[00:00:00] Speaker 04:
Our next case is US Aero Team Incorporated versus the United States, 2021, 2272.

[00:00:06] Speaker 04:
Mr. Jones.

[00:00:14] Speaker 00:
Good morning, Your Honor.

[00:00:16] Speaker 00:
May it please the Court to represent the United States Aero Team.

[00:00:20] Speaker 00:
We've asked the Court to reverse the decision of the trial court at the Court of Federal Claims related to the trial on the appeal of US Aero Team's request for an equitable adjustment.

[00:00:37] Speaker 02:
Can I just ask you a housekeeping threshold question, which is I understand from the briefing there's a companion case with the ASPCA.

[00:00:46] Speaker 02:
And I was just interested in what involving the same contract is.

[00:00:52] Speaker 02:
So what theories are presented there?

[00:00:55] Speaker 00:
So in that case, when the original REA was submitted, it was submitted with 10 factors.

[00:01:03] Speaker 00:
And so the government and US air team dealt with the costs and the issues in those 10 separate areas.

[00:01:12] Speaker 00:
This case only dealt with what was referred to as factor one, which was the manufacturing and assembly of the running gear.

[00:01:19] Speaker 00:
The ASVCA case deals with those remaining issues that were not related to the running gear.

[00:01:28] Speaker 02:
Is that kind of unusual to split it up?

[00:01:30] Speaker 02:
I don't recall seeing a split in a case between the two bodies.

[00:01:34] Speaker 00:
It's nontraditional, Your Honor.

[00:01:36] Speaker 02:
Thank you.

[00:01:37] Speaker 00:
Thank you.

[00:01:40] Speaker 00:
So as a preliminary matter, I think just to put our discussion this morning in the context,

[00:01:48] Speaker 00:
The trial court's ruling on entitlement occurred almost immediately upon completion of a nearly five-day trial with witness testimony, introduction of documentary evidence, and argument of counsel.

[00:02:04] Speaker 00:
The transcript is in the appendix.

[00:02:07] Speaker 00:
It begins at 2058 because there's no written opinion.

[00:02:12] Speaker 04:
Well, we have the transcript.

[00:02:14] Speaker 04:
It seems there are three issues, constructive change, cardinal change, and commercial impracticability.

[00:02:23] Speaker 04:
And the trial court pointed out that you didn't meet any of the requirements for any of them.

[00:02:31] Speaker 04:
The requirements of the contract were not changed.

[00:02:36] Speaker 04:
You simply decided to do the work yourself.

[00:02:40] Speaker 04:
And that cost more money, but this was a fixed price contract.

[00:02:45] Speaker 00:
Certainly, that's the court's finding.

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And that's why we're here today, because we respectfully disagree with that finding.

[00:02:52] Speaker 00:
And in those three areas, we believe that the court committed reversible legal error in the court's analysis of those issues.

[00:03:02] Speaker 00:
And Your Honor, the first issue being constructive change, perhaps what we spent most of the time discussing at trial.

[00:03:11] Speaker 00:
The court actually, in the ruling,

[00:03:15] Speaker 00:
added an element or a requirement that just isn't present in any of the cases that this court has issued, the most two recently in 2020 being the Keywood case and the BGT Holdings case.

[00:03:31] Speaker 00:
The requirements across the board are that there is additional work that is performed on a contract and that it is ordered either explicitly or impliedly by the government.

[00:03:44] Speaker 00:
The Keywood case takes it a little bit further and says that this can be a formal or informal.

[00:03:49] Speaker 02:
OK, well, I mean, we can quibble with some of the comments that the district court, that the court of federal claims may have met, and the government deals with explaining some of that.

[00:04:00] Speaker 02:
But where does, I guess, let's look at the facts of this case, and where does that get you?

[00:04:04] Speaker 02:
How do you get a constructive change?

[00:04:06] Speaker 02:
You went to the government, and what they said is, OK, you're going to take the work that was done by the subcontractor, and you're going to bring it in house.

[00:04:15] Speaker 02:
How does that give you a constructive change where they're ordering you implicitly or explicitly

[00:04:22] Speaker 02:
to do this in a way that obligates them to the additional cost?

[00:04:29] Speaker 00:
Well, it does that because the government did issue that change, the May 15, 2012

[00:04:37] Speaker 00:
email from the contracting officer to US Aero team and members of the government team.

[00:04:43] Speaker 02:
What I understand is if it had not authorized the change, you would have been paying the subcontractor $38,000 and presumably you took it in-house to get something cheaper than that.

[00:04:57] Speaker 02:
So I guess

[00:05:01] Speaker 02:
It was something that you were suggesting that you wanted to do.

[00:05:05] Speaker 02:
And it wasn't something that they were required to do or was necessitated by the circumstances that you changed the way it was being done.

[00:05:14] Speaker 02:
It was mainly

[00:05:17] Speaker 02:
thing you did, just try to save yourself some money.

[00:05:20] Speaker 00:
Well, Your Honor, I don't think the facts of the case actually support the finding that it was simply a matter of cost.

[00:05:28] Speaker 00:
PDI, the subcontractor, who is a directed source in the contract, had effectively committed an anticipatory repudiation of the contract.

[00:05:38] Speaker 00:
they told US Aero team they were not going to manufacture.

[00:05:44] Speaker 00:
And I think even the court.

[00:05:45] Speaker 03:
I'm sorry.

[00:05:45] Speaker 03:
I thought that at least the government says with some support in the claims court discussion that you did not prove that PDI would not supply you this at the newly raised PDI price.

[00:06:02] Speaker 00:
Well, certainly that's one of the issues that we did raise in our brief is that we think that the trial court

[00:06:08] Speaker 00:
in particular with that factual finding was incorrect.

[00:06:12] Speaker 00:
There was a statement during testimony from one of the principals at PDI that for a higher price they might have provided it.

[00:06:22] Speaker 00:
But we also know from the evidence that they had not provided any units for months and months and had entered into a termination agreement with US Aero team because

[00:06:34] Speaker 00:
they were no longer going to produce it.

[00:06:36] Speaker 04:
So what was added to the requirements of the contract?

[00:06:40] Speaker 00:
So US Aeroteam was never required to manufacture that running gear assembly.

[00:06:47] Speaker 00:
It was a directed purchase.

[00:06:49] Speaker 00:
And so that was a rather administrative limited task where they would issue a purchase order, the vendor would supply it, and then it would be incorporated.

[00:07:01] Speaker 00:
But in the absence of any

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And there was no evidence that there was any other vendor available besides PDI.

[00:07:10] Speaker 00:
In the absence of any other vendor, US Aero team went to the government and proposed this solution.

[00:07:18] Speaker 00:
rather than terminate the contract, rather than stop delivery.

[00:07:22] Speaker 00:
Because again, this was a priority rated contract.

[00:07:25] Speaker 04:
I don't hear you arguing the requirements of the law, constructive change or cardinal change.

[00:07:35] Speaker 00:
Well, the constructive change was that US airplane was never required to manufacture.

[00:07:42] Speaker 00:
after the direction of the PCO on May 12, they were on the hook.

[00:07:46] Speaker 04:
You volunteered, and the government agreed, right?

[00:07:49] Speaker 00:
And the government agreed.

[00:07:51] Speaker 00:
They included that as a requirement in the contract.

[00:07:54] Speaker 02:
It wasn't driven by the government or some necessity, or at least those were the findings of the district court, which I think would be pretty hard to dislodge at this juncture.

[00:08:03] Speaker 00:
Well, Your Honor, I don't think that there is anything in the jurisprudence that says that

[00:08:09] Speaker 00:
it must be driven or it must be the government's idea.

[00:08:13] Speaker 00:
In fact, it can be the government's mistake.

[00:08:15] Speaker 00:
It can be an informal direction.

[00:08:19] Speaker 00:
But clearly, once the May 12th order was set.

[00:08:22] Speaker 02:
So you come to the government and you say, hey, we'd prefer, we think it'd be better and more convenient for us to get rid of the subcontractor and just do it in-house.

[00:08:30] Speaker 02:
And the government says, sure, do that.

[00:08:33] Speaker 02:
then they're liable for any additional costs you expend beyond a fixed price contract?

[00:08:39] Speaker 00:
I think that the evidence, Your Honor, was that the government and US Aeroteam knew that that vendor was not going to be available, and there were no other vendors.

[00:08:51] Speaker 00:
The government's option was to either approve US Aeroteam or terminate the contract.

[00:08:57] Speaker 03:
Why would approve?

[00:09:00] Speaker 03:
meet the standard for government direction under either constructive or cardinal change?

[00:09:06] Speaker 00:
Well, once the government made that change, that became a requirement that US Air Team had to meet.

[00:09:16] Speaker 00:
They at that point didn't have the option

[00:09:18] Speaker 00:
not to perform.

[00:09:21] Speaker 00:
And so again, there is no jurisprudence that says the idea has to originate with the government.

[00:09:31] Speaker 03:
And it wasn't for the convenience of it.

[00:09:35] Speaker 03:
The change you're saying was that the government at some point came to say in

[00:09:44] Speaker 03:
The email, I think you rely on the word.

[00:09:46] Speaker 00:
The May 12th email, appendix 2000.

[00:09:48] Speaker 03:
Email says, now our contract requires you to make this thing in-house.

[00:09:56] Speaker 00:
It doesn't use those exact express words, but it has the effect.

[00:10:00] Speaker 03:
Isn't that what would be required for the either cardinal or constructive change theory of government directing you?

[00:10:09] Speaker 03:
As opposed to saying, allow it.

[00:10:11] Speaker 00:
I don't think that's the case, Your Honor, when you look at particularly BGT and the Kiwat cases, that it can be an informal order of the government.

[00:10:23] Speaker 00:
It can be implied.

[00:10:25] Speaker 00:
And so I don't think the genesis of the idea to solve the problem is dispositive of whether that requirement is met.

[00:10:37] Speaker 04:
We're into your rebuttal, Tom.

[00:10:39] Speaker 04:
You can continue or save it.

[00:10:42] Speaker 00:
I'll save my time, Your Honor.

[00:10:45] Speaker 04:
All right.

[00:10:46] Speaker 04:
Thank you.

[00:10:46] Speaker 04:
Mr. Hellman.

[00:10:47] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:10:49] Speaker 01:
This Court should affirm the judgment of the Court of Federal Claims, which, after a five-day trial, found that US Air Team failed to prove all three of its claims, constructive change, cardinal change, and commercial impracticability.

[00:11:02] Speaker 01:
Importantly, the Court of Federal Claims here made two key factual findings.

[00:11:06] Speaker 01:
The first is that the sub-assemblies at issue that were initially produced by PDI continue to be available.

[00:11:13] Speaker 01:
It's just that the price increased.

[00:11:14] Speaker 01:
That's a factual finding.

[00:11:15] Speaker 01:
This court reviews it for clear error.

[00:11:16] Speaker 02:
So that was your friend's main argument, or one of the principal arguments, that the vendor was no longer available to do this.

[00:11:23] Speaker 02:
So this was a necessity for completion of the contract.

[00:11:27] Speaker 02:
the Court of Federal Claims made contrary findings.

[00:11:33] Speaker 01:
That's correct, Judge Brost.

[00:11:34] Speaker 01:
That was an argument that plaintiff appellant put forth at trial.

[00:11:38] Speaker 01:
There was testimony from a PDI employee, a third party, who was actually present at this meeting, the key meeting on March 8, 2012, saying, we were willing to make the part.

[00:11:50] Speaker 01:
We wanted to charge more money for it.

[00:11:53] Speaker 01:
And that's what the Court of Federal Claims did.

[00:11:54] Speaker 03:
Where is the finding to that effect?

[00:11:56] Speaker 01:
There's two in the court's decision, which was rendered from the bench.

[00:12:01] Speaker 01:
The first is at appendix 5, it's trial transcript page 838, lines 14 through 16.

[00:12:13] Speaker 01:
It says, the evidence does not support that at the higher price, PDI would not have continued to supply the product.

[00:12:20] Speaker 01:
And that at appendix 7 on page 845,

[00:12:26] Speaker 01:
It says, it actually continues from the previous page at line 25.

[00:12:29] Speaker 01:
It says, the issue arose, it sounds like, from the testimony that after they raised their prices in PDIs, I'm sorry, PDI raised their prices for the second contract and raised their prices at all for further production.

[00:12:42] Speaker 01:
It wasn't that they couldn't have.

[00:12:44] Speaker 01:
It's that they wouldn't once they didn't get the price they wanted.

[00:12:48] Speaker 01:
And then in the next paragraph, it says, it was also a matter of choice on the part of the plaintiff not to pay the higher price.

[00:12:53] Speaker 01:
So there is testimony the trial court found that PDI continued to be available at a higher price.

[00:13:00] Speaker 01:
And this goes to your point, Judge, first, that the US air team is seeking to get compensation because it made the decision to make the part itself when it could have continued procuring it under a higher price.

[00:13:14] Speaker 01:
And it wouldn't be eligible to receive a price adjustment if it simply paid a higher price for PDI.

[00:13:22] Speaker 02:
So it would be a different case, would it not, if the subcontractor goes out of business or refuses to deal with him, and he comes to the government and he says, we can't do this work because the subcontractor is not cooperating or whatever.

[00:13:37] Speaker 02:
And so we have to do it in-house, and it's going to cost us more to do it in-house.

[00:13:41] Speaker 02:
And then the government's nod, we gird, whatever for that, would be compensable, arguably.

[00:13:48] Speaker 01:
It would certainly be a different case.

[00:13:49] Speaker 01:
That's true.

[00:13:50] Speaker 01:
And I think, as Mr. Johns mentioned, in that case, the government would have options.

[00:13:54] Speaker 01:
It could say, we don't want to pay the higher price.

[00:13:55] Speaker 01:
We want to terminate the contract.

[00:13:58] Speaker 01:
We have enough of these trailers.

[00:13:59] Speaker 01:
We don't need them at a higher price.

[00:14:00] Speaker 01:
Or we want to go out and re-procure.

[00:14:03] Speaker 01:
The contract provided that additional suppliers could come on board and become authorized.

[00:14:08] Speaker 01:
And in fact, US Air actually was one of those suppliers when it made the decision to take the production in-house.

[00:14:17] Speaker 01:
received authorization eventually from the government to become an authorized by it could then provide the running gear to other trailer manufacturers and subsequent contract so the business decision that it had made thinking that it could make the parts

[00:14:32] Speaker 01:
more efficiently, less expensively, and had it been able to do so, it would have kept the additional profits.

[00:14:40] Speaker 01:
That's sort of the whole nature of the firm fixed price contracts here.

[00:14:44] Speaker 01:
It incentivizes the contractor to lower its costs.

[00:14:49] Speaker 02:
Yeah, but it's a fair criticism of the court of federal claims.

[00:14:53] Speaker 02:
Is it not that she seemed to have placed a lot of weight on the fact that this was a firm fixed price contract, which you seem to be doing here?

[00:15:02] Speaker 02:
Whereas in your brief, I think you make clear that you do not read what she said as saying that's black letter law and no deviation would ever have been required.

[00:15:12] Speaker 02:
I mean, that would undo all of the principles, like constructive change and cardinal change, et cetera, we're talking about.

[00:15:18] Speaker 01:
That's correct, Your Honor.

[00:15:19] Speaker 01:
I think the distinction is this.

[00:15:23] Speaker 01:
Firm fixed price contracts preclude this sort of adjustment when a part supplier increases its prices, supply chain issues or whatnot.

[00:15:32] Speaker 01:
And the contractor is not allowed to come to the government and say, my prices went up, provide me additional compensation.

[00:15:40] Speaker 01:
The contractor in a firm fixed price contract, and there are other contracting vehicles that the contractor can use if it's worried about it, but the contractor is

[00:15:49] Speaker 01:
is responsible for managing the prices.

[00:15:50] Speaker 01:
That's why US seratine got a purchase order with PDI for that price amount.

[00:15:55] Speaker 01:
It could have enforced that purchase order.

[00:15:58] Speaker 01:
Now, it's a different case.

[00:15:59] Speaker 01:
As you said, if there's no authorized suppliers and US seratine can't perform, that gets into commercial impossibility.

[00:16:08] Speaker 01:
And that excuses a breach.

[00:16:11] Speaker 01:
So US seratine could have come to the government and said,

[00:16:13] Speaker 01:
We can't continue performing.

[00:16:14] Speaker 01:
The one supplier that we were authorized to use is no longer available.

[00:16:20] Speaker 01:
We're in breach, but it's not our fault.

[00:16:22] Speaker 02:
Can I just ask you about just down on the ground real life?

[00:16:27] Speaker 02:
The court of federal claims expressed some sympathy for the other side.

[00:16:31] Speaker 02:
And certainly, while the initial contract was ongoing, this was when this price got up.

[00:16:37] Speaker 02:
So they had to eat it.

[00:16:38] Speaker 02:
But by the time they did the current contract,

[00:16:42] Speaker 02:
They knew what the higher prices were, but they didn't change the bid, right?

[00:16:49] Speaker 01:
That's correct, Your Honor.

[00:16:50] Speaker 01:
Well, and I just want to make sure I clarify the nuance.

[00:16:55] Speaker 01:
The first contract, yes.

[00:16:57] Speaker 01:
They had a purchase order with PDI.

[00:16:59] Speaker 01:
Then PDI was trying to raise its prices.

[00:17:02] Speaker 01:
During this time period, and this was in sort of May and June of 2012, US Series team already knew that PDI was

[00:17:11] Speaker 01:
didn't want to perform for the lower price, wanted to raise its price.

[00:17:15] Speaker 01:
Yet US Air Team bid on the follow-on contract, as we call it, at the trial court, the 39 contract.

[00:17:21] Speaker 01:
It actually lowered its ultimate price by $20,000.

[00:17:24] Speaker 01:
So rather than factoring in, it's going to cost us additional money to build this, or we don't actually know how much it's going to cost.

[00:17:31] Speaker 01:
But certainly, if we were to keep buying it from PDI, it's going to cost us $38,000 versus $20,000.

[00:17:36] Speaker 01:
US Air Team actually lowered its own ultimate trailer price

[00:17:41] Speaker 01:
for this follow-on, substantially larger contract.

[00:17:46] Speaker 01:
This was a business decision.

[00:17:48] Speaker 01:
US Air Team thought it could make the running gear itself better and cheaper.

[00:17:53] Speaker 01:
It was incorporating this large component into a trailer.

[00:17:57] Speaker 01:
It had similar capabilities, it thought, that PDI did.

[00:18:01] Speaker 01:
There's another component that

[00:18:03] Speaker 01:
came up a trial where it was a hydraulic cylinder that also became unavailable.

[00:18:07] Speaker 01:
And US Air Team didn't offer to take that one in-house because it didn't have those capabilities.

[00:18:12] Speaker 01:
Here, it thought it could do a better, cheaper job.

[00:18:14] Speaker 04:
Did they ultimately perform the contract?

[00:18:17] Speaker 01:
They ultimately performed the contract.

[00:18:19] Speaker 01:
They ultimately built the running gear for the trailers.

[00:18:22] Speaker 01:
It ended up costing them, they alleged, about $60,000 per running gear, so more than the PDI price even.

[00:18:29] Speaker 01:
But they ultimately performed it.

[00:18:32] Speaker 01:
That goes to the point that there's no impossibility here.

[00:18:36] Speaker 01:
The Raytheon case, which we cited, talks about when the contractors actually performed, the commercial impossibility or commercial impracticability argument is very hard to prevail on, because the evidence shows that it's possible to perform it.

[00:18:52] Speaker 02:
Well, they've tripled the cost by now.

[00:18:55] Speaker 02:
So doesn't impossibility include some astronomical price?

[00:19:02] Speaker 02:
At some level, anything is possible commercially, as long as you want to pay exorbitant price.

[00:19:07] Speaker 02:
Doesn't the fact that this costs $60,000 sort of get closer to it's impossible as a practical matter?

[00:19:16] Speaker 01:
Well, I think it doesn't with $60,000.

[00:19:19] Speaker 01:
I think astronomical is not $60,000.

[00:19:23] Speaker 01:
In a trailer that cost $200,000, where they were already paying $20,000 for the part that was 50% of the trailer, suggesting it may have been underpriced, an increase of $20,000 or $40,000 for that.

[00:19:36] Speaker 01:
Tripling the cost.

[00:19:38] Speaker 01:
Tripling the cost of the subcomponent.

[00:19:39] Speaker 01:
But the cases that talk about commercial impossibility, and again, the Raytheon case,

[00:19:47] Speaker 01:
you look at the entire cost of the contract.

[00:19:49] Speaker 01:
So you can't just look at the cost of the price.

[00:19:51] Speaker 01:
If they were purchasing a tire that went from $20 to $120, you could say that quadrupled or quintupled the price.

[00:19:58] Speaker 01:
But in the scheme of the overall trailer, that's $200,000.

[00:20:04] Speaker 01:
That's not astronomical.

[00:20:05] Speaker 01:
That's not such a commercial impracticability that becomes, I think, the language is commercially senseless to perform.

[00:20:15] Speaker 01:
Surely, they didn't calculate this properly.

[00:20:18] Speaker 01:
They lost profit.

[00:20:19] Speaker 01:
But profitability and their profit margins is not the guiding factor.

[00:20:23] Speaker 01:
It's whether it's... And it's actually the... Has this contract expired now?

[00:20:27] Speaker 02:
It's been performed?

[00:20:28] Speaker 02:
Are we into a follow-on contract?

[00:20:31] Speaker 01:
Both contracts have been performed.

[00:20:36] Speaker 01:
I believe the follow-on... Certainly, the first contract has been performed, Your Honor.

[00:20:39] Speaker 01:
The follow-on contract, there's some dispute that's pending at the board.

[00:20:43] Speaker 01:
that you discussed about.

[00:20:45] Speaker 01:
There are some issues with delivery of the trailers and some other issues.

[00:20:51] Speaker 01:
I am not entirely sure whether all the trailers have been delivered.

[00:20:55] Speaker 01:
The contract, the following contract, allowed for about 80 trailers or so.

[00:20:59] Speaker 01:
But the government didn't have to purchase all 80.

[00:21:01] Speaker 01:
It was sort of standard that government could order.

[00:21:03] Speaker 03:
So it was a 2012 contract, and it might not have been completed yet, really?

[00:21:09] Speaker 01:
I'm not sure that the final deliveries have been done.

[00:21:13] Speaker 01:
But yes, Your Honor, the follow-on contract, it has taken a while.

[00:21:18] Speaker 01:
The approval, it took them extra time to get the running gear authorized by the government.

[00:21:36] Speaker 01:
I just want to make one final point on the issue of cardinal change that you discussed with Mr. Johns and whether the work goes beyond the scope.

[00:21:46] Speaker 01:
That, again, is a factual inquiry.

[00:21:48] Speaker 01:
This court in Rumsfeld said that that's principally a factual inquiry.

[00:21:53] Speaker 01:
Plains of Appellants cited Rumsfeld in its reply.

[00:21:57] Speaker 01:
We didn't have an opportunity to respond.

[00:21:59] Speaker 01:
But the court, again, at appendix seven, said that this was the same product.

[00:22:03] Speaker 01:
It was the same specifications.

[00:22:06] Speaker 01:
It costs more, but it doesn't constitute a cardinal change because of the scope of the contract.

[00:22:12] Speaker 01:
If this court has no further questions, we respectfully request that the judgment below be affirmed.

[00:22:22] Speaker 04:
Thank you, counsel.

[00:22:22] Speaker 04:
Mr. Johns has about three and a half minutes of the wattle time.

[00:22:27] Speaker 04:
I guess it's four and a half minutes.

[00:22:29] Speaker 00:
Thank you again.

[00:22:30] Speaker 00:
A few issues.

[00:22:35] Speaker 00:
In our brief, we did challenge this finding of the trial court that PDI was available to make these trailers, but simply at a higher price.

[00:22:50] Speaker 00:
And the origin of the higher price came from testimony and not from any actual purchase order.

[00:23:01] Speaker 00:
And in fact, we have a quote.

[00:23:04] Speaker 00:
We had a quote from PDI on the 27th of February 2012 and that was provided to support the second contract.

[00:23:20] Speaker 00:
Now there was some discussion about the second contract.

[00:23:23] Speaker 00:
The second contract still had PDI as a required vendor in the tech data package.

[00:23:29] Speaker 00:
It was still a source controlled vendor.

[00:23:33] Speaker 00:
The government knew

[00:23:35] Speaker 00:
that as of March 8, that PDI was no longer going to produce.

[00:23:40] Speaker 00:
And so the US Aero team had to quote to PDI because they were the required source in the tech data package in the RFP for the contract.

[00:23:53] Speaker 00:
And again, the timing there, their proposal was submitted on the 7th of May.

[00:23:58] Speaker 00:
the direction to build in-house doesn't occur until May 12.

[00:24:06] Speaker 00:
So I think that those are significant.

[00:24:10] Speaker 00:
And in fact, the court even, in looking at the issue of impracticability, and this is page 845 of the trial transcript, the court talks about the increase in price

[00:24:27] Speaker 00:
And the court said, did that make them an unavailable source?

[00:24:32] Speaker 00:
I guess.

[00:24:33] Speaker 00:
But it was also a matter of choice on the part of the plaintiff not to pay the higher price.

[00:24:38] Speaker 00:
So certainly, the trial court also is saying here that, yeah, perhaps they are unavailable.

[00:24:48] Speaker 00:
if we believe that the evidence truly showed that they could have produced those trailers at that price.

[00:24:58] Speaker 00:
And I think that the evidence just doesn't show that.

[00:25:02] Speaker 00:
On the Rumsfeld case, we've cited that Rumsfeld case explicitly rejects the notion that only if that

[00:25:17] Speaker 00:
explicitly rejects the notion that you can't have a cardinal change if it's the same end product.

[00:25:27] Speaker 00:
Rumsfeld, as Mr. Hellman says, it talks about the case-by-case factual inquiry.

[00:25:33] Speaker 00:
But it specifically rejects the notion that if you have the same end product, you can't have a cardinal change.

[00:25:40] Speaker 04:
Didn't Rumsfeld?

[00:25:42] Speaker 04:
of denying equitable adjustment?

[00:25:44] Speaker 00:
They did in that case, Your Honor.

[00:25:47] Speaker 00:
It was related to packing MREs, is my recollection.

[00:25:53] Speaker 00:
So the end result was not favorable to the plaintiff.

[00:25:56] Speaker 00:
But the question of law is applicable to us here, that it's not enough to say, well, you were making

[00:26:05] Speaker 00:
TT-90 trailers before.

[00:26:07] Speaker 00:
You're still making a TT-90 trailer.

[00:26:10] Speaker 00:
You can't have a cardinal change in the contract.

[00:26:14] Speaker 00:
The change from purchasing the running gear to manufacturing it in-house was a significant change.

[00:26:26] Speaker 00:
And as the trial court pointed out, the contracting officer invited US Aeroteam to submit an REA.

[00:26:35] Speaker 00:
And they did.

[00:26:36] Speaker 00:
And the REA was eventually rejected by a subsequent contracting officer.

[00:26:46] Speaker 00:
But the constructive change analysis was never performed by that contracting officer.

[00:26:54] Speaker 00:
The trial court isn't bound by that contracting officer, but it is illustrative of the history of the process.

[00:27:01] Speaker 00:
Certainly, Mr. Abney,

[00:27:04] Speaker 00:
expected that there would be a submission request for costs.

[00:27:08] Speaker 00:
And I see my time has expired.

[00:27:10] Speaker 04:
Thank you, counsel.

[00:27:12] Speaker 04:
We will take the case on the submission.

[00:27:16] Speaker 04:
That concludes our arguments for today.