as a matter of law there is no material question of fact and so granted summary judgment that there is no abuse determined there is a genuine issue of fact here would it have denied the summary judgment motion and then had a trial yes it would have been injured here i don't refer to it so the the way we have to look at it is whether there's a genuine issue of material fact that you raised that's right for you to possibly go forward on a claim that it was the government that materially board's decision they decided in favor of the government on that basis that they said well regardless of whether or not to correct standard was used to inspect and reject your parts and want to cost you still under the disputes clause that you referred to you still had to those letters to say that a lie and that opinion trying to remember isn't the standard something like if that government elects to make a cardinal changed through a modification to the terms of the contract under those kinds of severe changes then contractor does have some freedom to elect not to follow such a severe change but otherwise the contractor is required to keep on chugging along in light of any other any modification made that's less than some kind of cardinal changes that  back reject our parts and say well you're going to have to strip us more well there was a problem with the parts that they received or at least they reported parts that they received that were so defective that you wouldn't want to objection for a while and then you deem them to be fine but now the government was telling you for several months that there were safety problems there were defects with the initial batch you delivered and they needed to ensure that these skins were would work for there and be safe for their intended purpose so i guess in my writing recalling that it felt like to me was the contracting officer was trying to get in touch with someone from p s i was having a hard time of getting p s i i to gauge with the c e o during this time where there were all these concerns about about what p s i was delivering and then ultimately made a modification and during the course of a few months p s i never said that modification is a cardinal change to the contract i'm not going to operate under this severe you know alteration to the contract him in my understanding the story correctly and then ultimately because and finally said we're not going to follow these modifications that's when the c e o felt like ok this situation is broken and put terminated the contract that's right they did it all started with the seventy five production parts and then all the sudden we get this letter in october saying hey we've got some issues we see some problems with some of these skins and going back to judge chance questions on a pen and the expected they used but for whatever reason they chose to use it it was a higher bar it was what's the what's the evidence you have in the record that can give us some feeling that other well things standard is it's so dramatically different the board's denial of summary judgment for the government's claim so the government claimed that your client breached the contract the more in two professions and you say that somehow that preclude summary judgment on this issue where we're looking at whether the c e o abused his discretion in terminating heart of those two i don't see how those two relate when it's the government's breach of warranty claim not your breach of khan thank you very much of the metal shearing off during use being sucked into the airplane engines causing the loss of the aircraft and loss of life did they comply with the old welding standard but not comply with the new working standards no your honor in fact as we said in their brief and as the defense logistics agency relied upon in the context of the termination for default we've cited three different specifications that the government contends these parts failed to comply with because of the defective spot whales p s i a and its counsel have argued that one of those provisions that we relied upon the radiographic testing provision they said well that applies for test and these are actually production we don't think their reading of the provision is correct but it really makes no difference because it's understood as the s p c found that the other standard that we relied upon plainly states on its face that applies for production parts and the table that's appended to that specification is entitle visible external imperfections for production parts these were production part and that's standard under all three of the iterations of the specifications from the one that was referenced originally in the contract to the middle one that p s i realize a lot of the final version that deal a cited all three of those have the exact same language and say that class a weld which these were actually opened other than one item was open to a visibly glance at it and see if it was in fact appeared to be what was supposed to be in the box the rest were kept in their original boxes until they were shipped to hill air force base and at that point they were inspected and the flaws were observed so the flaws were detected immediately upon receipt of the boxes but it's also important to note here that p s a was actually paid for its production parts to the extent it's claiming any l it would only be because it didn't get to produce the remainder of the parts that were actually behind schedule and they were doing previously that never shipped and that was actually paid for these defective parts of the government had to eventually scrap and couldn't even use and again p s a as counsel acknowledged before the court this morning at no time prior to the termination for default ever raised the issue of whether the correct welding stand it was being applied or not we don't think it makes any difference because as i noted all versions of the standard had the same language saying you can't have any cracks open to the service member when you say it all versions of the standard my understanding is what we are talking about two standard there was the original standard in the contract and then there was the election by the c e o to have a different welding standard that the skins would have to be so are you saying that both those standards have essentially the same if you go to the a f four zero one drawing section three point three point five states that all the welds must be performed and in accordance with the standard there was no one it's a military standard m i l w six eight five eight if you go to that standard that standard the military standard was then replaced by a private sector standard the a m s standard and that is a standard that p s i cites even though that standard was not referenced in the contract anyway so p s i accept that the evolution from the original military standard to the civilian private sector standard even though that reference in the contract by the soviet side then that a m s private sector standard eventual was amended and replaced with a ws standard that was cited eventually and in the termination for default ideal way but all three of those stand versions of the standard contain the same language and there referenced in our brief in the table at page seventy eight and there in the appendix found in pages seven of five to seven zero six twelve seventy three to twelve seventy four and eight fifty three eight fifty four and if you look at the standard that p s a claims deal a should have been referencing that version itself so you can have a zero percent acceptance for practice visible to the surface and the undisputed record here before the board is that every one of that was the right standard or not makes no difference again because that was additional testing that confirmed that there was cracking beneath the surface but again but i guess they're arguing among their arguments it is not only the change in welding standard as i kind of significant significant change but so are all these testing requirements and so those changes are so significant that it amounted to a material breach by the government thereby relieving them of moving before the a s b ca that this material breach concept was first raised are you saying that somehow there precluded from raising that argument at the board well your honor his unit if you go down the material breach has been to the extent it applies at all and it applies with knowledge of chords case law recognizes that it can apply in certain limited circumstances in those cases where it even can apply where there actually has been a material breach by the government the case law makes clear that the contractor has to make that known to the government at the time it has to go lacked essentially to alert the government there's been a material breach we are not going to perform that is not something that occurred here  pointed to certain letters in the record as the court noted through its questions none of those actually say that p s i was alleging that the government was changing the standard or imposing a you know obligations beyond a contract that would amount to a material breach but the final communication from p s side before the termination for default was a letter that found appendix ten thirty two in which p s i finally responded to the second cure was we are going to pick and choose which parts of the contract we're going to comply with we're not going to comply with your inquiry that we submit to a new test articles are going to go ahead and then the other put up some parts that are behind schedule that we want to send and get paid for but there's nothing in any material breach case law that would support that notion that a contractor can pick and choose even if there has been a material breach and of course we do not agree that there was any material breach here because as i point out even if one were to accept the conclusion that the agency was applying a different standard on welding all the states have the same language and so it can't have been a material breach to cite one version rather than another if they say the same thing  wanted delivered no that's right the parents were not delivered and internally the defense logistics agency was analyzing the situation and prepared the termination memo you know recommending and then approving a termination for default which was then issued but that their factual determination that we should review for substantial evidence i don't understand really how that would operate in a summary judgment proceeding with for example on page thirty seven a brief and page there leave thirty nine but are you trying to say that there is no genuine issues the material fact i really wasn't sure how to take this part of the brief yes or other apologize that may have been in artfully worded but it is correct if the the board was addressing this summary judgment standard so what the the board made findings essentially that there were no one disputed or shouldn't that are noted there were no disputed questions of material fact the various points that is addressed and so it's correct there was no hearing here with with fact finding by the board it was factual determination is made based on the undisputed i