which is what the st surely all of lobbying is be something other than a cost associated with you are the the federal acquisition regulation cost principle covers both lobbying in political activity co and so if you read the different categories of the an allowable activities many of them have nothing to do with what you would think of is lobbying it's campaign finance it could be things like paying money to a political action committee it could be having pa advertisements on t v in the actual employees who engaged in these activities there the record the an allowable portion of their time was approximately twenty five percent of their time so the other seventy five percent is allowable  that are expressly an allowable under the cost principle and the not and that's the critical point in this case not every cost that violates of a federal acquisition regulation cost principle is quote express of regulation or contract is specifically named in stated to be an allowable and so for salary or compensation to be expressly an allowable it would need to be specifically named or stated like as a windows user saying there is no lobbying activity is expressly on the low your honor the if you had something in maybe in the campaign finance in that if you go through thirty one to a five s twenty two dollars were it specifically lists that we would say that is a particular item or type of cost if you make a campaign contribution that when i'm just talking about lobby straight forward lobby we're going to have an employee sits in a senator's office and makes a pitch for something to begin with not every person who sits in the centers his office and makes a pitch is considered an allowable lobbying under that consequence it's in the activities that are listed are very specific and for example there are it needs to be in furtherance of perspective legislation so if it's one of the oversight parts of what congress does and you're in the senator's office talking about and that's not an expanse not even an allowable under the constant will let alone express now law but i think the critical point here is that the for the federal acquisition lobbying could be any number of different types of costs and none of them were a particular item were type of cost that is specifically named in stated to be an allowable in the board recognize that too in following its its earlier decision by a different panel the board recognize that far thirty one to a five hundred and twenty two does not specifically name or state salary or compensation but then what the board did in this is the error is that they rely on it the board relied on a combination but that's clear error for two dollars independent reasons st the board is incorrectly treating directly associated costs as if they were expressly an allowable cost and the terms directly associated costs  express an allowable cost are both specifically defined in the far and they're defined differently a directly associated cost is one thing is any cost it's generated solely as a result of being currents have another cost  alcoholic beverages for example whereas directly associated costs are only i'm allowed will by association for example salary costs are generally allowable but there may be a portion of it that is an allowable  that you don't give any significance do you to be a phrase that this whole that the lobbying provision opens with that is costs associated with it doesn't just say lobbying activities are allowable that says costs associated with them so i guess back to my st question how could personnel costs for the essentially human activity of item or type of cost cost associated with any activity is a whole gamut of different types of costs so it could easily be an allowable but it's not expressly an allowable because it's too generic exactly your honor it's a category it's not a particular item or type of cost that is specifically named it's a category and it's a bit of the your honor there are very specific and certain types of the other cost principles for example alcoholic beverages specifically named in stated be an allowable interest specifically named in stated to be an allowable but how do we know that alcoholic beverages includes beer and wine hard liquor maybe it's a court beverages this is not specific enough you are actually there's a board case that addresses that and they said that around the edges maybe you could i don't know if you've ever lived in colorado like i did as a college kid but then you go beyond that they actually they actually do say that you might have an argument about whether three to beer for example is alcohol but beyond that it was kind of the parent matic case of this being something that instant specifically named instated to be an allowable and with lobbying cos it's not there again there might be something like a campaign contributions six as being a cost principal moved far that defines the allow ability of space specific selected cos and this board in b the the section the board is relying on that's in title general and it contains general principles that govern all types of costs and so cost that violates one dollar of those general principles may well be an allowable in fact that's exactly what ten u s c two thousand three hundred and twenty four a is talking that's being talked about when but why doesn't that way of viewing what's going on into a five's answer for our purposes the relevant question but the question relevant specificity each of ever held i think would be a terribly bad decision for this court the home that every single one of those cost principles makes cost expression allowed that was not ever the intent that's the not the way they've ever been interpreted within those forty six subsection there are certain cost principles that may cost expressly an allowable this is not one of them and and there are examples of i guess i have how do we know that without making how do we make a judgment about the required level of specificity or generality as its opposite as your honor i think it would be by looking at the the actual regulatory definition of a particular item or type of cost so that's particular to begin with and lobbying activities with costs associated that we're talking about is a portion of an employee's time a salaried employees the it doesn't really even very well fit within the directly associated cost category because the salaries were not incurred only because these people performed some activities that were on allowable and it would have been incurred anyway they were salaried employees so twenty five percent of their time is spent doing something that's generating and allow the cost and what the thirty off to a one dash sixty says is for salary costs you look at the portion of the person's time is spent doing the an allowable activities and if that's material in amount then it's considered directly associated so it's not even all of these if they had only spent one percent of their time doing something unallowed will that would even be directly associated costs would not even be an allowable period you would not have to disallow and so that's the mistake that the board is making its treating this while the board decides this isn't directly associated costs and then the board says under this combination of something that's not a specific cost principle and it's not an express a allowable cost combining them together then it's subject to penalties so it's just completely wrong interpretation of the regulation you want to save the rest of your an hours each day that were on allowable lobbying costs you know there's not an issue here as to the time spent on lobbying was immaterial that's correct and other and said and there's no dispute that the time that was spent on the lobbying activity was and on all out on that that's also correct so the only question is whether it's expressed liana that that is correct or rather and  but what we have said is that the ultimate question is whether there's clear regulatory guidance or whether there is a reasonable difference of opinion as to whether the cost is on a level and that's brought out in the general dynamics opinion of the poor and also followed in this case and the board found in this case that there was no reasonable difference of opinion in it cited the evidence on the record of this case for example the policies of of raytheon and then the board also cited the testimony from raytheon's senior manager and he was asked what are the costs associated with the employees performing the on allowable mean the wasn't wesley identified no because it is very clear when you look at thirty one point two zero five dollars twenty two doesn't that you can impose a penalty well i think it's a mixed question because one always looks at the record in a case but here the record is very difference of opinion as to whether a cost is on allowable whether their regulatory guidance is clear and we differ with raytheon who is contending that the word salary with the word compensation has to be included in this meaning of the word name that it's enough if the cost principle fixes the meaning of the cost as being an allowable and we would contend that in this case the very simplicity of this regulation the fact that it sets out all of these activities as being on allowable activities and it says that all of the costs associated with the sos activities are  allowable and then in paragraph c it says that all of these calls have to be set out separately and purged from the cost pool it's not whether they're material or not it's whether they are those type of cost and if they're all of those type of cost all of them have to be purged out of the cost pool and the very simplicity of this regulation makes it very very clear that the lobbying salary cost are on allowable as your honor pointed out these are activities and these activities are performed by the raytheon employees and they're paid to perform these activities there is a labor cost of these activities and what is the labor cost they're not working proofread they're paid a salary and some portion of that salary is where those on allowable lobbying man hours that they're tracking in their time she's now so we think that the the standard here are that the court should use the ordinary meaning of the verb to mean that is is the cost on the law ability fixed by the language of the course principle and in this case it is it is incredibly clear and they knew it and they were trying to drive out these on allowable salary cos they just did it in a negligent manner without the exercise of due care now alternatively the court could sidestep the question because it's very clear that the word the now if you have to identify a cost i don't buy a noun it's there you can't miss it we think you couldn't miss it in the st place because the language is very very simple and very very thirty one point two zero five dash twenty two but alternatively the court can a permit based on the ruling of the board the rationale of the board no era has been demonstrated humans st of all in terms of their arguments where they try to distinguish the directly associated cost from a express play on allowable cost i would point out that in their opening brief pages sixteen dollars to seven dollars they concede that directly associated costs can also principle itself then the directly socit costs are expressly an allowable we would submit that that argument undercuts their leader argument that the word salary with the word compensation how to be in ratio with raytheon that language is sufficient and summerlee the language cost associated is also sufficient to make the cost item expressly allowable under thirty cost principle has to be located in the section thirty one two hundred and five now what the board pointed out was that the regulation doesn't say that what the board also pointed out is that under the for the way you interpret the four is you read the course principles together and this is stated in thirty one dollars both were f a a and it says that the allow ability is determined cost is expressly an allowable also has to be made reading the cost principles together  cost but it wasn't subject to a penalty that's not actually the holding of the general dynamics case on that point in the general dynamics case in address the printed temp costs and what the board said there was that  it appeared that those frigid time costs were expressed leon allowable but then it said quote the three percent exclusion had the effect of removing the preacher temp cost from the course proposal so the  costs that were issued who were not even in the proposal government never paid them you couldn't charge them with a kind of to we would also close by stating that this is this case is exactly why the penalties were adopted if congress was concerned that contractors not courage ing out the expressly on allowable costs for me cost consultants cost and not be purged from a cost pool if the court were to find in this case that lobbying salary costs which are exactly the cost the labor cost of these activities that they are not an expressway allowable cost and that they are not subject to penalties then congress is purpose is entirely undercut and i just want to make a minor point because of all the that doesn't just cover donations it covers in kind contributions so if raytheon's lobbyists give their services their time think in the difference between the expressway allow the cost and the directly associated costs is the difference in the accounting treatment and i think that actually answers the question of point of the flaw in the government's argument the expressly allowable costs regardless of the dollar amount have to be specifically identified and excluded so if you make a campaign contribution if you pay a paid lobbyist that cost has to be specifically identified and excluded that's not what happened here with these salary costs they didn't specifically identify any particular salary cost they used the good faith estimates that they used under lobbying disclosure act they came up with a fraction that they applied to the entire cost of this department so there's no single dollar applied to any one of these individuals that's been specifically identified instead they were treated as directly associated costs so that's the difference between the two dollars types of costs and that's the mistake that the board made the government's argument based on the legislative history is the old statute when the standard used to be clear and convincing evidence that was changed in what's in ten u s c two thousand three hundred and twenty four is different and in fact if you read the law review articles in effect at the time it was a kinder gentler you know version of the penalty statute and that is that it had to be expressly allowable under one of these cost principles that describes specific selected items of cost the only cost principles that do