[00:00:00] Speaker 04:
Good morning, ladies and gentlemen.

[00:00:02] Speaker 04:
We have four argued cases this morning and two that won't be argued.

[00:00:06] Speaker 04:
First case is 21-1749, Lobolo Watts Constructors versus Secretary of the Army.

[00:00:16] Speaker 04:
Mr. Grouty, please proceed.

[00:00:18] Speaker 03:
Thank you, Your Honor.

[00:00:22] Speaker 03:
Good morning.

[00:00:24] Speaker 03:
This case involves

[00:00:26] Speaker 03:
a project called the Wideband Satellite Communications Operations Center at Fort Meade.

[00:00:36] Speaker 03:
This was being built for the National Security Agency.

[00:00:44] Speaker 04:
Let's get right to the issue.

[00:00:47] Speaker 04:
We're talking about EP601, right?

[00:00:51] Speaker 03:
That's correct, Your Honor.

[00:00:53] Speaker 04:
And your argument is that it was blatantly ambiguous and that contra profferentum applied, but

[00:01:06] Speaker 04:
What's wrong with the conclusion that it's technically ambiguous and you didn't inquire about it?

[00:01:16] Speaker 04:
When I look at note two, it talks about furnishing and installing other items, but doesn't talk about circuit breakers.

[00:01:28] Speaker 04:
On the other hand, which favors you, on the other hand, if I look at note four,

[00:01:33] Speaker 04:
It says circuit breaker installed shall be compatible with the existing switch gear, which implies that the circuit breakers are yet to be installed and are required to be installed.

[00:01:49] Speaker 04:
So why doesn't that mean that that document is patently ambiguous and that you had a duty to inquire but didn't?

[00:02:01] Speaker 03:
Number one, Your Honor,

[00:02:03] Speaker 03:
We have to go back, if I may, to the original EP601, which is found in appendix 10478.

[00:02:22] Speaker 03:
That is dated November of 2010 in small print.

[00:02:30] Speaker 03:
And what you see there is no node 4, but you see in bold print the wiring of node 2 furnishes all those conductors energizing the circuit breaker in the spare cubicles 5 and the spare cubicles 10.

[00:02:59] Speaker 03:
That was in place a month before EP 603, 601 was amended, which is the note we're talking about.

[00:03:16] Speaker 03:
That is dated in small, in the revised notes, dated December of 2010, a month later.

[00:03:29] Speaker 03:
In that, you have to understand what a coordination study is.

[00:03:36] Speaker 03:
A coordination study is that basically you're trying to minimize any faults on the system.

[00:03:50] Speaker 03:
And what that was, that note, the purpose of that note,

[00:03:55] Speaker 03:
to a reasonable contractor who is aware of the circumstances under the coordination study is to include the circuit breakers, the main circuit breakers coming out of the switchgear that's producing the power into your short circuit study.

[00:04:21] Speaker 03:
The big item of why it's not even ambiguous, Your Honor, is the fact that there's no description of that existing short-circuit study that the parties at least suppose was in existence in cubicles, spare cubicles five and spare cubicles ten.

[00:04:52] Speaker 03:
Basically, a switchgear is a bunch of cubicles that are put together that produces the power.

[00:05:03] Speaker 03:
The idea of a spare cubicle is that you're going to have a spare circuit breaker.

[00:05:10] Speaker 03:
You're going to have spare relays built in.

[00:05:13] Speaker 03:
You're going to have turn transformers built in, which is

[00:05:20] Speaker 03:
when you need an additional power.

[00:05:23] Speaker 04:
Council, it looks like you have a story to tell, but you're not indicating, not responding to the question about BP601.

[00:05:32] Speaker 03:
Well, I am, Your Honor.

[00:05:35] Speaker 03:
There's nothing ambiguous about it.

[00:05:38] Speaker 03:
It says that the circuit breaker is installed in the

[00:05:50] Speaker 03:
They are cubicles, 5 and 10.

[00:05:53] Speaker 03:
That's the plain language is installed.

[00:05:57] Speaker 03:
Now, it also says that it must be coordinated with the rest of the switch gear.

[00:06:04] Speaker 03:
The rest of the switch gear means that it has to have the same settings

[00:06:11] Speaker 03:
and the right settings with the relays, the right settings with the current transformers that are already installed in the switch gate.

[00:06:24] Speaker 03:
The coordination study that actually was when it was identified as to what the circuit breakers were.

[00:06:34] Speaker 03:
which took four months to procure, to identify what those circuit breakers were and to procure.

[00:06:42] Speaker 03:
Once those circuit breakers were in fact identified in May of 2013, which is years later, and it was part of the short circuit study, it produced an incompatibility

[00:07:02] Speaker 03:
And then the government realized that they have to change the relays that are embedded into these chemicals, five and, well, in this case, five and 11.

[00:07:20] Speaker 04:
Council, what about the bold 52?

[00:07:26] Speaker 03:
The bold 52, if you look at the original drawings, it was bold because you have to energize the circuit breaker.

[00:07:37] Speaker 03:
You have to energize that, all right?

[00:07:40] Speaker 03:
And that, the circuit breaker is lying there as a spare circuit breaker.

[00:07:46] Speaker 03:
It's a pullout circuit breaker.

[00:07:48] Speaker 03:
I'm an engineer also that gets pulled out

[00:07:54] Speaker 03:
of the drawer or the cabinet.

[00:07:58] Speaker 03:
And again, you basically have to connect those circuit breakers in order to energize.

[00:08:10] Speaker 03:
And that's why you have the bold lines.

[00:08:13] Speaker 03:
The bold lines are new work.

[00:08:15] Speaker 03:
The board was actually right.

[00:08:17] Speaker 03:
The bold lines are new work.

[00:08:19] Speaker 03:
But the whole idea is the original drawings back when the job was issued back in November of 2010, those lines were bolded without note number four.

[00:08:36] Speaker 03:
Note number four, if you look at those drawings side by side, note number four was added.

[00:08:48] Speaker 03:
a month later.

[00:08:49] Speaker 01:
And the idea of... What is your best evidence that you have that LaBoba Watts understood when bidding that the circuit breakers were already installed?

[00:08:59] Speaker 03:
Okay.

[00:09:02] Speaker 03:
One is that for the first two years, there was no submittal.

[00:09:07] Speaker 03:
You had to submit all your electrical and mechanical components way before the construction started.

[00:09:18] Speaker 03:
There was nothing on the submittal data.

[00:09:23] Speaker 03:
The government never asked for any submittals on the circuit breakers.

[00:09:28] Speaker 03:
It was not until January of 2013 when the parties or I'll say the government, the core people,

[00:09:42] Speaker 03:
as well as the contractor was allowed to visit the National Security Agency site, which had the original switch gate, building 8905.

[00:09:55] Speaker 03:
And that January of 2013, two years after these drawings were issued, they discovered that these circuit breakers were existing

[00:10:10] Speaker 03:
but they were being used by the National Security Agency for other purposes.

[00:10:16] Speaker 03:
And it was the National Security Agency that says, oh, no, no, wait a minute.

[00:10:21] Speaker 03:
You, Mr. Contractor, you have to get these additional circuit breakers.

[00:10:26] Speaker 03:
To answer your question, Your Honor, there was nothing in the schedule about it.

[00:10:33] Speaker 03:
There was nothing in the submittals about it.

[00:10:37] Speaker 03:
I clerked on the court when it was, Jones was the chief judge, I clerked for Davis, and I clerked for Whitaker.

[00:10:49] Speaker 03:
I go back a long time.

[00:10:50] Speaker 03:
And what they all always stated about, I'll say 60 years ago, I don't remember, back in 65 or 65 years ago, they stated,

[00:11:05] Speaker 03:
The best interpretation is to see how the parties act.

[00:11:09] Speaker 03:
And that's how the parties acted for two years.

[00:11:13] Speaker 03:
No, this was so critical.

[00:11:16] Speaker 03:
Nobody was alerted to the problem until they visited this secured site and they found out

[00:11:26] Speaker 03:
Oh, the agency, the using agency is using the circuit breakers that is in spare compartments five and ten while now it was five.

[00:11:42] Speaker 03:
So you can use 11 and five was on the floor for other purposes.

[00:11:46] Speaker 00:
Mr. Browning, this is Judge Bryson.

[00:11:50] Speaker 00:
If we rule against you on the circuit breaker issue,

[00:11:56] Speaker 00:
and decide that the circuit breakers were Lobolo's responsibility, can Lobolo prevail on the Warner and Warch pass-through claims?

[00:12:07] Speaker 03:
Yes, Your Honor.

[00:12:09] Speaker 00:
Okay.

[00:12:09] Speaker 00:
And in light of, as I read it, the requests to the contracting officer on behalf of Warner and Warch appear to be limited to the circuit breaker delay issues.

[00:12:24] Speaker 00:
And I'm looking at the claims at 2158 and 996 of the Joint Appendix.

[00:12:31] Speaker 03:
And you're absolutely right, Your Honor.

[00:12:34] Speaker 03:
What Arch and Warner were saying is that we can't start up and test our mechanical and electrical systems.

[00:12:45] Speaker 03:
without permanent power.

[00:12:47] Speaker 03:
You can't use temporary power because you avoid all your equipment warranty, okay?

[00:12:53] Speaker 03:
So you have to have permanent power to start it up.

[00:12:56] Speaker 03:
It takes about three months to operate it, to test it, and commission, okay?

[00:13:02] Speaker 03:
So it is critical.

[00:13:04] Speaker 03:
What they were saying is it's a lack of permanent power.

[00:13:09] Speaker 03:
So the first issue was these

[00:13:14] Speaker 03:
A circuit breaker.

[00:13:17] Speaker 03:
The circuit breakers delayed the job between February of 2014, a month after they went out there, and May, the end of May of 2013, I'm sorry, it's all 13.

[00:13:37] Speaker 00:
Right, but if the circuit breakers were the responsibility of the BOLO,

[00:13:42] Speaker 00:
then all that delay is not attributable to the government, right?

[00:13:47] Speaker 03:
The four months.

[00:13:48] Speaker 03:
But what is attributable to the government is the delays that resulted from having

[00:13:58] Speaker 03:
a faulty relay.

[00:14:00] Speaker 03:
The relays could not work in a coordinated study.

[00:14:03] Speaker 00:
But the relays were not part of the relays.

[00:14:06] Speaker 00:
As I read the requests for payment to the contracting officer, that did not include the relays.

[00:14:13] Speaker 00:
It was limited to the circuit breakers and the delay attributable to the circuit breakers, right?

[00:14:18] Speaker 03:
No, not at all, Your Honor.

[00:14:22] Speaker 03:
The relays could not be set properly to work in a coordinated fashion.

[00:14:29] Speaker 03:
So the relays had to be replaced by the government.

[00:14:32] Speaker 03:
The government acknowledged that that was their responsibility.

[00:14:37] Speaker 00:
Now the relays were the subject, as I understand it, of mod 16, right?

[00:14:42] Speaker 03:
No.

[00:14:43] Speaker 03:
The relays were

[00:14:48] Speaker 03:
And Mod 16 is wrong.

[00:14:51] Speaker 03:
Mod 16 was only having a third-party testing.

[00:14:56] Speaker 03:
For $2,000, they had to test the new relays, the new relays with third-party testing.

[00:15:05] Speaker 03:
It is, I think it was a BD.

[00:15:16] Speaker 03:
as part of 16.

[00:15:18] Speaker 03:
That's all it was.

[00:15:19] Speaker 03:
It was $2,000 for the third-party testing.

[00:15:22] Speaker 00:
Not 16, as I recall, was about $35,000, right?

[00:15:28] Speaker 03:
Right, but it was other work too.

[00:15:30] Speaker 03:
Besides, it was only a couple of thousand dollars.

[00:15:34] Speaker 03:
It had no time extension whatsoever.

[00:15:36] Speaker 03:
The parties agreed that it had no time extension.

[00:15:41] Speaker 03:
Where there was an agreement,

[00:15:44] Speaker 03:
was the contract, let me get my numbers right, was the contract DX?

[00:15:56] Speaker 00:
Yeah, Mod 30, also called DX.

[00:15:59] Speaker 03:
Mod 30.

[00:16:00] Speaker 03:
That's where the parties sat down like they were supposed to on the 3.7 of the scheduling clause.

[00:16:12] Speaker 03:
And 3.7 of the scheduling clause says, after the delays occurred, which ended in December of 2013, just before Christmas, at the end of the year, December 2013, they finally got permanent power.

[00:16:32] Speaker 03:
All right?

[00:16:32] Speaker 03:
The party sat down, according to the scheduling clause, looked at the schedules, did a time impact analysis,

[00:16:40] Speaker 03:
and agreed that there was a delay of 212 calendar days because of the government fault.

[00:16:50] Speaker 03:
The government fault on the relays, which is seven months of making an appraisal for the relays, for the phasing was wrong.

[00:17:02] Speaker 03:
That means that where the connections were was wrong.

[00:17:07] Speaker 03:
And they had a specific current decision.

[00:17:11] Speaker 04:
Councilman, you're well over your allotted time.

[00:17:14] Speaker 04:
Why don't we hear from the other side now?

[00:17:17] Speaker 04:
Mr. Volk.

[00:17:21] Speaker 02:
May it please the court.

[00:17:22] Speaker 02:
The board's decision should be affirmed.

[00:17:25] Speaker 02:
The Bolo Watson's relies on an unreasonable interpretation of the contract.

[00:17:31] Speaker 02:
It wants to read in the noted issue the word installed

[00:17:36] Speaker 02:
in isolation.

[00:17:37] Speaker 02:
But under LeBolo Watson's reading of the word installed, that sentence doesn't make sense.

[00:17:43] Speaker 02:
The sentence refers to making sure that the circuit breakers are compatible with, it says, shall be compatible with existing switchgear.

[00:17:55] Speaker 02:
If the circuit breakers

[00:17:56] Speaker 02:
were just like the existing switchgear, an upstream component that was not within the contractor's scope of work, there wouldn't be any way in which the contractor could make sure that they're compatible between the two.

[00:18:10] Speaker 02:
So the note just doesn't make sense if it's read the way LeBola wants to read it.

[00:18:17] Speaker 02:
If extrinsic evidence were consulted, it doesn't assist LeBola Watts.

[00:18:23] Speaker 02:
When the issue came up, LeBola Watts took the position, the same position as the government with LeBola Watts' subcontractor.

[00:18:31] Speaker 02:
LeBola Watts told the subcontractor, we purchased from you these exterior utilities.

[00:18:37] Speaker 02:
You need to do them.

[00:18:38] Speaker 02:
You need to supply these circuit breakers because they're within the contract scope of work, our scope of work.

[00:18:43] Speaker 02:
The Volawatts only changed its position later, actually during the course of the board proceedings, to accommodate the subcontractor's claims.

[00:18:57] Speaker 02:
And even if there were some ambiguity that wasn't resolved by extrinsic evidence, it is an obvious and glaring ambiguity if there is one at all, and we don't think there is.

[00:19:12] Speaker 02:
So, the Peyton Ambiguity Doctrine would apply, and even if the Peyton Ambiguity Doctrine doesn't apply, the Doctrine of Contra Preferential can't apply because, as the board found, and the Boulder-Watts fails to really genuinely challenge, it didn't, the Boulder-Watts didn't establish that it relied on its own interpretation of this contract

[00:19:36] Speaker 02:
provision at the time of its bid.

[00:19:38] Speaker 02:
In fact, the evidence is to the contrary, where when the issue came up, LeBola Watts had the same understanding, at least as it expressed to its subcontractor, as the government.

[00:19:49] Speaker 01:
Council, what's your understanding of the scope of LeBola Watts' delay claims?

[00:19:55] Speaker 02:
So, the delay claims are the subcontractor pass-through claims.

[00:20:00] Speaker 02:
And as to the scope that was presented to the contracting officer originally, those claim letters talk about the circuit breakers.

[00:20:11] Speaker 02:
And that's it.

[00:20:12] Speaker 02:
And, you know, the government's response was it's not clear how this even has anything to do with the mechanical contractor, the HVAC subcontractor.

[00:20:22] Speaker 02:
But in any case, in the proceedings, in the board proceedings, the Boulder Watts, and just before the court in its argument just now, the Boulder Watts doesn't make that clear distinction.

[00:20:33] Speaker 02:
It doesn't really distinguish between the circuit breakers versus the relays,

[00:20:38] Speaker 02:
and other things that were involved in getting the permanent power.

[00:20:42] Speaker 02:
And that was part of the problem for the Ebola watch.

[00:20:45] Speaker 02:
As the board noted, it doesn't break out the different causes by day.

[00:20:51] Speaker 02:
It just treats this whole thing as one big permanent power delay, which it says the government's responsible for, when in fact what the board found

[00:21:00] Speaker 02:
was that for every day that this project was delayed, there was a day of delay attributable to the contractor.

[00:21:08] Speaker 02:
And so that's an independent reason.

[00:21:10] Speaker 02:
The board found 353 days, the entire duration of the delay in the project was attributable to contractor caused delays.

[00:21:18] Speaker 02:
It's an independent reason why there can't be any recovery

[00:21:22] Speaker 02:
for compensable delay, if it was concurrent with a contractor-caused delay, there's no possibility of the contractor being entitled to recover compensation.

[00:21:32] Speaker 02:
And there's no real challenge to that in this case, that there was that concurrent delay, as the board found.

[00:21:38] Speaker 02:
Another thing is not... Mr. Paul?

[00:21:40] Speaker 00:
Oh, I'm sorry.

[00:21:41] Speaker 00:
Go ahead and finish your point.

[00:21:42] Speaker 00:
I have a question, though, when you finish.

[00:21:44] Speaker 02:
I just wanted to make another point that the scope of the challenge in this appeal also doesn't include any real challenge to the board's determination that these circuit breakers did not delay the project.

[00:21:56] Speaker 02:
And so, that's another reason why the outcome can't change based on the arguments we've already lost to make.

[00:22:02] Speaker 00:
Now, what about, you touched on the relays briefly.

[00:22:07] Speaker 00:
Is it your position that the subcontractors' claims with respect to the relays were wrapped up in mod 16, which does, unlike mod 30, which does not reference the subcontractors, mod 16, as I recall, does?

[00:22:27] Speaker 02:
Right.

[00:22:28] Speaker 02:
So mod 16 includes the total release, no changes, no murkiness there, but it is potentially there's room to argue about what the scope of what was covered was there.

[00:22:43] Speaker 00:
Right.

[00:22:43] Speaker 00:
That's what I'm asking about.

[00:22:45] Speaker 00:
What in your view is covered by mod 16?

[00:22:48] Speaker 02:
It's

[00:22:49] Speaker 02:
From the government's perspective, to the extent that LeBola Watts will not segregate out its claim, and it just treats it all as one permanent power claim, it's difficult for us to see how that Modification 16 doesn't cover everything.

[00:23:05] Speaker 02:
If you look in the appendix at page 5453, this is a summary of what was included in its part of that Mod 16.

[00:23:13] Speaker 02:
It talks about things, number five is conduct a breaker trip test.

[00:23:18] Speaker 02:
So that includes some relationship between the breakers and the other components of that.

[00:23:24] Speaker 02:
It talks about the relays certainly were part of that.

[00:23:28] Speaker 02:
It talks about outages for testing.

[00:23:32] Speaker 02:
And so from the government's perspective, what happened at the board,

[00:23:38] Speaker 02:
was LeBola Watts came in and did not break out circuit breakers versus relays versus other things.

[00:23:47] Speaker 02:
And so, as a result, the government did make the argument that here we have this modification A16.

[00:23:53] Speaker 02:
There are none of these questions about subcontractors or not subcontractors.

[00:23:57] Speaker 02:
There's an unequivocal release.

[00:23:59] Speaker 02:
And to the extent that that's going to be LeBola Watts' position, that should count as a accordance satisfaction.

[00:24:06] Speaker 02:
as to that permanent power claim.

[00:24:08] Speaker 00:
Now, Mr. Ockman, your expert, in his report, he points out that there are various periods of government delay, including, for example, the 18 days attributed to the relays, and I think this is the second set of relays, and the out of phase, what is the out of phase conductors, I guess.

[00:24:32] Speaker 00:
Is it your position that he was wrong in attributing those delays to the government?

[00:24:39] Speaker 02:
No, no, we don't take that position.

[00:24:42] Speaker 02:
The government entirely presented his expert report, and the board found it very credible.

[00:24:48] Speaker 02:
And so there's tension here.

[00:24:49] Speaker 00:
Then is it concurrent delay in your view?

[00:24:52] Speaker 02:
Right.

[00:24:53] Speaker 02:
And so the government did take responsibility in this project for government delays.

[00:24:57] Speaker 02:
It granted compensation.

[00:24:59] Speaker 02:
It granted delay time for various reasons.

[00:25:03] Speaker 02:
But for the contractor to come in and get money, money is different than just the time extension.

[00:25:09] Speaker 02:
For the contractor to get compensable delay, more money, the contractor has to show that it wasn't concurrent with a contractor delay, that the project wouldn't have been delayed to that extent

[00:25:20] Speaker 02:
for any other reason than the government's unreasonable delay.

[00:25:24] Speaker 02:
And that just can't happen here.

[00:25:26] Speaker 02:
So that's exactly right.

[00:25:27] Speaker 02:
As we see it, any government-caused delay was concurrent with a contractor-caused delay.

[00:25:34] Speaker 02:
And so there's just no possibility of compensation for delay for the contractor.

[00:25:38] Speaker 00:
Well, now, claim Mod 30 makes, I think,

[00:25:43] Speaker 00:
dispersal to Lobolo of, I think it was about $252,000 in addition to the, what, 212 days.

[00:25:51] Speaker 00:
But that was the mod, if I recall correctly, in which there was a discussion between the parties in advance of the entry of the mod that indicated that the subcontractors would not be included within the mod.

[00:26:06] Speaker 00:
And in fact, the mod, unlike 16, did not include reference to the subcontractors.

[00:26:12] Speaker 00:
Why isn't that itself a demonstration that the subcontractors are not in fact bound by any surrender of rights in mod 30?

[00:26:25] Speaker 02:
I think the underlying issue that confuses the whole problem here is that the subcontractors don't have rights against the government.

[00:26:34] Speaker 00:
I understand that.

[00:26:35] Speaker 00:
But they do have pass-through rights that Lobolo can enforce.

[00:26:41] Speaker 00:
And if their pass-through rights were not extinguished by mod 30, what consequence flows from that, I guess, is my question.

[00:26:51] Speaker 00:
You treated Mod 30 as if they had included the waiver of the subcontractors' separate rights.

[00:27:00] Speaker 00:
But I think the discussion between the government and the contractor in advance of the entry of Mod 30 makes that a hard argument to make.

[00:27:12] Speaker 02:
So, and just to clarify that the government's position before the board on accordance satisfaction, it was only on mod 16.

[00:27:20] Speaker 02:
So, the government Mbola Watts correctly points out the government didn't come in based on what happened there.

[00:27:26] Speaker 02:
The government didn't come into the board and say,

[00:27:28] Speaker 02:
that those later modifications should bar the subcontractor claims.

[00:27:33] Speaker 00:
But I understood your brief before us.

[00:27:36] Speaker 00:
I understood your brief before us to be saying that the subcontractor's claims are barred by mod 30.

[00:27:45] Speaker 02:
We are not going to tell this court that the board erred in making the finding it did.

[00:27:51] Speaker 02:
Because here's what happened before the board.

[00:27:53] Speaker 02:
LeBola Watts showed up to the board with language

[00:27:57] Speaker 02:
that the board read it and on its face, the word subcontractor were taken out, but on its face the board read that language and failed to see how there was any carve out there from the plain language.

[00:28:10] Speaker 02:
And the Bolo Watts response was, well, we had a side agreement with the government.

[00:28:15] Speaker 02:
And the board's resolution of that was, I'm not going to go look for a side agreement.

[00:28:21] Speaker 02:
I read the plain language here and can't see how you carved it out.

[00:28:25] Speaker 02:
From our perspective now, we're not going to agree with the boulevard that the board made a mistake based on what was presented to it.

[00:28:32] Speaker 00:
Well, you may not.

[00:28:32] Speaker 00:
But if we should conclude that mod 30 had no effect to defeat the subcontractors passed through claims, what is your best argument for why those claims still do not have life?

[00:28:50] Speaker 02:
Well, we would start with a whole list of reasons why we can't see how the court would even reach that.

[00:28:55] Speaker 02:
The first thing, if the Ebola watch does not prevail on first issue regarding the interpretation of the circuit breakers, the case doesn't proceed to whether there's delay compensation for circuit breakers.

[00:29:07] Speaker 00:
And is that because the requests from the subcontractors included only the circuit breakers as you read them?

[00:29:18] Speaker 02:
Right.

[00:29:18] Speaker 02:
As we read those claims, those pass-through claims, the standard is adequate notice of the basis of the claim.

[00:29:30] Speaker 02:
There's no notice of any basis other than the circuit breakers in there.

[00:29:33] Speaker 02:
And so, if the circuit breaker is where the voter wants his responsibility all along, there's no basis to go and evaluate whether the subcontractors can obtain compensation for that.

[00:29:45] Speaker 02:
But even as to undisputed issues, we don't see how within this appeal, as far as looking at the scope of this appeal, we don't see how the court even gets to the question of the release.

[00:29:57] Speaker 02:
because the board found that those circuit breakers did not delay the overall course of the project, the critical path of the project.

[00:30:05] Speaker 02:
The Mobile Watch doesn't present to this court a challenge to that factual finding.

[00:30:10] Speaker 02:
It doesn't say the board was wrong.

[00:30:12] Speaker 02:
The circuit breakers did delay the, at least in any way we can really genuinely understand.

[00:30:18] Speaker 00:
So if there's no- Setting aside the circuit breakers for a moment.

[00:30:22] Speaker 00:
That, as I understand LeBolo's position and reaffirmed today, is that the circuit breakers were not the only problem here.

[00:30:31] Speaker 00:
There were various other problems, including up until November and December of 2013, the periods that Mr. Aukman identified as government delay.

[00:30:44] Speaker 00:
So is your argument once you, if you accept that mod 30 did not waive the subcontractors' pass-through rights, and if you take, as Mr. Browdy argues, that the subcontractors were in fact claiming total delay, not just delay attributable to the circuit breakers, is your argument with respect to the non-circuit breaker related delay that there was concurrent delay throughout that entire period

[00:31:15] Speaker 02:
Concurrent delay at least.

[00:31:18] Speaker 02:
And so, if you look at the board's findings, for example, and citing as an example, appendix 2878, as of October 2013, Lobola Watts had communication with the subcontractors at the substation, the one it was solely responsible for, not just building 8905, but that intermediate substation that it had to build.

[00:31:37] Speaker 02:
It's still leaking rainwater.

[00:31:39] Speaker 02:
We need to get this remedied so that we can be ready to get power.

[00:31:42] Speaker 02:
And so as the board chronicled, the Ebola watch was the one that was having the problems and not in a position to receive permanent power.

[00:31:52] Speaker 02:
So anything that was happening in building 8905, which might have involved the government,

[00:31:57] Speaker 02:
It just didn't matter because the Ebola watch wasn't ready for the power to be turned on there anyway.

[00:32:03] Speaker 00:
Well, that was October, but the ultimate commissioning did not occur until late December, as I recall.

[00:32:10] Speaker 00:
So there's a period in there, which is the period, the very period that Mr. Aukman identified as having some government delay.

[00:32:19] Speaker 00:
So what do you say about that period after October, November and December of 2013?

[00:32:28] Speaker 02:
In our view, Your Honor, that period is all covered by...

[00:32:32] Speaker 02:
at least concurrent delay based on the board's determination that there were continuing problems with that substation as one thing.

[00:32:41] Speaker 02:
But also just more broadly, we cannot find something in which the government has not yet taken responsibility.

[00:32:50] Speaker 02:
The government issued generous modifications in time and money here.

[00:32:54] Speaker 02:
We can't find something in which the government can be held accountable but hasn't yet issued a modification that covers it.

[00:33:02] Speaker 01:
When was the new substation ready to receive power?

[00:33:05] Speaker 01:
Council.

[00:33:12] Speaker 02:
Sorry, Your Honor, I have to check my notes.

[00:33:35] Speaker 04:
question which is not going to be answered.

[00:33:38] Speaker 02:
I apologize, Your Honor.

[00:33:41] Speaker 02:
I see I'm out of time.

[00:33:42] Speaker 02:
I don't have the answer.

[00:33:45] Speaker 04:
You can answer the question if you can.

[00:33:48] Speaker 02:
I'm sorry, Your Honor.

[00:34:00] Speaker 02:
I can't.

[00:34:00] Speaker 02:
I don't have the answer in front of me.

[00:34:03] Speaker 02:
I apologize.

[00:34:03] Speaker 04:
All right.

[00:34:04] Speaker 04:
Thank you, Mr. Volk.

[00:34:06] Speaker 04:
Mr. Grouty, we'll give you three minutes to rebuttal.

[00:34:09] Speaker 03:
Yes, Your Honor.

[00:34:11] Speaker 03:
Thank you.

[00:34:12] Speaker 03:
One is that MPO, which is the Maryland procurement office, which is an arm of the National Security Agency administrative, they faulted because of the power problem.

[00:34:32] Speaker 03:
went about and said, oh, there's screws out on the new substation.

[00:34:41] Speaker 03:
But all that took place in September, early September of 2013.

[00:34:49] Speaker 03:
The power was not turned on or provided until December 24, 2013.

[00:35:00] Speaker 03:
So that was three months later.

[00:35:02] Speaker 03:
What the parties did, and that's the idea, is that the contracting officer and LaBolla Watts sat down and analyzed, and they took off when they agreed upon the 210 calendar days of power delays caused by the government.

[00:35:27] Speaker 03:
They took off where the new substation problems were.

[00:35:34] Speaker 03:
They subtracted 35 days, as far as I understand, based upon the time and past analysis.

[00:35:44] Speaker 03:
And that's what they were supposed to do under the scheduling of delays.

[00:35:49] Speaker 03:
The parties weren't supposed to litigate it.

[00:35:53] Speaker 03:
what the subcontractor, no, what the contracting officer said in her letters of November, December of 2013.

[00:36:05] Speaker 03:
Okay, we're seeing the circuit breakers

[00:36:10] Speaker 03:
is LaBolla Watson's responsibility.

[00:36:14] Speaker 03:
So that four months goes off, okay?

[00:36:17] Speaker 03:
On the seven months, as long as you, Warner and Warts, confine your claim to those seven months that we found was the government's responsibility because of the relay problem, the current transformer problems,

[00:36:38] Speaker 03:
The phasing problems, you know, we will consider it.

[00:36:44] Speaker 00:
Now, Mr. Rowdy, what is the appendix site for the document you were just referencing?

[00:36:53] Speaker 03:
The December lettuce, I'm sorry, one is 1335.

[00:36:59] Speaker 03:
And the other one is 2,181.

[00:37:03] Speaker 03:
All right.

[00:37:05] Speaker 00:
Thank you.

[00:37:07] Speaker 03:
One's on Warner and one's on Watch.

[00:37:11] Speaker 03:
And saying, look, there may be, there's merit to the subs, but you got to confine it to these other delays.

[00:37:22] Speaker 03:
This is your argument.

[00:37:23] Speaker 04:
Oh, I'm sorry.

[00:37:25] Speaker 04:
Go ahead, Judge Cunningham.

[00:37:27] Speaker 01:
Oh, thank you.

[00:37:28] Speaker 01:
Does your argument that the delay is attributable to the government turn on the application of the McMullen presumption?

[00:37:37] Speaker 03:
The board was wrong on the McMullen presumption being overturned.

[00:37:45] Speaker 03:
The contract dispute set did knock it out.

[00:37:51] Speaker 03:
for a final decision of the contracting officer, an interim final decision of the contracting office, but not to the party's agreement.

[00:38:01] Speaker 03:
That's what the whole idea is.

[00:38:03] Speaker 03:
I was a contracting officer.

[00:38:05] Speaker 03:
I was going to law school.

[00:38:06] Speaker 03:
You're supposed to make an agreement.

[00:38:09] Speaker 03:
You're not supposed to litigate every delayed claim that comes down the pipe.

[00:38:14] Speaker 03:
You're supposed to analyze the schedule, analyze the current schedule, and make an agreement.

[00:38:20] Speaker 03:
And that's what they did on that mod DX.

[00:38:24] Speaker 03:
I think it is 30.

[00:38:26] Speaker 00:
Mr. Gatto, one question.

[00:38:29] Speaker 00:
Did you respond or did the contractors respond to the two letters from the contracting officer that you referred to?

[00:38:39] Speaker 00:
Because I don't see a response.

[00:38:42] Speaker 03:
I don't think so.

[00:38:45] Speaker 00:
So they never made a claim specifically addressed to?

[00:38:49] Speaker 03:
To those seven months.

[00:38:51] Speaker 03:
Right.

[00:38:53] Speaker 03:
that they were also entitled to the entire 11 months.

[00:38:57] Speaker 03:
They were entitled, and they still do, to the delay caused by the circuit breakers.

[00:39:05] Speaker 03:
And I do, too.

[00:39:06] Speaker 04:
Thank you, Council.

[00:39:07] Speaker 04:
We have to employ a circuit breaker here.

[00:39:09] Speaker 04:
We appreciate the arguments of both Council and the cases submitted.