court reverses a court of federal claims and finds the north bank was indeed equitably subrogated to the rights of c p such that it can bring contract claims against the government then the case should be remanded to the court of federal claims the fact that the court granted summary judgment in favor of the government on that claim has no bearing on the contract analysis that that the court did reach because because it granted summary judgment prematurely in our view on that issue subrogation applies only in two circumstances when the surety takes over contract performance for going to finances completion of the defaulted contract and the second part of that quotation was a quotation from this court's decision decision and insurance company of the west but that's not what this court said an insurance company of the west what this court said is we have specified two circumstances in which a surety may succeed to the contractual rights of the contractor against the government and then  two circumstances which is the same quote from the government's brief then let me ask you this if we accept your argument doesn't it mean that any bank or any financial institution that provide funds for a government contractor to perform a contract can step into the government if the original contractor goes bankrupt no your honor that's not not the case we'll what did you do here to distinguish yourself from that general  correct but we did step in and win the contract in two thousand and ten b p s sent a loan modification of the engineering approach here meant agreement and this is expected but it was permitted under at that point just as the lend the bank had no idea who was providing the funding the government had every idea who was providing the funding because we submitted a irrevocable letter of credit to b p directly from north bank to b p june of two thousand and eight which if you provided funding we provided an irrevocable letter of credit to this is not helping me distinguish your case from any other bank that provides funding to a government contractor you provided additional funding when the government said to the contractor you need to show proof of additional money we provided additional funding and we stepdad just as the bank and  paid off debt owed by the contractor in that case it stepped in and continued performance of that contract only in a limited sense of stepped in on a one time basis it didn't guarantee performance it was because we were faced with the same prospect as the bank and first national debt all of our underlying collateral all of the underlying collateral for twenty five million dollars in loans would have been rendered valueless i still don't see how this is going to distinguish it from any other situation where provides additional funding and the contractor come back comes back and says i need more money and you and your position is well if we don't we're going to lose her initial that does that mean in every circumstance that bank is going to be an equitably subrogated well i think the additional point here as i mentioned is that there is an irrevocable letter of credit that nor banks submitted to b p a b p a was well aware and the government if it had been a check with that have been sufficient if it had been to check drawn on your bank the government would be on notice that you were providing money my plan is that that and that this is the court of federal claims distinguish this case from first national on the basis and this is a quote from the court's decision the government had no dealings with north bank prior to this lawsuit and that's simply incorrect throughout from two thousand and eight to two thousand and twelve throughout the course i think the court was using dealings you it didn't demand a letter of credit specifically from nord bank fact the contractor could have gone out and gotten money from anybody if it wanted to pursue meant to b p s credit worthiness requirements court of federal claims meant by the word dealings but there were dealings that well he presumably meant that it had to be something more than providing general financing for a contract to get you into an equitable provide that letter of credit would they would your position be that they were segregated no i think it's the combination of all these things that that makes nor bank fit into the exception to the pretty rule that the court of claims set forth in first national wide because you provided initial funding because one we had dealings with the government and if you look at the dealings let me let let's put that aside is it your view that because you provided initial funding were risk for a loss of that investment and then provided more funding to protect that investment that's what gets you here that's right and that's the general well why wouldn't why would you need to provide more funding that if if you provide general funding and our risk for that loss of that investment why can't you be separated just based upon that principle because in that case the bank financial institution would not fall into the exception that the court of claims set protecting was the threat that its underlying collateral was going to be rendered valuable valueless if it didn't take this action so the banks had not authorized c d p to borrow three point seven million dollars in additional funding in september two thousand and ten frankly was not inclined to provide the additional funding but faced with the prospect that all of the underlying collateral that it had interest in for its twenty folks five million dollars in loans that it provided  business decision i mean you recognise this company is potentially going bankrupt unless it has this additional funding you make the decision to provide more funding so you don't lose your initial funding but you're taking the risk that you're sending good money after bad it's it's no different than when you funded the project in the first place that you knew this was a start up it was probably it might have been a risk of losing the investment i don't understand why providing additional funding in itself  we provided initial funding and then you're making the argument if i understand you after providing general funding you it was whole feel you like your bank to provide the government benefit from your bank feeling poultry to the extent that and i don't know what the government's interests and continuing with wind farm project was but to the extent that the government that the bo i'm trying to find a linkage between your second round of funding and the interests of the government well i'm not sure that there is an int i mean it seems to me that their argument to be made both ways i mean they're the bank specifically paid off the small business administration so they specifically took over at least part of the contract in paid see funding paid for their dedicated service but this case is not about that this case is about an engineering agreement and involved in an environmental agreement pursuant to which deposits were were placed with  first point which is that if you disagree with the procedural objection the case is over because that means that that was higher than the patents correct so that if you find that i disagree with my esteemed opponent that the case goes on it is over that's our position on the question of first national the basic distinctions the one even made from the bench which is that the refinancing bank paid off the debt of the contractor to the original bank and thereby stepped into the shoes you pointed out of the original lender it's a little bit ambiguous who shoes the clues court said they refinance under stepped into it could have been both s circumstances and the slippery slope you pointed out i see no principled way to limit so it would be opening the flood gates and thereby reducing sovereign immunity almost nothing when there's not a lender that applies i mean that qualifies under the government contractor a company that was hired by the postal service to renovate the postal service the postal facility ok where there was a specialist so the government contractor was concerned that when it did the work of one of its workers damages when that happened and a postal worker sued the contractor for whatever reason the postal service refused to abide by what the contractor believed was in and then the provision of the contract so instead the general insurance company stepped in and protected the contractor so the general insurance company said ok we've really satisfied an obligation the postal service had under the contract by us stepping in and doing it so we should be subjugated to the rights of the contractor to sue the postal service for indemnity for the sums that we pay and this court rejected that in this underwriters case stating that yes the general insurance company m to the claim of the contractor to suit let's say the manufacturer of the especially this that that is yes in the shoes related to that issue but it had nothing to do with reconstructing a postal facility and therefore it was not stepping into the shoes of a contractor with respect to the contract between the contractor in the postal service therefore there was no right of the general insurance company to sue the postal service under the an equitable subrogation theory and it threw that out determination that's right because we felt that it was an incomplete record thank you thank you can't these matters stand submitted