in that decision this court found that the proper interpretation of the contract the law kept three contract was that private security contractor a p s c costs were not allowable this cords therefore well in the absence of any you know you're not going to count the two thousand and twenty of levon it's odd to come up that date because it was untimely you haven't said and therefore there should be no interest  eleven claim was untimely but that there was no need to assert it in order to properly bring in as affirmative defense but it is requirement to you know theoretically going down this path your honor there is necessarily a requirement file a certified claim to get interest you cannot get interest in defense of a government claim without a certified claim if so claim that you file is on timely i guess the problem here would be your honour's with an untimely claim is that the purpose when the purposes of the c d a interest provision is to get the parties to the table to discuss to give the contracting officer an opportunity to resolv nonetheless was a claim so would not serve the purposes of getting the parties to the table in two thousand and eleven at and i thought even the earlier claim i know there was an earlier playwright that was made to correct this court ultimately said  you know that was not a proper under the contract and not a word that said that that claim was not properly or dibble claim but nonetheless there was a claim that was made and so one could argue that there was a notice provides the government government surely knew that there was contract a different claim in fact two of those claims two thousand and seven one and the two thousand and ten one actually argued that there was no force protection obligation for subcontractors on the part of the army which is so isn't this kind of serving the same purpose even if that complaint is later amended you're still looking at from the time that the suit is initiated right but if you look at people language that talks about same operative facts and we're talking about whether a claim comes from another claim one of the key decisions or whether a claim has different operative facts in this a very different claim is whether or not that there is a required to prove conflicting facts so for the two thousand and seven and two contractual obligation on the part of the army to provide force protection for subcontractors under law count three cut to their alternative argument the argument that we're talking about today the argument their summary judgment in there was an award of interest the argument there might k b r is that exact opposite that their use of force protection obligation on the part of the army to provide you know protection for subcontractors and not obligation was violated is the complete opposite claim opposite factual scenario that must must be proven it does not give the contracting officer notice of what k b r is actually going to be aren't paying for the breach of contract theory that you would say that under following up on your silk as i have similar questions is where she started with kind of the policy rights not that we do policy here but to the extent that we want to consider that what no matter what names you put to it or a legal theories starting in two thousand and seven we're all talking about the same thing they were arguing facts they were presenting different legal theories but we were talking about the same pot of money in the same facts that resulted in costs here so in terms of being able to settle and when with parties of knowing there were some sort of dispute about this that was the case in two thousand and seven the legal theories may not have been perfected by that time but because it is a completely different argument and in fact opposite argument and keep your ultimate receive summary judgment on an interest or what is your basis for saying that the purpose for this statute the way it's written is to deliver appears in our reply brief i apologize your honor twenty two and twenty three twenty two twenty three and you can see him in footnote five on page twenty three that's where we discuss but we've done a fair i think trying to at least in laguna and then certainly in secure force which is the most recent case just sort of reconcile those precedents so what we said in laguna that what we said this pure force doesn't is not help top of what is allowed by the contract and the limitation on the end there are pockets rule that an affirmative defense requires a certified claim by the contractor it's a request for money or requests for adjustment to the terms of the contract now in laguna this court found that when the government was asserting fraud as a defense that was not seeking adjustment to the terms the contractor additional money and secure of course when this court found that the  challenge determination for cause saw only an excuse for failure to perform or k b r is doing here is asking for this court to find that and allow whole costs here see costs are actually allowable in response to the government's breach of the force protection act so that is forty four million dollars on top of what is owed under the k b r contract to think about it is if out breach of contract claim actually been filed in two thousand and three defense in some sense seems to be a claim for money in the sense that it has an effect of reducing one's life villainy absolutely so it's a little hard to sort of you know it's a little hard to think well this case is unique and the reason why this case is unique is because k b r as affirmative defense is a mirror image to what its affirmative c v a claim could have been in two thousand and three instead of pursuing a breach of contract claim in two thousand and three r built the united states through firm fixed price subcontractor costs for this p c p s e costs the costs were hidden in the mess united states paid the forty four million dollars on top without knowing your litigation decision as far as i can tell to pursue only a breach excuse me a contract interpretation issue and basically a piecemeal approach was taken razing breach of contract in two thousand and eleven are your honour's i believe i'm over thank you  three the facts here are your honor that as the board found out the government knew about the use of private security knew it was paying for private security no later than june of two thousand the government government as the board found when the government asserted its claim in february of two thousand and seven at that time the contracting officer issued a letter we cited in our papers it is we cited in our br on page twelve she issued a letter to k b r asserting the government's claim and she said in that letter as noted within the basic contract clause eight sixteen and as noted in several task orders security was to be provided by the government to those employees performing duties under law kept three contract as such costs associated with privately acquired security should not be charged or paid under the contract that was the government's claim the government then executed on that claim and took approximately twenty million dollars from k b r at that time in response to that recruitment of cost k b r then submitted its two thousand and seven claim demanding return of that exact same  amount that was a proper claim and asserted the legal theory that mr kamali was mentioning but your honor that was not the only thing that was in that two thousand and seven claim as we pointed out in our papers in our briefs pages thirty and thirty one in addition to that contract interpretation theory and as a factual matter those seven and then when the government took more money in zero nine another claim was submitted to many return of that exact amount about the fact that the army lacked the necessary resources to provide military escorts for transport vehicles provided by k b r and its contractors the army was fully aware that the total number of some contractor convoys leaving kuwait for iraq was greater than the number of convoys for which the military provided armed escorts and k b r also alleged the army p c l the procuring contracting officer in iraq i want to have constructive knowledge that out three subcontractors were using armed private force protection each one of those three claims your honor even if it wasn't even if it even if this court finds that those claims needed to be submitted each one of those claims put those facts at issue and then when you get to said i interrupt you for yes yes ok so i think your point is that the operative facts in the two thousand and two thousand seventy thousand and nine two thousand and those are the same as the operative facts in the two thousand and eleven one and therefore you should be able to go back to two thousand and seven yes you're on what is the language in the statute that you think allows you to do that so there is a lot so in the statute the statute provides when the government executes as it chose to do here the government did not have to execute on this point the government could have issued a final decision to k b r demanding return of the money and k b r could have  that is not the government that the government executed its crime took the money back and there's a long line of precedent the martin marietta decision among others that say that in that instance when the government takes money from the contractor  executing on a government claim the contractor then submit its own claim to start the running of interest consistent with the understand that that was not binding on us i understand and so i'm looking at the stat and so you're saying this is a long established practice i guess that you are it is a long established practice wrong recognized by the board and because each of those three claims are or claims are seven nine ten and eleven each of them meet all of the procedural formal requirements of a contract disputes act claim therefore they are proper claims within the meaning of the c d a submitted by the contractor and therefore consistent with the interesting part only the amount that the government had taken and were otherwise proper claims that would be enough if this court were to find that in addition to that those claims needed to include within their scope the breach argument your honor i would say that the first three cla also included within their scope the breach argument and what is your view of the purpose behind this provision that awards interest and you could go beyond this provision obviously there's a lot serious a law where statutes provide for the that starts the writing of interest i think the incentive the hope there would be the purpose of would be to bring the parties to the sense of interest is running to bring the parties to the table to try to resolve the dispute since interest is continuing to run and now in this case honor interest has been running back to two thousand and seven for twelve years what about making the parties whole and that of course that hurts to your honor i mean this since k b r was no longer you know paper had been the stakeholder the government through self help and change that situation and so yes k b r this is money that otherwise should have been in k b r pocket for the last twelve years in the government's how the use of so it is to make a contractor want to do then following the other asserted the breach argument on which the board ruled in our favor there is no dispute on that point the government's only issue with the september twenty seventh claim is their argument that it was somehow on time but here your honor the facts are the government knew so back up to the beginning of the iraq war in two thousand and three i think the government it admits acknowledges it had an obligation under the law kept three contract to protect k b r and its subcontractors as they were performing vital life support services in support of the american war fighter in the asked for force protection from the government when that was not available and in order to continue to perform their mission they did go out at times and hire private security the government knew about that the government approved it particular in the in the board's twenty fourteen decision the board found that a ministry of contract an officer expressly approved the subcontractor using private security and charging the government for that c absolutely on your answers absolutely so just just so just want to september twenty seventh claim your honor because the government did not recoup money until february of two thousand and seven there was no claim for keep your to file until that time two thousand and seven september two thousand and eleven is within six years remember a two thousand and seven therefore that claim is timely and if the work resolves this case on that basis it need not reach the mirror pockets question which i will now turn to on the merit pockets question your honor as we explained in our papers and as i have already been discussing today in this case from the beginning k b r has been planed defense that is all we have been doing from the moment the government asserted its claim in that letter that i read earlier from a contracting officer in february two thousand was nothing to this to this day for twelve years all we've been trying to do is to get back the money the government took executing on its claim against the contractor and among other things we asserted your breach government by not providing us the force protection you were required to provide materially breached the contract and therefore to the extent that argues or our subcontractors use private security was a breach of the restriction on the ability to do that that breach was excused and under this court's cases this case in this case were somehow seeking an adjustment of contract terms your honor we are not doing that we are going to say we are asking for the application of the common law doctrine a prior material breach just like the parties that were invoking that defense in the unit and secure of course cases were doing were doing the exact same thing and in fact your article in the laguna case it was the government that was invoking the defense and the government that was arguing that it did not need to be with respect to the question of the payment of money your honor and secure of course this court expressly found a defense is not a claim for money your honor again all we're doing here is defending ourselves and asking that the government return of course the money that it took but that is not we are starting the defense that is not a claim for money within this court's prior cases just a couple of other points  challenging the factual underpinnings of the claims being asserted against them that's not a new claim that has to go through the c v a process again that's all that we are doing here is challenging the factual underpinnings of the government cd interest provision in there because there's a penalty of paying extra money the longer this takes one of the key reasons why in twenty thousand we're still talking about events from one thousand sorry still talking about events in two thousand and three is because act sued to k b r filed a quote protective claim alleging breach of contract k b r sat on its rights for eight years regarding breach of contract that's why there's been such a significant a costs were an allowable under contract these are not contract calls they are not billable under the lockout three contract yet k b r built for them so the united states withheld to recruit them this is not a situation where b r is trying to get money back from underneath the contract is attempting to get forty four extra million dollars from because a lot of capri contract dollars that are on allow people p s e costs that's why they are seeing an adjustment to the terms of the contract that's why they are seeking forty four million dollars and not simply asserting a pure defense to a government plane thank you