[00:00:04] Speaker 01:
We have three cases on the calendar this morning, a case from the Civilian Board of Contract Appeals, excuse me, one from the Patent Trial and Appeal Board, and one from the Court of Appeals for Veterans Affairs.

[00:00:20] Speaker 01:
The latter will be argued on the briefs, submitted only in the briefs and not argued.

[00:00:30] Speaker 01:
First case is Choctaw.

[00:00:34] Speaker 01:
Transportation Company versus the Department of Agriculture 2017-16-17, Mr. Willis.

[00:00:45] Speaker 00:
Yes, Your Honor.

[00:00:54] Speaker 00:
May I please the Court?

[00:00:56] Speaker 00:
Your Honor, my name is Matt Willis.

[00:00:57] Speaker 00:
I'm here on behalf of the appellant Choctaw Transportation Company.

[00:01:00] Speaker 00:
As the court has already noted, this matter is on appeal from the Civilian Board of Contract Appeals.

[00:01:06] Speaker 00:
To be frank with the court, the opinion here is one in which the judge imposed a higher legal standard of proof upon the appellant than is required by law or is appropriate.

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If I'm going to be even more direct, it appears that the judge determined the outcome which he favored and then built backwards a decision to support that outcome.

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In particular,

[00:01:26] Speaker 00:
I can point out there was irrefuted testimony at trial as to both the appellant's means and methods of operation and their intended methods of performance prior to modification number one to the contract.

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In particular, the appellant intended to bring rock and materials down the Mississippi River out into the Gulf of Mexico, place rock into a formation which was called for by the contract.

[00:01:51] Speaker 01:
Case about a differing site condition, which you didn't show?

[00:01:56] Speaker 00:
Yes, Your Honor.

[00:01:58] Speaker 00:
Yes, this case is about a different site condition.

[00:01:59] Speaker 00:
In particular, as I was about to say, place rock behind a feature on the contract called the groin, a large revetment of rock coming out from the tip of the island.

[00:02:10] Speaker 00:
And behind that feature of work, behind the groin, there was a hump, an underground hump, which was not shown in the contract plans and specifications.

[00:02:20] Speaker 00:
It wasn't shown in the original as bid plans and specifications.

[00:02:24] Speaker 00:
It also was not shown in the modification number one plans and specifications.

[00:02:29] Speaker 00:
Actually, I'm sorry, Your Honor, it was shown in modification number one.

[00:02:33] Speaker 00:
But modification number one was put out after two hurricanes had impacted the Gulf of Mexico.

[00:02:38] Speaker 00:
And it wasn't put out as a change to the contract to change a feature of the work, do something differently, add or subtract.

[00:02:44] Speaker 01:
But didn't your people inspect the site

[00:02:48] Speaker 01:
And didn't the contract indicate that there'd be changing conditions, changing water levels?

[00:03:00] Speaker 01:
Wasn't all of this built in?

[00:03:03] Speaker 00:
Your Honor, I interpret two questions out of that one.

[00:03:06] Speaker 00:
The first is, did Makai inspect the site?

[00:03:09] Speaker 00:
Yes, as well as they could.

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from the top of the water.

[00:03:14] Speaker 00:
However, they could not, I suppose they were allowed, but it would be financially and practically impaired to actually conduct a full hydrological survey or a bathymetric survey as to the condition of the seafloor.

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So yes, they went to the site.

[00:03:30] Speaker 00:
They did see it.

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They did in general understand the area in which they were bidding work, but did they have their own

[00:03:35] Speaker 00:
a bathymetric survey done to give them the topography of the area, no, they had to rely on the government specifications for that, which are, as a matter of law, supposed to be accurate.

[00:03:45] Speaker 00:
As to were they told that the conditions were, the word that has been used over and over again is dynamic, ever-changing, yes, Your Honor, but that is not, in fact, applicable to the claim.

[00:03:56] Speaker 00:
Yes, water levels go up and down everywhere, the Gulf, the Mississippi River, the pond near my house, but the seafloor itself

[00:04:04] Speaker 00:
Yes, changes some.

[00:04:05] Speaker 00:
In this case, however, this hump was a semi-permanent feature, or perhaps a permanent feature.

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In other words, when we obtained the real data that was actually available to the government prior to the issuance of the solicitation, it showed the hump.

[00:04:22] Speaker 00:
When we compared it with the data that was shown after the surveys after the hurricanes, hump's still there.

[00:04:29] Speaker 00:
This is not a matter of where there is sand or accretion filling in or going away.

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It's not a matter of the water level going up and down.

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We're talking about an underwater ridge, which prevented the appellant's intended means and methods of performance that was there before, during, and after.

[00:04:45] Speaker 04:
When the government issued modification one, did the government request a new price proposal with modification one?

[00:04:57] Speaker 00:
I believe they did, Your Honor.

[00:04:58] Speaker 04:
OK.

[00:04:58] Speaker 04:
And then your side came back with a new schedule for performance, but didn't come back with an adjustment to the price.

[00:05:08] Speaker 00:
That is correct, Your Honor.

[00:05:09] Speaker 00:
That is correct, Your Honor.

[00:05:11] Speaker 00:
That wasn't provided until after contract performance had been completed.

[00:05:15] Speaker 04:
And so I'm just curious why, after seeing in Mod 1 this notice about a hump, and then other adjustments were made,

[00:05:26] Speaker 04:
You came back with a new proposal on the construction schedule, but you didn't come back with any proposal on changing the price.

[00:05:37] Speaker 00:
Your Honor, respectfully, I don't know that we came back with a proposal on the construction schedule or a proposal on the plan.

[00:05:44] Speaker 00:
The request for the pricing was made contemporaneous with a notice to proceed.

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In other words, we weren't

[00:05:51] Speaker 00:
How much is it going to cost to do modification number one?

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Are you still going to be able to proceed?

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We were told get to work.

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And I believe the testimony at trial was that they got the notice to proceed and they went to work.

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And perhaps they should have provided they requested price adjustment or price proposal at some point thereafter before the completion of the work.

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But nonetheless, that didn't obviate their obligation to go to work as directed at that same time.

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It's not as if they were asked how much is this going to cost and then the government decide whether or not they were going to still move forward with the work.

[00:06:24] Speaker 00:
My client was directed to proceed.

[00:06:26] Speaker 04:
I guess what I'm wondering is if your client had this subjective plan to use the original plan dimensions of the groin to do the construction and assumption that there was no hump in behind that groin area and then all of a sudden now in this modification one there's all this new information about changes

[00:06:48] Speaker 04:
to the proposed plan, it would seem like if you did have that subjective plan, then that's when you would have eluded the government.

[00:06:57] Speaker 04:
OK, now that you've made these sorts of adjustments to the plan, that impacts how we are planning on doing the construction.

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And so therefore, not only is it going to take longer, but it's actually going to cost the government more.

[00:07:10] Speaker 00:
Your honor, in hindsight, I wish they had done that.

[00:07:13] Speaker 00:
But your honor, I think they were under the notice to proceed.

[00:07:15] Speaker 00:
They did clearly give notice of the differing site condition.

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They did give notice that they were impacted.

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What they didn't give notice of was an amount of money that it was going to take to perform the work in light of the new modifications.

[00:07:27] Speaker 04:
And also, your honor, at what point did it give notice to the government that now they were impacted by modification one?

[00:07:37] Speaker 00:
Your Honor, when they gave notice of the differing site condition, they didn't necessarily go into how the means and methods were impacted directly, but they did give notice of the differing site condition, which accompanying is our work has to change.

[00:07:53] Speaker 04:
When did they do that?

[00:07:55] Speaker 00:
I don't have the date in front of me, Your Honor, but it was shortly after the mobilization notice was received that they were advised of the differing site condition.

[00:08:05] Speaker 00:
And Your Honor, I also have to point out that as the testimony at trial, one of the reasons why this was not pursued more aggressively as a change or more aggressively explaining the means and methods is the appellant was told that these changes were due to the hurricane.

[00:08:19] Speaker 00:
They were told these were not changes that the government has made to the contract.

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They were changes that were caused by an act of God.

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And this is kind of your FYI as to what you're about to encounter.

[00:08:31] Speaker 00:
This is actually corrections made to the contract, which corrected mistakes in the bid and solicitation documents.

[00:08:38] Speaker 00:
And so the appellant was presented with a situation where they had a notice to proceed on a contract which they believe was modified based on the government's representations, incorrect representations, by hurricanes, which were an act of God and a non-compensable alteration of the proceedings.

[00:09:02] Speaker 00:
And I'd point out that there's no testimony in the record.

[00:09:04] Speaker 00:
There's no evidence in the record.

[00:09:06] Speaker 00:
There's no indication in the record, except for two points raised by the government in its brief and the board in its decision, which would refute the appellant's plan.

[00:09:19] Speaker 00:
The first is that Mr. Zelenka and Mr. Ford had a different opinion as to the amount of barges that could have been fleeted behind the groin.

[00:09:26] Speaker 00:
One was four to six.

[00:09:27] Speaker 00:
One was six to eight.

[00:09:28] Speaker 00:
As we pointed out in our reply brief,

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If they were in collusion, it would have been the same number, not two different numbers.

[00:09:35] Speaker 00:
That doesn't go to a discrepancy in the testimony as to its inaccuracy.

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In fact, it bolsters the fact that that's what they intended to do, or else they would have come up with the same number.

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And the lack of contemporaneous documentation, there's no contemporaneous documentation as to the intended means and methods of performance.

[00:09:52] Speaker 00:
Either way.

[00:09:54] Speaker 01:
That the burden was on you.

[00:09:58] Speaker 00:
Your Honor, it was.

[00:09:59] Speaker 00:
By a preponderance of the evidence, the burden was on the appellant to prove, well, first, a reasonable interpretation of the contract and what they actually found was materially different and the impact to their means and methods.

[00:10:12] Speaker 00:
But they did that, Your Honor.

[00:10:14] Speaker 00:
When the board said that they did not because they didn't have contemporaneous evidence, there is no indication that to prove to the board by a preponderance of the evidence that you have to have contemporaneous documentation at the time.

[00:10:26] Speaker 04:
Well, how are we supposed to interpret the contract in a way that necessarily requires the groin to be a certain length because it allows you to more efficiently do the construction?

[00:10:40] Speaker 04:
I don't see anything in the contract that says that.

[00:10:43] Speaker 04:
And then, of course, as I understood the board decision, it said there was no contemporaneous evidence to support that kind of theory and understanding that both parties had a meeting of the minds of the contract in that particular way.

[00:10:56] Speaker 00:
Well, two points, Your Honor.

[00:10:57] Speaker 00:
The first is a meeting of the minds.

[00:11:00] Speaker 00:
No, I'm sure the government didn't know how the appellant intended to pursue the work.

[00:11:04] Speaker 00:
And there's no contradiction that the appellant intended to do it exactly as it was testified to under oath in open court with no contrary information or representations.

[00:11:14] Speaker 04:
So why is it part of the contract then?

[00:11:17] Speaker 00:
Your Honor, it's not that a protected area behind the groin was specified as available

[00:11:22] Speaker 00:
specifically by the contractor.

[00:11:23] Speaker 00:
In other words, they didn't draw out a rectangle and say fleeting area for barges.

[00:11:27] Speaker 00:
What they did was gave them the work limits, gave them the bathymetric topography of the area, and say, here's what we want you to build.

[00:11:34] Speaker 00:
Build it here.

[00:11:36] Speaker 00:
Now, when they did that, it is open to the contractor to use that available area in such a way as they see fit and appropriate to build the job.

[00:11:43] Speaker 00:
So while, no, there's not a box drawn on the contract plans that say fleeting area, because the appellant reviewed the plans and specifications,

[00:11:52] Speaker 00:
saw that the groin was going to create a protected area, and that the draft area behind the groin would be sufficient, but for the shortening of the groin in Mod 1, and especially the hump, to use that for a fleeting area, that was a reasonable interpretation of how to use the work area.

[00:12:10] Speaker 00:
No, the government didn't say, here's your fleeting area, but the contractor had full opportunity to make use of the work limits as they saw fit.

[00:12:19] Speaker 00:
That was an appropriate and respectable use of that

[00:12:21] Speaker 00:
area to fleet barges to have materials on site to better service the rest of the work.

[00:12:27] Speaker 01:
Mr. Wells, you're into your rebuttal, Tom.

[00:12:29] Speaker 01:
You can continue to use it.

[00:12:30] Speaker 01:
I'll save it.

[00:12:31] Speaker 00:
I was about to say, I'm into it.

[00:12:32] Speaker 00:
If there's not another question at this moment, I'd like to save what I have.

[00:12:35] Speaker 00:
We will save it.

[00:12:36] Speaker 01:
Ms.

[00:12:36] Speaker 01:
Kershner.

[00:12:42] Speaker 03:
May it please the court.

[00:12:43] Speaker 03:
The court should affirm, because the board correctly decided the only legal issue, which is interpretation of the contract,

[00:12:50] Speaker 03:
and its findings, in fact, are supported by substantial evidence.

[00:12:54] Speaker 03:
There was only a single claim for damages based on alternative theories, either under the changes clause, differing site condition, or a defective specification.

[00:13:06] Speaker 03:
At the board, Choctaw contended that the water bottom elevations north of the area where it says it was

[00:13:16] Speaker 03:
north of the groin, where it says it was going to have the fleeting area, that that was a differing site condition.

[00:13:22] Speaker 03:
Regarding that contention, the board found, based on contemporaneous job records, and I point out, what we had here was three sets of contemporaneous job records.

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The government's records, Choctaw's records, and the subcontractor's records.

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And based on all of those contemporaneous records, the board found

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that from January to February of 2006, when they're starting work, what's happening is that the work is being impacted by severe weather and changing water depths.

[00:13:54] Speaker 03:
The board finds that this is the dynamic environment that the contract foretold.

[00:14:01] Speaker 03:
And what is happening is, as the board said, it is clear that the water depths were changing during contract performance

[00:14:09] Speaker 03:
as areas that were accessible at first became inaccessible within a short period of time.

[00:14:16] Speaker 03:
It points out within a two-week period from January to then into February of 2006, the area right behind where they're building the beginning of the groin is filling in with sand.

[00:14:33] Speaker 03:
And it points out, the board points out in its decision that this area which had been six feet

[00:14:39] Speaker 03:
in depth where you could get in a barge of that draft six feet has now filled in.

[00:14:45] Speaker 03:
And these findings are pages 22, 23, 53, and 57 of the joint appendix.

[00:14:52] Speaker 04:
I understand Chuck Dow's argument.

[00:14:54] Speaker 04:
They're saying that the sand hump was always there at the time of the original solicitation.

[00:14:59] Speaker 04:
And so therefore, it's inaccurate for the government to suggest as a basis for mod 1

[00:15:09] Speaker 04:
that the sandbar was due to an act of God, but instead it was due to an oversight by the government when the government originally issued the solicitation.

[00:15:18] Speaker 03:
That is indeed their argument.

[00:15:20] Speaker 03:
With respect to that argument, what the board did is first, on the differing site condition claim, look at what was happening at the site.

[00:15:31] Speaker 03:
And there, it found that in these contemporaneous job records, there's no mention of this sandbar hump.

[00:15:39] Speaker 03:
as impacting the job or even any mention of it at all.

[00:15:44] Speaker 03:
What the job records talk about is building the beginning of the groin, the most eastern end, and that area immediately filling in with sand right behind the groin so that their work is impacted and they leave the job.

[00:16:04] Speaker 02:
Can you look with me, please, at page 44 and 45, or JA 45 and 46 of the appendix?

[00:16:11] Speaker 02:
I believe I'm looking at the board's opinion.

[00:16:15] Speaker 02:
Is that right?

[00:16:17] Speaker 02:
The appendix 45 and 46?

[00:16:19] Speaker 02:
Yes.

[00:16:20] Speaker 02:
And aren't these fact findings by the board on page JA 45 and 46 that the modification one, in particular the position of the groin,

[00:16:35] Speaker 02:
was erroneously, according to the government's own personnel, erroneously alleged to be the result of hurricanes, but in fact was not the result of hurricanes, but rather the government's own initial errors in the survey.

[00:16:52] Speaker 02:
Isn't that what the board expressly finds on pages 44 and 45 of its opinion?

[00:16:57] Speaker 02:
Yes.

[00:16:58] Speaker 02:
So what am I missing?

[00:16:59] Speaker 02:
I thought you were suggesting that this was the result of

[00:17:04] Speaker 02:
hurricanes and I thought the board expressly found it wasn't.

[00:17:07] Speaker 02:
No, we are not arguing that these modification... So modification one was erroneously at the time of the modification suggested by the government to have been a changed site condition due to the hurricanes which would have been within the contracting dynamic conditions that could have been reasonably foreseeable but in fact it turns out that the board found it was not

[00:17:30] Speaker 02:
a result of the hurricane, and it was a result of the government's original surveying errors.

[00:17:36] Speaker 02:
So why ought there not to be compensation then for a change in conditions in light of the government's erroneous original survey and then the subsequent modification?

[00:17:48] Speaker 03:
The board addressed exactly the court's point.

[00:17:52] Speaker 03:
What the board pointed out is that the case should be analyzed under the changes clause.

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and it assumed that the change in the length of the groin was a change, and also that the hump which appears in the drawings with the modification is a change.

[00:18:11] Speaker 03:
And then it looked to see whether they would be entitlement under the changes clause.

[00:18:17] Speaker 03:
And what the board pointed out in its opinion is when you examine, it asked, first of all, do these changes impact the work?

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And the answer was no.

[00:18:32] Speaker 03:
It was no because the board looked at all these contemporaneous job records.

[00:18:38] Speaker 03:
And the contemporaneous job records never asserted at any point that the length of the grind was impacting the work or that this.

[00:18:46] Speaker 01:
And didn't the contracting officer request a price proposal and the appellant didn't submit it?

[00:18:53] Speaker 03:
Yes, that's correct.

[00:19:00] Speaker 03:
The change order itself is at page 13- They proceeded with the work.

[00:19:04] Speaker 01:
They proceeded with the work.

[00:19:07] Speaker 03:
Yes, they did.

[00:19:09] Speaker 03:
But the change order itself is at page 1324 of the appendix.

[00:19:14] Speaker 03:
It was a notice to proceed plus a request for a change proposal.

[00:19:21] Speaker 03:
Whether you need additional time, whether you need additional costs, give us your proposal.

[00:19:28] Speaker 03:
this change order included all of the revised drawings.

[00:19:33] Speaker 03:
And this was issued in December before any of the work was begun.

[00:19:38] Speaker 03:
And as the board found, this change order was absolutely clear.

[00:19:43] Speaker 03:
If you looked at it, you could see that the groin was 926 feet.

[00:19:47] Speaker 03:
So you knew right away that there is a shortening of the groin.

[00:19:53] Speaker 03:
Yet there's no mention in any document of that

[00:19:56] Speaker 03:
change in the groin in its length or its coordinates as impacting the work.

[00:20:02] Speaker 03:
Also the board found that the sandbar hump was clearly shown in these revised drawings, but there's no mention of the sandbar hump impacting the work in any of the contemporaneous records, any of these daily reports.

[00:20:18] Speaker 03:
There's not also no mention in any of the correspondence that goes back and forth between

[00:20:24] Speaker 04:
The board ultimately found that it was bad weather and the dynamic natural conditions of this particular environment that led to the increased costs on the contractor, rather than the changes made in mod 1.

[00:20:44] Speaker 04:
Is that right?

[00:20:44] Speaker 03:
Yes, that's right.

[00:20:45] Speaker 04:
And then at the same time, is it an alternative ground for rejecting the equitable adjustment claim

[00:20:55] Speaker 04:
that the contractor failed to propose a new price proposal in response to Mod 1?

[00:21:03] Speaker 04:
Or are those two sort of lumped together?

[00:21:09] Speaker 03:
I would say they're lumped together to be fair to the board's opinion.

[00:21:13] Speaker 03:
The board looks at the whole body of evidence and concludes that if there really was a plan for

[00:21:24] Speaker 03:
a fleeting area north of the groin.

[00:21:27] Speaker 03:
It would have come up at some point.

[00:21:29] Speaker 03:
You would have talked about it.

[00:21:31] Speaker 03:
You would have written about it.

[00:21:32] Speaker 03:
It would have been in your daily reports.

[00:21:34] Speaker 03:
Somewhere, sometime, you would have said something about it.

[00:21:38] Speaker 03:
But there's no mention of it anywhere.

[00:21:42] Speaker 03:
And what the board points out is the claim.

[00:21:45] Speaker 03:
There's only one claim.

[00:21:47] Speaker 03:
And what the claim really is based upon is that there

[00:21:52] Speaker 03:
was supposed to be a fleeting area.

[00:21:55] Speaker 03:
A fleeting area north of the groin where you would have eight barges.

[00:22:00] Speaker 03:
And they would be filled with rock throughout the job.

[00:22:04] Speaker 03:
And that's your store's place so you can do your work quicker because the rock is right there.

[00:22:12] Speaker 03:
That's how the claim was presented.

[00:22:16] Speaker 03:
And what the board found is that that was on

[00:22:21] Speaker 03:
unreasonable interpretation of the contract.

[00:22:25] Speaker 03:
And that's the only legal issue in the case, really.

[00:22:29] Speaker 03:
Everything else is factual.

[00:22:31] Speaker 03:
And what the board did is point out that based on the provisions of the contract, it was unreasonable to assume that you could have this fleeting area.

[00:22:42] Speaker 03:
These barges, if they're half-filled, they draft

[00:22:46] Speaker 03:
six feet meaning that that area has to be at least six feet deep throughout the whole job to have these barges in that area and that was an unreasonable assumption.

[00:23:00] Speaker 03:
The board pointed to language on the drawings these are on the drawings of the groin and on the break borders where it says quote bottom elevations may change due to the dynamics of the environment it also pointed to special provision eight

[00:23:16] Speaker 03:
which warns of tidal fluctuations in the water depths and it points to the construction specifications which say that access to the sites may be impeded due to shallow water conditions and the board found that it was unreasonable to rely on one drawing which had certain contours on it and assumed that that would be good for

[00:23:45] Speaker 03:
July 2005 when the solicitation was issued or for out the performance of the job.

[00:23:53] Speaker 03:
The surveys that are noted in the original specifications are from 2003 and 2004.

[00:23:59] Speaker 03:
The board also cited to the personal experience of the subcontractor who had built the earlier breakwaters and there that contractor, the subcontractor had experienced these

[00:24:14] Speaker 03:
changing water depths.

[00:24:16] Speaker 03:
As breakwaters are built, areas behind them fill in with sand.

[00:24:23] Speaker 03:
And that is exactly what happened on this job, as the board found.

[00:24:29] Speaker 03:
The court raised certain questions.

[00:24:31] Speaker 03:
I just wanted to address those.

[00:24:33] Speaker 03:
There was a question about notice.

[00:24:36] Speaker 03:
The only notice that was given in this case was oral.

[00:24:43] Speaker 03:
There was an oral complaint on January 25, 2006, which is noted in the board's opinion at the Joint Appendix, page 22.

[00:24:54] Speaker 03:
And the complaint is about access to the job site.

[00:25:01] Speaker 03:
There was an access route in.

[00:25:03] Speaker 03:
And the complaint is that that access route in has filled in since the hurricanes.

[00:25:10] Speaker 03:
And so you can't get your barrages in along that access route.

[00:25:16] Speaker 03:
And what I'll point out, and the board finds it's an opinion, is that there are no depths noted on the plans for the access route.

[00:25:26] Speaker 03:
So there's no differing site condition for the access route.

[00:25:31] Speaker 03:
There's never any real claim for the access route into the job site.

[00:25:36] Speaker 03:
But what the government does is waive the work limits.

[00:25:40] Speaker 03:
You can't get in the way the plans indicated.

[00:25:43] Speaker 03:
Well, you can access the groin otherwise.

[00:25:49] Speaker 03:
The other question.

[00:25:53] Speaker 03:
OK, I think I've covered the court's other questions.

[00:26:04] Speaker 03:
In terms of the site visit,

[00:26:09] Speaker 03:
wanted to address that a little bit more.

[00:26:11] Speaker 03:
Here, the testimony about the site visit that they conducted was that they went along the area of the groin in July of 2005.

[00:26:22] Speaker 03:
And this is before the hurricanes and also before they put in their bid.

[00:26:29] Speaker 03:
And they went with a meter, and they tested the depths of the water.

[00:26:36] Speaker 03:
And based on their site visit,

[00:26:38] Speaker 03:
they came up with their bid.

[00:26:42] Speaker 03:
And the board finds that that is evidence that is contrary to the notion that they should be entitled to a change, an equitable adjustment based on the changes in the modification.

[00:27:06] Speaker 03:
Basically, to sum up, the expert testimony is rejected because it was based on a unreasonable interpretation of the contract.

[00:27:19] Speaker 03:
It was also based on a completion date that the expert arrived at.

[00:27:28] Speaker 03:
Basically, the whole claim itself is based on this alternative universe where

[00:27:37] Speaker 03:
The water depths are static, and there's always a place for a fleeting area with eight barges north of the groin.

[00:27:47] Speaker 03:
If the Court has no further questions, we would ask that the decision be affirmed.

[00:27:52] Speaker 01:
Thank you, Mr. Smith.

[00:27:54] Speaker 01:
Mr. Willis has three and a half minutes if you need it.

[00:27:59] Speaker 00:
Yes, Your Honor.

[00:28:02] Speaker 00:
Please report again.

[00:28:03] Speaker 00:
I simply will not have time to address all the issues that were raised in my brief, but please don't feel that by not raising one of them, I've waived any.

[00:28:11] Speaker 00:
I'd like to point out a couple of things.

[00:28:13] Speaker 00:
Number one, this case can be looked at as a changes clause matter, but it is more appropriately viewed as a differing site condition because the modification, number one, to the contract

[00:28:24] Speaker 00:
Yes, it, quote unquote, made changes to the contract, but it was provided to the appellant as an FYI as to what they were going to encounter, not to any real changes that were made to the work to be performed.

[00:28:36] Speaker 00:
The hump was shown.

[00:28:36] Speaker 00:
It was always there.

[00:28:38] Speaker 00:
It's not as if they had added that feature of work or that difficulty behind the groin.

[00:28:42] Speaker 00:
Hump was always there.

[00:28:43] Speaker 00:
The length of the groin, the length of the groin always went from the tip of the island to breakwater zero.

[00:28:49] Speaker 00:
On the plans and specifications which were bid,

[00:28:52] Speaker 00:
They provided an incorrect length of the groin.

[00:28:55] Speaker 00:
Modification number one, they corrected the length of the groin.

[00:28:58] Speaker 00:
They didn't say, we've now told you to build a shorter groin.

[00:29:01] Speaker 00:
They always intended for the groin to be built to the length to which it was built.

[00:29:06] Speaker 00:
In the plans and specifications as bid upon, however, they were indicating that the groin would be longer.

[00:29:11] Speaker 00:
So that is not a change that was made to the contract.

[00:29:14] Speaker 00:
That is a correction that was made.

[00:29:17] Speaker 00:
It would be a differing site condition that was found.

[00:29:19] Speaker 00:
It was not represented correctly in the contract.

[00:29:22] Speaker 00:
and then encountered by the contractor upon mobilization of the site.

[00:29:29] Speaker 00:
Your Honor, I'd also like to point out briefly, Mr. Canole's work was not based upon a faulty reading of the contract, nor an alternative universe in which water depths were static.

[00:29:39] Speaker 00:
No one has ever indicated that the water depths were not dynamic.

[00:29:43] Speaker 00:
No one has ever indicated that there would not be some accretion or silting away of

[00:29:49] Speaker 00:
material around the breakwaters around the groin.

[00:29:51] Speaker 00:
It's part of the purpose of the features.

[00:29:54] Speaker 00:
However, the feature that impacted performance most of this hump was always there.

[00:29:59] Speaker 00:
This plan to develop a fleeting area behind the groin was, based on the bid and specifications and what was actually bid upon by the appellant, an allowable use of the work limits.

[00:30:11] Speaker 00:
It is not something that they were told they had to do.

[00:30:14] Speaker 00:
nor were they told that they could, but they weren't prevented by any means from doing it.

[00:30:17] Speaker 00:
That's how they reasonably decided to pursue the work.

[00:30:20] Speaker 00:
Mr. Knoll based his decisions on the fact that that was a reasonable use of the work limits and the plan and methods of performance.

[00:30:30] Speaker 00:
His methodology was called into question, but legally, as we pointed out in our brief, there is no problem with his methodology.

[00:30:37] Speaker 00:
It was not a total cost analysis.

[00:30:39] Speaker 00:
And the fact that he later, in rebuttal, performed

[00:30:43] Speaker 00:
a total cost analysis, and that he showed similar results.

[00:30:46] Speaker 04:
Can you just quickly explain, I understand you have a theory for why this was a materially different site condition, but can you explain why the board's analysis lacked substantial evidence, what the board relied on to conclude that it wasn't the change of the Mod 1, but instead it was weather and the inherent dynamic water conditions of the environment?

[00:31:08] Speaker 04:
Why were they unreasonable in concluding what they concluded?

[00:31:12] Speaker 00:
They were unreasonable in concluding that the plan and means of operation was not what was intended by the appellant.

[00:31:19] Speaker 00:
Yes, the board is correct that there were changes.

[00:31:21] Speaker 00:
There's always going to be weather in the Gulf.

[00:31:23] Speaker 00:
There's always going to be high and low tides in the Gulf.

[00:31:26] Speaker 00:
However, even Mr. Penel's work took into account those severe weather days and took them out of any damages calculation.

[00:31:34] Speaker 00:
The board was unreasonable in its determination because the fact of the matter is that hump

[00:31:39] Speaker 00:
And the changes that were corrected, not made by modification, number one, exacerbated every other condition out there, including the tides, including the weather.

[00:31:48] Speaker 00:
And when you're talking about the protection that they were going to get from the groin, the fact that severe weather impacted them, it did.

[00:31:54] Speaker 00:
It impacted them a heck of a lot more than if they'd had the protection they should have had.

[00:31:58] Speaker 01:
Thank you, counsel.

[00:32:00] Speaker 01:
We will take the case on this issue.

[00:32:02] Speaker 00:
Excuse your honor.