stash five zero two three united pacific versus the united states and you keeping five minutes for rebuttal correct that's correct ok it would please what i represent united pacific the surety of this construction case and my main point today is that there are four cases all decided by this court which should allow my client to proceed with its legal contract claims godly and all church company in the west and the a t m t cases ours is a contract action was meant to in any way affect contractor rice it really seems to be when you look at it purely related entirely to internal government allocation of funds  funding and authorization well the where we get to that is i go back to the eighty and eighty cases and says that if the statute does not invalidate the contract then the corps disposed to undertake a public policy analysis in our case we clearly have public policy being violated and that therefore you can use that public policy route to get to the point of it being declared void of an issue now i understand that's  route you take that i don't think only by going through the analysis in this case you mean we we found that the contractor was not entitled to have the contract declared void of the show in the first i guess in the in bank it over on its contract fifty seven million dollars on a fixed price contract and they wanted to convert to a cost plus pursuant to that statute clever lawyer but i don't see that there's really a public policy protect a contract well i'm saying it's a public policy issue because they violated that so you agree that there's nothing in the statute designed to protect but we don't need that because understand honestly don't  different totally different and startling different end of the statute issue here don't create a private right of action well not the statute itself but then you have to go to the public policy analysis under the a g m teeth holdings and you have to go the other cases i've cited the end all case a godly case churns company the west insurance company the west is the case that deals with surety giving it the there's two issues when a surety can assert its rights and sue the government that's when it completes the project or finances completion well that's what the surety did here that's why you know business the government may be arguing that you don't step into the shoes of the contractor but that they are and that seems completely wrong i mean you step into the shoes of the contractor if a contractor can challenge the illegality and you can't but i think what we're suggesting to you is that the contractor couldn't challenge the heloc alibi well that that may be but that that's not really necessary here because the surety came in after a terminations the contractor you have greater rights than the contractor and you know what we have we that may be but insurance from the west doesn't tell us whether the contract gets voided and the question is how do you bring yourself under the in bank he and t decision well but because the statues are different the statute in our case doesn't invalidate so there has to be a public policy analysis that's all i'm looking for from a t n t but then you go to the cases like godly particularly in the godly case which i think is of is a pivotal stage for us there the government was able to avoid a fully completed contract because of the illegality contract and there was issue is that the government knew from day one what they were doing but the surety did the surety came in after the terminations contractor didn't know about it either surely didn't know about i came in in good faith and completed the projects spent three and a half million dollars completing the project and then found out after the fact that it was an illegal contract if it had been a legal contract then that's what the surety supposed to do is come in complete pay that money to complete but not in a situation where it was boy top initio from the very beginning and the government tries to argue with both their brief they say that we should  have asserted the illegality at the time of the bid but we had no knowledge of that and in getting other parts of their brief they're claiming that this was a legal contract so they're all over the place it's for us what's what's legal and what's not maher standpoint illegality is is crystal clear and that it gives rise to the public policy analysis and then that gives rise to the end all ungodly analysis and then if you can't have it both ways if the if the government can point a contract based on a godly fully complete contract why should not the surety be allowed to do that especially when you go back to insurance companies because the statute didn't give the take away i think it said no says that the and then if it doesn't address and elevation in our statute does it then you do the public policy analysis and i think we have one of the clearest cases you could possibly have where they violate the public policy congress is supposed to authorize new construction around the country in this case or maybe you're making this one up let me ask you in the in eighteen t v the the eighteen t court quoted with approval congress on how to oversee and manage its creation sites and how the case i mean it seems to me that the statutes that are involved in this case was a twenty eight zero five and twenty eight a level of title title ten fall within that statement i think they're much broader because i think the public policy is so clearly violated because congress is is what this does this limit the ceiling on on the government so they don't spend money they're not supposed to have how this happens the result that you're see here assist in the enforcement that public policy because you're saying the government still has to because otherwise you're encouraging them to break the statute to violate the statute and use main its funds to instead of repairing a narrative they're building a building that may be the case but aren't there other remedies for that if if government officials are violating procurement statutes they can be disciplined appropriately i mean i guess what i'm saying is that is that really another side of the house so speak well i agree with that but the bedrock principle here is that it is it legal the contract was illegal that's what we want to be able to prove it's void of an issue it becomes an implied in fact contract and a surety that can't comes into that circumstance first day if they knew it was illegal that would diminish the bond if they had found out later after they issued the bill on they would have denied coverage when the terminations occurred saying this is illegal and under god only i think they'd be successful in in stating  that they did not have to perform but in this case they didn't know how does it help the congressional injective that they limit the amount of the government can spend and under your theory the government's obligated for even more how does that vindicate the public policy like to the statute well because in this specific case the government committed fraud and there was a legal illegality so yes it punishes the government in this particular case but  because i think the trial court correctly pointed out here united pacific actually has a much weaker case here than the plaintiffs did in the eighteenth t case because the reason is that in the eight hundred eighty case there was a connection between the purpose of the statute and what happened to the contract of a statute was passed because congress was concerned about the use of fixed price contracts for these research and development projects of the military they used a fixed price contract and there were cost overruns here judge firestone went to some lengths looked at the legislative history and also the language of the statute found that there was nothing in the statute itself or this contract violates the statute or stop we're stopping it we'll get the money from the right source so that they can straighten out funding issues ok so that's what we're really dealing with this is a situation which in your view the con voidable at the instance of the government but not at the instance of the conqueror well i'm not saying it's affordable all we're saying is if if the agency is taking the money from the wrong pile you just go back to straighten  so that you're getting the money from the ira can't get the money from another part think it's often say you know you can't go forward you see that case of you terminations for convenience it would probably be a termination could for convenience under those cases and by the way determination convenience obviously the contractor would be limited to the contract price minus what it's already been paid in minus we're not done it would want to be a temptation for him it's why can't the government just say this is  paid for any work that it's done so i don't see how there would be any any harm to the yeah they could go in and search on their own claim under a new case but but your view is that the government could refuse to go forward the contract and raise the illegality question but the contractor can't well the the if it was a statute like it is here which a statute is sestak opinion that if it's a statute it's designed to benefit the government and not the private contractor the private contractor cannot raise the illegality issue just turning to god the first for of all i believe the godly also does strengthen the government's case as well because what good they says is that the record must show some causal link between the illegality and the contract provisions here there's no contract provision which was affected by this alleged illegality they didn't have to do any more work they didn't have to do any less work they didn't have to do work any differently they didn't get paid a different time it was just strictly where the money came from so here even assuming that the contract was illegal it didn't affect the contractor in any way because the contract remained the same nothing was different for the from the contractors perspective the contractor was treated completely the same here when the contract was funded for operations and maintenance function as if it had been paid from another source of funds  on this issue the government having certain rights but the contractor or surety not having those rights i think that's that's wrong and i think that goes to the very basic premises of  there was no consideration it's void from the from day one they they intentionally do what they've done the government does and they basically hoodwinked the contractor and then the surety out of millions of dollars but what's the evidence that the government did this on purpose well that's what would have to be presented at trial but if you look at what it was it was it was you have a new fraud claim here excuse me is the rafah crossing claim here i think there's a misrepresentation claim it potentially a fraud claim if the evidence i guess what you're saying is to us that there was a fraudulent misrepresentation here view to all prospective bidders i mean there's no there was no fraud directed intentionally it your prevail why do you have to lead for me if in fact up with the policy was violated that was meant to benefit in some way contractor the fact that the government employees or officials did tension only go out of their way to violate the statutes by structuring this for cure if we were to find as the court below  that's what we base base this upon and and there it's not just a contractor because this contractor goes bankrupt shortly after being terminated and that's part of part of the issue here also is that if there had been a on there would have been a loss at all it was only because of this whole situation with with funding the legal funding that this came about at all otherwise they never would have been bonded because they went bankrupt and didn't   in that camp and we think clearly will be able to show misrepresentation but i agree with judge shaw we we don't need that to recover it's back to the breach of contract well the question is does it give you any better right to recover than he'll agallo well i think it's more in terms of if we if we go back to the trial or the will be able to show how obvious it was how blatant it was and that they did file a you know they shouldn't they have to take these approvals for a new construction in congress usually takes a year or two so they were not only using manus funds they should have used to replace a bad air conditioner to build a whole new building but then they circumvented congress and so that's why the bedrock here is that it's a legal and a surety shouldn't have to perform and pay the money out that it normally would when the contract itself is illegal but that the other go another thing i would say is that governments council in reference to two godly there there there there is an impact here in this what i was just referring to that there never would have on it if the surety you know there was a legal contract they never would have wanted the contractor and if they would have found out you know the next couple of years before they came in to complete the work they would have denied coverage correct and i guess i would be in that one i don't think the government going to have it both ways you know what we're arguing here is the bedrock principle of galilee should apply the benefit of the surety this is not were surely just pays to perform they do that all the time this is where there was a link gallery and a should or should be a recovery when that happens generally when it's so late and obvious is what the government did in this case thank you mr wilson the case