Legal Case Summary

Next case for arguments this morning is 125045 white buffalo constructions versus US Mr. Casslin whenever you're ready. Morning, Your Honor. Please report. Scott Depp, the furtile white buffalo. We have before the court essentially three separate related matters. There is the court of federal claims, the dismissal of white buffaloes, Advait claim on the merits and we also have a couple of damages issues on the merits. We have the dismissal of white buffaloes 1999 and 2000 cases of mootness. And we have the governments cross assignment of error of the court of federal claims denial of the motion to dismiss on jurisdictional grounds. While jurisdiction is a first of predicate to getting to the merits of the bad faith claim, I'd like to suggest that because the grounds of the court of federal claims denial of the motion necessarily were factual, in that there are questions about when the claim approved and on the application of the discovery rule, that the government would need to show that those rulings were clear error. Well, did the court, trial court, actually rule that the on accrual are discovery rule? I didn't see his ruling as having been directed to the point that was made in the government's motions to dismiss on those two issues. It can be a point as to what the court had to say about that in the case of the did rule, but he didn't make a finding with respect to either accrual or discovery. I can't your honor because the court of federal claims didn't explain the rationale for the denial of the motion. Wait, where in the appendix is the place where the court rules on that motion? Do you have that readily in hand? I don't want to take a phone. Your time will be quite clear

. I do have that side of mine. We have, there's a point page order, and I believe it's A279. And this is our recall. We just have the motion to know. But somewhere, and I don't have the right site for it, I have a quote that says, there may be some potential question of jurisdiction that seems to me the better answer is there is jurisdiction to hear this material make a decision on that. I don't know exactly where that appears. I don't know, Your Honor. And it may be there was also the movement issue, and it may be the court decided that, and I think correctly, that moodness couldn't be determined until after a trial, what the reason for the opportunity to talk about. But as far as subject matter jurisdiction, the way the case was framed was that if the claim, the claim was made either in our view of the world in fall of 2004, in the government's view of the world in January 2005, the termination was December 1998. If the government's view of the world is correct, and if there are no issues of a cruel and no discovery rule, then the January of 1995 claim was late. So in order for the motion to have been denied, there had to have been a finding either that a the claim was made letter or be the crew letter. Now, you're the, the filing from the fall of the fall of 2004, I guess it is, that you rely on seeing to me when I looked at them to be in the nature of saying that we will be filing a claim. So, that's not the, this is our claim. So, that file may have alerted the government to the possibility that such a claim would be put coming

. That isn't a claim itself, right? It put the government on notice. That's not what's required in order to trigger the six year, right? You're right, you're on it. We don't rely on those. Oh, you're really relying on the January 2005, which is, I don't know who I have people wait six years and one month, but that's what happened. And so, you need the discovery rule to come to your aid, right? We need the discovery rule to come to our aid and that all events in part. But the second part is that part of the events that constitute claim hadn't occurred until the completion contractor did the work in 1999. And that is based on your theory that the credible treatment given to completion contractor is part and parcel, not only indicative of what part and parcel of the bad faith is the essence of your claim. Thank you, Your Honor. That's the heart of our case based on the cheater case and on the recent Tigris one case, which follows along with it. Okay, but that is the heart of our case. And if we look at the events that triggered the discovery, there were several. First of all, there was discovery in the litigation. Then there was a survey that white buffalo commissioned in 2002, which showed in part that the government had paid the completion contractor for work that wasn't done or that was done. By white buffalo and it also confirmed the design change that wasn't disclosed until white buffalo made a FOIA request

. And in that request, it uncovered documents to the effect that we better not make the design change in the contract for the completion contractor because we don't want that to be grounds for termination for convenience. So there was an affirmative effort to keep quiet about the design change. And we think that invokes equitable toll when you have those words. And in the discovery in the litigation, for example, we obtain the files of the government inspector, the contract inspector, my government employee. And in those files, we discovered that the resident engineer who we maintain had, you serve the role of the project engineer, had gotten irrationally absentably where the words when the inspector tried to assist white buffalo and actually getting the work done. And we also uncovered evidence that this resident engineer was assigned to projects when you want to get rid of the contractor. And now I understand that this is an unusual situation. And that is not the kind of thing the court sees every day. And we wouldn't have pursued this for 15 years now if it wasn't an extremely unusual situation where we have affirmative evidence that because the resident engineer favored another contractor and the record is replete with notifications to the contracting officer and to his superiors that these other guys tied water, they're great, they're competent, but these white buffalo people, they're incompetent. And that was basically a couple of weeks after the work started. And there were continual references to the favorite contractor, tied water. And there were also references to the prior litigation that white buffalo had with first service who was federal highway administration's client here to the effect that white buffalo's president was told. And it was kind of as a vulgar remark that I won't repeat here. It's in the record, but it was that you better watch out

. They're going to give you. So you better settle that other case. So we really have affirmative evidence of an animus here. But the problem is I'm sure you recognize is that everything you've been saying is highly factual. It was before the trial court held the trial in this case heard from the witnesses that we haven't gotten before us all we have as a cold record and found squirrelly against you on the question of bad faith with findings of the credibility and ultimately the good performance of the resident engineer. And I think I have to overcome that kind of those kinds of findings. A few things are on the first on this relation to the court's question on the jurisdiction of issue because it's so hard to meet this burden. There can't be a hair trigger on the approval of the claim. Let's assume that you're right about jurisdiction and we'll let's assume we read judgment. Very brief statement as encompassing a finding that there was either later a cruel or acquittal. Okay, but on the merits of the bad faith issue and I do recognize that we have a high burden, but what the court in fact didn't address the two key reasons why we think the court was wrong. Number one, the whole disparate treatment issue simply wasn't addressed and I can go through the evidence there for the court lights, but it's just not addressed in the opinion. And number two, white buffalo argued, strenuously, that a presumption ought to be applied here because critical people under the control of the government, including the project engineer, who were not brought to trial and were not available to white buffalo. The project engineer was involved more the trial was important

. There was no way to subpoena him. They were available by death. They were available by death. They were deposed. The problem was that white buffalo argued that Mr. Retinger, you served the role of the project engineer and Mr. Retinger's explanation was to you, well, as English wasn't very good, he was kind of a new beat and what he was doing. And Mr. Retinger was there in person to, for example, talk about that the project engineer's English wasn't very good and the court of federal claims didn't have the engineer there so that the court can determine that himself. And for example, the project engineer specifically said, I don't know why Mr. Retinger so strict on this project is not strict on other projects, which we think is going to promise face evidence of disparage treatment. Mr. Retinger was there to try to explain that away. Project engineer wasn't there so that the court could evaluate his credibility

. The same issue was for Carrom Jacoby who was a true or her exact title, but she was the head of the Western Regional Office for the Federal Highway Administration. She was the one who made the determination that we should keep quiet about the design change, so that's not a key for termination for convenience. She was the one who, you know, the contact officer reported to and we didn't have the opportunity to question her at trial and to have her credibility evaluated on that. Why, why were you not disclosing this termination for convenience basis and why did White Buffalo have to get that information by making a FOIA request that incidentally they only got the documents after having to sue. We believe that particularly with regard to Mr. FTA, the engineer, a presumption should have been applied that his testimony would have been unsurrupable to the government and that his credibility would have been at least as great as Mr. Retinger who was made available to testify. That would be a rule that seems to be of sweeping consequence because in civil cases this is very well known and that there are limits on speed of power that don't exist in criminal cases. You would be saying that any time one party has a tame testimony from a witness that's within the control of the other party that party A thinks it's favorable but wants that party to have that witness present in court. That there would be a presumption. That would apply to Smith by the third of all civil cases. Well, it comes up a lot. It comes up fairly often but in this case it was the central witness in the case and it was the central witness not subject to subpoena at trial 3000 miles away from where this witness was and it was a witness that the government easily could have made available at the trial. I see I'm going to go through a housekeeping question which is why I'm $30,000 for 29,000 who is regards to subcontract

. Why you all didn't file a motion for reconsideration before the trial? The FC? We could have your honor and frankly I don't know the history to it and we may be able to do it after this court's decision depending on what this court does. But aside from that possibility the one year clock has run on doing that and we do think it was clear error for the trial court to make factual findings and not include the necessary ramifications of those findings and judgment. Thank you. On these short witnesses they did testify they testify for deposition. The issue did not even come up until after the trials or if we had been asked to bring Mr. Afted to Portland we would have done that. We could not have done that with Mr. Kobe she died in 2000. This is not something this is only something I alluded to in the post-trail briefs because I had no evidence. I didn't have the I didn't have the death certificate entered into evidence at trial because because this never came because it never came up. More importantly though you say there was no request at trial to have Mr. Afted present from the hearing. No he we. Right he was on their witness list we counter designated deposition transcript excerpts and that as far as I knew would have been the end of it

. I didn't even learn that Mr. Kobe was the seest until until after the trial. Moreover they those people did not terminate the contract Mr. Parsons terminated the contract. His testimony also was was in the trial through deposition. He was not even employed by the government at the time of trial so he was equally available to be available to everybody. Can I if you're at that point can I ask you to comment on the jurisdictional questions you argue it's unlike and specifically could you address the question of whether Judge Smith has albeit rather. I'm not a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit that Feng Tung Close lados court dismisses the government's jurisdiction arguments as move. Suggesting that because we went on the merits, there was no reason to address the jurisdiction. Now, I didn't catch the full record number that Mr. Kaplan provided. I think he said 877. I don't know the dates. Well, it's a tentative kind of fight

. I could. If that's what he was talking about, I'll put a case over there. I remember this. I remember this. So what I understood to be going on was judgment. Did not find make factual findings or even a jurisdictional determination on in a cruel time when this issue, but what was saying that because at the time he thought the trial would last five days, we would just defer all that. So I don't see anywhere where the trial court made factual findings. Yeah, I think you're right. There were no explicit factual findings. There was a point. I believe there was a different point from the order of the opposing council called attention to, which the judge says in rather perfunctory fashion. Well, I think we have jurisdiction for something of that effect. There is a statement. I don't know where it is now, but there's a potential question

. It seems to me the better answer is there here is jurisdiction. That's the statement that I'm. Well, the court can look at that. If the court in first from that factual findings, then the court can determine that they are, the factual findings are clearly erroneous. And it is because White Buffalo didn't have to know every last thing in order to bring a bad faith termination claim. In fact, its claim is about contract administration. Some of it, yes, was after the end of the contract when the contract was terminated. But the problem we have just as a process kind of thing is if we agree with you that this isn't, you're saying we can find it was clear or that you used a discussion. But we don't really, if at best we have this statement. So why wouldn't the better, more prudent course be for us to send it back to the trial judge to make findings so that we'll have findings to review? Well, it's not something that I don't think anyone really would embrace as the best solution, but why isn't that what we're left with? Because that 1998 letter that White Buffalo sent to the contracting officer before termination and in response to the curinosis has almost, has the vast majority of what their bad faith claim is. So that's when their claim recrued. And that's what happened in John Sainton, where that claim of send a letter threatening to sue listed reasons. The claims court, sorry, the court of claims, sell that that was the date that they left their claim recrued. So is when they wrote that letter, their claim recrued because they were aware of the things that became the nexus of their bad faith claim. The claim couldn't accrue before the default termination, right? I mean, no, so it was the same. Right, so. Well, it's, we can look at it too is because their bad faith claims is about both bad faith contract administration. They never actually say that Mr. Parsons terminated the contract as a pretext or otherwise for a new and proper motive. So they did know in November, 1998 that they had a bad faith contract administration. What their knowledge had had no underground consequences until the default termination, right? I mean, it's right. And we're claiming that the bad faith increased their performance costs and their claim ultimately is they were not permitted to complete this contract. Right. So at the very latest, their claim recrued on December 1, 1998 when the termination happened. And at least they say because of the reasons most of which can, most of which can be read in that November, 1998 letter. So it was clearly erroneous for the court not to dismiss that for lack of jurisdiction because they knew of all those things more than six years before they submitted that January 2000 pipeline. And so. Well, but I wonder, I mean, it seems to me there is some force to the argument that at least enough force to make me wary of saying that the judge, if he made those findings, was clearly erroneous

. The claim couldn't accrue before the default termination, right? I mean, no, so it was the same. Right, so. Well, it's, we can look at it too is because their bad faith claims is about both bad faith contract administration. They never actually say that Mr. Parsons terminated the contract as a pretext or otherwise for a new and proper motive. So they did know in November, 1998 that they had a bad faith contract administration. What their knowledge had had no underground consequences until the default termination, right? I mean, it's right. And we're claiming that the bad faith increased their performance costs and their claim ultimately is they were not permitted to complete this contract. Right. So at the very latest, their claim recrued on December 1, 1998 when the termination happened. And at least they say because of the reasons most of which can, most of which can be read in that November, 1998 letter. So it was clearly erroneous for the court not to dismiss that for lack of jurisdiction because they knew of all those things more than six years before they submitted that January 2000 pipeline. And so. Well, but I wonder, I mean, it seems to me there is some force to the argument that at least enough force to make me wary of saying that the judge, if he made those findings, was clearly erroneous. In saying that it's one thing to have the contracting officer an agent of the government who's treating you badly, you can assume that they treat everybody badly. That's just their sourquests. But it's another thing to say, ah, they treated us really badly. But then they treated somebody else very differently and very favorably. And that suggests some animus that the unilateral bad treatment like not a, why isn't that a legitimate ground to say there wasn't until they found out about the alleged better treatment of tidewater company that they really knew enough to say to make the rather bold statement that this is a bad safe contract administration. Because because when one can read in their claim in that third case, how they articulated is that the bad fate is the failure is the lack of facilitation of cooperation. Not a subset of what of that character that characterization is the disparate treatment after the termination, but that doesn't it doesn't make logical sense to say that the government failed to cooperate with us during performance by desperately treating another follow up. So that's a different, slightly different point, but it still brings that evidence into relief as important evidence for purposes of establishing a good treatment. And a cool date or at least a discovery rule extension of the period for five. Right. And if that's how they grow, if that's how they created their claim, then I'd have a much more difficult argument, but that's not what they're saying. They said that they knew from the beginning that they were being not treated well. That their project schedule was not being treated correctly, that the notice to proceed was too late, that the extension permit request was not handled properly. And all those things they told the contracting officer in November 1998

. In saying that it's one thing to have the contracting officer an agent of the government who's treating you badly, you can assume that they treat everybody badly. That's just their sourquests. But it's another thing to say, ah, they treated us really badly. But then they treated somebody else very differently and very favorably. And that suggests some animus that the unilateral bad treatment like not a, why isn't that a legitimate ground to say there wasn't until they found out about the alleged better treatment of tidewater company that they really knew enough to say to make the rather bold statement that this is a bad safe contract administration. Because because when one can read in their claim in that third case, how they articulated is that the bad fate is the failure is the lack of facilitation of cooperation. Not a subset of what of that character that characterization is the disparate treatment after the termination, but that doesn't it doesn't make logical sense to say that the government failed to cooperate with us during performance by desperately treating another follow up. So that's a different, slightly different point, but it still brings that evidence into relief as important evidence for purposes of establishing a good treatment. And a cool date or at least a discovery rule extension of the period for five. Right. And if that's how they grow, if that's how they created their claim, then I'd have a much more difficult argument, but that's not what they're saying. They said that they knew from the beginning that they were being not treated well. That their project schedule was not being treated correctly, that the notice to proceed was too late, that the extension permit request was not handled properly. And all those things they told the contracting officer in November 1998. They have another reason now that they were in, but that's that's additional. And the Japanese war notes case that they cite in their brief says that they don't a plan of doesn't need to know every last thing. He doesn't need to be he gets to flesh it out later. I think that the term flesh it out is in the Japanese war notes claim. So that once they know that they have a problem and they say in that letter problems with Mr. Reddinger are are slowing down this slowing down our progress and they actually say that he is intent on not seeing this completed timely. So that does bring in his his motor that does bring in that they and they do all along that at least in their mind. He was there nemesis on this job. So just because they got confirmation of that in their view later because of what happened after term nations does not mean that they did not know about this claim more than six years before they brought it. But is it crystal clear that the six year period is your spiritual well if by that you are on a means it can't be told. No, no, I mean there's something in the jurisdiction but it's still subject to the ruling as the string court has told us but it but is it still jurisdictional in the sense that if a finding is not made of that credible tolling that that's it. It's not simply a timing mechanism which can be passed over in favor of the merits but it it deprives the words of claims of jurisdiction. Well England suggests that England suggests that it is jurisdictional because it's a jurisdictional prerequisite that a claim be presented and that and. It's a very timely right

. They have another reason now that they were in, but that's that's additional. And the Japanese war notes case that they cite in their brief says that they don't a plan of doesn't need to know every last thing. He doesn't need to be he gets to flesh it out later. I think that the term flesh it out is in the Japanese war notes claim. So that once they know that they have a problem and they say in that letter problems with Mr. Reddinger are are slowing down this slowing down our progress and they actually say that he is intent on not seeing this completed timely. So that does bring in his his motor that does bring in that they and they do all along that at least in their mind. He was there nemesis on this job. So just because they got confirmation of that in their view later because of what happened after term nations does not mean that they did not know about this claim more than six years before they brought it. But is it crystal clear that the six year period is your spiritual well if by that you are on a means it can't be told. No, no, I mean there's something in the jurisdiction but it's still subject to the ruling as the string court has told us but it but is it still jurisdictional in the sense that if a finding is not made of that credible tolling that that's it. It's not simply a timing mechanism which can be passed over in favor of the merits but it it deprives the words of claims of jurisdiction. Well England suggests that England suggests that it is jurisdictional because it's a jurisdictional prerequisite that a claim be presented and that and. It's a very timely right. Yes, it is jurisdictional. I mean the Alaska native case actually that I wrote has some language and it suggests it's jurisdictional but that wasn't the focus of the case and I just wonder if we have any other cases that just nailed that down. I don't know and I don't remember having read Alaska but I'm tolling of course Artic's will says that that that present me requirement can be told. But the only just because we're talking about that this now on the same case. Artic's law. Artic's law. You're right. I don't remember what the court said on that but on just because we're on this on the tolling of the 12 month appeals. I haven't seen anything since Irwin on that but this court has as the boroughs case that says that there are no exceptions can be written to the 12 month period which goes to whether they can even challenge me. The conversion decision on authority or some other type of grounds. But judge Smith's findings that White Buffalo failed to demonstrate that faith and that the basis for the termination for default is in White Buffalo's actions are not clearly erroneous. After all they did not complete those repairs to subgrade to that minor post by that they they were supposed to have done and they don't even say that Mr. Reddiger was responsible for that. So and they and Judge Smith on a dendin case 21 with many reasons even aside from the different side condition for that for that failure to complete on time

. Yes, it is jurisdictional. I mean the Alaska native case actually that I wrote has some language and it suggests it's jurisdictional but that wasn't the focus of the case and I just wonder if we have any other cases that just nailed that down. I don't know and I don't remember having read Alaska but I'm tolling of course Artic's will says that that that present me requirement can be told. But the only just because we're talking about that this now on the same case. Artic's law. Artic's law. You're right. I don't remember what the court said on that but on just because we're on this on the tolling of the 12 month appeals. I haven't seen anything since Irwin on that but this court has as the boroughs case that says that there are no exceptions can be written to the 12 month period which goes to whether they can even challenge me. The conversion decision on authority or some other type of grounds. But judge Smith's findings that White Buffalo failed to demonstrate that faith and that the basis for the termination for default is in White Buffalo's actions are not clearly erroneous. After all they did not complete those repairs to subgrade to that minor post by that they they were supposed to have done and they don't even say that Mr. Reddiger was responsible for that. So and they and Judge Smith on a dendin case 21 with many reasons even aside from the different side condition for that for that failure to complete on time. So it's ironic because if they're if they're correct that the conversion was a nullity and didn't happen then they actually lose this entire case because Judge Smith in effect sustained the termination for default in which case they're not entitled to any recovery under the termination for convenience plus. You're on because you were about to address the 20 cents. Yeah. Right. So it wasn't oversight. Judge Smith meant meant to put that in the judgment but it's within the course of discretion to affirm that judgment amount based upon anything that's supportable by the record even if the party hasn't brought it up which is what L. Sheets says and the termination for convenience clause which is the basis for recovery for that simply doesn't cover that that was a pass through claim that can be seen on a 8606. It's not a cost either to white buffalo of the work because they never paid me for it. You have to follow cross appeal on that issue or something. No procedure where we can just take it up and say it was wrong. Yes. Because we're not asking for an alteration of the judgment. Because the judge left it out. The judgment amount of that is there for it

. So it's ironic because if they're if they're correct that the conversion was a nullity and didn't happen then they actually lose this entire case because Judge Smith in effect sustained the termination for default in which case they're not entitled to any recovery under the termination for convenience plus. You're on because you were about to address the 20 cents. Yeah. Right. So it wasn't oversight. Judge Smith meant meant to put that in the judgment but it's within the course of discretion to affirm that judgment amount based upon anything that's supportable by the record even if the party hasn't brought it up which is what L. Sheets says and the termination for convenience clause which is the basis for recovery for that simply doesn't cover that that was a pass through claim that can be seen on a 8606. It's not a cost either to white buffalo of the work because they never paid me for it. You have to follow cross appeal on that issue or something. No procedure where we can just take it up and say it was wrong. Yes. Because we're not asking for an alteration of the judgment. Because the judge left it out. The judgment amount of that is there for it. So it's within the course of discretion there are reasons why the court could agree with us but it's within the course of discretion. That was a contingent payment. That's on 140 1437. They say that will pay the bride if if the court if if we get paid. What about this year about E.J. Attorney's fees? Well, that's one of the reasons frankly why we're why we're pushing for a decoder and instructions to dismiss the first two cases. That E.J. was a reason we we did what they asked us to do did what they asked the court to do we converted and return the liquidated damages in part so they wouldn't be a prevalent party. We made the business decision that that was the best thing to do. And you're saying they're not entitled to each of these right because I like the really right they did not prevail but I do not want the United States to have to keep litigating that issue. A party if it if it voluntarily acquiesces to the relief that all that all the relief that the court to grant should get the benefit of the end of that end of that litigation and we did that in 2004 and we are still litigating whether those two cases are good. And by the way they've enjoyed the benefit of the $101,000 that we sent back in the form of liquidated damages and we have not had the benefit of having put those two cases we thought we thought to rest lots of what we tried in Portland over those three weeks had to do with that first case

. So it's within the course of discretion there are reasons why the court could agree with us but it's within the course of discretion. That was a contingent payment. That's on 140 1437. They say that will pay the bride if if the court if if we get paid. What about this year about E.J. Attorney's fees? Well, that's one of the reasons frankly why we're why we're pushing for a decoder and instructions to dismiss the first two cases. That E.J. was a reason we we did what they asked us to do did what they asked the court to do we converted and return the liquidated damages in part so they wouldn't be a prevalent party. We made the business decision that that was the best thing to do. And you're saying they're not entitled to each of these right because I like the really right they did not prevail but I do not want the United States to have to keep litigating that issue. A party if it if it voluntarily acquiesces to the relief that all that all the relief that the court to grant should get the benefit of the end of that end of that litigation and we did that in 2004 and we are still litigating whether those two cases are good. And by the way they've enjoyed the benefit of the $101,000 that we sent back in the form of liquidated damages and we have not had the benefit of having put those two cases we thought we thought to rest lots of what we tried in Portland over those three weeks had to do with that first case. All the different psych conditions stuff even the liquidated damages return I I had to prove in my post trial brief I mean I felt compelled to prove it that we had paid the money back we should never have had to talk about those two those first two cases after we moved to dismiss in 2004 having done everything the court could have done and by the way they say that we that they should have I see I'm over time. They say that they they had an equitable adjustment claim in that first case well they do but the court had no jurisdiction to give them any money in that first case because they had not even yet presented any claim for money to the to the contract. So we did everything the court could have done the trial court could have done in those two cases and those cases the court should never have entered a judgment. The court agreed with us that the court should have meant the judgment to say that the money judgment is only the part of the third case but even that didn't get done the court has not has not amended the judgment. On the profit issue your honor your honors the any reason the clause says that any reasonable method of calculating profit is is is permitted that is an abusive discretion issue because it goes to methodology not the type of profit that would be awarded and that's where home saving says. So it was perfectly reasonable for just minutes to look at and we urged it but he adopted it what they had spent performing work of the value that it was and the difference between the value of the work and the cost of the of doing that work is is profit they may have been other ways to. There may have been other methodologies and if another one had been adopted I wonder whether we would appeal that because it's an abusive discretion issue but 19% in this case was was a reasonable profit on the form of work and for those reasons thank you. Thank you. We'll give you if you need it next three minutes that it on to what you have remaining in the fact that. Thank you. Thank you. First of all let me apologize to the court if we had known Mr. Kobe was deceased we were never brought up the issue and I guess I didn't know that until we heard today. I'd like to start with Judge Rainer's question on the moodness and age of 20's fees and it relates to the profit issue that Mr

. All the different psych conditions stuff even the liquidated damages return I I had to prove in my post trial brief I mean I felt compelled to prove it that we had paid the money back we should never have had to talk about those two those first two cases after we moved to dismiss in 2004 having done everything the court could have done and by the way they say that we that they should have I see I'm over time. They say that they they had an equitable adjustment claim in that first case well they do but the court had no jurisdiction to give them any money in that first case because they had not even yet presented any claim for money to the to the contract. So we did everything the court could have done the trial court could have done in those two cases and those cases the court should never have entered a judgment. The court agreed with us that the court should have meant the judgment to say that the money judgment is only the part of the third case but even that didn't get done the court has not has not amended the judgment. On the profit issue your honor your honors the any reason the clause says that any reasonable method of calculating profit is is is permitted that is an abusive discretion issue because it goes to methodology not the type of profit that would be awarded and that's where home saving says. So it was perfectly reasonable for just minutes to look at and we urged it but he adopted it what they had spent performing work of the value that it was and the difference between the value of the work and the cost of the of doing that work is is profit they may have been other ways to. There may have been other methodologies and if another one had been adopted I wonder whether we would appeal that because it's an abusive discretion issue but 19% in this case was was a reasonable profit on the form of work and for those reasons thank you. Thank you. We'll give you if you need it next three minutes that it on to what you have remaining in the fact that. Thank you. Thank you. First of all let me apologize to the court if we had known Mr. Kobe was deceased we were never brought up the issue and I guess I didn't know that until we heard today. I'd like to start with Judge Rainer's question on the moodness and age of 20's fees and it relates to the profit issue that Mr. Maccom will raise last. The trial court made a specific finding that White Buffalo was entitled to a contract modification due to the design your on the slope that said 101 Fed claim that 17. Because White Buffalo was entitled to a contract modification as White Buffalo requested in the 1999 case we believe White Buffalo should have been designated a prevalent party in that case which was not moved because it obtained relief that requested that the contract be modified because of this error. And that contract modification should have been but wasn't also incorporated into the court's profit calculation that what the court did on the profit issue is based on testimony of no witness it was a calculation from the government's free trial brief that wasn't sponsored by anyone it wasn't presented by anyone we never had an opportunity to cross examine on it. But what it did was compare go ahead and finish the point. It compared a ledge completion percentage by picking and choosing various things in the record and costs. If those numbers should have been adjusted due to the entitlement to a contract modification because of a designer that increased costs then the profit calculation by the district court or the court of federal clean was incorrect. Well, but you haven't raised that in your brief in this case right the contract modification issue that you're now addressing. You did. Well, I mean, it had been incorporated in some other argument but I don't think there was a separate argument on this last time. Blanky order. But well, I look like. Thank you. Thank you

. Maccom will raise last. The trial court made a specific finding that White Buffalo was entitled to a contract modification due to the design your on the slope that said 101 Fed claim that 17. Because White Buffalo was entitled to a contract modification as White Buffalo requested in the 1999 case we believe White Buffalo should have been designated a prevalent party in that case which was not moved because it obtained relief that requested that the contract be modified because of this error. And that contract modification should have been but wasn't also incorporated into the court's profit calculation that what the court did on the profit issue is based on testimony of no witness it was a calculation from the government's free trial brief that wasn't sponsored by anyone it wasn't presented by anyone we never had an opportunity to cross examine on it. But what it did was compare go ahead and finish the point. It compared a ledge completion percentage by picking and choosing various things in the record and costs. If those numbers should have been adjusted due to the entitlement to a contract modification because of a designer that increased costs then the profit calculation by the district court or the court of federal clean was incorrect. Well, but you haven't raised that in your brief in this case right the contract modification issue that you're now addressing. You did. Well, I mean, it had been incorporated in some other argument but I don't think there was a separate argument on this last time. Blanky order. But well, I look like. Thank you. Thank you. And that that was a factual finding by the court and it's inconsistent with the court's profit calculation. On the 12 month statute of limitations period there's really no issue there. The bad faith claim was denied by the contracting officer in August 2007. White Buffalo filed to challenge it only three months later. So I guess I failed to see why there would be a 12 month statute of limitations issue there. On the merits of the bad faith claim, yes, I would just like to conclude by suggesting if the court was going to read one case it would be the key to decision tried in court of federal claims about a year before ours which were very similar factual circumstances where it wasn't the contracting officer but it was a person feeding the contracting officer the information because as in our case the contracting officer's having to go off somewhere else and relies on the on the ground person to provide information. And that evidence that the contracting officer had to rely on was biased in favor of the words court uses were getting rid of a disfavored contractor to favor another contractor. And we believe those facts are having an obvious. Thank you. I think those parties, the cases that made it.

Next case for arguments this morning is 125045 white buffalo constructions versus US Mr. Casslin whenever you're ready. Morning, Your Honor. Please report. Scott Depp, the furtile white buffalo. We have before the court essentially three separate related matters. There is the court of federal claims, the dismissal of white buffaloes, Advait claim on the merits and we also have a couple of damages issues on the merits. We have the dismissal of white buffaloes 1999 and 2000 cases of mootness. And we have the governments cross assignment of error of the court of federal claims denial of the motion to dismiss on jurisdictional grounds. While jurisdiction is a first of predicate to getting to the merits of the bad faith claim, I'd like to suggest that because the grounds of the court of federal claims denial of the motion necessarily were factual, in that there are questions about when the claim approved and on the application of the discovery rule, that the government would need to show that those rulings were clear error. Well, did the court, trial court, actually rule that the on accrual are discovery rule? I didn't see his ruling as having been directed to the point that was made in the government's motions to dismiss on those two issues. It can be a point as to what the court had to say about that in the case of the did rule, but he didn't make a finding with respect to either accrual or discovery. I can't your honor because the court of federal claims didn't explain the rationale for the denial of the motion. Wait, where in the appendix is the place where the court rules on that motion? Do you have that readily in hand? I don't want to take a phone. Your time will be quite clear. I do have that side of mine. We have, there's a point page order, and I believe it's A279. And this is our recall. We just have the motion to know. But somewhere, and I don't have the right site for it, I have a quote that says, there may be some potential question of jurisdiction that seems to me the better answer is there is jurisdiction to hear this material make a decision on that. I don't know exactly where that appears. I don't know, Your Honor. And it may be there was also the movement issue, and it may be the court decided that, and I think correctly, that moodness couldn't be determined until after a trial, what the reason for the opportunity to talk about. But as far as subject matter jurisdiction, the way the case was framed was that if the claim, the claim was made either in our view of the world in fall of 2004, in the government's view of the world in January 2005, the termination was December 1998. If the government's view of the world is correct, and if there are no issues of a cruel and no discovery rule, then the January of 1995 claim was late. So in order for the motion to have been denied, there had to have been a finding either that a the claim was made letter or be the crew letter. Now, you're the, the filing from the fall of the fall of 2004, I guess it is, that you rely on seeing to me when I looked at them to be in the nature of saying that we will be filing a claim. So, that's not the, this is our claim. So, that file may have alerted the government to the possibility that such a claim would be put coming. That isn't a claim itself, right? It put the government on notice. That's not what's required in order to trigger the six year, right? You're right, you're on it. We don't rely on those. Oh, you're really relying on the January 2005, which is, I don't know who I have people wait six years and one month, but that's what happened. And so, you need the discovery rule to come to your aid, right? We need the discovery rule to come to our aid and that all events in part. But the second part is that part of the events that constitute claim hadn't occurred until the completion contractor did the work in 1999. And that is based on your theory that the credible treatment given to completion contractor is part and parcel, not only indicative of what part and parcel of the bad faith is the essence of your claim. Thank you, Your Honor. That's the heart of our case based on the cheater case and on the recent Tigris one case, which follows along with it. Okay, but that is the heart of our case. And if we look at the events that triggered the discovery, there were several. First of all, there was discovery in the litigation. Then there was a survey that white buffalo commissioned in 2002, which showed in part that the government had paid the completion contractor for work that wasn't done or that was done. By white buffalo and it also confirmed the design change that wasn't disclosed until white buffalo made a FOIA request. And in that request, it uncovered documents to the effect that we better not make the design change in the contract for the completion contractor because we don't want that to be grounds for termination for convenience. So there was an affirmative effort to keep quiet about the design change. And we think that invokes equitable toll when you have those words. And in the discovery in the litigation, for example, we obtain the files of the government inspector, the contract inspector, my government employee. And in those files, we discovered that the resident engineer who we maintain had, you serve the role of the project engineer, had gotten irrationally absentably where the words when the inspector tried to assist white buffalo and actually getting the work done. And we also uncovered evidence that this resident engineer was assigned to projects when you want to get rid of the contractor. And now I understand that this is an unusual situation. And that is not the kind of thing the court sees every day. And we wouldn't have pursued this for 15 years now if it wasn't an extremely unusual situation where we have affirmative evidence that because the resident engineer favored another contractor and the record is replete with notifications to the contracting officer and to his superiors that these other guys tied water, they're great, they're competent, but these white buffalo people, they're incompetent. And that was basically a couple of weeks after the work started. And there were continual references to the favorite contractor, tied water. And there were also references to the prior litigation that white buffalo had with first service who was federal highway administration's client here to the effect that white buffalo's president was told. And it was kind of as a vulgar remark that I won't repeat here. It's in the record, but it was that you better watch out. They're going to give you. So you better settle that other case. So we really have affirmative evidence of an animus here. But the problem is I'm sure you recognize is that everything you've been saying is highly factual. It was before the trial court held the trial in this case heard from the witnesses that we haven't gotten before us all we have as a cold record and found squirrelly against you on the question of bad faith with findings of the credibility and ultimately the good performance of the resident engineer. And I think I have to overcome that kind of those kinds of findings. A few things are on the first on this relation to the court's question on the jurisdiction of issue because it's so hard to meet this burden. There can't be a hair trigger on the approval of the claim. Let's assume that you're right about jurisdiction and we'll let's assume we read judgment. Very brief statement as encompassing a finding that there was either later a cruel or acquittal. Okay, but on the merits of the bad faith issue and I do recognize that we have a high burden, but what the court in fact didn't address the two key reasons why we think the court was wrong. Number one, the whole disparate treatment issue simply wasn't addressed and I can go through the evidence there for the court lights, but it's just not addressed in the opinion. And number two, white buffalo argued, strenuously, that a presumption ought to be applied here because critical people under the control of the government, including the project engineer, who were not brought to trial and were not available to white buffalo. The project engineer was involved more the trial was important. There was no way to subpoena him. They were available by death. They were available by death. They were deposed. The problem was that white buffalo argued that Mr. Retinger, you served the role of the project engineer and Mr. Retinger's explanation was to you, well, as English wasn't very good, he was kind of a new beat and what he was doing. And Mr. Retinger was there in person to, for example, talk about that the project engineer's English wasn't very good and the court of federal claims didn't have the engineer there so that the court can determine that himself. And for example, the project engineer specifically said, I don't know why Mr. Retinger so strict on this project is not strict on other projects, which we think is going to promise face evidence of disparage treatment. Mr. Retinger was there to try to explain that away. Project engineer wasn't there so that the court could evaluate his credibility. The same issue was for Carrom Jacoby who was a true or her exact title, but she was the head of the Western Regional Office for the Federal Highway Administration. She was the one who made the determination that we should keep quiet about the design change, so that's not a key for termination for convenience. She was the one who, you know, the contact officer reported to and we didn't have the opportunity to question her at trial and to have her credibility evaluated on that. Why, why were you not disclosing this termination for convenience basis and why did White Buffalo have to get that information by making a FOIA request that incidentally they only got the documents after having to sue. We believe that particularly with regard to Mr. FTA, the engineer, a presumption should have been applied that his testimony would have been unsurrupable to the government and that his credibility would have been at least as great as Mr. Retinger who was made available to testify. That would be a rule that seems to be of sweeping consequence because in civil cases this is very well known and that there are limits on speed of power that don't exist in criminal cases. You would be saying that any time one party has a tame testimony from a witness that's within the control of the other party that party A thinks it's favorable but wants that party to have that witness present in court. That there would be a presumption. That would apply to Smith by the third of all civil cases. Well, it comes up a lot. It comes up fairly often but in this case it was the central witness in the case and it was the central witness not subject to subpoena at trial 3000 miles away from where this witness was and it was a witness that the government easily could have made available at the trial. I see I'm going to go through a housekeeping question which is why I'm $30,000 for 29,000 who is regards to subcontract. Why you all didn't file a motion for reconsideration before the trial? The FC? We could have your honor and frankly I don't know the history to it and we may be able to do it after this court's decision depending on what this court does. But aside from that possibility the one year clock has run on doing that and we do think it was clear error for the trial court to make factual findings and not include the necessary ramifications of those findings and judgment. Thank you. On these short witnesses they did testify they testify for deposition. The issue did not even come up until after the trials or if we had been asked to bring Mr. Afted to Portland we would have done that. We could not have done that with Mr. Kobe she died in 2000. This is not something this is only something I alluded to in the post-trail briefs because I had no evidence. I didn't have the I didn't have the death certificate entered into evidence at trial because because this never came because it never came up. More importantly though you say there was no request at trial to have Mr. Afted present from the hearing. No he we. Right he was on their witness list we counter designated deposition transcript excerpts and that as far as I knew would have been the end of it. I didn't even learn that Mr. Kobe was the seest until until after the trial. Moreover they those people did not terminate the contract Mr. Parsons terminated the contract. His testimony also was was in the trial through deposition. He was not even employed by the government at the time of trial so he was equally available to be available to everybody. Can I if you're at that point can I ask you to comment on the jurisdictional questions you argue it's unlike and specifically could you address the question of whether Judge Smith has albeit rather. I'm not a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit that Feng Tung Close lados court dismisses the government's jurisdiction arguments as move. Suggesting that because we went on the merits, there was no reason to address the jurisdiction. Now, I didn't catch the full record number that Mr. Kaplan provided. I think he said 877. I don't know the dates. Well, it's a tentative kind of fight. I could. If that's what he was talking about, I'll put a case over there. I remember this. I remember this. So what I understood to be going on was judgment. Did not find make factual findings or even a jurisdictional determination on in a cruel time when this issue, but what was saying that because at the time he thought the trial would last five days, we would just defer all that. So I don't see anywhere where the trial court made factual findings. Yeah, I think you're right. There were no explicit factual findings. There was a point. I believe there was a different point from the order of the opposing council called attention to, which the judge says in rather perfunctory fashion. Well, I think we have jurisdiction for something of that effect. There is a statement. I don't know where it is now, but there's a potential question. It seems to me the better answer is there here is jurisdiction. That's the statement that I'm. Well, the court can look at that. If the court in first from that factual findings, then the court can determine that they are, the factual findings are clearly erroneous. And it is because White Buffalo didn't have to know every last thing in order to bring a bad faith termination claim. In fact, its claim is about contract administration. Some of it, yes, was after the end of the contract when the contract was terminated. But the problem we have just as a process kind of thing is if we agree with you that this isn't, you're saying we can find it was clear or that you used a discussion. But we don't really, if at best we have this statement. So why wouldn't the better, more prudent course be for us to send it back to the trial judge to make findings so that we'll have findings to review? Well, it's not something that I don't think anyone really would embrace as the best solution, but why isn't that what we're left with? Because that 1998 letter that White Buffalo sent to the contracting officer before termination and in response to the curinosis has almost, has the vast majority of what their bad faith claim is. So that's when their claim recrued. And that's what happened in John Sainton, where that claim of send a letter threatening to sue listed reasons. The claims court, sorry, the court of claims, sell that that was the date that they left their claim recrued. So is when they wrote that letter, their claim recrued because they were aware of the things that became the nexus of their bad faith claim. The claim couldn't accrue before the default termination, right? I mean, no, so it was the same. Right, so. Well, it's, we can look at it too is because their bad faith claims is about both bad faith contract administration. They never actually say that Mr. Parsons terminated the contract as a pretext or otherwise for a new and proper motive. So they did know in November, 1998 that they had a bad faith contract administration. What their knowledge had had no underground consequences until the default termination, right? I mean, it's right. And we're claiming that the bad faith increased their performance costs and their claim ultimately is they were not permitted to complete this contract. Right. So at the very latest, their claim recrued on December 1, 1998 when the termination happened. And at least they say because of the reasons most of which can, most of which can be read in that November, 1998 letter. So it was clearly erroneous for the court not to dismiss that for lack of jurisdiction because they knew of all those things more than six years before they submitted that January 2000 pipeline. And so. Well, but I wonder, I mean, it seems to me there is some force to the argument that at least enough force to make me wary of saying that the judge, if he made those findings, was clearly erroneous. In saying that it's one thing to have the contracting officer an agent of the government who's treating you badly, you can assume that they treat everybody badly. That's just their sourquests. But it's another thing to say, ah, they treated us really badly. But then they treated somebody else very differently and very favorably. And that suggests some animus that the unilateral bad treatment like not a, why isn't that a legitimate ground to say there wasn't until they found out about the alleged better treatment of tidewater company that they really knew enough to say to make the rather bold statement that this is a bad safe contract administration. Because because when one can read in their claim in that third case, how they articulated is that the bad fate is the failure is the lack of facilitation of cooperation. Not a subset of what of that character that characterization is the disparate treatment after the termination, but that doesn't it doesn't make logical sense to say that the government failed to cooperate with us during performance by desperately treating another follow up. So that's a different, slightly different point, but it still brings that evidence into relief as important evidence for purposes of establishing a good treatment. And a cool date or at least a discovery rule extension of the period for five. Right. And if that's how they grow, if that's how they created their claim, then I'd have a much more difficult argument, but that's not what they're saying. They said that they knew from the beginning that they were being not treated well. That their project schedule was not being treated correctly, that the notice to proceed was too late, that the extension permit request was not handled properly. And all those things they told the contracting officer in November 1998. They have another reason now that they were in, but that's that's additional. And the Japanese war notes case that they cite in their brief says that they don't a plan of doesn't need to know every last thing. He doesn't need to be he gets to flesh it out later. I think that the term flesh it out is in the Japanese war notes claim. So that once they know that they have a problem and they say in that letter problems with Mr. Reddinger are are slowing down this slowing down our progress and they actually say that he is intent on not seeing this completed timely. So that does bring in his his motor that does bring in that they and they do all along that at least in their mind. He was there nemesis on this job. So just because they got confirmation of that in their view later because of what happened after term nations does not mean that they did not know about this claim more than six years before they brought it. But is it crystal clear that the six year period is your spiritual well if by that you are on a means it can't be told. No, no, I mean there's something in the jurisdiction but it's still subject to the ruling as the string court has told us but it but is it still jurisdictional in the sense that if a finding is not made of that credible tolling that that's it. It's not simply a timing mechanism which can be passed over in favor of the merits but it it deprives the words of claims of jurisdiction. Well England suggests that England suggests that it is jurisdictional because it's a jurisdictional prerequisite that a claim be presented and that and. It's a very timely right. Yes, it is jurisdictional. I mean the Alaska native case actually that I wrote has some language and it suggests it's jurisdictional but that wasn't the focus of the case and I just wonder if we have any other cases that just nailed that down. I don't know and I don't remember having read Alaska but I'm tolling of course Artic's will says that that that present me requirement can be told. But the only just because we're talking about that this now on the same case. Artic's law. Artic's law. You're right. I don't remember what the court said on that but on just because we're on this on the tolling of the 12 month appeals. I haven't seen anything since Irwin on that but this court has as the boroughs case that says that there are no exceptions can be written to the 12 month period which goes to whether they can even challenge me. The conversion decision on authority or some other type of grounds. But judge Smith's findings that White Buffalo failed to demonstrate that faith and that the basis for the termination for default is in White Buffalo's actions are not clearly erroneous. After all they did not complete those repairs to subgrade to that minor post by that they they were supposed to have done and they don't even say that Mr. Reddiger was responsible for that. So and they and Judge Smith on a dendin case 21 with many reasons even aside from the different side condition for that for that failure to complete on time. So it's ironic because if they're if they're correct that the conversion was a nullity and didn't happen then they actually lose this entire case because Judge Smith in effect sustained the termination for default in which case they're not entitled to any recovery under the termination for convenience plus. You're on because you were about to address the 20 cents. Yeah. Right. So it wasn't oversight. Judge Smith meant meant to put that in the judgment but it's within the course of discretion to affirm that judgment amount based upon anything that's supportable by the record even if the party hasn't brought it up which is what L. Sheets says and the termination for convenience clause which is the basis for recovery for that simply doesn't cover that that was a pass through claim that can be seen on a 8606. It's not a cost either to white buffalo of the work because they never paid me for it. You have to follow cross appeal on that issue or something. No procedure where we can just take it up and say it was wrong. Yes. Because we're not asking for an alteration of the judgment. Because the judge left it out. The judgment amount of that is there for it. So it's within the course of discretion there are reasons why the court could agree with us but it's within the course of discretion. That was a contingent payment. That's on 140 1437. They say that will pay the bride if if the court if if we get paid. What about this year about E.J. Attorney's fees? Well, that's one of the reasons frankly why we're why we're pushing for a decoder and instructions to dismiss the first two cases. That E.J. was a reason we we did what they asked us to do did what they asked the court to do we converted and return the liquidated damages in part so they wouldn't be a prevalent party. We made the business decision that that was the best thing to do. And you're saying they're not entitled to each of these right because I like the really right they did not prevail but I do not want the United States to have to keep litigating that issue. A party if it if it voluntarily acquiesces to the relief that all that all the relief that the court to grant should get the benefit of the end of that end of that litigation and we did that in 2004 and we are still litigating whether those two cases are good. And by the way they've enjoyed the benefit of the $101,000 that we sent back in the form of liquidated damages and we have not had the benefit of having put those two cases we thought we thought to rest lots of what we tried in Portland over those three weeks had to do with that first case. All the different psych conditions stuff even the liquidated damages return I I had to prove in my post trial brief I mean I felt compelled to prove it that we had paid the money back we should never have had to talk about those two those first two cases after we moved to dismiss in 2004 having done everything the court could have done and by the way they say that we that they should have I see I'm over time. They say that they they had an equitable adjustment claim in that first case well they do but the court had no jurisdiction to give them any money in that first case because they had not even yet presented any claim for money to the to the contract. So we did everything the court could have done the trial court could have done in those two cases and those cases the court should never have entered a judgment. The court agreed with us that the court should have meant the judgment to say that the money judgment is only the part of the third case but even that didn't get done the court has not has not amended the judgment. On the profit issue your honor your honors the any reason the clause says that any reasonable method of calculating profit is is is permitted that is an abusive discretion issue because it goes to methodology not the type of profit that would be awarded and that's where home saving says. So it was perfectly reasonable for just minutes to look at and we urged it but he adopted it what they had spent performing work of the value that it was and the difference between the value of the work and the cost of the of doing that work is is profit they may have been other ways to. There may have been other methodologies and if another one had been adopted I wonder whether we would appeal that because it's an abusive discretion issue but 19% in this case was was a reasonable profit on the form of work and for those reasons thank you. Thank you. We'll give you if you need it next three minutes that it on to what you have remaining in the fact that. Thank you. Thank you. First of all let me apologize to the court if we had known Mr. Kobe was deceased we were never brought up the issue and I guess I didn't know that until we heard today. I'd like to start with Judge Rainer's question on the moodness and age of 20's fees and it relates to the profit issue that Mr. Maccom will raise last. The trial court made a specific finding that White Buffalo was entitled to a contract modification due to the design your on the slope that said 101 Fed claim that 17. Because White Buffalo was entitled to a contract modification as White Buffalo requested in the 1999 case we believe White Buffalo should have been designated a prevalent party in that case which was not moved because it obtained relief that requested that the contract be modified because of this error. And that contract modification should have been but wasn't also incorporated into the court's profit calculation that what the court did on the profit issue is based on testimony of no witness it was a calculation from the government's free trial brief that wasn't sponsored by anyone it wasn't presented by anyone we never had an opportunity to cross examine on it. But what it did was compare go ahead and finish the point. It compared a ledge completion percentage by picking and choosing various things in the record and costs. If those numbers should have been adjusted due to the entitlement to a contract modification because of a designer that increased costs then the profit calculation by the district court or the court of federal clean was incorrect. Well, but you haven't raised that in your brief in this case right the contract modification issue that you're now addressing. You did. Well, I mean, it had been incorporated in some other argument but I don't think there was a separate argument on this last time. Blanky order. But well, I look like. Thank you. Thank you. And that that was a factual finding by the court and it's inconsistent with the court's profit calculation. On the 12 month statute of limitations period there's really no issue there. The bad faith claim was denied by the contracting officer in August 2007. White Buffalo filed to challenge it only three months later. So I guess I failed to see why there would be a 12 month statute of limitations issue there. On the merits of the bad faith claim, yes, I would just like to conclude by suggesting if the court was going to read one case it would be the key to decision tried in court of federal claims about a year before ours which were very similar factual circumstances where it wasn't the contracting officer but it was a person feeding the contracting officer the information because as in our case the contracting officer's having to go off somewhere else and relies on the on the ground person to provide information. And that evidence that the contracting officer had to rely on was biased in favor of the words court uses were getting rid of a disfavored contractor to favor another contractor. And we believe those facts are having an obvious. Thank you. I think those parties, the cases that made it