the united states court of appeals for the federal circuit is now open and in session god save the united states and this honorable court the st case for argument this morning is twenty dash one  anywhere in the united states code that is simply a constructed sort of way of attempting to determine that a particular matter is apparent even where he is here is a sale but i think from the government's perspective there are a few central core principles st that congress throughout the statute has distinguish between sales to cairns and the use of government property also but in in or regime the words that the congress has used in the past in talking about transactions is talking about the principal purpose and i goes to the essential nature of the character of the transaction itself  and looks to things as you know as a court and harness you know whether properties been quiet for the direct use or benefit of the government so in a case like this where the government is selling property if there are conditions on the watergate days you follow the money and when you look at the numbers associated with the sale in the procurement tell me if i'm misunderstanding them why understand the record it was only almost two dollars a pound for the scrap metal and the contract is the highest one was just a few cents which is which suggests to me that if you're just looking at where the numbers were and where the bulk of the money that was just a few pennies right doesn't that suggest anything should that not suggest anything to us about what the real purpose of this transaction was well but i think what we should be more suggestions of course is the simple fact that that at the end of the day there is still a contractor who is paying the government not the government paying the contractor so the overall value of the transaction if you have to look at it from the contractors  right and then once it's decommissioned it's it's worth a little bit of scrap metal but not much so they can sell it for whatever the highest bid is but they know the highest bid is going to come in around one hundred thousand dollars and that's clearly a sale what if the government decides it's more convenient to do both of these things at once and so you have again a dual purpose contract where you're getting services that were are worth a lot of money but you know they're willing to to pay a little bit of money for it now i know my numbers are not going to work for this contract but i think the idea is there whereas you know the contractor is getting some profit out of it but the government is getting a whole lot why can't you just answer the question let's assume that the services are for the benefit of the government what we're trying to find out all three oceans what's the test or deciding a true mixed contract whether there is or is if the government wants a contract that good services for the government but also get some money for the government from sale how do we determine whether they're sure sticks or not let's just assume because it seems a little simplistic to say well there can only be one principal purpose lots of contracts can have multiple purposes do we are we looking at quantifying that which is higher dollar value forbid protesters fiction or d are we just looking at whether is the government let's assume the government says both are important to me equally important well if any easy way in the context of a sale is who is paying the equally important to the government of a record they say it's equally important to decommission as it is to get rid of the stuff to make any sense whatsoever i mean there is a waiver you seem to really be relying on the notion that that a contract has to be all one thing or all another thing but i don't see anything  the most important thing for the government is getting the commission decommissioning done but it realizes it can have somebody do it essentially for free and even get a little bit back because the scrap metal or something so it structures a contract that way even though it would have been happy to pay to have it done why should we rely on a formalistic view of whether that government is getting money back to determine what the principal purpose is rather than the actual underlying purpose well your honor because because quite simply in those scenarios we have a specific set of rules that are going to be applied to the transaction federal opposition regulations the federal deep concern about something but but that itself is insufficient to say that it is not a sale even if the government has a strong interest in something and again that doesn't turn a sale into  yes because and also at the end of the day if we have if if the value of that property is so great and the value of those services as shown by the market is so great we won't have any contractors bidding on the sale you know if it's going to cost them mr mayor and the court spent a great deal of time talking about the jurisdiction issue which is also a basis for my client lamptey pollutions appeal if it pleases the court rather than spend my limited time going over that topic again i want to address one of the two remaining bases for lambs appeal which is the rd basis of appeal which is the court of federal claims decision on the merits substantively to cancel the contract of the bet solicitation that was awar lamb i'm happy to answer any questions of the court might have as to the st basis regarding jurisdiction or after the nd basis regarding standing but again due to my limited time i'd rather just spend the next three to four minutes talking about the rd basis of appeal  n i appreciate that you recognize our time and not yours so let me ask them to talk about standing a little i guess is that they fell short with me to saying something about the other two contractors well if we're talking about the complaint it's pretty discovery how much did they have to say that that would have satisfied the standing required that they would have had to prove that the other contractors were incapable of performing so they have they are incapable of performing much to be right your honor and to adequately great question and to adequately answer that question i go back to the initial rules that we're looking at which is that any protester in a bit protest needs to show that they had a substantial chance of receiving the contract and i guess that depends on the circumstances depending on how the particular bit solicitation is set up in this case and the nd step after deterrent term and who the apparent high bidder was based on that price the agency then engaged in an evaluation only after that apparent high better just to make sure that it could meet the rest of the twenty three and four so how does one what the least one could do to a number that are number four to establish that he would have had a substantial chance right so in better number force case better number four would have had to establish that better number one could not have qualified based on all of the criteria set forth in the award and addition better number two could've qualified based on all kind of the criteria set forth in four and then even will prove and that he would have gotten the contract in the standard is a substantial chance not that he was one hundred percent sure of winning so i'm trying to see what the where the lines are drawn here and how much you really have to put forth in your complaint to establish a substantial change you have to show you would have won right correct correct these guys absolutely would have been knocked out of that it considered that these betters would not have been able to show but in this case that's not what happened in the complaint rather there were one to two very sparse allegations in the complaint based on the websites of the intervening bettors claiming that because these web sites don't show that these betters have enough experts have enough i'm sure i apologize for interrupting but no not at all your honor show that they would know i mean it's not he doesn't have to likely they would have been able to do leave doesn't have to show that they couldn't possibly have done it right yeah i don't think it goes and i agree with you i don't think what we're asking is for a one hundred percent you have to show one hundred percent that they couldn't perform but at the same time you need to do more than just say that these guys have very little experience based on their website and based on that based on that we think this should serve as a barrier to entry and essentially create a monopoly for us who do have a certain amount of experience and let's keep out anybody else who thinks they're an upstart and who thinks you know what if hypothetically the solicitation had ranked experienced as the most important  would that would change it but it didn't that would change it absolutely your honor i think if experience was the most important factor here i think we're looking at a different ballgame but in this case it was and price was the most important factor frankly and straighted technical capacity to perform the contract right agreed your honor and that's exactly what happened here is that experience and financial wherewithal and some of the other criteria use the agency in this case wasn't looking for the ones who had the most experience and all of the united states are the ones who had the most financial resources in the united states all of those factors with respect to this business alysa taishan were all just bare minimum requirements just that we want to make sure that you as the highest priced better you have the ability to perform on the contract so we're not engaging in a comparative you know how that how better can one show that they have the capacity to do this  showing that they have experience it substantial experience in doing experience is certainly one factor that some foreign but at the same time too i think the reason why experience wasn't the only factor is that the agen y didn't want to create a barrier to entry for companies such as my client who frankly didn't have the experience in arizona but did have the experience in texas working on a similar project with the agency so they don't want to create a barrier to entry just based on experience alone and if that's the only allegation that's coming from h p s in their complaint that the nd and rd place bettors don't have the requisite experience just based on our review of the website i respectfully submit that that's as to what what standard to apply judge sweeney in her decision looked at for guidance a g a o decision to resolve the question using a more than solicitation language the judge warned had before us and she looked at the same essentially the same language and she said for this particular picture meant it's either meets at  for a principle purpose standard and she adopted the principle purpose standard from some of your decisions from the federal circuit decisions those decisions however huard silly if not  basically decided the same case i really i realize it was not this case that's before you but it was essentially the same and checked and all particular purposes was the same for turman and in her view it was both  principal purpose and they more than the minimum case that was met by the solicitation so i guess technically one could remand but i think the court could take notice that that issue was decided by another judge at the structure would number one whoever gives us the most money that's the way we rank people and after that the only thing that can dairy you know you're you can be we have the capacity to do the job but doesn't that fact  that the selection was really based on who was giving us the most money in terms of purchasing this and then get indicative facts for us to conclude that this is predominately purposes of the sale well i don't think it answers the question your honor and i know there's been focus on that point but just put yourself for of will suggest we put ourselves in the shoes of the builders and they have to at least two factors to consider one is what are they going to pay for the resulting scrap and what is their cost of doing the demilitarisation and mutilations of this property and they factor those two  together and they offer a price and i think you're on a made the point earlier that the value of this property before it was turned into scrap was substantial and the amount that the contractor was actually willing to pay was was quite that to establish that you had a substantial chance to have your bid accepted over the top the other three who were better price yes thank you your honor religious counsel believes the solicitation called only for a price comparison followed by some administrative tasks that's not what the at least the face of the solicitation said it said we will award multiple contracts by the way we reserve the right toward multiple contracts we will select the most advantageous offer ors or offer or offer orders and we will consider price and other factors so on that basis we have alleged we had standing because price was not the only factor we also alleged imperative eighty eight dollars of our complaint that  the other two intervening factor intervening parties just a direct challenge did not meet the solicitation requirements and therefore were not qualified for the award now  you know we subsequently amended that amended that we subsequently added facts to that once the administrative record was supplied and we were able to demonstrate further that they were not  the incumbent and as a party that has been in the industry and i you know which gave it a basis which is very typical in the protest where all you have is a debriefing at best to go on but  gave us a basis to say we know the industry you know we have reason to believe that these people these two names are not going to be qualified so that that men are in our view or facial legation with respect specifically in the record once you've got the record made these two middle bitters suspect that the history your own are kind of interesting so there were four names of course h g s know who it was the other three were names h g f sought to learn more about each of those names to assess whether they had a based her theft and went technical qualifications so what we we had to change in the administrative record with the names of the companies associated with these individual names and when we determined learned what the names of the sense the government's or at least of the lamb objected so there was outside the record should not be included should sweeney consider that and said the sun would not be unusual at all that record would not contain information about these two intervening bidders because the government never evaluated them as we said was required so there was nothing in the record as to those two in order for us to show prejudice  and a substantial likelihood those of having a chance of an award we presented the evidence as part of our filing and the judge accepted that and denied the government's and lamb motions to exclude that facially for standing one is the most advantageous multiple award other factors consideration stance and the other is what we're talking about now where we did allege on information a belief that the other two were not qualified or would not pass it preordered survey we had knowledge and we said that in our complaint because we are the incumbent of who does this work and what it takes to do the when you wrote your complaint because our client knows the industry they've been doing this for the government for years like any small industry that does government contracting people know who the other players are as they did against each other all the time but if it's a brand new brand new company that's capable of doing at a you've never heard of i'm just this seems very conclusory to me to solve a stanek and i'm just wondering why you didn't do  discovery on this well we thought we had sufficient information from the public record to cellphone that the records and the judge accepted that additional information closure what about the ability of one of the eagles this sub contract wouldn't you have to make some showing that they couldn't sub contract out to someone who could do it but don't you have to show that there there's no possible even way they can succeed through subtone tracking well again i don't think that the standard is no possible way i think to stop going tracking allows them to get around your problem of no experience well some contracting requires the prime contractor to manage the work and even do some of the work so i don't think it's a total solution to acting on some limited information i think plausibly taken from the public record and our company's knowledge of the industry but i would i would remind her suggests that that was not the only basis on which we established facial standing and it was the the court found that we have established facial standing on the allegation that the government's evaluation criteria for multiple awards  a most advantageous succeeding one was that the solicitation called for an evaluation of the most advantageous proposals proposal with the option to award multiple contracts including non price factors it's a price was not the only factor that's the language of the solicitation we said we we believe we had the non price factor has been considered we would have had a substantial chance of winning if we secondly said in paragraph eighty eight dollars of our complaint we believe the other two interveners are not qualify now all we needed in my view is one of the two i think the st one was stronger  information that we had provided from the public record to find that these two parties were unlikely to these and she said that aloud was one basis for her to decide there was prejudice to h decide it was prejudice after she had the information so factually once she had the information that the government never change but they never looked at the other two she looked at that information and said you know she agreed that we were purposes of argument just only for birds of argument that we were to decide either there was no jurisdiction over the contract or that your client lacks standing what's the effect on the bridge contract as it moves it out challenge to the award of the contract to lamb and that lamb would be holding the contract by would think m r wrong no i think you're correct your honor the nuance here is that the bridge contract was was a competition and there's a whole history there but ultimately the lamb received that contract now that solicitation was put out to say it was going to forage the period for the government's appeal which really was today so if you were to decide the original ward was was proper i assume the government would cancel the bridge solicitation contract and go back to land you know if you decide in our favor on the st contract again i'm not sure what the government is going to do with the bridge station i would think that because it was put out there only as a bridge during the appeal that it would have to go away once the the appeal is done ok  if you all want to combine or what your honor i just i just wanted to address a couple of clarify a couple of things very quickly the stephen maker basically that with regard to the bridge contract the bridge contract is a separate contract which adjudicated by judge moore in the united states one on the merits and the bridge contract is being held by lamb so in the event that this court overturns judge sweeney's decision the bridge contract would still be held by land and the government would then be in the not make any findings with regard to principal purpose her particular analysis focused on the diminished question it did not focus on principal purpose is correct in a different contract with different language and different provisions the the standing issue because i don't think we've heard from him on that briefly very briefly i'll have to note that the government hasn't a field a standing question we believe the record is unclear as to  this is shar bonnie again on behalf of the palin lambie pollution with respect with respect to the standing issue there's a few points that i disagree with respectfully with mr help counsel on the other side at the st is opposed supplementation of the record with respect only as a declaration submitted by an age b s officer i was looking at our motion for judgment on the administrators record right now and i don't see any objection to supplementing the record with respect again to the nd and rd intervening better so on that point we have a disagreement on another point that we have a disagreement is as to the criteria that was used to evaluate disagreement was that i have a disagreement with opposing counsel as is asked of the criteria that was to evaluate the bids so i'm just going to read from the bit solicitation word for word the criteria that was requested just with respect to bits and these were quote name and title of sender complete business name complete address and telephone number invitation from the number percentage of market bid and a statement which quote which basically asked for the better to attest to certain things so with respect to the bids that were submitted and with respect to the comparative analysis as to the different betters other than identifying information the only information that was requested in order to perform that comparative analysis was a percentage of market bid the two other points that i will just want to quickly touch upon one we didn't get a chance to get to it as part of our main argument but even i'm sorry i think i really need to cut you off unless you just give us a concluding sentence could legally gone be on time my concluding sentence would be even if the court was to decide against slam when it comes to jurisdiction and when it comes to standing i think the rd basis of appeal is compelling that there was a significant amount of information and it didn't need to just be written information but there was a significant amount of information before the sales contracting officer to not  as the court is aware this case involves repairs to the historic alcatraz citadel where the government issued to you unilateral modifications the greatly expanded the scope of work to include major structural repairs to the b n c cellblocks of the civil although many issues were tried before the board and that presents four issues on appeal and those are the issues i'd like to address but i'm happy to focus on any particular issue that the court wishes the