on production contract to incite a much larger and influentially connected country but it was to prove ailing you are on the mend you have to convince us that there was a breach of the director and there's no client i take it that the administrator didn't modify the policy directives your claim which i understand it is that the modify the policy directives within the air force d in to negotiate in good faith to explore in good faith and to make reasonable arrangements with the super developer if it is impossible to do we would agree we don't have that right but practica discretion if it meant discretion then we have a situation statutory regime that says the super developer must get this we're cheering that the super developed get it but only if the government wants to that would undermine  beginning to have basically here i take it is two conflicting policies one and there's a policy to try to help small business on the other and also a policy giving the air force some discretion respect to just slightly modify it you're right you fear first decided to use the technology and utilize these not that night vision goggles technology they're forced by the way it could be free to say they don't want to do it if for some reason they don't want this pilot safe that's their business i guess it's a shame but that's their business but if they decide to use this technology then yes they must do they have with the super developer that brought in the first place that's the whole point in you honour's focus that this is to help small business for small respect this helps the government because it allows the government to take advantage of the innovations that small business entrepreneurs bring to the table today the air force does not have a implied contract or want to get to their second or statutory scheme atic that said they couldn't do it i guess they could but this statute says that it ensures that the super developer gets it and the government cannot that there was not your honor the reason for that is several fold one they were discouraged from doing it number two they were told don't do it unless you include insight which it did not want to do inside was not doing their job and so it didn't want to use that that the pretext and our evidence must be acceptance of the judgment that was following this open competition was a joke the only entity in the country besides us that knew what our data was was inside and what did they brief the fo unfair contracts with the government all that needs to be shown is a tacit understanding we don't have to satisfy the formalities that goes with it and we produce in the record a mouth  contract theory which incorporates a say actually that says that but if we fail and the court decides we didn't succeed in that or alternative argument isn't implied in fact contra and we raised four types of evidence on this one written admissions by the air force the contracting officer wrote down plaintiff was promised the phase three along the way she even said that the legal counsel debbie modu on agreed with we have the testimony from two officers of the pla the oral statements were you're guaranteed to get the phase three you've got to get phase three when we do the phase three when plaintiff gets the face three third look at the air force conduct at least three the least three was number one the air force insisted that we get a manufacturer in place in phase two we didn't need to manufacture phase two your honor we were able to produce those twelve prototypes on our own the air force said you've got to give them manufacture in phase two you know why to prepare we finish the answer then the second one was when the government insisted that we signed the memo you with insight saying that insight gets the seven thousand productions that can only happen in phase three seven thousand units and why would we be the written contract count page one of six of the history of record is called breach of contract wrongful refusal to award face three to night vision that's an allegation that there was a breach of the written phase two contract t sort of statutory that the air force was not entitled not to go to face three was not entitled to do what he did which was to issue this what's known as a p r t program research and development announcement open it up to competition in which insight and night vision and third company live competed that the air force was allowed to do that now you could have made that statutory i mean obviously we would have argued against it we don't think it holds water but that statutory argument could have been made if ever as a lost on that before what a federal claims and they haven't challenge that here yet but it was a my point is it was a completely different protest that was a post war protest of the award in the competition the argument not being six thirty a j that says the small business administration shall put in place procedures and that you have procedures issued in the policy guidance by the small business administration which the argument here this morning and throughout the case has been that the air force didn't comply with those assumed the air force and comply with the still not a breach of the phase two contract it's not a breach of the phase two contract because the statute was the statute says the statute says a small business administration shall put in place procedures that in performing phase one and two they hadn't fully reported their income i don't suppose the government and then of suing for that what they owed under their income taxes could sue them for  relating to the contract that and that's what the trial court quite properly said yes sure as a general principle it's often said that the existing was incorporated but it has to be a law that would relate to a term of the contract to help interpret them said we didn't enter into any agreement of that kind we didn't have to say that what we really said was you don't have any evidence on your side no one can say at any point in time when was it the person when did these negotiations occur who from night vision side exactly was there where was it what when did this meeting of the minds take place in this oral contract when did it happen there's no evidence of anything of that kind what  flask example of what this court called in on the unit bank to place a cloud of evidence that could be consistent with a contract if there were in fact any evidence of a contract with the night visions arguments in its brief essentially our will we have a much bigger clout than contract there was an understanding that if they properly performed faces one and two and the government accepted what they had produced in those days it would give them in the face a phase three contract that seems to forty on the part of the government to enter into a kind of this kind of contract and you need evidence that there was a meeting of the minds not a promise the evidence and rigor favor of night vision here is that they were promised we were assured that phase three would occur even if a contracting officer this court is plainly said even if the country council who would be the person signing the next contract assures you you're going to get it out i'm the one that's not an award of a contract this coming after not simply free night vision i don't think that's what they're alleging i think i think night vision is saying the small business administration is procedures incorporating these words you know we practicable as appropriate my visions claim is that they could show if they were given a chance they could show that they should have satisfied that standard face too and that therefore because they actually said it's for the standard and here's where the line breaks but there was somehow a breach of face to face to contradict that that doesn't follow at all  arguably maybe there could have been a statutory period basically i tell you what it comes down to who is to say that night vision may have a hope perhaps even an expectation of getting the place perfect but it didn't contract cool right to do so it did because and because in the room we don't say that more poorly in summary judgment we're saying not just that do that that didn't occur but there isn't evidence in this record which is the proper standard summary judgment once we challenged the existence of the elements of the contract it was night vision scalawag h to come forward and say here's the offer here's the acceptance here's what the person had before you to do it here's the consideration and then those elements are simply not not in the record there into the written contract that we had we did not use the label implied in fact contract in the complaint but no matter the elements this court knows this the elements of the world contract and like that contract for the same if anything it's that last burdensome to prove it implying fact contract everybody agrees that is an implied contract the two lower court judge's opinion use the phrase implied contract throughout and imply perfect contract is not have to be expressed there does not have to be an expressed offer sentence the courts say all you need is a tacit understanding proven that just by the words even if the words alone are not enough the courts say conduct i can do it direct to the judges at least t the commitment on behalf of the government was in the contract in the contract contracting officer judy davis and project managers craig and brown all three of them did through their words and more importantly through their conduct and all of this into context remember what the courts say it is you look at the circumstances and the context for applying contra what is the context the context is a statutory regime that has three faces that says do first two correctly and if the government goes to three the only person in the world that can get phase three is the super developer d m o center deposition said that's the philosophy of super that's who gets the th technology away and then give them the real deal contract to a big contract to exactly what happened in this case exactly what happened in this case it frustrates the statute which is incorporated into the contract and it's in direct violation of the agreement that was made and who was the agreement made by the contracting officer this court's opinion timber says that a contracting officer my definition has the authority to bind the government contracts that's what the title new and improved guy not the one that we've been working on called pm b g well if they're good i said at the beginning if the government doesn't want our technology we can't force it to use it so it was asking for something different so since we didn't know that they were using our technology at the time we discovered it in august of zero one two years later that's one that's when the government first published the submission that inside it made it what was in their publication with the submission goggles people been trying to solve this problem for the air force for thirty years our guy sounded by two things for channel wences and for the not to us they asked what was in the proposal that insight submitted but we didn't learn until august of zero one was too late to protest at that time there their contract have been awarded for almost two years to perform for two years the money spent for two years are only remedy or only remedy is this court for money damage