proceeding under the miller act is it's very easy to say ok but the only thing i can see with respect to the california business and professions code is and mention of i mean we know you can't or let's suppose you may argue this but suppose that it's clear you cannot get attorney's fees under the miller act i know you argue that there's a distinction but suppose that you can't have you cannot get attorney's fees under the mower act and if the contract doesn't provide for them which you did not or for late penalties which you did not then under against the bad ok let's just assume for the sake of discussion we were to hold that you can't do that against a surety would you want us to remain and the case to the district courts that you could pursue stake claims against the contractor and everybody else is out yes and there were only two other parties one was named centurion and they were never included in the district court case and the other was american national there is no evidence presented as to them and the original appeal did include them in any section why is that the case that the contractor might be on a supplemental claim when i believe it's possible that the contractor could be on  case that's because there's a clear conflict between the provisions of the two federal crime payment act was enacted for the purpose of insuring striking a balance really between contractors and subcontractors bid on federal projects and that the federal government would get what would have contractors of contractors available and ultimately the prices would go down from such competition in considering what the appropriate balance was congress actually considered successful i thought it would be slightly rude to walk in the morning of the hearing say by the way we settled would you know when a week whether it's settled or not settled there is a tense time if and when we receive response from the other side i think the primary issue in this case is whether a subcontractor can recover attorneys freeze from a surety on a federal public works project and the answer to that was provided by the supreme court in the f t rich case thirty years ago almost a dance a couple months short attorney's fees payment holding that and the tracys payment is far more crucial far more central to the federal system that the for federal government follows the american rule and the congress had no intent to leave the decision on whether what rule to apply for attorney's fees to state administrate of contractual judicial remedies that are otherwise available just on that plain language alone is clear that it didn't intend to create any new rights that didn't previously exist it's meant to maintain existing rights and in fact if you refer to the congressional what they say is that the purposes of these clauses is to make it clear the sub contractor that isn't paid on time on a project welcome back and recover from the federal government what they have instead are the penalties provided by this new act and any of the remedies that they would have had before such as a breach of contract action are miller claim it's a standard type of provision in fact that actually you can find it in the california proper name act they have a virtually identical term and it's clear that the purpose of these terms is not create new rights they didn't was to preserve existing rights not to change the law and create new rights that weren't previously footnotes in the congressional record congress specifically said that such a penalty would be too harsh and would go beyond the i suppose that they were attempting to accomplish that that's particularly important in considering the preemption argument because it creates a conflict between the california statute and the federal crime meaning that both are intended to ensure proper payment to contractors and subcontractors and both accomplish this purpose in different minimum to take the balancing that the federal government did throw out the window it would say we don't care what congress did we're going to impose our own men and it from the perspective of a contractor on a federal project that means that every state that they intend to work on whether it's when they disproportionately forms of what they're used to instead of having the proper pain act which says to them that they can predict that they know how to deal with the probably some lines up with what they're used to they would be faced with a myriad of different state laws on posting different standards some of which c be particularly harsh the net result of which would be to drive contractors away from federal projects and undermine exactly what the federal government is trying to achieve i ey had before them that they decided what the appropriate balance would be they said an interest penalty indeterminant that was the right way to go in the best way to achieve their goals of encouraging contractors and subcontractors to work on federal projects in this case the american and the american subcontractors association are trying to get from this court what they couldn't get through congress congress has already decided that they're there are no fees available to us not contractor and no penalties available to us  contractor claiming it's a contractor on the federal public works project the supreme court has already decided that you can't get attorney's fees against surety on a miller act on claims they're for district court order granting summary judgment this case was