of good faith and fair dealing get an award lost property rights and so she doesn't have to give back this money that was paid for services that were not rendered isn't she going to get a double government to do the same work that they were supposed to do want to contract it and your honor we don't know what exactly the rulings represent it's just a three cents ruling and it doesn't and it just says under  there was also a contract she was making invoice she went to the contract and had not been changed and had not been changed or was no contract my situation because the person that stopped the work without authorized to do it and he didn't tell me the client was treated during the early days of the contract period but damages were awarded and i'd like to just focus on that a little bit and here's my understanding the contract period  regular course just them so we're talking about the remaining twelve months of southern maine eleven months of the contract you know the the board of contract appeals said that your client consent was entitled to lost profits for the base year yes right that means she's in total lost profits for each of the months november of zero nine through bills she submitted for october fronts are for november december of two thousand and nine right now obviously each of those statements included a last profit component right mistake and paid well to buy when i'm charging her with fraud or anything like that they're saying this was a mistake and pain we did we paid for services that were not received it was a mistake and pain you're seeking to contract and if and if it was the incident was a breach of contract then the army committed the first breach but she hasn't been charged with a breach of contract and she should not unless we can screw the board ruling that being paid for work you didn't do it's not just out of reach of contract you know we feel that that it can be construed and under contract says the contractor shall not be paid for any work perform contract yes your honor the the contract terms here are very specific and we cited them in our brief the contract terms of include far fifty two point two one two four g the invoice invoice clause states quote that the invoice must include a description quantity unit of measure unit of price and extended price of the items delivered so you are to invoice only for the item she actually delivers the contract also includes a payment clause which is for fifty two point two one to four little high and that payment  which we also cited in our previous state quote payment shall be made for items accepted by the government that have been delivered so the parties contracted that the invoice would only be for items in the items in this case for service hours so these the agreement is that you will invoice only for your service hours that are delivered to the government and the government in turn will only pay for those servers hours that are actually delivered and there was no simple question for you is i'm not sure if it's in the record business does business here have a history of contracting with the government was this in the for the price at that turn the profit under six price contracts you moment is saying that that because it's a fixed price contract miss my diversion point and convert of they terminated the class for this particular item it was terminated but not without terminating in the proper manner and because it was terminated in proper manner the government establishes are not restricted to the damages allowed under the terminations for convenience clause because determination was done in a proper manner then they could get their anticipat lost profits for the a share of the contract which is what they were awarded as damages but if the plan was over it was terminated in any event just terminated in an improper manner giving them a three and also at appendix pages ninety six dash ninety seven that's where you'll find the contract  now also the physicians the contract also stated that the position assistants were to be paid by big victory only for the hours to say sexually work so they say this is nick victor didn't have any obligation to came to these position assistance if they weren't working for her and that's in the contract statement of work it would be an appendix page sixty seven so we think that the the board's decision on this point is clear the board found that these revenues were all have earned and they could not be retained and they were  position was always clear and the government contracting officer put in a claim asserting that these were overpayments and the government argued before the board that these were overpayments under the  contract so given that that was the government's position they had the ability to assert a defense and they thought they had and these arguments that they are raising in their opening brief argument at the board that these were overpayments and if they had the opportunity and the duty to raise it to forty every defensive they had and these are in the nature of additional defenses that day decline to raise at the effort to raise a new defense that they failed to reset the board is has to be a waiver situation and there's nothing there's nothing especially different here that should be deported to conclude that these defenses terms of the contract and fall of the contract in putting in the invoices to the government that the government then paid that contrasts here with a home because in this contract that says that you can invoice only for items that are actually delivered to the government and the government under that same foreign force will pay only for items that are actually deliver and that is a vast difference between the situation that was presented to the court in the u s petroleum case and then also as we pointed out that see there's no real detriment to the contractor in this case because the detriment is as the supreme court said in the hacker case it's simply and the inability to retain money that the contractor  never should have had in the first place never should have been paid to the contractor  the case to the parties and what we would anticipate is that the amount of lost profits that are due on the contract claim that set this is the victor one that they would be calculated on the september of two thousand and ten that's correct that's correct home and for the month of october she built precisely for the number of service hours that will render the number of service hours to live would be a council ation the amount of lost profits starting from november first through september thirtieth two thousand and ten and that if that amount is for example thirty thousand i'm not saying that it is i'm just saying hypothetically that thirty thousand that would then be subtracted from the government's claim and this is stick victory we don't see all the difference plus the c v a interest thomas with a little less than two minutes the contracting officer representative who was authorized to approve the payment and by the way this is the same person who sold the employee who took her employees he approved each and every  diploma ruling that that came out and the limit of the limited nature of the ruling as i said it's not clear whether it's a breach of contract work or an overpayment we suggest it's not that it's not