made it to the court i'm carolyn callaway i represent was going to a construction company there are two issues in this case the first is whether the board actually had jurisdiction over the government's affirmative defense of fraud or whether would be getting the contract price reduced i think the way to look at it though is that if you could have achieved the same result by going to see for yourself if you could have gone from a plane  the amount of him for a cost by three million dollars then it becomes a claim or if you are asking for an adjustment in terms like ignoring the dispute because the determination calls that governments can't go to the border because it didn't present what it's now are doing to the contracting officer and what feels like america's contention which is that the corporate far permission specifies the mandatory steps for the government to take to terminate and the mandatory remedies if there is extermination based on based in my mind in the first instance it should the board even accepted this affirmative defense for a decision would be the jurisdictional argument the second argument is assuming that they had contract it did not and it was not under the federal acquisition regulation it was accosting first of all contracted it just really is not at all like this context of evidence or in the basic question which was does this prior question of what happens then and if the if the party who was the second breach are out and does not discontinue the contract then they have to wait their right to discontinue and can seek damages but they can't actually at that point just they can't just walk away they can seek them which is they may be awarded damages services that were performing after it learned of the fraud or was the fraud discovered after the contract was essentially done and these invoices are essentially cleanup invoices to recover various is that that's probably correct but if i can just explain what that and what happened here so they were billing during that period up through whatever it was in two thousand and ten for actual work performed at some time prior i think it was two the work on which because these are pueblos laguna tax invoices for the most part they would have covered the entire period from two thousand and five to two thousand and ten the work done in that period they were just because  government had refused to pay them earlier they had to be filled in the government finally said yes they can build it there was however one more in four days after the fourteen voices that was board and make this affirmative defense without going to the contracting of contractors then i think the board would you take up our summary judgment motion the government has many many tools to deal with fraud the anti kickback act which addresses this very issue again floyd taking kickbacks from sub contractors is the way that the government has to recover  i think this is covered in my brief but the anti kickback act tries to allocate the risk of the kids fast between the two parties they terminated the contract even for default look at it would be entitled to its incurred costs plus it's reasonable portion of fee under the terms of the contract the contract is not declared for is brought about fourteen which largely include the tax there is numerous vouchers submitted to the government and paid by the government and the finding first if the government was required by the inclusion of fifty two point two four nine six the far provision to follow the procedure to terminate the contract ss under the far provision of certain certain kinds of fraud related defenses to amounts that they are claiming that were infected by fraud no i during the performance of the contract and you have a finding by the board that that conduct that fraudulent conduct the kickbacks the inflated vouchers that that conduct is imputed to the corporation so this is not a case where the board itself would have to make a finding of fraud it's not a case where the contracting officer would have to address i think i get all of that card of what was a little bit troubling at least to me as i understood it or misunderstood any answers that ms counter weight gave to a question that judge hughes asked i took her position to be that if you follow the terminations clause these amounts have to be paid regardless of fraud that that's a fairly startling position right i think that's their position but i think you disagree with that yes we do so so fraudulently claimed amounts i'm not going to be paid was only one piece of which they were to increase the government's rights they were not to cut back on the government's rights and the force was there is this is this far cause of limited to kick back the i thought it covers the certainly no evidence that there was any work going on after june of two thousand and now i'm sorry for that the record at five ninety six and one seven one two so the work is done order and because of that breach involving one change order there couldn't be on any any response rate and we often think that the christopher village case is from our point of view the  it's the type of conduct conscious wrongdoing on the part of the contractor that would justify the government not paying the remaining boucher's the contractor h raised the defense of waiver what we've pointed out is that this is a defense based on it's a question of fact as well as a question of law and i think that's offensive waiver that was not made before the board before the simply if there isn't a guilty plea the contracting officer doesn't have any authority to take any action so prior to the guilty plea the contract from officer would have had where the contracting officer really could not have said in two thousand and five six seven eight nine during all the years when there was lots of auditing investigation of and  g couldn't have said we don't trust you anymore terminated before he can terminate for fraud apps i didn't do anything i didn't use the word fraud intentionally false invoice conscious wrongdoing on your part the contracting over to cannot make that decision under the contract disputes are not under going forward basis the government is going to live with the proposition that court's decision in more than simcoe that's excluded from the contracting officers authority and we also cited the charter case which is another example of the application of that same principle so i can tell you have a guilty plea or a judicial determination oh fraud then you can't have a contracting officer making any decisions based on that it's not for his decision if the on trustworthiness means fraud then then yes it's excluded now if you're excuse you're going to terminate a contractor because we are continually sloppy they keep making mistakes i think that's a different decision a couple of things i'd like to address the contracting officer can terminate for convenience at any time there's no significant difference between  rates unless the government is right there in the h one process of determining what's reimbursable they get to argue about whether there was fraud of course no they don't get to argue about whether there was fraud they get to argue about whether there was of the contract cost determining what the reasonable cost are whether a default terminations with the correct interpretation of contract terms they don't have the jurisdiction they don't have the power i may not understand this but my understanding prior material breach doctrine is the first party committed material breach even if the second party when they breach didn't know about it excuse but excuse doesn't mean that you get to walk away you can terminate you can seek damages and or you can refuse to pay two thousand and six they could have just simply terminated for the contract for conveniently when they heard about these issues in two thousand a they could have terminated for convenience and probably for fraud because at that point they kind of examined cock up here the remedy under the contract is that it fifty two to forty nine dash six which says that if you perform the work you get paid don't matter how much pride goes on in the contract he's ok why isn't a simple proposition on which we first all of the board on prince of matter would be required is that the printed matter exception requires the necessary but not sufficient condition that it doesn't matter whether the reader is a computer or a human being or images of the expression are not part of the communicative content and as far as i can tell the printed matter doctrine has never been applied except when what is being claimed is the particular communicative content if it is then there are some exceptions and it could be with relation to a functional difficult proposition to sustain then a narrower proposition that in an element that does not claim not content of a communication is not an element computer and this is what it is this is how it should be operated on whereas if the data structure is if it the audio file is the star spangled banner the star spangled banner part of it is the underlying content and that should criterion for the reef hippias of a request to use to compile them as yes that's not the same as picking things already on the list and second that i would number of picking things on  list descriptions in the specification are fully accounted for by the specifications acknowledging that it sometimes searches don't need to be performed because those would be examples for searches are not being perfor decisions i still think that the underlying policy of the printer matter doctrine applies in this case and that as this court's pointing pharmaceuticals we want to prevent the indefinite number of claims just by origin is not put into the material that is cordiant if the material said i come from the user as opposed to i come from third party then the origins would be part of the descriptive content videos or anything like that you were limited to the software package and this company comes along and said we've got a new method that doesn't consign you to just the materials here you can also go and use your personal resources why third party from yourself from the internet from it doesn't that's the origin of it has no bearing on how the method is performed except for certain parts of the stuff using different words as you go to a different place i mean the fact that everything else in the program the same way doesn't mean that this particular method style has no function i mean if nobody had ever thought of it before the fact that the only difference of the word level so we don't have the examiner incorrectly thought that this reference matches the claim with age and even giving we told the words so that's why the board the board reversed that rejection and then defined with the definition plotted in and it makes grammatical so that seems to me not to have gone on here search requests is something that information and that's not a selective retrieving of data and while that may seem like a small matter it seems to me to get at the problem with the board this case well not traditionally fitting in to the matter of really the same underlying policy applies that we can i just don't know just with my understanding show printed matter doctrine is not actually statutory so you're making an argument that the doctrine that is non statutory that it's been said over many decades to be one without a very decent statutory foundation should be broadened according to some broad the following information to somebody correct but i don't think it was the fact that it was communicating information that is there any printed matter case that doesn't have a minimum just a necessary condition content of an expression i'm not aware of and i'm not either but this is i mean it's still provide a look at the origin still providing you some information to providing information to the assets in a different manner and functionally different manner than it would be able to access the web assets that were associated with a database that's in the website design  menu that you are looking at a menu that has already has a criteria applied to it which is a color palette so you pad it's a search request in the context of either