now this court should remand with instructions to dismiss the complaint pursuant to twelve b six doing otherwise will leave a giant loophole for plaintiffs to avoid exhausting adequate and available administrative remedies that they contractually agree to source that you have is that it's b s cause right and there's no separate and separate regulation or the like so and i understand the dispute clause dispute clause sad when the contracting officer issues a decision that final unless you go to the board when i'm not sure about is that we're some other notion of exhaustion would come from when there isn't in fact a contract officer decision that comes from the fact there aren't that at any point under the board's rules so if you could have proceeded to the board after filing their claim and what they could have done is a large step from where they are required to well  you can divide those and if it's based upon an alleged material based upon a certain material breach of the first part i couldn't do the second part but that's not the case at all here and they think they're saying you couldn't do the second part by saying they didn't have to do the second  the entirety of that remedy must be inadequate or unavailable you're on you can't simply parse it and say well this part was inadequate or unavailable so therefore i get to skip the second part and when they went to the court and several names they treat the contracting officer as having matters i think i'm following your are the the point would be that if they say that the trees cause says if there's a contracting officer decision it's final unless you've got a voice that all the tests full stop if that's the only source of authority for saying they have to go to the position is that it was a decision that they could take that and they could go to the board and say see board they say they're never going to do anything about it and they say we can treat it as being denied so we have a decision where within ninety days here our case now again our fall back position that is even without that they could have gone immediately after filing their claim and going to the s b c and said s p c s we think if you say they should have decided this in two hours they're taking too long can you at least either order them to decide it within a certain amount of time or we'd like you to hear it to know consider this to be denied or not sure there's i'm not going to sit in front of you and dispute that that the government introduced some introduce some ambiguity into the situation however we feel that ambiguity is completely result by the c s rules and these rules are set forth and they are well known it is not as if they were confused about what they could do they had done it before and the trial court recognized that they had done this before in their in the related batter other this court has already decide and that's why we feel that no matter how you characterize the decision you wind up in the same place which is that the administrative remedy that was assigned by its use calls cannot be found certainly as a matter of all in adequate or unavailable and that is the only way that you get to skip skip any portion of your of your administrative remedy now it's important that what the court did is it found that the failure to satisfy the first portion was a material breach  and it's it's arguable whether or not a material breach the concept of a material breach can be instead a material breach of a cost not a contract clause it's arguable whether that can even be even be found but even him sue me it can there's only two circumstances one of which is vital importance and i've already talked about that a decision in this case was not of vital importance because they could go to the s b c a percentage of the s b c is rules the second circumstance would be the essence of the clause well certainly the c e o s decision in this case although important was not the essence of this clause because without the c e o s decision and even with the c e o s decision either the a s b ca or what happened in this case that were federal claims is going to review it to know them so no matter what happens in the decision we're going to start at at excusal cases those are oliver universal asco and h p zachery for the idea that is available remedy can be deemed unavailable as a matter of law these cases in each of these cases the remedy was actually unavailable and if the court has spent time with those cases i trust it will it will see the same view similarly with regard to exhaustion that is improper without satisfying the appeal portion of administrative remedy so he makes a constructive exhaustion argument and that is wrong because it relies on three actual exhausting cases new york shipbuilding c j lang and sells her a new valid none of these cases finds exhaustion before the second portion of the administrative remedy is satisfied now if not remanded with instructions to dismiss this court should reverse because the trial court award was made under the changes for now before the trial courts to be argued a breach here and it relied upon the disputes clause as demonstrating the f ability element the trial court made toward under the changes clause this was an unprepared clause that had received no mention beyond the complaint the court's assertion of joint appendix forty two the quote there is no genuine dispute that entitled to its attorney's fees as an equitable adjustment under the changes clause is wrong the clause is limited to very specific changes having to do with drawings designed method of shipment place of delivery and the trial court on doubted lee recognized  to spazz of limitations and it tried to escape them by omitting reference to them and also incredibly omitting the word such from its quotation of part b the court cannot expand the scope of the changes caused by simply omitting  portions of its terms now to the argues that the trial court quote grounded its ruling in breach of this is wrong has shown a j forty two j forty four and j forty seven it also argues that despite count two explicitly requesting an equitable adjustment under the changes clause what's if you actually meant is that count two was identical to his count one claim but there's simply no reason for soofi to have had claims that were based upon a dental theory of recovery and then also identical damages that's entirely inconsistent now but even assuming you were correct that changes caused theory of entitlement were identical to his breach theory of title meant that would not change the multiple issues as for c ability that the trial court sidestepped by relying upon the change is false with that i'll turn to the interest this court should vacate the trial court's award of interest should reach it and remain with instructions toward interest from the date of receipt of the claim the p s a of the partial settlement agreement paying interest is designed to make an entity hold for the time value of money it is not a penalty the partial settlement agreement provides to alternative time periods from which interest may run the date of receipt of the claim or the date damages are actually incurred in that language discount is valued by a probability of it's never maturing but that doesn't turn into zero yes sure i mean i i they have they're losing the time value of money on that  it's you know it's you know maybe they have a fifty percent chance of winning so it's fifty percent of the face value of the obligation they just incurred to to their  company when their leaders did work for them i think i what i what i actually was saying here are is that that the fact that it was a contingency arrangement does not change the fact there was an obligation and i would absolutely agree with you there where i where i part ways is that an obligation does not meet the language of damages that are actually incurred that is where that is where i feel like the road parts and i think that for the contingency language you're talking about is really neither here nor there it could have been in fact a certain obligation just not to the i think that yes your honor i i think that's calculation of interest go back to that for the work and the reason it shouldn't be occurred in this in this situation your honor is because of the language that they're relying upon is damages that are actually incurred it has to be actually in current damages that are actually incur under the partial settlement agreement and we don't and the partial settlement agreement was because it was for interest does not contemplate syfy simply incurring obligation and then the government gets a pay interest for that and i think that the trial courts analysis of that and our discussion of the trial courts analysis that brief further bears that out with regards to how the united partition systems and the phillips cases that the court relies upon those aren't determining an obligation for purposes of network services at the court of settle claims here made only one reversible error and that is the subject of our cross appeal but i'm going to turn first to the government's appeal argument now the court today has rightly clarified that the government here is not challenging that the contracting officer breached his implied obligation to render a final decision and do so in a reasonable amount of time that is not at issue the only issue is whether or not to be in light of that breach was required to still proceed to the board of contract appeals or whether it could elect to file suit in the court settle claims as it did to the contracting officer deny your claim the contracting officer did not deny the claim the contracting officer never address the claim with this being denied business the  it was we we paraphrase that email in the complaint that the mail it self is not in it's not however ajay one zero five the government admitting that allegation of the complaint so that and isn't that final just that a decision from the pope and king office you know what that is if anything is a refusal to issue a final decision or honor and new york shipbuilding which we say in our brief speaks to that point in new york shipful building there actually was a decision from a contracting officer but it was not the correct one and the court there held that that decision was worth nothing here we have an agency attorney who is not the person with the authorities issue a decision giving out an e mail that says you may consider it to be in denied that's not a final decision that does not meet the contracting officers obligation and the government doesn't offer any and even support for the argument that that is a final decision the only that's correct under the disputed laws surfaces of appeal yes for an appeal to the administrative for the requirement was for the contracting officer to issue a final decision and the cases that we rely in our brief are very clear on that that that step in the i believe that that is that  that you may take a team denial as an appeal to the board that that was what suit was required to do but that does not make it a required next step in the light of the fact that this contract officer denied issue a decision in fact long before there was any such provision of the board rules the boards were hearing team denial cases and let me just give you one example p a rivera in sunday's b c a number fifteen seven to four from one nine hundred seventy citing cases dating back to the one nine hundred fifty s in which it was hearing team denials and at that same time the court of claims with was excusing contractors from appealing to the boards where it had not gotten contracting officers decision so the fact that there is the availability of a team denial does not make it required again the government makes light of that that we that we briefed that we had the choice in light of there being no contracting officers decision that we had the choice to appeal to the board or to take our suit in the court but that has been rejected and again the cases we rely in our brief go to that point but let me provide just two others one is manpower inc of tidewater five one three third thirteen ninety six at thirteen ninety eight there there was an unreasonable delay by the contracting officer to issue a final decision and the government argued that the contractor sole remedy was to appeal to the board the court rejected that and expressly stated quote and establish line of decisions of this court has held back if there is an unreasonable delay and in this trade of process the government has thereby breached this implied obligation to resolve disputes in a reasonable time and the contractor convention to directly in this court if it wishes to do so to insist that the contractor must seek his release from the board of contract that deals would run counter to this settled principle and  and one other case which i want to go outside atlanta but maxon dress court one one five at four thirty nine at four forty three again there it was held that a failure to appeal to the board when the contracting officer has not issued a final decision quote is not a bar close quote to a court action and and this is consistent with the law when you have a breach here as a new york shipbuilding help when a contract officer fails to render a timely decision the defendant the government loses its right to insist upon administrative findings an administrative decision in fact a new york shipbuilding held that without a contract now it's his decision there's nothing to appeal to the board could elect either option we elected to file suit now as to the changes argument the government is discussed as we explained in our brief it was appropriate to grant the same relief whether under a changes the eerie or under agreed theory and here far and the common lot are consistent that there is liability for the damages we saw when there is fees that issue are not for prosecution but for administration or performance of the contract the government spends its entire argument focusing on whether or not the court properly analyze asunder changes flaws but it never disputes the basic fact that these damages for attorney's fees were a direct and foreseeable consequence of the underlying breaches that had is there some time that this was a natural and foreseeable consequence of the the breach of the major breach the interference with the performance of the contract that led him to make termination simply as a government argued rounded its decision saying that it was based only on the changes clause but it did make a finding that these costs asking for a specific thing again that the j forty seven at the end of the court's opinion on that it's claim preparation costs for work done by c of the employees and the claims consultant and analyzed them under bills for the bill strong case and found that they were compensable because they were not incurred for litigation purposes this also include work like shut down work that is the same work that sued these attorneys engaged in and in a collaboration with that claimants consulted him with that employee so it's the identical issue and so that the government is precluded from arguing against liability here whether under breach or under a change of theory in terms of the changes laws we pointed out in our brief that there is an alternative version of the changes clauses reference and the  ajay seven fifty seven it's for services that is what that is how as a change this this work would flow there was breaches underlying breaches and as a result of those the the contractor soofi had to do work to put its claims before the contracting officer to attempt to negotiate them and that's what suit these attorneys did just as its employees and just as its consultant started run a little short on time so i'd like to mention very quickly on interest that the government in its reply takes light of the fact that the partial settlement agreement uses the word or the term actually incurred instead of just incurred and the government intends to distinguish on that but that is not a distinction that doesn't change the analysis or the outcome here and had there's case law to that effect that a circuit itself has analyzed in a separate type of statue whether or not using the inserting the term actually in front of the wording heard makes any difference and came out in rule that it didn't and that cases as you see verse comps are nine o eight at second fourteen zero seven at fourteen when you have a contingency the fact that there is an attorney client relationship that is what is important in finding that there's an obligation to that is incurred so that if the fact of the relationship and not the payment expressly the obligation to pay has incurred and a contingency case is the courts have held and i guess i'm thinking in terms of interests is to make all explain how in your view the interest in making a call if if you're making if it's here because soofi was an undertaking an obligation to pay it had an economic harm in having to wait to get its damages from the board or the court and but it undertake an obligation to pay its attorneys those fees so and again here we have fees that we are that we're claiming under the lodestar method under which we have to look to the give individual and the date of performance not we are able to recover under the case law under the contingency or we're not seeking to recover under our contingency arrangement which could lead to a greater work by the board in denying overhead itself because there is a failure proof in that related docket now here what that means is that the court this matter should be remanded for the court to apply reasonable and set a reasonable profit rate and to consider the evidence that we submitted for overhead here we submitted additional evidence that was not available that was not submitted before the board and the court needs to consider that to set overhead as well  versions of the changes clause but even if it did it's on available because studious can see that it provides applies in this contract and that concession is made into an appendix of seventy three additionally it's important for the court to know that the all one changes caused by itself is not going to get to be there as they set forth in their response at page fourteen what they did what they describe is this hybrid form of recovery where you take the disputes clause and the changes clause and somehow you mix it all together and that wound winds up making attorney claim preparation but we maintained throughout i mean we certainly didn't go back on our initial position that because we wouldn't have had any reason to visit it that that was the final decision and i think we've we've established that clearly in the record and through operates where we've consistently distinguished cases based on the existence of a final decision a lot of the cases that they say they say there is no final decision we distinguish on numerous basis but that's one that we consistently maintain that there was a decision here tonight here on from this woman who i think is nothing that was f