and may have please the court this is bryant baines arguing for the appellant advance power solutions your honor the issues were the issue there are two issues that we're here to ask the court to decide remains and especially where is here the government claimed that the that the claim that it was unsubstantiated was wrong and that it was and it disputed that it was being strong is it i case dictate that the challenge practice remain for several reasons one the voluntary association doctrine applies here and the board or the government did not unequivocally withdraw the cl and say that it would not bring in again as has the board had required prior cases secondly the when you look at the motion for summary judgment and then the government issues of disputed fact that it raise below we stated are we cited to the st or the amended contracting officers final decision that accepted the indirect rates and and said that there should have been any issue of disputed fact about that amended c o f the established that the m d a contract claims and c e o of the quote were unsubstantiated and being withdrawn so they actually disputed both things but what they were on timing of that response  was was at was at around the same time as the motion just to dismiss was being briefed and decided so these were these were contemporaneous motions they were being argued and briefed at the same time the other issue your honor is that most problematic is that it says if the appeal is withdrawn or dismissed by the s p ca without decision the contractor agrees to pay the government the debt so let me and let him didn't in the court find that that deferment agreement number you know we st we st raised it to the government directly to the contracting officer directly and then in our in our briefing on the motion on the motion to dismiss we raised this issue and that's at page  con the contracting officer did not respond to it and then in the briefing the government just continued and said in there in response to it that it was beneficial somehow they did not argue that it was a mistake and they did not argue any of the other factors in fact that's the most critical point here on in our in our in our initial in our briefing and footnote one on page twenty three dollars we raised an issue of the the government in this case argues no less than five thinks that it did not argue or raise below and under the chin or a doctor in the government cannot defend the case on a basis that it did not raise before the administrative or st of all on the on the motion to dismiss there are at least three things that the government didn't raise below it did not raise that the voluntary association doctrine does not apply to the board in fact a disputed as we as i pointed out  while your honor's the under the under the volunteer if the voluntary association doctrine applies to any challenge conduct and in this case if the government is able to willy nilly just you know withdraw the claim or reinstate or in this case with a deferment agreement have us have a have a contractor acknowledge it again even after it's been withdrawn that a person problem isn't the voluntary doctrine directed to as you said conduct is to enjoying particular behavior by nature and see your reaction this being contemplated by governmental body but this is actually apply in situations as well so the volunteers of station doctrine applies to any challenge account here there was a there was a final decision that was incorrect and upset unsubstantiated and we had challenged it on motion for summary judgment the board didn't lose to have resolution on the merits so you could seek fees right and you seem to completely reject that idea well we're not arguing that here your honor because it's not necessary to get to that point as  that what is your real interest here the real interest is finality and consistent interpretation of the of the contract disputes that the court applies the voluntary association doctrine at the federal circuit and the government has argued for some reason that the voluntary association bought shouldn't apply to the board but but you want to point out of the because you're afraid some sort of action will occur in the future that the government will come back with for those of the funds correct well yes your honor that's going to be or you're afraid that the government's going to come back after you sometime in the future well and that's and that is exactly why the burden is on the government to prove that it w but but isn't that speculative i mean we don't know if that's the case or not it's not but it's but chooses courts wait should the courts wait to rule on this particular issue when in fact the government does come back after as it is not only about whether the claim was withdrawn but whether it is actually fully and fully it whether it is final and whether it is life unlikely to recur that is the government's burden of proof that's what makes the deferment agreement in this context so mysterious on the government's refusal to change it because you know it's when you had both they had two opportunities to say that the claim was withdrawn and it was unequivocally what what is it that you want the government to say that they will then they will never bring this claim against you in the future yes your honor that was what that was what was required in the prior cases before the board when they were applying the voluntary association dr obviously they require the government to honor there's the government has is has waffled back and forth on this and has you know and they have had full opportunities to basically say that we unequivocally withdraw and they've had an opportunity to say that our prior claim was unsubstantiated and didn't so we have an active dispute question what if what if the government was to say that now i don't think it will i don't think it would work now i think now i think that's a disingenuous and it's not appropriate at this stage to start adding facts so so we have a situation where the board has obviously found a typo based on the government tells you today we're not going to come after you in the future doesn't that isn't the case or why your honor where it's not over until the summary judgment is and because we have asked for two things we've asked for  we've asked for the more the court safire's no controversy anymore is destroyed or there's challenge conduct the the court is the court has certainly or the board was certainly able to decide that they  the the government claim was unsubstantiated and that the costs that were previously challenge as not reasonable alex on allowable government says today we're not going to pursue you in the future doesn't that this to you thank you matt please the court would like to just a few points just just the st point about whether or not this claim had been withdrawn  opposing counsel talked about earlier briefing but what was clear when the briefing was concluded was that both parties agreed that  the government claims the three hundred and fifty thousand dollars that had been withdrawn by the nd contracting office is final decision and so we think that without that claim then there's no there's no statutory well yes it's it's it's a legal binding decision by the contract you know that you're withdrawing now there was a little bit of confusion early on whether or not  unequivocal now there seems to be it would appear that the van patter of arguing that there has to be something else other than an unequivocal clear withdrawal of the claim and that there needs to be some sort of guarantee promise that in the future the crane can't be brought again but somehow a similar cooling based upon agreement or proposed deferment agreement which seemed to basically back away from all the withdraw how can we say that that satisfy well a couple of points that you know no one and there's been no  couple of points on that one and there's no case that there is no claim here that there was some sort of a bad faith bringing of this claim i mean those are allegations that are being made here but they had originally back and just doesn't apply and i'm pointing out those exceptions to say there would still be a case or controversy and that's why there are exceptions to the distraction well i think to some extent you know that that may be the case but it's been the situation of wrongful conduct and not under a statutory framework about bringing a claim which the bringing of a claim where it's not  there's no intention that the government would bring a claim in the future i mean that's a fair representation i mean we're also talking about more years past when this which all happened but just to be clear d you know even if you look in our brief so we don't think we ever need to get to the point of a promise or not because there needs to be a claim for jurisdiction and that cleena been withdrawn and  and it looked at the purpose of it and as a factual matter it considered it and just found that it was an it was an error and if you look at that i mean what that really is doing is providing protection for contracted because what it's saying is they're not going to go out and collect that amount of money and whether or not that needed to be a different amount is you know can be considered an error but it's certainly not evidence that  you know there was there was an appeal and within a relatively short period of time within five months you know the parties that executed a couple of days to discuss settlement and the parties had that was dealing with a different factual scenario and that's certainly not that's so and then not the rule that the board has been following the cases like you are at the belfry sort of the case  other cases my point though is that there's nothing left to base the summary judgment summary judgment motion is gone and so the government has accepted the require a pretty unequivocal showing that the claim could not be revived and i hear what you're saying is well but the board can apply case or controversy law to itself and yet not apply the moon it's doctrine as the supreme court and this court have always articulated it well i think that that is correct and we explain the application of the law  argument that the claims of the government made here were always on substantiated whether it be through bad faith or just simply a breach of the contract itself or in a mr misinterpretation of the cost accounting standards and the applicable cost principle so the purpose of we would we would suggest that the purpose of this court is to ensure the the uniformity of of decisions under the contract disputes act and to ensure the contracting officers perform their duties diligently and that they that they ensure that these things are substantiated and when you know before we even get into litigation the problem here is that the contract nasr did not do that and we got into when we got into litigation the contracting officer alternately looked at the same evidence for and then then only then after recommendations from counsel and lots of argument and litigation that went  you know i agree we agree with judge o'malley that once you apply moving us doctrines we're doctrines like this that this is work under the contract disputes act that they should have the be applied uniformly and with all elements the board has certainly done that since the cases and it they've done that in the case of the government sites including quinta where they made the government promise but they wouldn't bring it again or the other cases where the parties just simply didn't briefs and ask that i know the board the court has already already made believe that it does not have the power to enter summary judgment but on that last point i would just suggest that the government has