approach taking the difference between what the government actually paid and the value of what the government received second the district court at the government's urging failed to follow this court's mandate and instead adopted mr zak a readies offer based approach which tried to reengineer the offer that pratt should have made in one thousand nine hundred three instead determine the value of the of the engines that the government actually received years later and third not only is there a total failure of proof by the government on damages but the evidence in the record overwhelmingly shows and that includes comparable sales historical sales and air forces own independent and estimates that the government did not pay more than the value of what it received for those reasons we would ask this court to put an end to this long running pace hold that the district court is not entitled to damages because of the failure proof it doesn't mean that pratt will pay nothing to the government pratt will pay the statutory penalty that congress deemed appropriate for false statements but the government is not entitled to any actual damages on top of that where it has failed to show that it paid more than the value of the engines that it received but it is a statutory battle day it's seven million dollars your honor which to me in this case is calculate based on the number of false statements orders that just recorded the first instance was i'm sorry it was the order of the district court to get in the first that's right in this court left in place and in the prior appeal now going back to address each of these points we don't think that there is serious doubt as we read this court's prior opinion that this court intended to adopt the fair market approach that's the approach that comes from the decisions that this court signed at the bornstein case by the supreme court the robie case by this court and you could look at other decisions like the fifty acres of land case from the supreme court with the commodity and commodities trading corporations case by the supreme court or of page one hundred thirty the court we do about the fact that i mean i think i think i think it's hard to say there wasn't competition here in fact that was the whole point of what the air force was doing but it seems also fair to say on their side that you wouldn't call it a fully developed competitive market i mean because the whole point was to get g e in the mix so does that i mean just not sure what that does it may be that you're right that simply looking at cost plus profits which is usually for sole source doesn't work here but what about the reality that you know or what seems to me a reality that it wasn't a typical competitive market even except for here that you can call it a competitive market to have just two competitors and one buyer but even if you accept that this was still kind of the beginning of it and you know part of what they were doing i'm sure was price competition but i'm sure there was a little bit of national security stuff going on do we really want to have a world in which we have only one engine maker or relying on because that could be really dangerous if something happens to pratt so that so what do we do with that reality i guess i'd make a few points in response that first is the supreme court in the fifty acres of land case that the courts should determine fair market value where it's ascertainable second here there's abund evidence of fair market value you have comparable sales g s and sales over the life of the contract you got historical sales the prior sales that pratt made a situation where there were no allegations of fraud you have the air force's own independent estimates of what the engines would be valued at and you have foreign sales to extent you want to go there and third i would say take the government at its word in terms of the competition that existed here there wasn't just competition here the government as recently as august of this year has held out the paid by the air force after that there was fierce competition through through calls for improvement in each of the contract years issues here and there's no allegation of fraud as to the calls for improvement in the fierce competition which the government called a perpetual competition working to perfection so really the court would have to have to find an awfully good reason to truman that fair market value didn't apply here we think the court already concluded properly that the fair market value in there anything goes record that says whether there are damages and if so what amount if the only way you look at damages is just compare it to what she was getting over it and that you never read that she was no damages that shows what  will it shows in i think three out of three out of the five years g s prot be g s prices for the engines the other two years they were you know the profs parsons were little bit higher but they're more or less comparable and then you would look wouldn't we just say that's that that's it the two years where prout engines cost more look at that differential and extrapolate from that you could add that doesn't work i don't think that's the complete evidence of the fair market value i think you would look at all the allegation of fraud in that circumstance there's no reason to believe that the government didn't pay for the value of what it received there so there's no reason to exclude that and i think importantly the court is left in the situation where after this court ordered the fair market value an the government went back resisted this court's mandate to the point of saying the court did not adopt a fair market value analysis and then put all its bet eggs in the zac ready basket was accurate he engaged in this subjective tripe subjective analysis of trying to reengineer the offer that pratt would have made in one thousand nine hundred three had it not made the false statements as to the split award that's not a fair market analysis under any sense so we can talk about why the record evidence shows that there is no damages when you look to the value of the engines that the government received but i think importantly the government bore the burden of proof on damages i don't think there's any dispute as to that and the government has simply failed to show that it's entitle to any damages into the fair market value analysis it made that decision whether it was for strategic rather reasons perhaps it appreciated that when you do apply the conventional fair market indicators it could prevail in establishing any actual damages and so it went with the zachary model now the last time this case of before the court the government the model under centrally the singer based approach that where you've got false statements one would presume that you've got a one to one the fact on the on the price this court didn't adopt the singer approach for good reason note no court in the singers from the fo circuit no court has adopted that analysis it was applied in the sole source context it applause and this is not a sole source context this is a it's context as serious competition for both sides but has that approach been applied outside the sole source context no i'm certainly not by any circuit court and i'm unaware of any court that has ever played that outside the sole source and even within the sole source context singer that analysis has been question and so we would not i think this court with these sticking its neck out to adopt that analysis certainly in the dual source context here and the government has nothing else that's how it tried to show the value of what the government received if the government paid one hundred dollars for an engine that was worth one hundred dollars then it hasn't been harmed in all its actual damages that's the way that the false claims act work the government is entitle to damages through this subjective reengineering approach and liquid zachary did it again he went back instead of trying to g e is comparable prices he didn't consider the air force's own independent estimates that perhaps be he ignored the discounts that took place in the subsequent years under the calls for improvement if they ignore the word tease instead he looked he went back and he ne ne what he did exclusively was try to reengineer the offer that it said pratt would have made if it hadn't made the false statements and just taking a step back and looking at the fraud to remind this court the fraud that determined to exist here was pratts efforts to inflate the split a work price and to drive the government towards the full award price which it tried to make as low as possible the way it turned out because of the calls situation here your point then is that the full source award offered didn't have fraud it didn't have fraud and right so that i get that but then you have this other problem that you know you have cause for improvement to everything yet if i mean so well i think i mean it's  gets really difficult to figure out what that means and the way to answer that is the way i think this court approach in the prior appeal which is to say we're not going to go back and try to re engineer the offer was made we're not going to try to decide where the taint ends we're going  value of what the government received and if the government didn't pay more than the value of what it received then it hasn't been harmed and it's not entitled to any actual damages that the way that the district court ruled it first before it came up  you not to write under the district court i think obviously we think it had obviously it reached we think it reached the correct result in terms of no damages but we've been making all along this fair market value argument as to the proper approach and it's approach established by the supreme court in this court's precedents and we think that the court adopted in the last appeal in there was a briefing on this in the last appeal the government argued that you should go in the singer direction and the offer based approach and this court adopted a fair market value approach and that was the approach that just the court should have applied and if you go back and you look what happened on remand it really is a situation where the case went off the rails immediately when the case got back there was a scheduling order that just a quarter ounce for breeze for both sides as to how to go about assessing damages on remand at that point the government started arguing that this court did not in fact adopt the fair market value analysis that comes from heading from its brief and then just a court beginning question of whether there was any market in this case to begin  that that was a premise of the just records damages decision as well if you look at page five of the court's decision really i think it's questioning the central premise of whether fair market value analysis can apply this court held correctly that it can apply that has to be the right answer under the supreme court's precedents if you look at cases like fifty acres of land which dealt with a landfill where they held that you could determine fair market value for that based on comparable sales and if you look at other cases like even like the commodities trading corporation case where the court said that at page one thirty that the fair market value was the negotiated price regardless of costs and here you've got the situation where i think it's fair to say that the government is is more or less talking out of both side of its mar mouth here where the department of defense is consistently touting this procurement as a competitive procurement where in the air force secretaries words both companies are going at each other's throats in these calls for improvements down down the line in the contract years where the where the engines were actually purchased and then the government coming here and saying ignore the competition we've got this taint from the initial offer which can never be removed under its analysis and the only way to calculate damages is to go back and try to reengineer the offer that the government the press should have made and so you've i think you've got two fundamental approaches here no court that we're aware of outside of the singer's sole course sole source context has ever gone in the offer base direction we think this court rejected that approach properly and the five of the i have a question which i mean i don't think i've seen you addressing this unless this is tied up a little bit in the issue preclusion argument but in so this is a page thirty three twenty one you don't need to get it you i think you understand the point from the last opinion problems arguing this kind of it's a liability point and they so they pointed out that there's this regulation procurement regulation says the air force must solicit koester pricing data if it modifies a contract by more than five hundred thousand of course that's every modifications that amounts it's a drop in the bucket with these contracts and then has an exception if the price is based on adequate price competition is cop out last time we said well we don't think that ish that shows process of liability but then at the end of that section we said but that could go to damages but maybe i'm missing something but i just don't see either so i'm really asking is to both of you i don't really see their side talk about that in my is it because i'm not understanding what you're arguing is it because that's what you're connecting that to the issue preclusion point or what am i missing something no no you're absolutely right we're  connecting to the issue preclusion point it goes to the question of whether the why but ok so i'm i'm i understand the issue pollution argument but i guess the point i'm making i think if you were going to consider it on damages your honor i think you would conclude that it doesn't impact damage is or help the government and here's why and what that regulation says well there's two different regulatory points you're making one is the finding of new adequate price competition and just to take that first and then the other one by the board right you see this one is a premised on a finding this is just premised on the reality right that they never did anything their own actions suggest they must have assumed with that fishing competition so why in the world wouldn't you consider competition damages no that's absolutely right i mean really there's two ways that the government can go about these procurements one is the cost base way and if you're going to go that way then what this regulation says is you've got a request cost data for any modification more than five hundred thousand dollars and we know that the government do that didn't do that the other route to go is competition and what was unique about this picture was that the government went all in the air force went all in with competition that's why it didn't require additional cost data that's why it priced based on these fierce cycles that took place in the calls for prudent in every year of the contract where the government was actually pain prices that were substantially below the baffle price that was offered in one nine hundred if you would if you don't mind since you mentioned it  just because it was the other issue you briefed it just talk for a second about the issue preclusion argument with respect to the board finding as opposed to this so their point is well it's they're not apples to apples is there their basic point there for sure percussion doesn't as an alternative way get to get to that separate images and land and our point our central point in that is look the issue before the board was reliance what did what is the air force rely on when it price these these goods and again there are two ways you can go you can go the cost way or you can go the competition and what the board found was that the your force went the competition and that's clearly supported by all the finding that's made on competition and so where the board has found that this picture meant the pricing was based on competition the government can't come here and argue that it wasn't based on competition it was based on something else it's true that the something else here is the baffle in the something else there was the cost in pricing data even if this court were hit we're going to get into here splitting there and the legal sort of the difference for the legal approach is the parties take is this question of is in substance the same test and legally we think in this follows from the supreme court's decision in the montana case issue preclusion applies at the issues on substances here the issue of whether the air force relied on competition is clearly in substance the same as the issue before the board even though you have this this here splitting over you've got the cost data itself versus the narrative description of the cost at us so we do think that issue p usion is an alternative way to get to the same conclusion it gets back to this this fundamental point of where you have the situation of the of the air force from day one and as recently as august holding out this procurement as the gold standard for competition where the government through its competition is getting billions of dollars of savings in the department of justice come in here and say ignore all that competition what you really should do is go back to the initial offer try to reengineer that and base damages off of that that's not fair market value analysis it's not supported by the overwhelming record that the government did not pay more than the value of these engines and it's not consistent with the competition that in fact existed it's where you get your full rebuttal and characters so we hear from the government of its cost plus a reasonable profit pratt nonetheless decided to evade the governing regulatory scheme and that's why it inflated its you won this argument last time or on to what it means what that what's a quince is are absolutely your honor and the question is contract which is when you have fixed prices at the outset of the contract where you say where you have a fixed profit margin at the outset of the contract and so what happens in a cost plus contract is you say that the contractor's price is going to be whatever their costs actually end up being plus the fixed profit margin that you do so would you say singer is the right test we're not advocating for the singer presumption here and actually let me be clear on a because again i think there is some confusion the singer presumption would only go to the question of what how do you value the fact that pratt offered later discounts and in this case profits discounts were so small relative to the size of its initial fraud thirty three million dollars versus more than two hundred twenty seven million dollars that even if you gave complete full credit for every single discount that it gave the government would still be entitled to over one hundred ninety million dollars before traveling in interest so that the only thing that would have relevance to is whether you give percentage based discounts like the expert did or full he's an auditor and not an expert in pricing in this competition in this area i mean i'd just doesn't make sense to me and then even if we put the issue preclusion argument to the side of another word let's just say you're right about it it's just so hard to look at this record and not conclude that there was competition in the in the comparable sales i mean that's like speaking of gold standards isn't that the gold standard for  value there's a lot of i keep saying a lot of bad things so you have a chance to respond to all of them i would love to do that your honor because i think there's a lot of different points in there let me start with the first one which is which is about fair market value in the first place the court has to start is with the supreme court's analysis of what does fair market value mean in a regulated market and the answer and we know that from cases that the district court cited in cases that we said in our brief that regulated market in this day and age really curious well perhaps in perhaps the answer is there is dichotomy that i don't think exists when you're on i think the point here is that when you have markets and when you have some aspect of regulation you have to take into account the role that the regulation plays you don't just disregard the regulation and say we're going to imagine some hypothetical market in which there are infinite number of buyers an infinite number of sellers nobody has any constraints and the complete free market rules that's not the answer and that's what the supreme court has held so you have to take into account the regulations the question then becomes what are the regulations in this is where the district courts factual findings are important and this is where pratt lose the case and that's because the district court found is the factual finding its original opinion that pratt's price couldn't exceed the sum of its reasonable costs reasonable estimated cost plus is reasonable profit now this is not the same as a cost plus contract i want to make that really really clear that's a contract in which prices are determined by actual cost plus a pre determined profit margin this is instead a fixed price tract but because of the nature of the regulatory scheme let me grant every single thing you're saying why am i not still allowed to at the end of the day still check your experts work but came paring what the government actually paid to a competitor who is producing engines for the same planes so there's a why why why out why such as why are allowed why isn't that common sense that it should be done you know there's at least three reasons and that i'd love to go through every single one of them but let me start at the very beginning which is that because in this regulated market each sellers price couldn't exceed their reasonable expected class person reasonable profit the question for what the appropriate price for pratt's engines was couldn't be determined by an engine that had different costs the government was going to play out really i know you're going to disagree with me but about this but i mean that really is just taking it all back to two sole source situations while you're on it you may have different parameters as to how this is a slightly different so sore situation and singer or this other case but the end of the day that's the genus or the species whatever was the right word  i don't quite get that there still was competition because as much as this was a national security issue surely it was also a competition issue for the air force you and i think your intuition here is that in viewing this as a competitive market your honor wants to view this as a price competitive market that's not what this was this was primarily a competition on engine quality the idea behind inviting g e here is was irrelevant we're not saying the price was irrelevant but i think it's really telling as we know it's relevant how could you not consider it and the but respectfully your honor if you look at what the government was doing here if this was a price competition you would have expect the government to just buy the lowest price that's not what they did even in years where there were price differences the government ended up buying from both suppliers so i think that fact alone should tell you something that all the what the government was doing here was it wasn't just saying ok who's the cheapest and we're going to buy from them this expert siddur the price that  for him to do so the district court cogently explained based on other evidence in the record why that evidence was not relevant to pratt to perhaps prices but i think me go back to i think sutton's question here because there's a couple other really important points here the second reason why d e s prices weren't relevant here was because those prices were themselves in demick within the market so in other words if you look at every sale that the government made from g e if you want to view this is a truly competitive market a price competitive market we don't know whether the guy verman would have bought those engines from g e had pratt provided honest prices and indeed pratt's honest prices would have been substantially less than the prices that pratt ended up charging the government so because if this was truly competitive market you would expect g e to lower those prices later on everything but like i can accept every single point you're making sure you'll have this conclusion to conclusions figuring out value is really hard in this market but that means it requires an expert in the market not an auditor what you relied on auditor before for the for the opinion you just said we're sticking with it and it really i will say it really does lead to the impression which prior decision makers in this very case of come to which is there really wasn't damages that's what really leads one to that impression underlip i have how could you not have the expert say ok it's fair market value we better think about some other things besides someone who's really good with auditing your end of the that goes to what is fair market value in this particular market so first of all if you agree with us and agree with the supreme court the fair market value in a regulated market accounts for the nature of the regulation then the question in this market isn't what was the price of g e s and the question was how did pratt been complying with the regulatory scheme namely had its prices been an actual honest calculation of its reasonable expected cost plus a reasonable profit what prices would have a chart and that's exactly what the experts testimony what's the expert said ok i'm going to take pratt at its word i'm going to say if we accept everything that they're saying if we calculate prices the way that compliant with the regulatory regime what prices would pratt have come up with and in fact the profit margin that the expert applied his calculation was exactly the same profit margin that pratt had originally proposed that fifteen percent profit that the government had never questioned so all of the expert did is it said if pratt were complying he said if the we're complying with the regulatory squeezy him what would it what would its prices have been that was the answer the expert gave and that's fair market value in this regulated market and i think that should just at the end of the day that apply the same rationale if there was a tender one difference in the pricing with the private engines or the tenth of the cost of the g e ones they were essential the same quality an expert in the market would say engage in the fraud in the first place if this was a truly competitive market in which all pratt had to do was say to the government hey we're cheaper than g e buy from us there would have been no point to engage in fraud in the first place practive said yeah you know what we have costs that are these costs we're going to get a twenty three percent profit margin the the inflated prices were all for a thing that didn't work well it did work your honor and that's because of how the discounts were calculated so first of all the inflated prices and the discounted prices identical in the first two years of the contract when pratt says it gave discounts what it meant was in years three four five and six it gave small percentage discounts off of the original split a word raise prices so at least in years one into the splitter were prices and the the full were prices were identical then you get to the years where there were discounts but what those discounts were is there were small percentage discounts so if pratt inflates its prices by twenty percent then gives a three percent discount at most maybe it gets credit for three percent and we can talk about exactly how to account for that but at the very least it can't then say and we've also wiped out the other seventeen percent inflation as well that simply doesn't make sense because pratt inflated its glitter were prices so high and because its discounts were so small in comparison to the original fraud the net result is substantial portions of the original fraud remained even after you had these discounted prices now i hope that you have this this thing i raised before this thing on page three twenty one which i really mean separately from the issue preclusion point we're in but you know we do say in the prior opinion in response to their argument that this establishes no liability will know that i don't think that's right but we do say in the opinion in this you're supposed to look at fair market value there are comparable sales and you don't consider comparable sales so your answer is well they're not comparable as what you're going to get into the regulations well it's not just because the regulations or maybe this goes back to the other question that you answered i haven't fully given my answer to that and so if you are and that's it even if you want to disregard the regulatory nature of the regime and we want to emphasize that we think it's absolutely contrary to supreme court precedent we think you have to take into account the nature of the realtor's but even if you're a disregard that and say this is just a market where one buyer and two sellers this court's case law says that when the district court concludes that comparable sales aren't sufficiently comparable it can look to other measures of value here the district court concluded that as to g e s prices and that was because jihad unique market entry cost that pratt didn't experience and because g e was expressly invited into this competition to didn't increase industrial mobilization limit let's just step back for a moment and think about what's going on here you have a history of a sole source  in which crowd is the only engine provider and the government is worried about the quality of these engines now it says to another competitor on the marketplace you should come on into this particular market you're going to have a lot startup cost we get that but we want you to come in here anyway now what price is it going to buy from the competitor it's going to be much more willing to buy from the competitor at higher prices than it is from the original incumbent precisely because that competitor had to be invited in to come in in the first place and indeed if you think about the incentives for not just this procurement but for later procurement so much the air force is going to want to have competition later on you don't want to set a precedent in which you invite somebody new in make them incur all these huge start up in development costs and then guess what they have the sort of in development cost they're not as  the original incumbent and you're not going to buy from them so the price at which the government was willing to buy from g e was absolutely not the same price at which the government was willing to buy from pratt and the district court with absolutely correct including the g e sales were comparable in any event this court case the hold that it's it's in the district court it's wide latitude and wide discretion in that and it's hugely important that pratt's opening brief never even addresses that finding of a district court if you look in their opening brief you don't see a word about market entry cost that should end the case right there because the district court reasonably concluded that g e s sales weren't comparable in light of g e s unique market entry cost and his unique role in being invited into the market that is to court looked at another measure of value and its value was a perfectly reasonable one in the district court said you know what the reasonable price for a market for a manufactured article is the manufacture of reasonable expected costs plus a profit that's a reasonable price at which the manufacturer would agree sell the articles that's a reasonable price at which the government as the buyer would agree to buy those articles and that was what the expert system one established in the district was created so even if this quarter things that are regulated market argument is wrong it doesn't matter if you want to remain and say we didn't adopt  value that's not what we said and i would strongly urge the court to read the cited page from our brief if you read that page what you will see is that first of all the government embraced fair market value as a measure and in that particular argument all that the government was arguing was that if fair market value means something other then the price the government should have been paid then that was not the measure that this court adopted but this court's opinion equates the price that the government should have paid with fair market value and indeed the last time i used to hate this type of question when i was an advocate short of forgive me for not doing this but let's assume you're wrong or at least maybe you're not wrong but we think you're wrong and that you just can't have the prior expert opinion do the trick just a pure auditor based approach that you have to factor in the competition even though it's perhaps they're not in perfect comparisons so we just say that that's what you have to do what that happens here i mean do i take it you would say well we're just going to get it would be the same expertise an auditor you'd have to get somebody else right you are i think at that point we have to we have to think about what this court's opinion said and evaluated at standing right here we do think that the authors analysis is absolutely right for the reason i agree there are no evidence of damages if we think they are comparable sales there's no need to the g e sales are comparable if there are comparable sales then it gets more operable that they go into fair market value sure then i think at that point it becomes a question of whether you can still look at g e sales notwithstanding the fact that in years to through six of the contract every single price that g e charge the government if you believe this was a competitive market was still a price that heat off of profits inflated prices so in other words you would still have to so maybe that would that would tell you something about your one but it wouldn't tell you about later years and i want to urge the court also just to go because i think the court is really stuck on this point i want to make sure the court understand what it but what's your response to pratt's argument that well you know you don't get another chance if if the experts assumptions are wrong there's a failure and damages is the point they're making so the case is over we are at that point i presumably would be the district courts discretion whether or not to reopen the record when we oppose reopening the record we did it based on our understanding of what this court's opinion means something other then it's plain meeting and what we think it meant then you know that point if since especially since prop wanted to reopen the record as well at the very least the district should be given that opportunity but if we could step back because  a hugely important point i want to make sure the court also understands that there's a whole bunch of other evidence about why g e cells aren't comparable that we haven't even gotten into yet and that's in part because perhaps opening brief never even challenge the district court's finding on for quite a while we're just a couple points i think will be interested and if you have quite a few of them running a resume let me let me give kind of the highlights but i want to make sure the court understand that there's a lot more here and even if the court order a deck with the district court said that doesn't end the case and there's a lot more i'm going to theoretically let me start with testimony from colonel nice and you can find that are three thirty two three three five zero to fifty one and he testified in this case we had two totally different products should have different different airflows different weights and the two different products would each develop their own specifications in their servicing the same planes well first of all your honor that's actually not true the g s products were never selected for the f fifteen and there was a reason for that and that was because g s engines were much larger than pratt's engines and the government concluded that it would require very expensive modifications to the f fifteen to put g e engines in that aircraft now it could have been done at great expense but that meant that at least as to the f fifteen pratt had a very significant advantage very significant advantage there and that at the very least means as to the f fifteen sales we would have a very strong argument that you still are comparable but if i could just also give additional evidence i'll give you the four points question is on your brief right we're going to it's not and the syslog because pratt could have challenge the district court's findings about g e sells not being comparable and it's opening brief but it didn't precisely to improve industrial mobilization didn't challenge those findings and we explained in our brief that that's the end of it give me one more and if god forbid you want to add more talk to the other side if you guys both want to supplemental briefs and you both agree to the terms of it will carry out absolutely here's one other and this is are you for forty three dash twenty one at three hundred seven three six one in which the air force assessed g s and in this being more reliable and having lower support cost over the life of the end so there's a whole lot more here beyond what the district court did but we still think and i want to emphasize this that the district court's factual findings are entitled highly deferential review not only are they are correct they are correct even under that differential review and at the very least it was incumbent on pr we don't think this court's remand for another round of proceedings before judge throws another inevitable pill to this court the government has had every opportunity and true proceedings to prove its case and its utterly failed to prove that it paid any of the engines that are purchased even today the government hasn't come forward and in provided any fair market value analysis instead it's resisted every promise of this court's questions about what the fair market value of the engines are and the fact that the g e prices are comparable if the court is looking for guidance on this one place to look is the chief justices opinion in one thousand forces already which although in a slightly different context talks about why it's not appropriate to remain and for another submit evidence and this case in the last appeal to your honor's remarked somewhat i think in a kidding tone that if the court remanded it could take until two thousand and twenty to conclude this case if the court remands to that in this prepared to but frankly we concluded after seeing mr zappa readies approach that there was no reason to put on our own fair market value now as us and the evidence that is in the record of fair market value comparable sales historical sales air forces own of the way they're trying to put all that evidence is in the record and the government isn't here really saying we want to prove fair market value it's here challenging the premise to story remaining points second i think much of the government's arguments before you today depend on this notion that the taint from the original false statements carried all the way through the procurement i think this court rejected that in the first appeal and there's no reason to revisit it here third much discussion on the notion that this is  doesn't mean that you can't to their market that they're absolutely wrong to suggest that this was a cost plus contract here it was not you'll notice that they didn't cite a single regulation to the court in arguing that it was and that's because there is not a regulation that says that the one that they've cited in the brief is form d d six three three all of that goes to is the submission of cost data and it was submitted here but critically the government didn't rely on that cost data in pricing the goods it relied on competition and lastly with respect to comparable sales as a matter of law of course g e is engines which competed for the same contract with the same specifications were comparable and the notion that they're arguing here that the district court made a finding on that is just wrong the district court never said there were no comparable sales if the court looks at its decision in some page five of its damages order what it did is we think made the legally erroneous conclusion that comparable sales was inappropriate here because there was no market that was an error of law it's inconsistent with this court's mandate that it fair market value analysis applied and then lastly the related point of market entry costs that's simply a red herring in determining comparable sales you look on a product by product basis for example if you had a new home builder to the market you would look at the value of the home that he built and that was sold you wouldn't consider his market entry cost because you're doing a product by product comparison and here g e pratt is competing competing against g e which was already in the market of aircraft of military aircraft and was prepared to produce the same planes that's by the august two thousand and fourteen guidelines which recognize that they were both prepared to produce the same engines of course they were comparable and if you look at comparable sales and all the other and issue of her market that we've provided to this court that's in the record they have failed to show that they paid any more than the value of what they received therefore they are not entitled to actual damages pratt will still have to pay the significant penalty the congress deem appropriate but this case should come to the end on that basis thank you mr schultz thank you both of you furrier helpful arguments and answering our questions and thank you your teams for the briefs which were excellent you know we'll do our best with this i assume it's obvious that you guys can try to settle the sun your own i never seems very promising to settle a case in which enron one zero down inches around to what five to six hundred million dollars damage that's a pretty big gap but you know how you control your own fate when you do it it's which is worth thinking about  so thank you very much for your arguments the case will be submitted and the clerk maybe sets court