in order to set off a claim for liquidated damages the claim does not require certification if one examines the rocks co decision it was very similar the  by a decision of the court instead think the argument is that when it requires claim sort of case under section six zero five the one that's required only for contractor claims and believe that the rights good decision would find the exact exact situation here then where the government seeks to collect liquidated damages play offs that inning the damages against the contract balance that it's not a contract or claim that requires certification but instead a government claim that would not require certification the decisions regarding certification cited in the government's brief don't involve this issue as the distinction between government contractor claiming that they were all decisions where and  contractor was seeking additional funds there was no issue is that all or consideration that it could have been a government claim similarly the son of a go decision that is cited by the government in its brief on this issue the court that the inquiry is who took the action after the government withheld the funds forcing the contractor to file suit to recover them then it is the government claim on a contractor claim which does not require certification doubt the underlying dispute the amount and the basis so think anybody in this case could disagree that the issuing in that case goes away all the parties understood all of the law that the issue  st george decisions which i referenced and i appreciate that that's a lie twenty second two thousand and two letter was sufficient because the contractor indicated in that letter that it was taking a contrary position to the government and the band in chorus the the requirement is that it put the government or the contracting officer on notice that the basis in not a they're not necessarily of some third in this case the contracting officer was put on notice that the contractor disagreed with the assessment of liquidated damages and it's a problem is that it's not clear from this letter whether the request is for one hundred seven days or whether it's a request for three hundred forty five days or some other number in between it just the letter of specifically to the july twenty second letter specifically refers to a hundred seven day extension court was was that according to sonny eagle and elgin builders that a contractor seeking to contest a look at it damages assessment based upon entitlement to extensions of time is required to submit saying that there's no way that they would be permitted to defend that claim unless they had filed a separate claim with a contract officer for an extension which would have course would have negated the claim for did not argue it below the trial court specifically founded page forty nine of the joint appendix that merit pay case raise no genuine issues of material fact regarding the imposition of liquidated damages and quote nor does the plaintiff or law on its earlier unsuccessful attempts to persuade the navy to extend the contract to the final question of material fact in terms of the fact that it took longer to perform then was the setlist in the contract and that liquidated damages were included in the contract but there certainly was a question as to responsibility for the delay that that may be but in fact that was not raised in opposition to the government's motion for summary judgment i understand you're saying they never asserted delay was due to the government they did but they attempted to do it based upon their own assertion of a claim that is they attempted to show that the government was responsible for the delays but in doing so they e i guess i i guess i am but i would just again emphasize that as a very curious position for the government to take is that not how the world can contractors cope if such lines are to be drawn in this particular case the claim consistent with signing on elgin was that the a term in the contract should be adjusted that is the completion date in the contract should be modified according to the delay assert that w unless they do it by requesting an extension of the term yes they need to come forward the request although i would again emphasize that they the court need need not reach that issue if it doesn't if it is extension of time let me just i believe that's true but again here when defending against the imposition of liquidated damages they did not raise the place they asserted it was due to the government's del that's not raising the defense that it was due to the governments didn't they raise the defense that the liquidated damages caused was a penalty in response to the government's motion for summary judgment not that the government's motion should be denied because we were entitled to extensions that is it though if it finds that the trial court was correct that the july twenty second two thousand and two letter which is the only communication relied upon on appeal does not constitute a claim because it based on the truck what findings and because of lack of sort of certification then that's all the court  likely didn't do that in the trial court they did not actually raise those issues in response to the government's motion in the trial or they didn't get to it because the trial court because they had argued before the trial court at first that they had in fact their own claim and they essentially circled around at the end and said well this actually isn't isn't our claim it's that it's a government play and they tend to argue based on place where rocks go that this was in fact nothing more than a government  before this court because they didn't attempt to do so in the trial that is our position here with respect to the letter the july twenty second two thousand and two letter america pickett's relies only upon this communication just a year earlier it did not state a request for a final decision it did not provide to some certain and it was part of ongoing negotiations it is in july of two thousand and two when the letter was sent the parties were still engaged in a back and forth which is a later october two thousand and two meeting in which they all alternately discuss this issue this issue they claim as the truck or noted represents an impasse and let in the negotiations a point in which the contractor must decide that it can no longer negotiate with the government and that it must then focus its attention on complying with the c d a for purposes of pursuing its claim and finally murder pickett's raises claim an argument regarding the jurisdiction of this court and i'm sorry the court of federal that accurate at least if you look at the history of the court of claims it could have will adjust once was something that they constantly did and as a result they were deemed a fair and just arbiter of disputes between the government and its contractors you're saying no more equity no i'm simply saying that for the purposes of compliance with the c d s equitable considerations which they have raised in their brief such as well we might not have technically complied with the c d s but we did the contractor should have known or the government was assume it is the basis of much or most perhaps of the claims against the government and just want to be sure i understand the government's position is that the court can no longer consider equity the court must still look to the requirements of the c d s and that the a failure to comply with the requirements of the c d a whether it's filing a claim or seeking or tending proper certification on that claim necessitates dismissal of the action so you are saying that equitable adjustments are not available i'm saying that equitable considerations can't relax the jurisdictional the off the already existing jurisdictional limitations placed on the clinic question jurisdictions and is it you're saying that they lose because they didn't file a claim with a contracting of comes into court without obtaining either without other submitting a claim or obtaining a final decision it has no the court has no jurisdiction concerns won't be sure i understand the government's position they're not permitted to rinse delay as a defense they have to it with the contractor who officer having failed to file with the contractor the officer then now barred from raising it is a defense and the court is precluded from considering the equities the government's hardiman is that if it to the extent the plaintiffs makes an affirmative claim to adjust terms of the contract that is a claim that requires compliance with the c d r now in the in if the place way characterization of this and that this is nothing more than a government countered by the issue of whether merit pay case may still despite the fact that it did not file a claim or receive a final decision may still defend upon those alleged delays is not befor this court because it was not arguable oh they did not argue that notwithstanding our failure to file a claim or submit a claim and certify it we can still defend they did not argue that they argue the only that the clause function is improper liquidated an improper penalty and that equitable considerations regarding the whether a claim need be filed or what the government may or may not have known is simply does not displace the jurisdictional limitations was damages from the denial of the request to extend the time of the gun that seems to be different from what you were arguing that just challenging the liquidated damages as improper penalty when they did a service based upon their belief that they had submitted a claim and they did assert that we would that america should have been entitled to various delays various extensions based on t they were there were they were presenting a claim or an extension of the contract terms based on the various delays that they attributed to the government yes their complaint does that yes but in to the government's motion for summary judgment they did not raise those issues they raised only the idea that the clause functioned as a penalty the truck court made that fine it's a page forty nine of the joint appendix specifically states that the plaintiff does not rely upon its prior request for extensions of time in response to the government's motion for summary judgment so you know that saying that they they didn't assert a claim for an extension of the time of the contract you're saying that that they both asserted a claim for an extension of time and defended the government's claim for liquidated damages and with respect to the government's claim they simply asserted that that was an improper  complaint the government answered none asserted a counter claim for the liquidated damages actually kind of claim for an additional sixty thousand dollars which was the amount of if that liquidated damages above and beyond contractor tain at the court pointed it's newman's discussion concerning equitable principles but we believe that the trial court should be reversed based on the reasons i previously argued would also urge the court to consider  in any way shape or form these are cases that are wholly unrelated to one case involves a request under fairness an aqua the ground impose automatic indemnification against the government when government contractors produce poison that substances such