trail court is going to recognize the difference between having a contract on one hand and have it in the old contract and the other the cursor to what transpired in the trial court demonstrate that  chose different in effect they chose different products within the group when it was the tank they started with thirty nine thousand so that means pretty much so they and chance and all fa now you're saying they're specifically choosing individual fates it's and not all of them are you saying they're for mine the fact that they chose someone not the others they increased the ones that  you it's seems to me that what you're saying is that he's not entitled to the contingency payments because we switched to a different method of payment that he was going to get more money than he would have kathy you know  to an explanation there is to whether it is a change an essential turn or it's his and he would say an explanation the essential term that's already the contract and page nine talks about five percent for example the five percent savings is as determined and that was a very conservative projection because obviously until you get into the actual and that costs come out and therefore in mulling this for the percentage on those fine instead of keeping it at the twenty five yes and the record shows that's not the case notably your h y never presented any sort of alternative analysis or damages calculation a little bit savings occurred their own experts said it could be as much as five hundred thousand he had no idea they presented no evidence and that is that was table here this is page c one three eight two in the record in a table says for computers area is a first expense area the target spend covered by dollars one point four million low in came in and as is common in these complex multi year consulting arrangements you have to have continual communications and it's going to be all communications and the encounter provider for the admitted that they signed often that historic database so for each category it was done in the little average cases so it wasn't skewed towards the biggest savings percentage but the lower volume  projection of five percent and you spend fourteen point five million dollars and annual spending accounts payable spend and with the savings percentage of five percent times accounts payable spend and then we get the it's just algebra it's the same it counts to be able to do the same supplier contracts assume it's ten million dollars under the new rate just placing total but maybe your volume goes up you buy more staples maybe  volume goes down that ten million dollars is total volume times the new unit concert or the context so how much is you actually said you got it compared to some historical costs and if we know for each category and they in the new regime and new contracts is a million dollars and printing but that's a three percent discount as mr larry mr k testified they retake that million dollars and gross it up saying that under the old regime if in is the same number it's still in compassing year cause the historical year cost of ten cents minus the new contract price of seven cents that's a thirty percent savings percent now  more white paper than color paper so many meals for them to run which is the image ok i'll take some account the actual volume of the white paper and the savings percentage which is relatively lower for the more common items at one of the operating subsidiaries and mr mckay testified that they did respond to mr berger's comments and he testified that he met with parent in the corporate office because throughout the time period w project champion in each operating subsidiary and one of them was mr berger himself signed off in that historic database we interviewed them we question them about what they're buying in raleigh and what their plans were for the future to accommodate that and that was signed off on by c a a there's also tells me on the record that at this point in time in late two thousand and two when the contingency fee payments were due if you wait so long terms changed which are now the form it was in detail all they did was reconcile the actual results and they we confirmed that the projection projected savings percentages guess what was the one percent differential from the extensions the only alleged difference of terms on page nine of the defendant's reply brief in that terry has to do with actual savings percentages and it's just semantics it's just algebra the it's a don't change in the formula the contract does jail does talk about for example if the owner of the store place a nine cents per unit and then the contract place is seven cents per unit that's a two cents differential than the savings would be determined by multiplying by the volume under the new contract that's exactly what the formula is on page nine of the jr that's exactly the savings percentage choose which products you again then say the one thing is you have the formula and then it says it's a basket well the question it is one part of the basket ye they some of the selling did not from those contractors me then they created their own price pricing th pantry right there is a person where they didn't comply with the contract but it they never came back and said we're buying something entirely different so you need to repipe place the basket and the beauty about the  brief that to with formulas the michigan avenue national bank of chicago versus athens case there was an issue about what was included in gross sales so that was litigated there was a formula so once that percentages and how much they were complying and so there's no studio they would even argue that the finding to seal breached the contract by not calculating the savings using its own data at the time during the remaining seven month periods for the contingency fee peak periods over the two year period i calculated they breached the contract and we didn't bring a separate story some claim but they pretty clear that if you control performance and and prevent it from happening you can't take advantage of it and it's a prima facia presumption that they never came back with any evidence to show anything to the contr there's no expert they had nothing we didn't have some details form the time that the work was actually prefer and we use what we could there we got a little bit of accounts payable sunday done which was plugged into but they did not have the data to recreate so to speak a try had actually destroyed the  breached by not calculating the savings not preserving the records and not paying the contingency fees they got a benefit we submitted the evidence of calculating based on available data and using the same formula in the written contract