number two thousand and ten five zero three seven to tolo king joint venture against the united states mr  meat and potatoes of your argument can i just get a sense from you as to exactly where things stand the role of the players is this solicitation then has there been an award in this case and including your client did your client bid on the contract no no and there's a representation i think in your brief and i just wanted to check that your of the clock wasn't running your clock well i just to get the lay of the land here so assuming that we were to say no this should have been limited or at least in some way confined so that  disabled that are and small business owners could participate in the procurement on a preferred basis whatever that might be would your client be able right it would be unusual but that's it would be beyond my expectation because the buildings have at least half or more completed at this point so i don't think you can order a repro cura meant that the split i think you could order and this is really what we're looking towards is to enter an order directing the department veterans affairs to follow the correct procedures and determine whether or not the spoke german should be set aside for small business for a service  work in other words what you're saying is it that for purposes of future bits we should enter no letter saying that it won't affect this case but in the future here's the way remedy request suddenly changed and you no longer were asking for rebidding the pick of the hole you now are seeking damages that's what really understand is that correct yes question what is it you walked well to answer the question you have to look at the standard no we don't have to look at anything except to know what is it you want what is your final paragraph in your brief i have asked for profits on it that can't we can't ask for that relief though without we can ask for that relief without the lower court hearing the motion for relief in deciding whether or not we meet that standard and that's why it's difficult to answer your question on the primary appeal we're seeking to recover and we recover at this point is the attorney's fees for filing the protest and i believe we're still in title and i leave our brief made the point that we're still entitle to recover attorney's fees if our protest was properly proper the time because of the lower court granted it we would have gotten the opportunity along with other services able to better known small businesses the opportunity to participate in their procurement because the devious him we remain and the case to the that but assuming that we have a clean hundred percent victory at this appeal court so you want us to say you were wrong and in terms of your basic appeal decision where you said that there was not sufficient error right law meaningful then you are not at this point a prevailing party because you haven't won and mootness typically would defeat the ongoing nature of the case  for purposes of an ija award another with put another way if the case is moot you can't say it's not moot because you hope to win on remand and then become a prevailing party and then get themes of the book the canon case from the supreme court a few years ago had very similar facts the case became moot while they were litigating the case and the supreme court said ok that's the end of it no fee it's because you want a prevailing part you have to be a prevailing party in other words first you don't avoid mootness by the hope of becoming a prevailing parked right isn't that a fair statement of the law i believe so i us why you didn't raise this initially before the court play if not your argument with regard to that it would be way no after that to us i don't think so if you look at the motion for relief if the court of law recorded the najar motion for relief on the facts i would so where is all this you're saying this is an argument you made in your brief in support of your appeal in this case not not not that's an order that's an argument we made in  question is because the court consolidated the to appeal to have two separate appeals we filed one on the basic decision and one on the motion for relief and we're prepared to argue both of them but really it's a recession for relief and that and so there's the at the motion for really that wasn't the issue at the time because our last profits argument only becomes available to us if we have a hearing on the motion for relief and we need our heavy burden on that motion for relief to show that we had evidence that we could not a recently discovered beforehand and then show further that the government gauge and bad faith we never got to that point when the court denied the motion for relief on standing that stop that issue and the court never addressed the factual issues more really asking today is to say that what you're asking us to do is order remain to the core federal claims to revisit the motion for relief correct which she denied in your view wrong grounds for refusing to hear your motion for relief that's correct and so what you want us to do is rule she was wrong grant his motion for relief and then deal with all those other issues your trial drudging she was wrong in whatever way they need to be dealt with she was wrong and you just do i have that much correct pretty much us reason i say pretty much as her first stop was trying to be technically accurate the first step in a motion for relief is the determine whether we've provided sufficient evidence to show that we should not have known or to not have reasonably known of the evidence from a none of that is before us no and let me ask this is it your thinking that when you go back for a motion for relief you're now going to waive all the issues that judge bryson has pointed to is the question of that and that is what kinds of damages you're entitled to yes or you may have to the result of a motion for relief could be opportunist as amending the complaint because there was evidence that we could not reasonably discover that led us to have different information which would basically open up the whole case of oh the first thing we have to decide is whether when was the when was the request for lost profits for the first time i can tell you that the request for lost profits was made at what time with the reason what that was not as well go ahead the reason it's not kind of made up to get the case back there and i think that's kind of what you're saying that as we were preparing the appeal during the primary trial the government induced into evidence a list of sources such notices that showed the support of the government's position as very for the appeal went back and pulled up effects of the alleged violation and the court use the word and making that decision and it's our position that quick happened here was basically a contracting officer that just didn't decide not to play by the rules didn't want to do things fairly we have a course of dealing that we've dealt with the government considered if you look at page seventeen of our original and the court's original decision you know to the court that the government conceded that this one hundred an officer behavior that different than all the other country officers behavior of which we present that had ongoing projects allowed to complete those product to the extent that projects were awarded to it while he was still alive they're still allowed to complete those projects and it goes on to that extent i don't believe all the projects have been looted at the time to process   and just one more question about the the motion for reconsideration that the trial judge states that the plaintiff could have made the arguments asserted in the motion before the decision issue that sounds like saying that this is not something that is the high court newly discovered that it was different information on a motion for reconsideration and it involved a specific information letter issued by the v that we didn't know existed and she found that we could have found it through exercise or better diligence that's not what the motion for relief is on the most of relief because we've found as a result of our careful detail consideration rather than following any specific outline has been referenced to the joint venture to toking still existing to the best of the government's knowledge it doesn't and that is because the documents it was never a joint venture agreement entered into the record below when this whole question of filed the complaint because at the time they filed the complaint they were the late johnny venture and mr towles quite well and healthy exactly and we challenged after his death we challenge that in response to in the briefing and i'm responding to be the comments today in response to the questions from the court the complaint sought to stay the procurement and in order to resell was it the procurement as restricted to disabled veteran on small businesses you didn't see it preparation costs were good proposal cost logically because there had been no bid and had been no proposal in fact all the way up through all of these proceedings as there is i can't tell he kept talking about switch actually occurred your honor in the motion for relief from judgment because in the motion freely from judgment there's a recognition that they're no longer entitle to we solicitation and there's a request there for relief and in the briefing before the court a federal claims on a motion for relief from judgment the notion that they might be entitled to attorney's fees pursuant to twenty eight u s c twelve b was raised and the issuing its ruling be consistent with this court's holding an app tell services to talking like standing what about the issue that we were discussing at the end which is did they see i mean there's another an additional argument here that if indeed the motion for relief was seeking lost profits then the analysis of movements might be different was that something that was raised it came up and was discussed in connection motion really to the best of my knowledge it wasn't raised either into talkings opening breach to this court or anywhere but well i was reviewing that the motions in the briefing on that issue and based on my cursory review today it wasn't raised in any of the briefs me how well it was it raised in the motion for relief i mean we have in the joint appendix a grand total of three pages that pertain to the motion for relief we have the first page of the motion we have the first page of the memorandum in support of the motion and we have the caption page of the government's response and nothing more we have your based on aft health services is correct to an extent and we have not defended that decision in passing the court mention at the end here's the request are you suggesting there in bankruptcy i'm suggesting that because with the death of mr to t brief there the trial court would have no jurisdiction to consider that there can tension that they were entitled to damages and for two reasons one the trial court considered this case the case was filed and the complaint indicated this is not a case where the statute is silent this is a case where the statute expressly precludes the relief that they now contend that they seek this court with a trial would have if this now suggest that the matter should be remanded not a point out in the reply brief they specifically indicate that this courtroom would the attorney's fees under twenty four twelve b and his there hasn't been a favorable judgment and clearly that can't be done if this matter remanded to the trial court the only basis with a trial court to consider the the statutory basis for the court's jurisdiction would be twenty eight u s c fourteen ninety one b to b b and section b two which provides the relief the court can grant in this case it is limited to equitable relief and to  apply now twenty four twelve b has been amended to two to be somewhat less onerous and now provides that the government will be liable to for attorney's fees on the same basis as private parties but that this is the statutory provision talk about something outside organ incorrect argument was made below the assumption in some cases the assumption seems to be that to tell the king indicates that there needs the court of federal claims needs to exercise some subsea supervisory role in this case i think it's  was monitoring the filings was if you were responding to improper arguments and this notion that there has to be some sort of damage remedy in this case is completely from their viewpoint as i understand it they started out saying well wait a minute we are entitled to this statutory and executive water preference and you mr government denied us that preference because you put out that s s what is a call that s s or whatever it is and a month later without waiting very long to see what came in you flip it over and said oh we'll go broadly and open it up everybody in within one month their argument at that point was wait a minute that's not right so they bring a suit in the court of federal claim under the statute for rebidding in the meantime over time they get admiration judgment trial court rules against them on the merits right so far then they're starting to get an appeal they're starting to try to figure out a motion for reconsideration by the trial court and the government probably goes out and bids the thing and get some contractor  stock built in the building which is well along at that point there really is no remedy that the trial court if it should decide it was wrong could give them in terms of rebuilding the government is now blocked that remedy by getting it out and proceeding ahead which presumably it isn't tied to do because it had a judgment and before that plane which had not  at that point what did they do well it's not clear in all of the things they did but at this point what they seem to be saying is wait a minute the government was acting bad wrongly  denying us the trial court was wrong trial court wouldn't correct itself and now we've got reason to think there was bad fit where do they have is there any statute or a law under which they can now go against the government in the court of federal claims and say ok i can't repeat it because it's too late but at least i want some kind of damage is remedy for the government wrong is it your argument that because they started out as a protest there is no repast of the remedy in the court of federal claim for damages the the result of there being no remedy is the logical outcome of the moot there's no question about that because the government went ahead and issued the bins outside the ground that they say they should have done so that moo procedural outline what you've done is incorrect in two points and let me address those first i want the notion that the government quickly procured is incorrect because the government agreed to a stay of the curate proceedings while the court of claims considered these proceedings  instance talkings motion the court of federal claims denied to talkings motion for reconsideration and in so doing found that it was untimely and specifically as well determined that even if all the arguments had merit that the way into tolo going to talking and bringing that motion warranted to denial of equitable relief because it to tolo king's delay you said just to make sure we've got the right document here i think you referred to the motion for  also made a determination that the interests of equity favor denying to tolo king any relief because of the delay ok so we turned to the motion for relief from judgment and that's the most recent water and that dismissed the case now we have to fend we've argued that the court was correct as to abdel services as we pointed out in our brief the sequence of filing as to that motion for relief and judgment is somewhat confused a placeholder was filed on the federal claims was correct in the holding after all services were to dismiss and then the the overall response to your answer is there is absolutely no relief for a contractor allegedly aggrieved in this matter being compelled by the fact that the government's already warned that this project is someone else and halfway done i understood the government's position with respect to move us not to be with regard to that i mean he wouldn't say this we don't have jurisdiction if he were still alive right absolutely not you know that the mootness question is related to his being alive versus not not with respect to the fact that this is moot because the government's gone ahead contracts right that's just a function of equity practice and you see a preliminary injunction or a t r o in order to prevent the occurrence of something which when it occurs will effectively as a practical matter trial court indicates that the government action is justified the government may go ahead with the procurement even though there's the possibility of an appeal let me come back to judge approached question your trigger then is the fact that the bit to actually build this hospital let's assume they got the bit the government when i had gave them the broker and they qualify their building the building and mr cologne  but before he dies there's a dispute between the loan of cain in the process of building this thing and the government over changes you're familiar with how we get these if not he but if the entity that's claiming a wrong is suing for damages it's a different problem this is death is irrelevant well why is  twelve b which doesn't apply there is no statutory basis for the court of federal claims to entertain the request for relief which to toking is now set forth in its supplemental brief to this court at least to the government's knowledge  my recollection the first time it's ever been raised it is an oral argument today and i was reviewing a briefing attempting to quickly before because it had been raised in a briefing and i just wanted to see if perhaps had been raised in passing that the best of my knowledge this is the first time it's ever been raised there is no case within a general assignment to liquidate their assets this is a completely different situation of the business that still exists and in fact while i can't get on as a service disabled veteran on small business projects you can still bid on small businesses t can combine together do not exceed the networks require the rosales requirement set up in the appropriate they scout for small businesses doing construction so they can still do work they just can't do work under this with respect to ija is it your position is this a fair statement of your position is that because ija would give you a right to apply for attorney's fees if you were a prevailing party then their four defeats a claim of mootness in any case in which one might raise an egypt claim and gives you a right to go back to court and get a ruling on the merits in order to determine whether you are the that was the end of it there was no right to continue on in order to get this that was just a flat out denial of the request but i don't believe that the case is moot when there's a likelihood that the conduct involved in th do similar things therefore we should keep this case alive in order to get a ruling that will apply to other contracting officers is that what you mean by reoccur that gets to be capable of no but if corrective action isn't taken that then encourages contracting officers to kind of go their own way and that's an important part of the protest is to to miss kind of put a little chill in contracting officer saying you have discretion you have a lot of that but it's not absolute and then there's laws and regulations to tell you what to do you've got to do it and so that's where we believe we come in the mood like we don't have mr right i don't want to listen title to recover if we hadn't won on the presented but then she found that we hadn't established the factual predicate of showing the practice of how this work was done in the in the dva we're talking about listing down amounts and source of son of says so her decision between sixteen and seventeen actually contradicts itself because it was uncontested that this gentleman's behavior was inconsistent with other country officers behavior in similar circumstances and that's what we believe her basic decision was defective during the course