this is scheduled for oral arguments this morning and the benefit of the attorneys so they are going today when you approach the lectern when it's your turn would you please enter your appearance state your name and who you represent clearly that way the audio record will be clear and you'll be identifiable for the interested public and with that we'll hear the first case docket number two thousand abuse process and that exercise me action can i add just on that point you know you're going to get to this am i correct that your theory that there was a contract is predicated on the fact that your client at the end of the days that i'll accept any amount proceed was going to be issued so she was very clear in her testimony and they were totally discredited discounted that but i guess the problem i'm having is your clue what seems to be your view which is you had a contract because your client able to perform one on the contract and at that point in time how could the government of satisfied itself that that was the case my my response to your honor it's a very good question the point being is is that the the my client basically was dictated by the court used play and that's what he proposed and within basically there was a violation of the regulations was a violation of or even everything they're in the process of the issue notice for sleep so there was an agreement for my claim to do the work but it seemed to me that here was least some conflicting evidence in the record on that record indicate that the government was not fully satisfied that even though your client seemed to be willing to accept whatever whatever payment terms the government deemed appropriate that that the government wanted to actually the work was going to be performed that that represented the number that mr singh agreed to accept represented the company for work that was actually going to be performed and that there was some uncertainty as to whether that was simply an effort to sort of appease the government at any at any cost without any assurance that the work would be put other different degrees that i don't think it seems to me there is some testimonies spanning three eighteen and three nineteen that's this was well you know i don't remember specifically coming to women i can only tell you that i know that we have assigned task order for them to do it and i have the documentation in the file saying we came to an agreement is that what you're referring to yes is there anything else or is that is that the extent of it even my my trouble is that i understand what you're saying and if we were a trial court hearing this case in the first instance maybe we would come to a different conclusion w we're going to review and your burden was to establish by clear and convincing evidence that there was some sort of that face and our review is substantial evidence oh you've got it sort of a double barrel hurdle it to get over so that's where i disagree with with your honor what out of respect the byrd faith would go into the issue of whether or not determination was done properly the bad faith would t regulations work was already set aside you need a program the question is whether the delivery order was was fully met renegotiated and once in close well the question would be there under the should utilize leading to the fact that they were violating the fifty percent rule going down through all of it so even getting to work out of that a program ready to catch rack those are all breaches  implied duty cooperation not to hinder or prevent performance now you know even if you don't get it this agreement you start them down the pastor that when they issue determination forgive me and mr oliver or a member of basically saying the the notion that your client was obligated to use the n v in the first instance and i know you quite testified to that effect that it was a phone call and that that was made clear to him right at the outset when we have this conflicting testimony about the subsequent discussion with regard to the recommendation of different possible subcontractors and  mike my question is this i understand that mr mercy a who is the one who supposedly made that first call or was the recipient of the first call i forget who called who but that he was actually just following up on judgments point that he concluded with if you have testimony of mr singh and you have cooperation that a conversation took place that's not contest i mean the government ha the opportunity to put in the other person in the to the conversation to say didn't take place but in the absence of any other evidence why isn't that sufficient why isn't that a problem even under the subsea you know the level of review standard review we have up here well the problem or it isn't whether the evidence could support a different conclusion than the board reached the problem is whether the conclusions that the boy did breach are in fact supported by substantial evidence so we're substantial evidence to support that the conversation with respect to mr mercy i didn't say what he was alleged to have set which is that the indy had to be well i think the whole notion that b and b was a required a whether the government wanted to use i m s it never had any basis for concluding that i misunderstood the scope of the work had the requisite personnel and could actually perform the work and in the amount of time specified in you know that it would understand only evidence was mr singh saying he said and demonstrating there was a record of the phone call and nothing else where was the evidence to support the contrary mistress and the evidence that mr singh put in was his statement in this instance he testified and he didn't believe you know we found him not to be credible i think they found that there was no corroboration either so you know what copout of cooperation is necessary when you've got uncontroverted testimony of what is the other evidence to support the fact that mr mercy  that there's no specific evidence that that conversation was about something else and what i'm suggesting is that the over all the rest of the evidence does not support that conclusion this there just isn't any he said if you look at the overall evidence you'll appreciate the fact that there is a possible second meaning to the conversation but for give me the exact data points of the additional information that you believe that that one phone call is not doesn't where you send them the one hundred dollars and make the whole day but now you've got to find some testimony somewhere in the record that makes the day for i think you know we're talking about contractor that a contractor does not have the freedom to select his or her own sub contractor without interference or general's got to do a major part of the world but right and that was that was an issue that the government is always mean it's if for example take a contract that has some highly sophisticated problems with it like for example installing the sound and light and electric tronic system in this courtroom we used to like contractor i believe you think the government could actually pick which electrical contractor they want to loose the primary use could they actually require you know you're not getting requesting the names of potential subcontractors no other words what why would mr singh inquire about the names of other potential subcontractors if he is compelled by the government to use use evidence on the other side gets yes could i get back to another one of judgment questions on direct which was the overcard testimony yes and you know the pages that the other side refer to why isn't that so you're saying that testimony on pages three eighteen and three nineteen with regard to then agreement was with rich with reference to the original agreement between i m s and b and b was originally awarded imus based on accepting the proposal that i am this minute suggesting that it was stating that it would use be india's that contract and you're saying this testimony does not go to the based on the later negotiations i think that that is not what she meant but what if she would then what is the reference on three eighteen she said we definitely came to an agreement or there never would have been his second task  so we're was this is delivery order the same thing as a task order yes so we're talking about the second one being signed what you know what was the first one was and what the second one was was the second one you're still agreement she says there was and then she said well we never really did resolve the issues well unequivocal she says we definitely came to agreement i mean that sounds pretty unequivocal but not not in the context of her other remarks  subcontractors have to be approved by the government says about it but your problem is this is a position your technique here is undermined by the evidence you put out that that was it at trial firstly mr singh dead come in and asked for a list of contract right so that them let me ask your second part of my question because i don't think we're going to necessarily resolve that point here and that is that if that were the case and mr singh thought his way to get the contract no uncertain terms was absolutely positively the only use and funnel ninety two to ninety three percent of their work or to be in v b and he was at the site ok be envy had done some preliminary design work they wanted to him even mr limber owner and his documents as they want to continue if some sort of continuity of the of the to go sheeting ok the work would be in be there making all kinds of demands on only because they if they thought they had him hostage number two mr carter got involved in this thing ok there's evidence of mr carter working for small disadvantaged and then basically they got wind of it now the government kind of reversed course this missile it were guards and they certainly we will negotiate with you to do the work by yourself so the evidence again points that there was a problem there problem surface