with larry and susan sure of my for this case arises out of an organizational conflict of interest on an army corps of engineers construction contract more than three hundred million dollars since two thousand and seven eight eucom served as the corps d that there are some negotiations ongoing in terms of that position that that's sufficient even if the participants in the contract deal had no idea that that's going on and what's what's the tri bidders this was a case where there were active acquisition negotiations occurring between a commonality bakit and very significant times in the procurement for instance so do you treat for instance if we look at some of the dates that were mentioned time say july twenty fourth and twenty fifth of two thousand and eight we have the a econ senior vice president who is the principal in charge on the coors design negotiations this was not at this point a just a mere expression of interest or just fourteen thousand betters this was an actual live offer on the table and active negotiations while the a calm principal in charge is participating in high level meetings with the corps to essentially set the ground rules for this particular talk about the corps likes and dislikes i hasten to allow for a kind of chinese wall like i'm sorry about the cases of case law subject to monitoring by the c e o that will be disclosed to the c e o at the time for instance in the axiom resource management case it was a different scenario but one of the things this court looked at was that on so that the contracting officer didn't even know as between when the wall should be built my understanding was that there was an a they were unable to disclose you know which subsidiary was that's a good question and i think there are two answers the first is that the contradict officer doesn't necessarily need to know between whom the wall must be built in july of two thousand nine between you finding actual conflicts of interest and strictly avoiding even the appearance of impropriety strictly avoiding significant potential organizational conflicts of interest and mitigating significant potential conflicts of interest potentially involved in this country not that i know of your honor but that industry day august seventh of two thousand and eight is essentially right in the middle of the a the so there's this this general industry day that that takes place when is the first time that term there are even identifies itself other than being among the crowd that shows up  phase one proposals turner identifies itself as the prime contractor and specifically identifies ellaby bakken as the designs of contract now that's the read on top of that timeline the green on the bottom is the timeline of the  back at negotiations and you'll see that october third two thousand and eight falls after a com had submitted an offer to ellaby back it and before according to the accounts given by e com that initial round negotiations was terminated we had an open offer on the table active negotiations and a phase one proposal from turner that identified i would be back at it as the sub contractor and this is why we say that that july of two thousand and nine when the contracting officer actually did discover we were finally informed that there might be a potential conflict was by no means the earliest as early as possible in the curagh process which is what's mandated by the far if in august of two thousand and eight she had or an october of two thousand eight hundred simply asked the principal in charge of a com if there were any relationships with any  identified contractors or subcontractors might give rise to potential organizational conflict of interest she would have found out it us and she would have at that point been able to put into place perhaps unable to put into place a chinese that she could monitor but the fact is that she didn't do that the contracting officer waited until february of two thousand and nine which was at that point eight had been performing for almost two years that was the first she sent an email  principal in charge asking for aid comes assessment of if there were any relationships with these some contractors and at that point it fell out conveniently within the small break in the a an auction along with five thousand other people i think it's incumbent upon them to disclose that information even if it's confidential to all of its employees who might be involved in any contract review or any contracting was actually on the a calm team that went to a meeting in july and minneapolis i believe we've held july up two thousand july of two thousand and eight to help analyze the a common e b potential merger so he didn't know that this that this these negotiations were that individual was chinese wall naturally eventually your honor yes but if you look at the wall that was put around that individual that was put around him in july of two thousand and nine at which point the only of the three types of o c i is that that could have been an issue going forward was an impaired objectivity o c i centrally the c o wall him off to say you won't be part of the process of evaluating offshore as going forward but that wasn't the o c i that the g a o found jael found not equal access information and a bias because you're no longer negotiate i'm trying to get at i mean you're talking we're talking about a sequential set of events that you want apple in your view here and when the contracting officer was aware that there had been these ongoing contemplating a design build contract which meant they knew that their offer or teams were going to a consistent minimum of a g c and they designed sub contract and they also knew that they had a design contractor as their would the would the contracting officer have known i mean to start looking at conflicts when they didn't even know that turner was going to be in the process because the contracting officer job is to monitor for potential conflict contracting officer it needs to scour the universe but when certain a potential offerers present themselves at an industry day and then when they actually say and then again when they actually submit bids that identify the sustained then when the corps implemented geos recommendation turner protested to the court of federal claims which overturned the kooris decision to implement the g a o recommendation and this court's  analyzing was the army's award decision which happened in september of two thousand and nine and prior to that award decision the c e o knew nothing of what is found in her post protest investigation she made that award decision which the g a o what it was analyzing on the basis of is essentially about two pages in the record which revealed no investigation whatsoever and no knowledge of any of these facts that turn analyze the reasonableness of the army's decision to follow the g a o as recommendation there is no question it's undisputed that the ceos o c i analysis was before the army at the time that it made the decision to follow g a o recommendation the court as part of its problem the court of federal claims as part of the process of analyzing the reasonableness of that army decision was tasked with also looking at the rationality of the g a o decision it is likewise undisputed that it was before the general government accountability office at the time it made its decision that scio's o c i analysis was before the g a o at that time g a o was fully aware that said it never really relied on that was part of what the court of claims had a problem it never engaged the ceo's rationale and that was the error that was the key error at each of the three central it on each of the three central issues that was before g a o helping the government figure out what should be in the contract is about to acquire one of the contractors is there an interest there to do something to make sure that the company are about to acquire gets the contract your honor that that absolutely is not what happened here what happened here is that an actor after the contract was even two days after the contract was awarded to turner o answers and the question that the that former advances but the question that the government that the court of federal claims was analyzing was the question of whether or not the government accountability office is decision was substitute its own judgment based on innuendo and suspect hypothetically if all of the folks in gauged in this contract we knew that they would negotiate she ations going on for the purchase of but even if at the end of the day those negotiations fell apart there would have had to be some disclosure right and they'd be some o c i prop this is i don't think so and the reason i say that to proceed is that there has at the time that the contracting officer at the time these negotiations are going on and there are two distinct periods right so you have the period in the fall in the fall when the wind parent a is involved in a multi party auction where it's not even the highest bidder in the  week this is two thousand and in the auction terminates before h s m m has to provide even its first bit of advice or r p material to the army it had done nothing before that point providing any material to the army as part of the is decision in this case that suggests that the mere participation in a multi party option that ends before the before each asemi even asked to provide materials to the government somehow creates an o c i that the contracting officer is obligated to address indeed the and but even if there were is that is that we sell the line on the kind of negotiations that are going on is that because it was a multi party option as analogy to which is the federal the federal district court case law in the area of common interest privilege implication in those cases where the courts have uniformly said is that the mere participation in either merger discussions or negotiations over a something occurs a week before the closing in and that would be as i understand it and i don't think we have to take the point i guess the point that i was trying to make is to let you know where the cases where the wall is almost your eyes right now is that an individual contractor one contractor that has conflicting roles that can certainly create no c i there's also case law that says affiliated contractors if they have conflicting roles that can can create an osa guy and so they're all facts of the inquiries but we don't have any cases we don't have a single case that suggests that just because you're having discussions over a potential merger that that could create that creates an o c r that has to be addressed now to go back to the question asked of your  interested in when exactly and what way e b s presence here manifested itself and during the two thousand and eight period i take it the earliest that any body can say a b was even in the picture was in august in history dentistry day that's that's right and and there is a i think there's a kind of a fundamental misapprehension about the timing and what's going on the design built proceeded in a phase a phase one and phase two the effort that h m n was performing was in relationship to phase two it was not in relationship to phase one and had it had exactly what she was supposed to do contracting officer in february of two thousand and nine which is two months before the phase two are of p even issues which is in april of two thousand and nine contracting officer goes to h s m m and and they are part of a j v which an up with another company called h ok and says ok are there are you have any relationships with any of the companies that have been selected to participate in phase two and they said and they just cement says no  says well we have a relationship teaming relationship with with gori who is one of the j v members of harvard's team and so the and that was exactly what she was supposed to do and consistent with the the obligation  the that stated in the four to avoid unnecessary delays and excessive documentation that that's because the merger talks are discussions or the interest of the b s is neutralized at that point right i wouldn't call it neutralize concludes its effort in assisting the government to prepare the or of pig that that effort concludes in april of two thousand and nine it is not until june two thousand and nine two months after the effort to help prepare the army's or of p t is concluded it's not until two months later that the four executives from each of the companies e p n h s m m sorry and com meet to even talk about whether they want to pursue a potential merger and it's only two months after the conclusion of those that  talk about the scope of the injunction issue chirpy i'm troubled about the question of whether and as much as i understand it you did not pursue a challenge to determination can be but rather chose there's not likewise no dispute that the ability to issue declaratory and injunctive relief or any relief in a big protest before the court of federal claims is found under b two and the language is that the court of federal claims can award quote any relief the court process to the status quo ante any illegality that's exactly what the court did hear precisely what the court did hear before the army wrongly followed the g a o as irrational decision it had already  what the status quo as to the illegality that is the subject of the dispute the subject of the dispute here was the exclusion of turner the status quo ante before the exclusion of turners that turner gets to be in the in the  it's free to do and am i right about that by the way the government could assuming that we were to say no not that quite a federal planes went too far with the injunction should have just said that g m got it wrong with respect to the repeal of the government could say present the government accountability office issues its decision it is a recommendation it's a recommendation by statute and so the government has an obligation to determine or are we going to follow that recommendation or not so it is i respectfully i don't think it's the case that at the point just before the illegality which is that's it which is the time in which the court i'm sorry that the army decides to follow the g a o recommendation i don't think it's fair to say that the status quo at that time is that harbor doesn't have the award any longer and it's just going to be one more you know competitor in a potential reproach arm because that no decision has been made at that time about whether to follow the g a recommendation so the status quo right before anted the the army's a legal decision the fall of the irrational g a o decision is that the army had already determined turner was the best value offer or had awarded the contract it had the contract the only appropriate remedy here the only appropriate remedy is to restore that restore the contract were processed to that exact point in time the point in time in which they still had their word they were still the best value wall floor and that obligation to raise an objection to the scope of the injunction came up and example is if you you know this isn't it's not as if they had an argument which they failed to make and therefore waved it is that there was a obligated when that relief had not yet been granted to make a point in their brief and by the way if you rule against us please don't but if you do rule against us don't worry at the relief it one of the items are very very fair questions  the briefing on these cases and it's in all of these court of federal claims case because they're all at every plaintiff is asking for injunctive relief so in every one of the briefs on in any of these big protests that are probably prosecuted you start off obviously with the likelihood of success on the merits and then you go to the balance of the arms and to the public interest so in in all of the briefs in all of the briefing we in three briefs that we submitted and in support of our case and in our complaint we said that what we want is the contract reinstated the status quo ante the illegality restored if either the government or harbor or the other protest or g a o who will intervene that the  federal claims courts you want if any of them thought that either the court lacked jurisdiction to grant the request of relief or that there was that there was a limitation on the court's equitable forty to do that they had an and that the injunction has been granted same time it's true it's better sign post the entry of of any kind of water adverse to them that they can say anything is in the motion with respect to the stay is the first time after in his telling before the c e o properly for the court of federal claims properly because it had occurred prior to the to the decision to reinstate i'm sorry prior to the decision to follow geos recommendation but one of the court of federal claims holdings which is under challenge on appeal by turner is that the court the c e o had no obligation to conduct a reevaluation of the g a o decision and that's consistent with a significant and longstanding president from this court if the g a o decision is rational then an agency and agency decision to follow that g a o decision must well after her own board decision was made doesn't mean that that additional record should have factored into her decision to follow the g a o recommendation because when g a o recommendation came out she did not have an independent obligation to make another decision to follow this second point that i'd like to address is mr mchugh was argument that not a single case supports the relationship here giving rise to no c i and he talked about all three services and i would like to compare the relationship in l three services the relationship here their fs the a company called f c i had evaluated a proposal of a company that it worked with occasionally as a sub  j look for whether there was evidence of a corporate relationship evidence of f c i was making judgments that would otherwise directly influence its own wellbeing and so there wasn't a direct financial benefit well here there is a direct financial  was involved in the early stage care of it and a calm is now performing the contract the fact that that direct benefit didn't become one hundred percent certain until a few days after award it doesn't impact agency in developing this different design concept by sending representatives to a design interest in september two thousand and eight i prepare a charrette report in october two thousand and eight and by submitting a draft copy of the technical provisions in december two thousand  charette and during the preparation of the design charette report which were conducted by a comms subsidiary there was an offer on the table of active negotiations those facts do support the finding