simplest and most straightforward way for the court to result is the peel would be to hold that the decision below must be reversed because the trial court refused to follow this court's binding precedent in g h s h m a this case is an all forced with g h s with one exception that actually makes boeing's case even stronger as in g h s boeing claims that a regulation of clickable to the administration of its contract with the government is inconsistent with the governing far as to hold that it was frivolous and the porches do the same here boeing urged the court below to follow g h s but the court refused to do so because the court said and i'm quoting from page twelve of the appendix the the provision being challenged on the later appeal would occurred in a regulation and where we said zat could not have been off the top of my head i'm not thinking of another but i'm not certain that there is an ok as part of what i'm trying to figure out is the relationship between your argument about non and your argument about i'm going to summarize it as lack of likeness had you brought a suit earlier why could you not back in whenever these contracts allowing a contracting officer to negotiate about the treatment of tonsil future cost accounting changes well only two conceivable proceedings for making such a challenge have been identified by anyone in this case either a big protest or an eighty a challenge and it is clear as a matter of law that neither was available to both a big protest on questionably would have been dismissed isn't right because it was whol speculative at the time of contracting that the challenge regulations would even be a fine during the administration of boeing contract this regulation only applies to several circumstances come together number one but i guess part of what i'm trying to understand about that and i take the general point which which has some appeal to it but aren't there are rather a lot of contract provisions or solicitation provisions that are contingent on civil but not certain developments during the administration of the contract just drawn there there are some but don't forget this isn't a contract provision the challenge regulation was not  beyond that your honor i would direct you to the costa county statute itself which confirms in terms that the forum for raising the dispute over the price adjustment which is the underlying dispute here required by changes in cost accounting practices are to be resolved issue it to the contract disputes that not in a bid to protest that section fifty three dollars a and more generally this court has recognized that it is well settled that matters of contracted ministrat must be challenged in a c d a action not in a big protest under the tucker act that's coast professional and i think the rightness considerations are what drives that rule and to go back to judge trying to your initial question of how these points that in with the points we made about g h s our point is there was no formal not the contracting officer not a big protest not an a p a action and by the way the cost accounting statute specifically precludes eighty eight challenges that's in the dino three g and and our overall point on this is that there was no forum that if the contracting officer or a bit protest or an a p a actions thought we were right on the merits could have provided us the relief and the essence of the waiver is you had an earlier opportunity to get your objection consider regulation is sorry tell me if i'm wrong essentially a pure legal contention why exactly under abbott labs or whatever the current  standard is would a suit challenging that at the time of negotiating the contract not have been right and if successful allowing then the contracting to to make clear in the contract that the kind of aggregation that you think the statute requires would in fact be available because it's well settled that a big protest is not right for her view when it's contingent on future events i would administration for this dispute even come up beyond that your honor i would direct you to consider the practical implications of the rule that the court below is not just contractors on pain of waiver would have to canvass the united states code the fart the defense philosophy to identify any provisions that might conceivably be applied if some point during the administration of the contract and see what it was actually would be an advisory opinion from the  that had a remedy available to it because the contracting officer had the power to change it from fixed price to cost contract if it agreed with contract into a cost reimbursement contract yes your honor i think he may have had to invent a common thing for contracting officers to convert a proposed fixed price contract into a cost reimbursement contract is incredibly un common in the only circumstance i can think of where a contracting officer might do that is where it is convinced by the argument that eighteen t was advancing th premise i think that the provision of fifteen sorry that you say the regulation violates that the statutory provision is part of the contract why is that so understand why there's a difference there is there's two different regulations that you need to divide here regulation number one is the what's called the cat's clause which is incorporated by reference into the contract and it requires the parties to whenever a cost accounting adjustment is made to follow the can statute in figuring out whether there should be a equitable adjust ok so that regulatory provision is part of the contract and you say that that regulatory provision necessarily incorporates the statutory standards that's correct ok that's a sufficient answer to my question thank you implementation three years before entered into a contract and exchanged emails about farce thirty six thousand and sixty six months before entering into the contract they did not address the emails in the what you mean by raise the challenge in a way that indicates that was a realistic time that there was a realistic possibility in so raising the challenge of would challenge the provision and then proceeded on the contract and then i'm sorry let me just ask but the reservation reservation would do what exactly when the contracting claims agreed that there was a waiver which means a bypass of an available opportunity which seems to me to require some stablish meant of what opportunity there there was that was   can see the the bind you're you're in a bit because i mean all too often we see the government taking a position that contractors don't have standing or they lack  rightness for any allegation that they try to raise in a big protest and you know as i understand it this isn't a facial challenge the regulation that they're making and making and as applied challenge and it didn't get applied to  many many many years into the performance of the contract that's why i'm trying to figure out if you can't tell us that they definitively would have had standing and any challenge this regulation in fact w been right at the time of the the bid then i'm wondering how can we say that this was in fact waived when they didn't  request that the court not only invalidate the regulation as applies to the contract here but also invalidate the regulation as a place you all of its contract throughout the entire government that type of challenge is a ph challenge that can't entering into the contract and nevertheless this court upheld the government's attempt to argue that they couldn't are you against the frivolous was a frivolous because the waiver frivolous because the section was incorporated into the contract and therefore g h s knew about it was it frivolous for another reason when it was long ago shabelle what exactly does that mean there's no or why or what could be the possibilities of how to understand the statement in that opinion that says the non reconciliation regulation w to me that's strongly suggest that the contractor in that case it would have been few tile to raise any kind of challenge or vicar about the regulation at the time of and that's my question i i don't understand how there's some ambiguity in your opinion and i'm asking you to explain to me where is the ambiguity in the opinion  was there no way to protest but at the beginning or was there you know why did they not protest that there's i certainly understand your honor's point but but simply with without any explanation as with blue and gold and the pain ambiguity doctrine it's very difficult to understand why it must be it must be applied or in what way and was the government's position that there's just something to murky about this paragraph that it doesn't have any presidential value at all it doesn't there's no take away that it could rely on the section six hundred and thirty one discussion because it was simply insufficient to provide any type of rule or explanation and because the waiver discussion  face conflicts with the plain meaning of a statute that qualifies as a patent ambiguity that must be raised at the time of   you know conflicting statements and in the solicitation as to what is the quantity of requested items or something like that or what is the scope of the work and there's two different statements that seem to conflict with each other that's the kind of thing that seems like a very clear on its face and beauty that the rule in cases like blue and gold is trying to  induce people to clear up on the front end rather than the back and i've never heard of a situation where a regulation on its face that arguably conflicts with the statute on its face e mail that pages appendix pages eighty five thousand seven hundred and fifty nine dollars that this is something that if it understood should be obviously illegal and contrary to the far and so here the pain ambiguity is one  own making or boeing is understanding that it shows just a file so this is a very in this particular circumstance where where the contractor is mrs lee knew of something that is believed to be illegal type of situations where a sophisticated contractor like boeing and then you know and then just you know rolling it back into a lot of the original questioning this regulation was non negotiable so what could the contracting officer of done at the time if the contractor it said wow we have a we have a page in ambiguity here between this regulation and the statute says i and everybody the st question i have for you is though what could the what relief could the contracting office or the contracting officer have possibly given coming regarding their concerns about the far regulation i mean the contracting officer couldn't for example say say ok we'll exempt this contract from that far regulation could could he did the officer have that personal authority he did under so what really did you say i'm just trying to understand what relief does the government believe the contracting officer could have provided if the we had made this challenge below raise the issue with the contracting officer well certainly if boeing knew as it did that this provision was illegal it should have raised the issue to the contracting officer but there's nothing the contracting officer could report as well if they were looking to invalidate the entire regulation but an eighty eight challenge in an a p a challenge and district court doesn't get you to waive or right like that has nothing to do with whether they waived in this case by not raising it in front of the contracting officer right honor if it goes however to the fact that that boeing apparently threw up that pan years ago and said ok we we think that this is a legal we're going to do nothing wait for nine years and then bring the challenge ok let me ask you if you don't mind just quickly address the illegal exaction i plan on asking on rebuttal the opposing counsel and so i don't want you to not have an opportunity to present your argument on whether or not the deprivation of property without due process and those those claims can only arise under to correct or stiction if there is a statute that by expressly or by necessary implication entails the return of money and the chasm is not money mandating in that manner because you get to that has there must st be a contract with the government and the year of the contract judge  statute i do not know off the top of my head your honor my my apologies don't you they also cite ontario power or is that something you're familiar with because it might not even come up my colleagues suggested that boeing could have brought in as supply challenge that's what we did at the st moment that this regulation with applied to these contracts to this contract boeing challenged it using the mechanism provided in the cast statute itself section fifty three dollars a says you are to bring a dispute under the contract dispute that judge moore a title five action was not available for three different reasons number one section fifty three g of the cast action expressly provides that the challenges to the price adjustment which is the merits here are not subject claim could proceed without a money mandating statute if it's a case in which the government has forced the private plane to give the government the money and all the plaintiffs is trying claiming boeing has paid but not all of it and if that's true does your illegal exaction claim apply only to your effort to secure back eight thousand nine hundred dollars and change per month payments or does it also apply to get paid monthly payments cancer part one of your question you're correct only some of the money has been paid to date i don't know the exact amount but it's occurring as you said it eight thousand nine hundred dollars a month and in light of that you're also correct that the judgment assuming we prevail on the merits in this case would be limited to a judgment for the amount that the government actually has we would hope that with a dependent of judgment the government would no longer is insist that future payments be made but if they did we would have the ability under the indiana michigan line of cases to spent fuel cases to bring follow on suits to recover follow on payments if the government indeed forces to make this this is judge chen last question on the legal exaction claim i believe you pled that  alternative to your contract claim if we were to hypothetically reverse the claims court on the c d a claim what would be the purpose of continuing on with your legal exaction quite well i think word would we need to address that judge chan i think you would have to address it and here's why the only thing before you is on the contract holding that we waited we obviously have not litigated in the court below on the merits of that claim and while it's hard for me to conceive of how we could  lose on the merits of the contract claim and yet not on the legal exaction claim i don't want to let them not in the alternative for a reason if there is some technical reason not related to the core question of whether the statute forbids the government's regulation that somehow not got a contract claim we would still want to proceed on our legal exaction claim i think you'd be in a different profile if both questions were up here on the  merits in that case it may not be necessary to address them both but given the procedural profile the case is in we would respectfully ask you to address them both so so is it fair to characterize your argument is we're not sure if we need a legal exaction claim we're we're at the complaint filing stage we filed a complaint it's standard practice for a plaintiff to assert alternative cause of action we clearly think we're right on both of them but obviously we can't get a double recovery if we prevail on one but not the other we would be made whole so it's as if at this early pleading stage i believe we're entitled to maintain both of our cause of action counsel anything further if the court has no furthe