cautionary contract with the department of energy for research and development related to coal gasification facility and at that time we argued that because the government elected to terminate for convenience that contract because of funding comes limitations that the caution provisions of that contract should not plot this court citing the all cost reimbursable language of four fifty t and so you won that case on the grounds that you were to the court to adult yes your honor but in the course of that appeal you said that you weren't pressing the claim for fee which is the rejected by the c f c feet in terms that cost sharing a plot in other words i had a claim that i was still entitle to fee cautionary applied because we felt that the department of energy by paying for gone fee had waived any to for any defense that they were not or did not have to your brief there wasn't any such qualification on your expression of waiver your objection to the denial if he simply said we're not pressing the arguments or see in accordance with the c of c decision and if you review the c of c the fish decision they rule against me that my argument that the owing had waived the feet provision they did not and that was my argument i never argued because i never knew it was that issue that if cautionary did not apply that the you know feet of caution would similarly apply because that was never an issue if you look at the contracting officers final decision in this case you'll see that when we claim seven million dollars that's seven million dollar figure included fate and the contracting officer said in this final decision that's in the joint appendix at page fifty four that caution applies and the no fee of caution applies so we're only going to give you eighty percent of that seven million dollars which included and when we appealed to the with respect to both the cost sharing and the feed i could have but it would have been futile it would've been like arguing that payment was in dispute there was no issue over the payments there was no issue in my mind that if caution did not apply i was entitled to that full seven million dollars i never found out that the government was of the position that cautioned it not far until remap and when we went back and said total cost of performance are seven million which included feed everybody always accreted that was the total amount of performance pos and we should have been entitled to one hundred percent of that it was at that time that the government said no you don't get fit because of this  that's my position with the car sharing arrangement you only get eighty percent correct does that mean that the field is also reduced by the twenty percent what what was odd about this contract is that there was a snow fee provision for kasha but there was a deal in a regulation that allow the contractor to add at the to its cost performance and then the government would pay eighty percent of that amount but there would be for a full perform yes and that's my whole argument here is we never got to fully perform the contract and the benefit are the quid pro quo advanced patent rights was to quit and the quote was we give our rights up to recover twenty percent of the costs as well as fate if you look at sixteen three  three it which is a definition of a cautionary contract it says a conscious caution contract may be used when the contractor agrees to absorb portion of the cost and the expectation of substantial compensating benefits and part a describes akasher and contract as a cost reimbursement contract and once the contractor receives no fee and is reimbursed only for an agreed upon portion of the all allowable costs and here it was eighty percent of the cost in this shared cost arrangement the cost that you are being reimbursed actually included in effect see and it was referred to by the parties as foregone food right so there's your problem right no you're out of line i didn't get it fully there to the full three would have been another five hundred sixty five thousand dollars was made up by seven million dollars total you were just saying well this effect no one would take a deal which they got eighty percent of their costs unless they had some other then it well that the other benefit is the the that's made part of the reimbursed cost is actually a very full of very small fraction because in effect what that what the department of energy was doing is instead of the contractor absorbing twenty percent of the cost plus fee he was only absorbing say eighteen percent when you did the math because they were allowing the contractor to add fee and for purposes of that applying eighty percent rate and stead of just applying the costs so i agree with ya there was some very minor portion of our fee was recovered during performance as part of the caution that we never we never made one hundred percent of our cost on performance we were getting reimbursed eighty two percent when the math was done so instead of absorbing twenty submit as i said two years ago when i took my government contract of course as a g w he said that the only clause in federal contracting that actually is acceptable for the contractors that the for sequels and i feel like the government in this case is just throw all throwing out the window they're not looking at the equities of the situation number two the problem with their argument is if you look at the very clause that's at issue here for fifty two to forty nine  six the title of the clause is terminations cost reimbursement terminations cost reimbursement because when you terminate a contract whether it's cautionary agreement or a fixed price contract there is a transformation the contract becomes a cost reimbursement contract and under a cost reimbursement contract you get all cost reimbursed one of the contract plus f plus our fee that approximately four and a half percent was our seven million dollar client that was our cost plus for half a cent to get to seven million the government paid us five and a half million so we contended we were doing ro finish up here one last thing you should ask yourself if the government's right to put aside your prior decision that caution and the caution or no fee provisions should be applied for termination it's because that's their argument if that's the case why is fifty two to forty nine dash six in the contract to begin hasn't it superfluous it gives it no meaning whatsoever because they're saying all the terms and conditions of the caution arm agreement apply and in this provision on cost reimbursement i mean the title of the clause terminations cost reimbursement gives it no me  with other respect council is attempting to make mud out of this case by mixing and matching three different arguments they have three separate arguments and the only way to keep track of what they're saying is to keep firmly in mind what the three different arguments are the first argument is their fee is recoverable as a cost and that section g one of the argument is for reformation which they like to call equity and i'd like to address each one let's start with g four g four is about the council first of august characterize it says the g four makes fee recoverable in every case that there's a germination for convenience well that's not so the plain language of g forces that fee is recoverable under a determination for convenience to the extent the fee is generally recoverable under the contract now the logical implication of that is that if he is not recoverable under the contract to not be covered and and section m  that of the same terminations for convenience cause simply we need a rate that it says look at there's no fee under the contract you can't collect it under g four ok they don't have a claim of the g four of the contract but this court need not consider that issue as a matter of contract interpretation because the claim for fee as fee under g four is clearly byard by the mandate of the previous decision the scope of the mandate of the previous decision is the scope of your national trial court decision that's what angle says  where they had a chance to seek a refund for certain royalty payments that were made under license agreement they didn't do it when they appealed the first time they tried to come back later and the court said today you can only appeal you judge the scope of the mandate they said well we didn't express the ways that we don't care the trans a decision that's the same holding you look to the scope of the initial decision and it doesn't matter if you come up with a new legal theory later that's what the dog case says and says you look at the claim if you made the claim and you have a chance to appeal from a decision leap to back claim that's all that matters you look to the scope so the claim for fee as fee is clearly byard by the mandate of the court and as i pointed out at the start the claim for fee is a matter of contract language is a loser even if they could get past the mandate because this this contract wouldn't have any sheep of vision ok here's the tricky part the several times in the previous and in the arguments recover their fee as part of their reimbursable costs and that's where it gets into a seven million arguments that that's a gigantic there that seven million is the amount of our cost and so we can recover  think what what the agency said is basically we're going to give you a b two eighty three eighty four percent of your cost that basically that the what the provision means but instead of doing that they said we're going to give you eighty percent plus for the purposes of calculating that eighty percent we're going to add or go the cost is just a way of doing the calculus in other words there was never any agreement to pay a fee because the amount of your incurred costs the only thing that's ever paid under the car sharing agreement and it just changes the amount effectively to eighty two or eighty three or eighty four percent but any one of these well i'm sorry you're still expelling at this point in this monstrous race because if you if you look at what the contracting officers decision this is the seven million he's he's applying the car sharing agreement and the car share agreement effectively what it did you never got paid fifty because you never you never even got paid all of your costs in the car sharing agreement the most you ever get paid the trial court says you got paid eighty four percent of your costs today mr simon says you affectively got paid eighty two percent of your cost i don't know what the exact sharing contracts and what context so aside for the moment that the potential of getting past that was at issue in this case what is the incentive on the part of the contractor to enter a go back to what that the court held in the last decision the counsel for jacob suggests that the court said last time that wasn't a fair agreement that's why we're giving you one hundred percent of the cost i don't know what was going on in people's minds when they when they thought about the case but that's not what the decision the decision says that under these circumstances we don't believe that cost was referring to the amount of cost we think it was just referring to that type of cost and in reaching that this isn't the court relied upon the fact that in several other instances where they wanted to make sure that the amount the eighty percent figure came through that they specifically reference that ok that that's the holding ok and that's a limited holding and it goes to the definition of cost under no circumstances does that holding support what mr simon is asking for today i'm still waiting for an answer to the question ok what is in what's in it for a contractor right not then respect to this particular case but just globally i think that there's an enormous factual record that would have to be built to support why people go into these kinds of very complicated the enemy well curious sense because frankly it looks strange and unless there's some kind of fairly quick explanation i think the officer built the end knowing of the profits are elsewhere the profits and not in what you're being paid by the government because you're going to get to manage the plant or whatever down the road there are yes there are there are there is that factor there is the potential that you know get called gasification might be extremely valuable technology as a whole host of economic and complicated contract the nature of the patent rights was very very poorly explained that it was explained to me behind before i got to the argument that there were a number of aspects as a lot of benefits the economic reasoning for why the corporation before jacobs by the way which was serene which is the company that made the decision to go into the agreement there is no record of all the different reasons that the people had for going into this agreement what there really is is a written agreement with very clear terms and i think as a matter of contract interpretation you have to enforce the contract as written ok didn't come down to this that in if you have a cost sharing contract and there's a terminations for convenience of the government you're going to take a bath if you had a contract benefits that have come have accrued then you've just contributed twenty percent of the cost of something you got nothing out of it's i don't know if i don't i don't know whether they pay that nothing i don't care about this case i'm asking i think it's important not to i think it's important that i want to know what the general position by government is with the general decision who has this contract and there's a point that was overlooked in the earlier decision had limitation of funds clauses that made it expressed in the contract that every step of the way there was a good possibility that the contract wasn't going to present you've gone back to this contract taken us and would like an answer to the question of what in general is your contract if their judgment is that there were only benefits at the end they make a judgment whether it's worth the risk given all the things that they know about what the government needs about what the economy is going to do what the need is going to be for this kind of a technology they make the decision before they enter into the contract that this is a worthwhile and beneficial rain for them the government shares the risk in other words the government is underwriting research that is going to be for the benefit of the of the contracted in paying eighty percent and we don't know whether that will ever get anything back from that but we put in our eighty percent but that's always two in and t for c situations the government on typically comes out with nothing well it's done surprise i think it's fair to say to the contractors when you call something a car share agreement that it's a cautionary agreement and that you don't know when it's research whether or not or exactly what the results of the research are going to be it's the nature of the beast is the nature of the contract and it's no reason to go back if the contract doesn't turn out to be as lucrative as you expected that you go back and rewrite the terms this this case it's very clear that fee was not a cost it's the contractor understood that if you look in the joint appendix of pages two forty five and that the following pages  the following three pages those are all part of this settlement proposal cost and b i separately identified the contractor never thought that fee was a cost they irony is that they were relying on the concept of foregone theory which is simply a factor in the car sharing provision the real irony of this case is in the first appeal jacobs came here and said you cannot read together the cost sharing provision with determination for convenience provision what's an allowable cost today they're back you're saying that you have to read  together that the section g one of the terminations for convenience with the cost sharing provision because the cost sharing provision and its definition of poor go on t v is their only  for any kind of of a concept in the contract so the irony is that the party that is diametrically shifted its position in this appeal is jacob honor asked what is the incentive for this contract and i think there's no better place to look in the joint appendix fifty four that's the contracting officer smiled decision and there are side of jacob's contention that it agreed to caution and a no fee provision on the assumption it would complete the contract and receive the benefit of the bargain and the court recognized in its prior decision at page three that the benefit of the bargain was advanced patent rights s page three the contractor the contract also authorized the contractor to discontinue the project after phase one was completed if it did not receive those advanced apparatus you need to complete you need to perform in order to get t the contracting officers final decision outlines of our plan and he keeps mixing counsel for the government mixes performance with the terminations this terminations claim follows fifty two to forty nine there are six precisely she one is all costs reimbursed one of the contract g two is terminations settlement proposals g three is the reasonable cost of settlement g four is feed and that's exactly how we follow up the cost reimbursement terminations provision that was our proposal that's what we followed and if you want to talk about irony the irony here is that the to this court should be that the caution provisions do not apply that's what you said the first time around and they're saying it does still clock and throughout their brief it's forty pages for thirty pages they focus in on this mandate roll but not once d