2012-5138 from incorporation versus the United States. 2012-5138 from incorporation versus the United States. 2012-5138 from incorporation versus the United States. 2012-5138 from incorporation versus the United States. 2012-5138 from incorporation versus the United States. Rapp retracts audio input. supporting the four line items there in this. This is a curiosity. Why is this that you are bothered by the new solicitation? Why? The old one was it closed at the time? I don't understand closed. 2011. I'm trying to figure out why when you just file under the new solicitation line. We did, but new competitors were allowed into that. That's what I was wondering. At the time, the old solicitation canceled. Because we reinstate the old solicitation. Doesn't it remain open longer? It wasn't closed at the time it was taken offline. So couldn't new people just file under the organization? No, it was closed in that sense, Your Honor. Close is not a term of art. No, no, no, no, new offerors. No new offerors could participate in the old solicitation. No reason would a narrowing of the competitors. There were 14 helicopters left for a war on the quote unquote old solicitation
. When they reopened it, new competitors came in. Old competitors changed their pricing and what happened. Essentially, we had the classic late bid situation here by doing this. Mr. Saltman, help me on this and you have to work with me too. What's the situation? If an agency puts a solicitation out, it gets some bid. It's really unhappy with either the number or the quality of the bid that's gotten on the solicitation. So it says, you know what? Let's throw our net back in the water again. And it says, we're going to terminate this solicitation. We are going to resell it for the law and GAO has many years. If the proposal did not meet the government's needs, of course the government should have. The question of whether it's not the government's needs would be, I assume, that the agency would say we really don't think these days. They came in, they offered us a, we really decided now we really need b. There's a list of their choices at that point are either to amend the solicitation and allow me to walk forward to kind of your honor. Or to canceling the proposal. So why isn't that effectively what happened here with respect to the four halos? Well, they canceled them, but for allegedly not having funds, when in fact they had to. Okay, well that's your first argument. This really goes to the second question. The question of whether what they should have done is just simply go back to the first solicitation. Because when you do that, you violate the integrity of the competitive system. But why, again, going back to my hypothetical or informational question
. Okay. Why does that, what I was asking about different from what happened to you? You have a very fundamentally different situation. You're not saying in your hypothetical that, oh. The terms of our original solicitation were perfectly fine. We're now going to award to a new group. What you're saying is I need, I need to change the terms of the solicitation to bring in new people. That's fundamentally different, that's fundamentally different contract. What we have here is they came out for a new solicitation with the same old requirement. There was no need to bring in late author or in your hypothetical there was a need. Because the original solicitation did not use the government's needs. Well, the original solicitation or the original sex did. Well, in the end. I think it's two sides of the same point. Well, maybe I'm again, giving some help on the, the nomenclature here. But what you're saying is there's something different between my hypothetical in which the agency was unhappy with the responses to the initial solicitation. And they redid, they chose to redid. On new terms. Well, are even the same terms if they were hoping that they'd get more expressions of interest or perhaps. No, I think that if we were on the same terms, we'd have the same argument. So that's the, that's the difference between my words. They can't come in and say, oh, we only got three dids
. If we cancel it, put it back out on the same exact basis, we'll get four bits. They can not do that. They can. No, okay. That would be allowing a late bid to come in. I see. Okay. The government did. But they don't have to afford the contract either, right? Oh, that's right. They can decide the three dids that we got are just. That's fine. They're making a war. That's not possible. No war. And we do be no worker. And they're later they decide to put a contract out that looks a lot, but it's solicitation. They look a lot like the original one to see now that they still need the, the health conference they put out another one. And then the question about how similar really is that due solicitation? But yeah, the similarity can also be lent to time. Let's assume they cancel the solicitation at year one. And six years later they put up with the answer. I think the argument goes away
. I think I see where you are. Now, the government has argued that it has a non-protectual reason that it can't be the solicitation of the first instance, which is budgetary uncertainty. Yes. That's how I would. That's right. That's right. And then later, based on no additional information, except for the fact that they have decided, you know what, there's a kind of force this. I mean, you know, I mean, let's think about it. You go to the supermarket. Can I afford that or not? No, I better, I better pass on it for now because I just don't know if at the end of the month I put up enough money and hides it. I don't want to not be able to buy milk later. And then as the year progresses, you know what's good about money for this? You know, the budget is stuff that we can do this. I mean, why isn't that a legitimate enough reason? That's not that maybe fine, Your Honor. That's not what happened here? Well, in some cases, what happened here, but even under that hypothetical, I would say, Your Honor, they knew all along that this uncertainty does rise to the level of a reasonable basis for cancellation. But that aside, Your Honor. But the way, who has the burden of proof here? Well, you have to prove that it was cancellation was improper. And they're asserting a non-protectual basis that you just said, well, that may be true or not. But your Honor, they did. Is true, does that end the inquiry? No, it doesn't. You're Honor. First of all, they say, quote, in their brief, the appellant has never stated that it couldn't have found the money
. So it had the money all along, even though it is arguing. Keep in mind, I could have found the money too when I went to the grocery store. But it was a matter of priority. It didn't matter if I wanted to spend this money. Now, I've got the money in my pocket. But do I want to spend it now? Or do I want to wait and see how the rest of the fiscal year works out? I mean, we're not, we're all living under sequestration, looming large over our heads right now. I realize this is not a contract in place today. But it's sort of reinforced financial aspect in my mind of what maybe they were going through at the time regarding being cautious with their budget. Your Honor, but the little case law goes on to say that in that instance, where they now say, oh, lo and behold, we have the money to fund those four-contract line-ups that they cannot go out on the street for a new solicitation for the same exact requirement they are required. Where does this thing go required? Because my understanding of the case law, I think the case that you're talking about, I don't have a handy here. But my recollection is that where they say they made a mistake in campground. No, it doesn't go that, it's not that limited. I thought that each of those cases that you cited, I don't think that happens. And maybe remind me of which case and tell me which one doesn't have, and it's issued by the government of a misuse. Alternative, alternative policy reconciliation does not. Alternative, how is this an expiration? Basically, in that case, it's a consideration of offerors which have the offer to the right to submit a proposal. Is the GAO case okay? Yes, this court has not addressed this issue directly. But even in the GAO cases, so there was no admission there by the law? No, they had argued in that case that they had done it properly, but the GAO had disagreed with them. And the GAO imposed the late bid rule. And we fight also to build right contractors and big remain the factory in our agreement. I wish there were a case law on this in the circuit, but it hasn't rise yet
. We will have it after this case, I trust. Besides Bill Thrive, what was the other case? Big remain the factory. The government, the government says though, that notwithstanding all of this, it doesn't matter because Chroman was not in the zone of consideration for award of those four items. And as we point out in our papers that the record shows that Chroman had a better combination of technical merit and low price than any of the 14 other helicopters to which award of these things could have been made. And we go through piece by piece at note 16 on page 17 of our brief. And I won't repeat that here. But the record shows that but for the agency's cancellation of the four clins, Chroman would have had a very substantial chance of being award at least one and perhaps as many as three of those line items. Now, I had to look at my notes to confirm that. I had the understanding that the three cases, the three GAO cases, the side of the cases in which it was the predicate for the GAO's conclusion was that there was improper cancellation of the original solicitation. Is that right? I believe in each of the cases that occurred. But I don't think that the cancellation here was not improper in the first instance than those cases wouldn't control. Oh, they would control your honor. I think that the fact that there was improper cancellation is not critical to whether or not they were like this. But if the agency somehow had made a proper determination and we don't agree that it is the cancel and then comma came out the next day and reissued a new solicitation, we would make the same argument that this is nothing more than opportunity to allow late bids in. And I believe that each of those cases would apply in that instance. Again, the rules on late bids, which this court has adopted, are very, very strange. You don't allow late bids in because it violates the integrity of the system. By the way, in matter of alternative houses, I have on my screen right now just the one page decision that says, quote, the bureau does not dispute our conclusion the cancellation was improper. So I think technically factually you're wrong, at least on that GAO case, I'll have to take me longer to go pull up. I believe one of the other cases that I may be in the state. But in that one, it says it expressly
. Is that reconsideration of the original? Matter of alternative house. But reconsideration or the original case? I believe that's a reconsideration. Reconciteration, yes it is. Judge Walg, you want me to, I realize I've known you in my time, but you wanted me to address the failure of the government to perform a trade-off. I want you to address your argument. And that's already to give it the government here in its source election plan. Now, I'll quote your honor. That a trade-off analysis will be made first by determining the best value for each item. That's a20015 of the record. Unless we'll cut right to the core of your argument, which seems to be that they just did it mechanically. They did it mechanically or not. They put it into the computer, the computer spewed out numbers and recommendations based on the evaluation. No, they said it. No human looked at it thereafter. Here's my problem with your argument. The numbers they go into the input to the computer? Yes, come from human beings. There's four bunches of teams that are created to come up with these evaluations. That's right. Isn't that human input? That is human input. But here's the human input that was missing. You come up with these numbers
. And in the case of the legion, that number is alone to not support a selection decision. And we decided to sum them in our briefing. You have a group of people sitting around. And they score a product. Are you saying that when they do those scores, that's not sufficient? That's sufficient for that purpose, you want? But then, in a best value analysis in the RFP that they talked about, it said the critical factor in making a price technical trade-off, and I'm reading on the RFP, is not the spread between the technical scores, which we'll put together by human beings, but the significance of the difference. The computer can't judge the significance of the difference. No human being judged the significance of the difference. What is necessary in a trade-off analysis is for a human being to say, I have a high price offerer, who has a very good technical score, and probably has a high price. Is it worth spending the taxpayers' money to award to this higher-scored, higher-priced offerer, or can I get the best value by selecting someone who can with a technical difference really is not all that substantial, but we can save an awful lot of money. That's the decision that the source of the left is official, is supposed to make on a line item by line on a basis that he did not make in this instance. He got his results from the computer, said they were massive, said they showed me which way to go, and he followed it. Mr. Assaultman, we better hear from the government. I'll work for a few minutes of your report. Thank you, John. Mr. Austin. Now, Mr. Austin, isn't it, what Mr. Assaultman is saying is that there is no human input to the computer. Is there any further human input at that point? There's extensive input after that point
. As you're on a point out, in your questioning of council, there's extensive input before, but going directly to your question about after, yes. As soon as the data came out of the computer, it was reviewed by three different entities of me. By the contracting officer, the TET and the SSA, and that's documented in our records. ASS-A certification is at page 020734 of a record, and the TET review is documented at 020535 of the I.X. In addition to that, as you would expect, the contracting officer reviews the data that comes up to the computer to make sure it complies with the terms of the solicitation. So, yes, it's absolutely true to receive an input. I also want to talk about the human input that goes in the initial stage, because it's extensive. I have an impression. There's four different criteria that go into the calculation of 65% accounts for the technical. Two of those are subjective evaluations where the TETs sit down and actually looks at the evaluation both for past performance and for organizational experience. So, it's all human input there. In addition to that, you probably would call it, there was a corrective action here. Under the first corrective action, the TET actually took the computer data and made a change. It didn't have to the second. It made a change because one of the authorores had offered four helicopters and all four received claims. And he decided, for that particular vendor that it made more sense, that simply had three claims awarded to him. And saved the fourth claim to have this helicopter assigned to replace the other three. So, it changed the winner for that claim. In Chromins brief, Chromins says in two different places and two different footnotes that there was no trade-off analysis between price and technical factors or the magic time factor. They say it even more bluntly in another place in their briefs
. They say there simply was no trade-off analysis. There was nothing could be further from the truth in this case. And I want to demonstrate that to the courts so the court understands that. And if the court will allow me, I'd like to turn to attachment seven to the award recommendation which appears at page 020731 of the joint appendix. But, you're on it and it's difficult to read and I prepared a blow for that if we could bring that up to the court simply for that date. Do you have the okay? Sure. This attachment is extraordinarily significant and that's why I want to take the field. You go over and view exactly what it contains. Or, fortunately, it takes some knowledge as to how it works that understands the detail of the information that's in here. Is this all confidential? Yes. But it is an appendix of page 020731. I'm just providing a quote with a copy. If you look at the upper left hand quarter and the data that appears there, you can see the waiting that was done in this chart. The lower rating is if there was 100% wait given to total low price per pound which is no... In a known argument you referred to percentages and you said about loud and I thought they were confidential. And so I pinged my clerk and that's why I'm so... Whatever you say, I'll assume is not confidential and we can talk about it. We can talk about it but it is confidential information. The court will not close and I'll go on. You do realize that these records are going to go on the website. Okay. So whatever you say in this court room is not confidential. I understand. The waiting that was done here was 100% for total loss price per pound, that's the lowest data. There was another waiting for 100% low total cost, another one for 100% total low agit-pival. And the last one was a weighted OM with 65-35%. And if you look at the top of the page at the title of this, it says trade-off analysis comparing OM assignments for 9 items 16-34. Between weighted solution and three single objective optima. To say that there's no trade-off, but this is exactly the purpose of what they did is completely incorrect. Now let's look at how this works. What this means is I'm going to shake to say they were skewing and pushed because somebody missed all weight. If we look at... The claim that they raised in their breads is 27-17. So I'll draw your attention to that, which is the second clean. 100 line item, you'll see all those 17s. And you'll see total low price per pound, and we'll see central coppers, court with me
. We can talk about it but it is confidential information. The court will not close and I'll go on. You do realize that these records are going to go on the website. Okay. So whatever you say in this court room is not confidential. I understand. The waiting that was done here was 100% for total loss price per pound, that's the lowest data. There was another waiting for 100% low total cost, another one for 100% total low agit-pival. And the last one was a weighted OM with 65-35%. And if you look at the top of the page at the title of this, it says trade-off analysis comparing OM assignments for 9 items 16-34. Between weighted solution and three single objective optima. To say that there's no trade-off, but this is exactly the purpose of what they did is completely incorrect. Now let's look at how this works. What this means is I'm going to shake to say they were skewing and pushed because somebody missed all weight. If we look at... The claim that they raised in their breads is 27-17. So I'll draw your attention to that, which is the second clean. 100 line item, you'll see all those 17s. And you'll see total low price per pound, and we'll see central coppers, court with me. What that means is that if 100% weight was given to total low price per pound, central coppers would have won clean 17. If you look at the next line, it's total low total cost, total line helicopters were won. And that's 100 and optimum, where 100% weight is given to cost zero to the others, timber line were won. The next one is total low agitival. That's where 100% weight is given to the technical factors, the agitival factor, and colonial helicopters were won. And finally, the top line, which is the weighted OM with the 65-35, they have yet another helicopter, fire-hawk helicopters. You can see that the weighting, the 65-35 is dispositive of who wins each clean. And that demonstrates the trade-off analysis. To the extent there's any doubt your honor's mind, the upper right hand corner is particularly instructive. I'm talking about the top line, which is line items 16 through 34. And remember, this deals with the not the heavy helicopters, the middle weight ones, which are subject here. And remember, each helicopter can only serve one clean. So that if one helicopter has the best ratings for five different cleans, part of this optimization model is to assure that that helicopter, the man's in the clean, will give the best values of the government. So the information, and that's up or again for it, is extremely instructive. We only need to go to the total low PTP line, but we just look at the total low total cost line. That would be $121 million. And what that figure means is that if 100% weighting is given to cost, they would, everything else, it would cost the government $121 million to procure these helicopters. But look at the Agitival rating, which would be 2.496. Now, if we just ignored cost completely, and went to total low Agitival, giving that 100% weight, it would cost the government $155 million. Now, this is very helpful, and you've done a good job explaining the form
. What that means is that if 100% weight was given to total low price per pound, central coppers would have won clean 17. If you look at the next line, it's total low total cost, total line helicopters were won. And that's 100 and optimum, where 100% weight is given to cost zero to the others, timber line were won. The next one is total low agitival. That's where 100% weight is given to the technical factors, the agitival factor, and colonial helicopters were won. And finally, the top line, which is the weighted OM with the 65-35, they have yet another helicopter, fire-hawk helicopters. You can see that the weighting, the 65-35 is dispositive of who wins each clean. And that demonstrates the trade-off analysis. To the extent there's any doubt your honor's mind, the upper right hand corner is particularly instructive. I'm talking about the top line, which is line items 16 through 34. And remember, this deals with the not the heavy helicopters, the middle weight ones, which are subject here. And remember, each helicopter can only serve one clean. So that if one helicopter has the best ratings for five different cleans, part of this optimization model is to assure that that helicopter, the man's in the clean, will give the best values of the government. So the information, and that's up or again for it, is extremely instructive. We only need to go to the total low PTP line, but we just look at the total low total cost line. That would be $121 million. And what that figure means is that if 100% weighting is given to cost, they would, everything else, it would cost the government $121 million to procure these helicopters. But look at the Agitival rating, which would be 2.496. Now, if we just ignored cost completely, and went to total low Agitival, giving that 100% weight, it would cost the government $155 million. Now, this is very helpful, and you've done a good job explaining the form. I don't want to be really, because if you really want to spend more time on this, I want to let you. But I really would like to ask you a couple of questions on the other issue, which is the cancellation and reinstatement. And is this a community timer? Do you want to spend a few more minutes? I just had a couple more minutes, and I'll certainly talk about that. But, and you can see that the Agitival is 2.2873 for the Agitival, the weighted OM, on the other hand, is 135 million. So the government there is trading off $14 million if you compare it to total low cost for an Agitival, it's 2.29. Compared to 2.28, so you have a .01 Agitival in an ideal situation, you get $30 million from a total Agitival would, of course. That is what the opposition model did. It was a trade off analysis, and it did it perfectly. We've looked at it on the issue of prejudice, and then I was going to turn it. It's okay with court. If you were prejudiced, a court's observation, while there was no prejudice, is really a very common sense one. You have to compare yourself to the other competitors. From it, you can do it alone, you can do it with your open breed to this court. They tried to do it in their reply rate, but they made it in the Roanian statement, which tried to attack our analysis. I'll explain it in a moment why that's Roanian's. But it's common sense why you have to compare yourself to the other competitors. Let me just be one of the fatigles illustrate this
. I don't want to be really, because if you really want to spend more time on this, I want to let you. But I really would like to ask you a couple of questions on the other issue, which is the cancellation and reinstatement. And is this a community timer? Do you want to spend a few more minutes? I just had a couple more minutes, and I'll certainly talk about that. But, and you can see that the Agitival is 2.2873 for the Agitival, the weighted OM, on the other hand, is 135 million. So the government there is trading off $14 million if you compare it to total low cost for an Agitival, it's 2.29. Compared to 2.28, so you have a .01 Agitival in an ideal situation, you get $30 million from a total Agitival would, of course. That is what the opposition model did. It was a trade off analysis, and it did it perfectly. We've looked at it on the issue of prejudice, and then I was going to turn it. It's okay with court. If you were prejudiced, a court's observation, while there was no prejudice, is really a very common sense one. You have to compare yourself to the other competitors. From it, you can do it alone, you can do it with your open breed to this court. They tried to do it in their reply rate, but they made it in the Roanian statement, which tried to attack our analysis. I'll explain it in a moment why that's Roanian's. But it's common sense why you have to compare yourself to the other competitors. Let me just be one of the fatigles illustrate this. Let's assume for Clinton 17, there were 100 off-roars, and for whatever reason, the winner of the Clinton's word to eliminate it, you now have 99 off-roars there, one of which is cronely. Let's assume in this hypothetical, that 98, the other 98, all had lower costs and all had lower Agitival's cronely. Well, we were still proud of this. They didn't have a substantial substantial chance of prevailing, because all 98 would have beaten them. So what's important here, and what the trial court emphasized, is that you have to have that analysis done, and it didn't build below, and it didn't even do it in their opening brief. In this case, where again, they just compared themselves to the winner, and that's an acquit, and therefore it's clear there's no prejudice. The one point I wanted to make in the reply brief, we gave a hypothetical where we demonstrated two helicopters that we felt from an analysis would get it one of the four, one of the, if the winner of the firehawk winner had knocked out in Clinton 17, its total cost was emphasized, it would have been a swanton. If Agitival was emphasized as a 55-35 indicated, it would have been another firehawk. They come back and say, well those helicopters were eliminated from the competition. That's not true. There's nothing in the record that indicates they were eliminated from the competition. In fact, if you turn it into a record to attachment one to the award recommendation, which is rotated at page 820511, you can see those helicopters listed there. And all they say to this principle is a footnote in our brief below where we said, as I mentioned earlier, that doing the correction for one particular vendor, the court decided, I'm sorry, the fire service decided to eliminate the one helicopters, because there are the three were being used. You can see on 820511, the number, if you look at the first part, they're all the wing vendors with helicopters, and on the second part, you can see that there's no losers. The people who didn't get a clear and listed below, if you're only listed above and you're not listed below, that means that all of your helicopters are used in a claim. Therefore, the statement is wrong that they were eliminated. Finally, I want to turn your honor to the issue of the cancellation. This is really, in my view, a very simple question. The government absolutely has the right to cancel part of the solicitation as long as it doesn't do so in arbitrary and precrecious manner. Here in the trial court made a factual finding that the government's reason for doing so was ration. That reason being budget construed
. Let's assume for Clinton 17, there were 100 off-roars, and for whatever reason, the winner of the Clinton's word to eliminate it, you now have 99 off-roars there, one of which is cronely. Let's assume in this hypothetical, that 98, the other 98, all had lower costs and all had lower Agitival's cronely. Well, we were still proud of this. They didn't have a substantial substantial chance of prevailing, because all 98 would have beaten them. So what's important here, and what the trial court emphasized, is that you have to have that analysis done, and it didn't build below, and it didn't even do it in their opening brief. In this case, where again, they just compared themselves to the winner, and that's an acquit, and therefore it's clear there's no prejudice. The one point I wanted to make in the reply brief, we gave a hypothetical where we demonstrated two helicopters that we felt from an analysis would get it one of the four, one of the, if the winner of the firehawk winner had knocked out in Clinton 17, its total cost was emphasized, it would have been a swanton. If Agitival was emphasized as a 55-35 indicated, it would have been another firehawk. They come back and say, well those helicopters were eliminated from the competition. That's not true. There's nothing in the record that indicates they were eliminated from the competition. In fact, if you turn it into a record to attachment one to the award recommendation, which is rotated at page 820511, you can see those helicopters listed there. And all they say to this principle is a footnote in our brief below where we said, as I mentioned earlier, that doing the correction for one particular vendor, the court decided, I'm sorry, the fire service decided to eliminate the one helicopters, because there are the three were being used. You can see on 820511, the number, if you look at the first part, they're all the wing vendors with helicopters, and on the second part, you can see that there's no losers. The people who didn't get a clear and listed below, if you're only listed above and you're not listed below, that means that all of your helicopters are used in a claim. Therefore, the statement is wrong that they were eliminated. Finally, I want to turn your honor to the issue of the cancellation. This is really, in my view, a very simple question. The government absolutely has the right to cancel part of the solicitation as long as it doesn't do so in arbitrary and precrecious manner. Here in the trial court made a factual finding that the government's reason for doing so was ration. That reason being budget construed. Okay, well let's assume that you're right about that, and then go to the second argument that Mr. Saltman makes, that having done that, having canceled, you had an obligation to go back to the original solicitation. That is, that's actually absolutely no support in the law for that at all. There's not one case in court, I don't know. Well, there's nothing other way either. Well, there's nothing that says the government is permitted to put forth one solicitation, mistakenly cancel it, and then go forward with the next. Well, first of all, you're right, it's not a case of mistake. The case in seizure line, anyway. Well, it is a mistake. At the time you thought you might not have the money for it, and later you realized you did. You had a mistake and ultimately mistaken impression. Well, but the case is, I think you're on it referring to the GDO case, let's talk about mistake, but honest mistake. At the actual language of this day. Did you think this particular one was disposed? No, it wasn't. It was different because it's subsequent events that changed at the time that the government made the decision, they had a budget constraint. And the reason was, this is an October, and they had a continuing resolution that only gave them money until November. So they didn't know what the future was going to hold. In December, there was a bill passed that gave them the money, but the fact that the money became available in December doesn't mean that what they thought back in October was wrong. Well, why not go back? Sorry, go ahead. And also the cases that they say the GDO are distinguishable for three basic reasons. Why not go back to the original? Well, there's two questions there
. Okay, well let's assume that you're right about that, and then go to the second argument that Mr. Saltman makes, that having done that, having canceled, you had an obligation to go back to the original solicitation. That is, that's actually absolutely no support in the law for that at all. There's not one case in court, I don't know. Well, there's nothing other way either. Well, there's nothing that says the government is permitted to put forth one solicitation, mistakenly cancel it, and then go forward with the next. Well, first of all, you're right, it's not a case of mistake. The case in seizure line, anyway. Well, it is a mistake. At the time you thought you might not have the money for it, and later you realized you did. You had a mistake and ultimately mistaken impression. Well, but the case is, I think you're on it referring to the GDO case, let's talk about mistake, but honest mistake. At the actual language of this day. Did you think this particular one was disposed? No, it wasn't. It was different because it's subsequent events that changed at the time that the government made the decision, they had a budget constraint. And the reason was, this is an October, and they had a continuing resolution that only gave them money until November. So they didn't know what the future was going to hold. In December, there was a bill passed that gave them the money, but the fact that the money became available in December doesn't mean that what they thought back in October was wrong. Well, why not go back? Sorry, go ahead. And also the cases that they say the GDO are distinguishable for three basic reasons. Why not go back to the original? Well, there's two questions there. First of all, it was impractical to do so because the offers that had been made from the original solicitation had expired. Those companies were no longer obligated to have those helicopters and in fact, many of the helicopters were born, they've been obligated elsewhere. It was seven months you're on there from the time of the cancellation in October of 2011 until May when they did it, it would have been practically impossible to do so. Second of all, Krogan actually picks up an advantage because those helicopters that were no longer available, they didn't have to compete with them. Now, they argue, well, you know, people had more information from the owner, but they had to save additional information. And what is the extent to which the government is free upon having the solicitation to which there are bits and the government concludes that it really doesn't like the array of bits that it's gotten. So what extent is it free to simply say cancel that solicitation? Let's rebid this contract. Well, you are a back question, which is also one of the reasons these GDO questions, cases are distinguishable, depends on large part whether it's a 414 case or a 415 case. A 414 case is a sealed bin. And it's supposed to be negotiated. Right, that's right. If it's negotiated, presumably you have much more liberty to act on something like that, but if the sealed bin, and this is the negotiated, but if it's sealed, you can't come back and say, okay, you have the lowest bid, but we're not happy with your low bid. What the FARC says in that circumstance, which is the Madison services case of the court of federal claim, which quotes it, is that in that circumstance, you have to have compelling reason. Okay, and that's because those sealed bids are open, everything's out and open, everybody sees it. That's not the case in the Tushie. The standard is very different. You have to have a rational reason. There was a rational reason here. They have a Shen clear error. And what the two are going to have a question. I would ask the court to affirm the decision to let
. First of all, it was impractical to do so because the offers that had been made from the original solicitation had expired. Those companies were no longer obligated to have those helicopters and in fact, many of the helicopters were born, they've been obligated elsewhere. It was seven months you're on there from the time of the cancellation in October of 2011 until May when they did it, it would have been practically impossible to do so. Second of all, Krogan actually picks up an advantage because those helicopters that were no longer available, they didn't have to compete with them. Now, they argue, well, you know, people had more information from the owner, but they had to save additional information. And what is the extent to which the government is free upon having the solicitation to which there are bits and the government concludes that it really doesn't like the array of bits that it's gotten. So what extent is it free to simply say cancel that solicitation? Let's rebid this contract. Well, you are a back question, which is also one of the reasons these GDO questions, cases are distinguishable, depends on large part whether it's a 414 case or a 415 case. A 414 case is a sealed bin. And it's supposed to be negotiated. Right, that's right. If it's negotiated, presumably you have much more liberty to act on something like that, but if the sealed bin, and this is the negotiated, but if it's sealed, you can't come back and say, okay, you have the lowest bid, but we're not happy with your low bid. What the FARC says in that circumstance, which is the Madison services case of the court of federal claim, which quotes it, is that in that circumstance, you have to have compelling reason. Okay, and that's because those sealed bids are open, everything's out and open, everybody sees it. That's not the case in the Tushie. The standard is very different. You have to have a rational reason. There was a rational reason here. They have a Shen clear error. And what the two are going to have a question. I would ask the court to affirm the decision to let. Thank you. Mr. Salman. Thank you. Couple of points, Your Honor. In a field of dissituation, the test is compelling reason, other than a reasonable basis, because the all of the data has been put out in the public. With regard to the question of whether it was. This was negotiated. Whether it was impossible to re-instate, first of all, it was not seven months, it was more like three months after the decision to cancel was made known. It would not have been impossible to re-insate. All they had to do as any other examples where in the GAO cases where they re-insate, just to go back to the office and say, are you willing to re-instate your bid and extend your bid opening time? It has done everything the day of the week. So the idea that it was impossible is, if it was, the government alludes to the fact that we were not prejudiced and points to the fact that in our assessment on page 17 of our briefs, we improperly indicate that the agency excluded the two competitive helicopters. I cannot point at this moment to the page in the record by Willis, who were honest with like. The fact of the matter is the agency decided that for companies that they wanted to have one helicopter in reserve for, in case there were some problems, and that they would not award to a company if it didn't have a spare helicopter back at the home office. And so these two helicopters were in fact excluded from the competition. So for us to say we didn't have to compete against them is a true statement. Mr. Solomon, I wouldn't be using my concrete. The government has said that you may misrepresentation in this court. Now I would be addressing that. I am your honor
. Thank you. Mr. Salman. Thank you. Couple of points, Your Honor. In a field of dissituation, the test is compelling reason, other than a reasonable basis, because the all of the data has been put out in the public. With regard to the question of whether it was. This was negotiated. Whether it was impossible to re-instate, first of all, it was not seven months, it was more like three months after the decision to cancel was made known. It would not have been impossible to re-insate. All they had to do as any other examples where in the GAO cases where they re-insate, just to go back to the office and say, are you willing to re-instate your bid and extend your bid opening time? It has done everything the day of the week. So the idea that it was impossible is, if it was, the government alludes to the fact that we were not prejudiced and points to the fact that in our assessment on page 17 of our briefs, we improperly indicate that the agency excluded the two competitive helicopters. I cannot point at this moment to the page in the record by Willis, who were honest with like. The fact of the matter is the agency decided that for companies that they wanted to have one helicopter in reserve for, in case there were some problems, and that they would not award to a company if it didn't have a spare helicopter back at the home office. And so these two helicopters were in fact excluded from the competition. So for us to say we didn't have to compete against them is a true statement. Mr. Solomon, I wouldn't be using my concrete. The government has said that you may misrepresentation in this court. Now I would be addressing that. I am your honor. We did not make a misrepresentation. The fact is that these two helicopters were excluded and I will provide to him about the spreadsheets of the government all I did to us. It says that there was indeed an influence. Your honor? If you will, I will absolutely address that. There is no human input in this attachment set. But if your honor looks at it, what we have here is a set of, and I'll use the exact language that the government used in its brief. Attachment 7 is merely a display of various optional sets of awards. That is, if we chose to award, are you representing this court? The contract and officer should not go back in and review this after this. Team reviewed it, your honor. What he did is he looked at the data that came out, your honor, we find that. The data came out of the computer largely in this room. See and other people reviewed it for accuracy. They looked at this. Is this number properly calculated? Is this the number we input? They did that, your honor. What they did not do. And what if that's value, calculation, requirements. And your honor will not be at anywhere on this sheet. Is does making an award to company A, who has the highest technical evaluation, is it is justified under, put up a differently. Is the difference in price in company A's high technical approach, worth the increased cost of back line items? So what you're saying is that there was a human review, not the exercise of human trust. Exactly, your honor. I have no doubt your honor that they looked at the sense of human review
. We did not make a misrepresentation. The fact is that these two helicopters were excluded and I will provide to him about the spreadsheets of the government all I did to us. It says that there was indeed an influence. Your honor? If you will, I will absolutely address that. There is no human input in this attachment set. But if your honor looks at it, what we have here is a set of, and I'll use the exact language that the government used in its brief. Attachment 7 is merely a display of various optional sets of awards. That is, if we chose to award, are you representing this court? The contract and officer should not go back in and review this after this. Team reviewed it, your honor. What he did is he looked at the data that came out, your honor, we find that. The data came out of the computer largely in this room. See and other people reviewed it for accuracy. They looked at this. Is this number properly calculated? Is this the number we input? They did that, your honor. What they did not do. And what if that's value, calculation, requirements. And your honor will not be at anywhere on this sheet. Is does making an award to company A, who has the highest technical evaluation, is it is justified under, put up a differently. Is the difference in price in company A's high technical approach, worth the increased cost of back line items? So what you're saying is that there was a human review, not the exercise of human trust. Exactly, your honor. I have no doubt your honor that they looked at the sense of human review. There was not that judgment call that is required in a best value calculation. Your honor, the RFP. Your time is up, we have to call it. But we thank for the Council for the argument. Your honor, tonight, would the court want that foundation to the record, which I alluded? No. Thank you. All right. We honor the court of now, Durham, from day to day. Thank you. Thank you. Thank you.
2012-5138 from incorporation versus the United States. 2012-5138 from incorporation versus the United States. 2012-5138 from incorporation versus the United States. 2012-5138 from incorporation versus the United States. 2012-5138 from incorporation versus the United States. Rapp retracts audio input. supporting the four line items there in this. This is a curiosity. Why is this that you are bothered by the new solicitation? Why? The old one was it closed at the time? I don't understand closed. 2011. I'm trying to figure out why when you just file under the new solicitation line. We did, but new competitors were allowed into that. That's what I was wondering. At the time, the old solicitation canceled. Because we reinstate the old solicitation. Doesn't it remain open longer? It wasn't closed at the time it was taken offline. So couldn't new people just file under the organization? No, it was closed in that sense, Your Honor. Close is not a term of art. No, no, no, no, new offerors. No new offerors could participate in the old solicitation. No reason would a narrowing of the competitors. There were 14 helicopters left for a war on the quote unquote old solicitation. When they reopened it, new competitors came in. Old competitors changed their pricing and what happened. Essentially, we had the classic late bid situation here by doing this. Mr. Saltman, help me on this and you have to work with me too. What's the situation? If an agency puts a solicitation out, it gets some bid. It's really unhappy with either the number or the quality of the bid that's gotten on the solicitation. So it says, you know what? Let's throw our net back in the water again. And it says, we're going to terminate this solicitation. We are going to resell it for the law and GAO has many years. If the proposal did not meet the government's needs, of course the government should have. The question of whether it's not the government's needs would be, I assume, that the agency would say we really don't think these days. They came in, they offered us a, we really decided now we really need b. There's a list of their choices at that point are either to amend the solicitation and allow me to walk forward to kind of your honor. Or to canceling the proposal. So why isn't that effectively what happened here with respect to the four halos? Well, they canceled them, but for allegedly not having funds, when in fact they had to. Okay, well that's your first argument. This really goes to the second question. The question of whether what they should have done is just simply go back to the first solicitation. Because when you do that, you violate the integrity of the competitive system. But why, again, going back to my hypothetical or informational question. Okay. Why does that, what I was asking about different from what happened to you? You have a very fundamentally different situation. You're not saying in your hypothetical that, oh. The terms of our original solicitation were perfectly fine. We're now going to award to a new group. What you're saying is I need, I need to change the terms of the solicitation to bring in new people. That's fundamentally different, that's fundamentally different contract. What we have here is they came out for a new solicitation with the same old requirement. There was no need to bring in late author or in your hypothetical there was a need. Because the original solicitation did not use the government's needs. Well, the original solicitation or the original sex did. Well, in the end. I think it's two sides of the same point. Well, maybe I'm again, giving some help on the, the nomenclature here. But what you're saying is there's something different between my hypothetical in which the agency was unhappy with the responses to the initial solicitation. And they redid, they chose to redid. On new terms. Well, are even the same terms if they were hoping that they'd get more expressions of interest or perhaps. No, I think that if we were on the same terms, we'd have the same argument. So that's the, that's the difference between my words. They can't come in and say, oh, we only got three dids. If we cancel it, put it back out on the same exact basis, we'll get four bits. They can not do that. They can. No, okay. That would be allowing a late bid to come in. I see. Okay. The government did. But they don't have to afford the contract either, right? Oh, that's right. They can decide the three dids that we got are just. That's fine. They're making a war. That's not possible. No war. And we do be no worker. And they're later they decide to put a contract out that looks a lot, but it's solicitation. They look a lot like the original one to see now that they still need the, the health conference they put out another one. And then the question about how similar really is that due solicitation? But yeah, the similarity can also be lent to time. Let's assume they cancel the solicitation at year one. And six years later they put up with the answer. I think the argument goes away. I think I see where you are. Now, the government has argued that it has a non-protectual reason that it can't be the solicitation of the first instance, which is budgetary uncertainty. Yes. That's how I would. That's right. That's right. And then later, based on no additional information, except for the fact that they have decided, you know what, there's a kind of force this. I mean, you know, I mean, let's think about it. You go to the supermarket. Can I afford that or not? No, I better, I better pass on it for now because I just don't know if at the end of the month I put up enough money and hides it. I don't want to not be able to buy milk later. And then as the year progresses, you know what's good about money for this? You know, the budget is stuff that we can do this. I mean, why isn't that a legitimate enough reason? That's not that maybe fine, Your Honor. That's not what happened here? Well, in some cases, what happened here, but even under that hypothetical, I would say, Your Honor, they knew all along that this uncertainty does rise to the level of a reasonable basis for cancellation. But that aside, Your Honor. But the way, who has the burden of proof here? Well, you have to prove that it was cancellation was improper. And they're asserting a non-protectual basis that you just said, well, that may be true or not. But your Honor, they did. Is true, does that end the inquiry? No, it doesn't. You're Honor. First of all, they say, quote, in their brief, the appellant has never stated that it couldn't have found the money. So it had the money all along, even though it is arguing. Keep in mind, I could have found the money too when I went to the grocery store. But it was a matter of priority. It didn't matter if I wanted to spend this money. Now, I've got the money in my pocket. But do I want to spend it now? Or do I want to wait and see how the rest of the fiscal year works out? I mean, we're not, we're all living under sequestration, looming large over our heads right now. I realize this is not a contract in place today. But it's sort of reinforced financial aspect in my mind of what maybe they were going through at the time regarding being cautious with their budget. Your Honor, but the little case law goes on to say that in that instance, where they now say, oh, lo and behold, we have the money to fund those four-contract line-ups that they cannot go out on the street for a new solicitation for the same exact requirement they are required. Where does this thing go required? Because my understanding of the case law, I think the case that you're talking about, I don't have a handy here. But my recollection is that where they say they made a mistake in campground. No, it doesn't go that, it's not that limited. I thought that each of those cases that you cited, I don't think that happens. And maybe remind me of which case and tell me which one doesn't have, and it's issued by the government of a misuse. Alternative, alternative policy reconciliation does not. Alternative, how is this an expiration? Basically, in that case, it's a consideration of offerors which have the offer to the right to submit a proposal. Is the GAO case okay? Yes, this court has not addressed this issue directly. But even in the GAO cases, so there was no admission there by the law? No, they had argued in that case that they had done it properly, but the GAO had disagreed with them. And the GAO imposed the late bid rule. And we fight also to build right contractors and big remain the factory in our agreement. I wish there were a case law on this in the circuit, but it hasn't rise yet. We will have it after this case, I trust. Besides Bill Thrive, what was the other case? Big remain the factory. The government, the government says though, that notwithstanding all of this, it doesn't matter because Chroman was not in the zone of consideration for award of those four items. And as we point out in our papers that the record shows that Chroman had a better combination of technical merit and low price than any of the 14 other helicopters to which award of these things could have been made. And we go through piece by piece at note 16 on page 17 of our brief. And I won't repeat that here. But the record shows that but for the agency's cancellation of the four clins, Chroman would have had a very substantial chance of being award at least one and perhaps as many as three of those line items. Now, I had to look at my notes to confirm that. I had the understanding that the three cases, the three GAO cases, the side of the cases in which it was the predicate for the GAO's conclusion was that there was improper cancellation of the original solicitation. Is that right? I believe in each of the cases that occurred. But I don't think that the cancellation here was not improper in the first instance than those cases wouldn't control. Oh, they would control your honor. I think that the fact that there was improper cancellation is not critical to whether or not they were like this. But if the agency somehow had made a proper determination and we don't agree that it is the cancel and then comma came out the next day and reissued a new solicitation, we would make the same argument that this is nothing more than opportunity to allow late bids in. And I believe that each of those cases would apply in that instance. Again, the rules on late bids, which this court has adopted, are very, very strange. You don't allow late bids in because it violates the integrity of the system. By the way, in matter of alternative houses, I have on my screen right now just the one page decision that says, quote, the bureau does not dispute our conclusion the cancellation was improper. So I think technically factually you're wrong, at least on that GAO case, I'll have to take me longer to go pull up. I believe one of the other cases that I may be in the state. But in that one, it says it expressly. Is that reconsideration of the original? Matter of alternative house. But reconsideration or the original case? I believe that's a reconsideration. Reconciteration, yes it is. Judge Walg, you want me to, I realize I've known you in my time, but you wanted me to address the failure of the government to perform a trade-off. I want you to address your argument. And that's already to give it the government here in its source election plan. Now, I'll quote your honor. That a trade-off analysis will be made first by determining the best value for each item. That's a20015 of the record. Unless we'll cut right to the core of your argument, which seems to be that they just did it mechanically. They did it mechanically or not. They put it into the computer, the computer spewed out numbers and recommendations based on the evaluation. No, they said it. No human looked at it thereafter. Here's my problem with your argument. The numbers they go into the input to the computer? Yes, come from human beings. There's four bunches of teams that are created to come up with these evaluations. That's right. Isn't that human input? That is human input. But here's the human input that was missing. You come up with these numbers. And in the case of the legion, that number is alone to not support a selection decision. And we decided to sum them in our briefing. You have a group of people sitting around. And they score a product. Are you saying that when they do those scores, that's not sufficient? That's sufficient for that purpose, you want? But then, in a best value analysis in the RFP that they talked about, it said the critical factor in making a price technical trade-off, and I'm reading on the RFP, is not the spread between the technical scores, which we'll put together by human beings, but the significance of the difference. The computer can't judge the significance of the difference. No human being judged the significance of the difference. What is necessary in a trade-off analysis is for a human being to say, I have a high price offerer, who has a very good technical score, and probably has a high price. Is it worth spending the taxpayers' money to award to this higher-scored, higher-priced offerer, or can I get the best value by selecting someone who can with a technical difference really is not all that substantial, but we can save an awful lot of money. That's the decision that the source of the left is official, is supposed to make on a line item by line on a basis that he did not make in this instance. He got his results from the computer, said they were massive, said they showed me which way to go, and he followed it. Mr. Assaultman, we better hear from the government. I'll work for a few minutes of your report. Thank you, John. Mr. Austin. Now, Mr. Austin, isn't it, what Mr. Assaultman is saying is that there is no human input to the computer. Is there any further human input at that point? There's extensive input after that point. As you're on a point out, in your questioning of council, there's extensive input before, but going directly to your question about after, yes. As soon as the data came out of the computer, it was reviewed by three different entities of me. By the contracting officer, the TET and the SSA, and that's documented in our records. ASS-A certification is at page 020734 of a record, and the TET review is documented at 020535 of the I.X. In addition to that, as you would expect, the contracting officer reviews the data that comes up to the computer to make sure it complies with the terms of the solicitation. So, yes, it's absolutely true to receive an input. I also want to talk about the human input that goes in the initial stage, because it's extensive. I have an impression. There's four different criteria that go into the calculation of 65% accounts for the technical. Two of those are subjective evaluations where the TETs sit down and actually looks at the evaluation both for past performance and for organizational experience. So, it's all human input there. In addition to that, you probably would call it, there was a corrective action here. Under the first corrective action, the TET actually took the computer data and made a change. It didn't have to the second. It made a change because one of the authorores had offered four helicopters and all four received claims. And he decided, for that particular vendor that it made more sense, that simply had three claims awarded to him. And saved the fourth claim to have this helicopter assigned to replace the other three. So, it changed the winner for that claim. In Chromins brief, Chromins says in two different places and two different footnotes that there was no trade-off analysis between price and technical factors or the magic time factor. They say it even more bluntly in another place in their briefs. They say there simply was no trade-off analysis. There was nothing could be further from the truth in this case. And I want to demonstrate that to the courts so the court understands that. And if the court will allow me, I'd like to turn to attachment seven to the award recommendation which appears at page 020731 of the joint appendix. But, you're on it and it's difficult to read and I prepared a blow for that if we could bring that up to the court simply for that date. Do you have the okay? Sure. This attachment is extraordinarily significant and that's why I want to take the field. You go over and view exactly what it contains. Or, fortunately, it takes some knowledge as to how it works that understands the detail of the information that's in here. Is this all confidential? Yes. But it is an appendix of page 020731. I'm just providing a quote with a copy. If you look at the upper left hand quarter and the data that appears there, you can see the waiting that was done in this chart. The lower rating is if there was 100% wait given to total low price per pound which is no... In a known argument you referred to percentages and you said about loud and I thought they were confidential. And so I pinged my clerk and that's why I'm so... Whatever you say, I'll assume is not confidential and we can talk about it. We can talk about it but it is confidential information. The court will not close and I'll go on. You do realize that these records are going to go on the website. Okay. So whatever you say in this court room is not confidential. I understand. The waiting that was done here was 100% for total loss price per pound, that's the lowest data. There was another waiting for 100% low total cost, another one for 100% total low agit-pival. And the last one was a weighted OM with 65-35%. And if you look at the top of the page at the title of this, it says trade-off analysis comparing OM assignments for 9 items 16-34. Between weighted solution and three single objective optima. To say that there's no trade-off, but this is exactly the purpose of what they did is completely incorrect. Now let's look at how this works. What this means is I'm going to shake to say they were skewing and pushed because somebody missed all weight. If we look at... The claim that they raised in their breads is 27-17. So I'll draw your attention to that, which is the second clean. 100 line item, you'll see all those 17s. And you'll see total low price per pound, and we'll see central coppers, court with me. What that means is that if 100% weight was given to total low price per pound, central coppers would have won clean 17. If you look at the next line, it's total low total cost, total line helicopters were won. And that's 100 and optimum, where 100% weight is given to cost zero to the others, timber line were won. The next one is total low agitival. That's where 100% weight is given to the technical factors, the agitival factor, and colonial helicopters were won. And finally, the top line, which is the weighted OM with the 65-35, they have yet another helicopter, fire-hawk helicopters. You can see that the weighting, the 65-35 is dispositive of who wins each clean. And that demonstrates the trade-off analysis. To the extent there's any doubt your honor's mind, the upper right hand corner is particularly instructive. I'm talking about the top line, which is line items 16 through 34. And remember, this deals with the not the heavy helicopters, the middle weight ones, which are subject here. And remember, each helicopter can only serve one clean. So that if one helicopter has the best ratings for five different cleans, part of this optimization model is to assure that that helicopter, the man's in the clean, will give the best values of the government. So the information, and that's up or again for it, is extremely instructive. We only need to go to the total low PTP line, but we just look at the total low total cost line. That would be $121 million. And what that figure means is that if 100% weighting is given to cost, they would, everything else, it would cost the government $121 million to procure these helicopters. But look at the Agitival rating, which would be 2.496. Now, if we just ignored cost completely, and went to total low Agitival, giving that 100% weight, it would cost the government $155 million. Now, this is very helpful, and you've done a good job explaining the form. I don't want to be really, because if you really want to spend more time on this, I want to let you. But I really would like to ask you a couple of questions on the other issue, which is the cancellation and reinstatement. And is this a community timer? Do you want to spend a few more minutes? I just had a couple more minutes, and I'll certainly talk about that. But, and you can see that the Agitival is 2.2873 for the Agitival, the weighted OM, on the other hand, is 135 million. So the government there is trading off $14 million if you compare it to total low cost for an Agitival, it's 2.29. Compared to 2.28, so you have a .01 Agitival in an ideal situation, you get $30 million from a total Agitival would, of course. That is what the opposition model did. It was a trade off analysis, and it did it perfectly. We've looked at it on the issue of prejudice, and then I was going to turn it. It's okay with court. If you were prejudiced, a court's observation, while there was no prejudice, is really a very common sense one. You have to compare yourself to the other competitors. From it, you can do it alone, you can do it with your open breed to this court. They tried to do it in their reply rate, but they made it in the Roanian statement, which tried to attack our analysis. I'll explain it in a moment why that's Roanian's. But it's common sense why you have to compare yourself to the other competitors. Let me just be one of the fatigles illustrate this. Let's assume for Clinton 17, there were 100 off-roars, and for whatever reason, the winner of the Clinton's word to eliminate it, you now have 99 off-roars there, one of which is cronely. Let's assume in this hypothetical, that 98, the other 98, all had lower costs and all had lower Agitival's cronely. Well, we were still proud of this. They didn't have a substantial substantial chance of prevailing, because all 98 would have beaten them. So what's important here, and what the trial court emphasized, is that you have to have that analysis done, and it didn't build below, and it didn't even do it in their opening brief. In this case, where again, they just compared themselves to the winner, and that's an acquit, and therefore it's clear there's no prejudice. The one point I wanted to make in the reply brief, we gave a hypothetical where we demonstrated two helicopters that we felt from an analysis would get it one of the four, one of the, if the winner of the firehawk winner had knocked out in Clinton 17, its total cost was emphasized, it would have been a swanton. If Agitival was emphasized as a 55-35 indicated, it would have been another firehawk. They come back and say, well those helicopters were eliminated from the competition. That's not true. There's nothing in the record that indicates they were eliminated from the competition. In fact, if you turn it into a record to attachment one to the award recommendation, which is rotated at page 820511, you can see those helicopters listed there. And all they say to this principle is a footnote in our brief below where we said, as I mentioned earlier, that doing the correction for one particular vendor, the court decided, I'm sorry, the fire service decided to eliminate the one helicopters, because there are the three were being used. You can see on 820511, the number, if you look at the first part, they're all the wing vendors with helicopters, and on the second part, you can see that there's no losers. The people who didn't get a clear and listed below, if you're only listed above and you're not listed below, that means that all of your helicopters are used in a claim. Therefore, the statement is wrong that they were eliminated. Finally, I want to turn your honor to the issue of the cancellation. This is really, in my view, a very simple question. The government absolutely has the right to cancel part of the solicitation as long as it doesn't do so in arbitrary and precrecious manner. Here in the trial court made a factual finding that the government's reason for doing so was ration. That reason being budget construed. Okay, well let's assume that you're right about that, and then go to the second argument that Mr. Saltman makes, that having done that, having canceled, you had an obligation to go back to the original solicitation. That is, that's actually absolutely no support in the law for that at all. There's not one case in court, I don't know. Well, there's nothing other way either. Well, there's nothing that says the government is permitted to put forth one solicitation, mistakenly cancel it, and then go forward with the next. Well, first of all, you're right, it's not a case of mistake. The case in seizure line, anyway. Well, it is a mistake. At the time you thought you might not have the money for it, and later you realized you did. You had a mistake and ultimately mistaken impression. Well, but the case is, I think you're on it referring to the GDO case, let's talk about mistake, but honest mistake. At the actual language of this day. Did you think this particular one was disposed? No, it wasn't. It was different because it's subsequent events that changed at the time that the government made the decision, they had a budget constraint. And the reason was, this is an October, and they had a continuing resolution that only gave them money until November. So they didn't know what the future was going to hold. In December, there was a bill passed that gave them the money, but the fact that the money became available in December doesn't mean that what they thought back in October was wrong. Well, why not go back? Sorry, go ahead. And also the cases that they say the GDO are distinguishable for three basic reasons. Why not go back to the original? Well, there's two questions there. First of all, it was impractical to do so because the offers that had been made from the original solicitation had expired. Those companies were no longer obligated to have those helicopters and in fact, many of the helicopters were born, they've been obligated elsewhere. It was seven months you're on there from the time of the cancellation in October of 2011 until May when they did it, it would have been practically impossible to do so. Second of all, Krogan actually picks up an advantage because those helicopters that were no longer available, they didn't have to compete with them. Now, they argue, well, you know, people had more information from the owner, but they had to save additional information. And what is the extent to which the government is free upon having the solicitation to which there are bits and the government concludes that it really doesn't like the array of bits that it's gotten. So what extent is it free to simply say cancel that solicitation? Let's rebid this contract. Well, you are a back question, which is also one of the reasons these GDO questions, cases are distinguishable, depends on large part whether it's a 414 case or a 415 case. A 414 case is a sealed bin. And it's supposed to be negotiated. Right, that's right. If it's negotiated, presumably you have much more liberty to act on something like that, but if the sealed bin, and this is the negotiated, but if it's sealed, you can't come back and say, okay, you have the lowest bid, but we're not happy with your low bid. What the FARC says in that circumstance, which is the Madison services case of the court of federal claim, which quotes it, is that in that circumstance, you have to have compelling reason. Okay, and that's because those sealed bids are open, everything's out and open, everybody sees it. That's not the case in the Tushie. The standard is very different. You have to have a rational reason. There was a rational reason here. They have a Shen clear error. And what the two are going to have a question. I would ask the court to affirm the decision to let. Thank you. Mr. Salman. Thank you. Couple of points, Your Honor. In a field of dissituation, the test is compelling reason, other than a reasonable basis, because the all of the data has been put out in the public. With regard to the question of whether it was. This was negotiated. Whether it was impossible to re-instate, first of all, it was not seven months, it was more like three months after the decision to cancel was made known. It would not have been impossible to re-insate. All they had to do as any other examples where in the GAO cases where they re-insate, just to go back to the office and say, are you willing to re-instate your bid and extend your bid opening time? It has done everything the day of the week. So the idea that it was impossible is, if it was, the government alludes to the fact that we were not prejudiced and points to the fact that in our assessment on page 17 of our briefs, we improperly indicate that the agency excluded the two competitive helicopters. I cannot point at this moment to the page in the record by Willis, who were honest with like. The fact of the matter is the agency decided that for companies that they wanted to have one helicopter in reserve for, in case there were some problems, and that they would not award to a company if it didn't have a spare helicopter back at the home office. And so these two helicopters were in fact excluded from the competition. So for us to say we didn't have to compete against them is a true statement. Mr. Solomon, I wouldn't be using my concrete. The government has said that you may misrepresentation in this court. Now I would be addressing that. I am your honor. We did not make a misrepresentation. The fact is that these two helicopters were excluded and I will provide to him about the spreadsheets of the government all I did to us. It says that there was indeed an influence. Your honor? If you will, I will absolutely address that. There is no human input in this attachment set. But if your honor looks at it, what we have here is a set of, and I'll use the exact language that the government used in its brief. Attachment 7 is merely a display of various optional sets of awards. That is, if we chose to award, are you representing this court? The contract and officer should not go back in and review this after this. Team reviewed it, your honor. What he did is he looked at the data that came out, your honor, we find that. The data came out of the computer largely in this room. See and other people reviewed it for accuracy. They looked at this. Is this number properly calculated? Is this the number we input? They did that, your honor. What they did not do. And what if that's value, calculation, requirements. And your honor will not be at anywhere on this sheet. Is does making an award to company A, who has the highest technical evaluation, is it is justified under, put up a differently. Is the difference in price in company A's high technical approach, worth the increased cost of back line items? So what you're saying is that there was a human review, not the exercise of human trust. Exactly, your honor. I have no doubt your honor that they looked at the sense of human review. There was not that judgment call that is required in a best value calculation. Your honor, the RFP. Your time is up, we have to call it. But we thank for the Council for the argument. Your honor, tonight, would the court want that foundation to the record, which I alluded? No. Thank you. All right. We honor the court of now, Durham, from day to day. Thank you. Thank you. Thank you