claim i'd like to suggest that because the grounds of the court of federal claims smile the motion necessarily work factual in that there are questions about when the claim of proof and on the obligation of the discovery rule that upon the government would need to show that those rulings were clear error of whom did the court trial court actually rule that be on a cruel or discovery rule i didn't see his ruling as having been record to the point that was made in the government's motion to dismiss on that those two issues can you point us to what the court had to say about that i think a pretty good move that he did make a finding with respect to either a cooler discovery and if we look at the events that triggered the discovery there were several first of all there was just coverage in the litigation then there was a survey that wait buffalo commission in two thousand and two which showed in part that the government had paid a completion contractor for work that wasn't done or that was done by white buffalo and it also confirmed the design change that wasn't disclosed until white buffalo made a foyer request and in that request they don't cover documents to the effect that we better not make the design change in the contract for the completion contractor because we don't want that to be grounds for termination for convenience so there was an affirmative effort to keep quiet about the design change and we think that involves equitable toland ok when you have them those w events and in the discovery in the litigation for example we obtain the files of the government inspector as a contract inspector into government loyalty and in those files we discovered that the resident engineer who we maintained had to use or for the role of the project engineer had gotten irrationally upset i believe were the words when the inspector tried to assist my couple in actually getting the work done and we also uncovered evidence that this residence here was assigned to projects when you want to get rid of the contractor and now  i understand that this is an unusual situation and that it's not the kind of thing the court sees every day and we wouldn't have pursued this for fifteen years now if it wasn't an extremely unusual situation where we have affirmative evidence that becomes the residence of your favorite another contractor and the record is replete with notifications to the contracting officer and to his superiors that these other guys tidewater they're great they're competent but these white buffalo people they're incompetent and that was basically a couple of weeks after the work started and there are continual references to the favorite contractor told it was kind of his above remark that i won't repeat here it's in the record but it was you better watch out they're going to get you so you better settle that other case so we really have affirmative evidence of  an animus here and that the but the problem is i'm sure you recognize is that everything you've been saying is highly factual it was before the the trial court and held a trial in this case heard from the witnesses that we haven't the for us all we have of them is a cold record and found squarely against the law on the question of bad faith with findings of the credibility and ultimately the good performance on the resident reasons why we think the court was wrong number one the whole disparate treatment issue simply was not addressed and i think i can go through the evidence here of the court rights but it's just not addressed in the opinion and number two white buffalo argued strenuously that a presumption ought to be applied here because critical people under the control of the government including the project engineer weren't brought to trial and were not available was that white buffalo argued that mr wright and your usurped the role of the project engineer and mr rogers explanation as to his english wasn't very good he was kind of a newbie to know what he was doing and your was there in person to for example talk about that the project engineers english wasn't very good in the court of federal claims didn't have the engineer there so that the court can determine  himself and for example the project engineer specifically said i don't know why mr rich are so strict on this project is not strict and other projects which we think is going to come facia evidence of disparate treatment of mr richer is there to try to explain that away project engineer wasn't there so that the court could evaluate its credibility the same issue was for terra jacoby who is not sure of her exact title but she was the head of the western regional office for the we believe that particularly with regard to mr aftab the engineer a presumption should have been applied that his testimony would have been a terrible to the government and that his credibility would have been at least as great as mr red injury was made available to testify you know that that would be a rule it seems to me of sweeping consequence because in similar cases as you very well know and there are limits on  well a few times of the law it comes up fairly often but in this case it was the central witness in the case and it was a central witness not subject to subpoena at trial three thousand miles away from where this witness on they those people did not terminate the contract mr parsons terminated his testimony also was was in the trial through deposition she was not even employed by the government at the time of trial so he was equally available dismisses the government's jurisdiction arguments as as move suggesting that because we want on the merits there was no reason to address the jurisdictional issue no i didn't i didn't catch the  other i remember this i remember this so from what i understood to be going on was george clinton did not find make factual findings or even a jurisdictional determination on and on in a cruel  contract administration some of it yes was after the end of the end of the contract when the contract was terminated but the problem we have just is a process kind of thing is if we agree with you that this isn't you saying we can find it was clearer and that's good heaping for discussion but we don't really it best we have distaste so why wouldn't the better more prudent course be for us to send it back to the trial judge to make findings of that will h wary of saying that the judge if he made those chinese was clearly erroneous in said that it's one thing to have the contracting officer as an agent of the government is treating you badly and assume that they treat everybody badly that's just that their it's out of place but it's another thing to say ah they treated us really badly but then they treated somebody else very differently and very favorably and that suggests some  animists that unilateral bad treatment might not why isn't that a of the gentleman around to say that it wasn't until they found out about the alleged better treatment of tidewater and company that they really knew enough to say to make the rather we recognize once we discovered the later better treatment of the follow on contract or that there was a reason for our then treatment and that reason was that it's against us so that's a different it's a slightly different point but it still that's how they broke it that's how they treated their or their claims and i'd have a much more difficult argument but that's not what they're saying they said that they knew from the beginning that they were being not treated well that their project schedule was not being was not being treated treated correct and treated correctly that the noticed to proceed was too late that the extension permit request was it was not was not handled properly and all those things they told the contracting officer in in november ninth and nine hundred ninety eight they have another reason now that they weren't but that's it at the additional and the japanese warnings are cases that they cite in their brief says that they don't of when it doesn't need to know every last thing he doesn't need to fit he gets to flesh it out later i think that the can actually say that he is intent on not seeing this completed time when so that does bring in his or his motives that does bring in that date and they do all along that at least in their mind he was there nemesis on this job so just because they got confirmation of that interview later because of what happened after turning some does not mean that they did not know about this plane more than six years before they brought fucking incident is it crystal clear that the six year period are no exceptions can be read into the twelve month period which goes to whether they can even challenge the on the conversion decision on authority or some other tucker grounds but judge smith finding condition for that for that failure to complete on time so it's ironic because if if they're if they're correct that the conversion was a novelty and didn't happen and they actually lose this entire case because right so it was an oversight direction it meant meant to put that in the judgment but it's within the course discretion to affirm that judgment amount based upon anything that's supportable by the record even if the parties hadn't brought it up which is what  and determination for convenience clause which is the basis for recovery for that simply doesn't cover that that was a pass through claim that can be seen on a eighty six zero six it's not a cause either to white buffalo or of the work because they never came a br rights because mike will right they did not prevail but i do not want the united states to have to keep litigating that issue a party if if if if voluntarily acquiesces to the relief that followed that all the relief that the court to grant should get the benefit of the end of that end we did that in two thousand and four and we're still litigating whether those two cases are rude and by the way they've enjoyed the benefit of the hundred or one thousand dollars that that we sent back and in the form of liquidated damages and we have not had the benefit of having put those two cases we thought we thought to rest lots of what we tried important over those three weeks had to do with that first case the all the different some conditions stuff even the liquidated damages returned i had to prove in my post for a brief i mean i felt compelled to prove it that we had paid the money back we should never have had to talk about those two those first two cases after we moved to dismiss in two thousand for having done everything the corporate  and by the way they say that we on that they should have i see i'm overtime and they say that they they had an equitable adjustment claim in that first case well they do but the court had no jurisdiction to give them any money in that first case because they had not even yet presented any claim for money to the to the contract and so we did everything the court could have done the trial court could have done in those two cases and those cases the court should never have entered a judgment that a lot of money judgment that lists all three of those value that it was and the difference between the value of the of the work and the cost of the of of doing that work is profit they may have been other ways too there may have been other work other methodology s and if another was had been adopted i wonder whether we would have filled it because it's an abuse of discretion issue but ninety percent in this case was mom was a reasonable profit on a former work in for those reasons make  profit issue that to mr mcnamee will raise last the trial court made a specific finding that white buffalo was entitled to a contract modification due to the design this error and oun because that contract modification should have been but wasn't also incorporated into the court's profit calculation that what the court did on the profit issue is based on testimony of no witness it was a calculation from the government's free trial brief that wasn't sponsored by anyone it was presented by anyone you never had an opportunity to cross examine on it but what it did was compare to what gladness the point of a question it compared to alleged completion percentage by picking and choosing various things in the record and cost  if those numbers should have been adjusted due to the entitlement to a contract modification because of a design error that increase cost then the profit calculation by the district court or the i'm perfectly and was incorrect well i  merits of the bad faith claim yes i would just like to conclude by suggesting if the court was going to read one case it would be the shooter decision tried in court of federal crimes about a year before ours which were very similar factual circumstances where it was in the contracting officer but it was a person feeding the contracting officer the information because as in our case a contracting officer's off somewhere else and relies on the on the ground person to ever provide information and that evidence that the contracting officer had to rely on was biased in favor of the worst court uses we're getting rid of the disfavored contractor to favor another contractor and