i laded discords mandate and second it failed to reopen the record to allow soofi to prove its actual costs in spite of significant changes in the evidence and intervening decision i was going to briefly address or improper first on overhead and profit the court violated the mandate because if went back and did an analysis that was already foreclosed by the law of the case it applied a foreseeability analysis to the overhead  foreseeable consequence of the air force's breach and that really was affirmed by this court and that's that was the it's the fact of damage to them is the type of damage which is the claim preparation fees that matters for foreseeability and that's exactly what this court ruled and when it cited to energy northwest in which a similar argument analysis that the court of federal claims applied here was rejected by the federal circuit there in energy  continues in a certain extent and there's also a small claim before the armed services board for claim preparation fees that were not covered by this case that i'm talking about and this case we tend to refer to as little  so this is a claim preparation and recovery related to the attorney things that's what this case correct to this case is about the about suzy's claim preparation fees and only with respect to the attorney's portion of those fees the claim preparation for that was done by c v s direct employees as well as a non legal consultant has already been awarded in prior proceedings before the board and i'm going to probably come back so that when i get to the the other issue about the actual actual cost because i think the history of the two cases is not only complex and lengthy but it may be confusing and how the court analyzes this  so on the overhead and profit again this court's ruling and citing energy northwest they're already foreclosed the foreseeability analysis that the court of federal claims then applied an energy northwest there was about the indirect expenses the overhead the federal circuit foreclose that analysis said that once the type of damage once the original breach is shown to have caused damage then  the parties entitle to prove it's indirect cost that's the same thing that we that this court ruled that the court of federal claims should do on remand and remember for a second time the court of claims rejected that the fees your attorneys collect and as well as overhead at the well that's the second mistake that the court made the court in flowing through its foreseeability analysis it said that it didn't find that there were any injury costs and that is patently wrong we presented the court doesn't cite that we presented we presented and the original appeal we noticed that we presented this the what the court of federal claims ruled in the initial proceedings in this matter which is affirmed by this court was that the claim preparation fees done by the attorneys by that that work was a direct and foreseeable consequence of the air force's br and so what you what this court ruled citing energy northwest was that once that's been decided the indirect costs that flow from that breach are the plaintiff is entitled to prove that and by whatever expediency that we thought there might be an opportunity to to resolve things simply on the papers but we did we did requests that for overhead in particular that we were going to need some additional testimony to help the court claims apply the common law still exceed them in the scope of them and yes it did as i said based on energy northwest the now is there that's all the common law there that's the that's the most relevant common law and that's again energy northwest says you don't rican duck that analysis for the indirect costs that have flowed from the underlying type of damage which is the claim preparation fees so that was the problem there just to get back to my my other point about what the evidence was and whether there were a indirect cost is that the court of federal claims there  wrongly applied for which had excessive pass through clarke's charges clause about whether the the in direct whether the management has been more than a negligible value so there was this court rule there's no basis to man to reopen the record on our indirect costs including for some additional testimony by our expert which is what we had requested below we're going to move to the second issue which is on track with actual damages here the court  denied our request to reopen the record to prove our actual damage in attorney's fees for a claim preparation work and ignore did not even cite two or discuss in its opinion the two independent cases that we had provided arrangement to house some of the damages particularly here interest was measured that we thought we should go back in and calculate fees based on the actual costs i e the contingency originally and here i want to step back because this is your question goes right to one of our bases for reopening the record which is that there was a significant change in the evidence so when we hear i mean we're going to go to big susie and little sophie so first in big soofi or the  the contingency of what the attorneys fees would be that's if you would have to pay it was after that time in late two thousand and ten that in a little suit the we filed our claim for claim preparation attorneys fees to the contracting officer and then appealed to the court of federal claims comparing the what the fees quantum would be based on a lodestar versus the contingency of of seven million those numbers roughly then that would be the most accurate way of recovering attorney's fees i don't understand why it didn't suit me all along from the very beginning request recovery for the actual fees that it was going to have to pay to turn me the tourney contingency fee well we made a judgment but it was based again as i just mentioned first on the fact that there was no real difference between what that quantum would be based on the evidence that we had the award is a fair to say the most accurate measurement of the actual attorney's fees that he would have to pay would be whatever is reflected in the contingency fee i think that's correct but  i guess that also goes into the second which is that a lot of it was our belief that we had no basis to calculate the fees to be awarded them under the based on the contingency at that point and its opinion here noted that that was our that was how we presented our claim that based on the because even though it's claim preparation it still is attorneys fees and it's often thought of as something special that looking at the case law that was out there on legal access it just speculation is they always do it based on a lodestar even when there's a contingency agreement in place the supreme court fish shifting sachi cases it's always done based on the lodestar so we didn't think that we could that we could recover quantum based on the actual contingency agreement not notwithstanding that we had one so those were the two things that were in play but then things changed and that's that's what i want to get to is that well i want to get to something i ordinarily i want to give you a second bite of the apple on question well i want to be clear on this i asked you if we interpret a turned to the elements for salish in recovery under the common on then goes through a step by step analysis and you're just saying well didn't follow energy northwest so forget about it is that you're at your full answer that's that's  and i want to be clear that i'm talking about the overhead in profit analysis there so if you're asking me does that relate i'm not clear if you're asking me if my answer relates also to the actual damage argument we have  court's mandate identified the issue as whether soofi should receive additional profit in overhead as a markup on the attorney's fees of its outlaw outside law firm and in a very detailed manner went through foreseeability went through substantial causal  just saying that attorneys fees are special but clearly that's not what the court did it laid out the elements it went through each element also tries to require to rise this court's last opinion in this case on appeal as holding that the party that a party that only does negligible work must be entitled to overhead and profit we don't think that's what this court said at all and that that part of the opinions that j twenty  nine the other point that counsel made with regards to we didn't have there was a sort of presentation that we didn't have the opportunity to present sort of our evidence that is absolutely not the case they may have some additional evidence that they wanted to produce now apparently they want to put on expert testimony with regards to supporting their overhead or profit aspect of it but we had a trial and at that trial they put on evidence about all the things that that supposedly warranted a award of overhead profit  but maybe tiny things yes maybe maybe minuscule so you feel i'm not sure you are but so the so that's that's my point with that though the idea that somehow they didn't have an idea that this is going to be largely the contingent fee obviously we would have been arguing different numbers and and numbers that we would not have had to argue would have been the reasonableness of the hours and the reasonableness of the hourly rate we've now put on vigorous and expensive  nately not prevailing but we put on vigorous and expensive defenses on those points and if the contingent was in fact what they had sought to recover the entire time you know assuming it was an alternative then we wouldn't have had to do that  as you know change in the law change in the evidence let me do a change in the law very quickly obviously the you know the judge who wrote the opinion is sitting on this panel and i think that this panel or any panel can certainly interpret whether or not this court in its opinion based on sentences spanning about four pages in the opinion of one dealing with the underlying attorney's fees and one dealing with the overhead and profit that this court in fact meant to effect a sea change in  fees are covered and that in fact despite all the law that suit be cited and presented to the court of federal claims despite all of that that in fact this court meant to say oh wait a minute actually actual damages contingency i don't think that was this court's and improve interpretation at all and i don't think any of this court would interpret the opinion that way but the other point that i would like to make is with regards to timing the idea if you shrouding this sort of in the idea that well there was a change of the law i've already talked about that there was a change in the facts and on the issue of the whether or not there was a change in the facts we don't we don't see the change in the quantum of the word to be a change in the facts as some questions have already indicated they could have made this argument at any step along the way we didn't need a number tied to it in order to for them to assert the argument that hey you know what we want we want this or that the timing is quite clear before the lodestar method was more now than the lodestar method is less and that's essentially all the court needs to know with regards to time i guess the last point i'll touch on with claims initial judgement and not subject to revision under the mandate rule argument that footnote twenty one day the argument counsel made was that there were there brief reference this oh a very watch was a reference it was in a footnote it was not a developed contingency damages theory and even if not waived before the court of federal claims such argument was certainly way before this court as it was not raised in susie's opening appellate brief so he hasn't twice intentionally relinquished or abandoned a no right  there but there are there is view you know view is that there is a very cost you know just like just like any other cost but sort of what that view hinges upon is and apparent what they think is an inability by the fact finder to really look at the actual cost and differentiate between there's a big difference between a sushi employee who's working on a claim and that suit he has direct built and that suits the sought overhead and profit on it was and was not allowed to get overhead because they didn't prove it up for the board this court affirms that they were given profit there's a big difference between that forty dollars an hour soofi employee and eight and a attorney that's billing you know five hundred dollars claim and that's why these are this is limited to strictly claim preparation attorney's fees and we don't dispute that their attorneys spent time you know preparing their client obviously at this point we're down to a very narrow part of that we're down to the overhead and profit aspect of that and it's sort of the gut instinct the gut reaction that you're having that this is not something that would normally be overhead and profit i think that's i think that's cracked now is there a case out there saying that that that that it cannot be i don't think great i don't think that's the case i think you have to go through the analysis and i think that the court went through the analysis in this case and when the court went through the analysis it was able to see the difference in the in all of the elements under the common law recovery on these question is yes sure but i want to be perfectly clear those were different fees i'm not trying to say that you feel seeking a double recovery i'm not saying that all i'm saying is that they are now seeking overhead on their return and i think that to the extent that they could satisfy law and when they say non litigation purpose the fact that an attorney does it versus an employee or a consultant makes no difference under the law you're entitled to the actual cost and so the fee that is charged to the able to recover when they have a breach they are entitled to recover their indirect costs which includes a a profit even the four clauses in vision that profit would be added so they do not believe in or of someone that's completely outside of the company it's the labor of attorneys that are in and outside the law for that's you once you say the ones that collect profits and that's what i don't understand you maybe i'm not making i understand that but i think you know we've cited a few cases like this is overcome by the fact that we're seeking an exception to the mandate and we think we've provided that given the significant change in the evidence namely what soofi has to pay and the contingency arrangement of what its actual costs are and the interven decision which is this case and i want to know there are that we did proceed originally under the lodestar however and the government accepted that but it was then the government that that changed the game the government is the one who made the first trial court that if the government wants to calculate that way well then they should they can have their cake and eat it too they can have it both ways but then we should do the actual fees based on our contingency as well and when this court agreed with the government on interest