claims in the case of oks cascade company for five states on four discrete points the first point is with regard to in essence pre contract costs that okays expended k seven to meet the new requirements of the contract previously the contract had had a sixty five point requirement that increase that that amount was increased one hundred points for themselves and trying to understand something from know five or are you saying that that category is those that those changes were made post contract and were dictated by contract in other words in the nineteen days during which the contract was in place or saying that those changes were made then no you ok so these are also pre contract these are all pre contract that's correct what's the difference between the first and second points you raise well i think when we talk about a kitchen unit we're talking not about one piece of equipment we're talking about several different pieces of equipment so the first category relates to three specific items that relates to hand washing stations that were required in the two thousand and four solicitation that had not been required previously the second requirement deals with how you serve coffee and how to be an enclosed structure category and your other category of pre contact well no not really any legal distinction we're picking that we're suggesting to the court that these could all be pre contract costs under precedents of the court of federal claims and also this court that these are costs could should have been recoverable under the act of applicable terminations convenience products in the contract and the far regulations governing the terminations for convenience specifically for forty nine point two one which says that you don't really have to look at discrete line items you can make the settlement that's just been fair with the contractor to enable the contractor to recover its cost plus the precedents of this court specifically the jacobs engineering case and the nikon corporation case both cases of which supporting the contractor and his attempts to recover from an issue for convenience that prior to that time had not been recorded i think and had not been  nikon it was for unabsorbed overhead and this court said well if you can come up with a different allocation method you can certainly recover that were all of these costs incurred as a result of determination or where they incurred to be more competitive well i think it might be a kind of a dual situation your honor the way that the contract works is these are very long lead time items in order to build  park or ten handwashing stations you don't just go down to lowe's and bought a purchase the parts and slab but they get it the testimony at trial shows that we had to buy special prayers from an outfit in spokane washington shipped those to our location outside of seattle and then make the modifications to those trailers but in order to things hard done in order to be competitive they're done that in order to be competitive but they're also done to be compliance with the requirements of solicitation for that the if you take a look at what the solicitation of part of what what what the what the reasonable expectation of a reasonable contractor and reading that so station was the reasonable expectation of a contractor in reading that solicitation was not that i'm going to done you had no guarantee that you're going to get the contract right well other than the fact that we've been doing this work for thirty one consecutive years your honor and that we had bid for five or six contracts along the way we had also that okays and also been the most successful sometimes like to comment that to my client when we're talking about this case that this is the facts of this case are almost like they were devised by some devious law school professor you know in the sense that how could how when you're dealing with a government how would you but the choice is either to comply or to get out of the business after thirty one years the choice is not to do all that work perform for the majority of the two thousand and four season under the emergency equipment rental agreement which had a completely different requirement for the equipment requirements different than the solicitation that basically there's one sentence in the emergency equipment rental agreement and that's a set your company has to be in good working order plus the way th what your injury given that you made more money under the e r a than you would have under the original cause well we think that that actually is kind of a red herring your honor in terms of we made more money under the e r a the e r a is is something that is normally short term effect the very name of the document it's an emergency equipment rental agreement and we don't know what the emergency was here in fact the very first emergency equipment rental agreement that was provided to us basically said that we have to give you this document because we the government are late in evaluating the offers but nonetheless you had the benefit of that contract and and it was quite rock well i think to borrow a phrase from from the earlier argument  mcintyre was the vice president the corporation they had never the government had never not exercised an option for thirty one years that the former howard sonic said it had been with the company the government had never not exercised an option under seven contracts so i think that there is a certain level of expectation that's created by that you said at the outset you were going to raise four categories and we talked about to the other two are they moving the kitchens around from  that they could be inspected by the government and then the final category are the settlement expenses the court federer claims fields award anything to the appellant in terms of settlement expenses that  were incurred by the contractor in attempting to reach a terminations for convenience settlement how far do you go on this is your position that you're entitled to recoup settlement expenses were guard lists of whether you get anything in settlement even if  most of the settlement with the settlement costs that a piece of it was not so i mean that they didn't really go quite as far as you're saying well and i don't think the very sales corporation cited by the government goes as far as the government said the government you know this court the predecessor to this court absolutely rejected the payment of settlement expenses when the contractor didn't recover anything in information for convenience of the proposal in that case it just was approved problem more than  a decision by this court that there was absolutely no entitle michael and there's nothing you know your honor i think what you have to do is you kind of have to take a look once again you can't just take the steps that you have to take the whole video of the situation you know you don't know until you actually get to trial and especially with four other contractors the only four other contractors i might add that submit a termination for convenience some proposals also settle their case with the government and as a matter of fact one of the contractors stewart's catering firefighter catering had identical line items to the line items that were asking this court to overturn the court or federal plans on the stewart's headline items for  expenses that they did knowing that for other contractors that submitted terminations for convenience on a proposal so the government also the see something in connection with their plan and in one case it was three hundred thousand dollars on a seven hundred  twenty one thousand dollars fine because they have different kinds of documentation yada well the documentation really again we think that that's kind of a red herring in this case the documentation may not have been presented to the contracting officer right from the very but there was a letter that was sent to the contracting officer which specifically addressed all the things that she had asked for in her letter the chip sent to the contractor earlier and it's not a fact if you take a look at the letter she had actually said that the contractor should be removing some items from his determination for convenience of the proposal rather that she never requested additional information she said you should take stuff i do your proposal would you like to reserve the balance of your time yes your honor thank you very good factual matter is that okays reliance upon these other contractors is critically flocke it does ok the cascade failed to establish that it is simply situated to those contractors so perhaps a contractors did seek similar things perhaps they had similar replacement matter of law then paying these others regardless of their whether they're similarly situated for those same kinds of activities which would seem to be inconsistent with that would it not perhaps a consistent but what is certain is that nothing that one contracting officer does with another contractor can affect united states obligations toward this contractor but that's exactly what this contractor claim is that it doesn't actually serve legal matter much that it's actually inside of these cars but it's as if that's what other people got money so therefore we should too but are you saying that the government is free to act discriminatorily one contractor to another and simply  take positions with respect to some contractors that the that are inconsistent with positions they take with respect to others in the government free to do that free to do  that it's difficult think that yes you know why is that so difficult because we get what happens when one contractor just can't make the government liable to another contract that's particularly true in all the government who can act in an arbitrary manner with respect to any particular party so it doesn't that suggest if the government is acting one way it was respect to some contractors in a different way with respect to others that the actions that they take with regard to the those amounts were what the contracts were that the costs were what have a contract or what it after but the point here and i stick by this is that it doesn't matter for this contractor arbitrary or not nothing the government could have done someone else to somehow entitled this contract determination for the convenience near thing that that the government could give money to somebody else another contractor that the government would now say they're not they weren't really legally entitled to but we just decided to give them money and now and then turn around and say that we're going to you know enforce the legal rights need to be a separate contract i'm not saying that happened here but yes john i'm saying that's true is that this idea that the government needs and states with one contractor has to use a public system and compensate every other contractor there's no basis well isn't the underlying current here that that that ok the cascade believe that that the government actually retaliated against them because of its involvement with personnel at an earlier point in time and complaints about government personality earlier points in time the my thanks john i mean it's difficult for that given that this contract an officer who did this not familiar testified at trial he was called know no indication that this contract not sir had any animosity whatsoever toward the case gasket so i think what they read here is something interesting when the contract is terminated for convenience after such a very brief period of time and then subsequently the contract is is is posted for small businesses only which means that okays can skate is no longer even eligible to bi that certainly suggests that the government was not happy with ok scats case i'm not suggesting that that's necessarily proves some basis to the complaint but it there was there is tracks first is that there was no injury to be clear and this is undisputed this contractor made one hundred sixty extra thousand dollars during two thousand and four than it would have made had there been no terminations this contract  is that the trial court's factual finding supported by the record that all of the calculations here are plainly unsubstantiated and liable and that okays quote failed to meet its burden for proof burden of proof for any of the damages that it se and that's true and there's no real argument as to why that was an error there was no testimony in terms of there were certainly some documents in the evidence there was no testimony about that these documents were real but they were authentic and they were incurred first certain costs kurt a certain kind of car to do anything for specific trailer you know that there's a government always require expert testimony to support business records no your honor and the government to be clear here never made the argument below because there is no expert testimony that can prevail what the position was along with the trial court found here is that there is no evidence supporting these numbers this being real fact or expert so there is no fact in this looking at these record s saying i authorize expenditure i know these costs were incurred for trailing number six for and washington as well as mr reed's position visiting the company he had done work for them as an outside independent individual in certain cases i issue of the settlement costs there are several problems aside from those already mentioned so this idea of not having had substantiated numbers and having suffered no injury all of that applies to most of us and the hundred sixty thousand dollars which would need to apply undisputed here that this contractor made one hundred fifty thousand extra dollars during this contract hundred six thousand dollars for which they did work but more than they would have yes but more than they would have made during that year had to perform the reach an agreement with the government that's that's those are different kinds of calculations it is your honor but i see it and so no i mean are there cases this general proposition i think that also applies to the same view you've received extra money  or was that just happened it's because i mean they could have made half the amount or the fact that they made a hundred and some of thousand dollars was not not a result least a knowledge that others had submitted settlement proposals and for seeking the same types of recovery and some had already received money you know your i i don't know that's true i was trying to counsel for this and did i don't remember there being any testimony that the person submitting this had knowledge other people were being given money at the time it could very well occur by actually doing that i'm sure but as a matter of chronology that's true thank you very much proposals and had recovered on the very same types of items that okays was requesting i'd refer the panels to the court specifically to appendix page two of five to see a schedule h there from stewards firefighting food catering symptom struction for units six thousand eight hundred twenty three dollars and seventy four cents approximating the amount that okays is requesting for its sink units so as a matter of chronology it is safe for contractor with regard to i believe it was your point judge lynn where you spoke about the small business set aside and i think mr shunk may have misspoke to the court there is in that in the appendix in the record evidence that the terminations for convenience was not because this solicitation is two thousand or so as a patient should have been set aside as a small business administration or should have been a site for small businesses there was testimony that there was a number of protests that had been submitted in connection with this particular set of solicitation and as a result of those the department made the decision to go ahead and just terminate all contracts for convenience and resort back to the e r a finding with regard to mr shanks point that will cave has been compensated mightily in terms of the e r a i think that once again we have to kind of take a look at the continuum aspect of this case versus taking a look at just a snapshot in terms of yes maybe for this particular period of time oks was compensated a bit more than it would have been had its contract rates been applied for that particular ferry but i have two responses that number two thousand and four season several of them came to me well we're getting to is to what extent where the r h linked in any way to the contract that was terminated the e r a's were the vehicle that government used to procure the services because it couldn't prepare them by means of a contract because it was late it said in the first we are a it was late in conducting the solicitation for two thousand and four then afterwards they still needed the services after the term and after the contract was suspended and ultimately terminated they still needed the services in september october and november and they didn't have a vehicle since they terminated the contract so they went back to the legend the only one that got the no no your hon everybody was in the same boat as you are is up until july seventh which is when all the contracts awarded a few days later i think it's july sixteenth the contracts were suspended and then august eighteenth was i believe august eighth or eighteen percent data from the nation but any final