court may have some issues with our allocation of time we aligned our time to match the issues in our opening brief the five minutes and then the reply brief ten minutes but we are happy to allocate the time in whatever way is most helpful to the court and of course focus on the issues in which the court is most interested for example if the court is ok with us talking for twelve minutes about any issue in the peeling clothing the government's issues we're happy to cameron hammer can i represent parsons evergreen or parsons and these peels which involve an idea to contract award by the air force to parsons and a delivery order issued by the air force to parsons under that contract for the design and construction two buildings and an air force base parsons appeal involves three claims and all three claims involve fundamental errors of law the st claim is called the tri arc claim where the board decided entitlement in parsons fav based on a theory involving paint that no one had ever raised prior to the board's decision the board then denied parsons any recovery claiming there was no information to estimate the pain cost that claim is incorrect the evidence was in the record that you didn't raise that particular claim well i think there's two answers to that one is the board never in fact no one the air force parsons or the board ever raised the board's unique serry of quantum until the very end of the litigation process the the parties had no chance to break this issue if the board raised it at the air force's wage that parsons identified the evidence and i think the nd answer to that is it becomes irrelevant by the time of the motion for reconsideration because the board acknowledged that the evidence in fact existed and so that the but but the problem it seems to me is that it's not a new theory of quantum it's a new theory of liability your original theory of liability is that you were allowed to apply the sherman one point that you could so that seems to me a different theory of liability than you would articulated in the beginning and i will agree with that and what happened after the board found for entitlement the words the recovery the pay costs more said you know what we're left with nothing on quantum decided entitlement that's water under the bridge we're not contesting that the air force is not contesting that but the board then turned to the issue of quantum and said i don't have any evidence and our point is number one the evidence was in the record but parsons would have easily pointed to it if the board had simply given the parties a reason to address the issue before issued his decision as he did in another case which we cited in our brief and again by the time of the motion for reconsideration entitlement is set but the board's conclusion that there is no quantum evidence is a mistake a fact and we also think it's a mistake of law because under the this court's predecessor southwest electronics versus united states case thousand and seventy eight the board was under a heavy obligation to provide compensation so to say that you didn't present it the st time around i'm not going to take it now even though it's here is we thinking clear defiance of the board's heavy obligation to provide compensation and elevates form far above substance on that question alone and not misjudge clemens or mother this paint doesn't have any legs i think the board also found that number one that the air force created confusion throughout this process but at one construction costs and therefore the board held that the cost of construction related to the structural and covered by the model and their force is not challenge that in this appeal can you tell us what does it mean to say exactly correct but what i do know is that why is not exactly correct because the point is that the ma did not cover construction costs involved with the structural brake design and i believe that's what the board held and that's why allowed parsons to go forward and find a type of man on the structural brake design and i think if i'm correct i don't think that the government is arguing that the mot to appeal but the question in my mind was whether or not what the what you were doing in the market was assuming you were giving up a right you might have to have proceeded with structural brick and then you were agreeing to go forward with the double wall with as you wanted to do a structural brick right that's the basis on which he would have an actual adjustment claim under the law but if you gave up your right to proceed with your p because the board ruled that matu did not cover the entitlement to which parsons for which he ruled they were entitled to receive and the air force has not you that model to express like covers delays or cost a lot are rising from varying design approaches including delays and we're viewing approaches that was the several months where the parties you gave up the claim to increase design costs right yes extended the period of performance one hundred and twenty six d right to come after them for anything other than the extension of time they gave us for that period of time where they were negotiating but also in the in the model you agreed to go forward with decision the was willing to accept one hundred dollars points and sion plus one hundred thousand dollars for a six month extension with no money to add greater details today understanding in this agreement parsons is estimating the following impacts the been absorbed to date to date and will have to be absorbed with the execution of a contract model and of the proposed resolution maad a list of one hundred thousand actual redesign expenses and some other costs for the thirty five percent design and signed a release of claims for direction given on the design effort to date that's scope of the release what the board did was to create two separate docket two separate appeals from the contracting officer and this one was put in a separate docket and with respect to that separate number for reasons of judicial fish and same clarity even though it was fully litigated under the present appeal establishing that the delayed payroll claim was not a separate case in fact that claim was a litigat all of parsons other claims at the same trial involving the same parties the same contract and the same judge and significantly all under the same number assigned by the board at the outset fifty eight  from the outset i think if they had conducted separate trials had separate rules for file separate post hearings briefs and and rendered separate judgments all under the same number yes even though they're all under the same set of facts same contract same artes saying so rule for files and transcripts everything same judge right so what difference does it make that the number at the very end of the case and the majority even show that the two to do decisions are inextricably linked by adopting the material findings of fact in judge clark's main decision independently i just don't understand what difference it makes if they bifurcate at the very well all of parsons claims arose from the same contracting honest final decision and we cited precedent from this court and out of that would be true two separate cases but they did not but they wrote two separate opinions at the end right at the very end they did well as there are other questions maybe we should pause here and hear from the government on the main appeal on the cross appeal hearing no further questions for the moment mr hammer thank you mr and its appeal i'd like to move directly to the jurisdictional question raised in our cross appeal and time permitting also move discuss the cost reasonable issue of this issue as well i would i have a couple of questions about the structural grech claim and i don't understand why having been forced to abandon an approach that they wanted to take that is using structural break they weren't entitled present them are we talking about the same claim or term of the structural bricklin they they argue for the difference in what it would've cost them to do it with structural brick and what it actually did cost them what's the matter with honor the board found that their reasons for that the reason a person's presented for using structural brick was not entirely tied to the issue of progressive collapse i don't i have no idea what you're talking about they they argued they were entitled to use structural brecht and it would have cost them a lot less to do it right yes so why aren't they entitled to to recover the excess costs that they incur because your honor the board found the there were two different issues presented with regard to the structural brick one was the design and whether or not they were intitled to switch from the thirty five percent design that was given to them which was the double wall design whether or not they were allowed to switch to the structural brick and the board found that they were and they were compensated for that that was the seven hundred thousand dollars and change that they were they were given that a nd is that the excess design costs right we're not talking about that now we're talking about the excess construction costs correct and the board found that the difference in construction costs was tied to the issue of parsons own expert explained that their proposal of structural brick was not entirely tied to the rationale of entitlements that the board found which was correcting for this issue a progressive collapse so what the board was finding was that parsons was entitle to damages but only to the extent that those damages or those costs excuse me corrected for the the increased construction cost to correct for the progressive collapse issue and that's not what they let let me give you a hypothetical suppose i contract with the government to build a build and i have a choice between structural brick and some other method and the government says no you can't use structural break and i say the other method that you're acquiring me to use cost me a one million dollars extra in construction costs are they not entitled to recover that one million dollars they they would be entitled in that hypothetical your honor but i don't believe that lines up with what's happening in this case i don't have any further questions on that unless my colleague there why don't we move on to your other for that finding the board cited for this court's two thousand and eleven slattery decision and this was a legal error flatterer does not apply to the instant matter because the statute issue in this case with the parker act and not the c because the nappy was providing the funding for the contract and the air force material command was simply providing the contracting services  now all i can tell is that the contract document specify that none appropriated funds are to be used for this but they don't say anything about who this is going to be entered on to be half or who's the contract in point of contact from the air force services agency and then the source of the funding is our primary support for the fact that the contract was being entered into on behalf of the  in the in the joint appendix as for it it states that only not appropriated funds were allocated for the contract there was no other source of funding and the air force yes that's the only evidence in the contract so then can i ask you the problem question do you have any legal authority that you have cited i didn't see any in your breed that suggests that just because funding may come from a non probably but it's not clear to me at all that this is a nappy and the fact that there's not appropriated funds doesn't solve for me the question of whether this is a contract with the nasty or it's with the contract with the air force itself that relies on  procedural process that that happened where this issue was raised on supplemental briefing based on the board making the determination that it was an assay and that the nafi was the counter with you that there is limited discussion of that point holes in the decision and the record however if that did you can i interrupt again and the in the supplemental briefing that report i don't think we have that in the record or we don't have it fully to the record did the government put forth evidence about further evidence beyond these contract document about why the contract was  started i know i'm interrupting and this is it's called on the phone but the primary issue that the resolved is completely dick and not relevant at this is in a contract with an you can jump over that important i think the actual argument about whether this is actually a contract with the now under aware of anything it are you aware of anything in the supplemental briefing that would help us with this question or did you all just jump over to a supplemental briefing and get straight to tolerate the the issue was raised in the supplemental briefing your honor but again when looking at the board's decision there wasn't any analysis of that point and that's not well that's not really what i asked to you in your supplemental briefing to the board and i know that this was handled by the agency probably not you but agency spring for specific evidence why a top this was a contract with the nappies be on the citation to the funding limitations we've already talked about so my to my knowledge they did not your honor but the one thing i would say about that is that the air force and all the military departments have strict regulations as to how because what you're legal what your legal support for that doing there i don't i'm not aware of any any case law that says that because the question is ultimately whether your honor what i'm saying is that there is a yes but there's a distinction there's a clear regulatory scheme for how not appropriated funds can be used and the distinction i would draw and again this is the sting sion with the flattery decision is that it's not that the non appropriated funds determine would be paid for a judgment the term and jurisdiction it's that the existence of the non appropriated funds determine the entity that is in question in this case the air force services agency and that that entity falls outside the scope of the waiver of sovereign immunity that exists within the c d s and so the fact that not appropriated funds were being used for this project specifically this project as we discussed in our reply brief this is why we brought up the issue of military construction is that the air force is prohibited from using appropriated funds for this project because of the requirements of the statutory requirements for military construction projects so the fact that not appropriated funds were being used shows that it was not the air force that was the counter part to parsons it had to be the f s b a because the air force was prohibited from using these spawn it was prohibited from using its own funds to engage in a project q there's not the real evidence i don't want to go over to the record either and there are definitely the points that the government wanted to that says non appropriated can be used for art to be used for this contract are you aware of legal authority one way or another and particularly response in the government's argument that regulations prohibit it from using non approved granted our government instruction that would suggest that the youth could not appropriate  appropriations for this particular project at mcguire but the g e opinion rebuts that project by project approach you don't judge whether they're the nephew doctrine applies based on whether appropriated funds were or were not used for that particular contract the court explained that the naff doctrine applies only if the activity the court didn't say the contract intended to operate without using appropriated funds and here just as in the g e case the air force is not an activity that is specifically intended to operate without using appropriated funds and as you noted the reference on one page i think appendix  contract said they can only use non appropriate that make it a contract with the mathy under g e no because what what matters is whether the contracting be with sponsible for paying damages taxpayer money for damages is where all doff from ever receiving appropriated funds so you can go project by project i don't think that was a response to my question my question they were barred from using appropriated funds and could only use nonna program in one of the contracts would that make it a nasty contract i don't think it would and i'll cite another case that we cited  e with me one second was the party to the contract has been financially self sufficient is not dispositive there must be a clear expression by congress that the agency was to be separated from general federal revenues and in bright back vs us five hundred as nd five hundred and fifty six this court's predecessor stated there was no clear cleavage between the funds of the st lawrence seaway development corporation and those of the united if the if the court determines that the record doesn't support the board's finding that doesn't automatically mean that parsons argument is correct that the air force was the party at issue i would say that the proper recourse in that case would be for a really man for further development of the record and finding from the board on this