from fundamental basic rules of contract interpretation the principle issue is the gaining of the common english were terminated terminated were terminated as used in the equitable distribution provision of the limitation of funds clause and as the contract contain a terminations klos indeed wouldn't that tell us what it means when we look to that clause and say well this is what they mean my termination you you would your honor but when the common practice both in the far drafting guide and common english usage when you refer mean a specific clear out as you capitalized the term and that is not done here as we point out in our brief when the government wanted to refer to that specific germination clause and so paragraphs the and f to it use capital t germination so that's the difference when they use the phrase easterns on capitalization that is one that is a reinforces the argument that the plain meaning of terminate should apply other words tell is that determination is such a a clear legal term with legal implications that is permeates all of our contract law there terminations  terminations convenience terminations all kinds of germination i'm just having difficulty finding a way to look at that other than in the context of the contract of provisions the termination there really are only two types of termination i believe terminations are the formal term vision for convenience as a general rule capital t in terms of formal clauses but in this case in a case a contract involving limitation of funds that is incrementally funded that often doesn't make sense you can terminate an incrementally funded contract simply by not funding it anymore you wouldn't as in this case at systems integrated that fully perform you certainly wouldn't terminate them for default because they were finished and they had complied you wouldn't terminate them for convenience because the contract was over there was no need to do it but you could terminate them biden not funding it further common english meaning or usage of the word terminate in other words to bring to an end to a conclusion to reach that to make that point well if we disagree with you about the meaning of terminations here and conclu the equitable distribution provision as shown by the facts of this case applying the government's interpret the board's interpretation deprives his contractor of potentially over six hundred thousand dollars worth of cost of incurred in benefited the navy with terminate this contract but your honor if you look at the the predicate for that is indeed first you have to give notice sixty days advance notice of the impending override then you go to e notice they don't fund it then you can the contractor and usually can can request or almost require a formal termination in this case that when they couldn't request of the terminations because they didn't supply the notice that they were nobody wants to know contractor wants to be in this position but it's not an uncommon situation in these type the types of contracts that and it often happens at the indirect rate you finalize your weights after completion that's under the clock clause fifty two to sixteen that chevron allowed across in payments it requires determination of actual cost after completion of a performance well it often occurred some two cases i know that i cited it turned out that they had been under bill a contractor that been under billing all the time and did not know that he had a cost override so deal me just don't operate in this situation the equitable distribution clause i think on its face applies to the situation where the contractor didn't know and can't excuse his failure to know of his cost per round yet doesn't want to give the government something for nothing and penalize the contractor for performing that's the purpose of the clause and i submit your honour's that the took to produce the harsh result and this is a harsh result in this case the the contract language should be far clearer than it is because the government could easily have said and in the equitable distribution caused the comp if the contract is terminated for the terminations clause as it didn't need but they could have also said instead of using the word terminated which is so on with legal meaning they could have said cancelled or completed or finalized they could have found some were other than terminated which seems to clearly indicate  germination for convenience is incorporated common the right to terminate for the fact is there well i think the answer is again in paragraph eat paragraph is a very unusual provision in the council of government even noted it in their brief that is it's giving the contract the contractor the right to in effect exercise a formal right of the government a form of government terminations laws so the reason for this predicate language in k is my supposition or my offer of why it is why it's there in the first place is simply to to reinforce or eliminate any possibility of confusion that by giving effectively giving the contractor the right to terminate any they don't mean the far drafter didn't mean to abrogate the government's general right to terminate it for either for default of convenience but i agree with you put an interpretation that relies on the plane word marry me has got to be within the zone of reasonableness so as to call for the exercise of the rule contra proffer and i'm the government drafted this clause systems integrator had no say this is almost a classic contract of adhesion we had no they had no say on this on this language and so in those circumstances quote concludes that system agree ron i agree and i'm saying that that's what i was reading of the equable distribution term here is entirely consistent with the rest of the contract it's inconsistent primarily most importantly the terms and purpose of the petition of funds provision in which the appears why is very different approach in the limitation of funds clause and the limitation cost last year that's basically what they're complying and they're saying under the limitation on its flaws the would be and what will distribution it doesn't w what the what the rationale for that difference is but certainly in the limitation of funs context where the government can only spend what it has a lot  under the contract and the clause clearly makes claims that the government is not obligated to spend anything more that if the contractor goes out and incurs expenses beyond what's allotted the government is simply not obligated different a reasonable contractor should be able to look at that language and say the government has to terminate the contract and if the government doesn't terminate the contract then we are not entitled to distribution and the notion that we have to read terminal as it is read as it is defined in the dictionary i think is sort of skipping the step important step that we read a contract so that it is in harmony with itself that we look to other parts of the contract to figure out what the term the contract mean what would you how would you explain the absence of the capitalisation as realized with a small point but throughout the with exactly what's in the dictionary the plain ordinary meaning of the term could be and in this it is certainly typically reasonably the meaning of the term that's given in the rest of the contract and in the  world of government contracts but aside from that i mean even looking at section either the contract does capitalize the for his determination clause but it doesn't capitalize the  will terminate this contract of the if that uncapitalized no particularly when given the first sentence of section k nothing in this clause shall effect the right of the government to terminate this contract well the right of the government to terminate the contract is circumscribed and the find in that in the contracts terminations clause there is no the government can't terminate this contract in any other way beyond that  clause it's also notable that the the this clause begins if this contract is terminated it does not say when this contract is terminated and under s eyes reading that would be the result because reading the contract would terminate in quotes no matter what the matter what happened here the contract would be terminated that is inconsistent with the mechanism that is set out in the limitation of funds clause that provides that if a contractor is getting near the funding ceiling that the contractor has to alert the government and give the government the affirmative choice of how to proceed whether  terminate the contract or whether to increase if possible a priest affirming here a good faith in third dealing issue here that neither party seems to have known exactly where the funding level was they were entering into another contract there's a lot of circumstances that just kind of suggest that there would have been accommodation on both sides that maybe is  up as a good faith and fair dealing sort of an issue no i don't think so your honor those that in the circumstances the contractor did not know how much it was spending on this contract it didn't even know they didn't even know within seven it was required if it reached seventy five percent of the funding of the contract to provide notice of that fact it didn't even know that it was within seventy five percent of what it was spending so that i mean that's the princip circumstance there is that the contractor didn't know what it was spending we couldn't know at the time what the contractor was spending we when the contractor went outside gave its final report this contract came in under budget we didn't know for years afterward that as i had gone and spent more money than was a lot of for under the contract and so the notion that we were some how the board specifically found that the government here did not withhold any funds did not do anything to gain some sort of contractual it vanished year that somehow we knew that we were shorting the contractor that what that has t assume is that we knew the contractor was exceeding what it was allowed to spend and we were sure getting the funding so that we could then deny them an equitable distribution we didn't know what they were spending they didn't know themselves what they were spending and i mean s i cites to the general electric case and i don't know why because the general like in general electric the court of claims specifically confronted a situation just like this one where the limitation of cost context distribution the contractor came back in general general electric and back and said we want more money under this contract under the limitation of cost plus the contracting officer denied his discretion at the knights the more money this court said the contractor did not know general electric you didn't know what you were spending because you're counting system was in disarray so no the contracting officer did not abuses scripture either that's the whole i may be getting that because either that's the holding of the case or the court makes very clear and then denying an equitable adjustment for what it's received isn't there some good faith required newer i mean the our rights under this contract our set out very plainly in the limitation of funds provision and limitation of funds provision makes it very plain that we are obligated to reimburse the contractor up to the amount of funds that we have allot under the contract it's there to protect the public that it's there to protect the government that's the plain purpose of that clause if the contractor doesn't know what it spending and it's providing we don't have a choice we're who were given this property obviously true yet we got the benefit of it we took the property but we didn't know that we were taking property that we couldn't pay for that with the so to say that they're somehow the equities the equities are in e favors you have some obligation to keep track of what you're receiving as much as they do to keep track of what they're paying we don't have we have sure we have an obligation to  get vouchers under the contract i suppose and to know sort of general i mean we are dependent on the contractor to know what the contractor spending the contractor was we were complying providing reports all along the way those reports indicated that the contractor at the end of this contract eight dollars and sixty eight cents under budget that's what we knew we thought that this contract no independent way of knowing what piers we had no we can't no we didn't we were going out and operating them over the course of the contract and that's not the way that's not the way it works we are dependent on the contractor to brief use the term this contract fell through the cracks well that's is there some we do chill responsibility of the government to keep important contracts from falling through the cracks i thought that was a fruit th e one of the witnesses used but i don't know if the implication is that instead of simply going along with the incrementally funded nature of th contracts we were supposed to somehow terminate this contract affirmatively and terminations to be clear is not the sort of ministerial act that side lays it out to be  a nation requires encrypt makes the government incur various obligations and duties and responsibilities and so the notion that it sort of fell through the cracks we stopped funding the contract and moved on to another contract but that was just the reality in the reality was it wasn't fully funded well as i understand one thing the contract says that if the contractor is going to exceed seventy five percent of the ceiling price if that notified well they came within eight dollars of the sealing price didn't the government at some point know when it's writing the checks out to the contractor that wait a minute we have now written checks for more than seventy five percent of the contract price and yet we've heard not a peep from the contractor and we know they're still doing stuff right now i mean isn't there all they kind of along the line generators questions that the government is aware of where it is in the contract scheme simply because of the checks the government is ready to reimburse the contractor and when you know when you came so close to the ceiling i got to think the government knew at some point they were above the seventy five percent mark and yet we're getting the required notice rather well a couple of things one is if you look if you look carefully at the dates you are finding twenty two and that's on page eleven of the joint appendix we received notice that obligation to give the property back since they're not going to pay for it i mean you agree that the government has now accepted property that was paid for in excess of the ceiling price what if i can get compensation for that we can't force the government to pay because maybe we agree with your contract interpretation but what about ok well then give it back you know you've acknowledged that you've taken something you haven't paid for because it exceeded the price and the government should have had the right to make a decision well no don't do any further work or yes to further work and so it's possible to give that for the work act if it's in the form of actual computers or things like that about what does what does one do in this situation do you have any responsibility to get it back which you did not pay for and now you claim you don't have to pay for and maybe we end up agreeing with you one that will then don't you have to keep it that well i'm not going to pay more i mean you know you're a myth that it's in excess of this stuff that you're getting stuff that you did not pay for in these other run ins that you made to s s i and that goes to that and i don't certainly stop me if i'm to if it seems like i'm a video question because i don't mean to but that goes to  then again that's assuming that they have a right to equitable distribution under the contract and the issue here is not whether they get you sure whether they get the proper that's what the cla advantage in government laziness here is that the way the system ought to work well i think again you're on to it to say that we were for one and so i delayed so long in bringing this claim that even if we wanted to give the property back and that may have been an equitable distribution now we can't effectively with that we've either lost it or it's valueless we've given it away and if you look at the course her and if you're asking about fairness i'm just simply trying to explain why this result is fair but yes i mean this this case can be decided as the board decided it based on the plain language of the contract they have no right to what will distribution  would lead me to a comment on judge reader's question about fell through the cracks the limitation of cost clause is use when the contract is fully funded and i understand when t are ok and so in that circumstance the money is there so the way you conclude the contract there you have to use the term a nation procedure either terminations for default or terminations for convenience to conclude the contract limitation of funds however you set the ceiling but you haven't funded all the way so there's a third way it's unique under a limitation of funds cause contract you can terminate that contract not only through the formal methods but also by simply not funding the contract further now your honor mentioned the comment it was the government contracting officer technical representative said you know we just forgot about it we didn't notice it and fell through the crack the the likelihood it and we refer this to this in our brief and one of the other contracts involved in the case not the appeal six zero two one they went up one hundred sixty five dollars short of funding of the sealing them out all the did was they just amended the contract to reduce the ceiling to the actual funding now if you know why couldn't they have done that here well the private contractor of over six hundred thousand dollars that's that's the bottom line because if they done it yellow sea clause would be in the contract we wouldn't be here today  and i just like to point out that two to five the governments in the board's interpretation to the logical conclusion there's several i'm reasonable results and just i'll just mention one assume a contractor who has not performed very well used on not on time he's deficient in his performance just generally on satisfactory the government terminates for before all but under the clouds if it later turns out he h know about he's going to be entitled to an equitable distribution compare that the fourteen contractor to the contractor who fully performs on time mesa contracts funding them it is is perfect in every way and but the contract just simply concludes obviously you wouldn't terminate that contract for default because he's full with the form he wouldn't terminate it for convenience because that's a useless act as a contract to soak but what's the effect that the defecting contractor is rewarded he gets an equitable distribution the good contractor the exemplary contractor is penelas he doesn't get an equitable distribution and on that kind of basis in your own he hands you can you can create a situation where there has to be a determination by giving a notice that the costs are exceeding the vailable funds why is it so burdensome to put the burden on the contractor under distribution of wealth right happy equitable distribution clause at all because it so will be clear in the limitation of cost limitation of funds cause if you don't give notice there's no obligation by either party to perform so what's the purpose of the equitable distribution clause it's not which standing notice that's it that's the one possible explanation and the precedents which i admit are mostly or all of the board establish