[00:00:42] Speaker 03:
Okay, our next case this morning is number 17-15-15, Douglas P. Fleming, LLC, versus Secretary of Veterans Affairs, Mr. Wise.

[00:01:01] Speaker 01:
May it please the court?

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

[00:01:03] Speaker 01:
I apologize for my voice.

[00:01:05] Speaker 01:
I'm fighting off a bit of a cold.

[00:01:08] Speaker 01:
We're here on an issue involving contract interpretation, which, as this Court knows, is something that this Court considers de novo.

[00:01:17] Speaker 01:
The issue is relatively simple.

[00:01:19] Speaker 01:
If you look at the contract, this was a contract to paint and patch the 2D halls and walls.

[00:01:30] Speaker 03:
Even if you assume that the 16,800 figure is directed toward the area

[00:01:38] Speaker 03:
of wall painting, isn't it clear that it was at most an estimate of the total area to be painted?

[00:01:49] Speaker 01:
The original bid, it was an estimate of approximately 16,800 square feet of paintable surface.

[00:01:58] Speaker 01:
That is what was asked at the pre-bid conference.

[00:02:03] Speaker 01:
And it was answered, and all the bidders, not just my client, DPF, they asked if they could go back and take more accurate measurements of the specific groups.

[00:02:13] Speaker 03:
Are you saying that it became something other than an estimate in the final contract?

[00:02:20] Speaker 01:
Not in the final contract.

[00:02:21] Speaker 01:
When the modification, number one, yes, as modified, it was definitely, the approximate was taken out of it.

[00:02:28] Speaker 01:
And let's, if I could just, and I don't certainly.

[00:02:31] Speaker 03:
That would be kind of an odd contract to say that, you know, you paint 16,800 feet and then you stop even though you haven't finished painting all the rooms and halls, right?

[00:02:42] Speaker 01:
I would agree if all of the rooms and all the patient rooms and all the halls were part of the contract.

[00:02:46] Speaker 01:
I'd agree with you, but that's not what the contract said.

[00:02:48] Speaker 01:
The contract said paint and patch the 2D halls and walls.

[00:02:53] Speaker 01:
And there was a lot of conversation in the underlying opinion.

[00:02:57] Speaker 01:
about, well, it wasn't really a painting contract.

[00:03:00] Speaker 01:
It was more of you had walls, you had floors.

[00:03:04] Speaker 01:
It is true that there were floors part of the original contract.

[00:03:07] Speaker 01:
But this was always the paint and patch.

[00:03:10] Speaker 01:
That was what was included in the first paragraph of the solicitation, which was ignored by the Board of Contract Appeals below.

[00:03:19] Speaker 03:
So if we were to disagree with you and say that this was an testament, you would lose, right?

[00:03:26] Speaker 01:
no no i would uh... uh... i don't believe uh... i'd believe blitz if i could break it down the original contract included sixteen thousand eight hundred square feet which was approximate what was that if the set number or not we don't know when we submitted our bid if if you look at uh... what i'm asking to do is to assume for the moment that we conclude that the sixteen thousand eight hundred number was an estimate rather than a definition of what your obligation was

[00:03:55] Speaker 03:
you wouldn't lose because you had information in the ACM report to calculate what the actual square footage was.

[00:04:05] Speaker 01:
I respectfully disagree on that.

[00:04:07] Speaker 01:
Let me tell you why.

[00:04:07] Speaker 01:
Because we were never told that it was going to be all of the rooms in 2D.

[00:04:13] Speaker 01:
In fact, if you look at the ACM report, there are rooms that are identified that were never painted.

[00:04:19] Speaker 01:
And there are rooms along 2D that were never painted.

[00:04:23] Speaker 01:
So how can

[00:04:24] Speaker 01:
At the end of the day, we'd be held liable for painting all of the rooms in the wall.

[00:04:31] Speaker 04:
I'm sorry, there were patient rooms that were not painted?

[00:04:33] Speaker 01:
Correct, Your Honor.

[00:04:38] Speaker 05:
If you were to look at- Was this in the briefs, this reference to the patient rooms not painted, not subject to being painted?

[00:04:47] Speaker 01:
I don't remember that.

[00:04:49] Speaker 01:
Yes.

[00:04:49] Speaker 01:
Let me, yes.

[00:04:50] Speaker 04:
Right here.

[00:04:54] Speaker 01:
addressed in the footnote one in the reply brief, Judge Dyson.

[00:05:08] Speaker 01:
It references Appendix 805, which highlighted which patient rooms and corridors that were ultimately painted.

[00:05:15] Speaker 01:
And if you go to Appendix 805,

[00:05:24] Speaker 01:
I could just show you.

[00:05:27] Speaker 05:
It's 805, Your Honor.

[00:05:31] Speaker 05:
This is saying that not all of the rooms were patient rooms, but presumably all of the patient rooms were required to be painted.

[00:05:39] Speaker 05:
Isn't that right?

[00:05:40] Speaker 01:
No, Your Honor.

[00:05:41] Speaker 01:
I would submit that.

[00:05:42] Speaker 05:
All right.

[00:05:42] Speaker 05:
Well, let's see.

[00:05:43] Speaker 05:
What have you got, 805?

[00:05:43] Speaker 01:
805.

[00:05:45] Speaker 01:
It identifies what rooms were actually painted.

[00:05:51] Speaker 01:
And if it's not highlighted, I'll wait for you.

[00:05:59] Speaker 01:
And if you're to look at it, it shows, and it's handwritten, in green, you can see room number 102.

[00:06:09] Speaker 01:
It's got 860 square foot of paint.

[00:06:14] Speaker 01:
But the room above it, 100, was not painted.

[00:06:17] Speaker 01:
If you go down to the bottom, room 111 was painted, 940.

[00:06:22] Speaker 01:
But then you turn the corner, and it picks up room 118, 119, 120.

[00:06:29] Speaker 01:
but it skipped two patient rooms right there on the corner and at the end.

[00:06:34] Speaker 03:
What are we looking at here?

[00:06:36] Speaker 03:
Is this a description of the work that you did?

[00:06:39] Speaker 01:
Yeah, this is a calculation of the rooms that were actually painted and a calculation of the specific square foot of paintable wall space.

[00:06:53] Speaker 03:
How do we know that the VA said don't paint these rooms?

[00:06:59] Speaker 03:
I mean, we know from what you just said, it's assumed that the rooms were not in fact painted.

[00:07:06] Speaker 03:
What was the evidence that they weren't supposed to be painted?

[00:07:10] Speaker 01:
We were never advised what rooms would be painted or would not be painted.

[00:07:16] Speaker 01:
We were told when to paint certain rooms.

[00:07:19] Speaker 01:
The problem is we were never given clear direction that you're going to paint

[00:07:23] Speaker 01:
in fact at the beginning of the job they never told us that in the government say you don't have to paint these patient rooms that are shown as unpainted on this exhibit indirectly yes they didn't say paint these rooms in fact how we were given instructions how DPF was given instructions were it was never that you're going to paint rooms 102 103 instead it was said all right you're going to paint rooms 102 this week 102 and we'll go over to

[00:07:52] Speaker 01:
213 or whatever the number, I don't know, have exactly which ones.

[00:07:56] Speaker 03:
Kennedy And did the government say you've completed the job even though these rooms have been?

[00:08:01] Speaker 03:
Where did they say that?

[00:08:03] Speaker 01:
The final cure notice, when all of the rooms have been painted on here, except the ones that were highlighted, the cure notice, which specifically instructed us to finish all work, directed us to finish all work within 10 days, listed only unpainted corridor work.

[00:08:18] Speaker 01:
So they never said you have to come back and paint room 100.

[00:08:22] Speaker 01:
or the other different rooms that were not painted.

[00:08:25] Speaker 01:
At the beginning of the job, Judge Price, I believe you asked me, why couldn't you, or maybe Judge Dyke, I apologize, he said, why couldn't you go through the ACM report and figure out what you're going to paint?

[00:08:37] Speaker 01:
If we had been told at the very beginning or at any time that these are all of the rooms you're going to paint, he could have gone down and calculated exactly, said, all right, the paintable square foot is going to be, in this case, it turned out to be 36,880 square feet.

[00:08:52] Speaker 01:
if we knew that these were all of the rooms that were going to be painted.

[00:08:55] Speaker 01:
And you can see those calculations that it's summarized over on the right-hand side.

[00:09:00] Speaker 01:
That is a problem.

[00:09:01] Speaker 01:
We were never given clear instructions.

[00:09:03] Speaker 01:
DPF was never given clear instructions that these are the rooms we're going to paint.

[00:09:07] Speaker 01:
Instead, it's a hospital.

[00:09:10] Speaker 01:
So you're going to take furniture out of each room and then paint it.

[00:09:15] Speaker 05:
Let me tell you what it is that troubles me about your case.

[00:09:19] Speaker 05:
And that is the document that shows up, I think, on 848 of the appendix that was sent by a DPF in response to an inquiry from the VA as to whether your capacity to complete the contract at the bid price.

[00:09:38] Speaker 05:
There was a back and forth of a couple of times before the contract was awarded.

[00:09:45] Speaker 05:
Even though the solicitation referred to 16,800 square feet, you have at item four, patient rooms painting approximately 18,000 square feet, acknowledging that more than the 16,800 just to do the patient rooms.

[00:10:03] Speaker 05:
And then on item three, you acknowledge the obligation to paint the corridors, which is extra square footage.

[00:10:12] Speaker 05:
So it seems to me any argument that

[00:10:14] Speaker 05:
You were somehow limited to 16,800.

[00:10:16] Speaker 05:
It's contradicted by this, isn't it?

[00:10:21] Speaker 01:
In looking at it blindly, yes, Your Honor.

[00:10:23] Speaker 01:
But if I may, this is was submitted, this document shown in Exhibit 848 was submitted to establish the schedule of values for the contract.

[00:10:34] Speaker 01:
If you're looking at Exhibit.

[00:10:35] Speaker 05:
This was submitted before the contract was led by DPF and indicated what

[00:10:43] Speaker 05:
presumably, DPF's understanding of its obligations and costs would be, correct?

[00:10:49] Speaker 01:
I believe Exhibit 848 was submitted after the job was left.

[00:10:55] Speaker 05:
If you look at Exhibit 8... The record suggests that it was submitted on June 22nd, right?

[00:11:02] Speaker 05:
And that the job, I think, was not awarded until some days after that.

[00:11:07] Speaker 05:
I don't remember the exact date, but I think it was after the June 22nd.

[00:11:12] Speaker 01:
I don't have the exact date in front of me, Your Honor, when this was submitted, but I will say this.

[00:11:17] Speaker 01:
If you go to exhibit 858, which is an email two pages beyond, where Doug Fleming responds to contracting officer Butts' inquiry into the total cost and about the bid, and his email to Ms.

[00:11:35] Speaker 01:
Butts states in the second paragraph that the overall project consists of approximately 10,000 square feet.

[00:11:42] Speaker 01:
vinyl floor tile removal and replacement of approximately 16,000 to 20,000 painting and 30 to 40,000 in electrical work.

[00:11:53] Speaker 05:
Yes, but that was June 13th and the document we've been discussing was June 22nd.

[00:11:59] Speaker 05:
So this more recent document, which is a more complete breakdown, looks like a more updated understanding by DPF as to what the scope of the work

[00:12:11] Speaker 01:
Well, actually, I don't dispute that, Your Honor.

[00:12:16] Speaker 01:
In fact, if you were to look at it, the estimate, and we're only talking about if this, in fact, is 6-22-2012.

[00:12:23] Speaker 01:
The only reason I don't have a date on the document, that's the only reason I'm hesitating on that.

[00:12:28] Speaker 05:
Well, I went through the documents, and that was my best take on that date, because it's attached to a correspondence of that date.

[00:12:34] Speaker 01:
It's within the same week of this original proposal.

[00:12:40] Speaker 01:
this response to the government saying your bids too low, and we tell them that we think it's between 16,000 and 20,000 of square foot, and then a week later they send in schedule values putting 18,000.

[00:12:53] Speaker 05:
I think it's all... And 2,000 for the patient rooms, not counting patient corridors, which was separately itemized as to include painting.

[00:13:02] Speaker 01:
Yeah, I don't... Your Honor, I think the

[00:13:06] Speaker 01:
I could see how you would view that if you were viewing that 18,000 square feet.

[00:13:10] Speaker 01:
I believe 18,000 square feet was an approximation between the 16,000 to 20,000 that DPF assumed was the value of the contract when it said approximately 16,800 square feet.

[00:13:25] Speaker 01:
He had conversations with this particular CO, Karen Butts, who never testified at the hearing below and specifically agreed that the square feet

[00:13:36] Speaker 01:
Paintable square foot is approximately 16,800.

[00:13:41] Speaker 03:
My client was... What about the board's alternative holding if you fail to probe your damages?

[00:13:46] Speaker 01:
The... I don't believe that they really gave it much... They did not give the damages any consideration, Your Honor.

[00:13:57] Speaker 01:
They looked at this as an issue that

[00:13:59] Speaker 04:
But there is an express statement of an alternative holding, which may be brief, but brevity might be understandable when the point is, we've looked at what you've given us.

[00:14:13] Speaker 04:
You've just not given us anything reliable.

[00:14:16] Speaker 04:
So even if we could claim some damages for the disparity between 16.8 and 36.8,

[00:14:23] Speaker 04:
You haven't given us a reliable way of measuring what more you should be paying.

[00:14:29] Speaker 04:
Why isn't that sufficient?

[00:14:31] Speaker 04:
Maybe at least for claim 3660, maybe not for 3660.

[00:14:36] Speaker 01:
For 3660, Your Honor, it's the ACM report, which was how the 3660 was priced, was very detailed.

[00:14:48] Speaker 02:
It's not a document that you can address this in your opening brief, did you, this alternative holding?

[00:14:55] Speaker 01:
We did, Your Honor, not in detail.

[00:14:58] Speaker 01:
Where?

[00:14:59] Speaker 01:
It's in the page when we asked for the full 477,000 of the claim, the page 55, the conclusion.

[00:15:09] Speaker 01:
I acknowledge we did not go through specifically, you know.

[00:15:13] Speaker 01:
That's not sufficient.

[00:15:15] Speaker 04:
Well, you refer to the ACM.

[00:15:19] Speaker 04:
So maybe the ACM gives you the square footage.

[00:15:22] Speaker 04:
That's only one component of one possible way of proving what money you want.

[00:15:31] Speaker 04:
But it's only one component.

[00:15:33] Speaker 04:
And the board may have suggested that might not have really even been the best way to do it anyway.

[00:15:38] Speaker 04:
Just give us

[00:15:39] Speaker 04:
labor and materials or something.

[00:15:41] Speaker 04:
But even if it's one component, you don't show the work to say multiply that by what and how you derive it.

[00:15:52] Speaker 01:
In the trial court below, Your Honor, or the hearing before, there was a detailed explanation as to how it was priced based upon the ACM and the exhibit.

[00:16:07] Speaker 04:
Do we have that exhibit?

[00:16:10] Speaker 01:
Yes, I believe you do.

[00:16:12] Speaker 01:
This is not 408.

[00:16:14] Speaker 01:
No, I've got the original trial exhibit calculation of it, Your Honor.

[00:16:19] Speaker 01:
And I believe that is... I apologize.

[00:16:32] Speaker 01:
I believe it is...

[00:16:40] Speaker 01:
It started out as Exhibit 36, but it was modified to Trial Exhibit 82 and then Trial Exhibit 84.

[00:16:49] Speaker 01:
They are not in the Joint Appendix, but they were submitted below.

[00:16:54] Speaker 04:
I will, they were admitted as evidence, the, uh... But, you know, I mean, if you're going to attack what is stated as an alternative ground, that even if you're right about the meaning of the contract, the methodology was unsupported,

[00:17:10] Speaker 04:
How do we assess that without being even told what the methodology was?

[00:17:15] Speaker 01:
Well, I think with the proper course in this case, it was clear that the judge below committed an error in interpreting the contract and everything else.

[00:17:25] Speaker 01:
And they did not really give it a full and detailed explanation looking at the way the damages are calculated.

[00:17:31] Speaker 01:
We asked for a total of $477,000 for that claim.

[00:17:36] Speaker 01:
And I do admit that there is a

[00:17:38] Speaker 01:
I believe it's a sentence in the opinion saying, I mean, it's there.

[00:17:43] Speaker 01:
I acknowledge it.

[00:17:44] Speaker 01:
But I don't believe it was given clear.

[00:17:46] Speaker 01:
There was no substantial basis to say that there's no substantial support because the opinion as a whole spent its entire time trying to make an interpretation that 16,800 square feet was immaterial.

[00:18:03] Speaker 03:
OK, I think we have your point.

[00:18:04] Speaker 03:
We'll give you two minutes for a bottle.

[00:18:06] Speaker 01:
All right, thank you.

[00:18:06] Speaker 01:
Thank you very much.

[00:18:18] Speaker 03:
Ms.

[00:18:18] Speaker 03:
Kaproski, is that how you pronounce it?

[00:18:20] Speaker 00:
Kaproski, yes.

[00:18:28] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:18:30] Speaker 00:
The last discussion that you were just having with my colleague is exactly the heart of what is wrong with DPS claim in this case.

[00:18:37] Speaker 00:
There are multiple factual findings, particularly on the painting claim that you were just discussing, as well as on the other claims that DPF has presented, that DPS just

[00:18:47] Speaker 00:
utterly failed to address in any sort of substantive detail in its opening brief and are factual findings that this court must give certain deference to.

[00:18:55] Speaker 04:
I did not read the board as having said about claim 3662 what it said about claim 3660 in respect to the improper or insufficiently persuasive methodology.

[00:19:12] Speaker 00:
uh... your honor i would refer you to eight p p x six uh... it is part of the background discussion never says discussing i realize as as things go here three six six two small change nevertheless what the board does uh...

[00:19:38] Speaker 00:
say in its background discussion that DPF has not introduced evidence that supports the square footage in its claim or otherwise indicates the actual square footage that it painted.

[00:19:49] Speaker 00:
We read that as a holistic finding that there is no evidence to support the actual amount of square footage that was painted, which would go both to the extended job costs as well as the...

[00:20:01] Speaker 04:
doesn't seem right.

[00:20:03] Speaker 04:
The ACM report is certainly some evidence.

[00:20:08] Speaker 04:
That's the one that measures the joint compound in square footage rather than volumes of buckets.

[00:20:19] Speaker 04:
It's got to be walls, or whatever you're putting the joint compound on.

[00:20:24] Speaker 04:
And you're probably going to paint whatever you put in joint compound.

[00:20:29] Speaker 00:
I understand the board's conclusion to be the ACM report was a methodology for DPF to estimate the wall surfaces that it had painted, but our reading of the board's holding here is that it had not shown it actually painted the surfaces it is estimating in the ACM report.

[00:20:51] Speaker 00:
That's the distinction.

[00:20:53] Speaker 04:
Just to get back, and then I'll leave you alone on this.

[00:20:56] Speaker 04:
What does square footage have to do with 3662 as opposed to 3660?

[00:21:00] Speaker 04:
Isn't that the expenses, non-labor and materials or something component of the extra work?

[00:21:08] Speaker 00:
Correct, Your Honor.

[00:21:09] Speaker 00:
But if DPF had not proven that it painted beyond the extra work, how could the government be responsible for any extra costs associated from extra work it had not proven to have painted?

[00:21:21] Speaker 00:
That's where we see that tied in.

[00:21:26] Speaker 00:
Although we also agree with the board's contractual interpretation if you want to address that as well.

[00:21:33] Speaker 03:
Let's turn to that.

[00:21:35] Speaker 03:
They make a point about Appendix 805.

[00:21:38] Speaker 03:
They say that you didn't require them as part of the cure notice to paint all the patient rooms.

[00:21:44] Speaker 03:
And that suggests that the government itself interpreted the contract as not requiring the painting of all the patient rooms.

[00:21:50] Speaker 03:
What's the answer to that?

[00:21:51] Speaker 00:
It is my understanding that all of the painting rooms within 2D were actually painted.

[00:21:57] Speaker 05:
What are those rooms that are not shown in yellow on 805?

[00:22:03] Speaker 04:
And relatedly, what are all the little numbers?

[00:22:06] Speaker 04:
The unyellowed rooms don't seem to have little numbers on them.

[00:22:10] Speaker 04:
Can you explain that?

[00:22:11] Speaker 00:
No, Your Honor, this is DPF's exhibit.

[00:22:17] Speaker 00:
exhibit was essentially rejected as an appropriate estimate by the board.

[00:22:22] Speaker 00:
I cannot interpret it.

[00:22:25] Speaker 00:
The marks on here, the highlights and the handwriting is something that was created by DPF.

[00:22:32] Speaker 00:
The drawing itself, I understand, is a VA drawing, but not the marks showing what was and was not painted.

[00:22:39] Speaker 03:
Did someone testify about this?

[00:22:42] Speaker 00:
I believe Mr. Fleming did, although most of his testimony was discredited by the board.

[00:22:50] Speaker 00:
And I would point out that this 36,880 square feet is inconsistent with the request for equitable adjustment, which is discussed at APPX 16, for example, where DPF's initial claim

[00:23:08] Speaker 00:
was that it had painted 34,600 square feet or exceeded the contract by 17,000.

[00:23:13] Speaker 03:
I think we're missing the point here.

[00:23:16] Speaker 03:
Mr. Wise's point is that in the cure notice, you did not ask that all the rooms be painted, which suggests that the contract did not require the painting of all the rooms.

[00:23:29] Speaker 03:
So what did the cure notice say in terms of what was missing?

[00:23:36] Speaker 03:
We have some definition of what they were ordered to do that they hadn't done But your honor the

[00:24:05] Speaker 00:
The cure notice does not specifically mention that there are any patient rooms left to be painted.

[00:24:14] Speaker 00:
Our reading of that is that all of them had been painted at that time.

[00:24:17] Speaker 00:
I cannot account for the discrepancy in DPS evidence that it submitted, purporting to show that some rooms had not been painted.

[00:24:25] Speaker 05:
I guess the answer to this is, at this point, probably pretty clear.

[00:24:33] Speaker 05:
But does the 16,000, does anybody have any idea where 16,800 comes from?

[00:24:39] Speaker 00:
The genesis of that particular number, that is not on this record.

[00:24:44] Speaker 00:
It was testified to.

[00:24:45] Speaker 05:
I looked at any number of different combinations of numbers and so forth, and I couldn't get any of them to come anywhere near 16,800.

[00:24:52] Speaker 05:
So I'm just, obviously someone, maybe

[00:24:57] Speaker 05:
Is it Ms.

[00:24:57] Speaker 05:
Butts?

[00:24:58] Speaker 05:
Was that the original contracting officer?

[00:25:00] Speaker 00:
Ms.

[00:25:00] Speaker 00:
Butts was the original contracting officer.

[00:25:01] Speaker 05:
Who, sadly, did not testify.

[00:25:03] Speaker 00:
She had retired at that point, so she was... Well, it doesn't make her unavailable, I suppose, technically.

[00:25:08] Speaker 00:
Well, she was equally unavailable or available to both parties at that point.

[00:25:11] Speaker 00:
Okay.

[00:25:11] Speaker 05:
But in any event, someone had the idea that 16-8 means something, and is there absolutely nothing in this record that gives us even the slightest hint as to where to look for

[00:25:22] Speaker 05:
some correspondence between that and something that has some relation to this contract?

[00:25:28] Speaker 00:
I believe the VA witnesses unanimously testified that it was their understanding, mistaken as it may have ultimately been, that 16,800 square feet referred to the floor area of Ward 2D.

[00:25:41] Speaker 00:
Which was actually around 10,000, I think.

[00:25:43] Speaker 00:
That is what the board found.

[00:25:44] Speaker 00:
But the testimony on which the board relied, which was the contracting officer representative of Mr. Scott, I believe,

[00:25:50] Speaker 00:
He testified that he measured the floor square footage of the patient rooms and corridors that were covered by the contract, and those totaled approximately 10,000, I forget the exact number, but 10,000 something, which is slightly different than the boards holding that Ward 2D encompass 10,000 square feet.

[00:26:15] Speaker 00:
Still, the number 16 is nowhere close to 16.8.

[00:26:20] Speaker 00:
Yes, Your Honor, but if you were to refer to the drawing that was submitted with, I believe it was Amendment 2 of the contract in response to the questions and answers, there are many rooms within Word 2D that are not patient rooms.

[00:26:42] Speaker 00:
I don't know that that gets us anywhere close to 16-8 at the end of the contract, but that's not on the record here.

[00:26:51] Speaker 00:
But even if your honors were to want to give credit to the ACM report or anything else, it is still DPF's burden to show that this factual holding was arbitrary and capricious or not supported by the record, and that is just a burden they have not met in this instance.

[00:27:09] Speaker 00:
I will quickly address the acceleration claim, where again, DPF failed to acknowledge the board's alternative holding.

[00:27:20] Speaker 00:
that even if this wasn't proper anticipatory repudiation, that DPF had in fact caused its own acceleration of the contract by refusing to credit the VA's offer to clarify that the contract would remain open until November, and it refused to do so.

[00:27:39] Speaker 00:
If the panel doesn't have any other questions for us.

[00:27:46] Speaker 00:
We would respectfully request that you affirm the decision.

[00:27:58] Speaker 01:
Going back to the 16,800 square feet, the undisputed evidence before the board was that it was paintable wall space.

[00:28:06] Speaker 01:
That was confirmed by Doug Fleming's testimony.

[00:28:10] Speaker 01:
Karen Butts, who was the original CEO, had that understanding.

[00:28:17] Speaker 01:
based upon Doug Fleming's testimony.

[00:28:20] Speaker 03:
Well, they didn't believe him.

[00:28:21] Speaker 01:
Well, there was three judges.

[00:28:25] Speaker 01:
Judge Sheridan was the one who heard all the evidence on that.

[00:28:31] Speaker 01:
He testified about his prior dealings with the first CEO on the job, who was Judy Cronzano.

[00:28:43] Speaker 01:
and on, that's at Coatesville, Pennsylvania project, where the same issue came up, what is required under a painting contract.

[00:28:51] Speaker 01:
And the same understand between Judy Cronzano and Doug Fleming is that it refers to paintable square feet.

[00:28:59] Speaker 01:
Karen Butts had the same conversation as testified by BPF, but that's the only evidence that was before the board.

[00:29:07] Speaker 01:
And they had every opportunity to call Karen Butts.

[00:29:11] Speaker 01:
If when you're putting on, I wasn't the trial attorney below, but the admission by party appointment comes in as evidence and for them to completely disregard it without even asking about it.

[00:29:22] Speaker 01:
In fact, the only contracting officer who testified was Theresa Moyer.

[00:29:26] Speaker 01:
Now Michael Scott was the COR.

[00:29:28] Speaker 01:
He also testified.

[00:29:29] Speaker 01:
Neither one of them had any conversations with Karen Butts about what the 16,800 square foot meant.

[00:29:34] Speaker 01:
And in fact, when the issue first came up and we're asking, we've reached the limit, the 16,000, 18,000 square feet.

[00:29:41] Speaker 01:
There was instructions given to Michael Scott to go find out has he painted more than the 16,800.

[00:29:48] Speaker 01:
Michael Scott, who had no painting experience whatsoever, went out there and measured the floor space.

[00:29:53] Speaker 01:
The floor space came in at approximately 10,000 square feet, which is entirely consistent with the estimate that Doug Fleming gave with Appendix 858.

[00:30:04] Speaker 01:
He said that there was approximately 10,000 square feet of vinyl tile floor removal and replacement.

[00:30:11] Speaker 01:
and approximately 16,000 to 20,000 in paintable wall space.

[00:30:15] Speaker 01:
Okay, Mr. Wise, I think we're out of time.

[00:30:17] Speaker 03:
Thank you.

[00:30:18] Speaker 01:
All right.

[00:30:18] Speaker 01:
Thank you.

[00:30:20] Speaker 03:
Thank you very much for your time.

[00:30:21] Speaker 01:
Thank you about the Council.

[00:30:22] Speaker 01:
I appreciate the additional time.

[00:30:25] Speaker 01:
Thank you.