situation that he come actually anticipated indicated that in the absence of a contract clause or far provision to the contrary then the general rules of allow ability of which is a dish you hear and it's the problem the having is that that provision doesn't say what's allowable it says that  you have to look the other provisions of the contract to see what's vis a laugh and this for provision is another provision of this contract right an allowable by law or contract provision there is no law or contract provision well there's the far provision that's your problem right i mean the proof the specific da are for this or provision you're relying on you agreed at the outset of the argument that was true so why isn't that the case that this d e a r procreation incorporates the four provision and says if it's disallowed by the poor provision you can't and in implementing the clause has covered these costs consistently for decades on this contract i'm sorry i'm just not understanding what you're saying that the provision you're is the floor provision is a provision of this contract which disallows these costs under the decision in the farm provision the doesn't again the farm provision does not create a disallowance thirty one dollars to a one to does not create a disallowance it sets the ground rules the general rules of costa level ability and t com explicitly recognized that the parties could negotiate a separate clause covering reimbursement of exactly these kinds of costs i don't think you're addressing my point i'm a contract clause those costs were seen as not consistent with the terms of the contract if there were a breach of the e o clause that's correct here however the parties have provided for otherwise and in fact it was a de a we in its promulgating comments to the clause it is you that assured the contracting community that these the version of the clause that we're talking about here was promulgated and t com anticipated exactly that type of situation where the parties would provide for coverage of these rd party liability costs well that's the question as to whether this clause for exit costs allowable and certainly you have a very good argument if the d in such a way that the parties could never contract to have these types of costs treated otherwise another words come would have laid down a cost principle that no get the qualified bender's in to do this kind of challenging work they said we said we are going to take on financial risk in order to get the kinds of of settlement we have here that that would not this is less likely to to be done rather it would be almost obligatory to fight it out in court  certainly a natural reaction on the part of the company yes your honor if t come applies here that would change the a plink ability of i won thirty minutes reimbursement of rd party liability costs and in order to have s costs under tikkun reimbursed the very little likelihood of success on the merits standard would be applied and that is exactly what is it issue here i would agree that if this is where the nation pays are cases the two cases on the final judgment and you have lost that you would not be able to cover those costs no your honor i would not agree with that  managerial personal back till yes or that is the way that i one hundred and thirteen is constructed and is it explicit in that regard it talks about judgments and settlements and litigation costs and that and now they're trying to undercut or do an about face in terms of what they have covered for the better part of twenty years under exactly this clause it is  deal we need that is attempting to make a one hundred and eighty dollars degree change year in terms of what's covered by the contract but how do you reconcile this with the allegation or other provision of the contract it is there are laws that go to cost a lot of ability those are discussed for example in the abraham cakes that's discus costs for government contract purposes it's not as if the the department of energy is without remedy the department of energy has remedies under i forty three the e o clause up to many including termination precedent but t com was decided in the absence of any kind of applause like m one hundred and thirteen and specifically provided that parties could in fact make arrangements or have separate clauses that address these costs in particular and that's what we have here and that's why t com does not apply to me just ask you one other thing you said that the very little likelihood of success standard would now kick over into any kind of a lawsuit that's brought against tel or some other contractor of one of these nuclear sites but isn't that standard grows out of the boeing case and it's limited to the setting of a discrimination claim i mean other than i'm not sure that i would agree with your argument that the likelihood of very little likelihood of success argument now applies across the board to all kinds of claims other than just discrimination claims if ti come is the rule here then the very little likelihood of success on the merits standard would apply to settlements if he were the standard we urge you to just sit applies in the case of a discrimination plea doesn't apply to up to a has broadly enough to apply to any breach and in fact the underlying the dade case on which t com is predicated is not a discrimination case of on your honor it is  a collective bargaining type of case rights under a collective bargaining agreement which were incorporated into the contract so we would suggest to the court that in fact this is just the st step down the road of the roading the coverage of rd party liability and i want thirteen that deal we explicitly agreed to take on at the beginning of this the court spoke with my friend about what the impact of clause i don't want thirteen is will that is in this instance the court's determination solutia statement in that unless otherwise provider something that  let's say that there had been a provision here that explicitly permitted of course not happening but let's say it were to occur it would then be on this court to decide on legal construction of the contract in that instance but that's not so that the consequence it seems would be either that in government contracts there would be some kind of additional estimate that it was a sound business practice to settle this claim talk about the costs of litigation with every else might have happened that such a therefore straight forward sound business practice the inference that there was wrongdoing that led to the settlement and therefore it's their problem and the government and whatever cost plus basis is is home f that seems to have all sorts of complex implications for government contract relationships when you have a cost plus contract that does not seem to weigh in favor of that cabinets the scope if you can holding and the department of energy as apply to only to those contacts with respect to claims brought against contractors in that context i'm going to your question your honor  the fundamental question is did the discriminatory conduct occurred and so the very little likelihood of success standard in cases where discrimination claims are settled provides the contractor the opportunity to prove that a given claim was towards and that analysis is undertaken by the contracting officer and it is necessary in order to know whether the contractor indeed breached the contract and so i don't think that it's the inference of settlement and obviously we disagree with that interpretation based on the application of the comment that they pay returning to your question your honor they have the opportunity to prove it under with what we contend to be the contract correct construction of these contractual terms they can prove that no discrimination occurred through a showing to the contracting officer now of course an adverse judgment which judge just addressed of course would demonstrate that they did factually discriminate  they have the opportunity where they settle to prove that that would not have occurred that that judgment would not have occurred because the facts don't so food litigator to anyone on that theory the costs of litigation would be recover point two one two a one dash two in the anti discrimination provision such cost can't be recovered correct and that was the thrust i think of george dykes discussion with mr or mr knight so you're not relying simply on the language of g one in other words you're not saying that g one says it refers to costs which are otherwise unallowed will by law or is or maybe it's not hypothetical i apologise what i'm saying is you're not relying simply on g one alone in the absence of the the general c allowable provision she wouldn't gee one dollar wouldn't be enough for you because it would just say otherwise not allowable otherwise an allowable by the provisions of the contract potentially your honor i am having perhaps it's a bit far afield but would in this case therefore have been appropriate in connection with a reimbursement to inquire into the background of the claim and as to whether there was foundation i think or would we will accept that it's often prudent to settle even and not well supported claim rather than litigated so claims certainly those are are central here or they are important as to whether the claims might be frivolous war well founded whichever may be or somewhere in the middle there is an you i would take issue with my friend's last statement buchtel presented those at the court of federal claims as the what is the correct legal standard to apply with respect to these costs and the correct legal reproduced and in full it says except as provided in subway or graph g an age or specifically does disallowed elsewhere in the contract the contractor shall be reimbursed for contractor shall not be reimbursed for liabilities including judgments litigation costs so on which are otherwise on allowable by law or the provisions of this contract a one does not say that any costs are on allowable it is it lays out the ford general five dollars general parameters that sets the structure for legal lost i'm sorry but sets a structure for allow ability of contract cost thirty one to a twelve does not render any particular cost an allowable it is t com reading the e clause through combining it with thirty one to a one to a four that then says costs related to a breach of a contract clause are  allowable so that the the crux of this case is does i one hundred and thirteen control or does the consistent statement by the department of energy the consistent reimbursement or for twenty years of exactly these kinds of costs they met in the papers that that's what they've done but that's how they've interpreted this clause does which did not the that's what the promulgated in comments indicated and now what the department of energy is trying to do is to got that coverage reversed course on what it was that they promised to do to get a discrimination claim i'm sorry as to in other words has the department of energy taken the position with respect to a non discrimination claim that was settled that the costs there is language and the predicate of being dade a labor case there is certainly ample room for the department of energy to push this further down the slippery slope but the point here is he promulgated this regulation and said these are normal business risks that absent the managerial misconduct in n h we will cover and now they are trying to get away get away with not reimbursing the very costs that they have reimbursed and have said that they would cover with no change in contract clause they could change the contract clause and indeed as indicated in our last brief they are doing just that at the savannah river project they have changed the contract clause to explicitly carve out discrimination cost as not being reimbursable that's not the situation here at hanford and so these costs we would submit are in fact  always been allowable the other thing that the department of energy could do is asked to negotiate a modification to the contract which is something that the parties didn't abraham with regard to environmental cos