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The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States in this honor report.

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Okay, we have four argued cases this morning.

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The first is number 20-1489, Tetra Tech, Inc.

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versus United States.

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Mr. Storty.

[00:00:21] Speaker 01:
Thank you, Your Honor.

[00:00:22] Speaker 01:
May it please the Court, Tyler Storty on behalf of plaintiff, appellant, Tetra Tech, Inc.

[00:00:30] Speaker 01:
This morning, Your Honor, I'd like to focus on the fact that what brought us to this point was a ruling granting a motion for judgment on the pleadings several years into the case.

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And we contend that the lower court erred in granting that motion.

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necessarily ignoring some of the well-pleaded allegations of the First Amendment complaint, and it appears drawing some adverse inferences against Tetra Tech as the non-moving party, which is inconsistent with governing rules and case law.

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But the basic issue here, as I understand it,

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is whether standard 21-13-13 applies to the underground cable work or whether it's 21-11-13, correct?

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That's the ultimate issue, Your Honor, correct.

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And your contention is that 21-13-13 is ambiguous and that you had testimony

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from industry experts that it didn't apply.

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That's your theory, right?

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That's a good part of it, Your Honor, yes.

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Okay, but I don't see any analysis of the language of 21.13.13 that would tell us where the ambiguity in language is.

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You don't really analyze the language of the specification in your brief at all.

[00:02:19] Speaker 01:
I think we do a little bit, Your Honor.

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I can find exactly where, but I think to answer the court's question, I think the ambiguity stems from the summary section of 2113.13, which is found at appendix page 908.

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And what the summary describes is what the section, this particular section applies to.

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And at 1.2a,

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Okay, hold on a second.

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What page of the appendix?

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908.

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We're looking at two different appendix page numbers at the bottom of the JA.

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Yeah, that might be correct, Your Honor.

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There's an A605 that's above the actual appendix number.

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And I think what that is from is an appendix that was filed in the court below.

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I believe that this court's appendix 908 at the very bottom of the page is where I intend to be.

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Okay.

[00:03:39] Speaker 01:
I'm sorry, Your Honor.

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Where's the language?

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I'm looking at section 1.2, which is summary, and then 1.2A, which reads, this section includes the following fire suppression piping.

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And then there are subparts one and two.

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And what our contention is, is that part one,

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of 1.2A, which refers to wet pipe sprinkler systems with above ground piping in, and then it describes some particular buildings.

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On the face of that, part one, that's just talking about above ground, so that's within the buildings and below ground.

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What about part two?

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It says under fire suppression piping from water supply to new export buildings.

[00:04:36] Speaker 01:
Moving on to that, Your Honor, looking just at the text of that, where it reads, underground fire suppression piping from the water supply to these buildings.

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What we think that that means is that when it refers to water supply, that means wherever the water came from to get to

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the foundation of the building, or what they call the riser, where the pipes go from outside the building underground up through the foundation.

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That little stretch there is called the riser.

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And so when this specification section is referring to the water supply that's connecting here to the underground fire suppression piping in the building, we think where they say underground fire suppression piping, that's only referring to the stretch from

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the riser and up through the foundation into the building where it connects to the above ground by being referred to in section one.

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That's what we think.

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Where in your blue brief do you make that on?

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One second your honor.

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This I'm looking at this is appellant second corrected opening brief and it starts at page

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It goes on to page 32 and on to page 33.

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And effectively what we think if you read what that Section 1.2A of Section 21, 1313, if you read that in context

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of the rest of the contract, and specifically including Section 22, 1113, which is the facility water distribution piping.

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It's equivalent, and that would be Appendix 922.

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But the summary there describing the scope of what that section is dealing with

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talks about water distribution piping and related components outside the building for water service and fire service mains.

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But we think in context, Section 22 is dealing with everything outside the building that's underground and deals with getting the water from wherever it came from offsite, across the site, and to the buildings.

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And then the only way to have a clean handoff

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it's for then once you get to the building and the riser section 21 kicks in so we think the text of those two uh in the context of the overall set of documents mr story just so i understand your understanding of this uh portion of 21 13 13 1.2 a 2

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In your view, would it, is any of that piping from the project underground or is it above ground?

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There is a stretch that's underground, Your Honor, and that's from basically... But there's also a stretch that's above ground, correct, when you're talking about risers?

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Correct.

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It goes from underground to above-ground.

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And so why could any above-ground piping be considered to be, quote-unquote, underground fire suppression piping?

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I don't think that would make sense, Your Honor.

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I agree with that.

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I think the above-ground piping would be in Part 1 of 1.2a.

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So I guess that's my point.

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If you're pointing to

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certain piping that is technically above ground as being the piping that's referred to here, which says underground fire suppression piping.

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It doesn't seem like a very logical argument.

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I apologize, Your Honor.

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I'm not saying that.

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I'm saying that 1.2a, as I think the distinction would be that we're talking about things sort of within the boundaries of the building.

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So within the footprint of the building, there's portions of the system that are underground.

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That's the riser part where it pokes up through the foundation.

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And there are parts of it that are above ground after you get past that and up into the building.

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And I think the distinction.

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Okay.

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In your amended complaint, you repeatedly talk about, you describe the piping that you had to dig up and replace as underground fire lawn.

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That's something you're talking about, and you describe it as an underground fire suppression system.

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So I guess because you've described the disputed piping in your own words as the underground fire suppression system, why isn't that the same thing as what's being talked about here, underground fire suppression piping?

[00:09:59] Speaker 01:
Well, the only the only part that was actually we were directed to dig up and replace was the underground portions that are outside of the periphery of the building out in the field of the site.

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And if you look at section twenty two eleven thirteen, which is the one that we designed and built that part of the system consistently with, it describes

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water distribution piping and related components outside the building for water service and fire service mains.

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So, on its terms, Section 22 applies to those, quote unquote, underground fire suppression piping.

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And then finally, if water supply, in your view, is ambiguous, then wouldn't that be

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patent ambiguity on the face of the document that you had an obligation to raise to the contractor or the fire engineer?

[00:11:03] Speaker 01:
I would think that it's more latent, Your Honor, because as the testimony is from the witnesses, basically everybody except for the government's fire protection engineer,

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it never occurred to anyone that they would be applying Section 21 to the underground lines in question.

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So when the witnesses, as they testify, see water supply, and this is right in our brief too, he says he understands that to mean the water supply when that gets to the building and wherever it came from before that, and only after the government's fire protection engineer came in well after the system was in place and everyone else had

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understood that to not apply at all.

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He said, I guess if you look at it the way Mr. Lofton, the fire protection engineer, is now interpreting it, I suppose that's a little bit ambiguous.

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But I think the testimony was it wouldn't have occurred to a reasonable person before that, that it was so patent that anyone would have to mention it.

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Where does this theory appear in your complaint?

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The theory about

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Is there being an ambiguity, Your Honor?

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Yeah.

[00:12:18] Speaker 03:
And your reading of 211313.

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Well, it's not expressly in as much particularity as we've described it in the brief, Your Honor.

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But I would say it can be inferred from the allegations that are there, including the fact that Paragraph 5, what page?

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This is the appendix, page 110 is where the First Amendment Complaint starts.

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110.

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Okay.

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And in paragraph five, the allegation about what the actual contract requires

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is that we had to meet these requirements of the NFPA governing codes, et cetera.

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And then it describes specification section.

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It says 12-11-13.

[00:13:21] Speaker 01:
That was a typo.

[00:13:24] Speaker 01:
It referred to 22-11-13 was what we used to design and install the underground fire lines in compliance with those contract requirements.

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That's where we allege, here's what we did and here's what we thought we were required to do under the contract.

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But then elsewhere, and this was, I think, where the trial court got it wrong in concluding that we had basically admitted that we didn't comply with the contract.

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There's no allegation like that.

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In fact, if you look at paragraph 21, which is on page 113 of the appendix,

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there's an express allegation that plaintiff performed work as required by the contract.

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I think the combination between that paragraph five and that paragraph 21 show that here's what we thought applied.

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We didn't deem anything else to apply to the work in question.

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And we performed consistently with the requirements on the contract as we understood them.

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But it doesn't, we don't go as far as to get into the ambiguity on the face of the complaint.

[00:14:31] Speaker 01:
Okay, did you argue the ambiguity point to the part of federal plans?

[00:14:37] Speaker 01:
We did, Your Honor.

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And there's our response brief in response to the motion for judgment on the pleadings appears in the appendix at page 1589.

[00:15:03] Speaker 03:
I don't have any such page.

[00:15:08] Speaker 03:
I have three volumes of the appendix.

[00:15:10] Speaker 03:
The last page number is 1089.

[00:15:14] Speaker 01:
There should be a volume four, Your Honor.

[00:15:18] Speaker 01:
It goes from 1090 to 1713.

[00:15:19] Speaker 01:
Thank you.

[00:15:25] Speaker 01:
What page?

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I think it starts at about page

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11.

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And there's further argument on page 21.

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Page 11 of the appendix?

[00:15:42] Speaker 01:
Oh, I'm sorry, Your Honor.

[00:15:43] Speaker 01:
Appendix page 1602.

[00:15:45] Speaker 01:
Okay.

[00:15:47] Speaker 01:
It's where, sort of in the factual background, we go through how we understood the two specifications to relate to one another and to work.

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And then at page

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Appendix page 1612, there's an argument that effectively in some sense, you know, even if this section 21 was also something that was to be complied with in general, it didn't apply to the working question or at the very least ambiguous.

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When I'm looking at A1613 of the JA, this is your

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your response to the defendant's summary judgment motion.

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It says here, well, you know, this is where you're talking about why you believe at least this specification is ambiguous.

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And then you say it was your understanding and intent that the underground fire lines in question recovered by section 22 and that the fire protection specification section 21 only applied

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to the riser above ground sprinkler lines and fire alarms.

[00:17:11] Speaker 02:
So, in your view, it's always only been the riser that counts as the underground fire suppression, right?

[00:17:27] Speaker 01:
That's correct, Your Honor.

[00:17:28] Speaker 03:
The suppressors of 21 to 13, 13, right?

[00:17:34] Speaker 03:
The rest of the underground piping, in your view, is covered by 22-11-15, right?

[00:17:41] Speaker 03:
That's correct.

[00:17:45] Speaker 03:
Okay.

[00:17:46] Speaker 03:
Unless there are further questions from my colleagues, I think we're out of time.

[00:17:50] Speaker 03:
We'll give you two minutes for rebuttal.

[00:17:52] Speaker 03:
Thank you, Your Honor.

[00:17:54] Speaker 03:
Thank you.

[00:17:54] Speaker 03:
We'll hear from Mr. McVernie.

[00:17:58] Speaker 00:
Thank you, Your Honor.

[00:17:59] Speaker 00:
May I please record?

[00:18:01] Speaker 00:
This case, at least as we argued at the trial court, is a very simple matter of contract interpretation.

[00:18:08] Speaker 00:
And specifically, the issue before the trial court was whether Tetra Tech was required to comply with all of the provisions included in their own 100% building design stability, which of course included Section 21.13.13, which is titled

[00:18:28] Speaker 00:
above ground and underground fire suppression piping and sprinklers.

[00:18:33] Speaker 00:
And at the trial court, Tetratec argued that that provision was not a part of the contract they were required to comply with because it only appeared in the 100 percent building design submittal, which they believed was not a part of the contract.

[00:18:47] Speaker 00:
That was the argument that Tetratec raised in their request for equitable adjustment to the contracting officer.

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That was the argument that Tetratec pressed at the trial court and the trial court appropriately

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rejected that argument.

[00:19:01] Speaker 00:
It now appears that Tetratech has abandoned that argument and Tetratech agrees with the trial court's conclusion that specification 21-13-13 was in fact included as part of the contract and that Tetratech was required to comply with it.

[00:19:17] Speaker 00:
Tetratech's argument now, however, is that although 21-13-13 was part of the contract, it did not apply to the underground piping

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at issue in this case.

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And Tetratech's new position is also wrong as a matter of law for a couple of reasons that we've set forth in our brief.

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And before I talk about those, I do want to briefly address a question that Your Honor raised.

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The only time, as far as I'm aware, that Tetratech ever pressed this argument was as an even if argument in its brief on the motion for judgmental pleadings.

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And that does appear at appendix 1612 and 1613.

[00:19:56] Speaker 00:
And it was an alternative argument, and it wasn't even exactly this argument, but it was close.

[00:20:02] Speaker 00:
And I don't think... So why wouldn't that be sufficient to preserve it?

[00:20:05] Speaker 00:
Oh, I do believe it's a preserved drug.

[00:20:07] Speaker 00:
I don't think that Tetra Tech has waived that argument.

[00:20:10] Speaker 00:
But I do believe that it should be noted that Tetra Tech's argument throughout has been that 21 to 1313 wasn't part of the contract at all.

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And that's important because

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that's consistent with the allegations in the complaint.

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And this is the motion for judgment on the pleadings.

[00:20:27] Speaker 00:
And so the first problem with this argument that Tetra Tech is now pressing as its sole argument on appeal is that that position is not consistent with the allegations that were made in the complaint.

[00:20:40] Speaker 00:
It's not consistent with the plain language of the complaint.

[00:20:43] Speaker 00:
And it's not consistent, frankly, with the language of the complaints when read in the context of the complaints and attachments

[00:20:50] Speaker 00:
which were incorporated to the complaint, specifically the request for equitable adjustment, where Cetratec solely pressed the argument that 21-13-13 wasn't a part of the contract at all.

[00:21:02] Speaker 03:
Well, the complaint is sort of bare bones.

[00:21:04] Speaker 03:
Why isn't it sufficient to accomplish this argument?

[00:21:08] Speaker 00:
Sure, Your Honor.

[00:21:08] Speaker 00:
I think there's two responses I would have to that.

[00:21:11] Speaker 00:
The first is the complaint is bare bones, but there is a requirement under Twombly for it to at least provide us with fair notice of what their position is.

[00:21:20] Speaker 00:
And from the government's view, there's nothing in the complaint that provides us with any fair notice that they're arguing that 21-13-13 was part of the contract, but simply didn't apply to these types.

[00:21:33] Speaker 00:
What the complaint talks about was their allegation that the only provision that's relevant is that Section 22 provision.

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And again, Your Honor, when viewing the complaint as a whole,

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including all of the attachments that were incorporated therein, in particular, the request for equitable adjustment, it's clear that that was Tetra Tech's argument.

[00:21:52] Speaker 00:
And so I don't think that the complaint meets the Twombly standard of providing the government with fair notice that they're making a claim that they acknowledge 21-13-13 was part of the contract.

[00:22:06] Speaker 00:
But in fact, they believe it simply was somehow limited only up to these risers.

[00:22:12] Speaker 00:
And so for that reason, we think that

[00:22:14] Speaker 00:
The rest of the arguments don't even need to be addressed because on a motion for judgment on the pleadings, the court was correct in interpreting the complaint and finding that it's simply inconsistent with this, even if alternative argument that was raised below and it's now the only argument being pressed on appeal.

[00:22:32] Speaker 02:
Well, let's assume for the moment that the complaint tells us that they believe that the piping is in question here is covered and governed by section 22, 1113.

[00:22:44] Speaker 02:
And so necessarily what that means is they are not also governed by 21-13-13.

[00:22:50] Speaker 02:
And so now the question is, why is it correct to say that as a matter of law, these types are not covered by 21-13-13?

[00:23:02] Speaker 00:
Certainly are.

[00:23:04] Speaker 00:
And I think with that, if the court would look at the languages of 21-13-13 and reach that step,

[00:23:11] Speaker 00:
The first point is, we don't think there's anything ambiguous about the language of specification 21.13.13.

[00:23:18] Speaker 00:
Looking at appendix 908, which is the first page of that specification, the title is Above Ground and Underground Fire Suppression Piping.

[00:23:27] Speaker 00:
If we look at section 1.2a, which is a summary of that section, 1.2a.2 refers to a covering underground fire suppression piping

[00:23:38] Speaker 00:
from water supply to the new export building and kennel building.

[00:23:43] Speaker 03:
But your problem, it seems to me, is that, as I understand the contract, it incorporated both specifications.

[00:23:52] Speaker 04:
Certainly.

[00:23:54] Speaker 03:
Correct.

[00:23:55] Speaker 03:
And both specifications talk about underground piping, right?

[00:23:59] Speaker 03:
Correct, Your Honor.

[00:24:01] Speaker 03:
So doesn't that lead to some potential ambiguity as to which of the two is going to govern underground piping?

[00:24:09] Speaker 00:
No, your honor, because the 2 specifications are not internally inconsistent.

[00:24:13] Speaker 00:
I think that the 2 specifications.

[00:24:15] Speaker 00:
Can both apply to certain piping, but more importantly, to the extent there was any sort of ambiguity in that again, specifications will both included in 100% building.

[00:24:29] Speaker 00:
And so, to the extent that Tetra Tech's own submission had an ambiguity, it was clearly a pain in the ass that should have been brought to the attention of the contracting officer before Tetra Tech simply proceeded with its own now professed apparent assumption that Section 21-1313 simply didn't apply.

[00:24:51] Speaker 00:
In this case, though, we think the language of the specification is clear.

[00:24:54] Speaker 00:
It applies to fire protection timing.

[00:24:56] Speaker 00:
from water supply to the building.

[00:24:59] Speaker 00:
It certainly does not have anything in that specification to support this post-hoc interpretation that there's this arbitrary cutoff at the riser level.

[00:25:08] Speaker 00:
Go ahead.

[00:25:10] Speaker 02:
Okay.

[00:25:12] Speaker 02:
The other side is saying that there's some ambiguity about the phrase from water supply in 1.282 of 2113.13.

[00:25:20] Speaker 02:
Can you first explain

[00:25:26] Speaker 02:
What their conception of from water supply means and then respond to why, in your view, that can't possibly be right?

[00:25:36] Speaker 00:
Sure, Your Honor.

[00:25:36] Speaker 00:
So I'm always a little hesitant to attempt to explain my opponent's position.

[00:25:40] Speaker 02:
They want us to believe that there's a good reason to think that the piping at stake in this specification refers only to the riser.

[00:25:54] Speaker 02:
And that's how that that therefore.

[00:25:59] Speaker 02:
Give us some idea of what they think from water supply can mean.

[00:26:04] Speaker 02:
Next, could you explain what that could be and then why that is not reasonable?

[00:26:11] Speaker 00:
Right, well, so my understanding of their argument is is what Toronto said that it applies only up to these risers, which are these connecting pipes between

[00:26:23] Speaker 00:
the water line below and the internal pipes of the building.

[00:26:27] Speaker 00:
And we think that's wrong because number one, the pipes that are below that riser are the underground pipes.

[00:26:35] Speaker 00:
And this specification refers to both above ground

[00:26:39] Speaker 00:
and underground, fire suppression piping.

[00:26:42] Speaker 00:
And so we see nothing in the specification that would support this post-hoc interpretation that there's this arbitrary cutoff at the riser and no coverage for the underground pipes under that riser, which is why... Okay, but the problem that I see is we're not considering 21, 13, 13 in a vacuum.

[00:27:04] Speaker 03:
The contract also incorporates

[00:27:06] Speaker 03:
uh 22 11 13 and that has broad provisions about underground piping is there is there something in uh 22 11 13 language in 22 11 13 that indicates that it doesn't apply to the kind of underground piping we're talking about here well your honor 22 11 13 or i'm sorry i believe that's the right number but but section 22 is a broader specification which is dealing with with plumbing

[00:27:35] Speaker 00:
211313.

[00:27:36] Speaker 03:
He talks about underground piping, doesn't he?

[00:27:40] Speaker 00:
It does, your honor, but 211313 is specifically concerned with fire suppression piping, which is obviously a unique safety issue, which is why that specification and that type of piping has additional requirements and additional concerns.

[00:27:54] Speaker 00:
There's nothing problematic with applying both standards

[00:27:58] Speaker 00:
to this underground piping.

[00:28:00] Speaker 00:
It's just that the standards in 21.13.13 are going to be more rigorous.

[00:28:04] Speaker 00:
In other words, you can apply both standards to this piping, which we think is appropriate.

[00:28:08] Speaker 00:
But at the end of the day, the 22 standards are going to be subsumed by the stricter requirements of 21.13.13.

[00:28:16] Speaker 00:
So we don't actually view it as any kind of problem to say, OK, both standards apply.

[00:28:21] Speaker 00:
The reality, though, is 22 kind of becomes a nullity once you're applying 21.

[00:28:26] Speaker 03:
Well, what is it about 22-11-13 that suggests that it doesn't apply to underground fire suppression piping?

[00:28:40] Speaker 00:
There may be something.

[00:28:40] Speaker 00:
I'm not sure that there is.

[00:28:42] Speaker 00:
I think that the more important focus is the distinction between fire suppression piping and other plumbing.

[00:28:50] Speaker 00:
But again, Your Honor, you can apply both standards to this underground piping.

[00:28:54] Speaker 00:
But obviously, when you have

[00:28:56] Speaker 00:
two standards, one of which is stricter, that essentially subsumes the requirements of the more relaxed standard, but adds additional requirements.

[00:29:05] Speaker 00:
Whether you're only applying the stricter standard, which in this case is Section 21, or whether you're saying you're going to apply both, the effect is the same, right?

[00:29:13] Speaker 00:
Because the stricter standards subsume the more relaxed standards.

[00:29:17] Speaker 02:
So, what is the government's

[00:29:20] Speaker 02:
view of what the correct and only reasonable understanding is of from water supply in section 21?

[00:29:29] Speaker 00:
Our understanding is this includes all of the piping that Tetra Tech was responsible for installing both above ground and underground up until the point where it connects to the main water main, which was obviously not piping that Tetra Tech was installing or modifying in this instance.

[00:29:45] Speaker 02:
And then all of that underground piping

[00:29:50] Speaker 02:
from the riser to the main water line.

[00:29:54] Speaker 02:
You're saying that both Section 21.13.13 and Section 22.11.13 would apply to that underground piping?

[00:30:08] Speaker 00:
I think they can, Your Honor.

[00:30:09] Speaker 00:
Although again, I think it's a distinction without a difference because if 21.13.13 applies, which we believe that it does, then

[00:30:18] Speaker 00:
whether you're also applying Section 22's looser but included standards is really a loophole, if that makes sense.

[00:30:24] Speaker 02:
And then, as I understand it, it was Tetra Tech's responsibility to somehow check in with the fire protection engineer?

[00:30:33] Speaker 02:
That's correct, Your Honor.

[00:30:35] Speaker 02:
Before installation?

[00:30:36] Speaker 02:
That's correct, Your Honor.

[00:30:39] Speaker 02:
But that didn't happen here, right?

[00:30:41] Speaker 00:
That's correct.

[00:30:42] Speaker 00:
And part of the confusion is when dealing with fire suppression issues specifically, that's where the fire protection engineer sign off is required.

[00:30:51] Speaker 00:
And because Tetra Tech submitted this to the contracting manager on site under Section 22, it's not a fire suppression standard.

[00:31:01] Speaker 00:
It never went through the fire protection engineer as is required by the contract.

[00:31:08] Speaker 00:
One additional thing that I do

[00:31:10] Speaker 00:
I just want to point out, because it was in my notes, again, our primary argument here is that complaints read in its entirety, particularly in the context of the arguments that were made in the REA by Tetra Tech below, does not support the alternative argument that Tetra Tech presses here.

[00:31:26] Speaker 00:
I did hear my colleague attempt to make reference to paragraph 21 of the complaint.

[00:31:32] Speaker 00:
We don't think that supports this current argument either.

[00:31:34] Speaker 00:
But I also want to point out that paragraph 21 is part of count four of the complaint, which was dismissed in a previous order by the court, and that dismissal is not being appealed.

[00:31:45] Speaker 00:
So we think, frankly, the allegations made solely in count three and count four are nullities to this court's analysis because those counts were dismissed and are not on appeal presently to the court today.

[00:31:57] Speaker 02:
How much of the riser piping is underground?

[00:32:03] Speaker 02:
You know?

[00:32:04] Speaker 02:
I don't have an answer to that, Your Honor.

[00:32:08] Speaker 00:
Okay.

[00:32:08] Speaker 00:
But I do know.

[00:32:13] Speaker 03:
Okay.

[00:32:13] Speaker 03:
Anything further?

[00:32:15] Speaker 00:
No, Your Honors, we ask for permission to question.

[00:32:17] Speaker 00:
Thank you very much.

[00:32:18] Speaker 03:
Okay.

[00:32:19] Speaker 03:
Thank you.

[00:32:20] Speaker 03:
Mr. Storty, you have two minutes.

[00:32:23] Speaker 02:
Mr. Storty, do you have the answer to my question?

[00:32:25] Speaker 02:
When you're focused on the risers, how much of the riser is underground?

[00:32:33] Speaker 02:
A lot of it is above ground.

[00:32:35] Speaker 02:
How much of it is underground?

[00:32:36] Speaker 02:
Do you know?

[00:32:37] Speaker 01:
I don't know the specific answer to that.

[00:32:40] Speaker 01:
Like five feet or something like that?

[00:32:42] Speaker 01:
There's some testimony in the record, and I don't have a direct site, but to that exact number, five feet is what Mr. Gouvet said is his general when he's talking about the riser, there's five feet of it underground.

[00:32:54] Speaker 02:
Okay.

[00:32:55] Speaker 02:
So then, so your side's position is,

[00:32:59] Speaker 02:
When Section 21 is talking about underground fire suppression piping, it's talking about a portion of the riser that's underground, not the above ground portion.

[00:33:14] Speaker 02:
And the underground portion is about five feet.

[00:33:19] Speaker 02:
I think that's the underground fire suppression piping in Petrotec's view.

[00:33:25] Speaker 01:
to give meaning to where it says underground, fire suppression piping.

[00:33:29] Speaker 01:
That's what we're talking about.

[00:33:32] Speaker 01:
And that's just following on that, Your Honor.

[00:33:35] Speaker 01:
The course of dealing between the parties at every point up through when there was an actual dispute and Mr. Lofton came on the scene was consistent with that understanding.

[00:33:48] Speaker 01:
The system was designed, installed, inspected by the government's construction manager while it was being installed, pressure tested twice, approved and paid for, and put into use for six months before, and covered up with dirt, before Mr. Lofton, while looking at something else, raised for the first time the notion that it needed to be, have been installed in accordance with Section 21.

[00:34:15] Speaker 01:
Up until then,

[00:34:17] Speaker 01:
The conduct of the parties was such that everyone else thought Section 22 was the specification that applied.

[00:34:24] Speaker 01:
I think it's important that it can't be both.

[00:34:27] Speaker 01:
The contractor needs to know which one it's building to, and everyone had 22 in front of them while this work was being done.

[00:34:36] Speaker 01:
The only other thing I would add, Your Honor, is as far as fair notice goes about the ambiguity argument, an argument about the two specifications,

[00:34:45] Speaker 01:
That had been raised in all the depositions and in earlier briefings to report for years before the motion for judgment on ingredients was filed.

[00:34:54] Speaker 01:
So, the government had every opportunity to understand what Tetra Tech's theory was.

[00:34:59] Speaker 01:
We think... I think we're out of time, Mr. Stewart.

[00:35:03] Speaker 01:
Thank you, Your Honor.

[00:35:04] Speaker 01:
So, the case is submitted.