[00:00:04] Speaker 00:
All right, our next case is number 18-1216, affiliated Western Inc.

[00:00:09] Speaker 00:
versus Secretary of Veterans Affairs.

[00:01:14] Speaker 00:
Okay, Mr. Sanderford.

[00:01:31] Speaker 03:
Good morning, may it please the court.

[00:01:32] Speaker 03:
Affiliate Western was terminated for fault for failure to make progress on the VA hospital renovation project in 2014.

[00:01:43] Speaker 03:
Therefore, this is a Lisbon case and the standards applicable to Lisbon should be applied to the VA's determination, respective to its merits.

[00:01:55] Speaker 03:
Under Lisbon, the government must have a correct understanding of the remaining work and the time remaining to perform and complete that work.

[00:02:06] Speaker 03:
It's AWI's contention that the contracting officer utilized an incorrect completion date of July 30th

[00:02:13] Speaker 03:
2014 to make its default termination.

[00:02:16] Speaker 03:
Therefore, the government failed to satisfy its burden of proof under Lisbon.

[00:02:23] Speaker 00:
So what the board said was that your client didn't make a proper request for a time extension to the contracting officer that would include critical path analysis.

[00:02:37] Speaker 00:
And what's the answer to that?

[00:02:40] Speaker 00:
Your answer, I guess, is that a critical path analysis

[00:02:43] Speaker 03:
Yes, your honor.

[00:02:46] Speaker 03:
Quite honestly, we focused our appeal around a contractual basis for a time extension that we believe is justified as a result of the combination of a unilateral change order number four and what is the solicitation amendment number six to the contract.

[00:03:05] Speaker 00:
When did you actually make a time extension request to the contract?

[00:03:10] Speaker 03:
Your honor, AWI requested

[00:03:14] Speaker 03:
In excess of 150 days prior to being terminated, it was the VA's position.

[00:03:21] Speaker 00:
Where do you find the time extension request that satisfies the contract requirement?

[00:03:28] Speaker 03:
Right.

[00:03:28] Speaker 03:
There was no critical path analysis type formulated request.

[00:03:35] Speaker 03:
That is correct.

[00:03:36] Speaker 00:
OK.

[00:03:36] Speaker 00:
Was there a request that said we're entitled to 129 days

[00:03:40] Speaker 00:
automatically under the contract when you give us an extension for phase one and two?

[00:03:48] Speaker 03:
There was a request for up to 169 days, so in excess of the 129 days.

[00:03:57] Speaker 03:
I don't know if it was couched in terms of a contractual right in conjunction with the unilateral change order.

[00:04:07] Speaker 03:
was issued by the government that granted AWI the 129 days.

[00:04:13] Speaker 00:
Where do we find the 169 days, wouldn't you say?

[00:04:17] Speaker 03:
Yes, Your Honor.

[00:04:18] Speaker 03:
It's a combination of serial letters between... Where do we find the appendix?

[00:04:25] Speaker 03:
I don't have the page references to those at hand.

[00:04:32] Speaker 03:
Your Honor, the primary point of the appeal

[00:04:36] Speaker 03:
was to suggest that unilateral change over number four, which extended the contract, which extended phase number two, 129 days to March 12th, 2014 as a matter of contract right should have resulted in a corresponding extension to the contract completion date.

[00:05:00] Speaker 03:
And our argument is that the only way that the phase three, the contractually

[00:05:07] Speaker 03:
mandated and specified phase three durations could be maintained was by an extension of the contract.

[00:05:15] Speaker 03:
And this is best illustrated by reference to appendix 3-2-2-1, which graphically sets out the four sequential phases.

[00:05:29] Speaker 03:
The board found that the phases were sequential, which is to say,

[00:05:35] Speaker 03:
The completion of phase one and phase two was a predecessor activity to the start of phase three.

[00:05:42] Speaker 03:
And so by contract, the phases were set up in essence on a critical path basis.

[00:05:53] Speaker 03:
And so when the government extended phase two for 129 days, 18.4 weeks,

[00:06:03] Speaker 03:
And if it failed then to extend the contract, then what it did, it swallowed the entire 18 weeks of phase three that was identified in the contract.

[00:06:16] Speaker 03:
And, and this, um, appendix three, two, two, one clearly exemplifies that because you can see under phase two.

[00:06:26] Speaker 00:
It sounds to me as though you've come up with a theory.

[00:06:29] Speaker 00:
either before the board or here or both that wasn't presented to the contracting officer?

[00:06:35] Speaker 03:
Well, perhaps it wasn't presented in that form to the contracting officer before the termination for default.

[00:06:42] Speaker 03:
But if it's a matter of contract right, it didn't need to be necessarily presented to the contracting officer before default.

[00:06:51] Speaker 03:
In fact, it's our position that the contracting officer should have recognized

[00:06:56] Speaker 03:
that a contractual completion date of July the 30th was unreasonable under the circumstances because it allowed the contractor one day to complete phase three after the time extension of phase two.

[00:07:14] Speaker 03:
And so on its face, it was unreasonable then to judge AWI's progress under the Lisbon standard

[00:07:26] Speaker 03:
based on this truncated completion date of July the 30th.

[00:07:36] Speaker 03:
So the government's position claims that under a totality of the circumstances, that even if they incorrectly utilize the July 30th, 2014 date, it nevertheless has a right to have

[00:07:56] Speaker 03:
the default sustained based on this totality of the circumstances.

[00:08:01] Speaker 03:
And we believe this is contrary to the Lisbon standard to the McDonnell Douglas standard in 2003, which reaffirmed Lisbon.

[00:08:15] Speaker 03:
Because the government is still required to evaluate a failure to make progress termination for default against the correct time remaining

[00:08:25] Speaker 03:
for performance.

[00:08:27] Speaker 03:
And these other factors that the government raised in its brief, such as the subcontractor problem that it encountered, the performance of phase two that it was behind in phase two, these are factors to be considered in making the Lisbon determination.

[00:08:51] Speaker 03:
And in fact, under the underlying board,

[00:08:55] Speaker 03:
followed the Lisbon standard except in that it failed to consider the legal effect of unilateral change order number four on the completion day.

[00:09:13] Speaker 03:
If the government can issue unilateral change order number four for 129 days extending the completion date of phase two,

[00:09:24] Speaker 03:
and yet not extend or not maintain the 18 week stipulated time period for phase three.

[00:09:32] Speaker 03:
And the government in this case is being allowed to eliminate 18 weeks from the schedule and terminate AWI for default on a shorter unilaterally truncated schedule.

[00:09:49] Speaker 03:
In other words, the government, by virtue of unilateral change order number four,

[00:09:54] Speaker 03:
granted 18 weeks to complete phase two and then took it out of phase three.

[00:10:03] Speaker 03:
Literally that was the effect of change order number four without a corresponding time extension.

[00:10:11] Speaker 03:
And in fact, I'm not sure that time extension is the right term to use.

[00:10:18] Speaker 03:
AWI simply contends that by contract they were allowed to maintain

[00:10:24] Speaker 03:
the phase durations for phase three, which was 18 weeks and phase four, which was four weeks, a total of 22 weeks.

[00:10:35] Speaker 03:
And what the VA evaluated AWI's failure to make progress under Lisbon was a truncated phase three and phase four from 22 weeks down to seven.

[00:10:51] Speaker 03:
So we believe that that was

[00:10:54] Speaker 03:
on its face unreasonable for the contracting officer to have done that.

[00:10:59] Speaker 03:
So it really, from AWI's perspective, it's not necessarily a time extension issue and a determination of whether AWI followed the specification requirements for a critical path analysis time extension request.

[00:11:20] Speaker 03:
The position is simply

[00:11:22] Speaker 03:
AWI was entitled to maintain the 18 week duration for phase three and the four week duration for phase four after unilateral change order number four was issued.

[00:11:42] Speaker 03:
And with that, your honor.

[00:11:43] Speaker 02:
Now you're, you're not arguing, I guess, that

[00:11:47] Speaker 02:
there was a misapprehension on the part of AWI as to what the final date was, right?

[00:11:53] Speaker 02:
You're arguing that even though AWI may have understood that the date was not extended, they nonetheless had a legal right to the additional days.

[00:12:05] Speaker 03:
Your Honor, that is certainly correct.

[00:12:08] Speaker 02:
I mean, there's various pieces of correspondence here in the record that indicate that AWI understood

[00:12:15] Speaker 02:
that even the extension of the period of time for phases one and two did not extend the ultimate time for completion, right, coming from AWI.

[00:12:26] Speaker 02:
Like Appendix 905, a letter from AWI saying we've revised the schedule for phases, is that phase one and phase two, but we expect we will now be able to still be able to complete the

[00:12:44] Speaker 02:
the job by the completion time of July 30th, I guess it was.

[00:12:49] Speaker 03:
Yeah.

[00:12:49] Speaker 03:
Your honor, that AWI never took the position that after the phase two extension, that it could still complete the totality of the work by July the 30th.

[00:13:03] Speaker 02:
Well, this is a letter that deals with what looks to me like, and I don't have the reference to the request, but a request, this is a December 19th, 2013 letter.

[00:13:13] Speaker 02:
saying that here is the revised schedule number two, which I take it extended the periods for milestones one and two.

[00:13:28] Speaker 02:
But nonetheless, says we will finish by July 30, what everybody understood to be roughly the finishing time.

[00:13:36] Speaker 03:
So Your Honor, that correspondence in December of 2013 well predates

[00:13:44] Speaker 03:
Change order number four.

[00:13:45] Speaker 02:
I understand that.

[00:13:46] Speaker 03:
And so at that point in December, the parties were still hoping to maintain a July 30 completion date.

[00:13:55] Speaker 02:
Notwithstanding that the milestones number one, phase one and phase two had been extended.

[00:14:05] Speaker 02:
That is correct.

[00:14:07] Speaker 02:
So the understanding of AWI was that the extension of MOD, not MOD, but

[00:14:13] Speaker 02:
of phase one and phase two did not affect the final completion date.

[00:14:18] Speaker 03:
That is correct in part.

[00:14:20] Speaker 03:
However, the correspondence in December did not result in any formal modification to the schedule or to the party's contract.

[00:14:31] Speaker 00:
But the problem is, I don't see where you asked for the 129 days on some theory that there was an automatic contract extension.

[00:14:41] Speaker 00:
I don't even see where you actually asked for a formal time extension at all.

[00:14:46] Speaker 00:
And you said, well, I can't tell you where it is in the record.

[00:14:50] Speaker 00:
But if you can't show it to me, I have to assume it's not there.

[00:14:54] Speaker 03:
Well, Your Honor, number one, regardless of the formality of the time extension request, there's been no suggestion, certainly no finding by the board.

[00:15:07] Speaker 00:
I mean, surely you agree that you have to make a time extension request, don't you?

[00:15:12] Speaker 00:
to go to the board?

[00:15:15] Speaker 03:
Well, this was a challenge to a termination for default.

[00:15:19] Speaker 03:
And certainly, AWI still had the ability in connection with that.

[00:15:24] Speaker 00:
But you can't complain about the failure to give a time extension if you didn't ask for one, right?

[00:15:31] Speaker 03:
Well, from the shifting burden of proof under Lisbon, AWI still had the opportunity to demonstrate that any delays were excused.

[00:15:42] Speaker 03:
regardless of whether or not it had presented a formal time extension request prior to the termination.

[00:15:52] Speaker 03:
But again, it's a different species of time extension.

[00:15:56] Speaker 03:
It's not really a time extension request.

[00:15:59] Speaker 03:
It is the belief that under the contract, AWI was entitled to the 18 weeks stipulated for phase three, and that that's the rightful application

[00:16:11] Speaker 03:
in interpretation of the contract.

[00:16:14] Speaker 03:
And if AWI was entitled to the full 18 weeks of phase three and the full four weeks of phase four, then the government utilized an incorrect completion date by which to gauge AWI's progress.

[00:16:30] Speaker 02:
Regardless of whether AWI asked for the extension or not at your position.

[00:16:34] Speaker 02:
That is, as a matter of law, the extension applied.

[00:16:40] Speaker 02:
even if AWI never breathed a word to the government about its expectations, or even if it didn't have an expectation that there would be an extension.

[00:16:49] Speaker 03:
That is correct, Your Honor.

[00:16:50] Speaker 02:
That's your position, right?

[00:16:52] Speaker 02:
But I don't think the distinction... But just to make sure I understand, that's your position, right?

[00:16:57] Speaker 03:
That is part of the position.

[00:16:58] Speaker 03:
Yes, Your Honor.

[00:16:59] Speaker 03:
What support do you have for that?

[00:17:02] Speaker 03:
Excuse me, Your Honor.

[00:17:03] Speaker 00:
What case support do you have for that?

[00:17:06] Speaker 03:
Your Honor, this is a very unique set of

[00:17:09] Speaker 03:
of facts because of... Is the answer none?

[00:17:14] Speaker 03:
No, it's not.

[00:17:17] Speaker 03:
The case law is the contract interpretation principles that would demonstrate and we believe we've demonstrated in our briefing that would say AWI was entitled as a matter of law to retain the phase three and phase four durations.

[00:17:36] Speaker 03:
It is a contract interpretation right or principle that says

[00:17:40] Speaker 03:
under the contract, we had a right to those 18 weeks and we had a right to the four weeks.

[00:17:45] Speaker 02:
What's the right legal authority you can point us to that stands for that proposition?

[00:17:50] Speaker 02:
That when one portion of the contract is extended, it automatically extends the final completion date.

[00:17:57] Speaker 03:
Right.

[00:17:58] Speaker 03:
We're not, we're not suggesting that that's the case here.

[00:18:02] Speaker 03:
What we're stating is under the contract, AWI was entitled to

[00:18:10] Speaker 03:
14 weeks to perform phase one, two weeks to perform phase two.

[00:18:14] Speaker 03:
The government was entitled to two weeks of move in and move out after phase two.

[00:18:20] Speaker 03:
Then the contract said, AWI was entitled to 18 weeks to complete phase three.

[00:18:26] Speaker 03:
Then the contract says the government is entitled to two weeks move in, move out between phase three and phase four.

[00:18:34] Speaker 03:
And in this case, when the government issued change order number four,

[00:18:39] Speaker 03:
without recognizing that, they unilaterally deleted the 18 weeks of Phase 3 effectively and then terminated AWI for default on this truncated schedule.

[00:18:55] Speaker 00:
Okay.

[00:18:56] Speaker 00:
I think we're out of time.

[00:18:57] Speaker 00:
We'll give you two minutes for remodel.

[00:19:06] Speaker 00:
Thank you.

[00:19:09] Speaker 01:
Please the court.

[00:19:11] Speaker 01:
The board correctly found in accordance with bar 52.24910 that the termination for default was justified by the facts and circumstances because AWI had failed to adequately assure the contracting officer that they could diligently and timely complete the work.

[00:19:34] Speaker 01:
The board summarized its conclusion

[00:19:37] Speaker 01:
in its opinion on reconsideration.

[00:19:41] Speaker 01:
And it stated there that AWI was approximately three weeks behind schedule for phase two, with 50% of the work completed for phase two, and had fallen behind on both phases one and two.

[00:19:56] Speaker 01:
And that AWI had created uncertainties with regard to its mechanical subcontractor.

[00:20:02] Speaker 00:
But the problem is that the board

[00:20:05] Speaker 00:
considered the completion date to be the original completion date rather than what they claim was the completion date extended by 129 days.

[00:20:15] Speaker 00:
So the board's not, correct me if I'm mistaken about this, I don't see that the board made a determination that if there were a 129 day extension that they couldn't complete it within 129 days, right?

[00:20:31] Speaker 01:
The board found that there was a failure to give.

[00:20:34] Speaker 00:
But the board was focusing on the original date, not a date extended by 129 days, right?

[00:20:40] Speaker 01:
Correct.

[00:20:41] Speaker 01:
Correct.

[00:20:42] Speaker 01:
Correct.

[00:20:43] Speaker 01:
But the board also focused, and it was the primary basis of its decision, that there was a failure to provide adequate assurances to the contracting officer.

[00:20:54] Speaker 00:
I don't understand what I mean.

[00:20:59] Speaker 00:
That decision only makes sense if you

[00:21:02] Speaker 00:
are dealing with the original completion date.

[00:21:06] Speaker 01:
We are dealing with the original completion date, but we're dealing... That's the question.

[00:21:10] Speaker 00:
The question, the whole argument here is whether they were automatically entitled to 129 days.

[00:21:16] Speaker 00:
Yes.

[00:21:16] Speaker 00:
Because the board's decision can't very well stand if they were automatically entitled to 129 days of extra time, right?

[00:21:26] Speaker 01:
It's our contention that it still stands because

[00:21:30] Speaker 01:
There was a failure to provide adequate assurances.

[00:21:33] Speaker 01:
That's what the board found, and it credited the testimony.

[00:21:37] Speaker 00:
That's all in the context of the original completion date.

[00:21:42] Speaker 01:
Yes, that's correct.

[00:21:43] Speaker 01:
But here, there's a failure to provide adequate assurances.

[00:21:46] Speaker 01:
And so the case really controls here.

[00:21:49] Speaker 02:
But the adequacy of the assurances, and I'm really just asking the same question that Judge Dyck did with different words, is the adequacy of the assurances depends, does it not,

[00:22:00] Speaker 02:
on how long the contractor had left to do the work.

[00:22:05] Speaker 02:
If the contractor had had three years to do the work, assurances might have been adequate, but if they had three weeks, they wouldn't have.

[00:22:13] Speaker 02:
So doesn't the completion date, isn't that a critical part of determining whether the assurances were adequate or not?

[00:22:20] Speaker 01:
Yes, it is a critical part.

[00:22:22] Speaker 01:
Right.

[00:22:22] Speaker 02:
So it all turns, does it not, on this completion date issue?

[00:22:26] Speaker 02:
Because it's hard for me to see how we could say, well,

[00:22:30] Speaker 02:
The plaintiff may well be right about the completion date, but nonetheless, there were not adequate assurances of completion where the board was making a determination of the adequacy of the assurances with the original completion date in mind.

[00:22:46] Speaker 02:
That's my problem, and I think that's just, I'm just repeating Judge Dyke's question.

[00:22:52] Speaker 01:
I understand the court's concern.

[00:22:54] Speaker 01:
The contracting officer explained

[00:22:57] Speaker 01:
that he had zero confidence in completion of phase two because the contractor, the mechanical contractor, B and K, walked off the job on May 2nd.

[00:23:08] Speaker 00:
But he was referring to the original completion day.

[00:23:15] Speaker 01:
The point I'm trying to make clear is that there was no point forward, no path forward.

[00:23:20] Speaker 01:
There was no mechanical subcontractor lined up.

[00:23:23] Speaker 01:
There was no

[00:23:25] Speaker 01:
a roofing contractor for the work in phase three that had been hired.

[00:23:30] Speaker 01:
And therefore, there was no path forward.

[00:23:33] Speaker 02:
So your argument is that the project was becalmed.

[00:23:36] Speaker 02:
It was just sitting there.

[00:23:37] Speaker 02:
No one was doing any work.

[00:23:38] Speaker 02:
It didn't look like there was any progress now or any idea going forward.

[00:23:45] Speaker 02:
Therefore, it didn't matter how long the completion.

[00:23:47] Speaker 02:
That is essentially... Is that essentially your argument on the non-completion date-based

[00:23:53] Speaker 01:
That is the facts that the contracting officer testified to.

[00:23:58] Speaker 01:
In terms of contract interpretation, what our argument is, is that the court must look to the entire contract.

[00:24:07] Speaker 01:
And the phases that were in Amendment 6 to the solicitation are indeed the phases for the work that were in the original contract schedule that was approved by the government.

[00:24:21] Speaker 01:
But what the other provisions of the contract provide is that if the contractor falls behind, then the contractor has a duty to make up time.

[00:24:33] Speaker 01:
And that's stated in FAR 52.236-15, which is quoted at length in the board's decision.

[00:24:43] Speaker 01:
For example, if the contractor falls behind in phase one and it is the cause of the delay in phase one,

[00:24:51] Speaker 01:
then the contractor has to make up time.

[00:24:54] Speaker 01:
And the contractor, AWI, understood this because, as the court pointed out in that letter in December of 2013, the contractor, AWI, stated, we'll make up time in phase three by working more shifts.

[00:25:09] Speaker 00:
The board made no determination as to whose fault the extended deadline for phase two was attributable to, right?

[00:25:21] Speaker 00:
It was no determination by the board that the 129-day extension that was granted was a result of the contractor fault or the government fault.

[00:25:32] Speaker 00:
Correct.

[00:25:32] Speaker 00:
And the problem was that during... See, I find your argument a little troubling in the sense that you don't seem to be defending what the board said, which, as I understand it, with respect to the 129-day extension, is that they never asked for it in accordance with the contract

[00:25:51] Speaker 00:
Do you agree with that?

[00:25:53] Speaker 01:
Yes, yes, that is indeed part of our argument because there's another provision of the contract that deals with extension of the contract completion date.

[00:26:02] Speaker 01:
And that's quoted in our brief pages 33 to 34.

[00:26:06] Speaker 01:
We quote that provision.

[00:26:08] Speaker 01:
And what the board found is, number one, there wasn't a request that included information demonstrating that there was a delay to the critical path.

[00:26:20] Speaker 01:
and that the government was responsible for delays on the critical path.

[00:26:24] Speaker 01:
And therefore, AWI never demonstrated any entitlement to an extension of the contract completion date.

[00:26:33] Speaker 01:
Therefore, the contract completion date remained as it was in the contract.

[00:26:39] Speaker 01:
It was July 28, 2014.

[00:26:42] Speaker 00:
Did they ever make a request for the 129 days, even without a critical path analysis?

[00:26:49] Speaker 01:
Your Honor, I would point the court to there is a letter, April 24, 2014.

[00:27:00] Speaker 01:
It would be in the appendix 2887.

[00:27:02] Speaker 01:
It is not a request for an extension of time, but it is a statement by AWI that they will not achieve substantial completion until November 22, 2014.

[00:27:18] Speaker 01:
and that this is 136 days beyond the date.

[00:27:22] Speaker 01:
I think that's perhaps what the court was referring to and what opposing counsel was referring to.

[00:27:28] Speaker 01:
It's not a formal request.

[00:27:30] Speaker 00:
It's just a statement that... Do you think the contracting officer was obligated to treat this as a formal request?

[00:27:43] Speaker 01:
I think the way to answer that is that there wasn't a request

[00:27:47] Speaker 01:
for an extension of phase two.

[00:27:49] Speaker 01:
And the contracting officer rejected that request for an extension of phase two, specifically rejected that.

[00:28:01] Speaker 00:
The contracting officer.

[00:28:04] Speaker 00:
This document says we'll be 136 days behind schedule.

[00:28:10] Speaker 00:
My question is, did the contracting officer have to treat that

[00:28:15] Speaker 00:
as a time extension request?

[00:28:21] Speaker 01:
The contracting officer did respond... No, no.

[00:28:25] Speaker 00:
Please answer.

[00:28:26] Speaker 00:
Yes.

[00:28:26] Speaker 00:
Did the contracting officer have to treat that as a time extension request or not?

[00:28:37] Speaker 01:
Well, I guess I'm not sure, but I think you could assume that he did because he denied it.

[00:28:41] Speaker 00:
Denied?

[00:28:42] Speaker 00:
Where did he deny it?

[00:28:55] Speaker 01:
Okay, on May 30th, 2014, in the appendix page 2914 to pages 2915, the contracting office sends a letter and it says that the VA does not agree that AWI is entitled to a time extension of 136 days.

[00:29:15] Speaker 01:
So yes, the court is correct that he did treat that as a time extension.

[00:29:20] Speaker 01:
He denied it.

[00:29:21] Speaker 01:
May 30th, 2014, page 2914 to 2915.

[00:29:29] Speaker 01:
But again, there's a finding by the board that there was never a presentation of an updated schedule and changes to the updated schedule and a showing that delay on the critical path caused by the government entitled AWI to a time extension.

[00:29:50] Speaker 01:
That's a specific finding by the board.

[00:29:53] Speaker 01:
And so therefore, AWI was not entitled to a time extension under the contract provisions.

[00:30:00] Speaker 01:
And we're relying here on the specific article for extension of the contract completion date and also on the specific provisions for 52.236-15, which states that the contractor

[00:30:18] Speaker 01:
When he falls behind, he has to make up time.

[00:30:21] Speaker 01:
And it mentions specifically working additional shifts, working overtime, working on other days which are not work days, all ways to increase the manpower on the job and make up for the delay.

[00:30:36] Speaker 02:
Well, that would apply if there were no changes, right?

[00:30:40] Speaker 02:
But if there are changes, then the contractor has a right to say all these changes have

[00:30:47] Speaker 02:
obviously caused me to have to do more work and therefore the original completion date becomes impossible of achievement.

[00:30:54] Speaker 02:
So that's the situation in which the contractor can legitimately go into the contracting officer's office and say, we need X number of days, right?

[00:31:05] Speaker 02:
So the making up time doesn't apply in that setting, I take it.

[00:31:10] Speaker 02:
If you double the amount of work and you don't change the completion time and you say, you wouldn't be able to say, well,

[00:31:17] Speaker 02:
to work double shifts.

[00:31:20] Speaker 01:
I agree.

[00:31:21] Speaker 01:
But what I would point the court to is that specific article that deals with extension of the completion date.

[00:31:27] Speaker 01:
That specific article says that you have to show delay caused by the government to the critical path.

[00:31:33] Speaker 02:
So we're back to the critical path point.

[00:31:35] Speaker 01:
Yes, we're back to the critical path.

[00:31:37] Speaker 01:
And in fact, that specific article references the changes clause, which Your Honor brought up.

[00:31:43] Speaker 01:
And it says that the time extension has to be justified

[00:31:47] Speaker 01:
under the changes clause, and it has to be justified by showing delay to the critical path caused by the government.

[00:31:54] Speaker 01:
In those circumstances, AWI would be entitled to an extension of the contract completion date.

[00:32:03] Speaker 01:
There was no such demonstration during the progress of this contract.

[00:32:10] Speaker 01:
There was also no such demonstration in the hearing before the board.

[00:32:15] Speaker 01:
And the board found that AWI had never made a properly justified request for an extension of the contract completion date.

[00:32:25] Speaker 01:
Therefore, it remained July 26, 2014.

[00:32:33] Speaker 01:
What I did want to bring out is it's our view that the most pertinent case is the AEC Corporation case.

[00:32:40] Speaker 01:
The board in this case credited the testimony of the contracting officer where the contracting officer explained that there was no path forward.

[00:32:51] Speaker 01:
He had no confidence in the progress of the job.

[00:32:55] Speaker 01:
I would point the court to the testimony at pages 121, 122, 113, 127, 136 where the contracting officer says from his perspective is essentially

[00:33:09] Speaker 01:
doesn't matter whether it's December 2014 or July 2014 because there is no path forward.

[00:33:18] Speaker 01:
And the way the December 2014 date came up is it was a date used by the expert at the hearing.

[00:33:38] Speaker 00:
Thank you.

[00:33:40] Speaker 00:
Two minutes, I think it is.

[00:33:41] Speaker 03:
Thank you, your honor.

[00:33:42] Speaker 03:
In the government's internal, what we call the BBD memorandum, it's the best value memorandum to justify unilateral change order number four, the government essentially determined that AWI was entitled to 129 day time extension as a part of the unilateral change order.

[00:34:05] Speaker 03:
And it says almost verbatim, something to the effect of

[00:34:08] Speaker 03:
justified due to owner changes, design problems, differing site conditions.

[00:34:15] Speaker 03:
That's what brought us all the way to May 12, 2014, for purposes of the new phase two completion date.

[00:34:25] Speaker 03:
These were justified delays, excused delays.

[00:34:28] Speaker 00:
There was nothing here that prevented you from submitting a critical path analysis.

[00:34:32] Speaker 00:
You could have said we couldn't start phase three until we completed phase two.

[00:34:37] Speaker 00:
The phase two deadline had been extended for 129 days, so we automatically have shown a critical path analysis which requires us to get 129 days for the ultimate contract completion date.

[00:34:51] Speaker 00:
There was nothing to prevent you from doing that, right?

[00:34:54] Speaker 03:
That is correct.

[00:34:55] Speaker 03:
There was nothing that prevented AWI from doing that.

[00:35:00] Speaker 03:
The fact remains that the government's unilateral change order number four, without a recognition of the stipulated 18 weeks for phase three and 18 weeks for phase four, essentially remove those unilaterally from the contract as well.

[00:35:21] Speaker 03:
And that's where we believe that the government went afoul.

[00:35:25] Speaker 03:
And so their reliance on that original

[00:35:29] Speaker 03:
late July 2014 completion date renders their default termination under Lisbon incorrect and AWI requests that the decision of the board be reversed and be rendered in its favor.

[00:35:48] Speaker 00:
Thank you, Mr. Sandford.

[00:35:49] Speaker 00:
Thank both counsel and cases.