dispute act on behalf of the sub contractor adel international this appeal raises the question of jurisdiction of the armed services or contract appeal specifically whether the claim that sponsored certified claim was a valid claim on the parties appeared to agree that the  find non routine to demand compensation for unforeseen unintended consequences and other cases add on to that that it was the fault of the government do you one do you agree or disagree with that definition and if you agree say reflect on that the only requests for equitable adjustment or only unforseen situations are unintended circumstances for early situations that are the fault of the government could constitute not how do you  define or what would you add to the definition of not well i think also and reflect don't you know that the court said that a routine payment is something that occurs under the contract non routine if something is a request for payment outside contract get one of them which you submitted this request is a piece of the pyramid contracting officer that doesn't that almost alone dispose of this i don't see it so you're on to something that determination of those the turret that t c o indicated that he would not consider resolution of the sub contractor plane separate and apart from the entire settlement claim so there was no avenue under determination procedures to get that claim resolved yet they then submitted the claim to the p c l was that a routine request for payment we submit your honor it could not have been because of the terminations because of the unique circumstance situation here this is that was something that the parties agreed to the contractor and subcontractor in october of two thousand and four and that was with respect and under the contract how is that anything other than t and i actually thought that you conceded in your piece that well if they had submitted that before the contract was terminated it wouldn't be the routine payment right i think we would consider honor that had the accounting error not occurred had the tip the proper the request for payment is routine or i think you're saying what can what defines whether a cost is routine or not routine is when the contractor decides to submit it no your honor i'm suggesting that under the language of the federal acquisition upon whether this is a routine request for payment or a non routine a routine request payment have to be in dispute for at the time to the point of the c d f a non routine request for payment and again the issue is whether it's the request not whether it's the underlying cos festivals left with no avenue for relief to recover the costs again these are incurred costs not profit they're seeking under those circumstances this request for payment is is is virtually unique and certainly out of the ordinary course  of whether or not these costs incurred cost should be repaid should not rise or fall as a matter of jurisdiction of board on the timing of that claim to pay the board relied upon the f a a already and i thought you were telling us before the factor that made this converted this from routine to non routine was the timing of the submission but your honor that's that's correct what i'm saying and perhaps i'm not being clear enough here will the did that also makes another question which is could a contractor routinely convert routine to non routine simply by being by the way yeah just by delay picking the time they want to submit it well if we if we wait long enough we can make this into a claim and go to the armed services board well your honor i suppose there's always that risk of stress if those are not facts of this case and i'll also point regulation is in this situation you have a non routine request for payment yet part of that is dependent upon the timing of it but it's not an issue of a contractor having having deliberately delayed you couldn't make a certification for the client in that situation  submitted to the government now parsons and pile to do that part of the of the other argument that the board relied on here the government advocates years parsons for parts of satisfied that payments forces that it was coming and that since i saw that were they saying that parsons was required to seventy five percent whether or not it was reimbursable by the government there i think the government or perhaps mysteries we can can better articulate this but my understanding of the government's position is that before submitting a twenty before there could be a claim parsons was required to have paid that hat exactly and you don't trust i don't trust that when it's all done that you recover that insufficient was there was some confusion over precisely how those costs related back to the three terminated task orders or whether there were flows out across the board in the dress at issue and i would simply put it's not the courts function here to act as a fact finder million of the two point five million a legit claim has nothing to do with the term nation of the task orders the board noted on page six of the joint appendix in two that there's some confusion of where those here is that these don't even arise under the terminated task orders if you look at the supplemental appendix which is part of what they call the claim that was submitted it assigns have quarter seven two as the top quarter under which these two point four million then what was paid all of the circumstances surrounding the payment whether parsons is actually liable to odell for the difference there is dca their prime purpose was to audit the task orders or eleven and twelve not four eleven or twelve its task order seven which to this day is open so their argument that there was just simply no mechanism to submit an invoice is not factually accurate to this day they the contract performs in the ordinary course of business cost incurred but not necessary pay for for supplies services purchased directly from the contract and associated financing payments to subcontractors provided these payments determine due will be made in accordance with the terms thing conditions problem wherever they could some of their votes are not just as they could have before the congress terminated it would be speculation but there could be an issue in terms of the funds left on the tab order because under this cost reimbursement contract it's the contractor and subcontractors job to negotiation if at some point they reach an impact as we recognise under l it then that could mature into a claim but the first step is either to incorporate into a terminations settlement proposal or to submit an invoice they send neither applied which this court denied without prejudice raising the argument at oral argument and allowed us to supplement the appendix with the supplemental appendix which has the actual document which reflect that these  paid a sub contractor odell before filing a claim and it seems to me reading the case particularly softened they wouldn't be able to come forward with the claim that they require that they not pay the subtractive the only way they can come forward with the claim is if the you're still liable to their subcontractors once they've paid off the sub contractors they can no longer come forward now that is a that doesn't necessarily affect the result here but i'm a little puddle by that agrees that this billing issue did not arise because of any action by the government so the government only obligation to pay would be if it do under the contract and the only way it can be do under the contract is  well it's not quite true that they don't dispute that it's due because they've offered no reason that's why since two thousand and six when the issue first came to their attention they did not simply pay and then attempt to invoice this amount and in fact if it's in th have defenses against odor and when such and its feet arise and is it the government should the responsibility fall upon the government or should it be for the contractor to resolve this dispute with the sets actor  the scene that there is a lot of machinery involved but again there's the options are simple either submit an invoice and either pay it but at least determine that it's due or to and then didn't put in terminations settlement terminating contracting officer simply advise them that and a determination that the chose not to step up to the saddle separately with the subcontractor directly under fire forty nine one only dash eight however when they saw they we well if they pay it and then they submit an invoice to the government it wouldn't necessarily be a path to claim it would be that it would be in the form of i guess an equitable adjustment getting that they incurred these and that the government never paid them so they would have a direct action against the government for the extra cost and they could request the cost that way but they still would have a form back and it just wouldn't be in the form of of the direct path to claim in the nature of severance but the problem here is under severin and mitchell and transit america and gates and all those cases at the site those are inevitable doesn't it where there is some allegation that the government harm to the sub contractor so yes in those circumstances the only way that subcontractor can recover is to reach an agreement with the prime to go out through the government but here the government hasn't done anything that someone from the government any  to convince us that this is same non routine request why don't you just submit an in was we haven't submitted an invoice your honor because we were told filed claims which we did what we're hearing from the government you day told who told you that while that was that that was the next step after the t c of said we will having been terminated there was no option for a routine request for payment you couldn't submit a voucher payment in a voice now the government's telling us today oh sure you could we would consider that as a response or question w claim either a claim or in this case my clerk up stairs is checked and says absolutely the task order seven is where they funds are located