administrative proceeding the primary conduct that the lower court found justified the liability or no no as a matter of fact and he never did that analysis of this fee decision and when he read this is tell me what the primary conduct was that he found the primary contact that he found were violations of the lease if you walk through the decision and you say ok where are we're out of violations he found in our favor based on  interpretations of release in a lesson out of thirteen of the cases that we had before the bad faith so that's primarily the bad faith occurs in our disputes process and this is critical to our to our procurement system occurred after the cases had accrued and they were then before the contracting officer for what was supposed to destruction alteration of documents now under the centex case under the centex case if they had approved it doesn't have to be by the department of justice and the issue here is really whether we yet even after being radical water yielded little in government accounting mr peterson and others press corps and eventually obtained a criminal investigation of this matter that investigation delayed resolution of this case by more than a of their desire to use the wheels of government to grind down their story for its failure setter and then in the foot no they talk about you are and the use of the audit for legal purposes beyond citing the the cells case so what we have have a contracting officers file decision who said they continued it all the way through two thousand and seven which the court found they shouldn't have done and therefore the so then the other direction was the destruction  is that mr or that the d o j lawyer didn't didn't do it but i would also say i would also say that i would refer you in that regard conduct administrative claims process i don't believe that's what i believe that's the case you know that was part of the there was no no award there was no money process that took place you didn't suggest in your complaint that the government was not in good faith and fair dealing during that process i don't recall whether we did or not but it wasn't part of the prior conduct that what we were complaining about which was violations of the which he received compensation both as a result of the decision and as a result of the final decisions and the independent board that they get after the judge's decision were based upon breaches of the lease that's the primary  but i just wanted to make one of the point to think about it is really following up on what you're saying is we are going to our police and i think it's absolutely correct that once you get to the point in the administrative think it's absolutely true because penalties apply interest applies and the contracting officer is required to do a good  claim in there for unspecified damages and this goes to what the contracting or officer was doing that it wasn't being independent they talk about changes of decisions and they're they they allude to that they don't specify them but then in their two thousand  claim they claim that the army was such a bad tenant that compared to a comparable a somewhat comparable project at an air force base we owed them money because we had diminished the value of their of those properties that included this this claim that even the contract disputes process had been compromised and that was part of what judge a letter understood and which as a letter said here is reference to mr hobson of themselves to be co opted and by failing to address the benefit exhibited by other officials so this was part of their theory of their case that we breached the lease and therefore owe them if not those damages specified not specified in the one thousand nine hundred complain then eight point six million dollars in the diminishing edge of the alleged of diminution of the value of those four hundred units what about the investigation on the locks and the the subsequent criminal investigation yes well further army interest in what else was going on that what it was was commenced at the at the army level the army auditor came to his conclusion saying that not much else was going on but then others got involved and and i'm not specifying who those others are because they are the subject of in camera submissions that were were submitted to judge allegro and apparently persuaded judge electorate that that the stay that was imposed was warranted and and should last for as long as it lasted investigation well he did find concern that the a wrecker auditor statement reflected at least upon the part of the army a another way to get your start but there's no evidence that that was done and judge later refers to other government officials in his in his decision on this point and he is alluding there to who else was involved that he's aware of through those encounters admissions that north star has never tried to challenge on this point the what a judge order calls that this best faith exception or the course in her course inherent participation was not available to vindicate even porton public purpose in the statute and that's what this sounds like it sounds like northstar wants the court to vindicate the purposes of the cd the contract disputes act with respect to the claims process that is not that has not been taking judicial authority that is vindicated something else and the supreme court has has signaled that that is not abuse of the judicial process that is the issue and judge later did not find that the judicial authority of that court federal claims require indication in this case for the reasons he describes and and  case where that sort of thing might have happened i'm not saying that it was anywhere close to happening but judge a letter ordered every man on the on the issue of incentive fees ordering the army to go and look at these incentives these decisions it had made that asking for a broad and sweeping rule that would be anything outside the context of litigation purely litigation during happening in front of the c f c or this court can give rise to be shipping you're acknowledging what we left open in fan text which is that there is there is the possibility that bad action that occurs prior to realty ssion could give rise to attorney i think we might be saying the same thing but i but i want to be careful it has to be part of the litigation now that doesn't mean it has to be somebody on the stand but it does have to be something that is somehow connected still occasions so for example when just a lawyer ordered something something be done if and this sort of thing happened in maritime management and brown for the cell in which there's a lot of discussion about the reason if the agency doesn't do what it's supposed to do with and in the context of the litigation self than yes it doesn't have to be in the court room to direct between the court and the judge but you're saying it have to occur after the judicial process has been know and i'm trying to understand them and so that you are part of what of what centex alluded to if we had raised any benefit defenses to award justify well this court did make a statement that sounds very much like that incentives on page thirteen seventy five to conduct their government agencies and agents before that time forking over there for all of that of the claim cannot form the basis for a war occasion judge lever does get to that point and he says that they don't show it or start doesn't that anything in this litigation was unnecessary he describes for example their show to prove that eight point six million dollars in your claim as you characterize it and more importantly here lease provision as we were doing here that the denial of our summary judgment motion in two thousand and two which they claim was the order violated was of course not in order to do anything it was a decision by judge allegro that our wants and westpark it was not all that we thought it reversed and tooth was carthage in two thousand and three on our next opportunity to weigh in on that matter in two thousand and four and and this is in the appendix we have been in that position and they they never presented to the contracting officer at up until that time a request for money so we still had jurisdictional defense to to do that appreciation claim and the point so the point here is that even and judge will ever consider this even under that more expansive view of that of the exception they after the contract dispute resolution process had taken place it depends on what claim we're talking about because there were thirty one claims and the and the appendix lays this out starting at age one twenty one then there were three cases they were consolidated for convenience so it's difficult to know what claim we're talking about what claim did they get remuneration or they got well it's that's that's a little come get to that because the judgment on page thereafter on the strength of what judge labor said on the on the lease provision issues they submitted money claims that they hadn't submitted but had raised in a declare well they know they had not submitted one claims to the damages caused by that and no one would talk about because we'll we'll never makes that most unusual nobody talks about what the contracting officer did here they were saying that the whole the whole structure at the army its entire way of dealing with them on this lease was different from the way we did the government dealt with them at that air force base and therefore it's not the same plan if it's a related point but party but therefore because we were such a bad tenant in all these respects we owe them a point six million dollars because they're there the value of their houses diminished on the on the local market so even the contract disputes  matters were woven into that and we spent all we spent a good deal of time at trial talking about whether mr hobson had been corus whether mr klein the previous contracting officer had done his job whether mr everett and his job so they need a part of that point and chambers itself that there has to be some fraud or abuse of the of the judicial process itself because that's what the court has power to do through its inherent part of sanction after all this is a sanction it's  recalcitrant litigant for what he does during litigation not for things that he may have done outside the litigation context that work in ministry of nature and by the way and to point to respond to something they say that no with those service just bored to your point and that's just true they left an opening in centex that if there was bad faith conduct that required litigation to occur during the administrative process with respect to the investigation with respect to the its iraq will auto and with respect to the destruction that these were all done in bad faith and the only the only distinction he makes in his decision is that they were done by the department of justice that's his only distinction yet they were part of the litigation they were critical parts of the litigation and so therefore there was a beautiful direct the equal access to justice act extension of the minimum and the five certain cases that we servitude to you and there are no no circuit cases that say that there's been an abuse of the administrative process that requires faith during the litigation it may not have been the thumb sole and substance of what the court cited but in those cases the primary conduct were the non judicial conduct with in tandem with continue differentiate your save document or didn't do it that's his whole defense is it done can or didn't do it if you read the underlying decision in the areas of i was talking about he makes specific findings that the army did this very issue which was a key issue with the case depreciation that's a that's a real low for the if you go back and look at the underlying that was found of bad faith on the part of the army and the same thing's true with the with the audit