good morning and may please the court in this appeal vs technology is challenges the terminations for convenience of its research and development contract to develop a pathogen detection system for the science and technology directorate of the department of homeland security that terminations for convenience occurred because the acting director of its chemical and biological defense directorate dr woodbury refused to allocate more funds to the contract up to the full estimated cost to the government specified so the the government had the right to exercise that power reasonably but there was also the right not the that is why it was terminated but the government does not have absolute license the judgment about what about whether to a lot more funds your honor that's the whole point of the implied duty of good  dealing that all contract powers have to be exercised consistent with that requirement that's the whole point of it so yes the government wasn't obligated in some kind of absolute sense to a lot more fun contract but by the same token it did not have a free license just to decide not to a lot more funds that it was not the case and indeed you can see when i say that the government's discretion here was was hindi and i like to think of the duty of good faith and fair dealing is kind of a guard rails for the legitimate exercise of contract powers all you have to do is look at the reasons mr woodberry gave for his decisions customers and then he cites them continue to have a need for highly multiplexed biodefense pathogen detection capability in their laboratory operations and since he plans to meet this needs sooner and lower cost individual in an agency that says this isn't the agency's mission it directly contradicts the whole purpose of this contract contract and the legitimate expectations of n b s it is also contradicted by his own statements but secondly the other reason that he gave was that the cost of continuing the m v s contract was according to him not the best use of our funding given it given the availability of more mature of overlap and come from the same body effect there is a bad faith standard which requires malice for challenging the terminations for convenience that's not what we're claiming here implied duty covers all aspects of performance and enforcement and that it focuses on quote faithfulness to an agreed common purpose and consistency with the justified expectations of the party both so respectfully your honor it is not accurate in terms of the duty that we're claiming d h has violated here to boil it down to bad faith there is the separate concept that involves malice and that's not what we're claiming here and so state the it is also there are several aspects of this which we submit make it clear that the duty of good faith and fair dealing was was violated here st mr woodberry identified no change in the circumstances of the bargain that is a trishul old requirement for the exercise of a terminations for to what the government can do that can undermine the bargain if if the government has a contract with the ford motor company to produce sherman tanks for a war and the war ends that is not a discretionary choice by the government it's a risk that happen and so the determination for convenience proposition says ok for those kinds of external risks not controlled by either party those are going to be shared by the parties and so what this court said quite sensibly in the maxima case is that determination for convenience can be appropriately invoked quote only in the event of some kind of change from the circumstances of the bargain or in the expectations of the party source and that's precisely what mr woodbury was saying he was doing and apropos of this this is his number one statement and he basically on his own said that the n b a s contract was outside the scope of v h s his mission and that that is unfaithful to the agreed common purpose of the contract and is inconsistent with the justified expectations of n p s and we rely for that it's in our kept case and dobbins versus the united states which is two thousand one hundred dollars case for mr woodbury offered no evidence to support his claim that more mature platforms  the stakeholders in this and remember the stakeholders here which interagency program team they were stakeholders from c d c f d a secret service and so on situation here and so with respect to the terminations the subsequent terminations for convenience the question is only whether an obese discretion and most notably n b s in its in the right in its opening brief states that it is discretion as to determination for convenience because after that the government after gave us a decided to not allot additional funds to the contract there's no reason for the contract to continue performance was completed  contracts section two hundred and five talks about using contractual power that can be abused and so by late the duty so for example and i'm quoting here the abuse of power to determine compliance or to terminate the contract that's restatements nd contract you can have a perfectly legitimate contract contract right but if it's exits exercised in the context in a way that can be determined to be fair that violates the duty so one example that the restatement gives is when you exercise such a power when when the other party is in a as they put it has circumstances so yours extensionally extorting the behavior of a part so i think that we've got to be careful evidence supported the proposition that that prototype would be available and ready to go and so the proof of the contract were within everyone's grasp and including the government that's part of the by october of two thousand and thirteen it ultimately was extended to july thirty one of two thousand and fourteen but i think it's not just the expectation or the anticipation of the hun tractor concerning the availability of the prototype but the scientific people from c b days went and saw the modules working and so forth and they reported back that based on their judgments see the  prototypes were within grasp so the expectations of n d s that this contract would be completed and performed is is there the evidence says there's nothing conflicting that in the record and in fact there is no substantial evidence supporting mr wood berries characterizations of why he was doing this and we have here the benefit of a no i g report and completely independent report that examined every concern that mr woodberry just blathered out and i say it that way because he had no support for it and all of those were found to be baseless so you know this is in many respects what happened here is way over the boundaries of the discretion the government has and remember the l o s clause i quoted before but it could be it's not just the provision that says the government is not obligated to reimburse a contractor for excess costs excess over the amount allotted but there is that provision that the parties contemplate that the government will allot additional funds incrementally for the contract up to the full estimated cost now the government can have reasonable reasons not to allot funds but here they didn't have them it was just really if i've almost speechless because the record is so b