rater i'm here with judge paul and judge moore are you prepared to begin your argument i'm going to have to ask you to watch your own time as you know you have ten minutes in your initial argument i'll try and remind you as you approach that point that you need to wind up your initial presentation may i also  ask you to pause occasionally in case one of the judges which is to ask a question we don't have you in our sights so we need to have a chance to interrupt you if necessary will you be equal access to justice act and particularly sub paragraph the brief of that all that are directly applicable and we submit controlling here first one which says that the court chef that excuse me one second mr jones we were having a little trouble with your you're breaking up a little bit as you talk are you still unless stablish is what amounts to an affirmative defense of substantial justification ok we're still having a little trouble with breaking up let's let's go ahead and proceed again mr jones will make sure you receive a little extra time for opinion that the defendant position during the development of the case and the litigation had reasonable foundations and were substantially justified those were  that mr jones we're going to need to suspend do you have another number you can be called on this number is not working we're having real trouble hearing number for thank you i think it could be to gain our amplifier clipping if you think that we turned up very loudly the judges wouldn't mind if we turn it down a little we might actually get him ask the question again and we'll proceed from that point so counsel my question was doesn't the court below explicitly indicate that it considered senator those final decisions as part of the position of the government to consider the contracting officer's final decision and their falsity as part of the position of the united states  terms unknowing misstatement of the facts it does appear here that you were listed on cross examination at the trial proceedings that yes there was a let me ask you this and believe me i'm not trying to denigrate your argument but it was established that the contracting officers decision was mistaken in this regard  that the government's position viewed over the entire course of the dispute with not substantially justified is the issue to be decided by the court  law right so whether the government's position over the entire course of the dispute and you want us too i find that the government that the court didn't articulate in detail the fact that the negligent behavior by the contracting officer since they didn't speak to that in the discussion of the denial of attorney fees you want us to assume that they didn't and then we'll restore to you your full five minutes of rebuttal thank you thank you mr jones mr austin comprehensive opinion regarding the government's position is b s and substantially testified takes one sentence and it tends to expand it to the level of that it not point to anything that was indian pinioned or that the trial court failed to do that would render the trial court's finding that the government's position was substantially justifier that would render it wrong taking nice years argument thanks pal you know where it says that because of the wrong information in the contracting offices final decision it was forced to litigate and to discover the true facts implicit in that statement is once he discovered the true fact why did he end it litigation during discovery and prior to trial we acknowledge that there were reasons other than the funding which led to the variance between the estimate it and actual orders if his purpose was to find the true facts once he found the true facts the litigation should have ended he continued to pursue who are high sure continue to the litigation in its quest for lost profits and lost profits through all of the years of the contract to include a base year and the option year if we look at the contract you're think it's using the structure you're saying that the issue here was not so much that there was an in error with respect to the estimates but rather the real focus of the proceedings was damage is that what you're saying yes around from almost the beginning of the litigation as we acknowledge that there was information that was omitted from the formula that the government used to make the case its estimate position i understand you to be making during litigation but as i understood the appellant's argument it was focused on what he perceived to be the trial court failure to take into account the negligence in the contracting officers decision as part of the e a j a analysis and i understand that he is basically saying that that failure to take into account that information in this analysis  to the grounds for termination default i believe the law in this circuit says that it is so boring if there were other grounds that existed at the time then that determination for default will be up help when we and the actual ordered but i think their argument is you wouldn't have ended up in litigation if the contracting officer has done his job properly and therefore high here was forced to bring suit and respond to the contracting officers only articulated basis for denial when it was ultimately determined to be negligent on the part of the government i understand that your honor but once again why should they get from attorney fees maybe proportioned for that purpose officer goes on to say based upon the following in the end he lists three reasons and that's the same document i believe that said appendix page twenty one and fifteen but it goes on to list three reasons why and order quantities for the three who are here that is the standard that the trial court used for d images so even if we accept is argument that only explain one step in the wages in terms of liability plus the the amount of recovery that high sugar receipt we look at the facts that there was to be general a general reduction in our forces which could not have been for seen at the time that the estimates were done there was a change in army policy so when we look at the totality of the circumstance which the trial poor did sheet admitted that there were four reasons that were part of it through the litigation one of those would suggest that the government was incorrect but the other three standards that the government does not have to be one hundred percent correct and every step of the formulation i think that the standard is would it a reasonable person be justified in doing what the government contractors and eagle advice counsel this is just more if the government if the lower court's opinion had expressly said something along the lines of in some the defen of the government were reasonable and substantially justified even though the contracting officer decision was not overall therefore we conclude in our discretion that we are not going to award attorney fees even though we've clearly considered all of this if there is no doubt that the trial court had clearly considered the negligence and the wrong decision of the contracting officer but nonetheless said it its discretion based on the government's conduct that litigation for example they didn't continue to defend that position and those sorts of things would you be here today arguing that that was an abuse of discretion or is your argument really focused on statute and i guess the point is that you don't have to have a contracting officers decision you can have a claim submitted the contracting officer does not issue a decision within sixty days i guess and then the contractor has the right to come into court or go before the board of contract appeals and the question is was the decision of the contracting officer denying the claim either in a decision or  thank you mr jones do you have any final comments your time's about expired that thank you mr jones thank you mr austin that concludes our hearing