[00:00:00] Speaker 02:
Our first case for argument today is 21-112 Manhattan Hunt versus Secretary of the Navy.

[00:00:10] Speaker 02:
Mr. Felson, please proceed.

[00:00:15] Speaker 04:
Okay, please report.

[00:00:18] Speaker 04:
I'm Daniel Felson on behalf of Appellant Manhattan Hunt, a joint venture.

[00:00:23] Speaker 04:
Your Honor, the joint venture reasonably interpreted the wet utility cleanse to require Terrapin Utility Services to perform all the wet utility work.

[00:00:35] Speaker 04:
And the joint venture's interpretation is in harmony with the remaining provisions of the contract.

[00:00:40] Speaker 04:
The government issued Solicitation Amendment 4 in order to correct its prior solicitation documents.

[00:00:49] Speaker 04:
And it was the government's responsibility to ensure that Amendment Number 4 was coordinated with the previously issued drawings and specifications.

[00:01:00] Speaker 04:
Now, the government heavily relies

[00:01:03] Speaker 04:
on the fact that the previously issued drawings and specifications only had limited requirements in terms of requiring Terrapin or Toussaint to perform work.

[00:01:14] Speaker 04:
But those drawings and specifications were issued before modification number four to the solicitation.

[00:01:23] Speaker 04:
Then the Navy wrongly concludes that Manhattan's interpretation of the wet utility cleanse in modification number four contradict

[00:01:33] Speaker 04:
the provisions in the drawings and the specifications.

[00:01:36] Speaker 04:
Indeed the Navy says at page 40 of its brief, MHJV's interpretation of the contract unreasonably reads Clint's 001R and 002F in a vacuum contradicting various other contract provisions.

[00:01:52] Speaker 04:
Now that's just plain wrong.

[00:01:54] Speaker 04:
A contradiction between the joint venture's interpretation of the wet utility cleanse and the previously issued drawings and specifications would only exist if the drawings and specifications barred the joint venture from retaining 2C to perform all the wet utility work.

[00:02:19] Speaker 04:
But that's not the case.

[00:02:22] Speaker 03:
Just so I can follow you, are you saying that under the original solicitation, who was responsible for doing the new wet utility work?

[00:02:34] Speaker 03:
It was the contractor, right?

[00:02:36] Speaker 04:
Ignoring... Yeah, just looking at the solicitation.

[00:02:40] Speaker 04:
Well, the contractor, the joint venture is responsible for performing all the work using subcontractors.

[00:02:45] Speaker 03:
Including the new wet utility.

[00:02:47] Speaker 04:
Including new wet utilities.

[00:02:49] Speaker 03:
Okay, what about Amendment 4?

[00:02:51] Speaker 03:
Did Amendment 4 do anything to disturb that?

[00:02:54] Speaker 04:
Yes.

[00:02:56] Speaker 04:
First, Your Honor, even prior to Amendment 4, the drawings and specs, as the Navy points out, did require certain situations that tariff had to be used to perform certain work.

[00:03:09] Speaker 02:
We need existing white utility work.

[00:03:11] Speaker 02:
They had to be used to perform the existing wet utility work.

[00:03:15] Speaker 04:
The work defined in the contracts and drawings before Amendment 4, certain limited work was required to be performed by Terrapin.

[00:03:22] Speaker 02:
Is that the existing wet utility?

[00:03:24] Speaker 02:
Yes, Your Honor.

[00:03:25] Speaker 02:
So the contract required them to perform the existing wet utility work.

[00:03:29] Speaker 02:
And I understood Judge Chen's question to you.

[00:03:31] Speaker 02:
What about the new wet utility work?

[00:03:34] Speaker 04:
Well, I'd answer the question to be, did Amendment 4 of the solicitation change that?

[00:03:40] Speaker 04:
And the answer is yes.

[00:03:45] Speaker 04:
The wet utility cleans both for the AC.

[00:03:48] Speaker 03:
Just from my sanity, can you not say cleaning?

[00:03:50] Speaker 03:
Can you just say line item?

[00:03:52] Speaker 03:
Line item, yes.

[00:03:53] Speaker 04:
Yes, Your Honor.

[00:03:54] Speaker 04:
Yeah.

[00:03:54] Speaker 04:
The wet utility line items that came through the amendment did say all wet utility work to be performed by 2C, Terrapin Utility Services.

[00:04:05] Speaker 04:
The joint venture's reasonable interpretation of that was that all the wet utility work was to be performed by 2C.

[00:04:12] Speaker 04:
And our point, Your Honor, is that that doesn't contradict the language in the previously issued drawings and specifications.

[00:04:21] Speaker 04:
The previously issued drawings and specifications did not say that the contractor could not employ 2C to perform all the wet utility work.

[00:04:33] Speaker 04:
And so the Navy's argument that that contradiction exists simply falls away.

[00:04:40] Speaker 02:
Well, I mean, you could hire them to do it, but it's at whose expense is the question.

[00:04:45] Speaker 02:
So isn't the question at whose expense it's going to occur?

[00:04:50] Speaker 04:
Well, ultimately, yes.

[00:04:53] Speaker 04:
But the central issue is,

[00:04:58] Speaker 04:
did Amendment 4, does Amendment 4 contradict the prior requirements in the drawings and specifications?

[00:05:06] Speaker 04:
And I don't see a contradiction, Your Honor.

[00:05:09] Speaker 04:
The contradiction would only exist if the joint funder's current interpretation that all wet utility work, new and old, new and existing, had to be performed by 2C.

[00:05:23] Speaker 04:
And if the previous issue, drawings and specs,

[00:05:27] Speaker 04:
provided that the contractor alone or with a non-2C subcontractor had to perform the other

[00:05:35] Speaker 03:
what you totally work and it doesn't provide that that's not a contradiction it's consistent and in harmony to conclude that why isn't the government's construction consistent and in harmony with all the provisions given that it's clear under amendment four and the 2008 memorandum

[00:05:59] Speaker 03:
that anything that is connected to or touches or that 2C's owned what utility work, somebody needs to coordinate with 2C to do all that.

[00:06:15] Speaker 03:
And all those requirements for coordinating with 2C

[00:06:20] Speaker 03:
seem to raise a strong inference that it's somebody other than 2C that's going to be working with 2C in order to do that coordination of the new wet utility work with the already existing wet utility work, which is owned by 2C.

[00:06:34] Speaker 03:
And so when you read those provisions in combination with the line item exception, which references the work that 2C is going to be doing and then lays out the kind of work that 2C is going to be doing is,

[00:06:49] Speaker 03:
inspection, design review, tie-ins, removal of any pre-existing wet utility work.

[00:06:58] Speaker 03:
It all seems to fit together pretty neatly that 2C is responsible for anything that touches or deals with their own existing wet utility work, and then of course the contractor is supposed to construct what

[00:07:12] Speaker 03:
the contract you're supposed to construct, which is everything related to building out these new buildings, including any new wet utility work that's needed for that new building.

[00:07:21] Speaker 03:
What's wrong with that understanding of the entire contract, along with the amendments and modifications?

[00:07:26] Speaker 04:
Well, that might have been OK.

[00:07:28] Speaker 04:
That interpretation might have been correct, Your Honor, had the Navy not included the actual language in the wet utility line items, saying that all wet utility work

[00:07:38] Speaker 04:
to be performed by TUC.

[00:07:40] Speaker 04:
It's that language that creates the problem.

[00:07:43] Speaker 04:
It was on the Navy to ensure that Amendment 4 and all the language, Amendment 4 to the solicitation... But we need to read that in context, I guess is the point.

[00:07:52] Speaker 03:
And just in the context of that one provision, it talks expressly about what are the kinds of work that TUC is going to be doing relating to what utility work.

[00:08:01] Speaker 03:
tie-ins, removal of pre-existing stuff, inspecting whoever's work that's going to be creating the new wet utility work.

[00:08:11] Speaker 03:
I mean, why would 2C's work of inspection be itemized like that unless it's going to be itemizing somebody else's work, not itemizing its own work?

[00:08:22] Speaker 04:
Well, that's a coordination issue that was on the government to make sure that that

[00:08:27] Speaker 04:
Amendment 4 was coordinated with the other requirements of the contract.

[00:08:31] Speaker 04:
That's not on the contractor, where we're dealing with a $214 million bid, where the amount at issue is less than 1% of that amount in the heat of bidding a job for the contractor to divine what we call a hidden intent by the government.

[00:08:51] Speaker 04:
At worst, Your Honor, there's conflicting reasonable interpretations.

[00:08:59] Speaker 04:
If Your Honors determine that the Navy's interpretation is a reasonable interpretation, that doesn't mean that the Joint Dementia's interpretation is not similarly reasonable.

[00:09:09] Speaker 04:
If there are two reasonable interpretations, there's an ambiguity.

[00:09:11] Speaker 04:
The board's decision, therefore, was wrong and should be sent back down.

[00:09:15] Speaker 04:
It's the language that the Navy used that has created this issue.

[00:09:20] Speaker 04:
Judge Chen, you pointed out the language in the TUCI memo that was included with Amendment 4 to this solicitation.

[00:09:30] Speaker 04:
And it did provide exactly what you said.

[00:09:32] Speaker 04:
But the issue then arises from the language of the Klin itself.

[00:09:36] Speaker 04:
And we don't see how that contradicts the interpretation

[00:09:44] Speaker 04:
the joint venture.

[00:09:47] Speaker 04:
We don't see how that interpretation contradicts the requirement for 2C to perform all the work.

[00:09:59] Speaker 04:
In addition, Your Honor, if we look at other provisions, you mentioned relocation.

[00:10:06] Speaker 04:
Relocation requires new

[00:10:10] Speaker 04:
materials, new places.

[00:10:13] Speaker 04:
That's part of the work that was required.

[00:10:17] Speaker 04:
That is new work.

[00:10:19] Speaker 04:
And that contradicts how the contracting officer interpreted the provision.

[00:10:25] Speaker 04:
The contracting officers, you may recall, it made a stark paradigm between new and existing work.

[00:10:34] Speaker 04:
And the relocation work, in fact, was new work.

[00:10:39] Speaker 04:
And that's similar to the temporary facilities, which is not even listed.

[00:10:44] Speaker 04:
There was a change order, change order A3.

[00:10:47] Speaker 04:
which included payment for temporary work, new work, which, according to the Navy's interpretation, would not have been covered by Amendment 4.

[00:10:57] Speaker 04:
I see I'm running short on time, Your Honor.

[00:10:59] Speaker 04:
If I could reserve the rest of my time for rebuttal.

[00:11:02] Speaker 01:
Yes, Mr. Falston.

[00:11:03] Speaker 01:
OK, Mr. McAdams.

[00:11:05] Speaker 04:
Thank you, Your Honor.

[00:11:08] Speaker 05:
May it please the Court?

[00:11:09] Speaker 05:
The Court should affirm for three reasons.

[00:11:11] Speaker 05:
First, the contract is replete with provisions that show that the scope of the wet utility work on the project

[00:11:17] Speaker 05:
that had to be performed by 2C was limited.

[00:11:21] Speaker 05:
Second, Manhattan Hunt has still not established how its interpretation of line items 1R and 2F syncs with the other provisions of the contract that demonstrate that Terrapin's required role or 2C's required role was limited.

[00:11:36] Speaker 05:
And third, if Manhattan Hunt's interpretation of the line items were found to be reasonable, it would undermine the principle that the contract has to be read as a whole and in a manner that gives effect to all of its provisions.

[00:11:48] Speaker 02:
Well let's assume that we agree with you that the original contract separated the existing wet utility work and who had to perform everything related to that from the new wet utility work and the contractor was responsible for those expenses.

[00:12:06] Speaker 02:
I mean he pretty much acknowledged that the original contract had there been no amendment would have

[00:12:11] Speaker 02:
delineate a responsibility that way.

[00:12:13] Speaker 02:
So just assume for my purposes that that's the case.

[00:12:17] Speaker 02:
Then the amendment comes along and the amendment on its face, if all that this amendment contained was provision 1R and 2F, nothing else.

[00:12:27] Speaker 02:
There was just an amendment and all it was was those provisions.

[00:12:31] Speaker 02:
Would you agree that it at least then creates an ambiguity over who is responsible for the new wet utility work?

[00:12:39] Speaker 05:
No judge because the amendment is Clear in the way that it carves out Specific functions that can only be performed.

[00:12:50] Speaker 02:
Let's look at one Let's look at the language of 1r which is on 403.

[00:12:53] Speaker 02:
Do you want to get it?

[00:12:55] Speaker 02:
You have it handy You're young enough to probably have it memorized you probably don't need to look at it but page 403 says all wet utility work

[00:13:09] Speaker 02:
to be performed by tariff and utility services, comma, which includes wet utilities to be removed and are relocated, tie-ins, inspections of all wet utility construction, and engineering design review of the construction documents.

[00:13:24] Speaker 02:
So you think that language doesn't at least create an ambiguity over whether Tutsi is required to do the new wet utility work?

[00:13:39] Speaker 05:
No, Judge, because the claim has to be read in conjunction with all of the language in Amendment 4, which was incorporated into the country.

[00:13:48] Speaker 02:
No, but remember, my hypothetical, I'm sorry.

[00:13:50] Speaker 02:
You probably thought that I had moved on, but I hadn't.

[00:13:55] Speaker 02:
My hypothetical is that 1R is the only thing in the Amendment.

[00:13:59] Speaker 02:
If 1R is the only thing in the Amendment, do you then

[00:14:04] Speaker 02:
can see that there's ambiguity, at least, created by 1R as amended.

[00:14:17] Speaker 05:
Possibly, Your Honor, but the contract ultimately incorporated Amendment 4, which does clearly delineate specific tasks that only Terrapin can perform and otherwise talks about

[00:14:34] Speaker 05:
the contractor, ultimately Manhattan Hunt, being able to perform wet utility work on the contract.

[00:14:41] Speaker 02:
Okay, well what else about amendment four then do you think, when read as a whole, makes it clear that one R doesn't mean what the first little part says, which is all wet utility work to be performed by DUTC?

[00:14:57] Speaker 02:
Because all would include existing and future.

[00:14:59] Speaker 02:
So what else is it about the amendment that leads you

[00:15:03] Speaker 02:
to conclude that it doesn't mean all.

[00:15:10] Speaker 05:
So the phrase all wet utility work in the line items is modified by everything that follows.

[00:15:17] Speaker 05:
And when read against the backdrop of Amendment 4, which contemplates the contractor performing new wet utility work, but then specifically calls out that only Terrapin

[00:15:28] Speaker 05:
can perform the design review, the tie-ins to the existing system.

[00:15:33] Speaker 02:
Where does the amendment four say that part, the design items and all that?

[00:15:40] Speaker 02:
The tie-ins.

[00:15:41] Speaker 02:
Where does amendment four say that?

[00:15:42] Speaker 05:
So looking at appendix page 353, Your Honor.

[00:15:50] Speaker 02:
353 is a memo.

[00:15:51] Speaker 02:
It's not the amendment.

[00:15:54] Speaker 05:
excuse me your honor I'm looking at 354 which is attachment one to amendment for the wet utility contract language and the contract includes a provision that says that the entirety of solicitation amendment four was incorporated into the contract okay so attachment one what so what is it in attachment one that makes clear point to me the language certainly your honor so looking at

[00:16:23] Speaker 05:
Appendix page 354, the large paragraph, the second paragraph, that starts with the contractor should.

[00:16:30] Speaker 05:
The second sentence of the paragraph says that if the contractor constructs the connecting facilities, either themselves would be a subcontractor, then the contractor must utilize 2C for inspection services.

[00:16:42] Speaker 05:
and must arrange for 2C to complete the tie-in of the newly constructed facilities to 2C system, which earlier in this language and the accompanying memo on the previous page of the appendix is stated to be owned by TeraPen, or by 2C.

[00:17:01] Speaker 05:
And then later in the paragraph, going back to appendix page 354, later in the paragraph, there is language saying that

[00:17:12] Speaker 05:
That's the second to last sentence of the paragraph that says that 2C must review and approve all wet utility designs before construction started.

[00:17:19] Speaker 05:
So that's the language I'm referring to, Your Honor, that calls out these specific tasks that can only be performed by tariff.

[00:17:27] Speaker 02:
And you're saying that that was incorporated into the contract just like 1R is incorporated in the contract.

[00:17:35] Speaker 05:
Yes, Your Honor.

[00:17:36] Speaker 05:
So 1R and 2F.

[00:17:38] Speaker 05:
were part of solicitation amendment four and the contract specifically incorporated the entirety of the amendment to the solicitation into the contract.

[00:17:50] Speaker 02:
And attachment one is part of that amendment?

[00:17:53] Speaker 02:
It is your honor.

[00:17:55] Speaker 02:
So your argument is these two things

[00:17:59] Speaker 02:
It can't be when it says all what utility work to be performed by a terrapin means they have to perform it all because another part of the same incorporated amendment, it was incorporated at the same time, right?

[00:18:10] Speaker 02:
It's not that attachment one wasn't part of the original contract or incorporated first and then this amendment four came along.

[00:18:17] Speaker 02:
It was all incorporated at the same time, correct?

[00:18:20] Speaker 05:
That's correct, Your Honor, yes.

[00:18:22] Speaker 02:
So the more proper rating, according to the government, would be when it says all wet utility work to be performed by Tootsie, which includes wet utility, dah, dah, dah.

[00:18:31] Speaker 02:
It's sort of enumerating the wet utility work to perform by Tootsie, not saying that all of it has to be performed by Tootsie.

[00:18:39] Speaker 05:
Correct, Your Honor.

[00:18:41] Speaker 02:
So what it really means is even though it uses the words all, it means all of the stuff Tootsie's supposed to do, i.e.

[00:18:49] Speaker 02:
the existing stuff.

[00:18:51] Speaker 05:
Yes, Your Honor.

[00:18:53] Speaker 05:
So the line items refer to the subset of new wet utility work that can only be performed by Terrapin.

[00:19:00] Speaker 05:
And the modification in the line item, the language that follows the phrase all wet utility work in the line items is modifying that first phrase and is, when read in conjunction with the language we're looking at, is listing out or referring to those specific tasks that only Terrapin can perform.

[00:19:22] Speaker 03:
How would you best summarize what is the division of responsibilities between Manhattan, Hunter, and Toosie when it comes to anything related to wet utility work?

[00:19:35] Speaker 03:
I know the contracting officers need to make this clear.

[00:19:39] Speaker 03:
clear distinction in its mind between new and existing.

[00:19:44] Speaker 03:
But as I understand your position, it's something a little more subtle than that, that it's not some bright line between all new things versus all existing things.

[00:19:57] Speaker 03:
Is that right?

[00:19:59] Speaker 03:
So is there a way you can just give me a one sentence summary of the division of the obligations on what utility work between these two companies?

[00:20:07] Speaker 05:
Certainly, Your Honor.

[00:20:08] Speaker 05:
The things that are called out in the contract, both in the attachment language we're looking at and then elsewhere in the specifications and drawings of the contract, can be characterized as things that affect the existing system that is owned by 2C and is within 2C's exclusive purview to work on.

[00:20:27] Speaker 03:
So things that affect 2C's system, its existing wet utility system, then 2C has obligations there.

[00:20:38] Speaker 03:
But anything related to what the construction of the new wet utility work that's going to be part of the build out of the buildings themselves

[00:20:49] Speaker 03:
that's all belongs to Manhattan Hunt to do?

[00:20:54] Speaker 05:
Manhattan Hunt could do that, Your Honor.

[00:20:56] Speaker 03:
But it's their obligation, I guess, is my point.

[00:20:59] Speaker 03:
It's their responsibility under the contract.

[00:21:02] Speaker 05:
Yes, Your Honor.

[00:21:02] Speaker 05:
That's exactly right.

[00:21:03] Speaker 05:
So if, for example, you look at the contract specifications that talk about the

[00:21:11] Speaker 05:
the actual installation of the water lines, the piping for the ambulatory care center and the dental clinic that had to be constructed under the contract.

[00:21:20] Speaker 05:
There's a very detailed paragraph that describes specifically how the contractor is to go about siting the water lines and then specific instructions on how the water lines are supposed to be laid and jointed.

[00:21:33] Speaker 03:
And then in the next paragraph, there's a specific call out that states that Terrapin has to perform the connection of those water lines to the... What about the inclusion in the modification of something called temporary wet utilities work?

[00:21:52] Speaker 03:
That's not really part of 2C's already pre-existing wet utility work, nor is it something that's necessarily part of the final new build out of the building.

[00:22:07] Speaker 03:
And that got included, and so I'm trying to understand

[00:22:14] Speaker 03:
how to think about that, because that particular item doesn't fit neatly in your theory of division of responsibilities between these two companies.

[00:22:25] Speaker 05:
Well, with respect to the temporary wet utilities, Your Honor, there's no dispute between the parties.

[00:22:29] Speaker 05:
As Your Honor noted, temporary wet utilities were something that was covered by a modification to the contract to pay Manhattan Hunt for that portion of work that Terrapin was responsible for.

[00:22:44] Speaker 05:
But even though

[00:22:47] Speaker 05:
The temporary wet utilities, which as your honor pointed out were not mentioned in amendment four of the solicitation, and aren't included as part of the items in light items 1R and 2F, those ultimately being included as something reimbursable that Terrapin was responsible for, still doesn't get Manhattan Hunt.

[00:23:08] Speaker 05:
to the point of its interpretation of the line items being reasonable, meaning, or as they explain it, that the line items require Terrapin to perform all of the wet utility work on the project.

[00:23:22] Speaker 00:
Councilor, help me understand a little bit on your argument.

[00:23:27] Speaker 00:
What's really the problem here?

[00:23:30] Speaker 00:
Who's getting paid?

[00:23:31] Speaker 00:
Is it that

[00:23:33] Speaker 00:
Manhattan should provide you with estimated cost before any work was undertaken?

[00:23:42] Speaker 00:
Or is it that there's been a foul up in the division of labor?

[00:23:46] Speaker 00:
Because I think, to me, the solicitation is pretty clear as to who's to do what.

[00:23:53] Speaker 00:
But I just don't see that that's been breached or that Manhattan undertook work that it was not supposed to.

[00:24:02] Speaker 00:
Terrapin is supposed to do all the work on existing wet facilities.

[00:24:08] Speaker 00:
Any new wet facilities, Manhattan is supposed to coordinate with Terrapin.

[00:24:15] Speaker 00:
And isn't that what happened here?

[00:24:18] Speaker 00:
Explain to me what your problem is.

[00:24:23] Speaker 05:
Yes, Your Honor.

[00:24:25] Speaker 05:
So the overarching requirement was for Manhattan to perform all the work.

[00:24:31] Speaker 05:
And that work needed to be priced as part of line items 1A and 2A.

[00:24:36] Speaker 00:
OK, right there, explain to me the to-be-determined that's within those line items.

[00:24:43] Speaker 05:
Sure, Your Honor.

[00:24:43] Speaker 00:
So when they submitted the proposal, you were not expecting them to give you the estimate.

[00:24:50] Speaker 05:
for the items covered by line items 1R and 2F.

[00:24:53] Speaker 05:
That's correct, Your Honor.

[00:24:54] Speaker 05:
So those things that only Terrapin could perform needed to be priced after the contract was awarded so that the contractor who was going to be performing was identified.

[00:25:04] Speaker 05:
And then they could subsequently engage with Terrapin as the owner of the white utility system to figure out how much their Terrapin, their portion of.

[00:25:13] Speaker 00:
So OK, so where did things go wrong?

[00:25:16] Speaker 05:
So according to Manhattan Hunt, based on what they say is their interpretation that Terrapin was supposed to perform all this wet utility work, their contention is that they did not include the price for any wet utility work as part of line items 1A and 2A.

[00:25:36] Speaker 05:
For sure, in the proceedings of the board, the Navy tried to obtain more detailed pricing information.

[00:25:43] Speaker 05:
The solicitation did not ultimately require that Manhattan provide, basically show its math.

[00:25:50] Speaker 05:
Instead, they just provided the price.

[00:25:51] Speaker 05:
So we tried to obtain that additional information to see if there was no wet befilling work.

[00:25:56] Speaker 05:
Included we don't have an answer on that but ultimately the portion of the white utility work that only terrifying could perform was was reimbursed via the modification that Okay, mr. McAdams your time is up, thank you very much mr. Felson you have some rebuttal time

[00:26:18] Speaker 04:
Chief Judge Moore, you asked some good questions, which I'd like to actually follow up on.

[00:26:24] Speaker 04:
You asked about Amendment 4 and gave some hypotheticals.

[00:26:27] Speaker 04:
The issue is that Amendment 4 to the solicitation does not merely include the contract language that you discussed with Mr. McAdams.

[00:26:39] Speaker 04:
uh... the contract language alone uh... had been alone we'd be in a different situation the issue is that amendment four has in addition to that language the language of the clean itself and it's the language of the clean itself all wet utility work to be performed by terrapin utility services uh... it's it's the incorporation of that language in the amendment that creates the issue

[00:27:05] Speaker 04:
And it was, again, it was the Navy's responsibility to make sure that coordination worked within the amendment itself and in coordination with the drawings and specifications previously issued.

[00:27:15] Speaker 04:
There was nothing.

[00:27:16] Speaker 02:
What's wrong with the government's interpretation, which seems reasonable to me, that all wet utility work to be performed by terrapin, which includes this kind of stuff, here's the line item where the amount would be listed for it.

[00:27:28] Speaker 02:
It's not changing the scope of the work

[00:27:31] Speaker 02:
and saying Terrapin has to perform all wet utility work.

[00:27:34] Speaker 02:
This is just a line item where you put the dollar amounts in that correspond to each of these line item things.

[00:27:41] Speaker 02:
So they're not saying, we're changing the scope.

[00:27:43] Speaker 02:
All wet utility work now has to be performed by Terrapin.

[00:27:46] Speaker 02:
They're just saying, here, stick a price in here for all of the wet utility work under the contract that does have to be performed by Terrapin.

[00:27:54] Speaker 04:
barred the Navy from requiring that all utility work be performed by garrison.

[00:27:59] Speaker 02:
But it doesn't look to me like they did that.

[00:28:01] Speaker 02:
Not when you consider, A, the original contract, and B, the attachments which were included as part of the amendment for.

[00:28:08] Speaker 04:
But Your Honor, the line item itself could have, if that is what the- In a vacuum.

[00:28:15] Speaker 02:
It could have.

[00:28:15] Speaker 02:
But it's not in a vacuum.

[00:28:17] Speaker 02:
It's in conjunction with all the other stuff.

[00:28:18] Speaker 02:
And I'll tell you, I think your position is unreasonable, and theirs is reasonable.

[00:28:22] Speaker 02:
I don't see the ambiguity.

[00:28:23] Speaker 02:
If that item was the only thing, maybe, but it's not.

[00:28:27] Speaker 02:
The contract contains all of this other stuff, and the amendment itself contained all of these other attachments, which all go against you.

[00:28:34] Speaker 04:
The language itself could have said, all work that only 2C may perform.

[00:28:40] Speaker 02:
It could have been clearer, I agree.

[00:28:42] Speaker 02:
But the fact that it wasn't clearer doesn't render it ambiguous.

[00:28:45] Speaker 04:
Right, but it's also not, Your Honor, respectfully, it's not in contradiction with the other language

[00:28:50] Speaker 04:
within the amendment itself.

[00:28:52] Speaker 02:
It's in contradiction with the language and attachment one.

[00:28:55] Speaker 02:
Your interpretation isn't reasonable in conjunction with the language and attachment one.

[00:29:03] Speaker 02:
And that's part of the amendment that was incorporated at the same time.

[00:29:06] Speaker 04:
We find that it's not in contradiction with that other language in the amendment.

[00:29:10] Speaker 04:
It's not in contradiction with the previously issued drawings and specifications.

[00:29:15] Speaker 04:
Our interpretation is not in contradiction with getting paid for temporary wet utilities.

[00:29:22] Speaker 04:
It's not in contradiction with

[00:29:27] Speaker 04:
being paid for new work in terms of relocated facilities.

[00:29:32] Speaker 04:
And so given all that, and that it's on the Navy to ensure that its solicitation is clear for a contractor, again, we're talking about a $214 million bid, where this is less than 1%.

[00:29:46] Speaker 04:
There are reasons why, and which we would get into in discovering why the Navy would want to require a terrapin to perform all the work.

[00:29:58] Speaker 04:
ultimately in terms of saving money and time on the project.

[00:30:05] Speaker 04:
As Your Honor, the joint venture asks that the court reverse and remand back to the ASPCA.

[00:30:15] Speaker 04:
Thank you.

[00:30:16] Speaker 01:
OK.

[00:30:16] Speaker 01:
We thank both counsels.

[00:30:17] Speaker 01:
This case is taken under submission.