence with respect to the viability of mr frankel submission whether worked and whether it was scored and that's why would you want to do you look at the no your honor with respect i think the easier and the better way is to remand this to the trial court get a full record remember this is on summary judgment this is just a small snippet of the record that was filed in the summary judgment motion by mr frankel pro se and we think there's a lot more evidence that supports our case all of these questions about the viability and the usability of mr frankel submission also to the facts that need to be developed you know we've gotten past the point where i think that there are rules violations of these criteria and i think when you look at rule nine and when you read rule nine in the contest it says this it specifically that the submissions will be judged and the following rule rule ten describes how they will be judged and it has  if there's if there's evidence in the commute judge to determine not to be a judge i know if there is evidence in the record that a particular submission was deemed unworkable i would agree with you but there is no evidence in this case and the only evidence is the single score for mr frankel submission where tie one of the eventual winners so this isn't a case where it actually his submission was deemed unworkable if you look at the deposition transcripts carefully and every single one of those sites believe aren't on the red briefs of page thirty every single site is a generality about a category of solutions that they think won't work the so called what they give no specifics and this is all contravened by the only point of evidence that says that mr frankel submission was the top score before they implemented this filtering requirement and also that point and i agree with my colleague that these are important mechanisms to get ideas innovation the problem that we have and i think the problem everyone will have is that if there is no transparency if agencies are allowed to change the rules on the fly and there is no way to review these cases it will undermine the confidence in these systems and that's not the way these price competitions