as a valid plane it should be able to start that plane if as a matter of logic either the first claim is valid in which case the second claim is moot the first plane was not determined by the  should be able to proceed as a matter of law with the how can you say that first plane was a knowledge of events the courts that the planes rule when the whole first case i mean the last half hour was dealing with this first play which our court made and the resurrect so how can you kind of call it a nullity when it's gillett issue it still clearly him play that's why we're all here for the first half hour of argument or live question if the life question but at this particular juncture until this court reinstates the claim there is no claim the court below has determined in a final decision the litigation ended with respect to the merits of the claim at that particular moment when the court determined that there was no claim the northrop grumman is not obligated to file an appeal once that litigation ended there could be no claim and the notice of appeal can't in and of itself does not reinstate the claim all it is is a legal argument as to whether a claim exists and until this court determines that a claim existed at that particular point there's no claim no it's the judgment that's in the field report that a plane that there was no jurisdiction and the judgment that judgment is still alive and well that's why we're still here that's not lead final with the litigation of the claim that the it shouldn't prevent northrop grumman from submitting a claim during the next sixty days even though as you said we still have an opportunity to file a notice of appeal because at that particular point there is no claim pending except that again that's dependent upon that for the random timing of what the contract minogue cert does becomes relevant because before northrop grumman filed a notice of appeal it would seem to me that these arguments suggest that the contracting officer would not have jurisdiction during that sixty day period and that makes no sense if northrop grumman doesn't file a notice of appeal so whether the contracting officer has jurisdiction should not be dependent upon whether he does file but another government does file a notice of appeal if the contracting officer has jurisdiction immediately following the dismissal of the first action filing the notice of appeal doesn't reinstate the claim that doesn't out it's too late for you to go back to the contacting the officer with the money that's correct because the claim arose in the end of september two thousand and five which case was scheduled for trial in june of two thousand and eleven the government waited until may of two thousand eleven to bring its motion to dismiss and at that point only five months remained in the statute of limitations and that's why northrop grumman proceeded as it did and with respect to those sort of actually to the extent they play into that at federal place points out representatives of citizens bank attended the deposition so the government knew that the it but the government waited until the last possible moment luckily for no other wrong the trial was scheduled before the end of the statute of limitations otherwise they or if the first plane is an ology determined to be a knowledge event the second claim the second submission should be held as valid and there's no scenario where both submissions would be valid but there's also shouldn't be  determined made a decision on the claim that is what what they're basically arguing and if the congress after had made such a decision it would have clearly been in conflict with the ongoing litigation here it would have if the congress or could have sponsorship the purchase and sign meant agreements were never provided prior to so we're talking about the second plane though and in the second place that information was provided you are referring to the the first the same claim as the one that they are bringing in the court of the that they revealed in the court of federal claims it's a spot you said it's the same place all right it is it is in what the guardian's doing whether they presented the financing information be the same claim and you don't lose the amount of money sought and the the basic description is largely the the same it refers to the financing but it has  doesn't exist it was legal it was illegal and all that easy to the point where there's no subject matter jurisdiction and then and because you know section information was not included in that search play it was legally not a claim initially was said to have been lacking from the first place so how can that not the most who claim to be this how can you argue that they're the same client they are seeking the same amount of money the fact that there they are moving back and forth between the use of the term sponsorship and then presenting presenting the same request for money without the term sponsorship with a little extra information about about you know its agreements with e s p n and citizens doesn't doesn't make the same basic facts that when the clock starts running you're saying that still a lawyer appeal is still alive and you disagree with him is that when the time for her expires in connection with an appeal of that case implicated the department of justice should have exclusive control over negotiation compromise and lives not just in us in the cut off is the filing of the notice of appeal to this court you're saying that it's when the case the ongoing case has run its full course which would out rather than attempting to help them they ever i mean isn't that the classic case therefore of of aging review of this question always to be you because if they're faced with the choice of withdrawing the centrally interest face the choice of in order to proceed with litigating an issue which they have every right to do they're faced with the choice that if they lose the time for filing the refinance claim it's going to have to be expired had filing in two thousand and four i believe with the contracting officer it is that we wouldn't have these these problems the country yes yes i'll be there but that's i mean i don't think there's any dispute about that but the fact is that the question of presented to th court in the first appeal therefore under your view can only be presented if the contractor decides i'm going for all of the all or nothing days and i'm going to lose my right federal circuit and that's the choice it was made here was to do both and it according to the trial court should have been to go to the to the contracting officer then it would have been like they did done that under the government's view of the second case if they had done that we would never be we would never be getting an appeal of the question the legal question presented in the first appeal in this case right in not in the in this kind of a case where these such limitations that's what's quite likely to be the case in any case i court yet but i'm talking about the case where he has been and he's asking us to review whether or not that's a necessary require met and i'm talking about how we ever get that issue if the contractor is faced with a ho choice of seeking review and therefore losing his ability to revise his claim proceed with flying the the alternative your honor it is to have the situation where the contractor the contracting officer is going to have a claim before that is that is going to be his consideration duplicate this court consideration and that is not the answer is that he should always follow what the self in this position is in this case he's required to do that i had to do far with the contracting it would result in with the contracting officer and the department justice having to make decisions on the same issues it would certainly defeat the government's ability to engage in negotiations or settlement whether they're still whether they're still pursuing a claim is important for the purpose of determining whether whether the department of justice has authority in the in reliance insurance the court called the claim in of litigation still a claim even even after it found no jurisdiction the another question from sharman again it's the same claim when the when both are sort of the entitlement to the same money  based on the same form and so that for that reason it appears to be the same the same the same claim and again the the issue of rendering the court a federal claims review moot if  so by this by peterson builders reasoning it would appear that this court's review of the first appeal is the one that would be mooted under northrop's reading of of of the different  sharman and other authorities as for the as for the nullity argument as for the arguments it's the north of team to be arguing that the country officer was resisted with authority during the time between the judgement and the filing the notice determining jurisdiction the trial court considered the factual situation at the time of the company answers decision which was that legally sion was being pursued pursued and in this court and in any event that the submitted its claim and as the government points out the claim itself is the amount of money sought and the performance issues the government content and has argued here that those of the same the amount of money sought and the performance issues those have not changed from its first mission in july of two thousand and six or its second submission and that is what constitutes the claim so you know under the government's argument we shouldn't even be here on the second appeal in terms of the contracting officer being able to evaluate the merits of the claim to the extent of the contracting officer think the first question i asked she was do we need to have to appeal you said yes now you're saying no well i'm saying we only need two or she has said at the outset no we won't need the second one if you rule correctly in the first right that's correct that's  our position that the charm and the issue and charm and they're they're actually what they claim claim with being litigated in the trial court when the claim was submitted and the same claim with the minutes of the contracting officer that's entirely different from the case where there's been a jurisdictional dismissal because what the court or federal claims found was that a proper claim was never submitted to the contracting officer so the two it would be north of government's position that there is no claim in litigation after the first dismissal until this court reinstate the claim if this court were to do that in terms of the contracting officer being able to evaluate the merits of the claim to the extent the contracting officer passed on the claim because of the notice of do because the department of justice at this particular moment is not evaluating the merits of the claim because the merits of the claim according to the department of justice are not in play at this particular moment so the only place they would be in play before the contracting officer from june two thousand and eleven forward in terms of the question always debating review your grumman agrees with that position and and suggest as well that the national neighbors is also somewhat the proceeding before the court was improper or filed too late and similarly so so they were allowed to preserve both opportunities in that case as a matter of equity even though only one of them alternately would be heard and that's the same here where northrop grumman has presented a second claim but only one of those planes ultimately will be heard so the same equities that favored the national neighbors ruling in favor of the contractor being allowed to proceed in both forms