and just a little more than an hour from now local time we had a national emergency on the island a lot this is a case about national emergencies in this case the national emergencies fairly significantly after the contract which my clients we see was terminated by the forest service we had contest and that termination determination is proceeding hundred a different statutory regime the case here is a pending protest determination is a contract disputes matter there are two different act in a protest a protest is a matter in which the forest service here terms the record submitted to the record to the court and then you argue from the record for service and submit a contract  a matter where both parties participating in construction of the record and the judge as opposed to an a p a review which is what this case is about in a contract  well i would point out the obvious if it was just a framework what in the world are they terminated because they don't want to use the framework anymore but we are using other than the other frame around the school busses work if the but they are not sure that's the case but that seems to be from the facts that we have before us this was a series of contracts where you purport where you propose a price for a specific dispatch and then when an emergency comes about the forest service picks up the telephone and calls the crew carrier contractors and ask them if they can meet the magic phrase estate in time needed and they proceed from the lowest price first now what the court settle claims was saying in regard to the not contract is that when the phone rings you can pick it up and decide not for not to respond only way with this instrument trying to characterize it one way or the other the only way with this instrument you get an opportunity b claims go yes yes you want to have the united states has an extension request and their response to the complaint is not new until sometime in nation makes this appeal moot then the united states is basically saying anytime somebody takes an appeal from the court of federal cleans to tomorrow and we don't like the potential outcome of that appeal we'll get rid of that will terminate the bloody contract that's just plain wrong this was a live controversy and that's a lot of controversy not was standing the fact that the forest service and for claiming to be alive controversy if as you just told us the only way that any obligation arises is if they pick up the phone call and yet they have now terminated any agreement under which they would ever pick up the phone call but they have now said we're not making terminated any agreement under which they would call you again correct so what is what your complaint our complaint is based on the prices we have if we hadn't been terminated we would have been call and this would have been the rates that they would sorry i'm jumping ahead that what they have said is they're not going to make any calls i'm trying to figure out but what the ability to receive that call is an opportunity to folks to fulfill the services required by the united states what is the damages and a lost opportunity there and they've said they're not off it's going to use this system they are they are still using the instrument that gives us a right to seek that relief from the real relief for seeking is either reinstatement or damaged both of which are available remedies under the contract speeds that few from dir good morning to you judge a judge in a please the court i think the first thing i'd like to address with the court is this question of cruisers is the case on appeal now being moot because there are no longer part of the  blanket purchase agreement as a result of whatever this court decides in the instant appeal isn't going to make a difference in this court cannot afford relief in terms of saying that the lower court was incorrect in finding that the government's method of using the in the blanket purchase agreement which by the way they haven't been appealed the question of the b p a the sole question that cruisers appealed before the  whether the lower court was incorrect in stating that the use of agency call operators pursuant to the reciprocal fire protection act was a valid underpinning not that's what the lower court said my friend on the other side his appeal is that the court was incorrect because rather than relying upon the the reciprocal fire protection agreement act that instead the the fire service was that we filed our our responsibly so apologize for any confusion subsequent to us filing our brief in stating that they were not seeking reinstatement cruiser's filed the second amended complaint seeking reinstatement so at this point at this point there they are the i don't think the court of appeals has the authority to act on that on that question at all or on that other case at all because it's not it hasn't even been decided yet by the court of federal claims let alone has it been appealed to this court of federal claims could provide non monetary relief but under no authority to reinstate them to the contract but if they were reinstated just for the sake of argument what they would be reinstated to is the blanket purchase agreement which they accepted which includes the the agency cooperator preference because that's been in effect once they lost their big protest they accepted the b p a which the b p a itself is not a contract but they accept there's an area of play here because in the in the very process of appealing they were under by the government by removing them from the b p a program there doesn't in terms of a question of bad faith or anything like that our position is that the government hasn't shown any bad faith and in fact that question is not is not before the court but again whether fair or not i guess the the law is clear in the sense that you have to have a live controversy there has to be an ability for this court to provide relief to this particular appellant and it seems that the trial judge has no authority to reinstate we're not aware of any authority that will allow a trial judge in the pending complaint to simply order reinstatement of cruisers to the b p h especially when the b p a isn't even a contract you know this isn't a question of cruisers got a call under the b p a and said hey can you respond to this site by x the next time and while they were in the process of responding that is under the conference because that's the only time when you have the contract once list and being called us as chief judge ray to put it they're not going to be called any more help in buyers there are all this of multiple other sources that they can call and they decided bill they decided that or for or certain reasons and we'll need to get into them here but performance type issues they decided they were going to use cruisers anymore so cruise is no longer a part of the b p a moreover cruiser cannot espouse its cars on behalf of that that that terminated the fact that there was going to be a contract your circumstances have changed to the extent that cruisers disagrees with the forest service is terminations of them from the blanket purchase agreement they have a proper cause of action this goes back to the fairness question to drain and brought up they have the opportunity to take their cars in front of the trial court and obtain a judgment there and ultimately if they're not satisfied with th matter that was before the contracting officer this is not a lower court appellate court type of activity and that contracting officer the forest service contracting officer under the acquisition regulations forty nine one zero two and it's the explicit authority to reinstate the contract now whether or not this successful we don't yet know what we do know is i don't see how this court can possibly decide that you're going to lose and you have to decide that i that i lose in the court that doesn't help you well this case here comes not from what the contracting officer decided this case comes from the corner federal claims authority to review the solicitation for these blanket purchases agreements and the issue here is whether or not one part of that lank purchase a if we're successful here and if we are reinstated then there's two more years on this contract where the forest service if we're successful here will be