the first issue the stomach terminated my client's contract for the fall and after the trial the board determined that my client in fact had defaulted in its performance of the contract and also that the i think the record shows it's twelve point nine million evaluation in your argument section one thousand you say it had it quote had functionality and then you say it had quote major functionality and then that's at twenty one and then it twenty one you said it basic functionality in the joint appendix eleven sixty nine there's testimony that basic functionality is were there but that it quote just wasn't working to what could be that the government had the burden of proof during the trial to demonstrate that at the conclusion of g t any which was april tenth two thousand and seven the system lacked functionality and we are asserting that there is not  position is that the government did not present evidence they had the burden at the trial and that the government did not have evidence that as of the date of termination recall that the contract was terminated for two reasons one was the failure to cure and the cure noticed my understand over government on this point the government makes two arguments firstly they say you are required to have one hundred percent unction our age at the beginning of the g t in the not at the at yes so there was default there but they argue and i think there is evidence on the record that it was even if you take your date of april two thousand and seven it still wasn't one hundred percent ok now you said something kind of a little odd which is the government didn't we the or ignore it are substantial evidence to the board that there is not substantial evidence to demonstrate that the real hosted system did not have one hundred percent functionality as  there was a couple of points i'd like to make one is the testimony that was presented during the hearing did not match the record during the hearing and we think that it was error not not for the government to have a record that matched the testimony so let me give you a couple examples there is one test if you would say look back at what you just sit it was error for that government not to have testimony that matched the record when we let me clarify let me clarify that your honor i apologize it was an error for the armed services for the contract appeals to determine that that the testimony of the government was credible in light of the documentary record but that weighing evidence is it i understand your point but there was evidence from the government's lead tester carol turner that the government didn't conduct any testing after testers which are in fact provided for in the contract as you're responsible it but the government's for us to then come in when it does its testing and do your work that's sort of the core of your argument isn't it that is not the core of our argument or that there oil there is a i don't even think it's for a full there is a test plan that's in the record and the test plan that is in the record that the government wrote which is in the fourth volume of the appendix states that the parties should expect to find functionality defects during g twenty and it states that the testers on the government side and the testers on neon side will meet daily during g t a need to resolve those defects those defects so can virtually when you get to the end of g p and he there needs to be a comprehensive test there needs to be a test that demonstrates does this work or does it not work and this is particularly important when that the company that's performing this contract is a is a small business but if it gets terminated for default it's the most draconian thing that can happen to it it goes on its past performance records for a period of five years so that everybody who wants to hire this company knows obey were terminated for the fall under those circumstances there should be an is a big no the issue so so it's our it's in our position i think the government agrees with this that this court is entitle to determine as a matter of law whether the un has to repay the performance based payments it received under the contract there were trapped point nine million dollars or so and i'll just point out a couple regulations first before you get as my argument the first one is thirty to five thirty to one thousand two in that closet section j it's it talks about what happens in the event of default and in the event of the fall the contractor has to return an liquidated performance  cutter record is clear that the contracting officer didn't put a liquidation schedule your creation rate the liquidation table of any type in the contract as the contract an officer was obligated to do section j discusses the fact that if the contract so the contractor had it performance based payments in the contract that were subsequently broken into smaller payment events that each of those performance based payments the contractor had to demonstrate with verifiable deliver with verifiable subjects that it was entitle to be paid you're saying they were accepted that i'm saying that they were except that i'm also want to point out you're flying in the  let me read it again the contract specified broke the government except or reject the host mo pessimist i'm within thirty days from the final migration of li liquidated progress payments need to be returned and that liquidated progress payments get to be kept by the contractor and i can also tell you that the contracting officer who wrote the contract originally was of the position five times that the performance base payments were liquidated when paid and i understand that the government has cited some cases about information in the contracting officers final decision is is subject to de novo review and and that's true in fact contract is a contract interpretation question it's a lesson of law so why is the contracting officers subjective understanding of the payment status hearing anyway here because the contracting officer wrote the contract in the contracting officers please the court the termination for default was properly sustained because in this case the contractor deliberately nonconforming goods the contract was require that there be one hundred percent testing i mean you say whether it worked or did not work who was supposed to go in there and make that determination was that governments people or the contractors people the contractor were supposed to deliver a system it had fully tested and then there would be the period of government testing of the functionality but that was the first ninety day period that the contractor failed during that period the government evaluated the system and it was undisputed that this interface to the share dated warehouse did not work our you had testimony from three witnesses mr jackson a miss turner and in the schreiber cited from jackson turner and schreiber does go also to the berry and after april tenth it didn't work before and it didn't work after wards and the  and there were other aspects other functions that did not work as after april tenth and there is testimony to that effect testimony from turner and thompson that the progress payment function this is the way that you were able a witness with a from carnegie mellon and actually their testimony was that the system that was delivered was unstable was on useable and they short that they thought that the government should start all over again  what's at issue are the four provisions and in particular i mean we agree that the if it's unlikely dated the government can recover it if it's liquidated the government can't recover the yes exactly and far fifty two point two thirty two dash thirty two he tells us that the liquidation is it says performance based financing amount paid prior to payment for deliberate of an item shall be liquidated by deducting a percentage or designated dollar amount from the delivery payment so what  performance based payment and says that liquidation occurs when there's a deduction from the delivery payment and this contract also includes far fifty two point two thirty two  dash one the payments clause which is the ordinary four clause that's included in government contracts and that states that the government shall pay the contractor upon submission of a proper invoice the price stipulated in the contract for supplies delivered and accepted so that also explains that you have to have the delivery and it acceptance of the delivery before you have a delivery payment and in this case as the court did read and point out there never was a full delivery claimed number one was dead or fully delivered and it was never accept it and because of that there never was a final voucher for clain one and there never was a delivery payment and so the financing payments were never said all against the lib repayment  ram pl if the contractor had done everything they were supposed to do in this case if they had delivered a fully compliant system what would have happened is they would have tendered tenders the goods it would have passed the first ninety days past the second ninety days and they would have tendered a final invoice at that point the  price is roughly fourteen million so against the fourteen million you would have saddle whatever progress payments excuse me whatever financing payments in this case they were performance based payments you would set off that amount and the contractor would have gotten the remainder for example if thirteen million had been paid as financing payments prior to final delivery then they would have gotten the other one million percent liquidation so here they're they're saying that the contract is defective because there is no percentage in there or any amount it really isn't because there was only one delivery contemplated if that delivery had been successful then there would have been one hundred percent liquidation performance payments could be reclaimed yes yes so in that respect the it's the same result whether it's a progress payment or a performance based payment in either case if there is space payments issue when the provision the on the liquidation if the performance based payments are on a whole contract basis as the government is alleging the government has an affirmative obligation to please designate it liquidation amount were liquidation percentage or under the plane reading of this regulation and my friend that essentially the contract at one hundred percent liquidation right but there is no liquidation schedule there is no record action rate there's nothing in the contract and then it's our position that if the government is going to take that position it needs to communicate that position in unmistakable the difference in the contract it's incumbent upon the government as the author of the contract to do that and on that the tribulation for the fact this you will just draw the court's attention to appendix fourteen eleven through fourteen twelve which was mr turner the lead tester is testimony that there was no testing after the g t anything that ended and a little context i'm sorry that would be appendix ten thirty eight through ten thirty nine and then some context on the carnegie mellon testimony the carnegie mellon witness testified that the rheostat system wasn't in through them and every measurable for the system that the government provided so the we should start all over