with or option years to what we are is where is it because the contract been completed it's still ongoing as far as i understand the contract is ongoing that was awarded to golden state so there are different the other option of yours will be picked up by the government i don't think there's any indication one way or the other but it typically is the case that the option years have been exercised by the lesser summers not to continue  so there certainly is the expectation that this contract could go on for a while the c i t case is still hanging at the request of the ceterus the c i c case currently stating for a resolution of this case referring to the years it takes for a case to wind through the appellate process to the supreme court with the court of federal claims was looking at was a procurement that was going on right then and there it was no concern that the court of federal claims wouldn't be able to receive and decide a protest if a centrist had actually been injured or is actually injured in some future character but the bottom line of this appeal that we don't want to get lost is that congress ga that if it is not wholly manufactured that the test is substantial transformation and that's why this test is just referred to as the substantial transformation test because that's the key part of it that's what's getting disputed that's what's getting ar or no pills are manufactured it depends what you mean by manufactured here on here don't get a pill from india whatever india sends us it's not a pill as to the facts here it's absolutely clear that you're right the bulk drugs substances will comes from india it's not in pill form pill form is made in new jersey and they add other things to it manufactured here in the united states and elsewhere as described in the in origin is just one way to qualify under the statute but that before even looking at the statute under the regulations implementing that same statute the court said there's an alternative way to call and that's what inconsistent with the statutory scheme i think some background on what the difference is between the buy american act and the trade agreements act and why the trading some of your position is that this pill is a product of india right that's the that's the ruling that c b p forgets your position here today right yes why is this a pill that's a product of in the i don't understand that in light of the statutory definition or of the language of the respectfully your honor i think you that you wouldn't wait for the court of international trade to rule on that and then pretend that it's a state that case a state but it's not the fields right now this appeal is not from the c i to this appeals from the court of federal claims and that's an important conflict with the language of the statute we are i don't think it's in conflict at all and so here's here's why it's correct they've the relevant part is substantial transformation it's not only in either place substantial transformation is your standard for when you look at substantial transformation of cases have analyzed whether there's a change in the character you the essential nature of the chemical and so c b p festers has for many years is a substantially transformed in india the pill doesn't even existed because it's not about the pill it's about the bulk drug substance it's about the intel there why because when you buy so suppose you buy generic the end product that we're concerned about the pill we're not concerned about what in the end we're concerned about what they're selling which is a pill and that right exactly but if you buy any number of the different pills what you're really after is that ac suggest at all that that can't be fully reviewed in the court of international agreements we're proceeding on the assumption that were rejected that argument and that's up to us here and now to make a determination of the construction of the statute ok please tell me why the statute is concerned with the active ingredient instead of the final product so in other words we don't care what the c b p said for the purposes of this case so answer the janitor's question it's because the determination of light is not substantial transformation you look in the cases at what substantial country of origin under the trade agreements and you're looking at the question of substantial transformation and so you're you're asking  if it has been substantially transformed into a new and different article of commerce with a name character or use distinct from that of the article or articles from which it was so transform this big protest the character of it is not change the essential chemical makeup makeup of this bulb to obsess of this is not changing when it gets put into pill form and then the use the use is not changing the use is the same from when is the b very pill that these people are trying to sell to the government i can't buy that pill under the statute it's a product of wherever the last substantial translation was if that was india no matter where else it goes in the it were rejected and i'm on hypothetical rejecting your argument that the issue is what the active ingredient was that the pill is the product the pill under that assumption is not a product of india correct i think your  assuming the ultimate issue in that case i couldn't disagree with you if you're assuming that the pill is is the pill i devised in the pill is the pill you will write but you're not i really would encourage you to carefully considered whether the court should be deciding this now and i haven't not listen secrets of the cons you made i don't even think a ceteris is claiming that this decision is for the court right now they focus on the picturing agents and that's really the issue here is whether there was a separate  it's pharmaceuticals whether involved these parties or not that the government was misinterpreting the regulations but it was the court's own interpretation of those regulations is not consistent with the statute by saying that the substantial transformation test in the statute is just one possible way to comply with that very same statute the court is interfering with the statutory scheme the court didn't recognize that the  prohibition that's also in the statute well you certainly start out in your brief saying that and this is an opinion the court of federal claims that richard issued it upsets the law d contradicting the plain language for a moment if i may why is the v a delegating d to the c b b or c p b which ever that is the decision on what the statute the agency to say well you're saying doesn't make sense to me i want a decision from customs or something or whether to irrational and i did so always rational for somebody to pass a tough decision off to somebody else if they can get away with it the question is can they get away with it why can't why should the v a make this decision it's their problem there's no player contract there's no question that the v a did make that decision but they are they bound by it's the same way that if the decision had been affirmed by the court of international trade or this court the supreme in court this is the computer agency can certainly rely on it then why can't they rely on it just because it's at the administrative stage they can't it's the law they can rely on but that doesn't mean that we have to wait for the c p b decision before deciding whether they were right i think is it as a technical matter is twenty eight issues is this issue that was very decided in another proceeding we still get to decide it right there there is no reason why we have to give the agency's determination deference or refer to it at all and during your answers the heroes in connection with the solicitation is there any reason to believe that this would be a would take a different position about the country of origin here in the future contract and eighteen it does in fact say that the question is is the product that the government's purchasing exhibit nooning character in use from the wrong gradient and we argue at the court of the net international trade that clearly it did because as judge plater has pointed out the characteristics of a prescription drug product approved a safe and  getting this particular contract right people your bid was not a low bid our our view is two fold on that one when we made that we were getting under a contract that was going to if you didn't respond to their timing the way they wanted it and they said you were different quality thought on that ground yes says the lower court probably found that was an incorrect statement in the contracting ere would be a different period if solicitation had been different and you qualified or if we were going to be competing against the so called compliant products we would have to price compete in a different way and if we weren't being allowed to compete in that pool it's somewhat like a bit under a small bit business set aside and a bit under and under strict it that they were going to be in a pool that didn't have anybody in it that had a compliant product and and the companies experience was never going to be compared against us under the v a have you had you couldn't have gotten the contract yes under the v a s view of the chairman and under this statute and regulations as written if there are no better as of that t the last man standing is an offer of a non compliant product he doesn't those people but the but the people who were bidding on supposedly compliant products would still be in the mix they would be taken out right we only have a bit it all under the v a s view if none of those people that which happens in a large number of government but they did the right and therefore overhead how this hypothetical discussion helps to show jurisdiction and cases it so well our jurisdiction depends on something entirely different and you're correct about that we have the same jurisdiction is any other pre of what protester who's protesting an invalid term in the solicitation at the time that we're sure you did initially but it's clear that you have to have standing throughout the case because we raise other significant claims that in similar situations have been held at standing we raise the nd claim not just the solicitation which we think puts us in the same position as any other pre war protester we also pointed to the five questions and answers which the lower court properly determined were a final agency action that specifically with respect to our product was a product characterization not a procurement characterization but a product characterization in connection with there was a c b p decision out there which held that it was not the product of product of india and so just as in weeds where the the effect of the the fact of the government's conduct was to make him bid for future programming such a potentially wouldn't when and just as in veteran contracting where the fact that the government the v a in fact had placed the contractor in a database that not only affected a current trend that had passed but also would prohibit him from being a veteran on small business for future presidents we have a situation where you connection with the patrolmen we have a lasting harm a decision that was going to impact us in all subsequent procurements for th its name was not on the list was also going to affect all subsequent paternity that's what happened in this case with respect to the agency action taken by the contracting officer our product was tight in connection with the program but it was hundred as mr volcker actually argued on our behalf the case that we filed is not about what was happening at c b p it was about what the contracting officer did after in fact we filed the case at c b p our central condition contention in the big protests is that the contracting officer has to do something other than simply assess the country of origin and the t a a the far part twenty five instruction to treat our product equal to a designated country and product or treaty resonated country in product equal to hug a domestic product and and therefore you can't simply exclude a product that's a domestic product and our case is about the fact that the contract the officer said i don't need to consider whether your product is a domestic product because when the t a a applies no aspect of the be a applies so that was clearly not before c i t and the facts necessary to prove that in in fact did the contracting officer consider or not consider why the product was a domestic product and the law ought to be applied to that was is it correct not to consider whether the where was the source of each of the raw materials and where was the processing that occurred to make a prescription drug and what was the scientific essentially impact of the the claims court found that the record contain no suggestion that the contracting officer considered whether there was a contract a fact not only is there no record of that in the record but the five questions and answers which you characterize and i pa as cryptic said we don't consider that when the t a a covers the agreement because when the t s a applies the p a does not and that was incorrect in our view and as a factual matter the the lower court properly grade with us that the contracting officer made no such determination the nd fact was since we were arguing with respect to invalid solicitation terms as a matter of fact what course the legal question which is not relevant to one thousand five hundred is was what the solicitation said improper or not and we allege that as a matter of fact the language of the solicitation as a matter of fact was improper existed and the lower court properly found having read that language that it was exactly where we said it was it was not in some draft are he or wasn't in some requests for information it was in it was contained in the r f d that we were subject to and then she made a legal ruling that it should have been because it was inconsistent with the with the far provisions requiring how the contract should be treated so our view with respect to the merits of the case is and we've noted this through throughout the proceedings both below and here is that the the government keeps referring to a single statute that governs it says the judge's decision was in to lead in the lower court was inconsistent with the statute but there's not just one statute issue and there's not just one section of one statute issue in the sense that t a a was passed and the regulations for implemented there's over a thirty year history both within the federal agencies and within any cases that consider the issue specifically which say that the buy america act and the trade agreements act overlay and overlap not that one repeals the other and that's something that simply has been ignored or or talked around by the government as as we know in procurements central to the trade agreements act section twenty five dollars the th is the statement that we take the products that are currently preferred that in the context of the trade agreements act those of the binaca act products that was the predominate preference in place of the time the trade agreement that was written so we take products that are preferred which are domestic items under the buy america act but we decide what to do with the products of countries that have signed trade agreements and haven't signed trade agreements so section two thousand five hundred and eleven dollars says if it's if it's a designated country and product from a trade friendly country we treated equally the preferences  wait in the preference or it's our price adjustment so if you're an offer of a non domestic product your price gets moved up so it's competitively disadvantaged but those preferences are waived with respect to with respect to designated country products but dollars anybody else's products are still subject to the preference on offer of a product of of russia or something will still receive a price detrimental or present any disadvantage with respect to the domestic product when you move you treat the designated country products equally you prohibit anything that's not domestic that's the product of a foreign country under the trade agreements act and then it turns out under the i b m case there's a th category of products you also have to deal with products that aren't domestic but aren't foreign either because they are substantially transformed in the united states and as to that the court the the board in i b m said the following so we know that you have to take a domestic product and treat it doesn't it a country price equal and that you have to exclude any other product that's farmed what you do with a u s product that's not domestic and it said you can exclude it under the prohibition because it only includes foreign products but it's left to the agencies as to whether they're still covered by them by america preference point being that at all times the boards and the courts have understood that the preference is from the b if i could convince the court of one thing it would be that there is no overlap between the t a a and the b a a that's just wrong a product of india under the t a a cannot be a product of some other country under some other test the reason why the court i think want to stray on this is that the court didn't see that the t a a on its own is comprehensive rather than giving a booster having a preference for a domestic product under the b a has an in or out system so the st two it is a walled garden you're either inside with the united states or you're outside it specifies the entire us a universe of possibilities so if under the statutory test it's a product of india it cannot be a product of the united states under some alternative test that interferes with the statute if the court were to look at the ultimate question that's subject to discovery in the sea i'd say rather than the the only remaining issue that is whether the coup or whether the court was right to think that the v a was supposed to be looking at some other question and there just was no other question there only question and w applies in determining country of origin has to be decided on or the test that congress gave in the statute as a centrist counsel mention the veterans contracting case the funded most fundamental difference between that case was the veterans contracting involved in a s b a decision that the court of federal claims wasn't powered to reveal unlike the c b p decision which can only be reviewed in the court of international trade it's the statutory