doug yes ok with and only looked whether the government is satisfied its performance on the contract with northrop and mike that's correct but as to whether northrop has suffered any injury as a result of the government's failure to satisfy its in the bargain north of the surge that the court should look to the great financing agreement that we were supposed to ignore it's not contradictory on the other it's not asking the martha does have there's two contract here one of the contract between northrop in the government the other is the contract between northrop in the finance company there's two separate expectations there's two separate considerations in connection with the contract with the finance company provided under the government contract north were provided performance to the government and exchange for that performance the government had performance and payment obligations to what programming that was northrop grumman expectation when it entered into that contract ok and will you get finance company that separate money under separate contract under under a contract that is void as to the government so if they get this boy this to the government the government should be able to use the benefit of that time ok let me ask you this if the government pays that money separate incomes i actually don't know the answer to that i don't know how your trip reports the money that it receives from the government but it has not received but of course you're not going to keep that money that money will go directly to the financier's right under the financing agreement well worth it will have the money for a period of time in the north it will remain the money the money goes directly to northrop and when the words were printed for the money the money doesn't go directly to the finance company because i know but it's a practical matter whether it goes to you first just a pass through or you know anything more than a pass through with respect to any payment that might be received from the government by the government in this from the government in this case you know but i don't think that solves the issue here based on the the whatever the flarm if you're a pastor what you get it if you win this case and you get passed through up the money and you don't get to keep the money here in the exact same position you would have  can whereas the square knows he can where can perform any obligations under that contract so under the government's analysis under the opinion below we can where never had any expectation for any money because it didn't do any of the points all of the performance was done by the sub contract to damages because we haven't been harmed in any way well the damage with some harm that what we're do you have a loss of income as a under this contract again i would suggest it's no different than beacon where it's no different i don't know what we're seeing in this case forget about big win this case we're sure the loss of income was worth the damages well i think the expectation damage grumman and the government will not hold with respect to that contract because there's only two parties to the contract the expectations of northrop grumman when it entered into back to contract was that the government would make that payment further with respect to that contract the government states in its free that if the options were exercised the government would have to pay the additional two point seven million dollars but under the government's argument and under the argument of the court below if the government exercise that option any of the three options and didn't make the payment nobody would be able to sue for that pain that makes no sense that the government would then sign this contract exercise of three options and not have to make any of the payments and the reason one has to make any of the payment is because the only party that has a claim in this case is northrop grumman and if northrop grumman can sue for those payments then the government doesn't have to make them under that analysis be government wanted time to time fact and once the finance agreement with ventured into the government had no further payment obligations because northrop grumman is already been made whole but they haven't been made whole under the government contract because they expected certain things from the government and those expectancy damages have not been paid nobody satisfied that they agree that no determination has been made that the government satisfied its obligations under the government contract can i ask you this outside of the record so  typically how this is done oftentimes that isn't that's why there's the exception to the entire simon act that you do not buy that because the government and the government accepts that become in this case is that you can get that modification but the yes that's correct but the issue here is is one of contract damages into the their recovery of contract images should not be dependent upon compliance with the entire time he said that because that is the issue here a contract damages and it seems to me that we when we knew entered into the agreement with  w and you look at the payment that was made and that payment contemplated the optional making and shears that you were whole from the beginning you were made whole from the beginning you haven't been out any money from the very outset of this whole episode and when the government decided they were not going to exercise the option for the make them cheaters and that's what you're  not you're still made whole and i ask you were had you been damaged show the injury here i want to show me the money but that's not the right to show me the injury the injury here is  to the contract with the government the contract with the finance companies boyd as for the government and as this court said with respect to beacon where it leaves the claim where it was before they put their dilemma on the money are showing for you more really been painted red but if it leaves the claim where it was before the purported assigned and the assignment is boy as to the government the government should not be able to enforce that contract to the extent that payment was made and then not accept the other portions of the contract which was that at northrop grumman receives money in need to remit that money to the finance company either the either the contract is relevant or it's not relevant if it's not relevant a valid claim for the money as a matter of right damages as a matter of right and the finance documents are not necessary to assert that claim then they should be able to be used to defeat the claim the contract with  s court had jurisdiction vermont and now we and we said we're not addressing the marriage at that point correct so now you've come back on the marriage and you know you're almost contract case where is the injury you have been paid let me having been paid under the contract let me ask you this counsel if you have no actual damages do you have a claim for nominal damages i i think we have a plan for actual damages and so you're not going to answer this question meaning for me i don't think our claim is for nominal damages so if you have no actual damages you i don't know how to answer that other than the way we have a claim for actual damages under the contract we performed under the contract the government there still remains a claim for breach that has never been tried in this case the as i said if the government exercises the option based on the analysis of the corps below and the government nobody would ever have to make those option payments those two point seven million dollars would never have to be paid because nobody could sue to collect that two point seven million dollars saw i'm not going to ask your opposing counsel them whether the government has a position on whether you can still see because there was some value to this contract we certainly won't turn down the nominal damages and the opportunity to pursue this claim it remains our position that the claim is for the entire amount that's outstanding with the government  navigation are very similar repeating where as i said it began where i had no damages itself you can wear in performing anything under that contract all the time track was performed by the sub contractor the assignment with the sub contractor was void as to the government and therefore the only thing the corps looked at was the contract between beacon where in the government and it was the same thing with colonial navigation colonial navigation was the contract it was not entitled to keep any of the money all of the monies were just issue was raised has repeatedly represented that this is not a pastor claim and that it's not suing for the benefit of the sick of or citizens or any other third party that it is strictly bringing this claim and this case on its own behalf for expectancy damages on its own behalf s g to recover for harm that has been done to it and so certainly we would argue it's just it's judicially stopped from from changing that now not that mr eisenberg has attempted to do so that i've seen so those were cases where that were explicitly passed through cla that i would also distinguish clearly on the grounds that there was there was no doubt that colonia was injured as a result the fact that case are somewhat complicated i will labor them unless the court wants me to but that that sixteen thousand six hundred dollars at issue in that case  which is that this this as near as we can tell this is a very unique case factually there's a lot of somewhat similar cases out there but the key facts of this case as we see it are four fold one is that they did comply with the anti simon act and so that the that's not apply that does not give any of these third parties rights that they would have had if they had complied with that the second is that this arrangement between exoneration is two separate factors i apologize for that was unclear and so as near as i can tell this is a case of first impression we're all for those factors that are present and here it is the court can no doubt tell and  read in the cases below just like yours explicitly quoted this out of the government is focusing on the damages they are focusing on the government of obligations that are looking at this from two different sides but the fact of the matter is this is a case about grumman is in as good a for position as it would have been had all three option years been exercised where's the complaint in the record i'm not sure that we have that in the  so that the final distinction factor which i also think is very important here is that this is not a situation in which the alleged breach takes place and then there's something that's triggered that results in a pain that the makes that whole this was part of the design of their contract and their performance under the contract they received that payment virtually mediately after entering into the contract in exchange for the assignment and in fact they never that they've talked about being a financing the financing agreement it certainly doesn't look like a traditional financing agreement so far as they and three option years the government paid more for preben in fall for the base year it received the software it looked at the software start exploring the capabilities the software for that base here then what it didn't have funding to exercise the base year it stop using the software and in fact the record it shows that it was actually never used in actual investigation and or set and so it only used the software for that base year which was the year it had paid for says there's no allegation and no doubt based on the record that the government retained the software kept using the software somehow after after the option years were not recognized and so certainly we would argue that it got the benefit of that one year part and but certainly did not get a further benefit for the op years that were not exercise your heresy i'm starting to read a little on time i'd like to turn to the second issue of court doesn't have any further questions on motherhood of the argument illustration berg that on the one hand the government is saying we jack the financial not it creates an enforceable claim on back for some other party against the government there is no doubt that those procedures that were set forth in the statutes thirty seven twenty seven were not followed so there is no enforceable right of action cause of action by any other party it's been on that basis achieve encourage this court not to look at all sensitive a financial agreement and now in this situation with respect to damages you're doing the same thing where you i mean other than the fact that now you're asking us to look at the financial agreement in order to determine that that north agreement is already made whole that's certainly the case you're on a week we want this court to look at these agreements we've provided them all of them in the record and we do think they establish beyond any doubt that they've been made whole i'm not sure i'm trying to think of when when we may have represented the court should not that that's fine it's in every method so what does it matter to the government then if you if you said we're not going to recognize a financial agreement what does it matter to you what's going on between northrup grumman in the finance company it matters for a couple reasons your honor well one is a simple principle issue of transparency that the government has some right to know with with the party with him it's doing business and that's particularly acute here where we're talking about a software package that has national security implications that has you know law enforcement implications and that the government has a right to know with whom it's doing business but that the the broader point i think is a simple fundamental principle of contract law that the party bringing the suit and recovering expectancy damages needs to be the party that was har we're not going to recognize that we cannot recognize a financial agreement on the other hand you waiving the financing agreement in this court saying they've been made whole under this financial agreement i mean you can't have it both ways can you yes  because again it's too it's too different when we're talking about expectancy damages law and the other we're talking about a very specific specific statutory scheme that the side that claims act that congress has set forth that these are quire mintz that must mean that in order for  as i need to bring a claim directly against the government and so that the what the law governing those two things the two circumstances under which and to what extent that this court can can look that's fine it's in agreements are very different  for software and server maintenance that was part of the north comes bid for this contract that was part of the express terms of the contract between the government and northrop grumman maintenance it is a term that has plain meaning which is cannot be dependent upon the anti simon act on fact damages either arise under the contract or they don't if they were compliance with the entire simon act all of the proceeds would have been assigned to the finance company because the contractor had been paid in full and the claim remains with the contractor the contractor brings the claim that the contractor successful on the claim the payments made to the assault the finance company under the entire signing act the finance company has no separate claims the facts in this case are no different other than the fact that there wasn't compliance with the antisocial that's not the course of action that was followed in this case it seems to me or you're being raised by your own peter here you chose not to write to conform anti simon act all the proceeds have to be assigned to the finance company that's what the anti time and i said all the proceeds will be assigned to the finance company unless the contractor had already been paid because the government is then going to make the payment directly to the finance company is there respect to the pass through issue the result as i said is less severe if it's a pass to claim that they disclose it as a pass to claim under seven and that whole line of cases recovery would be allowed in this case here the only party performing is north i guess i didn't get the question and the question was about the relationship between northrop grumman and the former northrop grumman person and i said that there isn't much in the record it's in in terms of whether that makes a difference i would suggest that it does not make a difference because the issue is not really whether there are valid finance company that just had to do with whether they actually could've complied with the anti quote doesn't often deal with these financing contracts but in terms of the financing contract in terms of how they're done that is a typical way in which they're done where they where the finance company pays the contractor upfront and then the contractor when they receive them they contractor does the performance because the contract with the finance company the government is not a third party beneficiary has signed in the normal course the finance company has no recourse other than to rely on the