[00:00:00] Speaker 00:
Our next case is Hampst Construction, LLC versus Secretary of the Army, 2024-1528.

[00:00:08] Speaker 00:
Mr. Willis.

[00:00:11] Speaker 04:
Yes, Your Honor.

[00:00:13] Speaker 04:
Please record.

[00:00:14] Speaker 04:
I am Matt Willis.

[00:00:15] Speaker 04:
I'm here on behalf of the appellant Hampst Construction Company.

[00:00:18] Speaker 04:
This is an appeal from the Armed Services Board.

[00:00:22] Speaker 04:
Your Honor, it's our position that this really boils down to a legal interpretation of the contract.

[00:00:29] Speaker 04:
Thank God it's not a factual one, because then I know what I would hear from the bench about factual determinations from the board.

[00:00:35] Speaker 04:
But in this case, the contract was interpreted by the Board of Contract Appeals to have not made representations as to subsurface conditions on essentially the southwest portion of the job site.

[00:00:50] Speaker 04:
We've referred to it as the southwest portion of the job site throughout the case.

[00:00:54] Speaker 04:
I want to point out factually not to go through the entirety of a construction project, but the job had four quadrants for performance, although these do not necessarily, in our opinion, develop into four distinct and unique areas of physicality.

[00:01:10] Speaker 04:
But there is a road that divides the job site.

[00:01:13] Speaker 04:
And so there was Harvey Boulevard, which divided it.

[00:01:16] Speaker 04:
the natural line of demarcation of the road, and there's also the canal itself.

[00:01:21] Speaker 04:
The facts of the trial were that the

[00:01:25] Speaker 04:
two pre-bid site inspections demonstrated and the photos from those pre-bid site inspections demonstrated a very homogenous job site that the areas presented themselves visually very much the same.

[00:01:39] Speaker 04:
The boring logs which were taken and which were provided to the bidders, but in this case the appellant, also to the extent that

[00:01:48] Speaker 04:
There were boring logs.

[00:01:50] Speaker 04:
They provided a very homogenous representation of the job site conditions.

[00:01:54] Speaker 04:
So what a bidder had when they bid upon this job was a visually homogenous job, a geotechnically represented homogenous job.

[00:02:05] Speaker 04:
And then they had other contract representations, whether we call them an affirmative representation, which is not legally required.

[00:02:15] Speaker 04:
It requires an indication.

[00:02:18] Speaker 04:
not an affirmative representation, but whether we call it a representation or an indication of the stability of the banks based on contract drawings which demonstrated and called for construction traffic on top of bank on all portions of the job, as well as

[00:02:36] Speaker 04:
as a provision which originally prohibited the use of any marine-based equipment for the performance.

[00:02:43] Speaker 04:
Now, I will address the question.

[00:02:44] Speaker 02:
Are you distinguishing between vindication and implicit representation?

[00:02:49] Speaker 04:
Yes, Your Honor.

[00:02:50] Speaker 04:
I think, obviously, if a contract says specifically, there is no water beneath 10 feet on this job site, that would be a specific representation.

[00:03:01] Speaker 02:
An explicit representation.

[00:03:03] Speaker 04:
An explicit representation.

[00:03:04] Speaker 04:
OK, but I will actually get the language, because I think it's from the Foster case, and I think the language is very useful.

[00:03:12] Speaker 02:
And my question was, are you distinguishing between an implicit representation and indication?

[00:03:18] Speaker 02:
That was my question to you.

[00:03:19] Speaker 04:
No, Your Honor.

[00:03:20] Speaker 04:
I believe those two terms can be used interchangeably.

[00:03:23] Speaker 04:
I think, in other words, there are explicit representations in the contract, and there are reasonably

[00:03:30] Speaker 04:
ascertainable implicit representations in the contract.

[00:03:32] Speaker 04:
And I believe that when we have a situation where, for example, construction traffic is being demonstrated by the contract plans from the designer to occur on top of bank, that's not giving an explicit representation as to subsurface conditions, but it is implicitly representing that the banks will be sturdy enough for that usage.

[00:03:53] Speaker 00:
That's where lawsuits come about, the distinction between explicit and implicit.

[00:03:59] Speaker 04:
Indeed, your honor, but I think that in this case the totality of the contract circumstances indicate a number of implicit representations which are not accompanied by any contrary representations.

[00:04:15] Speaker 01:
Was prohibition of carrying on bridging operations from barges, is that also an implicit representation as to the stability of the banks?

[00:04:28] Speaker 04:
I believe it is.

[00:04:29] Speaker 04:
I would go as far as saying that is an explicit representation of the suitability of the banks for that purpose because obviously there is no other way.

[00:04:39] Speaker 04:
When that boilerplate language, and we call it the boilerplate, I do want to address that, but while that prohibition was in place,

[00:04:46] Speaker 04:
There was no other way to do the work.

[00:04:48] Speaker 04:
I suppose you were going to try to run a drag line from a helicopter, which I've never seen or heard of.

[00:04:53] Speaker 04:
The only way, and everyone agreed, was from a top-of-bank performance.

[00:04:57] Speaker 01:
So if you're prohibited from dredging from barges, then they're making an implicit representation that the banks are stable enough to sustain the dredging operations from up there.

[00:05:11] Speaker 04:
It is at a minimum an implicit representation.

[00:05:13] Speaker 04:
I would go so far as to say that is an explicit representation because it is essentially mandating at least a type or a category of performance.

[00:05:22] Speaker 04:
While the means and methods would still be up to the contractor, if you can only have a land-based operation, then to me it is explicitly representing that a land-based operation is doable.

[00:05:36] Speaker 01:
It seems to me that your biggest problem are the boring tests that were

[00:05:40] Speaker 01:
that were undertaken, and there were no borings that were taken from the fourth quadrant, the southwest quadrant, I believe.

[00:05:50] Speaker 01:
Why didn't you insist on having the earlier boring that had been taken in 2008 or something?

[00:05:57] Speaker 04:
Why didn't we insist on having the earlier boring from 2000?

[00:06:00] Speaker 01:
Boring results when that quadrant was tested.

[00:06:05] Speaker 04:
Well, frankly, they weren't included in the contract documents, and they weren't known to the appellant during performance or during when these problems were developing.

[00:06:14] Speaker 04:
Certainly, they weren't known at the time of bid.

[00:06:17] Speaker 04:
Now, I understand that the Corps of Engineers, most government agencies will say you can request additional information if you want it, but you have to know something exists to request it.

[00:06:27] Speaker 04:
But the proof of trial was that even had, from both experts as well as the contractor who

[00:06:34] Speaker 04:
many parts of their team were, in fact, similar geotechnical engineers.

[00:06:38] Speaker 04:
Even had they had the 2000 boring logs, it would not have provided a materially different representation to them as to what would be present in the Southwest Bank.

[00:06:48] Speaker 04:
In other words, it was similar enough to them to the remainder of the borings.

[00:06:52] Speaker 04:
And these were not as complete a boring log.

[00:06:54] Speaker 04:
They were not as detailed.

[00:06:56] Speaker 04:
But they would not have represented the risk that was encountered.

[00:07:03] Speaker 04:
Our case would be much stronger today if the contractor had been provided with those 2,000 boring logs at the time of bid, because they would be an explicit representation of the subsurface conditions.

[00:07:16] Speaker 01:
But you didn't ask for them.

[00:07:18] Speaker 04:
They did not ask for them.

[00:07:19] Speaker 04:
They didn't know that they existed.

[00:07:20] Speaker 01:
No, but they knew that there were boring test results from the other quadrants.

[00:07:28] Speaker 04:
You ought to be clear, there were some preliminary borings taken in the year 2000.

[00:07:33] Speaker 04:
Those were not provided to the contractor, were not provided with bidding information.

[00:07:37] Speaker 04:
There were the 2008 boring logs, which included one boring log on the southwest quadrant, one on the northwest, and then a number on the eastern quadrant.

[00:07:48] Speaker 04:
So the contractor did avail itself of all information of which it knew to exist and was represented to it to exist.

[00:07:57] Speaker 02:
What is the specific implicit representation that you contend you're relying on or your side's relying on?

[00:08:06] Speaker 04:
Sure.

[00:08:06] Speaker 04:
Multiples.

[00:08:07] Speaker 04:
First, that the banks were sufficient for top-of-bank heavy construction to be done when this prohibition against marine work was placed in the contract originally.

[00:08:16] Speaker 04:
That is an indication that if it has to be performed on top of bank, then it can be.

[00:08:21] Speaker 04:
that it will bear the weight of that equipment.

[00:08:24] Speaker 04:
The implicit representation that remained even after that prohibition against marine performance was removed, that construction traffic would be utilized on top of bank.

[00:08:33] Speaker 04:
Again, that indicates for a construction job that heavy equipment would be able to go and come on the top of bank.

[00:08:38] Speaker 04:
And also, I believe the boring logs, which it's convenient for the board to say, oh, they were in a different quadrant.

[00:08:46] Speaker 04:
But they were a few hundred yards away across the canal.

[00:08:49] Speaker 04:
Those also indicate the condition of the job site and subsurface conditions.

[00:08:54] Speaker 04:
And so while there was only one on the southwestern side, the very homogenous nature of all of the other boring logs combined with reasonable site inspections is an implicit representation as to the condition throughout the job site.

[00:09:07] Speaker 04:
We're not talking about a boring log that's 1,000 yards away.

[00:09:10] Speaker 04:
We're talking about a boring log that is a couple hundred yards away.

[00:09:13] Speaker 04:
In fact,

[00:09:15] Speaker 04:
If we look to the Renda case, which I know has been argued by both parties, their contractor was lost because they didn't look at the boring logs that were even further away from their site and even further away from logs which supported their position here.

[00:09:31] Speaker 04:
And we would have been duly criticized had we

[00:09:35] Speaker 04:
Had we not looked at the boring logs, we would be duly criticized.

[00:09:39] Speaker 04:
But we did.

[00:09:40] Speaker 04:
If we couldn't have said, oh, well, they have to be different over there.

[00:09:43] Speaker 04:
So in this situation, I believe that all of those are implicit representations.

[00:09:48] Speaker 04:
And to the extent that this boilerplate language was originally in the provision, potentially an explicit representation that it was suitable for top of bank performance.

[00:09:56] Speaker 04:
I am running down.

[00:09:57] Speaker 04:
But I do want to point out that since we've talked about the boilerplate,

[00:10:00] Speaker 04:
that their understanding and reading of the boilerplate language or this prohibition to indicate a suitable bank for performance was bored out at trial through the designer himself who said, yes, I believed it was stable for that performance, and through everyone else, for the core or for the contractor, who said,

[00:10:22] Speaker 04:
that all indications were that heavy equipment would be allowable and useful on top of bank.

[00:10:27] Speaker 04:
No one anticipated anything different, even the designer of the job.

[00:10:31] Speaker 04:
And when that boilerplate language was removed, it was not removed for purposes of bank stability.

[00:10:37] Speaker 04:
It was removed to allow reach for excavators, as it was testified to by, I believe, Mr. Henkamp for the Corps of Engineers.

[00:10:44] Speaker 02:
What is your JA or supplemental appendix support for the explicit representation that you've been

[00:10:53] Speaker 02:
referring to during part of your argument.

[00:10:55] Speaker 04:
I would mainly just to dig that out while my opposing counsel is arguing for the appendix reference, but the contract provision itself originally had a section which prohibited any marine-based construction.

[00:11:08] Speaker 04:
And if the court will allow, I will save my remaining four minutes for rebuttal, but I will begin directly with that question and have an appendix cite for you.

[00:11:17] Speaker 00:
All right, we will save that for you, Mr. Wallace and Mr. Quinn.

[00:11:29] Speaker 03:
Thank you.

[00:11:30] Speaker 03:
Good morning and may it please the court.

[00:11:32] Speaker 03:
A Type 1 differing site condition claim requires, first and foremost, an affirmative contractual representation about the conditions at the relevant work site.

[00:11:41] Speaker 03:
The board here, correctly held at Ham's Construction, failed to meet this requirement because the contract between the parties provides no contractual representations whatsoever about the southwestern quadrant of Trap Canal.

[00:11:55] Speaker 03:
When arguing otherwise, PAM's construction first points to the 2008 boring logs.

[00:12:00] Speaker 03:
But those logs offer no information about the southwestern quadrant of Trap Canal.

[00:12:06] Speaker 03:
We know that because Hampst Construction's own expert, Mr. Trouber, stated in the supplemental expert report that he provided before the board that out of the 10 2008 boring logs, eight related to the eastern side of the canal and two related to the northwestern quadrant of Trap Canal.

[00:12:25] Speaker 03:
None of them related to the southwestern quadrant.

[00:12:28] Speaker 03:
Before I move on, Judge Raina, you asked about the 2000 boring logs.

[00:12:32] Speaker 03:
The board found that those boring logs provided no additional information beyond what was provided in the 2008 boring logs and you can find that at appendix 20, which is page 20 of the board's decision.

[00:12:46] Speaker 03:
So the 2000 boring logs also provide no information about the southwestern quadrant of Trap Canal.

[00:12:54] Speaker 03:
Now

[00:12:56] Speaker 03:
Nor can any information be drawn about the Southwestern Quadrant from representations made in the 2008 Boring Logs about other areas of Trap Canal, because the board found, using the record evidence before it, and this is on page 29 of the appendix, 29 of the board decision,

[00:13:18] Speaker 03:
that the southwestern quadrant was in a condition far worse than the remainder of Trap Canal, and this was based on the cross-section drawings that were provided to offer roars, including Ham's construction, as well as photographs taken by Ham's construction subcontractor during the pre-bid site inspections.

[00:13:37] Speaker 03:
The 2008 boring logs provide no information at all about the southwestern quadrant of Trap Canal, and that southwestern quadrant was in a far worse condition than everywhere else.

[00:13:51] Speaker 03:
Ham's Construction next relies on an initial prohibition against barges, which appears in the solicitation.

[00:13:59] Speaker 03:
The key point there is that before Ham's Construction ever submitted a bid,

[00:14:05] Speaker 03:
The Army Corps of Engineers rescinded that prohibition in an amendment that appears on page 4 of the supplemental appendix, thus placing Hempst construction directly on notice that barges may be necessary to perform the work.

[00:14:23] Speaker 03:
And then finally, there's some discussion in the briefing about a construction traffic drawing that has the words construction traffic with several arrows going up and down on the western side of Trap Canal.

[00:14:38] Speaker 01:
Ham's construction is- Are you referencing appendix 312?

[00:14:43] Speaker 03:
That map?

[00:14:46] Speaker 03:
I don't believe so, Your Honor.

[00:14:48] Speaker 03:
I say that because I don't think that was provided to

[00:14:53] Speaker 03:
the government or to the court until Hamst Instruction filed its reply brief.

[00:15:00] Speaker 03:
But I will double-check to confirm.

[00:15:03] Speaker 01:
The question is, when did it exist?

[00:15:06] Speaker 01:
It was listed at the time of the solicitation, correct?

[00:15:09] Speaker 03:
Yes, at the time of contract.

[00:15:12] Speaker 01:
OK.

[00:15:13] Speaker 01:
But looking at that, it's on Appendix 312.

[00:15:18] Speaker 01:
It's a schematic, a map of the trap canal

[00:15:22] Speaker 01:
And you see the construction access going into the canal.

[00:15:26] Speaker 01:
You see the two arrows going on on either side of the bank.

[00:15:30] Speaker 01:
Does that encompass those four arrows there on what the bridge is?

[00:15:34] Speaker 01:
Does that encompass the four quadrants that we're talking about?

[00:15:38] Speaker 03:
I think that's correct, Your Honor.

[00:15:41] Speaker 01:
Does that show traffic going up and down the banks?

[00:15:45] Speaker 03:
So it doesn't show traffic.

[00:15:46] Speaker 03:
This shows construction access.

[00:15:48] Speaker 03:
It shows the potential direction.

[00:15:50] Speaker 01:
That's what it's for, right?

[00:15:51] Speaker 01:
The access?

[00:15:53] Speaker 03:
Well, potentially.

[00:15:54] Speaker 03:
All this shows is the direction of construction traffic if construction traffic could go along the banks.

[00:16:03] Speaker 03:
It's not an affirmative representation that construction traffic could, in fact, go along the banks.

[00:16:09] Speaker 03:
If you look at the amendment to the solicitation.

[00:16:13] Speaker 01:
I don't understand that.

[00:16:15] Speaker 01:
Does this not show it says construction access, and it's got the four arrows that encompass the schematic or the scheme itself?

[00:16:32] Speaker 01:
So that does not show construction access or activity?

[00:16:37] Speaker 01:
Traffic going up and down the backs.

[00:16:40] Speaker 03:
I don't believe so your honor and I'll explain why in a second Let me just first say that I don't believe this drawing is the drawing that Ham's construction refers to when it makes this argument There is another drawing that was not provided until Ham's construction filed the reply brief that says the words construct construction traffic With arrows going up and down and it looks somewhat different than this.

[00:17:03] Speaker 02:
Do you have the JA page for that?

[00:17:05] Speaker 03:
No, Your Honor, because it was not in the JA.

[00:17:08] Speaker 03:
It was not attached to the... There is no JA here.

[00:17:12] Speaker 03:
There is an appendix... Appendix page.

[00:17:13] Speaker 02:
Do you have an appendix page for that?

[00:17:15] Speaker 03:
There is no appendix page because Ham's Construction did not include it in the appendix they filed alongside their opening brief.

[00:17:22] Speaker 03:
which is part of the problem, Your Honor.

[00:17:24] Speaker 03:
That's why they forfeited this argument before this Court by failing to include any information about what this document is alongside their opening brief.

[00:17:35] Speaker 03:
Excuse me.

[00:17:36] Speaker 03:
They also forfeited it because they failed to raise this argument before the board.

[00:17:41] Speaker 03:
And if you look at the board opinion, the board does not address any argument based on construction traffic simply because it was not made before the board.

[00:17:50] Speaker 03:
Judge Raina, if I can go back to this particular drawing.

[00:17:53] Speaker 03:
This drawing simply shows Harvey Boulevard crossing the canal

[00:18:00] Speaker 03:
And then it shows construction access going northward or southward from Harvey Boulevard.

[00:18:11] Speaker 03:
It's showing where access would be if construction traffic could go along the banks.

[00:18:20] Speaker 03:
It's simply showing a direction.

[00:18:22] Speaker 03:
It's not definitively saying that construction traffic would be allowed.

[00:18:27] Speaker 03:
And in fact, if you look at the

[00:18:29] Speaker 03:
Amendment to the solicitation, which the Army Corps of Engineers issued before Ham's construction submitted its bid, that's on page 60, I'm sorry, on page four of the supplemental appendix, it clearly states that barges may be necessary to perform the work.

[00:18:48] Speaker 01:
So to the extent... Wouldn't a reasonable contractor look at this and see that the banks of the canal

[00:18:59] Speaker 01:
right there off of Harvey Boulevard, that in either direction, that they're stable.

[00:19:08] Speaker 01:
It seems to me, and this is what I want you to address, is that not an implicit representation to a reasonable contractor that if necessary, they can move construction equipment up and down on those banks.

[00:19:24] Speaker 03:
No, Your Honor.

[00:19:24] Speaker 03:
Because a reasonable contractor would look at everything in front of them as they're making the decision on how to approach this contract.

[00:19:33] Speaker 03:
And what we had here, and the board made this finding on page 29 of its decision, we had cross-section drawings that showed the Southwest

[00:19:42] Speaker 03:
Quadrant being in far worse condition and we had photographs taken by hams constructions Subcontractor before they placed a bid again showing depressions On the southwestern quadrant that did not appear elsewhere along the canal taken everything together a reasonable contractor would have reached the conclusion that the southwestern quadrant was not like the other quadrants it was different and

[00:20:12] Speaker 03:
Now, finally, I think what Ham's construction has to fall back on is this idea that the contract and the contracting documents do not provide any information at all about the Southwestern Quadrant of Trap Canal.

[00:20:29] Speaker 03:
And that omission itself makes the government liable for a type 1 differing site condition claim.

[00:20:35] Speaker 03:
And that's simply not true because it contradicts this court's precedent on type 1 differing site condition claims.

[00:20:41] Speaker 03:
If the court looks at the control decision, which the court issued in 2002, that decision clearly states that what is required for a type 1 differing site condition claim is an affirmative contract indication, not an omission, but an affirmative contract indication

[00:20:58] Speaker 03:
of the conditions on the relevant site.

[00:21:01] Speaker 03:
Because a type 1 differing site condition claim, at the end of the day, looks at the difference between what the contract says and what the condition actually is.

[00:21:09] Speaker 03:
If the contract says nothing, there cannot be a type 1 differing site condition claim.

[00:21:15] Speaker 02:
Two questions I want you to respond to.

[00:21:17] Speaker 02:
One, do you want to distinguish the Renda marine case?

[00:21:20] Speaker 02:
And then number two, do you have any response to these implicit representations that opposing counsel has been arguing about?

[00:21:27] Speaker 03:
Yeah, so the random marine case is different than this case.

[00:21:33] Speaker 03:
It's different because in that case, there was a finding that the conditions throughout the site were, in fact, homogeneous.

[00:21:42] Speaker 03:
And so a contractor could have looked at borings that were not on the site itself, but a little off the site to draw some conclusions.

[00:21:51] Speaker 03:
This case is much more similar to the HBMAC case.

[00:21:56] Speaker 03:
And in that case, there were indications that conditions were not the same throughout the site.

[00:22:01] Speaker 03:
And with this court said, I believe this case is from 1998.

[00:22:06] Speaker 03:
What the court said in HBMAC is that it was not reasonable for a contractor to look at borings from 300 yards away because the conditions were not the same throughout.

[00:22:17] Speaker 03:
And that's what we have here.

[00:22:19] Speaker 03:
We have indications from the record, as the board found on page 29, saying the southwestern quadrant was different.

[00:22:26] Speaker 03:
And because it was different, this case is more like HBMAC than random marine.

[00:22:30] Speaker 03:
And I'm sorry, Your Honor, what was the second question?

[00:22:31] Speaker 02:
Did you have a response to the implicit representations that opposing counsel was talking about during his argument?

[00:22:38] Speaker 03:
Right.

[00:22:39] Speaker 03:
So we don't disagree that there can be implicit indications in a contract about conditions on the work site.

[00:22:46] Speaker 02:
You also don't differentiate between indications and representations, is that right?

[00:22:52] Speaker 03:
I don't.

[00:22:53] Speaker 03:
I will know that the court in- Oh, implicit.

[00:22:56] Speaker 03:
representations and indications let me phrase it so I don't I don't differentiate between representations versus indications I will know that in International Technology Corporation which is a 2008 type one different side condition claim case I'm sorry

[00:23:12] Speaker 03:
The court used representations instead of indications, but I think the court has used the word indications before as well.

[00:23:19] Speaker 03:
I don't really think it matters.

[00:23:22] Speaker 03:
Those representations or indications can be implicit in the sense that there's something in the contract documents that

[00:23:31] Speaker 03:
implicitly suggest the conditions on the site, but you'd still need something in the contract documents to make some sort of a representation or indication about the conditions.

[00:23:42] Speaker 03:
You cannot have silence.

[00:23:44] Speaker 03:
You cannot have the omission of information as the only reason why the contractor believed that the contract makes a representation of outside conditions.

[00:23:55] Speaker 03:
So you still need an affirmative representation or indication.

[00:23:59] Speaker 03:
It could be implicit under certain circumstances, but there still has to be something in the contract documents.

[00:24:05] Speaker 02:
And you believe in this case, we have either our admission or silence.

[00:24:09] Speaker 02:
Is that accurate as to what you think is factually true here?

[00:24:12] Speaker 03:
That's exactly what we have, Your Honor.

[00:24:13] Speaker 03:
We have nothing that talks about the Southwestern Bank of Trap Canal.

[00:24:18] Speaker 03:
We have documents that talk about other banks, the 2008 Boring Logs, but other than that,

[00:24:24] Speaker 03:
We have no indication about the southwestern quadrant of Trap Canal.

[00:24:28] Speaker 01:
When a reasonable contractor extrapolate the results of the southwest of the boring logs onto the Southwest Bank, there were no boring logs of Southwest Bank, right?

[00:24:40] Speaker 03:
That's right.

[00:24:41] Speaker 03:
Okay.

[00:24:42] Speaker 01:
But there were boring logs for the other banks.

[00:24:44] Speaker 01:
Yes.

[00:24:45] Speaker 01:
When the reasonable contractor extrapolate the results of the other boring logs onto the Southwest Bank,

[00:24:51] Speaker 03:
not when there are indications that the Southwest Bank is different from the other quadrants of Trap Canal, which is what we have here.

[00:24:59] Speaker 03:
It could be, under certain circumstances, that it would be possible, and I think in HBMAC, or in random marine, the court provided an example of when that would be the case, and I think there was a discussion of it in HBMAC as well.

[00:25:13] Speaker 03:
But when you have

[00:25:14] Speaker 03:
contrary indications, when you have contract indications that the southwestern quadrant is inherently different from the rest of the canal, then no, it would not be reasonable for a contractor to draw any conclusions about southwestern bank by looking at boring logs taken from elsewhere.

[00:25:34] Speaker 02:
Can you point us to your best support to show that

[00:25:37] Speaker 02:
It would not have been reasonable to extrapolate from these other quadrants into the Southwest Quadrant.

[00:25:44] Speaker 02:
Basically, some support that shows the conditions weren't homogeneous across all quadrants or something like that.

[00:25:50] Speaker 03:
Right.

[00:25:51] Speaker 03:
So what we have is the board's decision on page 29 of the board's decision.

[00:26:00] Speaker 03:
where the board states, and I'll quote for the court here, this is from the third full paragraph from the top, beginning in the middle of the paragraph with the word but.

[00:26:10] Speaker 03:
The board said, but it is contrary to our detailed factual findings above, that the conditions on the southwest bank were notably different and far worse than those on the eastern side of the canal.

[00:26:23] Speaker 03:
This was manifested both in what could be seen during the pre-bid inspection and by what was reflected in the cross-sections included with the solicitation.

[00:26:33] Speaker 03:
So this is a factual finding that the board made.

[00:26:37] Speaker 03:
This court, of course, owes deference to that factual finding by the board.

[00:26:40] Speaker 03:
It's reviewed for substantial evidence.

[00:26:43] Speaker 03:
And the contractor, Hams Construction, has not demonstrated that this is unsupported by substantial evidence.

[00:26:51] Speaker 03:
Thank you.

[00:26:52] Speaker 00:
Thank you, counsel.

[00:26:54] Speaker 00:
Mr. Willis has some rebuttal time.

[00:27:02] Speaker 04:
Your Honor, I believe I owe you a citation.

[00:27:04] Speaker 04:
I would give you Appendix 131.

[00:27:09] Speaker 04:
For the questions that we had involving citation for questions about deconstruction traffic or construction access, while we did want to add a supplemental document, we already had a document in the record which substantiates that up, points the court to Appendix 131.

[00:27:24] Speaker 02:
Can you briefly voice over what I should garner from Appendix page 131 that you just gave me?

[00:27:32] Speaker 04:
I believe that your question had been, well now I wrote down the notes to give it to you and I don't remember your exact question.

[00:27:39] Speaker 04:
I'm sorry, Your Honor.

[00:27:41] Speaker 02:
I've been asking you about your best support, I think, for implicit or explicit representations.

[00:27:46] Speaker 02:
I just wanted to know what I should take from Appendix Page 131 you decided to use.

[00:27:50] Speaker 04:
We were talking, I believe we were talking about, that would be amendment two to the contract which removed the prohibition, which removed and modified the boilerplate language removal.

[00:28:02] Speaker 04:
So that would be pointing out to the contract in its final stage the fact that there had been boilerplate language mandating top of bank performance which has been removed.

[00:28:11] Speaker 04:
And I would point out, taking that note, that the removal of the boilerplate language, which was there for good reason, as the designer said he thought it could be done in that fashion, did not put a contractor on notice that the banks might be in some way insufficient.

[00:28:28] Speaker 04:
It gave them notice that they could use the marine operations if they chose to do so, which is not terribly unusual in Louisiana.

[00:28:36] Speaker 04:
However, the fact that the project was designed for a top-of-bank performance, as we found in discovery and presented at trial, and the fact that it was mandated for top-of-bank performance in the original solicitation, as put out for bid, even though that was later modified, it is still making a direct representation that if you can't do it by Marines, then obviously we designed it to be done on top of bank.

[00:28:58] Speaker 04:
They didn't redesign and re-let the contract and thus point to a previous version or existence of this document.

[00:29:04] Speaker 04:
This is a modification to allow Moore not to warn anyone of a difference in the design change.

[00:29:11] Speaker 04:
There was no design change.

[00:29:12] Speaker 04:
It was designed for the performance that was utilized to the extent that this is a legal question.

[00:29:20] Speaker 04:
I mean, let's face it, this is a legal question of contract interpretation, the representations of the contract.

[00:29:26] Speaker 04:
The actual proof was that the photo, and I will point to the appellee's own expert witness, Mr. Templeton, that these, I agree, Southwest Bank was far worse.

[00:29:38] Speaker 04:
That's what everyone found out.

[00:29:39] Speaker 04:
Obviously, if it had not been, we would not be here.

[00:29:42] Speaker 04:
That was not apparent from the contract documents.

[00:29:45] Speaker 04:
That was not apparent from the two pre-bid site inspections, which were conducted on top of bank by an experienced contractor with an engineering degree, in fact, a geotechnical engineering degree.

[00:29:56] Speaker 04:
who drove it in a large SUV.

[00:29:58] Speaker 04:
An SUV is not a track hoe.

[00:30:00] Speaker 02:
What can you point to in the contract itself that provides a hook to support up these implicit representations that you want to rely on?

[00:30:07] Speaker 04:
In the contract itself, I would point to the construction access being allowed on top of bank, the fact that construction was originally mandated by the marine prohibition.

[00:30:18] Speaker 04:
It was mandated to be done on top of bank.

[00:30:20] Speaker 04:
And I would say that the boring logs that were provided in reasonably close range to the Southwest Bank, even though we treat it as a different proximity, we're still talking about a couple hundred yards, not 1,000 yards.

[00:30:32] Speaker 02:
Do you have a specific page of the contract and provision you can point me to?

[00:30:37] Speaker 04:
Not in 20 seconds, Your Honor.

[00:30:39] Speaker 04:
Not in 20 seconds.

[00:30:40] Speaker 04:
But even the government's own expert said if the site inspections were reasonable, nothing else could have potentially warned a contractor about this.

[00:30:53] Speaker 04:
The fact of the matter is,

[00:30:54] Speaker 04:
The pictures did not indicate all these failures.

[00:30:57] Speaker 04:
The pictures were admitted by their expert to be homogenous and did not represent an indication.

[00:31:01] Speaker 01:
When the prohibition of dredging from a barge was lifted, was there any testing of the backs done by the government?

[00:31:13] Speaker 04:
No.

[00:31:14] Speaker 04:
In fact, there was never any testing of the banks done by the government at that time.

[00:31:17] Speaker 04:
And the proof of trial was that, in fact, even during the design of the project, there was no slope stability analysis conducted by the government or anyone else.

[00:31:27] Speaker 04:
The designer believed that it would support top of the bank.

[00:31:29] Speaker 01:
The only boring analysis was the ones that we're talking about today.

[00:31:34] Speaker 01:
That existed, right?

[00:31:37] Speaker 01:
Yes, sir.

[00:31:37] Speaker 01:
And did the government rely on those to show that the banks are stable?

[00:31:42] Speaker 04:
I'm sure that they will say no, but we will say yes.

[00:31:47] Speaker 04:
Because all the boring logs given within reasonable range and proximity, in fact, to support that conclusion, had we been in a different situation and the boring logs been 600 yards south of the problem area, we would have been criticized for relying on those instead of the ones 200 yards to the right.

[00:32:09] Speaker 04:
They were close enough, and a reasonable contractor read the contract as it should have, and especially upon the breadth of the implicit allowances in the Foster case.

[00:32:20] Speaker 04:
This is not a case to which the board gets deference.

[00:32:23] Speaker 04:
It's a legal question and a mandate traversal.

[00:32:26] Speaker 00:
Nothing more in here.

[00:32:28] Speaker 04:
I don't have any more time.

[00:32:30] Speaker 04:
Your Honor, be excused.

[00:32:31] Speaker 00:
Thank you.

[00:32:31] Speaker 00:
Thank you to both counsel.

[00:32:33] Speaker 00:
The case is submitted.