[00:00:26] Speaker 02:
Next case is RDA Construction Corporation versus the United States, 2017-25-99.

[00:00:32] Speaker 02:
Mr. Hogan.

[00:00:35] Speaker 01:
Thank you, Ron.

[00:00:44] Speaker 01:
This is also a Navy case involving NAVAC.

[00:00:47] Speaker 01:
RDA Construction Corporation was a contractor.

[00:00:50] Speaker 01:
We go up to Newport, Rhode Island at the Navy base, where

[00:00:55] Speaker 01:
a peer and a facility was to be demolished.

[00:01:02] Speaker 01:
RDA may please the court.

[00:01:04] Speaker 01:
RDA believes that reversible error was made in a number of areas in the decision, in particular starting with superior knowledge.

[00:01:13] Speaker 01:
The major four elements that are required in superior knowledge are articulated in a host of cases.

[00:01:19] Speaker 01:
Hercules is one.

[00:01:22] Speaker 01:
Helene Curtis is another.

[00:01:24] Speaker 01:
And the four factors required for a superior knowledge case are that the contractor undertook to perform without vital knowledge of a fact that affects performance, cost, or direction.

[00:01:35] Speaker 01:
The government was aware the contractor had no knowledge of and had no reason to obtain such information.

[00:01:42] Speaker 01:
Three, any contract specifications supplied misled the contractor or did not put it on notice to inquire.

[00:01:48] Speaker 01:
And four, the government failed to provide the relevant information.

[00:01:52] Speaker 01:
The court found that RDA did satisfy elements one and elements two when RDA took to undertake the project without what's so-called Appledore report, a 2005 engineering study.

[00:02:10] Speaker 04:
But it was elements one and four.

[00:02:12] Speaker 01:
I'm sorry, yeah, one and four.

[00:02:14] Speaker 04:
It was two that's a big problem, right?

[00:02:16] Speaker 01:
Two the government believes that the

[00:02:20] Speaker 01:
contractor had no reason to obtain such information.

[00:02:23] Speaker 01:
But that is refuted, Your Honor, because even with the Appledore report, NAVAC takes the engineer and says, hey, go out and take a look to see if we can use that wharf during construction.

[00:02:35] Speaker 01:
And that's the so-called FST report, Appendix 1816.

[00:02:40] Speaker 01:
And that report was commissioned by the engineering staff, an engineer named Boris Shulman down in NAVAC, who said even with this report,

[00:02:49] Speaker 01:
I want to know if we can use that wharf, because it makes a lot of sense.

[00:02:54] Speaker 01:
It makes construction much more efficient, as would the contractors.

[00:02:59] Speaker 01:
Contractors didn't have that report, but all of them would have wanted to use that.

[00:03:03] Speaker 01:
There were five bidders on this.

[00:03:05] Speaker 01:
None of them asked any questions about the condition of the wharf.

[00:03:10] Speaker 01:
And I think the decision makes a mistake by talking about the.

[00:03:15] Speaker 04:
In your bid, did you make it clear that you needed to have access to the wharf?

[00:03:20] Speaker 01:
I didn't request that.

[00:03:21] Speaker 04:
For purposes of the equipment?

[00:03:23] Speaker 01:
No.

[00:03:23] Speaker 01:
There was a form bid, where you filled out prices and you just put it in.

[00:03:28] Speaker 01:
After the bids were taken, there was a request from NAVAC that RDA disclose its means and methods, how it was going to do the demolition.

[00:03:37] Speaker 01:
And in those means and methods, it said that it would be using the war.

[00:03:41] Speaker 04:
Didn't you put on notice that something must be amiss when they said the price is way too low?

[00:03:50] Speaker 01:
No.

[00:03:52] Speaker 04:
You would think somebody logical would go back and say, what do you know that we don't know?

[00:03:57] Speaker 01:
It's an interesting question.

[00:04:00] Speaker 01:
Actually, RDA Construction has been in business for a long time.

[00:04:04] Speaker 01:
Two of the other bidders were his cousins.

[00:04:07] Speaker 01:
He actually worked for one of the other contractors.

[00:04:11] Speaker 01:
One of the contractors finished a $400 million contract for the Ottery.

[00:04:15] Speaker 01:
was dredging, and the qualified contractors, they all know what they're doing.

[00:04:19] Speaker 01:
Mr. Kelly did testify that, yes, I dropped some numbers to get some work.

[00:04:25] Speaker 01:
But he didn't expect that he would have to pull each pile the way it happened.

[00:04:31] Speaker 01:
And Your Honor, as we stand here, there's 125 of those piles still in the ocean.

[00:04:37] Speaker 01:
What RDA wanted to do, have them cut off, is what ultimately happened.

[00:04:41] Speaker 01:
And FST, the design engineer, when it became so difficult to pull up these piles, the Navy asked, do we need to do that?

[00:04:52] Speaker 01:
Do we really have to pull them?

[00:04:53] Speaker 01:
He said, no.

[00:04:54] Speaker 01:
But they didn't present that evidence to RDA.

[00:04:56] Speaker 01:
They said, no, you pull them in their entirety.

[00:04:59] Speaker 01:
Three years went by, and $3 million more that the bonding company spent to try to pull those piles, and they couldn't be pulled.

[00:05:06] Speaker 01:
And the contractor they were using, Your Honor, the contractor they were using that was Regan Construction.

[00:05:11] Speaker 01:
Reconstruction is right next door to this facility.

[00:05:16] Speaker 01:
He was the one, if you look at the pictures with the jackets, he was the one that worked on this wharf and put the jackets on.

[00:05:22] Speaker 03:
What does this have to do, though, with the factors that you were just talking about, including whether the government was aware that the contractor had no knowledge of and had no reason to obtain the information about whether the pier could hold equipment?

[00:05:38] Speaker 01:
The real issue was the piles, not the wharf.

[00:05:43] Speaker 01:
The judge talks about holes, and the real issue was the 248 piles and the condition of them.

[00:05:49] Speaker 01:
And what the report said was that you couldn't see them unless you dove under the water.

[00:05:55] Speaker 01:
And even the contracting officer who testified in this case said, I wouldn't have allowed a diving investigation.

[00:06:04] Speaker 01:
And the Appledore report was a level three.

[00:06:07] Speaker 01:
apart the organic growth and looked at that.

[00:06:11] Speaker 04:
So no bidder was, A, going to be allowed to do that, and B, it wasn't costly or... What specifically do you think was wrong with the Court of Federal Claims' findings of fact with respect to factor number two?

[00:06:29] Speaker 01:
That it was reasonable to believe that you could use the wharf and that the condition of the wharf

[00:06:35] Speaker 01:
on its face looked good.

[00:06:37] Speaker 01:
Even the FST report and even the Appledore report said that if you looked at the wharf, it looked fine.

[00:06:43] Speaker 01:
There was, you know, what was the problem?

[00:06:45] Speaker 04:
So you're saying that the fortified claims finding that it wasn't reasonable to think it looked fine was wrong.

[00:06:55] Speaker 01:
Yes.

[00:06:56] Speaker 04:
But it would have to be clearly erroneous, would it not?

[00:06:59] Speaker 01:
Yes.

[00:07:00] Speaker 01:
And I think it's clearly erroneous because

[00:07:02] Speaker 01:
Even knowing what they knew, the NAVAC engineers asked for another study.

[00:07:09] Speaker 01:
And so that shows you what the engineering staff was thinking.

[00:07:14] Speaker 04:
Well, that has to do with the superior knowledge, the first promise.

[00:07:18] Speaker 01:
Yes.

[00:07:19] Speaker 04:
And the Court of Federal Claims clearly found that the government had superior knowledge and withheld that material information.

[00:07:28] Speaker 04:
But they said, but you had reason to know, essentially, the facts that they knew.

[00:07:36] Speaker 01:
But the court was focusing on things that didn't really go to the real problem.

[00:07:46] Speaker 01:
The real problem is, not only were these piles deteriorated, they were deteriorated below the mud line.

[00:07:52] Speaker 01:
And that never happens.

[00:07:54] Speaker 01:
That never really ever happens.

[00:07:56] Speaker 01:
Literally, Regan Construction went in there and they had divers go down, dig these holes, and try to attach underneath the dirt, and they couldn't pull it.

[00:08:04] Speaker 04:
Where's the evidence in the record that says it never happens?

[00:08:08] Speaker 01:
What do you mean it never happens?

[00:08:10] Speaker 01:
That you as a contractor would never... I think it was testimony, Mr. Kelly, that it was highly unusual.

[00:08:16] Speaker 01:
I think the testimony of Mr. Hearn, who was the Regan guy, said it was unusual.

[00:08:21] Speaker 01:
And in Haskell Construction, a successor contractor.

[00:08:24] Speaker 01:
who took almost $3 million to do this and couldn't get it done.

[00:08:28] Speaker 01:
And the third prong, Your Honor, about superior knowledge is the Hercules case says if any of the specs say that mislead you, and we show in our brief at section 3.11 in the demo spec said place your demo equipment on the structure so as to be able to, you know, not create too much of a load.

[00:08:48] Speaker 01:
And during the trial, Mr. Helms was the,

[00:08:54] Speaker 01:
I asked him, what structure were they referring to?

[00:08:56] Speaker 01:
And he said he assumed the wharf.

[00:08:59] Speaker 01:
And we didn't discuss what types of equipment.

[00:09:03] Speaker 01:
And he said, yeah, it would be demolition equipment, trailers, that kind of thing.

[00:09:07] Speaker 01:
So that was misleading.

[00:09:10] Speaker 01:
And that meets the Hercules' third prong.

[00:09:14] Speaker 01:
So we believe that all four prongs were clearly evident.

[00:09:19] Speaker 01:
We argued that it was a cardinal change.

[00:09:22] Speaker 01:
Why was it a cardinal change?

[00:09:24] Speaker 01:
It was a cardinal change because it was impossible to do.

[00:09:27] Speaker 01:
The court refers to the Spearing case and says that a contractor can't be compensated for something that's possible to do.

[00:09:34] Speaker 01:
We say that this was impossible to do.

[00:09:37] Speaker 01:
You had Regan Construction, who had worked for the Navy before.

[00:09:40] Speaker 01:
You had, he was unable to do this.

[00:09:44] Speaker 01:
Three million dollars had been spent trying to do it, and they decided not to do it.

[00:09:49] Speaker 01:
So we believe that was a cardinal change.

[00:09:52] Speaker 03:
And then... Can I ask you something?

[00:09:55] Speaker 04:
Go ahead.

[00:09:57] Speaker 04:
The Court of Federal Claims thought your only cardinal change argument related to picking up debris from the piles off the ocean floor.

[00:10:07] Speaker 04:
Is that what you're saying was impossible to do, or was the rest of the work impossible?

[00:10:12] Speaker 01:
No, because of what the Appledore Report was saying, that these piles are toast.

[00:10:17] Speaker 01:
They are gone.

[00:10:18] Speaker 01:
Every single one had to have this enormous amount of effort.

[00:10:24] Speaker 01:
People underwater with welding, doing stuff that was never really contemplated by any of the bidders.

[00:10:30] Speaker 01:
And then in the end, it was impossible to do.

[00:10:33] Speaker 01:
And what RDA said was, we'll cut them off for nothing.

[00:10:37] Speaker 01:
And the government said no.

[00:10:38] Speaker 01:
And the government paid $500,000 for Regan to cut the 125.

[00:10:44] Speaker 01:
So there was a lot going on in this contract and how it was managed.

[00:10:48] Speaker 01:
But we believe having that Appledore report and not disclosing it and then going out and trying to get your own and not disclosing that either.

[00:10:59] Speaker 01:
The Navy didn't talk about any of those reports.

[00:11:01] Speaker 04:
So is it your position that with respect to the impossibility that it shouldn't have been a termination for default and therefore there should be no liquidated damages or are you saying that the government owes you money?

[00:11:18] Speaker 01:
Well, certainly we believe we shouldn't have been terminated, because we were terminated for two causes.

[00:11:24] Speaker 01:
One was time, and I think we showed you that we rolled 313 more days, because we had 198 days to do stuff after we were done with the drilling that was an extra.

[00:11:35] Speaker 01:
So time was really a flaw.

[00:11:37] Speaker 01:
And then second, we were telling them that these can't be pulled.

[00:11:42] Speaker 01:
It took them three years to find out in $3 million

[00:11:46] Speaker 01:
was attached to my client because the bonding company chased him for that three hundred million dollars.

[00:11:54] Speaker 01:
I'll reserve my time for rebuttal.

[00:11:59] Speaker 04:
It wasn't three hundred million, it was three million, right?

[00:12:03] Speaker 04:
Yeah.

[00:12:03] Speaker 04:
Okay.

[00:12:03] Speaker 04:
You said three hundred million.

[00:12:04] Speaker 04:
I'm sorry.

[00:12:05] Speaker 04:
That's okay.

[00:12:06] Speaker 01:
This is my first rodeo here.

[00:12:08] Speaker 04:
Yeah, I'm thinking the money's getting bigger and bigger as we go along.

[00:12:17] Speaker 00:
May it please the court.

[00:12:18] Speaker 00:
After hearing all of the evidence, the trial judge found that RDA had not proven any of its claims.

[00:12:25] Speaker 04:
RDA asks this court to... But the court did find that the government withheld material information and did have superior knowledge with respect to very important facts, right?

[00:12:37] Speaker 00:
Sort of.

[00:12:38] Speaker 00:
The court should not have found.

[00:12:40] Speaker 00:
The court did find that two of the four elements of the superior knowledge doctrine were met.

[00:12:45] Speaker 00:
The court should not have found that any of the elements were met.

[00:12:47] Speaker 04:
But in any case... How could you not disclose these reports?

[00:12:52] Speaker 04:
I don't even understand it.

[00:12:53] Speaker 00:
So there were a number of reasons for why the Navy had no recognition that a contractor would think that it could use this existing wharf in the manner that RDA, after award, alleged that it

[00:13:09] Speaker 04:
Previously planned to do you say that but you actually had two reports including one underwater analysis that you knew the contractors Didn't have the ability to do so.

[00:13:24] Speaker 04:
Why didn't you just give them that and let them know up front?

[00:13:27] Speaker 04:
Oh, by the way when you're bidding You're not gonna have you're not gonna be able to use this work.

[00:13:33] Speaker 00:
And so the contract did say that

[00:13:35] Speaker 00:
The contract terms made clear that the existing wharf had to be demolished as the first item of work.

[00:13:42] Speaker 00:
And so an idea that I was going to use that wharf to do new construction was inconsistent with the contract terms.

[00:13:51] Speaker 00:
In other words, the designer designed a project in which the wharf could not be used.

[00:13:59] Speaker 00:
Furthermore, as the court recognized, including several photographs,

[00:14:04] Speaker 00:
It was obvious from a visual inspection of the site that one could not just assume that this structure was in good condition and was capable of withstanding 75,000-pound equipment exerting operating loads on it after it was partially cut away.

[00:14:24] Speaker 00:
We presented expert testimony.

[00:14:26] Speaker 04:
Do you agree that ultimately the job was impossible to do?

[00:14:29] Speaker 00:
No, that's incorrect.

[00:14:30] Speaker 00:
And there are two separate issues that are being discussed here.

[00:14:33] Speaker 00:
There's the removal of the piles, and that's really a separate issue from the superior knowledge claim, as has been presented throughout this litigation.

[00:14:44] Speaker 00:
The removal of piles was not impossible.

[00:14:46] Speaker 00:
So for example, on page 41 of our brief, we cite to a number of testimony where both the completion contractor and RDA was capable of removing the piles.

[00:14:57] Speaker 00:
It was extremely difficult, but only after

[00:15:01] Speaker 00:
RDA created that condition by reckless demolition.

[00:15:05] Speaker 00:
RDA snapped off the piles.

[00:15:07] Speaker 00:
So rather than leaving the steel for these piles that supported the old wharf, rather than leaving them high in the water and taking care in the demolition to leave them so that something called the vibratory extractor could be clamped on securely, vibrate the entire element

[00:15:25] Speaker 00:
to break the friction with the earth and then lift the whole thing out.

[00:15:28] Speaker 00:
Rather than leave those sticking up above water, RDA used its crane in a manner it shouldn't have to just recklessly demolish the top of this structure.

[00:15:38] Speaker 00:
And what it left were, according to the dive reports that were provided or were conducted after the termination, on the bottom there were mangled, twisted, damaged pieces of these old steel piles.

[00:15:53] Speaker 00:
At that point, it was extremely difficult to go down, in many cases, first remove all sorts of debris that had also been dropped down there, remove that, clear the way, locate the pile, sometimes expose, dig down basically, move the soil in order to get clean steel to then attach this extractor now underwater.

[00:16:18] Speaker 04:
So you're saying none of that was down there before RDA started the work?

[00:16:22] Speaker 00:
Correct.

[00:16:22] Speaker 00:
And we know that because we can compare the hydrographic survey from before the work was done, in which there's a clean, smooth bottom.

[00:16:31] Speaker 00:
And we presented the expert testimony of Nancy Byrne, who did a hydrographic survey on this project before the project was started, and then after the termination.

[00:16:41] Speaker 00:
And after the termination, there was all of this debris found.

[00:16:44] Speaker 00:
Not only that hydrographic survey, there were dive reports conducted.

[00:16:48] Speaker 00:
which revealed all of this debris, mounds of debris that had been dropped down there.

[00:16:53] Speaker 00:
So going back to this issue of extracting the piles, it was a condition that RDA created for itself.

[00:17:01] Speaker 00:
And another way in which that was shown was that some of the piles were less damaged than others when the completion contractor went out there to try to remove them.

[00:17:09] Speaker 00:
And those ones that had clean steel sticking up higher in the water, the government's construction manager testified,

[00:17:16] Speaker 00:
were coming out with relative ease, very different than those that were most mangled and had been damaged.

[00:17:25] Speaker 00:
It's true that ultimately, after the completion contractor made efforts, the Navy did not require every single pile to be removed.

[00:17:33] Speaker 00:
Many were approximately half were left in place under a settlement that occurred between the completion contractor, the surety, and the government.

[00:17:44] Speaker 00:
This was a condition, again, this was a condition that RDA created for itself.

[00:17:49] Speaker 00:
It submitted a demolition plan to the government in which it chose to do this.

[00:17:54] Speaker 00:
It told the government, we're going to break the piles off and then we're going to send a diver down there to attach the vibratory hammer underwater to extract this.

[00:18:04] Speaker 00:
This was its approved demolition plan.

[00:18:06] Speaker 00:
And RDA did not follow through on the second part of that plan.

[00:18:10] Speaker 04:
Wasn't the government on notice when they saw how low the bid was, that something, that there had to have been some information they didn't fully understand?

[00:18:19] Speaker 00:
The government was concerned about that and specifically wrote to RDA to check their bid.

[00:18:25] Speaker 04:
Right, I understand that.

[00:18:26] Speaker 04:
But when RDA said, no, we think this is right, maybe you should have said, why don't we show you this Apple door and FTS report, because we think it can't be right.

[00:18:36] Speaker 00:
But when the government asked RDA, how are you going to do the work?

[00:18:40] Speaker 00:
And RDA submitted a technical plan.

[00:18:43] Speaker 00:
This is Appendix 3346.

[00:18:44] Speaker 00:
RDA again remained silent.

[00:18:48] Speaker 00:
It hadn't asked questions pre-bid because it didn't want to reveal its thinking.

[00:18:53] Speaker 00:
It said, now it was the presumptive awardee, and it still remained completely silent about any plan to use the wharf.

[00:19:00] Speaker 00:
Instead, it wrote to the Navy, again on Appendix 3346,

[00:19:05] Speaker 00:
that it's going to be performing the work from the land side and the water side, saying nothing about possibly using the water.

[00:19:11] Speaker 04:
Well, but how do you perform from the land side without using the water?

[00:19:15] Speaker 00:
And RDA did.

[00:19:17] Speaker 00:
It's relatively large equipment that's being used.

[00:19:19] Speaker 00:
For example, a crane that has substantial reach.

[00:19:22] Speaker 00:
So the crane can be placed on the land side and reach over the water.

[00:19:26] Speaker 00:
And that happened.

[00:19:27] Speaker 00:
And so there's no problem with that necessarily.

[00:19:31] Speaker 00:
And furthermore, the pre-award technical plan said that RDA was going to be using a barge.

[00:19:37] Speaker 00:
Later, after the project was actually awarded, RDA's project manager, someone different who prepared the bid, which said we're going to use barges and we're going to have crews on water for demolition, and that's it, Appendix 3301, RDA's project manager who came in developed a new demolition concept.

[00:19:58] Speaker 00:
And his concept was we're going to get on that old wharf

[00:20:01] Speaker 00:
and try to work from there.

[00:20:04] Speaker 00:
That wasn't what the bid was actually based on.

[00:20:07] Speaker 00:
And so the superior knowledge doctrine, none of these elements should have been met.

[00:20:11] Speaker 00:
It fails from the premise.

[00:20:12] Speaker 00:
It wasn't proven that there was actually any variance from the bid.

[00:20:17] Speaker 04:
Where do the liquidated damages numbers come from?

[00:20:21] Speaker 00:
The liquidated damages numbers were the contractually agreed rate based on the number of days that the Navy claimed liquidated damages during.

[00:20:32] Speaker 00:
There were two periods.

[00:20:33] Speaker 00:
There was the period from the final contract completion date for RDA's contract, which was extended from the original date by 467 days.

[00:20:41] Speaker 04:
Did they still have some time left?

[00:20:44] Speaker 00:
No, the default termination was approximately four months after the final contract completion date.

[00:20:51] Speaker 00:
So the final contract completion date was October of 2012 and the termination was February 21st.

[00:20:59] Speaker 04:
Was the government actually out of pocket any money?

[00:21:03] Speaker 00:
The government was out of pocket substantial money because the government continued to pay the contract balance

[00:21:13] Speaker 00:
It's true that the surety came in and paid much of the difference there.

[00:21:22] Speaker 00:
But there was a lot of work that was ultimately deleted from this project and handled in a separate Coast Guard project, but the government still committed the full remaining contract balance, which had been increased into the $8 million range.

[00:21:34] Speaker 04:
When you said the government had a much higher estimate for what this contract was likely to be, what was that estimate?

[00:21:43] Speaker 00:
It was approximately $8.7 million, I believe.

[00:21:46] Speaker 00:
There's a bid abstract in the appendix, which I could find if the court wants it, but I believe... The government's estimate was $8.7 million?

[00:21:53] Speaker 00:
The government's... Both the next lowest bid and the government's estimate was between, I believe, $8.5 and $9 million.

[00:22:01] Speaker 00:
It was... The next highest bid, I remember, was approximately 20% higher than RDA's bid, and the government's estimate, independent estimate, was a similar price.

[00:22:14] Speaker 00:
As to the request for a time extension, there was only a single time extension request made.

[00:22:21] Speaker 00:
And it just was not logical.

[00:22:24] Speaker 00:
It wasn't based on a coherent theory of excusable delay.

[00:22:28] Speaker 00:
The idea that the project isn't done is not sufficient reason for an extension.

[00:22:33] Speaker 00:
But that was basically the theory that was presented.

[00:22:36] Speaker 00:
The only scheduling expert who conducted

[00:22:43] Speaker 00:
analysis in which he looked at the causes and responsibility for the delays, concluded that no additional time extension beyond that 467 days that had already been granted by the Navy, no additional time extension could be justified for any reason in this case.

[00:22:59] Speaker 00:
As to the default termination, the default termination would be upheld if RDA was in default for any reason.

[00:23:06] Speaker 00:
And it was in default for several reasons.

[00:23:08] Speaker 00:
Both of the bases that the court looked at

[00:23:11] Speaker 00:
were justified, that is the failure to complete the project within the time allowed and anticipatorily repudiating the obligation to remove the piles.

[00:23:21] Speaker 00:
That obligation was in the contract from the beginning and RDA flatly said it wasn't going to do the work unless it was paid another million dollars.

[00:23:31] Speaker 00:
In addition, what really precipitated the default was that the project basically came to a standstill.

[00:23:37] Speaker 00:
The equipment was broken and it wasn't being repaired.

[00:23:41] Speaker 00:
It was a saga of broken promises and missed milestones as far as repairing the equipment.

[00:23:46] Speaker 00:
And the major equipment just sat there broken during the final months of the project.

[00:23:51] Speaker 00:
So basically, no progress was occurring.

[00:23:53] Speaker 00:
A day would pass, and the project wouldn't get any closer to completion.

[00:23:57] Speaker 00:
As the government's witnesses testified, it got to the point at which the Navy felt that no additional time would have resulted in successful completion, and the default termination occurred then.

[00:24:10] Speaker 00:
For these reasons, we respectfully request that the court affirm the judgment of the court federal court.

[00:24:15] Speaker 02:
Thank you, Mr. Volk.

[00:24:16] Speaker 02:
Mr. Hogan has some rebuttal time left.

[00:24:19] Speaker 01:
Thank you, Your Honor.

[00:24:21] Speaker 02:
Three and a half minutes if you need it.

[00:24:27] Speaker 01:
Following up on my brother's reference to wrongful termination, it's our position, I think, and it's clear in the papers

[00:24:33] Speaker 01:
The modifications, sometimes it would take them six months to make a mod, and then they would put the new time back in the time that they took to make the decision.

[00:24:42] Speaker 01:
So we'd be in October, and they'd say, OK, you get till June now.

[00:24:48] Speaker 01:
So we couldn't do anything while we were waiting on those modifications.

[00:24:51] Speaker 01:
Second of all, it wasn't that RDA said that, if you heard his argument correctly, wouldn't pull the piles.

[00:24:58] Speaker 01:
They were out there pulling the piles, and they said they wanted to do it for a million dollars.

[00:25:01] Speaker 01:
Ultimately, it took $3 million, and they didn't wind up pulling all the piles.

[00:25:06] Speaker 01:
There's 125 out of the 248 that are still in there.

[00:25:09] Speaker 01:
RDA pulled approximately 40.

[00:25:11] Speaker 01:
And some of them did go easy, but a lot of them did not go easy.

[00:25:14] Speaker 01:
And my brother talked about the snap-off.

[00:25:19] Speaker 01:
RDA didn't cause the problem with the piles.

[00:25:21] Speaker 01:
If you turn to Appendix 872, you'll see Mr. Urhern, who was down there supervising

[00:25:29] Speaker 01:
the divers and the equipment.

[00:25:30] Speaker 01:
And he worked for Regan.

[00:25:31] Speaker 01:
He was one of the bidders.

[00:25:33] Speaker 01:
And his company is right next to this cove.

[00:25:37] Speaker 01:
He testifies that while the divers go down to the pile, excavate material around the pile until they could get a section of pile that was relatively sound.

[00:25:44] Speaker 01:
Then they cut off the upper portion of the pile, however much that needed to be.

[00:25:48] Speaker 01:
Could be a matter of inches, could be a matter of a couple of feet, until there was clear, clean section of pile.

[00:25:53] Speaker 01:
Then they put the vibratory extractor on it, clamp onto it, start the vibration, put a strain on it,

[00:25:58] Speaker 01:
with the crane and would shake the pile and vibrate it and would start to come up.

[00:26:01] Speaker 01:
That was the mode to pull these piles.

[00:26:04] Speaker 01:
You should have been able to do that from a barge, from above water.

[00:26:09] Speaker 01:
But because of these conditions of the piles, you couldn't.

[00:26:12] Speaker 01:
Some of the piles would break off either just below the vibratory hammer or as far down as below the mud line.

[00:26:18] Speaker 01:
And that's the unusual circumstance I'm talking about.

[00:26:20] Speaker 01:
You don't see steel in the dirt snap off.

[00:26:24] Speaker 01:
Now we either cut them again and clamp on them and dig more if needed and clamp on.

[00:26:28] Speaker 01:
And this went on and on and on and on.

[00:26:29] Speaker 01:
Sometimes I would spend a week on one or two piles until finally, finally I said, since we don't need to have these out, we just wanted to cut them off, just like RDA said.

[00:26:40] Speaker 01:
And RDA was willing to try to pull them out for a million dollars.

[00:26:44] Speaker 01:
He got terminated.

[00:26:45] Speaker 01:
We got terminated.

[00:26:46] Speaker 01:
And then I think that we got terminated for being late.

[00:26:49] Speaker 01:
And we weren't late.

[00:26:50] Speaker 01:
We were...

[00:26:53] Speaker 01:
falling apart.

[00:26:56] Speaker 01:
I think the impossibility of the pulling of the piles made for Cardinal Change, and that's what RDA was seeking in its letter for Cardinal Change, was asking for some direction, asking for some more funds to do that.

[00:27:12] Speaker 01:
And that did not happen.

[00:27:17] Speaker 01:
The court also referenced something about the FAR and how we

[00:27:22] Speaker 01:
we were obliged to do some kind of inspection, but that's a reasonable inspection.

[00:27:28] Speaker 01:
The FAR that the government relies on talks about a reasonable inspection, and having an underwater engineering study was not a reasonable inspection.

[00:27:37] Speaker 04:
So we don't believe that that FAR portion... But what about the fact that the contract itself said the first thing that has to be done is that the war has to be demolished?

[00:27:47] Speaker 01:
Well, that was a sequence of events.

[00:27:51] Speaker 01:
RDA was working to do that, but RDA wasn't intending on, you know, having the whole war stay up.

[00:27:59] Speaker 01:
They were going to request to stay, to keep a piece of it up.

[00:28:03] Speaker 01:
And that's not unreasonable when you think about what the NAVAC engineers were trying to find out, is can you use this during demolition?

[00:28:09] Speaker 01:
A lot of times what these contractors do is they use what's there, they support it sometimes, because then you're not on the water.

[00:28:17] Speaker 01:
The problem of being on the water, and the Navy just says, well,

[00:28:21] Speaker 01:
is that the barges go up and down with the tides.

[00:28:23] Speaker 01:
You have to make changes all the time.

[00:28:25] Speaker 01:
And it's not a stable platform.

[00:28:27] Speaker 01:
So always, marine contractors try to use the land whenever possible.

[00:28:32] Speaker 01:
And there was no prohibition that you couldn't think about that.

[00:28:37] Speaker 01:
And with these reports in their possession and not providing them

[00:28:44] Speaker 03:
I want to ask you just one question.

[00:28:47] Speaker 03:
I was looking at page JA3394 and I think this is your RDA's construction plan and in talking about what happened before the contractors entered into it, this is the proposal and it says, in most cases in the load of the extraction process, the pile will break between the mud line and the existing pile jacket.

[00:29:09] Speaker 03:
Does this undermine

[00:29:11] Speaker 03:
you know, the testimony that breaking was unexpected?

[00:29:16] Speaker 01:
I think some breaking is not unexpected.

[00:29:19] Speaker 01:
Just the massive type of breaking that occurred and then the breaking that occurred inside the ground that Regan faced, that was unexpected.

[00:29:28] Speaker 01:
But the piles would break.

[00:29:30] Speaker 01:
It's just the Appledore report talks about 97 percent of the piles

[00:29:37] Speaker 03:
uh... having having sixty percent and this refers to sixty percent of the piles breaking between the mud line and somewhere else thank you counsel thank you thank you