i want to make sure that i have this down correct especially given that the cross of you know that that's that's involved in the in the case normally in a way we kind of discourage that that these type of arguments be divided among so many parties it's your choice but it's easier for us too to follow the arguments if we don't have so many actors involved but again it's your choice let me make sure i got this correct  often let people run over time and and all of the questions take you over term and then that's fine but you're going to have to let me know how you want to handle this you've got fifteen minutes given the think is kind of a null set and so it didn't apply to anybody and so what is the trial court supposed to do when that language is i'm not going to necessarily call it a mistake so i'm not sure it was a mistake at least in part of the  registration has nothing to do with but the language of the solicitation explicitly excluded companies that were registered as a subsidiary phone company so when it registration was was an important part of that of that requirement that language has to be for you that's one of the assumptions i believe in particular parcel of made in its brief was that not necessarily had had the c v r the danish goods business registry operated the way that the air force thought it would excel us would have necessarily been eligible and that doesn't that doesn't  have to be the case it could have very well been that you're only required to register as a subsidiary a foreign company if you want to do business in denmark if you are an actual foreign company coming in to do business excel is registered as a fully demonstrates in this case that the solicit tape the solicitation explicitly said that the intent of this language is to was to determine whether or not a company was fully registered as danish excel is in fact fully registered as danish they are they are so and if you look if you look back to the extent we get into extrinsic evidence which of course our position we shouldn't but we if you look at section one section one half i believe it of our reply brief we go through about how this this was about registration throughout the process once once the actual language was in cde you even have the danish ministry of foreign affairs in july fourth two thousand and fourteen when the air force came to them and said can you help us to ensure that these these companies are in fact confirmed that these are in fact danish firms and not syrian foreign companies the ministry of foreign affairs came back and said no we're not we're not going to do that this this is the this is the air force's call and it's based upon two requirements related to registering in the danish greenlandic or fairways business registry and providing a bank letter so this is the registration was a very important part of this this so out of this eligibility criteria here and that was that was who was excluded was a registered subsidiary a foreign company just as if the say you can't you up can't be registered as a limited liability company that's a specific type of company that companies might register as in the united states and here the air force thought there was a there seems to be some assumption at least on the trial court judges  and your friends on the other sides part that foreign subsidy subsidiaries were eligible for this contract is there anything in the record that suggests a company that was registered as a subsidiary foreign company would not have it in the solicitation could they have done yes it may have in some people's view violated international agreements right right and but he does not what we're if if the air force had ignored international trade agreements and said we're only making this open to american companies there would have been all kinds of hell to raise and diplomacy chat also but the air force it's a case said that if you registered as a danish company you're you're you're wholly owned one hundred percent for known who participate in the in the bid process yet that course and excel us met met those requirements they were not registered as a subsidiary foreign company in in denmark and that was that was what the air force was bound to bound to follow here that was notwithstanding any any defect in the and there was a pagan defect i don't feel right and that's that that was another error of the trial court that we've that we've raised in this case is that because it was a peyton the fact the plaintiffs the plaintiffs waived any ability to challenge part of the administrative record and you answered it your answer was wrong but everybody was on notice that this was an issue yes and you get right the answer did not provide that there it say that there is a type of register company called subsidiary phone company but it did not say presumably all the companies that were submitting this would have gone to the registry to check that they were registered as a foreign subsidiary yes presumably and probably would have need to find out exactly who is required to register as a subsidiary of foreign do we do to not be registered to some serious foreign company so we can compete here so yes this was this was something that the officers were really should have been aware of that there was that there was not in fact a way to register as a city or a foreign company seems to me that if you go forth under the rewritten solicitation is done by the trial court judge then your friends going to be prejudiced because they might have been able to restructure their business relationship in a way to  know you're that the truck and we don't we don't agree with this but the trial court found that the air was the registered as language in excise that the i think the agency has a number of different things in its discretion it could do one would be eliminate based on the fact that they are a subsidiary of united states company based on me it seems likely if you do that that we're going to you're going to at least be back in the trial court with a big protest from them because they were saying they were were not on notice that that was a requirement in the solicitation because it wasn't until it was put in by the trial court right and that that could what they could perhaps say is we want to we should have the opportunity to correct that since it's solicitation the agency has broad discretion here and what corrective action should take but what you've highlighted the problem with what the trial court did here is it changed it changed the eligibility criteria the agency was was required to evaluate based on the criteria actually in the soli tation and that that's what it did so yes i can see how excel as one would have a problem if we were all if they were all of sudden eliminated based on based on what is essentially a new eligibility criteria the trial court created judgment in favor of those two plaintiffs even based on the errors it found because they were there were the third and fourth third and fourth highest priced or third and fourth lowest price offers excuse me and parsed parcel it was second in line and basically what the t were very specific and very finite and basically had to have a corpus is to figure out something that you were certain anything in the record that suggests what your client did when it looked at these requirements and whether it checked the database or not to determine that it was eligible which all services meet it's clearly a fully registered danish company i think one of the things to to pay attention i think that's where the end analysis that government and we agree on that from the standpoint of requirements were clear cannot their standpoint you know are there does seem to be some underlying assumption and a lot of this that the government didn't put the right criterion here that it really should have explicitly said not just that you can't be registered but that you can't  basically went to a stance against the evidence i think where they failed there besides that list for decoration lying on the list particular ation the joint statement which they should not have and which i believe even if the court looks at they will find that the list proved that liberation basically says at the end of the day even if you know percent of corporate ship you can't decide if you have to look at all these all the different documents until we can do that you don't know therefore should done that that was never part of the consideration of a check off type requirement the joint statement essentially upset the danish and greenland governments they can take action and the executive branch can take action and they can cancel your contract they may have to provide some compensation but that's what you do to a diplomatic channel you don't rewrite  counsel for greenland contractors are going to speak for five in reserve two and that's the stripper and step yes your honor and say that again speak for five initial and reserve two ok and court's decision should be reversed with respect to the issues raised on our cross appeal that the issue is fairly straightforward the solicitation required all offer to maximize the use of danish and greenlandic sources in the performance of the contract clear and it also went on and it said that requirement takes precedence in the performance of this contract  specific percentage it did not but the centex case and the other cases that have addressed this issue that arise and in cases where there were a specific percentage centex case says that some contracting there's no percentage whatsoever i mean they may be able to convince the air force that they've maximized if they only employ twenty percent danish greenlandic residents and they and i agree your honor that we might be able to construct a hypothetical where they satisfy that but that's not the facts in this case but how do we know that until performance actually occurs we know what your honor because if you look at the proposal  sufficient under centex and the other cases if on its face a proposal leads north leads an agency to think that an agency that a performer cannot and will not comply with that requirement if you look at our slops proposal our slots proposal said our american subcontractor is going to be responsible assume responsibility for performing every item of this contract or not and then if you go into the guts of the proposal and you say well what does responsibility mean responsibility means that american sub contractor is going to sell for full on every item in the public performance workstat matter what you know we can say maybe twenty percent is enough maybe ten percent is enough maybe thirty percent is enough but the requirement to maximize danish and greenlandic sources can't mean that it's ok to use none of the subcontractor period end in green in greenland using local supply homewrecker correct and why doesn't that qualify i mean if they're using an american subcontractor to facilitate it all but they but they just rehire pace which is what almost always happens in these contracts when you get a change an incumbent and they still continue to use local providers and things like that they can say look we're maximizing it and maybe run out of our american subcontractor but we're it's all performed by greenlandic and danish employ workers it's all on us all of our sources for materials and things like that come from initial greenlandic sources and if the proposal had said that that would probably been ok but the proposal doesn't say that and the air force is required when it gets the proponents i frankly i think you have a real problem because this is still all about performance we don't know that they're not going to do it certification you're proposing would have been checked so of course they're going to say that but that's not sufficient the cases deal with the deal with this sent back and allied resources say the air force has an obligation subcontractors employees and the like and they didn't comply with that and that's a that's not that i think it's also haitian correct well what this court held in sent back and if this court and if we were talking about only got fifty one percent requirement i'd be inclined to agree with you because that's but that's not what centex at centex just some contracting limitation including the yellow ask law which is the fifty one percent clause in the in the federal acquisition because because there's no cap or limitation or the like and they're in the air force is required to look to actually read the source of the proposal when it comes in and then they have to go through it and they have to ok based on this proposal is it reasonable for us to believe that they can and will comply with the some contract requirement and there is nothing in the proposal nothing that you know the answer to my question i don't drop it and it gets it's beyond the scope of the r f p requirements and the the  or greenland yes greenland is a semi autonomous i understand it so so it could be either but that but either one of those is ok and so you read that and then you read that in combination with the language that to the to the question and answer one of the question and answer answer is that there are four statements part of the are a few and we read that this is j when zero four four zero six where the question is what do you mean they're at their say don't worry if your family register is danish you're not acting as a foreign subsidiary so when you've just defeated your own argument so say coca cola an american company has worldwide franchise i have no idea if that's how coke operates but i know that some companies do ship and so the franchisees are independent owners and operators under the franchisee agreement and you have a danish franchisee of coke they're registered as a davis company they have a danish back account they have whatever else is that and you know they're still a subsidiary of coke so why are they a fully danish greenlandic business if it's owned operated and the like but doesn't matter because even if it's a defect there's no indication that the source of station excluded foreign subsidiaries to get there you have to rewrite the solicitation and add in terms that weren't there and i guess the given the government's concession that what they were trying to do they were this this prison they understood as they've said the government's understanding of this problem the solicitation requirement was that you couldn't be a foreign subsidiary that's what they were checking that's what the evidence is in the record where they went to the earlier to that to the danish government three times to ask you know i didn't i mean whether or not these companies were registered as foreign subsidiaries a good reason talking about registering what the government was doing was trying to comply with the first l t provision i misspoke actually they asked they didn't ask whether they're registered they asked are they foreign subsidiaries that's in the language in in the record in their question but and want i want to take you back to four four zero six make sure you understand what i said and get your response which was so there is a way to see if the company is only registering as danish or so you have or situation acting as a foreign subsidiary in denmark so if you're fully registered as dane danish says they are force itself facto you're not but if you are that i guess i understand the that the two government state to state intended that to apply but the air force failed to comply with an international agreement if so the governments are going to take care of it they'll cancel the contract they'll be resul is that it and that will take care of court and the government needs to pay attention to this to all of our which is why we're adopting a new rule how can we discuss something that you've marked and we don't know if anybody else appears in a way that's privilege is this your information this is this  from danish sources hundreds of sources in this picture and we simply wanted to make the point that in the r c the r p only required offers to maximize our contract related purchases and i and some contracts which means that it can be at any tier your honor on the point that you mentioned earlier about the maximize versus versus direct i think that's an important clarification here the two thousand and nine amendment to and one hundred ninety one m you clarified that that there had to be a direct acquisition from data sources which is satisfied by the board to a danish or greenlandic enterprise but after that direct award is made our understanding our view is that that any requirement after that point is simply to maximize its contract related purposes so it's it's perfectly acceptable under the r p two for eight for a u s sub you want to measure it based on the circumstances why you could or cannot acquire it could be cost prohibitive or there could be a limitation of supplies at the time and if the various reasons but then i think the point is and this is why and why that there is no way on the face of the proposal for the air force to determine that our stock could not or would not comply i'd like to turn it back by may to the  the air force told the officers it's a possibility then they say so there is a way to see that's an important phrase because it tells you that the c v r was simply a mechanism for identifying for when you combine that with the q and a response which is part of the are these will from the air force when they say so there is a way to see if a company is fully registered as danish on one hand or two or more acting as a foreign subsidiary in denmark it's one or the other and and if excel us is so you're saying that this this really explains the purpose for the registration requirement exactly it would not just registration it was really just to discern that the  whether you are fully registered danish corporation which we've established that you can be of orange of jittery and be fully registered as a danish corporation in fact to do business or you have to be registered as a danish corporation or but but then it goes on and says or acting as a foreign subsidiary right right and is there any suggestion that excel s is not fully register as a danish corporation they are for they are fully registered the trial judge but that should have said excludes foreign subsidiaries and so excites the words registered as to get to the meaning he what i respectfully disagree i think alabama aircraft in that case the trial judge went too far because registered as in of course you look at the q and a and you look at all the other the actions of the air force before and after it's it's evident that everyone understood what this means and i think the fact of the danish government did not pick this up becoming a danish company then you register on the c v r system as a branch of a foreign organizations that's not what excel services is excel services are equally registered danish company so i asked the same thing as copenhagen and the same thing is i think the point that's being lost here today is that it's impossible to register as a foreign subsidiary therefore that the restriction but now we have to look at it and we have to say ok so it's impossible to register what was the air force trying to achieve by putting this in here what were they trying to do were they interested in actually trying to address ownership or were they interested in trying to address just this loser e thing that can't happen if you go to the pages you know every i would suggest you i would call the court attention to peter's twenty one through twenty four of our brief we set forth everything that the air force had in its possession as of may that we have legally and conclusively ended the registration issue authority to make the decision they had checked all the records it was all done fine that should have been the end of the answer the end of the issue but it was they went on and on and on trying to find out if these companies were in fact subsidiaries of foreign country companies not just where they were registered as because that decision had been made in that that's proof i would submit that the what the air force in the air force put this had this mistaken solicitation what they really met was to exclude foreign subsidiaries actual foreign subsidiaries up and you're out of time thank you i may go beyond the question of foreign subsidiary and just remind the court that the air force has conceded that there was a defect in the r f d and i mean you know you're up there on your cross appeal you're not up here on the government's appeal apologize on our cross appeal which i apologize it was not able to get to my last argument i would add to the questions from the court about what i understand the question about brief specifically said the very first sub contract that we're going to use to perform this work is with the u s company and all of the questions that we've raised today about what does that mean and how would the air force kno