pine and timber versus united states appeal two thousand and seven and fifty eighty five was issued based on using a prohibited methodology let's go back to what what actually happened in the project the trial judge found that there was an incorrect message was used anyway it was a method excluded under the undisputed fact by the expressed terms of the relevant contract provision therefore it was an illegal no contrary to the it may be you should have one on that and it seems like your remedy was to file a rule sixty motion with the trial judge to have him correct that apparently inadvertent error but it doesn't tell post at all on the other i guess it's  do you contend that the note the bill for collection was nevertheless an operative valid instrument under the statute where as judge miller says no it's a knowledge because of the way it was government claims assert that that's your position but that didn't seem to be his ruling and you're challenging his rulings it seems to me you have to persuade us that he made a legal error in treating the  a legal error i don't see anything falsity about his reasons you know the question is whether or not a good faith miss application of a contract provision i don't agree with you i don't think good faith has anything to do with this case at all if the action was unlawful the document inviting the action is not entitled to be treated as a valid document so then the first valid document was the april two thousand and five notification which the trial judge defaulted they didn't have a listed surety anymore that's clear isabella not contested exactly your honor and once you have determination for the fall you can't promise at that point assess another plan for  it's valid it states the dollar amount it signed by had authorized official that's the end of the issue well if you look at the election that surrounded us exactly what the act provides for now let's let's let's take a silly example there is a valid government contract there is a valid the fall and the contracting officer says well i'm going to figure out how much to build the contractor for by using the dart board in my about miscalculation i mean that the the question is if the if the method that's used is not a method that's permitted i think we're all kind of getting at the same point and i'm just trying to exaggerate it to see if you think that there's a line somewhere i mean is there a have well and either because he makes no effort or because he doesn't yet have the information necessary to make what the statute would fairly be read to to mean a determination so even if the statute really saying you have to have whatever the contract provides as the course of conduct that lead you to be in a position to make a determination even if you make a mistake with respect to the dissemination nonetheless you have to be in a position to make something we would all agree is a determination of the debt before you can start the interest running and if that's so then it seems to me this case looks an awful lot like judge fogel sigs ample because here it was just an estimate that was thrown out in the beginning both who are the contractually required preconditions were established to make a determination the problem here is not that it's her mission has not been made on that officers and there were different contracting officers the comforting officers sure use that formula because news that hurt now the issue of estimate is a little bit of a misnomer because all of these are estimates of damages the starting point for damages the government's attempt to create a wholly independent and separate means of determining damages was invalid those to me provided for the contract are detained it matters and the only way the debt becomes owing or to do under the terms of the contract is this those damages are calculated pursuant to c t nine point four and that was found in two clauses c a document such as we have here bill for collection can't be dissected by the trial judge somehow it's beyond his power to see whether it's a valid document or not i heard a question asked i'm not sure i heard an answer to that i'm just trying to understand what the government's position is asking what you think the government uses and i think it is a necessary component of their argument that somehow if it's valid from day one regardless of what methodology is used to determine who the good somehow court is not permitted to look beyond or even question on trucking officer arrived at that number i guess another way to put it is that he wants us to read the statute as if it said bill of collection whether or not valid whether or not done pursuant to the contract or in conformance with the contract starts the running event and the statute doesn't say the statute doesn't say that the contract respect to the calculation of damages and you have a breach the contracting officer sins a notice that day that there is a breach and b says and here you are damaged and it may be an estimate but designating how interested i am sorry how damages are to be calculated and you might have a second hypothetical case in which the contract provides that damages will not be assessed until and then only based on three events which occur post bridge and in that situation i can get you're saying that contract says to the government you may not send a bill out on the day you could send the bill but you're not going to get interest until all three of those events have occurred because by virtue of the language of the contract in others it's a contract you will waive or in effect of a different ways of going about calculating damages why isn't the government entitled to make its estimate with respect to be any one of those options even though it had exercised really the option until what if that would be valid but the point here is they did have to up to means of calculating damages very clear very step by step approach if they decided to do neither and basically chill something some call a something from column b res significantly higher estimate of damages and sought to recover penalty interest on that significantly higher than what was it that prevented them from making were good without regard to whether they chose the wrong things from the wrong columns what was it that prevented them from making a no resale damages assessment immediately but if they had written you a letter and they said this is this is a going the no resale route i'm not sure what you mean  and there's nothing unusual or remarkable here in our position that the contracting officers devolved determination was valid that damages were then owed that the contract provides that that and the contract did do that and they didn't do that with regard to the other a contract the others it was a stick good faith miss application of the contract provision to use the wrong formula that sort of state does not test debugging it almost sounds like you're saying that any answered a question you've said good i'm just i'm just asking you this is not only an academic but also a practical question is there any limit to what the contracting officers can do how how far afield can they go  n the principle on which interest is assessed will be smaller because it'll be correct that there are two possibilities let's go to the situation where a contractor yes a bill so ridiculous in fact there are two possibilities choose not to pay the bill then they run the risk of being paid having to pay interest and penalty charges under the contract use that excuse me that sounded like i have his choice to me they have a gun they haven't done anything wrong and either way the government well there's a third seems to me that the the risk if you should win this case there's a there's a risk that an aggressive agency would tell all of its contracting officers no matter what the provisions in the contract since on the day breach on the day you determine breach send a bill to make an estimate and try to make a good faith estimate but send the bill because if nothing else at least it'll start interest running on whatever turn not be the damages without regard to what the contract provides and to how and the appraisal of temper was completed so you're not suggesting that the rule you're asking us to adopt would apply to a contracting officer making an estimate of damages on the day of breach even though the contracting officer may not have the information that the contract with requires him to have at the time he actually makes a final determination no i'm not suggesting that you rock yet if a contract for instance require that an they simply used an incorrect if they messed up the calculation is what it boiled down to by using an incorrect formula it was that they were not entitled under the contract to assess the full damages that time terms that don't invalidate the bill for collection how can we tell which is which very simply or the question is let's assume for the sake of argument that the contract says you cannot assess to fal but if it only of violation because you don't do something that you're required to do by the contract term that's not an invalidation you're on it there is nothing that was done that was required to be that there was nothing that the contracting officers were required to do that was not done here the cure there was they were required to follow the only available formula and they didn't you say that they had at least two choices they