anything in the fall or for the contract that requires that the contractor give advance notice of potential liability such as this one client i'm talking about advance notice that there's this contingent potential liability right well in the in the let me go back to look at the board tax by clause bar fifty two point two t no there's no there's no requirement that you give advance notice a standard notice of the of a change or something like that but no there's no separate advance notice requirement ok and  just show here i just want to make sure i understand one point the provision to which you've been referring fifty two dollars to nine dollars dash six refers to taxes this is a definition provision it says tax and taxes include we these and charges for doing business i assume it's your position that the penalty that was imposed by the afghan government for having  more than a certain number of employees during that clickable period of time in these various contracts was a was a fee is that correct yes yes that's right it was a tax and to resolve any factual issues that relate to whether it's characterized as a tax or something else under afghan law and under the relevant documentation ok thank you but i want to come back to this idea that the board said that it was an optional process and that triple canopy again wasn't required to follow if they weren't the foreign tax clause says that they are required to proceed that way and so if they had not the governor would come back and said you shirked your obligations there's a problem disruption to the afghanistan reconstruction effort that's why there has to be this exemption and so to mcafee was no law breaker they were following what the u s government told them to do in order to perform their contract and then when the government get it then said we're going to adopt the government's fallback argument the government argues that even if you agree with our position on the statue of limitations that the amount is not a tax and that somehow triple canopy has done something disputes as to as to what that means although one way to think about i was thinking about it one way to consider the issue was it's similar to prohibition in the united states at one point the i think government said alcohol is prohibited if you have alcohol afghanistan about not allowing contractors to have more than five hundred dollars but the u s government repeatedly said it's vital to be construction effort that contractors have more than five hundred dollars personnel and then they changed the law and they said ok we're just going to have these assessments which sometimes they call the penalty the ones that called it a penalty tax but the u s supreme court said that those labels are not determinative that you can have something labeled a penalty that's really a tax and that's what you have here this is a fee for doing business you know ganesan if you're one dollar of the larger companies and you have more than five hundred dollars people in afghanistan you have to pay a fee well that's that's a tax that's that's not some sort of criminal penalty or something else it's something subject the contract absolutely clear that they were required to appeal the assessment that they did appeal the assessment and that they got it reduced how could it be that you knew the amount of the clergyman to let it happen well we  think if you look at the actual plain language of the provision it issue it only requires that an appeal or reasonable action be taken when under a certain situation which which is not met here and that's what the board was courting to so if we look at the foreign tax cause and we look at it has the phrase the contractor shall take all reasonable action to obtain exemption that's true but later on the situation where you have to take reasonable action is only where where the united states government the contractor any some contractor where the transactions are properly covered by this contract are exempt under the laws of the country concerned or to me this is judge sauls if i could interrupt you because time is fleeting here  i'm i'm not i just don't think i can i can agree with that we have a finding here by the board a determination by the board and i'm looking at appendix page eleven where the board says triple kim but canopy duty both to notify the government of the potential fine and to challenge the amount of the fine there's the board saying it had a knob the triple canopy had an obligation to do exactly required by the contract to been taken me seems here we have a situation we don't see it in all cases but here we have a situation where a contractor seems of done everything it was required to do w in fighting this well respectfully i mean as to the us of the st born of the statue of limitations we you know just based upon the plain language we just read i recognize that in the pages you pointed to when it's addressing that false claims act argument the board has seemingly said on the one hand that it's an optional process and that's when it's looking at the plain language here it does  later on you know certainly state what you just said but what matters here is the actual language of the of the contract chill provision and the plain language says it  appeal process here and it's possible that it was possible that in view of the arguments advanced in support of triple canopy by the by the government the just that point the board is pointing to the fact that yes there is a possibility but that's not mandatory so when we see in cases like k b r and electric co where there's arguments about a  mandatory pre claim procedure here only the only basis upon which it would be mandatory is if there actually is an agreement between between the two countries there's no evidence of that in hand which is your contention that they should have coined the full amount foregone the appeal proceedings of the government wouldn't get the benefit of the reduction in the amount that's that's not what we're saying what we're saying is  final determination of the amount which is necessary to make a claim and tell the appeals process has been completed how the possible well because here we have a situation where they're not the appeal was not on the basis they're i think what there may be a little bit of confusion i guess perhaps i'm on my part but under the c d a i mean you have you have to present some certain that's for sure but later on thousand and eleven and that fixed the liability the liability was that they were significantly over this five hundred personnel limit and so that was that was set both by the the february two thousand was set forth but then it said that you had a right to appeal and obviously as your discussion with judge dyke indicates the appeal could and in fact did lead to a reduction in the amount for which the government might be on the hook eventually via a claim and then we have this contract provision that says they were required to take all reasonable steps and then finally as you pointed out as or as we agreed you have a situation with the board itself said it had to follow the appeal i mean i it just seems to me to be a reasonable sensible approach to say ok your claim mean i think i think that exemption is that is more of a term of art which is that this this entity this contractor date they have no obligation to pay the taxes at all not that there are two hundred people over the limit and we're going to we're going to look more closely at what's been provided here and we're going to reduce it down by a certain amount it's that there you know for example there's been an agreement that they're not on the hook they don't have to pay the taxes at all and so here you know we don't think that because the contrary role would actually benefit the contractors either because what we're saying what we're saying is that if there if there is an exemption if there is an agreement between two united states and another foreign country at that point you have to take reasonable action but you don't have to go and take reasonable action any sort of appeal just to appeal when there is no exemption that you're pointing to and so in sort of the earlier findings of the board that's what you know that's our reading of what they're saying that here what we're talking about is reducing it down based upon the number of employees or whatnot but they're not according to any actual exemption from you know they're not supporting soon agreements between afghanistan and the united states the appeal to the accent government in other words that the clause two to ninety six i doesn't apply because we're not talking about an exemption here what they were saying is we're not exempt from the limitation provision we're just saying we shouldn't have to pay it because of or it should be reduced because of is that your argument that is that is correct and the only other the only thing there really pointing to there are these  government statements but again when you look at the provision itself what it's talking about there's two situations here one is a situation where united states and a foreign government enters into an agreement there's no evidence of directly that occurred  situation would be when the taxes quote are exact and there's there's no evidence in the record that these if we're going to call them taxes that they are exempt do they solicit let me ask you this i would assume  would assume that the government was meaning the federal government our government was happy that triple canopy obtained a reduction right well i don't i'm i'm not  shouldn't isn't it to the government's advantage that the original amount that was assessed by the afghan government was reduced that's a good thing for the government isn't it well i mean it's potentially that this particular situation there was a small reduction you know there was there was some sort of a small reduction here that that's that's correct but that's i mean that's that doesn't necessarily equate with a situation whether or not a contractor has to take those steps so if we circle back and compare to the electric boat there are the there is the contractor is saying well we st had to go to the government and once there was this this change in law and then they needed to you know sort of deny the costs or not and so to some extent you know maybe for whatever reason that that process happens and cos reduced and the government is able to at the end of the day pay a lesser amount but that doesn't mean that that affects when the claim accrues because you have to have to actually look at the exemption and we frankly it may help triple canopy in this case but we don't think it would normally help you know every contractor to have a situation where you're imposing some sort of additional duty be determined by you know it would turn on what the provisions of each particular contract provided but one final thing what are what are we to make them and i think you touched on this earlier of are we to conclude that the government says the really required i'm not going to know i apologize we are earlier i read the statement of page eleven of the board's opinion that said triple canopy had a duty to notify the government of the potential fine and to challenge the amount of the fine is it is that your position now on appeal that that statement by the board was incorrect well i think it certainly inconsistent with the earlier statement that triple canopy of counsel is pointing to it and the statement that i think we more addressed in the briefs which is that this was not a mandatory process so both of those can't be correct that i don't think so  to that extent we think that the st statement that it did it was not i mean it was an optional process we think that that is a correct statement that was not shared and to the extent that those those later statements are inconsistent  that that could be air we certainly don't think that you know the fact that there's an inconsistency in the opinion would you know necessarily require reversal or what now we think it can be affirmed by the wrath of the plain language of  seems to me that absolutely contrary to the government's interest and i find it really really difficult to understand well can i address that very briefly your honor  there are other provisions here in the form tax clause as well see it asked about this prop notification provision so if you actually look jay does require prompt notification and so in that situation the government gets notified if they have an issue they are contracting officer can direct a party in that situation if they want to to go and say you know what you have to go challenge that and in that situation if that's what happened in the contract or does not comply with that specific direction then they would not be recalled be able to recover under the foreign form tax crimes but we're not saying that there's sort of no situation where a contractor would not have a duty to go go in challenges but we're saying under the plain language here it was not required thank you your honor the government's argument that there was no additional duty is contrary to the foreign tax cause itself it requires the contractor to use all reasonable efforts to pursue the exemption and its argument that well it wasn't really an issue about exemption it was needed to do the work and so that was the basis for the exemption that triple canopy was pursuing on appeal it was following the rules laid out in the bar and was following what the contracting officer told us to do and that's a public policy exemption the same time exemptions you would reconstruction efforts we agree you don't know anything that's not what they did and said they reduced the amount but that's when the liability fixed that was the point at which any any claim of crude and triple canopy timely it