the way it appears on the map so much trouble please proceed may please the court the government's appeal in this case is about agency discretion the court below abused its discretion in two ways first by denying the motion for voluntary remand and second by ordering permanent injunctive relief that precluded the agency from pursuing lawful turn of the agency conce ain the correct facts and make a determination based on the correct record with the court denied at this opportunity stead pressing on to make a determination on the basis of that which remains unknow mitigated after you fail to mitigate the first two times you're out of the question at this point is not whether we can mitigate now that's a basic misconception here is that this is some sort of an attempt to mitigate after the fact that's not the question he question is whether you know c i actually went unmitigated in the first place be essential question is whether or not let's remember the facts you found on a first investigation that there were four people who may have had access to the wrong information it turns out those four as you properly found out were firewalls and it was fine it was the twelve you didn't find that had the waiting and the government believes that it should be able to conduct this investigation isn't it just admitted error absolutely absolutely out of the government are no uncertain terms as admitted that a factual error was made and the record is not correct understands it to mean that it should not and cannot go back and do a better investigation at this point ruling below was that the proper remedial force at this point is to go all the way back much further and set aside all of the proposals get new proposals and determine now whether it can be mitigated to pave the way for new proposals this is not the government's only option the government has a variety of a lot of approaches to addressing this problem and one of them must be to do a better investigation there's no reason why that opportunity that lawful approach which is conceivably available to  investigated you failed when you mitigated and now you're asking for a chance to fail again why don't we see the things the way the court does which is just to say once you've got a mistake of this magnitude a major conflict of interest let's start over let's clear the decks let's not have tainted air hanging in the room let's start over theoretically possible that at some point the court to decide that the agency has no discretion to act in and to further investigate or to act in any other manner but unless the court can find that the agency can and does not have any discretion to act in some other manner the court must say that and not order the agency to undertake a particular remedial force rather the agency waited six months before it even asked for the is that an indication that the agency is anxious to exercise its discretion and go out and do good is the white knight here the timing your honor as we explain correct the facts get the record right and reconsider three months is not an unreasonable time period but more even is as important as that the argument months after money the year if you learn the year wouldn't you immediately lea up and say oh i'm sorry i made a mistake here give there this back to a small get rough that doesn't happen for six months not necessarily if you're currently in litigation your honor you defer to the to the to the they admit error in any point even if it's your responsibility to take oh i don't think that's true and i think that i think that certainly i wish and i think that the government wishes that it had immediately recognized that the right thing to do here on march third or even march second was to say right away we're going to get the facts right and then we'll do this proceeding if it's still an issue it didn't happen and so what's that what's the consequence of that to show right ways far more heavily in favor of getting the decision right when the litigant who is opposing the motion to remand is not being harmed rather in this case where that star one continues to perform to this day under sole source bridge contract it is not being harmed at all by the delay or it is the agency that has the greatest incentive to get this resolved as soon as possible but more important than that is getting it resolved correctly and that's what the agency sought to do here by reinvestigating the facts the agency would have known whether or not this award was tainted or wasn't and that was a choice of  morning made pleas to court douglas patton for the interview or a long below or like to address your comment chief judge or either we believe that the lower court made a legal and factual error in finding that there was significant o i that not been properly mitigated the linchpin of that there was its conclusion that the remedies relied upon buys a contracting officer and finding that any potential c i was properly well this this one's explained to me why is potential that the mitigation plan seems to have failed and we've got the wrong people firewalled the people that should be firewalled aren't and they're that the ones who seem to have access to information compromises this explain to me how all of that is potential because all of the of employees under the three prior contracts performed by a long had to sign according to ice procedures non disclosure agreements where they promise not to disclose any confidential information t to anyone in addition osprey contracts required that those employees undergo annual security awareness training where all these procedures which were in place for off three contracts were followed and if you look at the separation of miss morale it's nine one she addresses appendix a crime one of these twelve employees who are not for originally identified and she said well we have four other sources of evidence to show that these employees did not misuse any confidential information we have evidence that all a line a line employees including them sign non disclosure agreements they also had agency of representatives signed after that duration saying that was a standard practice they also had the information that all employees underwent security training under the ice employs in addition they had the information that none of the a lot of the non disclosure agreements he and you would know your honor we do not believe th what the contracting officers technical representative miss rouse that night and one is concluded that there was still no evidence of an unfair competitive advantage because there's not a ounce of information in this record but under your firewall procedures you still don't know who has access to what information that is absolutely correct and that's consistent with the ice procedures which require that employees not to disclose to anyone what data they've been given access to that's entirely consistent and rational and what you have here how can you monitor improper disclosures well first of all they have a procedure with then ice that we quote in our brief that requires any breach of those procedures has to be disclosed immediately to the ice representative so if any accidental or intentional misuse of that information have to be its close then how come we only knew we had a dish in your initial investigation you put forth four people and we found out of course they weren't relevant to doll it was the twelve people you didn't get the spots were around the world for that we believe were relevant but there were other parts of th existed during these three contracts they were not adopted after the fact there's no factual dispute about that just not a single fact in the record that a single a lot employees  we can have a rebuttal mistrial may please the court i'm bill severino on behalf of that star you're struggling with mr pattens arguments because the problem in this case is far nine point five the trial judge found a violation of far from nine point five four nine point five is the linchpin of this case we can talk about all the mitigation efforts we can look what the c this trial judge was sensitive to nine point five because he found a follow the law and one point five says that the c e o had to take a look at all these o c r as well before the contract award this case is very unusual because you are as chief judge rader suggested the trial judge confirmed that you've got a situation where these o c i significant o c s were found after award per se violation of one point five how are you supposed to fix the government and mr patten would suggest that you can fix this with some band aids call declarations after the fact but nobody can go back and fix the problem that the violation of nine point five created because nine point five was put in place to say you shouldn't even be at this point in the process you've got to fix this prior to award that's what this whole case is really all about and i think that's what really bothers judge allegro you saw some other evidence in the record that you can take a look at as well to suggest that there was a complete abdication of any responsibility by the government until finally called to take action i wanted to just put some context to this case a little bit for you in important distinctions case i'm reiterated again because it differentiates this case from all the other cases that may be out there in was with respect to these o c i has is that this was an actual significant o c i no doubt it is a this is the letter that the c e o soon too a line in december of two thousand and ten i'll just read it to you you can pull it off but you need to after completing the reevaluation process the contracting it well i'll give you time to take a look at it at the bottom of the of the letter judge please go ahead well i think which an important to note here is that there's no dispute that a lion's employees had access to net stars fully loaded labor if there's no truth and there's no dispute that that access was significant because those labor rates were the differentiator in the price evaluation for the government so we had access to those rates we have those rates being significant in the award decision there's no question that this access to those rate we're sitting at significant o c i it's also significant to know that the judge you know i've looked at that argument and i'm saying well how do you fix a nine point five violation if nine point five says you were supposed to do all this prior to war because if you don't you're going to taint the process how do you fix that after the fact and i think that's what judge allegro said and he said i've gotta send this back to the beginning i had once i have the knowledge put the genie back in the bottle and you you know patton that will be a multibillion if you can put the genie back in the bottle and that's why nine point five we don't want to passionately as if there is no evidence in the record that any prejudicial information was ever attributed to any our lawn employee or that there's no direct evidence that this salie have to say that because that's the only defense they have to this but that's not what law said take a look at turner this court decided that you don't need to have hard facts showing prejudice all you have to do is show hard facts establishing an o c i existed and that is already been admitted by the agency so in this particular case the prejudice is presumed not the o c i o c r is or even admitted by the government and clear so you don't have to there doesn't have to be any proof by anybody of an actual violation as this court said in turn and there's no way you could monitor that because under an a p a standard you'll never know what these people are thinking  says to us this is the government's call the government should have an opportunity to do its job and the courts taken that opportunity away from the government and kind of step into its place peas on the plate and figure out some stuff you can't go back and put that genie back in the bottle it's out there you can put some affidavits together you can do you can maybe put some purported far wall together but if that's their course well to know and i'll tell you why you're relying on nine point five you have to stick with all of the provisions certainly and yet a waiver is a possibility for the government but at what point and by whom and when a we speculating it's what the government's going to do we have a record which a judge made a decision and a waiver is not part of that the government as you indicated knew that there was a problem with the affidavits there was a problem with a long time ago if they wanted to effect a waiver they had every opportunity to do so now the record is complete and a judgment has been rendered on that record and they have to live with that record they can't come back at this late date now and say you know what let me take it all back i'm sorry let's just sir we'll put you through all the litigation let me go back we're going to put away from the the record does not permit them to do that because the judge didn't have anything before him at that time and really wasn't any substantial of response from the government government decided to take the risk of them on the decision in their living and i would also add that you just don't put away the place i mean you have to this regulation says it's got a bit of very high level it's got to be approved by a very high level and i'm going to argue because if the argument from the government is we could or should have what or maybe i'm going to say the reason they didn't do that is because nobody at that government would put there nobody but agency would put their signature on a waiver with these kinds of fact on the r simple as simple as that because this record is atrocious when it comes to this particular o c i you'll hear if you haven't already some legal prognosticators talking about this case and they refer to this case as the recipe for how not to deal with  i and if we take a look at judge a legace decision you'll realize that the agency did everything wrong in this particular case it wasn't this is not a case where the agency tried to comply with the regulations it tried to do its best effort did not let the o c i exist during the course of the german which nine point five says it has put next starship information in jeopardy it painted the entire picture meant and they come back and they suggest don't put a remedy in place will take care of it for you that doesn't fly in the a p that's our position on that so what i want to do is just briefly touch on the remedy because i know the remedy was an issue that was raised by the government and briefed you know remand is not a presumptive remedy in this particular case under the tucker act the court of federal claims judges have broad discretion in deciding what remedy that they should place this court said in turn or clearly if a significant o c i goes unmitigated during the course of her performance serious remedial he gave the agency the discretion if they want to go back and do it right anyone can still play it so the remedy is not as broad as the government would argue he just put it right back at the beginning and say do it right if you wan anyone you can do that but you've got to do it right under nine point five of the far and if you do it right god bless you but you've gotta do it right the way i read the injunction is a law on i'm joined from performing on the contract on the contract to vitiated the contract but not on some future contract in this picture even though they have the information well i may have something to say about that but the agency has the discretion if it chooses to go back and do it the right a substantial and unfair competitive than it has been obtained that is the ultimate question and that's the question that the agency wants to go back and get right the investigation that the agency did may not have cleared the air what the claim the entire nesters entire case is built on what we do not know the agency is not required to assume that bad things happened just because they couldn't have the agency has the opportunity to take that approach if it wants but it cannot be forced to assume that these things happen is a c must retain the right to get the facts right and make a decision for itself based on the correct facts and for these reasons we respectfully request that the court reversed the