when you're ready and your honor thank you very much and good morning your honour's going to take the issues this morning in the order presented in our brief so let's begin by talking about the contracting officer disqualifying allied on th at risk of being disqualified especially when the draft r f q expressly stated that the government i'm quoting now reserves the right not to accept any exceptions to this r f u the o j then amended the ar removed that language that i just quoted and it said that the artwork would only be removed from consideration due to its standard ts and cs if the perceived exceptions to the are accused ts and cs quote cannot be resolved after briefing all the parties agree that this cannot be resolved language means exactly what it says and that in the case and tempted resolution by the parties through discussions the trial court all points to the general statement they are a few that the government intends close quote to make an award without discussions and the trial court then supposedly harmonizes that provision with the cannot be resolved clause to mean that the agency had put allied on notice that it could be disqualified situation discussions only happen if the government wants to you're saying that the cannot be resolved language converts the otherwise clear language to the discussion is a unilateral matter and to a bil amendment to the other clear provisions in the contract that says only the government has the right to decide if there's going to be a discussion you may have an ambiguity now given the fact that the government has  you know if they have the unilateral power to decide whether to have discussions and why can't we assume that the government decided with regard to your client deficiencies that the issue cannot be r the clause that says that any exception disqualification added another boss called exception that says it only be a downgrade they were limiting their discretion and they were basically saying this and this was a fix situation it is in our best answers to have this question and this and it's getting to an aspect of the case that's discussed and in another context but i it was seem to have some at least potential application here if the  contracting officer it simply said well alright i don't really want to get into a lot of discussions and back and forth i'll just deem the exceptions not to be a problem so our resolve this without discussion by some but by simply sweeping away the problems of the exceptions and then had gone to assess the two competing proposals and his chosen monster this issue would disappear would it not it would if we were not disqualif that would have been in my hypothetical now because you understand what i'm saying maybe that maybe act maybe i didn't express myself clearly in other words the the effect of what the o seems to have said is to is to sweep the whole issue of exceptions off the table seems to me by saying even if there were no problems with the exceptions at all i still would we still would have picked monster in which case i don't see where your discussions issue which is directed at resolving the exceptions gives you an argument that you are prejudiced by the absence of discussions w they could have done without violating the discussions provision would be to say we're just not going to have any objection to the exception it's only just accept the dead as such in which case we would be in the position seems to me at least setting aside the technically dispute about the technical evaluations we would be in the position of essentially having an evaluation which ultimately came out against your client correct and where's the prejudice from the lack of discussions under those circumstances i'd have to when that technical but ok so essentially this issue drops out and the bad technical issue becomes the critical issue but one i have to win on as well it doesn't drop out because they did  concern monster took exceptions to the five only requirements that require internet technology to be accessible for the blind and other handicapped employees and users of the system before the federal claims found that the exceptions that monster took are what it called  minor and gave monster a free pass even though the agency had made no such minor findings but even if it had that would not do the trick under section five of weight because congress only allows one way to get around full compliance with viable way and that's by a written finding of undue burden thank agency the agency made no such and do burden finding here and the court may no not make that finding for the agency or decide what is minor in the circumstances the agency finds itself and what it's not excess ability with forms text equivalents or non text elements and keyboard accessibility this procurement is all about using a manipulating forms and you do that through keyboard accessibility and when you fill out  occasions you put in lots of on text elements lots of numbers so there's no way that anyone could find this to be minor at this level now let's talk about the bat that was the situation  this question just the effect of a certification here and i'm talking now of course about monstrous certification of compliance does that have t converting the issue of compliance from a solicitation qualification exception if you will well that's the way a monstrous cri a contract performance issue that is to say and i think you understand what i'm saying but it just does to make underground a separate issue yet in the contract initiation such that it monster having promised that it's compliant if it's something helpful technical except as really i take exception the terms and conditions and they list these as they're not saying oh we're going to fix it and ninety days or one hundred days or whatever we are going to get there it's san we're never got never going to do it my going to do it ever so what is the effect of the compliance  certification is that compliance with five await minus are exceptions to the effect of it or does it mean that there's an inconsistency between the certification and the it's not just these are things that there's no record evidence for that what what the records show that i know you know isn't all that either other than the fact that the contracting officer we believe backs in the ordinary course accepted of exceptions that's just clearly wrong on this record you just missed it what could be said in the second question along the same lines that we're discussing here but perhaps like the difference under eleven ninety four point two b  there is as i understand it an obligation to purchase a commercially available system that does comply if one is available and if one is not available then you can back away from complete so if the effect of allied submission of a bid that did not but let's assume for the moment that it effectively disqualified itself as a competing better by virtue of its exceptions if the effect of that is to take allied out of the picture as being a commercial effectively a commercially available system to perform as as requested then doesn't that leave us with one better certainly have a commercially available product but just doesn't happen to be the particular product that the agency wants to pot and in that setting the fact that it's commercially available product is irrelevant in for solicitation responds our system meets the technical requirements if you had a loop congress and up on a loophole of the five zero eight unless you don't want to be five away don't want to comply or you don't want to product that doesn't comply or that does comply i mean it's not the way it's set up but what i'm saying really is get and perhaps you're saying well we we did satisfied their requirements of the solicitation and therefore that that issue doesn't come up but if you didn't if if we should conclude that you didn't satisfy the requirements of the solicitation then are you outside of the sphere that the government has to look to to determine whether there are competing products for purposes of this regulation that still look and see whether they're competing products well because products within what fear the sphere i would assume of products that or what the government wants to give up that meets the are you at least the state right and if you were not if it doesn't meet the r f q because it's disqualified by virtue of the exceptions you're taking technical requirements you're on or not terms and conditions requirements right city who's going to go first mr o'connell yes very well my it's a case of a contractor that pursued a risky proposal strategy that backfired and then sought relief from its business decisions from the g a o in the quarter federal claims what the record shows is that the agency the g a o in the  ally the benefit of every dollar but they all still concluded that the proper award was monster government solution so we understand the background any case of a little different form they paint let's cut to the chase what's your argument on the contract language you know the result that has to be read in light of the rest of the r f q which twice tells the off wars that the government intends to award without discussions it's strictly up to the can one up if the contracting officer for whatever reason decides to hold discussions they can attempt to resolve the exceptions if they don't then they can be found unacceptable but that language in and of itself reading the are a few is a whole doesn't make those discussions not strictly up to whom and i guess she is that if ally comes away from the insertion of the cannot be resolved language with the insertion of they come away thinking that they have a bilateral relationship with regard to discussions and they better get that clarified right because the actual most the language is done is to create a network unity at most because the government didn't remove the language that they objected to they left it and so that's telling in and of itself that they leave it in but then when they also add the the the words in that sentence that we're not talking about which is removed from consideration which the draft didn't say at all so that's the second telling fact so how they claim to draw some comfort for the fact that we left the language in that they complained about and added language specifically telling them that they could be were as we read on that is that what the teeth and say that you may be all that means all more reason why you would have to  language only relates to certain things in the us well i don't agree with that because that paragraph starts up by saying by talking about the are a few as a whole the contracting officer is telling them to identify the exceptions on a separate piece of paper just so that they stick out i don't know if you i'm sure you've noticed that the proposals here of several hundred pages long so there it just makes it easy for the contracting officer if the exceptions are on a separate page it did i misunderstand you earlier as arguing that it cannot be resolved language only is triggered if there is some determination by the contracting officer that a discussion is warranted yes yes because the country right at i mean that that's the position you're taking yes but that's not what the language says the language provides sort of as i read it t conditions to a determination that an offer should be removed from consideration one that a provision is considered unacceptable and two that  these are the two conditions predicate to offer being with move from consideration but the only way that they could attempt to resolve something an exception is through discussions or simply no other way to do it so that brings into consideration the other contract terms they provide that we intend to award without discussions and attempt to harmonize those provisions means that you only get a chance to resolve your exceptions if the contracting officer decides to hold discussions  what about the language the contracting officers decision at age eleven thirty two at the top monster took no exceptions gets us into this viable weight issue yes and i think you have to read that in context because the other thing that's being discussed here is all the major exceptions that allied talk contracting officers could very concerned about major exceptions but it's reasonable reading this in context to mean that he wasn't concerned about the five away exception but what is about the context tells us that the were no exceptions means major cuz it's followed by a half a page discussing all the major exceptions that allied took material exceptions ok it seems there's a little bit of a legal logic here isn't there well not necessarily i mean keep in mind please a couple of other things first of all there's  hundred fourteen functional technical and screen requirements that contractors have to certify that they can meet under this proposal so the contracting officer doesn't have the resources to go out infallibly whether the contractors can do these so he has to be able to rely upon representations from the contractors and if you can rely on the representations from the contractors it follows that he can also rely upon their representation certification that the exception is minor what what the court said when faced with a comparable argument in the axiom case the court is that the court noted that the contractor is subject to various remedies  under the contract in addition i would point out that there is also a host of extra contractual remedies that the government has some which can be very harsh so there's a strong incentive on the part of a contractor not to exaggerate and not to misrepresent because very bad things can happen if it does so as a result because of the contractual and statutory framework the contract the contracting officer can rely upon these and then if it turns out that the contractor misrepresented then it can be dealt with as part of contract administration on the has monster in your view pursuant to its its it has it undertaken to be fully five zero eight compliant or h under five a wait there's a rule of reason because as it's already been pointed out the government isn't required to pay top dollar to get the most compliant system and it isn't required if people don't bid on the contracts is burden this is both andrew burden and the other one the other exception that provides that that the government can and certain cases award to a less than fully compliant you know based upon the marketplace that was i mean reading those together there's a rule of reason and under this statute we don't have to pay top dollar which this case is a perfect example for the most compliant exception for the most compliant  product the statute says we don't have to award to the more expensive company if it would be an undue burden the regulations define undue burden as a significant expense which is a very low threshold for the gover the contracting officers already found here that the price difference between the two companies is overwhelming and just the plain english language language meaning of overwhelming means to overcome overcome completely over power so it's clear that under what the contracting officers already said that we meet that test number one but number two given given the price difference that's set for kind of briefs in the decisions i mean it's considering prejudice it's just inconceivable that in the current fiscal environment that any contracting officer in the government would find this price difference to be insignificant now the un do burden as i understand it typically requires that you go through a particular sequence of of analytical steps right wasn't done in this case take other than the over the statement about it being overwhelming that he said he didn't make any kind of written finding but that's why i'm asking you to consider it under prejudiced that's required under the just finish up by saying that prejudice here is very important not only for the reasons i've already said but the case is squarely governed by the court's holdings in courts opinions and data general and then i'm just like an data general here we have no representation either the g a o fourth quarter final claims that the price would be lowered enough to compete effectively with monster and under a banner there is nothing more than a theoretical possibility that the scores would change significantly if the case were replanted despite all of alan's complaints about the scoring its a couple decimal points from receiving the highest score excellent it's simply can't go up that much what it needed to show under banner was that monster score would drop precipitously as i said one hundred fourteen requirements here in this case started that the g a o allied was contending literally that monster couldn't meet dozens of the requirements under the  q they've dropped almost every one of those arguments so they're effectively conceding that monster can meet one hundred twelve of one hundred fourteen requirements and even the two that it's complaining about still the social security numbers and five a the complaints go more towards the technical acceptability of the per the product rather than the quality of the product that would be judged under the technical evaluation and i ask you one more question and i'm leaving my own injunction against time but if i understood it i'm not sure where this comes from but somewhere in the record i got the impression that the five no wait non compliance issue was a noncompliance on the department's side of the monster's perspective i'm a little disturbed in hearing some of the statements by counsel for ally in its argument using terms such as monster it was not compliant or took certain minor exceptions which it indicated and that is precisely what monster reported to the government and that the certifications was qualified it was certification of complaints eight compliance when it really is a performance contract administration issue so you think then let me repeat the same question i asked of the opposing counsel you think then that the certification by monster of compliance in the administration of the contract binds monster to complete compliance with five await not two compliance minus the non complying exception portion of monst is compliance to the extent and i believe the question was just asked is compliance as directed by the agency or as directed by the statute and we say it is as directed by the agency because it says the each federal department of agency shall insure and it is a matter of contracted ministration what they shall ensure there is nothing in that statute that says that minor exceptions  in fact the g a o in its court smart decisions that there can be varying levels of compliance with five away and it is up to an agency to make the determination which offer meets those requirements consistent with price and other considerations there is no absolute rule in fact if i may make the point and and i believe it is known as that the laney clause that the law does not assume that s s park knows what it means by might well suppose that you know hypothetically suppose that s s parts of all these comply to the extent that anybody who has a disability other than blindness let's say can use this thing perfectly well there aren't that many blind people particularly blind people who apply for jobs at the department of justice let's say in their courts mind even though a blind person would have a complete incapacity to deal with  minor no i don't i don't think there's anything that indicates there is any feeling of the system to allow blind people to use it you may have for example that was i thought that was in the nature of the system was that there wasn't a screen accessibility  or that would be necessary for a blind person to use i think i want two instances i think for example is the analogy that we've used if they have to be a textual or or speaking representation of an image or non text limit may have i don't know how many screens of text are on how many lines of of of of computer information and i'm only a lay person that in a few instances you might have for example a picture of iraq if i may and there is not a on that particular image the system doesn't say to a blind person or only picture of rabbit or something in braille that would said you're looking at a picture of a rabbit of course  problem with your position it seems to me is maybe it's not insuperable but the problem is that the contracting officer didn't say this exception is sufficiently minor that it's it's not something that should influence our decision to qualified monsour at the country going off so there were no exceptions and right into the category of the part five exceptions in about nine or not twenty four point hype exception so it's hard to say that they contact an officer did all the analysis that you've just gone through and came to the conclusion that it was really ok well i respond to that because i'm looking at a one one three two and it is true and as as you asked mr o'connell and it says monster took no exceptions no i don't mean to mince words but i think the word is important it is not that monster said i know that i have to comply with x y and z and i refuse to comply or they didn't say that they said here are the findings of our independent consultant they laid it out there were asked a question i can't i you compliant are not they signed the certification we are compliant it was and yes or no answer but they wanted to be fair to the government they wanted to make sure that they laid it out for the government they said this these are the minor exceptions so i think it is fair to say we're talking about a passive exception if we look at your system as it stands today monster and there are a few things that do not meet a full compliance you're taking you're taking the position that the verb took means something other than that they voiced or articulated or set forth or actively took exactly as as a statement of noncompliance if as as as the rules of bid acceptability or proposal bid responsibilities or proposal acceptability rot there is a difference between indicating that there may be an exception there may be an exception which certification allied never submitted a signed compliance or if occasion they have never articulated the reasons why they did not submit that science or if occasion they have said passively in their briefs it was in it was whether a signature on a bill bonde can be a substitute for the failure to sign a bit accurate with the signature of the author or avi off right now there are certain exceptions if you can prove that the officer of the company signing  finding several errors several types of errors in the technical evaluation the trial court then went on to say but i find no pride i just want to tell you briefly why that was wrong technical a substantially more important  best value analysis and the ceos finding that allied had only a slight technical advantage was central to his store selection decision as he found that the large price difference overcame allied technical advantage because that advantage was only what he called very slight he even put it into five point zero four percent so decision collapses  is slight technical advantage finding was arbitrary evaluations and arithmetic averaging without substance of analysis and this situation the determination that only slight technical superiority that determination is by definition arbitrary caprici prejudiced weeks marine case that the d o j cited and their brief actually supports us because he has the same controlling rationale and they're in a prio worse situation where they don't need to show  decision you're basically in a pretty award situation e s q a question on that and i don't know the answer to this that i i'm sure you do it does when you remain and a case like this supposed the for it at the time and make a new evaluation of those bits as opposed to requiring a whole new set of proposals well either option is available depending on the circumstances and you're going to have to be a whole new who gives to choose w that is something that ultimately would be typically left to the agency to make a determination between those two choices right unless unless both were disqualified and had to start over or u monster and what the c e o did was just average of all out to come with a slight technical area so l i've seen come in here very clearly prejudiced and i appreciate your attention this morning thank you we think all