morning we have cases on for argument today the first case is number two thousand and nine thirteen sixteen last summer industries are up against the department of defense mr copley when you're ready the various letters your claim i take it is plain bad work your submission is that what we're dealing here with is a claim by the government not a claim by the contractors that fair i did not understand your brief to suggest that that itself was a claim is that your contention yes there's a there's a case or not we're see if you will close from the contracts and that is whether or not class last were delivered non conforming goods into this and that pertains not just to the thirty one hundred thirty one hundred three remaining products but also to all all of the previously delivered products that is correct or that and so you say that we would like a final decision because we believe that the specifications for this thing do that they were impossible to comply with not just for us but for other contractors thus creating a dispute and monetary dispute just as th just like to follow up on judge bryson's questions because i'm i'm i'm having some difficulty in identifying we're we're you might have made a claim for thirty one hundred units that have not yet been delivered now how looking at the letter of march second two thousand and eight the first paragraph contains a request  the government issue a final decision on all contracts under which it asserts claims pursuant to that letter this route it seems to me that's a reference to the earlier for that is if you look at the government's letter that where they are asserting four point eight million dollars because of all those parts to that they are they are attempting to do exactly what was done in in the garrett case well but the four point eight million does not a place and you don't go on to say and what's more we want a decision with respect to the outstanding good it's right on or any on the second page of our march third letter termination and to be a rejection delivered around and we request in all fairness yat of what was done in the second case of this letter what can the government what can a contractor do to communicate with a contracting officer to try to get not there or if you feel compelled that you direct them that it does so if it is and i guess i'm having trouble following that based on the first paragraph of the march second letter i mean the my second letter is request for a final decision and  first paragraph least they need let the government issue a final decision on all contracts under which it meaning the government asserts claims pursuant to that letter this or so the government's claims pursuant to that letter were for four point eight million dollars that was the money the government paid for the products that were products that were delivered not the ones that had been delivered were delivered and so at the final decision it march second letter i mean government school there is an affirmative claim that these are not foreign parts it's not just the money they are basically saying just issue to go back such after such a long time trying to resend that it was quote tantamount to a government plan just the action of taking that contract administration and so we when we go back and we ask for setting aside the question of rudeness or not what i'm getting at is what are we doing here is this does this have any practical impact on alaska it does what they are they have been to bar from government contracts since two thousand  thought they had released on that is been there belong on administrative debarment but they are for all intents and purposes de barge they're not getting any government contracts because the government is repeated taking the position that these goods were not in the case but but how would you were winning this case put you in better position than if you win the september two thousand and nine case with respect to de bar meant consequences downstream consequences and presumably you're your case isn't any stronger or weaker when you get the v c hey between the two cases you see i mean is there anything about this case that makes it thirty my own question because i think i thought i knew the answer to your question i'm not getting it so i'm obviously missing something seems to me that than two thousand and nine to feel deals only with this one particular portion of the fifteen and what you're is the question of the adequacy specification say yes or no and so a resolution of that issue in the september two thousand and nine case would resolve that issue were the goods conforming or were they not this is a contrary view that has sixteen contracts with the federal government each it which are subject to contract disputes that and they've not been able to get that i very quick question and i'll let you sit down that it is the is the specification issue with respect to the thirty one hundred items the same as the specifications issued with respect to all the other contracts there so if i had arms and you can categorize some of thirty one hundred then your references to the specification problem do not include a reference to the specification problem with respect to the thirty one hundred right or cancel those attempts have been thwarted there wasn't a resolution thus it went to the board all of those issues will be determined in the board's decision on this issue when we try and we try to different way there's a government want close thirty one hundred i learnt arms from this contractor you know i'm not certain whether the government wants them or not there were attempts by the government to cancel that portion of the contract but what they had posed was accepted by that moment do you do you consider the unfulfilled portion of order fifteen to be a remaining executive or e contractual provision first in the water that's that's the way the government is looking at until it is  outstanding and would like to resolve the whole issue it was some question in my mind looking at the affidavit or declaration of  larry howard the simberg twenty second two thousand and eight and this is the appendix page seventy nine and he goes on in that same paragraph to say we provided poop to the government with the eye nonperformance back was impossible to meet they accepted that crew under a contract where we were this sub contractor i'm not sure what that means and it and he goes on to say on that same interview they granted resume with the government granted a waiver of the insurance requirement for am general because it to phone the specification would be impossible his is there anything in this record that sheds any light on whether this impossible performance especially cation has been waived or not whether these undelivered i'd look for arms are acceptable or not or will is all the work that's just up in the year there's nothing in this particular record drawn on that issue has been raised before the board whether quite frankly that you have it relatively small number of component parts were obviously some important piece of machinery and the government  be important enough to enter into a contract to provide these things and the contractor obviously finds important not to want to sell products to the government and you know this issue is sort of hanging here for three years more than three years is a little because everything had been addressed the barman and there were various problems with the parts the reason this portion is still outstanding is due to the nature of these contracts and what they're for their for humvees and the various operations we're conducting around the world it got lost in the shuffle is the best explanation i have for why this is still hanging there and i'm glad knowing that it's still hanging out there we're trying to resolve it and we're hoping to resolve all the issues in which case the government could then find a suitable contractor and get the parts that it needs and the contractor would get a decision that he could dispute or not you're out of the government attempted to cancel this provision this this sort of got lost in the shuffle this portion with everything in the bar and what's the game back to the government's attention they did their best to correct it and by correcting it they were hoping to come to they would in terms with last night to cancel this for convenience where to the collateral consequences of the letter that the that the government sent for purposes of determining whether they're a qualifying contractor or whether presented to last two thousand and five they had rights on the farm to present any evidence that they wanted to borrow proceedings they were allowed to submit written responses to the government's proposal for debarment they were also allowed to bring in  what about any internal nation simply simply a determination that a particular contractor is not a responsible contractor that that presumably is not the same thing as department across tell me what general not just in this instance tell me what happens i'm a contractor and i get a letter back from the i expressed my interest in putting in i get a letter back in which says that we look into your background and we see that ok where the contractor can come in and say it was arbitrary and capricious because these things were considered they shouldn't have been considered these are the reasons why and when i get an opportunity to fully litigate in that context the question of whether for example the contention is not really ever heard at least the proceeding is subject to such a lenient standard of review that they don't have a realistic opportunity to contest what ultimately is a black mark on on the record in it seems to me that you're saying well they've got a point no you are they do have the arena to contend that is presently is the southern district of ohio with their contesting but that's the department right which is the basis of this assertion going for that yeah but i guess part of my question is short of actually do barring a contractor which i understand happens from and that you you're not going to be able to bid on any give situation as the contractor where the contractor is told that the contractor may not be good on a particular contract because that contract is a contractor is not a responsible country has that contractor been contention is is that there are two dead thinks they're going to happen here one of which is the department well as to that you say hey the good point has been labrat procedural protections so you could be covered downstream if you have a problem setting aside with respect to the department in the extensions so forth but their second point is but what's more will be subject to being found to be not a responsible contractor and therefore subject in a particular contract to being plucked out of the list of of eligible bidders without heavy anything more than that rather skimpy kind of process that goes along with big protest do you agree with that you know you are they won't be found to just be not have they have received what they said they did which was a fair attempt at litigating their claims  officer at that point he decided you know what we're never going to get this money from them so to heck with it and sure enough another contracting officer in connection with another contract had written to that contracting officer and said what kind of luck would be had with last and the have you mean when that contracting officer writes to another contracting officer long after your contract has expired let's say you finish the countries three years later somebody one contracting officer rights to they're going to the courts they're going to talk to the other counters ok job ok what's your remedy if contracting officer number one since a letter that says and that's a good the todd construction case talk monetary claim that has a lasting effect on our contractors ability to take contracts in the future rises under that contract that's exactly what's company person gets a call from the next contractor and says what do you think of this guy and that response to that is well i don't know anything but when you can take a look at the record in the department proceedings it's your view that that would be