the tucker act but in the c d a the congress was acting in a different and separate way were sovereign immunity you agree with that right it was an act in its own way were sovereign immunity in line with the language of the contract disputes act there's no question about that but that there was some one discussion of the legislative history in the talker but let's go back to the senate report for the c d a sure i mean tell me you agree that it's quite clear what the senate was thinking about about how far the waiver of sovereign immunity goes for the nasty and then you you agree with that write them in the language is very clear is only the  will the gree i don't know what am i supposed to do with that that that couldn't be any clearer what congress's intent was in terms of how far the waiver of sovereign immunity was going to go with respect to the contract disputes based on the same language and very similar legislative history that said we're only going to limit this to the enumerated not in the slattern decision this court decided that that legislative history actually what was not the finitude and ago and it didn't have that efi doctrine and it was an act right it was created judicially by the courts over a number of years and then eating reaction to that creation congress putting in the language the expressed statement that's in the legislative history what else would they have had to do to limit it to the new right enough is that for whatever reason congress did not limit and they could have ten specifically i mean given that there are two different statutes with different legislative history don't you think that we have to go on to overturn roe i do not your honor because again if you look at just the language of the contract dispute and for whatever reason that language was that isn't but doesn't that undermine your argument if if what we're talking about is congress intended in one nine hundred seventy eight to in corporate the balance of the tucker after six so it's regard to nasty then there's no dispute that it only included  only included in new merioneth so i think your argument has to be that congress intended to incorporate the tucker act jurisdiction at the court at large that jurisdiction over time congress intended to enlarge it as well limited to a contractual rights term and the plain language of the agreement as well as the board's own factual findings support that very interpretation the d s i hold that the language of the issue here in my twenty two this modification which all parties agree  whether this modification refers to all of modesty or only a part of it as the government would have you believe but this modification is pretty clear in what it says and from the from the negotiations of the parties it is clear that that is what the as i understood it to me to be its plain meaning of this modification referring to all of the modification not just a part of it so you don't think it's curious that the fact that there was no mention of some kind of recovery some kind of renewed payment for the continuing rise at what point in time you are well that was the question at what point in time it's silent it is silent and the reason is that your honor my client distributed solutions was interested in getting into a contract with aftermath gave them entree to the department defense and future business prospects there's no doubt about that and they were willing to concede that they would allow use of their of the of the created version of software under this contract for the term of the contract without charging a specific license rate to use that they were getting maintenance fees they were getting other payments during the term of the contract and what the d s i frankly eventually intended was to move to another product or if the contract ended it had this limitation on the right to use that would allow it some recovery at that point in time if the question is if we conclude that mo clearly granted aftermath of these continuous perpetual rights to use the software system what is it about modification twenty two that clearly truncate those right your client's intellectual property rights are likewise truncated by modification twenty two i mean there's three parts of monster if the me that's right the government perpetual right to the the obligation to keep updating the code in the escrow show and then your company's ip right that's right and then if you are trying to say that well all of that goes up in smoke at the end of the contract then that also  you that it would be unreasonable to understand the scope of your ip rights as being terminated at the end of a contract but then you know logically that also makes me think that likewise it's unreasonable to think software which nobody disputed because we had purchased it through an asset purchase agreement that the government approved there was no dispute about that but it also puts restrictions on the aftermath posed right to protect that ownership interest by limiting the  s to which it can allow use of the software that was the real import of the third prong and so if the market were to end at the end of the contract and obviously after apple has no more rights no more responsibility to protect vs size ownership interest that was the import of the third prong that's why it makes perfect sense for the right to end at the end of the contract no more source code no more use and no more responsibility to protect the use of software you no longer use and it's entirely consistent with our  fifteen also say that the government has the right to take the source code out of escrow and use it for its own purposes build it out on its own or even hire a third party to work on it it does say that your honor but in order to use that source code you've got concerned about its about about its right to use and the software that needed to continue to operate diving p s system it negotiated with the s i because yes i own the software if natural had no other choice d s i knew that after half a software knew that they understood it and drafted language proposed as a counter proposal to the size of language which said this modification is valid for the entire life of the contract apna apna knew exactly what was going on it drafted language to address its concerns and its counterproposal said this modification that what the entire labor contract yes i understood it at the time to be a limitation to the contract term that was a compromise it could live with and so it moved on to other aspects and negotiated the rest of the contract it was non controversial and it's new it's entirely in keeping with the circumstances at the time where the parties were at an apple needed to deal done or else it was not going to have operative software so why was it willing issue in this case in one hundred seventy eight it was understood by congress and also it was for holdings of the court of claims that jurisdiction did not extend to the nasties and it was within that background thirteen forty six and fourteen ninety one that is the same language there you get you know the case where the same text that's you know reference another stature got  construed the language of the c d a is not extending jurisdiction to the federal circuit to review a board decision involving a nasty why was drafted rice and dissent wrong and minds and when he said we're wrestling with the exact same language in the c d a and the tucker act if you know this court and doctors are ready construed that tact a very particular way and that particular way is does great violence to pack repeat to the point where it's over there were several problems to this court's decision in the slavery case and one of the prolongs is its analysis of the and that was the extent of congresses and test here congresses in kent and shown in the senate report that's coded in our briefs pages twenty seven to twenty eight is very clear congress made a decision you doing that sovereign immunity to the tucker act and then the house bill amended that restricted it down just to the military exchanges and that's what actually passed and nevertheless you know we involved in slattery said  the legislative history only goes so far different the point i'm trying to make the legislative history regarding the tucker act only went so far as this court stated in slattery here's the legislative history goes exactly to the question before the court it addresses whether she's there should be included within the scope of the c d a any additional nasties and it decided it states that because the  were viewed as adequate the congress would not go any further in extending cd age or section and i would point out with regard to the existing remedies the existing remedies for  nafi contracts were brought because they contained a disputes cause which was different from the disputes cause it would be found and other government contracts the disputes clause extended to breach of contract as well as  in this case the word correctly construed modification twenty two is not as a plain language not taking away the government's ever lasting right to use the software this is a right that was guaranteed to the government  modification fifteen the board read modification twenty two being a series of paragraphs that went through the contractor's responsibilities and obligations under the contract and sat out all of those responsibilities and it was the modifications that assigned work to the contractor the concern is that modification twenty two it doesn't limit itself to certain aspects of occasions because it uses the language complete and it's in the context of all the other paragraphs which set out when work would be considered complete and accepted by the government so this sentence  which talks about being valid for the entire life of the contract and will not be through it considered complete until the contract is closed the only thing that that can apply to is a responsibility and obligation of the contractor that's the only thing that could be considered complete and accepted by the government and the only thing that could be considered complete and accepted by the government was the escrow obligations that were part of modification fifteen and that's what the board held it read the paragraph in the context of all the other paragraphs which deal with contractor responsibility and obligations under the contract but also stated that it will have construed it in light of the purposes of the agreement the purposes of the agreement was to bring the no vacation agreement into the contract and secondly a construed it consistent with common sense doesn't make common sense that the government having acquired this everlasting right to go forward in use this software for all times when then give it up for no consideration no cash in the modifications which was intended to expense resulting from the transfer other than does that in the area of original agreement and there was no charge under the original agreement for using the software and the transfer did not change that the the board first looked at the language of the agreement found that it did not unambiguous we take away the government's right and then d s i have made arguments based on the extr way communicate an intent to divest the perpetual right this is a finding conclusion of the board and the aside and its friesen today at all argument continues to argue contrary to that factual finding finding that was supported by the record so the aside i never put this perpetual right of the government on the bargaining table and the government then responded with its own proposal which corrected in an accuracy in terms of the contractors responsibilities and pointed out that the responsibilities and modification fifteen were not complete and accepted by the government that they would continue on until the contract was close so in this case the rethink the board's decision is very clear plain language does not support the interpretation that was put forward by deicide taking away the government's everlasting rights and secondly the extrinsic evidence did not support the argument coder you have a couple minutes resign thank you very much let me start very quickly with a couple of points on the merits again we assert that the plain meaning is this modification is our referring to all parts of the modification the court the board never found any other contrary interpretation there is nowhere in its opinion where it says what that binds means what the government says it means is the escrow duty in this modification you cannot get there without importing words into language drafted by the government and why it makes sense in this case is because the judge is fundamentally wrong in his assessment of what the parties knew during contract negotiations he assumes that the sri knew that the language drafted by the government this modification is valid entire life the contract meant that the government only was referring to escrow duties that meaning was never communicated other than through the language that the government sent to d s i on the other hand he assumes that napco at the time said that language would have taken away what we had just put into the market and would have affected our right for you to use i p s forever and she was speaking for the i p s team not for herself then that about that concern and others and drafted the language at issue that says this modification is valid and are like the contract that has to be read as referring to all three based on the court's own findings and then even if in again this is in the people having the right to use software perpetually that was going to be useless and so it was willing to negotiate that's clear in the language that it sent back to the s i d s i was reasonable and in