prepared to begin yes your honor all right thank you made again good morning everyone this is james walton copeland of the copeland law firm in atlanta georgia for the appellate optimum services may please the court appellant is appealing a decision by the civilian board of contract appeals in which the board denied appellants motion for summary judgment and granted the government's defense of motion for summary judgment and denied appellan appeal to the board at the board appellant was appealing to a national park service contracting officer final decision dated june th two thousand and fifteen in which the agency honor what your legal authority my legal authority is that a determination for convenience is a breach of contract when it is a clear abuse of discretion that is a established standard in the federal circuit when there is a contract determination variance the contractor's recovery is  shouldn't even be considered until the minimum is satisfied or poor paid but but having said that your other argument appears to be that the standard is abus discretion and that this constitution and an abuse of discretion so st of all if the government is right and that standard is bad faith and that that's what you would have to prove is there anything in the record that would show bad faith your honor i would submit that the standard is not that the standard is abuse of discretion that is the language that this court has used numerous times that faith is an alternative grounds for finding that and terminations for convenience was improper going to ask you i'm just asking you if we were to accept the government's proposition that it's supposed to be back i'm not saying whether we would or wouldn't but i'm saying if we would is there evidence of dropped back to gretchen and which is reflected in the court's case law i could ok but of attempted to prove the bad faith but i don't have to filed was but so weak that it should have prompted any terminations that's correct it was weak and it was on timely under the blue and gold rule as a matter of law and that was apparent from the face of the protests the strength of the big protest no but the the government does not have unlimited discretion to terminate for convenience in response to any big protest that would be an arbitrary amount of discretion cases that are out there look at the strength of the protest in this situation to authorize a contracting o automatically terminate merely because there's a terminal there's a protest post war would undermine the entire system there's got to be some review of the merits of the protest to circumstances the merit of the big protest the timing situation that the protest put the agency into and then concluded then the court concluded after considering the merits and the affidavits that the government submitted to show the merits then the court concluded that the terminations was reasonable in that situation in this case we have a completely different situation the face of the big protest shows that it was untimely as a matter of law under the blue and gold rule the all the cases on unfair competitive advantage the w c i cited in its motion for t r o tell everyone was terminated that was articulated for the terminations in the contracting officers final decision is really threefold the government defended or attempted to justify determination based on the strength of the protest which is clearly lacking in merit the government also defended based on an alleged reduction in funding and i've shown in the appendix in the inner aga tory answers and in the brief that the alleged reduction in funding was no basis for determination for convenience because the alleged reduction in funding would not have prevented the government from ordering the guaranteed minimum the record also shows that the government did in fact order two million dollar guaranteed and that the government had ten million dollars or twelve million dollars of funding on hand at all times for that two million dollars or so and also the contract put the bitters on notice the funding levels were uncertain and they couldn't expect anything more than the two million dollars so the alleged funding reduction justification was totally immaterial in the court's precedent and the for cause in the final decision the government also defended the terminations based on an alleged defect in the solicitation i mail down what they were asking about there in the inner auditory answers and the government solicitation that the government was so concerned about was actually an immaterial variance in some of the evaluation terms that the government health had already rejected it's right there in the documents in the row is it your contention that the government just did it so it could could do that the small business  not sure i'm not sure what your question is but why they did it i can this is certainly prove why they did it but i can prove that they didn't have a reasonable basis for doing it had all the all the justifications they've all for lack merit there was no unfair competitive advantage there was no material change in the funding and the defect in the solicitation that the government is relying on is immaterial as well ok contracts guaranteed minimum these two provisions have different roles the guaranteed minimum identifies the bottom of the ordering range and this indefinite quantity contract this provision takes the place of quantity in a traditional fixed price contract so instead of saying that the government will buy say ten dollars units for ten dollars each an indefinite quantity contract specifies a minimum in a maximum talking about with your friend on the other side i just kind of shocked by the government's read briefed you basically put all your eggs in the basket we're saying that we as a panel should change the law or clarify the law and say it's not an abuse of discretion standard it is a pure or bad faith standard i was kind of surprised because you don't ever then address the question of what if we are operating under an abuse of discretion or arbitrary and capricious standard you don't ever join with the facts and say why this wouldn't satisfy that standard you just say it's not it has to be bad faith and there's hope bad faith period well your honor we think that it doesn't satisfy the standard even if it were looked at for the same reasons the boards down that and just start out there is that there was a jurisdictional issue for the board even before you know getting to the substance and that being that the board doesn't have jurisdiction to review bids protest that protest if even if the board doesn't have the authority to to or to decide a bit protest it certainly has the authority to look and see if on the face of it the protest was frivolous or untimely actually on and we don't agree with that and the reason is that the only thing that the board had jurisdiction to review here is the government's terminations for convenience and so if you look at the contract you know the plain language of the contract t contract says that the government can terminate for convenience if the government's contracting officer determines that a terminations is in the government's interest so would the board can look at there is an action there is no there's no review of that determination of government interest there's really nothing of substance to review certainly the board could look at did that actually happen did the contracting officer determine that is terminations in the government's interest as a factual matter certainly you know that could be looked at but then could the board then go further and say was it a good decision is that really in the government's interest  know our position is definitely not what's in the government's interest is for the government to decide and we think this court has recognized that it's not for the a quarter a judge to decide what's in the government's interest and the plan language of the contract doesn't say that the government can terminate for convenience if the contract also decides it's in the government's interest and the judge agrees or and the judge finds it best not an abus discretion the government acquires a contract right like any contract and party acquires contracting right and there's no extra layer of a sort of a p a like a minister in a review of government decision of government decision making the a p a standard is used that into late too late to make a big protest at this point when the government chooses to terminate the contract right absolutely there should be no big protests arguments that are part of this case they have to man the opportunity and it did pursue it's been protests about twelve years ago and so this case is solely a question of whether the government had the right and  exercise this right properly d under the terminations for convenience clause and so the government's right to do that is governed by the d language in the d in the contract and that gives the government a very expansive unilateral right to terminate the contract through no fault of the contractor and it's the government's decision it's not there's really nothing of substance within that language within that clause for a judge to review now if a contractor wants to pursue affirmatively its own claim of bad stay and say well you that you breached the contract by acting in bad faith or wants to pursue some other kind of you know that haven't really d been others identified but can feasibly contractor can still pursue any kind of affirmative claim for breach it wants to pursue but just because the government terminates the contracts  convenience it doesn't then create an opportunity for the contractor to go d to a judge and ask to have that sort of a ministry of review of government decision making it's only a question  again you're back to the bad faith i mean i have a little bit of trouble with the notion that i mean basically you're just saying that that we've got a lot of cases where we never use language about abuse of discretion  and or arbitrary and capricious disk but we use that language in use you pretty much just say that's just been sloppy on our part or dicta and yet we continue to say it over and over how is we have as a panel how are we supposed to say that all the sudden that's not the law well we think you should start with the statute so obviously it's a c d a case and there shouldn't really be any question that  is the board's stand the review of any contracting officers decision by a board or the court of claims under the c d a is always the no so there shouldn't be any question there and then the next step is in this the number overview what is being review well it's the contract and so there's nothing in the contract where abuse of discretion comes in and the way we would do the analysis is you know you only get to the question of abuse of discretion by looking at  optimum points to all of these cases where it is suggested that if they can show d abuse of discretion they can overturn the terminations for convenience but when you look at all of these cases we don't find directly addresses the question of posi da why this language is still being used the citations usually just go back to cases like john reiner cases before the c d a was put in place where there was a highly consider why isn't there isn't belonged there certainly in some of these cases like like counsel or you can find you know some kind of there's some suggestion of well perhaps abus discretion is just part of bad faith and it could all be reconciled that way we don't think that's a good idea i mean the abuse of discretion is not the same as bad faith in this court regularly reviews trial court decisions for abuse of discretion and sometimes we find that it's not finding in those situations that the trial judge acted in bad faith are different things how do you define it faith in this context meaning for like something that would be unconstitutional or reason or what else what other bad faith or some personal animus toward the contractor yes it's us that was not we don't see it as a as a constitutional issue it's a contract law issue and the cases on ba generally that there needs to be a showing of a specific intent to injure the the contractor and obviously that there was just nothing like that presented here is the board recognized and so there was never really it it does sound to me like in the contract that if at least if you're the contractor you think you're guaranteed a certain amount no you shouldn't think that your honor because you should understand going back to the case like christian and associates that determination for convenience clause is so deeply ingrained even if it weren't hadn't even if it had been left out by omission it would be read into that into the contract at such a deeply ingrained part of government contracting that government contractors always should be going into contract with the government understanding that the government is bargaining for this very expansive unilateral right and so the there is no additional protection as i think it was explained and the armed services board case the montana refining there's no additional protection or different circumstances in an indefinite quantity contract versus a fixed price contract just as the government can terminate for convenience and a fixed price contract with a fixed quantity in florida waters and any and that the government also can exercise determination for convenience right in an indefinite quantity contract before it's ordered any amount and just work differently determination provision terminates the government's rights and obligations under the contract all of them so if it actually sides of the terminations provision one whenever it conflict between those two and there's no lack of consideration idea there is even within the terminations for convenience clause it specifies compensation to be paid to the contractor in the event that the germination for contract and it's clear that that's not recoverable so they got what they were entitled to under the contract under the agreement and the board correctly determine that there is no claim for fo categories there was a roughly twenty one thousand dollars this this contract of course is terminated for convenience basically right off the bat but optimum claims about twenty one thousand dollars and in costs under the terminations for convenience let me st begin pointing out the major fallacy in the agency's position and the board's position and the government's very government repeatedly said that the protest government mooted the protest by terminating the contract and cancelling the solicitation also in april of two thousand and nine there was a g a o decision in optimums protest of the cancellation of the solicitation in that protest optimum was not protesting the terminations for convenience and significantly the g a o did not on the guaranteed minimum what's what's the legal authority that you are entitled to subpoena profits the legal authority is that when a terminations for convenience is an abuse of discretion determination is a breach of contract for which the contractor is entitled i'm looking for a case well secure a force  in two thousand and eighteen applied to clear abuse of discretion claim to a claim for unanticipated lost profits or an improper terminations for convenience and there are a whole line of clear abuse of discretion cases involving terminations for convenience are cases in which the contractor was seeking its anticipated profits in these in these clear abuse of discretion cases the measure of damages is the anticipated profits now there are some cases that flatly say that unanticipated profits are not recoverable in the event of a terminations for convenience however those cases do not deal with the abuse of discretion exception so there's there's an exception to the rule that a anticipated profits are not recover in the circumstance where the terminations decision is an abuse of discretion or do i find that exception well that goes you can find it in the reiner john reiner case in the court of claim terminations decision i respectfully submit in this case there is no reasonable basis for the determination or convenience therefore a entitled to its last profits on to another two minutes because you haven't got the points that you wanted to make yet also with respect to the terminate the order precedence clause government counsel argues that the government contractors just supposed to know that the terminations for convenience clause takes precedence well that's not the way the government drafted the contract determination for convenience clauses back in the standard terms and conditions the government drafted the contract to put the two million dollars guaranteed minimum up in the schedule and the government drafted the order precious clause to g precedence to the terms in the schedule so if you map out the government's written contract the two million dollars guaranteed money takes precedence over the terminations for convenience cause limitation on lost profits similarly on the on the fill your consideration argument the supreme court held long ago that an indefinite quantities contract has to have a guaranteed minimum well the remedy for breach of guaranteed minimum is anticipated profits on the guaranteed minimum now if the government inserts a clause that exculpates the government from the rim of the for breach of the