competition spec in the proposal to remove noticed only two reasons to underpin the improper contracting charge ron if the orders were outside the scope soap exceeding with our authorization the contract three million dollar fair opportunity threshold because the length of the case is that the orders were within scope there remained only the unauthorised sole source spec that's the only thing remaining noticed as improper but the initial decision did not decide that it decided only that south marketed orders were subject to the contracts three million dollar fair opportunity threshold that's length but rather a way that's just the contract interpretation that means alone nothing improper summerlee that the order went over three million says alone nothing is improper the problem here and where the wheels came off is that the initial decision stopped right there and miss understood the contracts fair opportunity three million dollar threshold to be a sole source a limitation that's clear in the appendix at a forty five of forty three no five the agency has never said eight twenty five the contracts say themselves fair opportunity exceptions apply over the threshold the agency has never said that the three million dollar threshold was a three million dollars sole source limitation i'd like if i may to move for a moment to the the initial decisions treatment of s m s h three or during procedures there are ways to interpret a contract but a credibility analysis is not one of the credibility determinations here are incorrect and in reality the substitution of subjective notions before the expressed terms of the contract and the lead all and the credibility determinations here do no moon or in any event then father the contract interpretation on the fair opportunity threshold that again mr judge does construe the contract language that was the subject of dispute between your witnesses and the government's witnesses but you presented witnesses who said this is the way that that language should be read the government presented witnesses who said to the contrary and the administrative judge said well i think that the government's witnesses have the better of it based both on the language and proper construction of  the contract language again based on their greater experience in dealing with the east's in these contract matters what's wrong with taking where you've introduced a question of of competing experts into the case what's wrong with the administrative judge assessing the weight of the competing experts opinions where we really went to to the to the history of the background of a fast your honor and and and so some of that testimony of spying maybe actual practice or context or something like that what if you look at the initial decision and the credibility determinations r r r r r really reaches if you look at the initial decision there was a clear abdication the testimony of some doctor and he says well they say it says and and they say that and and i must make credibility of terminations to resolve this rally i mean characterization of what the district judge said because on page a forty three the administrate judge moving on beyond who it is characterization of the witnesses competing testimony says i interpret the fast contract modification to include self marketing efforts within the three million dollar limit i find the last sentence of the modification cannot be interpreted as the appellant has to allow self marketed orders in excess of three million dollars appellants interpretation would nullify the previous language and so forth analyzing the language of the contract and saying this is the proper construction the contract well isn't that the appropriate way to proceed that would be an appropriate way to proceed and that's the way it really should have started instead of being tagged on at the end of all of these credibility determinations it went on for several age but the and really when he says that it's a complete misread of that section and that before placing her orders wristlock had to get written approval from the competition have a cat under fire six three o four c appendix at six fifty eight paragraph five in the party contracts and s b a's it is a business development program and these kinds of contracts are explicitly exempt from justification and approval by forty nine u s c two fifty for opportunity exceptions apply to three million plus quarters appendix a one twenty five to sixty two and in the class five of s a s m s contract the contract contained sixteen five works that exceptions and must lock was obliged to follow the four corners of the document and sixty five or five would sell as many requirement for the orders were also exempt from competition under fire and one thousand eight hundred four six because the base contracts were competed the contracts say that they were awarded competitively competitively they let them pay the standard requiring competition among eight firms to appendix to seventy four these contracts were valued at ninety million each morning honors may please the court decision below should be affirmed because substantial evidence supports the administrative administrative judge's determination that doma lock circumvented competition are parmenter and failed to act here to a policy and she placed the two task orders in question in excess of eight hundred million dollars in addition because the penalty of a rule was not totally unwarranted in light of all factors the penalty should be affirm clock has presented basically a number of post hoc rationalizations and attempted justifications for why she did not compete these two orders the fact remains competition was required that was a credibility determination that the administrative judge made after hearing numerous fact witnesses two of whom the government presented both of those have been involved with the creation of the fast program there are numerous types in the record i see the fact that self marketing without competition was allowed against these contracts up to three million dollars but about that as opposing counsel has indicated fair opportunity did a here this is a self marketing question and whether self marketing by virtue of age three the lesson it's an h three you're familiar obviously with that it is takes self marketing outside of the three million dollar limit there's also the sole source issue will help us with if you would at least help me with why it is that particularly in light of the  argument that's made this morning on the points as to why sold source was authorized without going through the procedures that the that the government has asserted were applicable here but why wasn't this a legitimate sole source program first off your honor i would say that the charge itself opposing counsel to begin with saying that there is a problem with regards to there being a sole were peak precomputed that that was ok that that would have allowed for say a sole source without you know without the without competition the fact of the matter is as a factual finding the ministry of judge found these contracts the underlying  contracts were not competed they were there were the vendors were pre qualified there was not a head to head competition and in terms of if if miss lock had dolly the sole source parts six does say which govern by regular id i q contracts there is also the far at the at the time that miss locks are used these contracts the fire did still require that the contract trial document what rationale there were at the time she placed these contracts only for rationales accepting orders from from fair to fair opportunity that were in the far none of those was written down or set forth in the contract file the justification that put in the contract file was that she had self marketed these orders and the reality is in one thousand nine hundred ninety nine miss locke who is involved with rolling out the fast program for the entire pacific rim region she attended two different training sessions at which it was explained that the self marketing opportunity for the small businesses had been changed in one thousand and yet such that rather than having the competition threshold of three million dollars which is dictated by such that these vendors could sold their could be sole sellers noncompetitive orders of three million dollars each regardless of how much in the aggregate that was over the life of the contract so the sole source  not could have done is sole source she did not do that she did not follow what would have been required under the far in terms of justifying our documenting in the record one exception to fair opportunity would have applied to allow her to use suit to not compete these orders and furthermore and most telling is the fact that she had just six months prior to placing the initial delivery order task order had attended it roll out session at which it was explained to the vendors that self marketing was allowed no the agency through the contracting office can determine that there's really only one party that can provide competent services or products for a particular need and there isn't under appropriate circumstances there is no competition in that setting and you say that in order to do that even in there said she had to go through certain procedures which were not followed and that's the section that part six and part sixteen  the references on on the procedures that needed to be followed i can't remember the numbers but that's essentially your answer to the contention that this was a legitimate sole source which could have been as high as anything within the scope of company that is correct your honor and in terms of the the way that the facts program these were hybrid contracts and so there is a bit of the different parts of the far did apply but the bottom line is self marketing about the three million dollar pressure old was never allowed as an exception to competition and the fact that bad is the justification that she is now relying upon and had put in the contract documents in the in the record of the exceptions to competition i'm competition contracting is king it's the government wants to make certain that there is transparency in contracting the ability for these vendors in these small businesses to sell for market certain orders was a huge opportunity and supposed to give them a leg asked sixty four of the record and she had also said it one point that up questions about the far referred to her so if she had been referring to the far she would have known how to properly document and don't do a proper sole source and in addition if she had followed what the training there that the rollout what she'd been told at the rollout session she would have known that she needed to open these waters in excess of three million regardless of the fact that they were self marketed up to their opportunity  to the record in which she there are numerous citations in the record indicating that at the time she did place the orders the competition apartment was it was well known would have been well known to any contracting officer i got was something that john cornell who testified superiors or that if something was wrong with them someone should have told her in fact she did say to the office of the inspector general in two thousand and three when the inspector when the investigations first started she had said that she thought that as long as the first order was under the competition for under three million that that was ok he didn't have to look at the overall the whole value of the order and she dish and he had told john powell that the h h s deal was for one point two million not circuit did find the penalty of removal was not quote not received disproportionate where it contracting officer with twenty nine years of government service had given potential subcontractor an unfair competitive advantage  slightly different set of facts that clearly this court did up hold the penalty of removal in those circumstances in addition we would note that the there were one of the things that the deciding official focused on is the fact that g s a has a very different mandate from a number of different federal agencies its sole mission is procurement and contracting and the fact that this law was a contracting officer warranted contracting officer who had been told that orders of this magnitude required competition and and did not follow that if that instruction really went to the core of her duties as a contracting officer and made it difficult to reconcile having like when the deciding official relies upon trier counseling or things that were not noticed here or the seriousness of this of these these orders and the misconduct that was alleged what was was very apparent from the contacts that occurred prior to the issuance of the notice of proposed removal are outside the scope of the stone analysis and in terms of the allegation that there were some sort of communications involving ms parks those went certainly to the fact of the scope of the contract and were very much cumulative under the stone analysis there is a requirement that any such communications in order to constitute a due process violation constitute new immaterial evidence or a new material information that was not noticed to the employee that certainly was not the case here so there was no due process violation and for the foregoing reasons there was one o ninety eight  earlier that small morning the contracts say of the work say they were completed the agency promotional material says they were competed they were sold to other agencies as precomputed contracts and in fact the proposal notice at appendix sixty five says they were competed in a see if i understand this because we've spent a little bit of time on this and i may have a misapprehension so correct me if i do that the in order to be in the program the fast a program right you i want to get in the program so i submit an application contract clause that mr nk cited before restricts or limits requires competition among aides they're already writing the program and just just getting into the program  have to come in and submit a proposal right on the evaluation material was in the s f o and the contract that's in the appendix and that included amongst other things a competitive price range right so they had to they had to come in and show how they could satisfy the requirements under the fast contract and what their prices were and how many of them became eligible yeah letters under the contract rather back two hundred fast contracts one hundred  is how many women sitting down and deciding i need i have an order here hoosh who will i give it to how many my choices were there well it's pursuant to this contract that had fast contractor certified to install this kind of software so you're saying that they were still source and yes we'll get him but i think you just said that she didn't do the paperwork that would have been wired to justify the sole air we reconstructed that file of your honor and it's their burden it's their burden to prove no authorization and in fact sixteen point five that's not even happened authorization requirement that they're going to six for the