[00:00:00] Speaker 04:
th th

[00:00:28] Speaker 04:
Yeah, yeah.

[00:00:58] Speaker 01:
All rise.

[00:01:05] Speaker 01:
The United States Court of Appeals for the Federal Circuit is now open in session.

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God save the United States and its honorable court.

[00:01:15] Speaker 02:
Good morning.

[00:01:15] Speaker 02:
Please be seated, ladies and gentlemen.

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We have six cases on the calendar this morning, contract case from the Court of Federal Claims, two government employee cases, two patent cases, one from district court and one from the PTO and a veterans case.

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The veterans case and one of the employee cases and the PTO case will be submitted on the brief and not be argued.

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The first case that is argued is Zephyr, Tahut in Saat versus the United States, 2015, 5083.

[00:02:02] Speaker 02:
Mr. Gudansky.

[00:02:05] Speaker 02:
Good morning, judges.

[00:02:09] Speaker 00:
What's happening in this case is the government is attempting to cloak, in the aura of sovereign immunity, contractual actions.

[00:02:18] Speaker 00:
There's a government precedent, government case, that says contractors are not in business to lose money.

[00:02:23] Speaker 03:
What's your claim here?

[00:02:25] Speaker 03:
Is it an acceleration claim?

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I'm sorry?

[00:02:27] Speaker 03:
What is your claim?

[00:02:29] Speaker 03:
Is it an acceleration claim?

[00:02:32] Speaker 00:
Yes, we construed it as a constructive acceleration claim, a constructive change, a demand to continue performance under threat of default, and therefore under the two cases we've cited, Allie, Cassie, and Dowdy, which are identical.

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And the demand language by the contracting offices in both those cases

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director of the contract to continue to perform under threat of default.

[00:02:56] Speaker 03:
But you have to ask for a time extension before you can have an acceleration claim.

[00:03:01] Speaker 03:
And your client didn't ask for a time extension, even though he was encouraged by the government to ask for one.

[00:03:08] Speaker 00:
He kept asking.

[00:03:09] Speaker 00:
The correspondence shows that he kept saying, we need time and money.

[00:03:13] Speaker 03:
And he never asked for a specific amount of time, did he?

[00:03:16] Speaker 00:
He didn't.

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There were other issues ongoing in the contract.

[00:03:18] Speaker 00:
So he didn't pose to say,

[00:03:20] Speaker 00:
For this one, I need 87 days because it was an ongoing event.

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It was closed for 210 days.

[00:03:27] Speaker 00:
It didn't know how much time to ask for.

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The only way you could ask for specific times is say, give us as much time as we can factor on a projection basis for the border to be opened and the resultant logjam to move to a mainstream objective in which we can calculate

[00:03:45] Speaker 00:
when we can move the car, but it didn't repeat a correspond and say we need time and money.

[00:03:51] Speaker 05:
Is there anything in the regulations or anywhere else that say how you're supposed to make a request for a time?

[00:03:59] Speaker 05:
Is there a special form you're supposed to use or anything like that?

[00:04:02] Speaker 00:
No, there isn't.

[00:04:05] Speaker 00:
I'm sure that the prudent practice would be to submit something in writing, obviously address it to someone with contracting authority, putting on notice the project engineers that the government has on site to actually supervise work, or the U.S.

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Customs Department, which was a side agency involved in these proceedings.

[00:04:24] Speaker 00:
There's no exact form on her.

[00:04:26] Speaker 00:
But there's replete with correspondence.

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The contractor has a system of serial letters in which it logs in every letter submitted to the government, responding to a specific government letter.

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And there's numerous correspondence in the file focusing on that objective.

[00:04:44] Speaker 05:
I was just going to say, when I was looking at the papers, I noticed that a lot of those requests you're talking about really are in the form of, we're putting on notice that we're entitled to time.

[00:04:54] Speaker 05:
And as Judge Dike pointed out, they don't say how much time.

[00:04:58] Speaker 05:
But they also don't request time.

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Is there a difference between saying we're entitled to time and saying we respectfully request time?

[00:05:04] Speaker 00:
No, there's no rigorous formula to that.

[00:05:06] Speaker 00:
There's no exact verbiage.

[00:05:08] Speaker 00:
We're not talking about a certification language requirement for a CDA claim, which has precise and exact language you must categorically use.

[00:05:18] Speaker 00:
These are common sense as long as the intent is communicated to the government, which it was.

[00:05:24] Speaker 00:
It couldn't, as I explained, it couldn't say, give me X days.

[00:05:28] Speaker 00:
We are telling you we need time.

[00:05:30] Speaker 03:
Well, he could say, give me X days for what's happened so far.

[00:05:35] Speaker 00:
But that wouldn't serve any practical purpose, Your Honor, because it was an ongoing event.

[00:05:40] Speaker 03:
Let's say we had, it took three months for the government to- Well, didn't the government ask him to submit something specific?

[00:05:46] Speaker 00:
They ask them at the same time, demanding they continue to perform.

[00:05:50] Speaker 00:
So take this into consideration.

[00:05:53] Speaker 03:
So what was the problem with responding to the government's request that you make a specific request for additional time?

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Because frequently what happens is, by analogy, you are with the same contractor, the same contractor in the agency.

[00:06:05] Speaker 00:
Something occurs.

[00:06:06] Speaker 00:
There's a constructive change issue.

[00:06:08] Speaker 00:
The government says, do this work, we'll talk about your claims later.

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So the contractor puts the government on notice right away and says, we're going to need time.

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We can't negotiate time right now, because we don't know how much time we're going to need, but we're telling you as a legal protection, we will need time.

[00:06:25] Speaker 00:
And the government frequently says, okay, when the situation's resolved itself, whatever the difficulty is at hand, we will come back to you and negotiate time.

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We're not agreeing in advance, we will give you time.

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Time equates to money frequently for overhead.

[00:06:40] Speaker 00:
So this is the practice the contractor followed.

[00:06:42] Speaker 03:
But remember, at the same time, there were... You can't postpone it until after all the events are over with, because then the government doesn't know whether they're facing constructive acceleration.

[00:06:52] Speaker 00:
No.

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It's not an issue with government.

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It was not put on notice.

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There were no claims coming in.

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The border was closed.

[00:06:57] Speaker 00:
Three days later, a letter went in and said, the border's closed.

[00:07:00] Speaker 00:
Tell us, you, the government, tell us, what do you want us to do?

[00:07:03] Speaker 00:
Do you want us to take alternate routes, which were really non-existent.

[00:07:06] Speaker 00:
I explained the difficulties with earthquakes through the other municipal route.

[00:07:12] Speaker 00:
Do you want us to airship everything?

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Do you want us to stop orders with our suppliers?

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Do you want to put that on hold?

[00:07:18] Speaker 00:
Because there were ships ready with cargo in port.

[00:07:22] Speaker 00:
There were other orders.

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routed, these projects require massive steel, so there's long lead times.

[00:07:30] Speaker 00:
These have to be ordered well in advance of the actual day that you need them.

[00:07:34] Speaker 00:
You have to allow for shipping.

[00:07:36] Speaker 00:
So how could the contractor say, it did say, tell us what to do.

[00:07:40] Speaker 00:
Instead, the government says you are directed to continue to perform under 34.

[00:07:45] Speaker 03:
But they also told them to file a request for an extension of time, right?

[00:07:52] Speaker 00:
The first response back was three months later.

[00:07:55] Speaker 00:
And if the government had just said time, I'm sorry, if the contract did go in and say time, the only dispute we have is it didn't specifically say I need x number of days.

[00:08:09] Speaker 00:
Because for practical reason, it couldn't do this on an incremental basis.

[00:08:12] Speaker 00:
It couldn't say, OK, the board is still closed.

[00:08:15] Speaker 00:
It closed November, here it is February the following year.

[00:08:17] Speaker 00:
So right now we need 90 days.

[00:08:19] Speaker 03:
Look at appendix 50.

[00:08:24] Speaker 03:
And it's a letter from the Department of the Army, and they invite him to submit a request for an extension of time.

[00:08:31] Speaker 03:
It says, any request for extension of time must fully explain why the delay was unforeseeable, and to include documentation, et cetera, et cetera.

[00:08:41] Speaker 03:
And he never... What was the date of that, Your Honor?

[00:08:45] Speaker 00:
Pardon me?

[00:08:45] Speaker 00:
The date that you're signing the letter?

[00:08:47] Speaker 03:
It's June 27, 2012.

[00:08:50] Speaker 00:
So that's still prior to the court even being opened.

[00:08:52] Speaker 05:
There's also a letter, JA37, dated October 24, 2012, that has similar language.

[00:09:02] Speaker 00:
The contract was in the quantity, what do we do?

[00:09:06] Speaker 00:
You're asking a specific time, specific time request.

[00:09:09] Speaker 00:
What do we do with all the other procurement of supplies?

[00:09:12] Speaker 00:
At this time when the board was open, there was still an eighth month logjam before people start moving.

[00:09:20] Speaker 00:
So what could it say to them?

[00:09:21] Speaker 00:
OK, we predict we need another year and a half.

[00:09:24] Speaker 00:
We need another two years.

[00:09:26] Speaker 03:
So if that's what they thought, that's what they should have said.

[00:09:29] Speaker 00:
But they kept saying that.

[00:09:31] Speaker 00:
They didn't just put a finite number.

[00:09:33] Speaker 00:
They didn't say, give me, right now we can tell you we need 147 days.

[00:09:38] Speaker 00:
At the end of the 147 days, we'll come back to you and tell you we need another 130 days.

[00:09:42] Speaker 02:
Counsel, your basic problem is that this was a firm fixed price contract FOB destination.

[00:09:50] Speaker 00:
That's the same rationale used before the government adopted, before the cases adopted, the doctrine of constructive change.

[00:09:57] Speaker 00:
Yes, it's a firm fixed price contract.

[00:10:00] Speaker 00:
So what are we talking about?

[00:10:01] Speaker 00:
Something happened, we need to hold the marriage 10 days.

[00:10:05] Speaker 00:
Something happened, we're going to straighten this out.

[00:10:07] Speaker 00:
We'll resolve it 219 days.

[00:10:09] Speaker 00:
That changes the circumstances.

[00:10:13] Speaker 00:
Okay, no demurrage, but now we're telling you, keep all your plans in effect, in place, continue to order your supplies, lay out the money to your subcontractors and your vendors, and we'll consider time.

[00:10:27] Speaker 00:
But if you don't do this, we're going to default you.

[00:10:33] Speaker 05:
One thing the court below found was that the costs that you were seeking were not the kind of costs that would result from the delay, like the claimed costs from the shipping and the storage.

[00:10:46] Speaker 05:
What's your response to that?

[00:10:47] Speaker 00:
Well, this gets into precise terms of what the mortgage is.

[00:10:50] Speaker 00:
It is the cost of maintaining cargo on a vessel in harbor, which equates to that kind of cost.

[00:10:58] Speaker 00:
Because the contractor said, what should we do?

[00:11:00] Speaker 00:
We have other vessels.

[00:11:01] Speaker 00:
Most of the bulk of the goods had not yet been sent from the US.

[00:11:07] Speaker 03:
How would those costs have been reduced if they had been given a time extension?

[00:11:11] Speaker 00:
I'm sorry.

[00:11:11] Speaker 03:
How would those costs have been reduced if they'd been given a time extension?

[00:11:16] Speaker 00:
The contractor would have said, we're not shipping anymore.

[00:11:19] Speaker 00:
So we will not have to incur the demurrage cost just to ship it so that it gets to the port and sits there.

[00:11:26] Speaker 00:
It could have said,

[00:11:28] Speaker 00:
Tell me, government, in your logic, you tell me when you think you're making progress on your negotiations with the government of Pakistan for your own direct goods.

[00:11:38] Speaker 00:
Tell me when that possibly, the government should have said, we'll tell you when we iron out this situation.

[00:11:44] Speaker 00:
In the meantime, put a halt.

[00:11:45] Speaker 00:
Do not order any more supplies.

[00:11:48] Speaker 00:
Put a stop work order into effect.

[00:11:49] Speaker 00:
It didn't say that.

[00:11:50] Speaker 00:
It said you must continue to deliver or else we're terminating you.

[00:11:54] Speaker 00:
The threat of default

[00:11:55] Speaker 00:
Particularly where the contractor's dealing with primarily the same contracting agency, the Corps of Engineers, is the most important thing it has with respect to future contract business.

[00:12:05] Speaker 00:
So the contractor's got to gauge, it's not just this one contract I've got here.

[00:12:09] Speaker 00:
I've got five other contracts with the same contracting activity.

[00:12:12] Speaker 00:
I've got others with the Navy.

[00:12:14] Speaker 00:
And I want future contracts.

[00:12:15] Speaker 00:
If the government had said, at some point in time during those 219 days, the government should have realized, we the government have a problem.

[00:12:23] Speaker 00:
Not just for our contractors, but for the government.

[00:12:26] Speaker 00:
Remember, it was at the same time negotiating for its owners that it was directly importing, which we also put on hold.

[00:12:32] Speaker 05:
As I understand your request, you're seeking costs for transportation, storage, and dermerage.

[00:12:39] Speaker 05:
Right.

[00:12:39] Speaker 05:
Is there anything else I'm missing?

[00:12:40] Speaker 00:
No, Your Honor.

[00:12:42] Speaker 00:
OK.

[00:12:44] Speaker 00:
Any questions, Your Honor?

[00:12:46] Speaker 02:
We will save the remainder of your time for a bottle.

[00:12:48] Speaker 00:
Yes, Your Honor.

[00:12:49] Speaker 00:
Thank you.

[00:12:51] Speaker 02:
Liz Kaprowski.

[00:13:06] Speaker 06:
The trial court correctly determined that Zoffer did not face a constructive acceleration because, as this panel has pointed out, all of Zoffer's claimed costs came from shipping and storage, and not from any costs it incurred as a result of a purported order to accelerate.

[00:13:31] Speaker 03:
that the cost would have been reduced if they'd gotten a time extension.

[00:13:34] Speaker 03:
The real question seems to be whether they sufficiently requested a time extension.

[00:13:39] Speaker 03:
What's the answer to Judge Stoll's question as to whether there's a regulation that tells you what you're supposed to do in order to request a time extension?

[00:13:49] Speaker 06:
Your Honor, I would refer you to FAR 52.249-10, which is the default clause.

[00:13:58] Speaker 03:
Is that in the record here?

[00:14:01] Speaker 06:
Yes, it's referenced in the two letters that the panel pointed out.

[00:14:05] Speaker 03:
But not quoted.

[00:14:07] Speaker 06:
Pardon?

[00:14:07] Speaker 03:
But not quoted.

[00:14:08] Speaker 06:
Not quoted, but referenced specifically to the FAR.

[00:14:12] Speaker 03:
What does it say?

[00:14:13] Speaker 06:
The FAR says in subpart B that a contractor under certain terms may request an extension for delay arising from unforeseeable causes.

[00:14:30] Speaker 06:
Subparagraph B1 describes different types of events that may be unperceivable.

[00:14:35] Speaker 06:
And subparagraph two requires the contractor within 10 days from the beginning of any delay, unless extended by the contracting officer, notifies the contracting officer in writing of the causes of delay.

[00:14:48] Speaker 06:
The contracting officer shall ascertain the facts and the extent of delay.

[00:14:52] Speaker 06:
If in the judgment of the contracting officer, the findings of fact warrant such action,

[00:14:58] Speaker 06:
The time for completing the work shall be extended.

[00:15:01] Speaker 06:
And then it mentions that the findings of the contracting officer shall be final and conclusive.

[00:15:09] Speaker 06:
If the panel refers back to those two letters on June 27th and October 24th, excuse me, the contracting officer asks Zafar, if you believe or you, excuse me, the terms of the subject contract do in limited circumstances permit noncompensable extensions of time

[00:15:28] Speaker 06:
for delay in completing the work that arises from unforeseeable causes beyond the control and without the fault or negligence of the contractor, CFAR 52.249-10 Default Fixed Price Construction.

[00:15:40] Speaker 06:
If you believe that you are entitled to a noncompensable extension of time to perform the subject contract as a result of such delays, you may submit a request to the underside.

[00:15:51] Speaker 06:
Any request for extension must fully explain why the delay was unforeseeable to include documentation of the date when the materials or equipment were shipped and when the delay began at the Pakistan border.

[00:16:02] Speaker 03:
But that seems to go beyond the requirements of the FAR provision that you just read to us.

[00:16:08] Speaker 06:
Our understanding is that the contracting officer was asking for sufficient evidence for the contracting officer to make the findings a fact that the contracting officer needed to make under the FAR.

[00:16:17] Speaker 03:
But the point is that the FAR provision, as you read it to us, as I recall it, seems to just require that the contractor say we've been delayed and we need an extension.

[00:16:29] Speaker 06:
Your Honor, I believe that the contracting officer, excuse me, the contractor must notify the contracting officer of the causes of delay.

[00:16:39] Speaker 03:
That they certainly did, right?

[00:16:42] Speaker 03:
The closure of the border.

[00:16:44] Speaker 05:
For example, on page JA 32 and 33, they have their letter where they say we put you on notice of safer entitlement to additional time, and then they talk about the Pakistan-Afghanistan border has been closed for almost eight months.

[00:16:57] Speaker 05:
It says a lot more than that, but why isn't that enough?

[00:17:05] Speaker 06:
Subparagraph B1, which I did not read in its entirety, requires that the work arises must be from unforeseeable causes beyond the control and without the fault or negligence of the contractor.

[00:17:15] Speaker 06:
So in the contracting officer's opinion, as we understand it, the contracting officer did not have sufficient facts to make a finding of fact as to whether or not these particular causes were unforeseeable and without the fault or negligence of the contractor itself.

[00:17:30] Speaker 06:
had the contractor, had Zaffir provided that information to the contracting officer, the contracting officer certainly implied in its correspondence that he would have been willing to afford Zaffir additional time.

[00:17:42] Speaker 03:
See, the problem I'm having is I don't see that the contractor failed to comply with the FAR provision, but I do see that the contractor failed to

[00:17:51] Speaker 03:
comply with the request for further information from the Department of the Army.

[00:17:57] Speaker 03:
And the question is, under those circumstances, can the contractor's claim be barred because he didn't respond to the Department of the Army request?

[00:18:07] Speaker 06:
I'm sorry, I'm not sure I followed your question.

[00:18:09] Speaker 06:
Can you repeat it one more time?

[00:18:11] Speaker 03:
As you read the FAR provision to us, it seems to me that the contractor complied with the FAR provision.

[00:18:18] Speaker 03:
But he didn't comply with the Army-specific request in the letter to him.

[00:18:24] Speaker 03:
The question is, can his acceleration claim be barred because he failed to comply with the Army request as opposed to the FAR provision?

[00:18:37] Speaker 06:
Our position would be that it could still be barred under that ground.

[00:18:40] Speaker 06:
But in any event, nothing in the contracting officer's letter

[00:18:45] Speaker 06:
orders Zoffer to accelerate.

[00:18:48] Speaker 06:
It merely repeats their obligations, Zoffer's obligations, under the contract.

[00:18:54] Speaker 06:
And there is no threat of default here.

[00:18:56] Speaker 06:
Nothing in the letter threatens Zoffer with default.

[00:18:59] Speaker 06:
And during this 219 delays, the site was also unavailable until the last 12 days of the delay.

[00:19:06] Speaker 06:
So certainly on June 27, 2012, the site had only become available, I believe.

[00:19:14] Speaker 03:
I don't find that very convincing.

[00:19:15] Speaker 03:
because they were shipping stuff in anticipation of site availability.

[00:19:20] Speaker 03:
And I think they've made a decent argument that if they had known they had a time extension, they could have delayed starting the shipping and it wouldn't have incurred some of these storage charges.

[00:19:34] Speaker 03:
And this really hasn't been explored in an evidentiary hearing.

[00:19:38] Speaker 03:
It seems to me the real questions are did they adequately request an extension

[00:19:44] Speaker 03:
Was the extension unreasonably withheld?

[00:19:49] Speaker 06:
Well, Your Honor, to address your first point as to Zoffer's continual ordering of supplies and material during the time that the site was unavailable, Zoffer did receive a time extension on that ground, which is the P4 modification, and it received a time extension of 321 days.

[00:20:11] Speaker 06:
And it received an increase in the contract price of $3.3 million.

[00:20:15] Speaker 03:
Yeah, I don't think that does it.

[00:20:16] Speaker 03:
But I may be wrong.

[00:20:19] Speaker 06:
OK.

[00:20:22] Speaker 06:
But it's our position that Zoffer's

[00:20:27] Speaker 06:
notice of entitlement to additional time with compensation was not the same as asking for a non-compensable time extension, which is what it was entitled to under the default clause in the contract.

[00:20:38] Speaker 03:
Are there any cases that have been decided that say what's necessary to ask for a time extension and whether the failure to provide information required by the government means that you haven't made a sufficient time extension request?

[00:20:55] Speaker 06:
I am not aware of any specific cases on that ground.

[00:21:00] Speaker 06:
None of them are cited by the parties in the brief.

[00:21:07] Speaker 06:
But irrespective under the five Frazier factors, Zoffer was still required to show that it was ordered to perform extra contractual work or was ordered to accelerate.

[00:21:18] Speaker 06:
There's no indication here that anything that the contracting officer said

[00:21:23] Speaker 06:
was anything other than, please continue to meet your contractual obligations or ask me for a time extension.

[00:21:29] Speaker 06:
And in addition, Zofford was required to show, and the trial court correctly determined it did not show, it incurred any increased cost as a result of a purported

[00:21:40] Speaker 06:
order to accelerate.

[00:21:42] Speaker 06:
All of the costs that Zoffer incurred were because of shipping and storage costs that would have been incurred regardless of whether they were ordered to accelerate or not.

[00:21:56] Speaker 06:
Additionally, the trial court correctly dismissed Zoffer's claim for breach of contract because Zoffer entered into a firm fixed-price contract with an FOB destination clause

[00:22:08] Speaker 06:
in which it bore the risk for any increased costs due to third party actions, including the sovereign acts of foreign governments.

[00:22:17] Speaker 06:
And Zafar had failed to show that any of the acts undertaken by the government, such as diplomatic negotiations with Pakistan, were undertaken in the government's contractual authority.

[00:22:30] Speaker 06:
The trial court also correctly concluded that the government did not constructively change the contract.

[00:22:36] Speaker 06:
because Zafar was not ordered to perform any extra contractual work.

[00:22:40] Speaker 06:
And the United States negotiations with Pakistan, as I mentioned, were in its contractual capacity.

[00:22:47] Speaker 06:
Finally, the trial court correctly denied Zafar's motion to supplement the record with newspaper articles under both hearsay and parole evidence, because that evidence is not appropriate to interpret the unambiguous terms of this particular contract.

[00:23:08] Speaker 06:
And unless the panel has additional questions for me, we would request that the court affirm the trial court's decision.

[00:23:18] Speaker 02:
Thank you, Ms.

[00:23:19] Speaker 02:
Kaprowski.

[00:23:20] Speaker 02:
Mr. Vygonsky has some rebuttal time.

[00:23:28] Speaker 00:
I'd like to focus on some of the questions you've raised to counsel, and just reiterate and summarize what Zaefer did in terms of

[00:23:37] Speaker 00:
putting the government on notice of the delay that it would ensue and the extra costs and time and how the government responded and what Zaefer did.

[00:23:47] Speaker 00:
It didn't sit on his hands and say, oh, so, you know, and now they file a claim after the contract's over.

[00:23:53] Speaker 00:
Borders closed November.

[00:23:55] Speaker 00:
Zaefer puts them on notice.

[00:23:56] Speaker 03:
But you have specific requests from the Department of Army symbols.

[00:24:00] Speaker 00:
Yes.

[00:24:01] Speaker 03:
We'll entertain a time extension.

[00:24:02] Speaker 03:
Here's what we want you to do.

[00:24:04] Speaker 03:
And it seems to me pretty clear from the record that he didn't do what the Army asked him to do.

[00:24:09] Speaker 03:
The question is whether, under those circumstances, he has done what's necessary to make an acceleration plan.

[00:24:17] Speaker 00:
Here's what he did do.

[00:24:19] Speaker 00:
There was maybe two requests by the government.

[00:24:21] Speaker 03:
OK, you might be... He didn't comply with the requests, right?

[00:24:24] Speaker 00:
I won't concede that, because I'll tell you.

[00:24:26] Speaker 00:
I'll just quote from two or three pages of my brief the letters that Safer did submit on that specific topic.

[00:24:34] Speaker 00:
At first, in March,

[00:24:36] Speaker 00:
12, after it put the government rating on notice, it said to the government, can you make a determination and issue a direction as to whether shipments should be redirected to an alternate route that would increase costs or continue to ship materials through the Karachi-Pakistan border?

[00:24:52] Speaker 00:
So it asked that question, and it asked for government guidance.

[00:24:55] Speaker 00:
The governor waited for three months.

[00:24:57] Speaker 03:
Yeah, but he didn't ask for a specific time extension.

[00:24:59] Speaker 00:
Because he couldn't give an exact time extension, Your Honor.

[00:25:02] Speaker 00:
Maybe why not?

[00:25:02] Speaker 03:
I mean, it says so far we've been delayed.

[00:25:06] Speaker 03:
for three weeks.

[00:25:08] Speaker 03:
Please give us a three-week extension.

[00:25:12] Speaker 00:
In practicality, we're looking at this in hindsight.

[00:25:15] Speaker 00:
So one way to approach it would have been the way you're intimating, go on record on an incremental basis until the matter was resolved.

[00:25:21] Speaker 00:
Instead, what he did was he kept going back to the government every two or three months and kept saying, how should we handle this situation?

[00:25:29] Speaker 03:
They told him, submit a specific request.

[00:25:33] Speaker 00:
I'm saying,

[00:25:35] Speaker 00:
Let's assume the factual record indicates he didn't then make a specific factual request of X number of days.

[00:25:43] Speaker 00:
He continued to request time and money.

[00:25:49] Speaker 00:
He was reopened approximately 219 days and he submitted his claim shortly thereafter on February 22, 2013.

[00:25:56] Speaker 00:
There's nothing that harmed the government because he was not able to compile these exact courts.

[00:26:01] Speaker 00:
This happens all the time in constructive changes and these types of cases.

[00:26:05] Speaker 00:
You just don't know your time and money yet.

[00:26:07] Speaker 00:
You've got to figure it out.

[00:26:08] Speaker 00:
You've got to do a, what do they call it, a primavera critical path structure.

[00:26:14] Speaker 00:
You've got to do all these things that the government requires to prove your case.

[00:26:17] Speaker 00:
You can't just go in and say, you know what, it's X days.

[00:26:21] Speaker 00:
I've been delayed for three weeks.

[00:26:23] Speaker 00:
Does that mean I'm entitled to three weeks?

[00:26:24] Speaker 00:
No.

[00:26:24] Speaker 00:
The government wants engineering support and background.

[00:26:28] Speaker 00:
It's not just day for day.

[00:26:29] Speaker 03:
But they don't need the cost data to rule on a time extension request.

[00:26:34] Speaker 00:
But even the time extension request is not quid pro quo.

[00:26:38] Speaker 00:
In other words, it's not you were delayed 300 days, so now you are entitled to 300 days.

[00:26:43] Speaker 00:
The government has to see, was there any concurrent delay?

[00:26:45] Speaker 00:
We have to ourselves establish, should we be claiming the entire three days?

[00:26:50] Speaker 00:
Are there other circumstances?

[00:26:52] Speaker 00:
Does this go in tandem with other claims we might have that affect the time request we have?

[00:26:57] Speaker 02:
But he didn't ask for any, did he?

[00:27:00] Speaker 00:
He did with his claim, Your Honor.

[00:27:03] Speaker 00:
He did with his claim, and he just, you know, remember the facts as they exist at that time.

[00:27:11] Speaker 00:
You've got a port closed.

[00:27:13] Speaker 00:
He's begging for instruction.

[00:27:14] Speaker 00:
Government gives him nothing.

[00:27:16] Speaker 00:
Doesn't say we anticipate reopening the port in four weeks, two weeks, be guided accordingly.

[00:27:21] Speaker 00:
Nothing for 219 days.

[00:27:23] Speaker 00:
Just give us a time extension request.

[00:27:25] Speaker 00:
For what?

[00:27:26] Speaker 00:
Add infinitum?

[00:27:28] Speaker 00:
I think the contractor did the best he could under the circumstances, the government on notice, gave him all the facts, and with his claim, finalized a clear, concrete package that the government requests.

[00:27:40] Speaker 00:
They don't want a one-page letter saying, give us X days.

[00:27:43] Speaker 00:
I think the contractor did all he could to preserve his rights.

[00:27:46] Speaker 00:
Thank you.

[00:27:47] Speaker 02:
Thank you, counsel.

[00:27:48] Speaker 02:
We'll take the case under advisement.