[00:00:00] Speaker 02:
The next case for argument is 20-2153, Purnix versus Secretary of State.

[00:00:07] Speaker 02:
Mr. Is it Patton?

[00:00:09] Speaker 02:
Please proceed.

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

[00:00:12] Speaker 04:
And it is Patton.

[00:00:14] Speaker 04:
May it please the court, Douglas Patton, for the appellant.

[00:00:18] Speaker 04:
The excusable delay clause did not give the government the right to coerce my client to remobilize and work in dangerous Ebola conditions that had not abated at the time

[00:00:30] Speaker 04:
it remobilized.

[00:00:32] Speaker 04:
The board committed legal error by ruling that an order from the government to remobilize was necessary for our constructive change claim to proceed.

[00:00:44] Speaker 04:
The board failed to consider the factual allegations that... Council, can you hear me?

[00:00:50] Speaker 01:
This is Judge Crouse.

[00:00:51] Speaker 01:
Can you hear me?

[00:00:52] Speaker 04:
Yes, Your Honor.

[00:00:53] Speaker 01:
Okay.

[00:00:54] Speaker 01:
I just want to get to the heart of it before your time runs out.

[00:00:58] Speaker 01:
How do you get around the excusable delays clause, which says time but no money?

[00:01:06] Speaker 01:
Under that, why does it matter who decided to shut down work?

[00:01:13] Speaker 01:
Could either party have, I mean, I don't understand how you can get around that clause notwithstanding all of the circumstances in this case, which may not have, you know, one could consider not for you to get through.

[00:01:28] Speaker 04:
So, Your Honor, the excusable delay clause does not give the government the right, the forces to go back to work during excusable delay conditions.

[00:01:40] Speaker 04:
The excusable delay clause entitles us to obtain additional time, but it does not require us to go back to work while those dangerous epidemic conditions are ongoing.

[00:01:56] Speaker 01:
challenges here that the government forced you to go back to work when it was still dangerous?

[00:02:00] Speaker 01:
I didn't get that from your brief.

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

[00:02:04] Speaker 04:
That's exactly what is the core of our constructive change plan that it forced us to go back to work during dangerous Ebola conditions.

[00:02:17] Speaker 00:
Exactly how did it force you to go back to work?

[00:02:20] Speaker 00:
I understand you're taking the position that you thought you had to or they might

[00:02:25] Speaker 00:
somehow, or they might prevent you, not have you continue on.

[00:02:30] Speaker 00:
There's some suggestion of that.

[00:02:33] Speaker 00:
But, you know, there's no order from the government here, right?

[00:02:39] Speaker 04:
There's no direct order, but the record indicates that on November 24th, the government wrote my client saying it should make every effort to remobilize the entire workforce

[00:02:52] Speaker 04:
and complete the remaining portion of the project as early as possible.

[00:02:56] Speaker 00:
On February... What's the appendix are you relying on specifically for that?

[00:03:02] Speaker 04:
647 is the affidavit.

[00:03:07] Speaker 00:
Could you repeat that?

[00:03:08] Speaker 00:
What was it?

[00:03:09] Speaker 04:
Appendix 647 states, I and the PSJB felt intense pressure from OBO to remobilize.

[00:03:19] Speaker 04:
The contracting officer's November 24th, 2014 letter to me reflects that pressure.

[00:03:26] Speaker 04:
Then it goes on to state in another letter dated February 24th, 2015, the contracting officer states, the government's position remains that before any time... So, finally, I've got page 647 in front of me, and it looks like... This is Judge Moore.

[00:03:42] Speaker 02:
It looks like a declaration where Mr. Skye...

[00:03:49] Speaker 02:
Yes.

[00:03:51] Speaker 02:
Arm said he felt pressure.

[00:03:54] Speaker 02:
Is that what is, am I missing something?

[00:03:56] Speaker 02:
Is that what he says?

[00:03:57] Speaker 02:
I felt intense pressure to remobilize.

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

[00:04:00] Speaker 04:
And in paragraph four, he quotes the contracting officer's subsequent letter of February 24th saying that before any time extension may be granted, PSJB should remobilize its force and provide all data.

[00:04:17] Speaker 02:
And it also indicates that you're... That's just what's required by the contract, right?

[00:04:21] Speaker 02:
The requirement of the contract is remobilization prior to a time extension, right?

[00:04:28] Speaker 02:
That's not saying get back to work in unsafe conditions, is it?

[00:04:33] Speaker 04:
No, there's no contract clause that says the government cannot review and give additional time before the contract remobilizes.

[00:04:43] Speaker 04:
That's not a requirement.

[00:04:44] Speaker 04:
I'm just using both of the light bulbs.

[00:04:46] Speaker 01:
You can get Appendix 241, which is the letter I think you were referring to as your second exhibit, February 24, 2015.

[00:04:54] Speaker 01:
Yes.

[00:04:57] Speaker 01:
What's the problem with this letter?

[00:04:59] Speaker 01:
I actually have a recollection that you characterized it in ways in your brief that I'm not sure were fair and accurate.

[00:05:05] Speaker 01:
So why don't you tell me what the problem is with this letter?

[00:05:09] Speaker 04:
The problem with this letter is that on

[00:05:13] Speaker 04:
August 6th, 2014, the government wrote to my client and said, we leave the decision for your people to stay or leave for safety reasons solely on your shoulders.

[00:05:27] Speaker 04:
That's at Appendix 193.

[00:05:30] Speaker 04:
Nowhere does it state that if you leave the job, we will consider you abandoning the job.

[00:05:37] Speaker 04:
On February 24th, the contracting officer for the first time

[00:05:42] Speaker 04:
indicates that the decision for us to leave the project to protect our people was an abandonment of the job site.

[00:05:51] Speaker 02:
And the word abandonment... Council, this is Judge Moore.

[00:05:54] Speaker 02:
Where does he say that?

[00:05:55] Speaker 02:
I'm on page 241.

[00:05:58] Speaker 04:
Okay, sure.

[00:05:59] Speaker 04:
Page 241.

[00:06:01] Speaker 01:
Where it says your decision to abandon the site was not made in this direction, but it doesn't hold you responsible for anything.

[00:06:07] Speaker 01:
It didn't charge you with default, right?

[00:06:10] Speaker 01:
That's not what this case is about at all.

[00:06:13] Speaker 04:
But it's implying that you left without authority, that you made a decision that was improper.

[00:06:19] Speaker 04:
You abandoned the site as a highly charged word in contracting, especially government contracting.

[00:06:26] Speaker 00:
And our... Council, what about the fact that the Excusable Delays Clause says that the contractor will be allowed time, not money, for excusable delays?

[00:06:35] Speaker 00:
There's no suggestion here that there wasn't an excusable delay.

[00:06:38] Speaker 00:
None of the language of page A241 suggests that.

[00:06:42] Speaker 00:
They're just saying that before any time extension is granted, you have to remobilize.

[00:06:48] Speaker 04:
Right.

[00:06:49] Speaker 04:
And what they're saying is we were asking for a time extension to recognize the fact that we were off the job for five months due to an uncontested delay caused by the Ebola crisis.

[00:07:03] Speaker 04:
And that refusal to even consider a time extension.

[00:07:08] Speaker 04:
to even consider it before we return to the job with additional... I'm not sure.

[00:07:13] Speaker 01:
The February 24th letter, counsel, simply denies your request for an extension because the request didn't comply with the contractual requirements that you're supposed to submit when you're asking for an extension.

[00:07:26] Speaker 01:
That's all I read in that letter and my understanding of the record is that you did what you were told and you got the extension.

[00:07:34] Speaker 04:
We got the extension after we completed the job.

[00:07:38] Speaker 04:
We got the extension after we returned to the job site.

[00:07:43] Speaker 04:
That's an undisputed fact.

[00:07:45] Speaker 01:
Okay.

[00:07:47] Speaker 04:
And in addition, our case does not depend solely on the excusable delay clause.

[00:07:54] Speaker 04:
It also depends upon the suspension of work clause, which requires the government to give us a suspension of work

[00:08:02] Speaker 04:
when there is an unreasonable period of delay due to no fault of either party.

[00:08:08] Speaker 04:
The board never even addressed that claim.

[00:08:12] Speaker 02:
Is this the constructive suspension of work argument that the board held was waived because it was not timely filed?

[00:08:20] Speaker 04:
Yes.

[00:08:21] Speaker 04:
They say they had no jurisdiction over it because allegedly the facts were not set forth in the claim.

[00:08:29] Speaker 04:
The board made no comparison of our claim

[00:08:33] Speaker 04:
To the suspension of work argument, we made it in our brief below.

[00:08:36] Speaker 04:
We laid out in detail in our brief before this court all of the facts that were in the claim that alleged that there was grounds for granting and suspension of work.

[00:08:49] Speaker 04:
The government refused to even consider it, that we were delayed as a result of it, and that we were entitled to additional compensation.

[00:08:57] Speaker 04:
And the consolidated case

[00:08:59] Speaker 04:
says that the government cannot avoid paying a suspension of work by simply refusing to recognize it.

[00:09:06] Speaker 04:
And that's what happened in this case.

[00:09:08] Speaker 01:
And we were not given... We clearly read the excusable delay clause would bar any monetary recovery, even if this were timely.

[00:09:17] Speaker 01:
How can you get around the language in the excusable delay clause?

[00:09:20] Speaker 04:
Because it's not the exclusive clause in the contract dealing with delay.

[00:09:25] Speaker 04:
the suspension of work clause is another clause that also deals with delay and provides for the allocation of risk when an unreasonable delay occurred through no fault of the contractor.

[00:09:39] Speaker 04:
If in this particular case there was a two to three week stand down while people got

[00:09:47] Speaker 04:
quarantined while people got vaccinated.

[00:09:50] Speaker 04:
And then everybody went to work in two to three weeks.

[00:09:53] Speaker 04:
We would be entitled to an extension of time, but we would not be entitled to a suspension of work because it was not for an unreasonable period of time.

[00:10:03] Speaker 04:
The suspension of work clause gives us the right to recover for an unreasonable delay.

[00:10:09] Speaker 04:
That's not the fault of either party and the government.

[00:10:13] Speaker 02:
You just said something that I need to stop you on.

[00:10:16] Speaker 02:
It's my understanding that the constructive suspension of work claim requires showing that the government caused the delay.

[00:10:23] Speaker 02:
That's from the Lee Ford case.

[00:10:27] Speaker 02:
Am I wrong about that?

[00:10:28] Speaker 02:
You just said it's nobody's fault, but doesn't a constructive suspension of work claim require that the government caused the delay?

[00:10:35] Speaker 04:
No, it doesn't, Your Honor.

[00:10:37] Speaker 04:
And that was the holding and consolidated molded products, which we cite in our brief, which states

[00:10:44] Speaker 04:
the holding in those cases to the effect that where the parties have contracted to allocate the risk of performance interruptions through the medium of a suspension of work clause, the government may not avoid the effect of such allocation by unreasonably refusing to formally declare suspension of work despite actual delays of an unreasonable duration stemming from causes not the fault of either party.

[00:11:08] Speaker 04:
That's the law of this circuit, 600 F second at 798

[00:11:14] Speaker 04:
It does not require fault of the government.

[00:11:18] Speaker 04:
It's intended to cover exactly this kind of situation.

[00:11:23] Speaker 04:
And we were denied the opportunity to even put that case on.

[00:11:26] Speaker 01:
Well, Council, the problem that I'm having is that what I read, so you can respond why you think I'm wrong, what I'm reading as covering this exact situation is the excusable delay clause F81.

[00:11:41] Speaker 01:
It speaks to not allowed time, allowed time, but not money and explicitly cite things such as epidemics, which require the delay of work, right?

[00:11:53] Speaker 04:
Right.

[00:11:54] Speaker 04:
That's correct.

[00:11:55] Speaker 01:
And let me be more directly germane to the question we have before.

[00:12:00] Speaker 04:
First of all, it does not allow the government to force us to go back to work when those conditions are still occurring.

[00:12:08] Speaker 04:
That clause does not give the right to force us to go remobilize.

[00:12:13] Speaker 04:
That's like saying there's a flood out there and we can make you go back and work during the flood.

[00:12:20] Speaker 04:
And that's exactly what we allege factually here.

[00:12:22] Speaker 04:
We were not given the opportunity to present those facts.

[00:12:26] Speaker 04:
It does not give the government the right to go back to force us to go back during the very conditions it says are excusable.

[00:12:33] Speaker 04:
And it does not take away our right to recover for unreasonable delay caused by this epidemic.

[00:12:43] Speaker 04:
That's what consolidated says.

[00:12:44] Speaker 00:
Council, this is Judge Stowe.

[00:12:46] Speaker 00:
I'm just following up on Judge Stowe's question.

[00:12:49] Speaker 00:
I mean, the suspension of work clause says that it operates by an act of the contracting officer, like if the suspension is caused by an act of the contracting officer in the administration of the contract.

[00:13:01] Speaker 00:
You're saying we're supposed to assume that the epidemic is caused by an act of the contracting officer in the administration of the contract?

[00:13:08] Speaker 04:
No, Your Honor.

[00:13:09] Speaker 04:
The clause also states that it also applies when the contracting officer fails to act.

[00:13:18] Speaker 04:
It's not just when the contracting officer acts.

[00:13:21] Speaker 04:
It also applies when there's a failure to act.

[00:13:26] Speaker 04:
It says under subsection B. I see it.

[00:13:28] Speaker 01:
I see it.

[00:13:29] Speaker 01:
So where's the failure to act here?

[00:13:31] Speaker 01:
Failure to grant an extension of time?

[00:13:34] Speaker 04:
The failure to grant us a suspension of work at the time these Ebola conditions occurred.

[00:13:40] Speaker 04:
The failure to say, you're right, these are dangerous conditions.

[00:13:44] Speaker 04:
No workers will be, all your workers want to leave.

[00:13:48] Speaker 04:
There are no hospitals to take care of them.

[00:13:50] Speaker 04:
the flight arrangements all being canceled.

[00:13:52] Speaker 04:
It's at that exact time that the government should invoke the suspension of work laws.

[00:13:58] Speaker 04:
And we actually cited internal government correspondence where they were discussing the fact that the suspension of work laws would be the most proper way to handle it.

[00:14:09] Speaker 04:
We cited that in our briefs below.

[00:14:11] Speaker 02:
Counsel, you're into your rebuttal time.

[00:14:13] Speaker 02:
You can continue, but you know, if you'd like to save some time, you might want to let the government get up.

[00:14:19] Speaker 04:
Yes, I will save some time.

[00:14:22] Speaker 02:
Okay.

[00:14:22] Speaker 02:
Um, Mr. Gillingham, please proceed.

[00:14:26] Speaker 03:
Good morning, your honor.

[00:14:26] Speaker 03:
May it please the court.

[00:14:28] Speaker 03:
Uh, the board did not misunderstand or take any shortcuts in determining there was simply no basis for this claim as a matter of law.

[00:14:34] Speaker 03:
It did so on unconscious, uncontradicted facts, basically concluding there was no change of any sort in a nutshell.

[00:14:42] Speaker 03:
Furnix's general manager, Mr. Skirmes, acknowledged this in August of 2014.

[00:14:46] Speaker 03:
He wrote to his superior, at a minimum, we are contractually covered as epidemics on excusable delay, but per the contract, excusable delays are granted time extensions to no money.

[00:14:56] Speaker 03:
That's in Appendix 58.

[00:14:59] Speaker 03:
So I understand now that the case is basically migrated from one which primarily concerned whether the contracting officer was required to give direction and whether that was a breach of the implied duty.

[00:15:11] Speaker 03:
for some other duty that is not in the context at all.

[00:15:16] Speaker 01:
This is Judge Prost.

[00:15:17] Speaker 01:
When you go through the record here, I don't know what word to use to describe it, but through the series of emails, this contractor is there.

[00:15:27] Speaker 01:
It's a stressful and horrendous situation.

[00:15:30] Speaker 01:
He's seeking guidance from the government, which presumably has other people that work for it that are in the area.

[00:15:37] Speaker 01:
And he's just saying, what do I do?

[00:15:39] Speaker 01:
Help me out.

[00:15:39] Speaker 01:
I mean, I think he must have been afraid

[00:15:42] Speaker 01:
that if he left and abandoned the project, you might go after him for default.

[00:15:47] Speaker 01:
So he was trying to get your concurrence that it's time to leave, and your folks absolutely resisted giving him any assurance, any help, any guidance whatsoever.

[00:15:59] Speaker 01:
Isn't that just the normal way that the State Department behaves under these circumstances?

[00:16:07] Speaker 03:
I will say this, Your Honor.

[00:16:08] Speaker 03:
The State Department acted in perfect conformance

[00:16:11] Speaker 03:
with the contract.

[00:16:12] Speaker 03:
Now, there were many, many meetings that the parties met.

[00:16:15] Speaker 03:
So, what you see in the correspondence is one thing.

[00:16:18] Speaker 03:
And basically, the correspondence reflects that at every term, the contracting officer, both Mr. Thomas and Ms.

[00:16:25] Speaker 03:
McCormick were saying, submit your documents as required by the contract.

[00:16:29] Speaker 03:
This is a fixed price contract, close to be one of the contract made clear that at the price that Purnick chose, it would have to perform and cover all labor,

[00:16:40] Speaker 03:
All, all costs.

[00:16:43] Speaker 01:
Just in the July exchange or the August, a change of emails, this guy seems a little desperate.

[00:16:48] Speaker 01:
He doesn't know what to do, how to get his employees out, what the government is going to require or compel him to do.

[00:16:55] Speaker 01:
And he says, he's looking for instructions from the government and your answer is quite clear.

[00:17:00] Speaker 01:
It's all up to you.

[00:17:02] Speaker 01:
Uh, your, it's all, it says rest solely on your shoulder.

[00:17:09] Speaker 01:
And we're not going to give you any guidance.

[00:17:11] Speaker 01:
We're not going to give you any help or any instruction.

[00:17:13] Speaker 01:
Am I wrong about how I'm reading the record here?

[00:17:17] Speaker 03:
Yes.

[00:17:18] Speaker 03:
As a fixed-price contract, contracting officers always run the risk.

[00:17:22] Speaker 03:
But if they tell contractors what to do, they will then be accused of having changed the contract.

[00:17:28] Speaker 03:
Because at that point, the contractor is spending its own money.

[00:17:31] Speaker 03:
So it's clear that, and basically their witnesses acknowledge this,

[00:17:36] Speaker 03:
that they left by their own direction.

[00:17:38] Speaker 03:
Mr. Thomas was, I think, the first one in a record to talk about this.

[00:17:42] Speaker 03:
This is the August 6, 2014 email where he basically says, we're in no position to tell you what to do.

[00:17:50] Speaker 03:
In fact, the State Department remained on site.

[00:17:53] Speaker 03:
And he said, I can't tell you what to do.

[00:17:54] Speaker 03:
However, I recognize that the safety of your people is most important.

[00:17:58] Speaker 03:
So this decision is on your shoulders.

[00:18:00] Speaker 03:
That's the correct statement of the contract that Mr. Thomas could not have asked.

[00:18:05] Speaker 03:
firm needs to spend its own money, because on a fixed price contract, it puts out the price, and it has to operate within that price.

[00:18:12] Speaker 03:
So he can't tell them to take option A or to option B, because then he'll be accused of having changed the contract.

[00:18:17] Speaker 03:
So the correct answer is, you decide what you have to do.

[00:18:21] Speaker 03:
Now, the parties actually met on many occasions.

[00:18:23] Speaker 03:
They met in October.

[00:18:24] Speaker 03:
They met in September.

[00:18:26] Speaker 03:
They met in January.

[00:18:28] Speaker 03:
They were constantly meeting.

[00:18:29] Speaker 03:
There was lots of back and forth.

[00:18:30] Speaker 03:
But basically, what they were doing was monitoring the site.

[00:18:33] Speaker 03:
Perhaps the culminating meeting was in January of 2015 where there was a trip report and the staff from Pernix, you know, went to the site.

[00:18:46] Speaker 03:
They met with a representative of the CDC.

[00:18:48] Speaker 03:
They met with a representative of the Post.

[00:18:50] Speaker 03:
That's the diplomatic people on site and the project people.

[00:18:55] Speaker 03:
And there was a discussion of what's happening.

[00:18:57] Speaker 03:
At that time, the trip report acknowledges that things are getting better.

[00:19:01] Speaker 03:
In an October 8th letter,

[00:19:03] Speaker 03:
founded Appendix 199, Pernick said, we'll return when conditions are better.

[00:19:11] Speaker 03:
When they finally decided to return on January 2nd at Appendix 5130 and 5131, they said there are multiple reasons why we're going back.

[00:19:19] Speaker 03:
The TRIP report itself at 5105 said, we want to return as quickly as possible.

[00:19:25] Speaker 03:
When they eventually did return, in internal emails they said, basically worse the effect

[00:19:33] Speaker 03:
Our return cannot be conditioned on the approval of the State Department.

[00:19:37] Speaker 03:
This will interfere with our contractual and financial interests, basically.

[00:19:42] Speaker 03:
So they recognize that they had to get back as quickly as possible.

[00:19:45] Speaker 03:
As a result, the claim that Mr. Patten discussed, which is one when the contracting officer refuses to give additional time, after additional time is properly requested, in a case like that, yes, the contracting officer can be held liable.

[00:20:00] Speaker 03:
That's not the claim you see before you.

[00:20:02] Speaker 03:
The claim you have before you or the contracting officer had before her was one of the carrying costs between August and March when Permanence returned.

[00:20:17] Speaker 03:
So during that time, for example, the executive staff was still working.

[00:20:21] Speaker 03:
I presume Mr. Skirmes was paid, for example, and Mr. El-Fawal and the others were being paid, and their salaries are in there.

[00:20:28] Speaker 03:
And that's during a time when the job is not being progressed.

[00:20:31] Speaker 03:
There was, I think, a security guard or something on staff because of a generator that was being operated to maintain power at the site.

[00:20:40] Speaker 03:
There was some storage costs that were being undertaken.

[00:20:44] Speaker 03:
This all was a consequence of Pernix acting on its authority and its decision to demobilize.

[00:20:53] Speaker 03:
And no one's criticizing that decision at all.

[00:20:56] Speaker 03:
No one in the State Department criticized that decision.

[00:20:59] Speaker 03:
And so these are simply the costs of being on a pause between the time when they finished work in August of 2014 and the time they resumed work again in March 2015.

[00:21:07] Speaker 03:
Now, the REA and the claim also includes time for money, request for money for added costs.

[00:21:15] Speaker 03:
So, for example, some people don't like working on those circumstances.

[00:21:18] Speaker 03:
They had to pay them more.

[00:21:20] Speaker 03:
They beefed up their medical staff with that medical,

[00:21:25] Speaker 03:
the medical and whatever it was, the clinic there was basically required by the cap, by their own health plan anyway.

[00:21:32] Speaker 03:
Of course, when there was a hospital on site, it could have taken its people.

[00:21:36] Speaker 03:
There was no need for it to have really much of a facility at all.

[00:21:40] Speaker 03:
When an infirmary was not required, they had to have more serious plans.

[00:21:43] Speaker 03:
Council, this is under their authority hold.

[00:21:46] Speaker 03:
Council, can you hear me?

[00:21:48] Speaker 00:
I want to ask about the constructive suspension of work claim.

[00:21:52] Speaker 00:
Just one quick question.

[00:21:53] Speaker 00:
I want to know...

[00:21:55] Speaker 00:
facts, if any, did Pernix need to prove that were not operative facts relevant to the other legal theories that it raised in its certified claim?

[00:22:08] Speaker 03:
So as Pernix itself has acknowledged, the consolidated molded product in that case required four or five

[00:22:24] Speaker 03:
Let me just check my notes real fast here.

[00:22:27] Speaker 03:
All right.

[00:22:27] Speaker 03:
Sorry for the delay.

[00:22:29] Speaker 03:
So the first thing I had to prove was the contractor encountered a delay excusable under the contract.

[00:22:36] Speaker 03:
Well, we now know the furnace now having put in its claim or its schedule update in April of 2015, which was acknowledged in May of 2015.

[00:22:51] Speaker 03:
Later, in August of 2015,

[00:22:54] Speaker 03:
Peronix put in a formal request that the contract be changed, REA4, and about a month later in September, that was granted.

[00:23:03] Speaker 00:
So whenever they asked for something... I'm not following you.

[00:23:06] Speaker 00:
Sorry.

[00:23:07] Speaker 00:
I'd like to know what specific facts they were, if any, would they have had to have alleged in order to prove their new suspension of work claim that maybe they had not pled before?

[00:23:23] Speaker 00:
So do you have specific facts that you can identify for me?

[00:23:27] Speaker 03:
Yes, Your Honor.

[00:23:27] Speaker 03:
So one of the things they would have had to allege that they made a timely and sufficient request for an extension of the contract schedule.

[00:23:34] Speaker 03:
As I said, that didn't occur on the scheduling side until April 2015.

[00:23:38] Speaker 03:
They had already returned.

[00:23:40] Speaker 03:
And on the contracting side until August of 2015, those are uncontroverted facts.

[00:23:44] Speaker 03:
The other thing they would have had to allege is that the government denied the contractor's request or failed to act within a reasonable time.

[00:23:51] Speaker 03:
Again, the schedule request was put in April.

[00:23:53] Speaker 03:
A month later, it was granted.

[00:23:54] Speaker 03:
The contract change was put in August.

[00:23:57] Speaker 03:
And the next month, in September, it was granted.

[00:23:59] Speaker 03:
Then they would have to allege the government insisted on completion of the contract within a period shorter than the period the contractor would be entitled by taking into account the period of excusable delay.

[00:24:09] Speaker 03:
So when all these things took place, because of the May 2014 modification of the contract, the contract deadline is January 15, 2015.

[00:24:19] Speaker 03:
Before that modification, it had then

[00:24:21] Speaker 03:
like November of 2014, you will not find no allegations whatsoever and no documents whatsoever where the contracting officer never said, hey, your deadline is January 15th, 2015.

[00:24:33] Speaker 03:
What you have to do is meet that deadline.

[00:24:36] Speaker 03:
And the next thing they would have had to do, and they can't allege that, they don't allege that.

[00:24:40] Speaker 03:
And then they'd have to prove they required to expend extra resources to compensate for the lost time and remain on schedule.

[00:24:47] Speaker 03:
There's no allegation that they ever tried to remain

[00:24:50] Speaker 03:
on the schedule that required them to complete on January 15, 2015.

[00:24:54] Speaker 03:
They basically proposed the schedule once they came back in March to finish by September 30, I think it was, in 2015, and that was granted.

[00:25:03] Speaker 03:
And that's the schedule they worked to.

[00:25:05] Speaker 03:
So the work they did was to work to their schedule during the time that the excusable delay had been granted.

[00:25:11] Speaker 03:
It was not cost associated with working to a schedule which the contracting officer held them to, i.e.

[00:25:17] Speaker 03:
the January 15, 2015,

[00:25:20] Speaker 03:
So none of those things were alleged.

[00:25:22] Speaker 03:
Does that answer your question, Your Honor?

[00:25:26] Speaker 02:
Yes.

[00:25:34] Speaker 02:
Okay.

[00:25:35] Speaker 02:
If there's further... Hello?

[00:25:39] Speaker 02:
Can you hear me?

[00:25:40] Speaker 03:
Yes, I can, Your Honor.

[00:25:41] Speaker 03:
Given the court's questions, it doesn't seem like... I mean, you know, they talk about cardinal change.

[00:25:45] Speaker 03:
We rely on a brief for that.

[00:25:47] Speaker 03:
I think the court is adequately addressed.

[00:25:49] Speaker 03:
whether they were under a threat or not, but I'll just say briefly that a lot of the potential evidence, a lot of the temporary evidence that we cited on brief, identified that they did not believe they were under any threat to return whatsoever.

[00:26:03] Speaker 03:
So among other things, for example, at page 6425 of the appendix, Mr. Sperny testified, we continually got the feeling that OBO was not going to give us direction, but they understood the safety of our people was we had to take care of our people.

[00:26:16] Speaker 03:
Um, Mr. Elso at Fort Watt, um, at, um, Page.

[00:26:23] Speaker 02:
All right.

[00:26:23] Speaker 02:
Mr. Gillingham, you, you just probably is a little bit of overkill at the moment.

[00:26:28] Speaker 02:
Why don't we let Mr. Patton?

[00:26:29] Speaker 03:
I understand.

[00:26:30] Speaker 03:
I certainly will.

[00:26:32] Speaker 03:
Thank you so much, Your Honor.

[00:26:36] Speaker 04:
Your Honor, uh, Mr. Gillingham did not answer your question.

[00:26:39] Speaker 04:
He was referring to case law dealing with constructive acceleration claims.

[00:26:44] Speaker 04:
We're making a suspension of work plan.

[00:26:47] Speaker 04:
elements that he quoted to you were constructive acceleration elements.

[00:26:51] Speaker 04:
We did allege all of the facts necessary for a constructive suspension of work claim.

[00:26:57] Speaker 04:
If you looked at appendix 416 through 422, we allege all the facts indicating that we had a basis to demobilize the job.

[00:27:09] Speaker 04:
We were not given direction from the government.

[00:27:11] Speaker 04:
They refused to give us any direction.

[00:27:13] Speaker 04:
we allege all the facts indicating that we were delayed by the Ebola outbreak.

[00:27:19] Speaker 04:
In fact, the government granted us an extension of time for the Ebola outbreak, which is recited in the decision by the board at page seven.

[00:27:31] Speaker 04:
So by the time we got our claim submitted on January 17th, 2017, the government already agreed that we were entitled to 195 days of delay

[00:27:43] Speaker 04:
plus the earlier 65 days of delay, to obtain an extension of time.

[00:27:49] Speaker 04:
So council did not answer your question as to what facts didn't we allege that would allow us to obtain a constructive suspension of work plan.

[00:28:00] Speaker 04:
In addition, in the record below, at page 683, we quote a government official on August 8 saying, the suspension of work is the most appropriate,

[00:28:13] Speaker 04:
also referred to legal weighing in.

[00:28:16] Speaker 04:
And then there's an August 11th, 2014 email.

[00:28:20] Speaker 04:
The contracting officer should try to negotiate a suspension agreement under which the government accepts part, but not all of the costs.

[00:28:28] Speaker 04:
So the facts were there.

[00:28:31] Speaker 04:
We are not saying that our constructive change claim

[00:28:38] Speaker 04:
is based upon us being forced to be mobilized during dangerous Ebola conditions.

[00:28:44] Speaker 04:
That's a disputed factual issue.

[00:28:47] Speaker 04:
We allege that the threat that calling us that we abandoned the job, that we're not going to be allowed any time till we get back to the job.

[00:28:54] Speaker 04:
Those are hotly contested disputed facts, which the board never addressed.

[00:29:00] Speaker 04:
And we should be allowed to put that case on your honor.

[00:29:05] Speaker 02:
Okay, I thank both counsel for their arguments.

[00:29:07] Speaker 02:
This case is taken under submission.