two thousand and twelve five thousand and one and we will see l in twenty incorporated against the united states a contractor or small business contractor in a very difficult time in our nation's history was attempting to perform on a security guard contract in the state of michigan and  disturbs me is on page fifty six of the opening through n c l and twenty says that mr you know quote isn't that that's a serious accusation it is the support of the record is that mr no actually stated that it was a part of his normal process to review contracts as like this however we also have in the is that at a minimum that is a accurate reflection of how this review came about and that it didn't was necessarily just make you doing this review as a part of his normal course of business but in fact he was instructed theoretically possible they were both right sure that mr pena certainly knew especially given the context of what was going on at that time nine eleven happened and they had some concerns at that time already about this contractor and we believe that this was a special this was done over the weekend september fifteenth sixteenth that's all that was a week and that was done so we find it not quite credible that it wouldn't recall that it was in fact instructed to take a look at this it was a memo that was sent an e mail that said take a look at this contractor and in fact it subsequently put together a memo that talked about contract deficiencies and he was also asked pacifically to take a look whether or not this work was properly made and so because all of that suggests to us that we can then say such what testimony that oh no i just did this as a result of my normal review we don't believe that sort of part of the normal review and we believe in knew that this was part of his normal review what we feel that the lower court error for several reasons one point i think in a global perspective the local herd failed to look at all of these actions and contacts this is a this is a contract components to this contract was the him oh you pursuant to which it was granted and that required that if there was any if there was any decision to or actually terminate the contract that the did the fact that there were the i just reports really really clear and we think is very powerful with respect to the options that the g s a had with respect to the disparate treatment and although certainly they gave explanations that their contractors are having problems getting gun permits that's not a surprise and so they actually say they actually communicate with their forced a contractor that they're maybe we understand it's new for new posts you may not be able to cure all the weapons permits necessarily all the weapons from necessary and then in fact all of your guards especially new locations may not conform to g s a guard to requirements and big so what we also  just saying we'll be able to do this will be able to do this on time yes if i can let me step back a little bit because i think that's a lot of that where we're going now i feel part of the the lower court's analysis if you get too far in the weeds and ask the question was any particular decision reasonable was any particular decision motivated by bad faith and let's see if we can find that bad faith in any particular decision you won't necessarily  find and so to us but there really is when you bubble up a bit and look at the entire ministration of this contract this is where you actually feel like going out at a impressionist piece of art and standing two inches away we don't see what's going if you step back and so is it fair to say that the g s a had reasonable concerns about this contractor's ability to perform certain things but there are many avenues through which they could have availed themselves long time and it seems crystal clear again from the beginning from the pummelled from the prosecution or the response to the mit the response the mit was given and continues to record to misrepresent and misunderstand the fire regulations i just reported you read basically laid waste to their claims with respect to fire regulations they applied the wrong fire regulation they read it wrong quite frankly the one that they did apply and they didn't apply the one that they should have applied mathematics not only do they say when you're in you're in my bit you're in maybe it's not serious face but they said by the way if you don't verify that did you face losing your bit you face losing this contract and that kind of response looking being on the hook for about forty seven thousand dollars a startup well once you say that well the what we're on the hook for is that that big shot will change that's a come six it comes many years after six years after the original tea party but what's also very important that the lower court never just that that they somehow go away when it's six years later morphed into a termination for convenience because they just found out that it's going to cost more seven thousand others our answer is no that bad faith from the original tea party and there's bad faith all over that follows through to the teeth proceed in the lower court never consider that so the two pieces of evidence first of the lower court never considered when looking at the question about the lower court look at the issue of the notice to the s b a under that under the your argument that the change from terminating for default to terminate your for convenience would constitute bad things now a no we don't but we certainly feel that subset so my argument here argument is looking at the terminations for convenience if we're saying that absolutely it would it is reasonable and should have been asked whether or not there was bad faith involved in the original terminations were default and the question is whether or not that bad and this was not necessary and they did it on the last in the last minute and they gave no notice to the s b a base when the s b a tried to intervene as you would have seen from the i g report they basically told her put it in writing these people were bullies from the beginning they had no good faith with respect to this contractor and only when you bubble out and don't look at everything in silence but look at the entire pattern of conduct is it crystal clear we believe that this that the it's replete with bad day mr ailes your into your  because you have to go back and put yourself in the shoes of the contracting officer it's easy to second guess and say that they were treated different people were treated different things like that the three weeks after the attack of nine eleven one week after a federal marshal was murdered in a federal building and the carnage was only stopped the just someone was able to return fire the contracting officer on friday evening september twenty ninth was facing the decision do i go home tonight hoping that n c l in twenty will be able to perform on monday october first order we terminate this contract or  had specifically told the contracting officer that they would not perform because unless it was a long term extension once again you have to remember the circumstances this was right after nine eleven when security guard firms who had licenses and permits and more importantly weapons in ammo were premium and they had a major that already there were some of the best describe an inspector general report happened before september twentieth when that when the officer was shot and so  years well in this case though the standard for terminations for the fed can be into that to be of interest to government and in this case they determined that after n c l and twenty submitted a certified claim several years after the fact and provided evidence that in fact they had provoked started some work towards performing upon the contractors you have to remember as mr dobbs testified it wasn't until the dca audit came in and that the government was put on notice that in fact and so much twenty and done anything else because at the time of the termination party but he also didn't know that yet now when i have an i g report that was written after the fact and said you know what you should have given that your notice and you know what a year after the fact maybe i could have extended if i'd only known that you know it insolent when it came forward and said give us two months that's all we i didn't have to lack of the fact that mr dobbs testified that the reason he didn't do it because it was the end of the good friday when he terminated he did not apply the s b a first thing that monday morning to say that in fact that they were going to do a terminations and they were going to give a any help what us know if you're having trouble getting your licenses or dealing with the state agencies please contact us but in the end of one of them the entity of the the contracting officer in this case had valid reasons for being concerned th notion from the case law in the series when exactly is understood by bad faith in this setting and then faith is one of those terms that gets a different meaning depending on iran setting what is it your understanding of because of the a breach of contract the contracting officer the government actually entered into the contract knowing it wasn't going to perform and that's not the case here because in this case we wanted to perform we would have loved to have been stealing twenty performed but they just didn't tell us where that where one could make or would dance and that's all we wanted to have so that's why we terminated because mr dobbs primary mission was to make sure on one october there was armed security guards in those federal buildings and that's why i took that action but in this case the record doesn't indicate that there would be bad let's talk about the fact that there has to be some type of a desire to preserve the competition self worth and seek competition contract and act like you have to there has to be a they use the term change in circumstances in some cases for instance we found a better phrase for me but that goes to why that's proper for the teacher see maybe if there was not a change in circumstance or we just decided that we were going to terminate but even the recent case law seems to support that the government can do that as long as there's a proper basis for well that's the that's the whole question for proper what constitutes proper basis i mean what you say that there is there is a proper basis you can pretty much that most everything is ok if you just called prop but  ensuring that a green bay reds maybe not have had a crowd that would be a that would be a not a proper terminations but we have to remember that there is a presumption that the government officials are not going to go out and do something like that and moreover in this case why it counsels against any bad because because there was a legal review there was console with their supervisors you have to have a tremendous conspiracy at least under these facts to just to show that in fact that and seal and twenty that the government was conspiring to to ensure that n c l twenty wouldn't get this contract because the bottom line is to any time there's a terminations if there is for improper pieces for the terminations but one proper basis then the proper basis still stands in the government is entitled to terminate that contract but in this case i think the record overall shows that the primary poster that's true for terminations a default is a true for terminating a convenience for convenience i don't know if the k i'm not aware that the case law would discriminate that way i the problems with the conference it was usually you had that to notice where there could least be a dialogue with the with the contractor but the problem in this case was what was it just wasn't practicable to get extra notice because if they gave that your notice on one october there was no guarantee there was going to be guards and court actually attended his deposition and actually questioned mr panetta and sat right next to him and stared at him throughout the whole deposition so if there was any evidence of some type of perjury any animist you would think that the trial board with her experience  supervisor specifically to testify that one of the reasons why you got a bad officials to report one time was he did too much review he spent forty five days where do you want to contract and sort of maybe do some other type of action but there was no animists he was just a studious contracting officer for a bottle i want to use thank you the house of g s a for something very interesting and that was that if there is a proper basis for for convenience then say we actually think that's one of the mistakes that was made underneath us is we actually believe both of those can co exist simultaneously that we fully concede that there were things going on with respect to nine eleven that reasonably made them worry we're not going to say that there weren't but there were options and so the question isn't ultimately simply was was insulin twenty going to perform the question is also but what action did the g s a take they took an action which was extraordinarily punitive and it was not necessary they could have actually terminated for convenience at any time they could have terminated for very very different and so my point here is that there were circumstances that were happening but they had options and options with respect to extending they had options with what they had been making accommodations for the other contractors at the  then again when you put it in light of all the other evidence how they handled it i might be misreading the quite frankly the bullying behavior with respect to the mit the failure to give notice to the s b a which was necessary and of the mill you sold that the s b a could intervene and try and make this contract still work that's the purpose there and when they short circuited that process by telling by telling a pilot at the last possible minute oh by the way a twenty four hours they basically knowingly let these people know ability whatsoever to cure and that is what we're saying is absolute evidence of bad faith and for that reason we would ask you to reverse the lower court and remanded for damages by place thank you thank you take both counsel the cases