[00:00:00] Speaker 02:
Our next case for argument is 24-1006, Amatya versus the Secretary of the Navy.

[00:00:08] Speaker 03:
Good morning, your honors.

[00:00:10] Speaker 03:
May it please the court, my name is Arne Mason.

[00:00:12] Speaker 03:
I'm with the law firm of Williams Mullen, and I'm counsel for the appellant Amatea Grimberg Joint Venture, a joint venture to build and design the P166 Energetic Systems Laboratory Complex that you know.

[00:00:25] Speaker 03:
As you know, we're here for two issues on appeal.

[00:00:29] Speaker 03:
The constructive acceleration claim.

[00:00:32] Speaker 03:
and specifically whether we met our burden to establish excusable delay on that constructive acceleration claim as well as the work hours claim and whether we met our burden to show that the contracting officer failed to exercise reasonable discretion in denying weekends and Saturday work in breach of the duty of good faith and fair dealing.

[00:00:56] Speaker 03:
subject to any questions you have, I wanted to go over the key facts that I think set the table for the issues on appeal and then hit a few of the major primary issues that I think are important to deciding.

[00:01:08] Speaker 02:
I mean, I think we know the facts.

[00:01:10] Speaker 02:
Can I ask you to start with your second issue first, which is the work hours one?

[00:01:14] Speaker 02:
And in particular, what I'm hoping you're going to do is walk me through documentation.

[00:01:17] Speaker 02:
Because the briefs from the two parties are like ships passing in the night with regard to the level of specificity that was inherent in both the request for extra hours and the response from the Navy denying the extra hours.

[00:01:29] Speaker 02:
So I'm hoping maybe you can point to me something in the documents that I can look at that shows me in the opening.

[00:01:36] Speaker 02:
I've got a lot of volumes of appendices over here.

[00:01:38] Speaker 02:
I'd love to see one of your requests for extra hours.

[00:01:41] Speaker 02:
Where is it explained?

[00:01:42] Speaker 02:
What reason did you give?

[00:01:44] Speaker 02:
What was the level of specificity of that so that I can understand whether the contracting officer abused her discretion when she denied that request?

[00:01:53] Speaker 02:
So if you could show me one of those requests, that would be really great.

[00:01:57] Speaker 03:
Yes, Your Honor, certainly.

[00:02:18] Speaker 01:
Here we go.

[00:02:51] Speaker 03:
On January so and I will give you this sites Your honor on January 20th, I would be great first, okay?

[00:03:03] Speaker 03:
Page so a PX 2793 is where I will start and that's in volume Let me see

[00:03:38] Speaker 04:
2793 2793 Did you all just file the entire rule for files here?

[00:03:50] Speaker 03:
I don't think we did.

[00:03:53] Speaker 04:
There's an awful lot of documents here.

[00:03:55] Speaker 03:
There is an awful lot of documents, and that's why I apologize for the length of time.

[00:03:59] Speaker 03:
I can tell you the description, and I can give you the site, but finding the pages may take up all of my time.

[00:04:07] Speaker 01:
Would you be prepared to discuss the facts?

[00:04:09] Speaker 03:
No, no, I'm prepared to discuss the facts, Your Honor.

[00:04:12] Speaker 03:
On January 25th, the... So I'm on page 2793.

[00:04:20] Speaker 02:
I'm looking you said two seven nine three, correct Yes, there's there's several pages two seven nine.

[00:04:25] Speaker 02:
I'm just looking at where there is a request here for Saturday work I'm sorry.

[00:04:30] Speaker 04:
I'm not I'm not there two seven nine three is unless I'm mistaken not it

[00:04:36] Speaker 03:
OK.

[00:04:39] Speaker 03:
I'm sorry.

[00:04:40] Speaker 03:
I'm going to go to 192.

[00:04:41] Speaker 02:
You know what?

[00:04:43] Speaker 02:
If you want, why don't we move on?

[00:04:45] Speaker 02:
You can maybe do this on rebuttal.

[00:04:46] Speaker 02:
And perhaps that's why you have a second chair, and she can find the actual documents.

[00:04:50] Speaker 02:
Then we can talk about them on your rebuttal.

[00:04:52] Speaker 02:
Does that make sense?

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

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

[00:04:55] Speaker 02:
So why don't you move on then?

[00:04:56] Speaker 02:
I mean, what my understanding is, is the Navy, I mean, if we're only able to talk broad strokes, the Navy actually granted you three of your requests for Saturdays.

[00:05:07] Speaker 02:
So they didn't, the contracting officer did not flat out deny

[00:05:11] Speaker 02:
your request to work Saturdays, that you were granted three Saturdays.

[00:05:13] Speaker 02:
Is that correct?

[00:05:14] Speaker 03:
That's correct.

[00:05:15] Speaker 02:
And that also she granted you 12-hour work days extending the 8.5-hour work day longer at your request also, correct?

[00:05:22] Speaker 03:
That is also correct.

[00:05:23] Speaker 02:
So it's not the case that the contracting officer just issued a blanket rejection.

[00:05:28] Speaker 02:
She in fact granted a number of the requests that you made.

[00:05:32] Speaker 03:
Your Honor, she did grant a number of requests we made, that the client made.

[00:05:37] Speaker 03:
They also had blanket denials where they said that working on weekends and second shifts was not an avenue available on this project.

[00:05:45] Speaker 03:
It was not really accommodating.

[00:05:46] Speaker 04:
And she gave a reason, right?

[00:05:47] Speaker 04:
Her reason was there's increased cost to the Navy because they had to have personnel on site.

[00:05:53] Speaker 04:
that would require overtime payment that wouldn't be covered by the contract, and that also she personally made a site visit and found the work to not be productive.

[00:06:03] Speaker 04:
How is that not an exercise of particularized discretion?

[00:06:10] Speaker 03:
Thank you, Your Honor.

[00:06:11] Speaker 03:
She did make those statements.

[00:06:14] Speaker 03:
The failure to be able to fund inspectors to be there on a Saturday should not be a reasonable basis to deny a request to work on Saturdays on this project, because the contract required that the discretion be exercised based upon the justification provided.

[00:06:34] Speaker 03:
provided by the contractor.

[00:06:36] Speaker 03:
And if budgetary concerns, the inability.

[00:06:38] Speaker 02:
See, part of the problem for me is I couldn't find any justification provided by you anywhere.

[00:06:43] Speaker 02:
And that's why I wanted you to show me the documents.

[00:06:45] Speaker 02:
Because I knew you were going to make this argument.

[00:06:47] Speaker 02:
And that's why I want to see the documents and see exactly what reason you gave the contracting officer for needing to work.

[00:06:53] Speaker 02:
Because I think that your requests seem, based on what I could find, to be as broad and nonspecific as you allege their denials were.

[00:07:03] Speaker 02:
So I don't see how she didn't.

[00:07:06] Speaker 02:
And you can't find the pages.

[00:07:07] Speaker 02:
I couldn't find the pages.

[00:07:08] Speaker 02:
I looked.

[00:07:09] Speaker 04:
I mean, the days she gave you on Saturday were because you had a good reason, I think, because there was specific utility work that needed to be done.

[00:07:17] Speaker 04:
That sounds like that's a good reason to work on Saturday.

[00:07:20] Speaker 04:
And it sounds like she granted those requests.

[00:07:23] Speaker 04:
But if you just say you need to work on Saturday because you're not getting your work done, that may not be a very good reason.

[00:07:32] Speaker 03:
First, the specific pages for the work hours request are cited in the briefs to the appendix.

[00:07:38] Speaker 03:
They are there.

[00:07:39] Speaker 03:
And I can go through that on rebuttal, but they are there.

[00:07:42] Speaker 03:
One of them asks for the ability to have a second shift without being interrupted by other trades and without the lower productivity of working extended hours, a 12-hour shift, to have a second shift or a Saturday shift specifically to finish the flooring, the drywall, and the painting.

[00:07:57] Speaker 03:
Because, now to your point,

[00:07:59] Speaker 03:
The three that they granted were for utility allergists for the benefit of the government.

[00:08:03] Speaker 03:
They did not want their operations interrupted.

[00:08:05] Speaker 03:
They didn't want the power down.

[00:08:07] Speaker 03:
So that's why those were granted.

[00:08:09] Speaker 03:
But that wasn't for the contractor's benefit.

[00:08:11] Speaker 03:
The contractor who bid this job

[00:08:13] Speaker 03:
In their experience, if they are behind the schedule and liquidated damages are being assessed, as they were beginning March 30, 2012, not only do you have this work hours provision, you also have the provision in there that calls for allowing the contractor or requiring the contractor to work extra shifts or extra hours, that the government, if they were concerned about inspection costs, they could have simply granted time and then there would not have been a need

[00:08:40] Speaker 03:
to accelerate, right?

[00:08:42] Speaker 03:
They could have granted a no-cost time extension if they were concerned about the cost of inspection.

[00:08:46] Speaker 03:
But when a contract is behind schedule and the government has a duty to mitigate damages, as does the contractor, it is reasonable to ask to work Saturdays and second shifts, as was the case on the same base.

[00:08:57] Speaker 03:
I don't understand.

[00:08:58] Speaker 04:
You think you went into this contract with an expectation that even though it said you had to give a specific reason to work on Saturdays or extended hours, that you would just get acceptance of everything you asked for?

[00:09:10] Speaker 03:
There was no expectation of acceptance of everything that was asked for.

[00:09:13] Speaker 04:
The board looked at this.

[00:09:15] Speaker 04:
They said the evidence you all put forward on how you expected this provision to be interpreted couldn't possibly have been in place at the time of the contract because it was based upon contracts that were bid after this one.

[00:09:30] Speaker 04:
Except for the explosives contract, which is on the same site They agreed that that was a year before and that the provision was materially the same I mean it makes your evidence pretty suspect when you point to that one and then two others that couldn't possibly relate to this issue Well in the general experience of you have a really hard center review on this question because first of all you have to show Not just that the contracting officer views her discretion But there's no substantial evidence for the board's decision that the contracting officer didn't abuse her discretion

[00:10:00] Speaker 01:
And the contract says May.

[00:10:03] Speaker 03:
The contract does say May.

[00:10:04] Speaker 03:
But during the period that's really at focus here, when the liquidated damages are being assessed after March 29th until substantial completion of the contract, not one single request was granted.

[00:10:16] Speaker 01:
I didn't mean to interrupt.

[00:10:20] Speaker 04:
Again, it's not really useful to talk about this in the abstract, because clearly the contracting officer had a discretion.

[00:10:30] Speaker 04:
We know her reasons for denying a lot of these requests.

[00:10:33] Speaker 04:
We need to look at a specific request if you gave a specific reason, and the contracting officer was arbitrary or bad faith in denying it.

[00:10:43] Speaker 04:
It's not just, oh, we're behind.

[00:10:45] Speaker 04:
We need to catch up work.

[00:10:47] Speaker 04:
The contract didn't allow you to do that.

[00:10:52] Speaker 04:
The contract allowed the contractor... Your position is, seems to me that once a contractor gets behind and you ask for additional work time on Saturday, you got to grant it, otherwise the government's acting in bad faith.

[00:11:05] Speaker 03:
No, not that you have to grant it, that if you grant maybe 5% of the request, that would have mitigated the delay.

[00:11:12] Speaker 03:
That's actually what worked out here.

[00:11:13] Speaker 03:
Right?

[00:11:14] Speaker 03:
Five percent.

[00:11:15] Speaker 03:
They were 27 days late, ultimately.

[00:11:16] Speaker 03:
None of the requests during the time period I'm talking about after liquidated damages are assessed, none of the requests are granted here.

[00:11:23] Speaker 03:
Had even five percent been granted, that would be 27 shifts, Your Honor, and that would be sufficient to recover the time.

[00:11:28] Speaker 03:
Or if the government did not have the funding for the inspection, which turned out to be the case, something not disclosed in the contract, then they could have granted the extended time.

[00:11:37] Speaker 03:
There would not be a need for the second shift, and that would be at no cost to the government.

[00:11:40] Speaker 03:
But they chose not to.

[00:11:43] Speaker 02:
uh... withholding payments extended time is going to understand the facts do you mean longer from twelve hour day or do you mean they should have just uh... not made you

[00:11:52] Speaker 02:
complete the contract on the time you're supposed to complete the contract.

[00:11:55] Speaker 03:
I mean, extending the contract time.

[00:11:57] Speaker 02:
Well, see, that doesn't make sense.

[00:11:59] Speaker 02:
What's the point of the liquidated damages if the government has no choice but to give you an extension?

[00:12:04] Speaker 02:
I mean, the whole point of the liquidated damages provision in these contracts is to hold you accountable to a timeline.

[00:12:09] Speaker 03:
Yes, Your Honor.

[00:12:10] Speaker 03:
However, they ultimately determined that there was a time extension due that they granted after the project was complete.

[00:12:15] Speaker 03:
But during the project, they withheld that time extension.

[00:12:18] Speaker 03:
They assessed liquidated damages, and they denied the right to work a single

[00:12:21] Speaker 03:
second shift or a Saturday and those facts are undisputed.

[00:12:29] Speaker 03:
You've wanted to focus on the work hours and I know I'm supposed to save time for rebuttal to go through the work hours request.

[00:12:36] Speaker 03:
Do you like to go to the ESS or do you not want to go there?

[00:12:39] Speaker 03:
or the Constructive Acceleration Claim, excuse me.

[00:12:42] Speaker 02:
Why don't you touch on it briefly so that you can touch on that firm bottle if you need to.

[00:12:45] Speaker 04:
How can you make a Constructive Acceleration Claim when you didn't provide an expert with a critical path analysis?

[00:12:54] Speaker 04:
So let's talk about that.

[00:12:56] Speaker 04:
The Navy did.

[00:12:56] Speaker 04:
And the Navy's expert?

[00:12:58] Speaker 04:
Yeah, and the Navy's expert says none of the delays were due to the critical path.

[00:13:02] Speaker 03:
That's not exactly right.

[00:13:04] Speaker 03:
The Navy's expert, the Delta report, found that there was no excusable delay from November 2011 going forward.

[00:13:12] Speaker 03:
But the Navy's expert also found that the sprinkler plane, for which my client did ask for a time extension and said it was concurrent with the electronic security system, the Navy's expert found that, in fact, the sprinkler plane was a longer path and caused a 62-day delay during window three of its analysis.

[00:13:29] Speaker 03:
And the board found that that sprinkler claim, the different site condition for the water pressure and the standpipe, was not my client's responsibility, but in fact a change to the contract.

[00:13:42] Speaker 03:
The Delta report assumed that the issue, the sprinkler claim, was the responsibility of my client.

[00:13:48] Speaker 03:
That's specifically what the expert says.

[00:13:50] Speaker 03:
That's why

[00:13:51] Speaker 03:
The Delta expert didn't allocate 62 days of delay to the government.

[00:13:54] Speaker 03:
But a proper application by the board of the Navy's expert analysis, if that's what they're relying on, would require a finding of excusable delay based on the Navy's expert testimony.

[00:14:04] Speaker 01:
You mentioned the sprinkler system, not ESS, which I thought was the focus of the argument here.

[00:14:10] Speaker 03:
I mentioned the sprinkler system because Judge Hughes asked about a schedule analysis.

[00:14:14] Speaker 03:
But you've got compensation for the sprinkler system delays.

[00:14:18] Speaker 03:
No.

[00:14:19] Speaker 03:
Now, there were no compensation for the sprinkler system delays.

[00:14:22] Speaker 04:
And there was a- There was changes to the- I mean, I just read the board's decision, the pipes and stuff.

[00:14:29] Speaker 04:
They said that was the government's responsibility.

[00:14:30] Speaker 04:
They gave you more money, didn't they?

[00:14:32] Speaker 03:
They did for the direct cost of the work.

[00:14:34] Speaker 03:
But because what we're talking about here on constructive acceleration,

[00:14:38] Speaker 03:
If the contractor asked for time, that it's due because there's an excusable delay, and delta found sprinkler was excusable delay, and that time extension is denied, it was, then that is a constructive acceleration of the work.

[00:14:52] Speaker 03:
So it is an alternative theory to excusable delay.

[00:14:56] Speaker 03:
I say that because you asked about the expert.

[00:14:58] Speaker 03:
So that's delta.

[00:15:00] Speaker 03:
I would also point out that under the doctrine

[00:15:05] Speaker 03:
The Sunship Building case calls for a contract that cannot be made to pay the liquidated damages for performing extra work by not granting a time extension

[00:15:19] Speaker 03:
During the project, the government effectively made the contractor pay for those liquidated damages during performance.

[00:15:27] Speaker 03:
A time extension should have been granted for extra work that was directed after the contract completion date, including the electronic security system, which was finalized in June of 2012.

[00:15:36] Speaker 03:
the scope of work, and the sprinkler, which the redesign was approved in April 29, 2012.

[00:15:43] Speaker 03:
Both of those events occurred after the contract completion date.

[00:15:46] Speaker 02:
I'm going to restore a little bit of your rattle time.

[00:15:48] Speaker 02:
Before you sit down, can you just address for me what I'm reading at 39 and 40 of the appendix of the decision below, where they go through problems that affected completion that had nothing to do with ESS or the sprinkler system.

[00:16:01] Speaker 02:
And so why isn't that a sufficient basis to affirm the board decision?

[00:16:07] Speaker 03:
So it's not because it is true that this project had other delays that extended it out to September 18, 2012 when it was ultimately completed to establish a claim.

[00:16:19] Speaker 03:
for entitlement of constructive acceleration, we have to establish that there is excusable delay.

[00:16:25] Speaker 03:
We do not have to establish that that excusable delay explains the entire delay, because they did not grant a single day past March 29 during the project.

[00:16:34] Speaker 03:
So if there's a single delay of an excusable delay during project performance that is not

[00:16:40] Speaker 03:
granted, that meets the element.

[00:16:42] Speaker 03:
So you don't have to prove that ESS or sprinkler would cause the project to complete in September 18, 2012 because the government denied it.

[00:16:51] Speaker 02:
I thought you had to prove, and maybe I just don't understand this law, which is entirely possible and I'm open to correction, but I thought you had to prove that the excusable delay you're talking about affects the critical path.

[00:17:03] Speaker 02:
And if the government can establish

[00:17:05] Speaker 02:
that you would not have completed for other reasons, independent of that reason, then you haven't met the critical path portion.

[00:17:14] Speaker 02:
Am I right about the law?

[00:17:15] Speaker 02:
No?

[00:17:16] Speaker 02:
OK.

[00:17:16] Speaker 03:
There's a detail here.

[00:17:19] Speaker 03:
It's entirely possible that the sprinkler could cause 62 days of critical path delay, as the Navy's expert found.

[00:17:26] Speaker 03:
And the failure to get the windows done could cause 30 days of delay.

[00:17:30] Speaker 03:
I'm making that number up, right?

[00:17:31] Speaker 03:
So that doesn't prove that my client's entitled to a full-time extension of September 18th, but that's not what this claim is.

[00:17:37] Speaker 03:
This is not a delay claim.

[00:17:39] Speaker 03:
It's a constructive acceleration claim.

[00:17:41] Speaker 03:
I was due a time extension past March 29th, and you denied me any time.

[00:17:48] Speaker 03:
And so because you denied that time, I had to accelerate to meet a date that I could not meet, right?

[00:17:53] Speaker 03:
The electronic security system and sprinkler were both directed after March 29th.

[00:17:58] Speaker 03:
It came after March 29th.

[00:18:01] Speaker 03:
So if it calls 30 days of delay or 62 days of delay, whatever, that's the excusable delay element that I get to meet, because that explains that because I should have been given some time,

[00:18:11] Speaker 03:
even if not the full time, they gave me no time.

[00:18:15] Speaker 03:
So what did I have to do?

[00:18:15] Speaker 03:
What's the board found?

[00:18:16] Speaker 02:
I understand your argument.

[00:18:17] Speaker 02:
Your time is up.

[00:18:18] Speaker 02:
I'll restore a little bit of rebuttal time.

[00:18:20] Speaker 02:
Let's hear from opposing counsel.

[00:18:21] Speaker 02:
Thank you, Your Honor.

[00:18:24] Speaker 02:
Mr. Berg, please proceed.

[00:18:27] Speaker 00:
Good morning, and may it please the court.

[00:18:30] Speaker 00:
Turning to the work hours appeal, as the court referenced, at Appendix 1675, the contract does give the contracting officer substantial discretion here in adjudicating requests for additional time under this

[00:18:42] Speaker 00:
under the performance of this contract.

[00:18:44] Speaker 00:
It is undisputed, as the court is aware, there were 12-hour days granted.

[00:18:48] Speaker 00:
That is an additional 50% of time per weekday to work on the job.

[00:18:52] Speaker 00:
And there was also three Saturdays that were granted as well.

[00:18:55] Speaker 00:
In our brief at page 53, we chronicled the substantial evidence that shows that it was, as a matter of fact, a blanket request by the contractor to work every Saturday during the relevant period in 2012.

[00:19:12] Speaker 00:
There we cite, for example, to Appendix 804, where the contractor asks to work every Saturday from now until the end of the job.

[00:19:19] Speaker 00:
And that is a quote.

[00:19:23] Speaker 01:
So is it your view?

[00:19:24] Speaker 01:
I mean, let's take a hypothetical.

[00:19:27] Speaker 01:
I ask for every Saturday for two months.

[00:19:30] Speaker 01:
That's eight Saturdays.

[00:19:31] Speaker 01:
And then I'm late by eight days.

[00:19:34] Speaker 01:
So clearly, if you had granted me the extra Saturdays, I wouldn't have been late for completion.

[00:19:41] Speaker 01:
established if there's a problem here?

[00:19:43] Speaker 00:
No, Your Honor, because that would be an unlawful extension of the implied due to fair dealing in this case.

[00:19:50] Speaker 00:
The express term in the contract that Appendix 1675 granted the contracting officer discretion to decide whether or not to grant requests for additional work hours.

[00:20:01] Speaker 00:
Contracting officer undoubtedly exercised her discretion in deciding to give the contractor additional 50% per weekday, 12-hour weekdays,

[00:20:11] Speaker 00:
and additionally three Saturdays for particular reasons, as Judge Hughes mentioned, for utilities work.

[00:20:16] Speaker 00:
The standing request to work every Saturday, and per the contractor's position is that the contracting officer had to grant that request at age- Well, is justification enough to say, I'm going to be eight days late unless you give me these eight additional days?

[00:20:35] Speaker 00:
It was never that specific in this case as far as exactly what the time impact was of the failure to grant every Saturday to work.

[00:20:45] Speaker 00:
There is a suggestion in the reply brief that granting them the Saturdays would have lessened perhaps the overage the four weeks past

[00:20:53] Speaker 00:
the contract completion date to the beneficial occupancy date.

[00:20:56] Speaker 00:
However, none of that is supported by a time impact analysis or any expert report.

[00:21:03] Speaker 00:
As Judge Hughes also mentioned, the contractor did not proffer an expert report before the board, such that the board could award any delay days or decide to what extent based on

[00:21:15] Speaker 00:
Appellants showing that there was a question.

[00:21:19] Speaker 02:
You directed us to page 804 and I appreciate that you were able to direct us to a page where an actual request seems to be made.

[00:21:26] Speaker 02:
What is this?

[00:21:26] Speaker 02:
It looks like it's some sort of almost like documented journal back and forth between the contractor and the Navy.

[00:21:33] Speaker 02:
What is it?

[00:21:34] Speaker 00:
What is the document?

[00:21:36] Speaker 00:
My understanding, Your Honor, is that these are meeting minutes.

[00:21:38] Speaker 02:
OK, meeting minutes.

[00:21:40] Speaker 00:
And there is.

[00:21:42] Speaker 02:
Because it says.

[00:21:45] Speaker 02:
AGJV to submit justification.

[00:21:49] Speaker 02:
And then the only thing it says is, we are requesting to work every Saturday from now until the end of the job.

[00:21:54] Speaker 00:
Correct.

[00:21:55] Speaker 02:
I don't see any more specificity than that.

[00:21:58] Speaker 02:
And I'm just asking, you obviously know this record better than I do.

[00:22:01] Speaker 02:
Is there a lot more specificity somewhere in this record for the request?

[00:22:06] Speaker 02:
I mean, I realize I'm kind of asking you to do what he should have done.

[00:22:09] Speaker 02:
And I appreciate that.

[00:22:10] Speaker 02:
But I'm hoping you'll be helpful to the court.

[00:22:13] Speaker 00:
I'm happy to be helpful.

[00:22:14] Speaker 00:
At appendix 938, as well, there is a letter in the record.

[00:22:18] Speaker 00:
And this we also cite at page 53 of our brief, where AGJB is lamenting to the contracting officer, or to a contract specialist specifically, as of January 25, 2012, the government not approving their standing request to work every Saturday.

[00:22:39] Speaker 00:
And this is in the third paragraph on appendix 938.

[00:22:43] Speaker 00:
Again, this is substantial evidence for the board's factual finding that there was a blanket request to work every Saturday during the relevant period in 2012.

[00:22:53] Speaker 00:
The last site on page 53 of our brief, as well as page of the appendix 905, where, again, we have a reference to a standard request to work every Saturday during the relevant period in 2012.

[00:23:19] Speaker 00:
As Judge Hughes referenced with counsel opposite, the contracting officer's discretion was documented.

[00:23:24] Speaker 00:
The contracting officer at Appendix 277 to 278 in her declaration before the board weighed the benefits of granting additional Saturdays against the cost to the government.

[00:23:36] Speaker 00:
The costs to the government were substantial.

[00:23:38] Speaker 00:
There were overtime costs.

[00:23:39] Speaker 00:
There were staffing resource constraints on the contracting officer that she notes in that declaration.

[00:23:44] Speaker 00:
And that is substantial evidence for the reasonableness of having denied the standing request to work every Saturday during 2012, the relevant period under this contract.

[00:23:55] Speaker 02:
Again, just so I understand the specifics, it would have cost the government more money because they would have had to pay someone not just even, they would have to pay someone overtime to be there on a Saturday who wouldn't otherwise be there.

[00:24:05] Speaker 00:
And they were already encountering, incurring, the government was additional expense to administer the contract having already granted 12 hour days during the week as opposed to the standard eight hour days the contract contemplated.

[00:24:20] Speaker 00:
So this would have been additional time on top of what the government had already

[00:24:24] Speaker 00:
decided to grant the contracting officer in her reasonable discretion.

[00:24:29] Speaker 00:
At the end of the day, at the opening brief, page 38, the position of the contractor in this case is that the government was required to, quote, do whatever is necessary to enable it to perform.

[00:24:42] Speaker 00:
And that is wholly at odds with the actual language of the specification we're talking about at appendix 1675,

[00:24:49] Speaker 00:
that grants the Consciency Officer's substantial discretion to adjudicate these types of requests.

[00:24:55] Speaker 00:
That substantial evidence is in the record for this proposition is exhaustively weighed in the board's opinion.

[00:25:04] Speaker 02:
Could I ask you to talk about the excusable delay piece now?

[00:25:07] Speaker 00:
Yes.

[00:25:07] Speaker 02:
Is that okay?

[00:25:07] Speaker 02:
I mean, if you're done with this piece.

[00:25:09] Speaker 00:
Yes.

[00:25:09] Speaker 02:
Okay.

[00:25:10] Speaker 00:
Moving on to the constructive acceleration claim.

[00:25:14] Speaker 00:
The contractor recognizes that it is an essential element of a constructive acceleration claim to prove as a factual matter that they have encountered excusable delay.

[00:25:25] Speaker 00:
It is also undisputed we believe that to recover for excusable delay, it needs to be a delay not caused by the contractor and also affecting the critical path, meaning affecting the overall contract completion date.

[00:25:38] Speaker 01:
And that's what our case says, Sauer and other cases say that.

[00:25:42] Speaker 00:
Correct.

[00:25:42] Speaker 00:
Sauer and as well, we've cited other opinions in there as well, but Sauer versus Danzig is one that we cite.

[00:25:51] Speaker 00:
In this case, at appendix 64, 65, and 63, the board exhaustively goes through the evidence and concludes that there is no evidence of excusable delay in this matter.

[00:26:05] Speaker 00:
Because past the as adjusted contract completion date of August the 22nd of 2012, until the four weeks later in September 18, 2012, when you have beneficial occupancy, substantial completion, there is no evidence that the contractor having done ESS work or having done fire sprinkler work

[00:26:25] Speaker 00:
caused them to be working past the contract completion date.

[00:26:29] Speaker 00:
But rather, as the board chronicles, there was efforts to finish the windows, the roof, the HVAC system during that period that had nothing to do with the ESS or the fire sprinkler issue that they allege caused delay.

[00:26:45] Speaker 00:
Again, to Judge Hughes's point, the contractor failed to put forth a expert

[00:26:54] Speaker 00:
delineating what and whether the delays that they alleged before the board affected the critical path.

[00:27:01] Speaker 00:
The board properly weighed the expert report of the government, Mr. Reichard.

[00:27:07] Speaker 00:
Contrary to the arguments of opposing counsel, the board did not abuse its discretion in considering Mr. Reichard's analysis.

[00:27:14] Speaker 00:
The board did not inappropriately credit a

[00:27:18] Speaker 00:
delay attribution at odds with the government's findings, particularly the board.

[00:27:24] Speaker 00:
Mr. Reichard attributed 62 days of delay to the contractor for the sprinkler system.

[00:27:30] Speaker 00:
The board, yes, found a differing site condition and a change regarding the sprinkler system.

[00:27:36] Speaker 00:
The board did not credit that portion of Mr. Reichard's opinion.

[00:27:39] Speaker 00:
The board made no error there.

[00:27:41] Speaker 01:
I thought one of the rationales for the Board of Contract Appeals was that if you take the amount of time, the excusable delay for the sprinkler and the ESS, that was less than the extensions, or at least equal to the extensions that the government and the Navy granted.

[00:27:57] Speaker 00:
The board does note at the end of the opinion, Your Honor, I believe at Appendix 64, that even if there was delay caused by

[00:28:08] Speaker 00:
the ESS or the sprinkler system, there's no way that it was more time than the government granted.

[00:28:16] Speaker 00:
And in this case, after contract completion had finished in September of 2012, the government did release 141 days, sorry, 146 days, 91 plus 55.

[00:28:35] Speaker 00:
of liquidated damages and adjusted the contract completion date accordingly.

[00:28:39] Speaker 00:
That resulted in the contractor receiving over $750,000 extra remission on the liquidated damages piece.

[00:28:48] Speaker 00:
The board did not err in exhaustively weighing the evidence.

[00:28:52] Speaker 00:
There is no legal issue in this case, but rather it is a substantial evidence question and substantial evidence supports the board's conclusion to deny

[00:29:02] Speaker 00:
both the work hours appeal and the constructive acceleration appeal.

[00:29:08] Speaker 02:
Okay, thank you, Mr. Burke.

[00:29:09] Speaker 00:
Thank you.

[00:29:12] Speaker 02:
Mr. Mason, I'll give you two minutes of rebuttal time.

[00:29:21] Speaker 03:
Thank you, Your Honor, and I appreciate the additional time.

[00:29:26] Speaker 03:
On APPX 2972,

[00:29:32] Speaker 03:
volume six.

[00:29:36] Speaker 01:
2972 volume six.

[00:29:42] Speaker 03:
2972 volume six.

[00:29:58] Speaker 04:
I mean, this letter is the same letter that the government council just pointed us to on a different page, isn't it?

[00:30:04] Speaker 04:
Where it says the exact same thing.

[00:30:07] Speaker 03:
So this letter is important.

[00:30:09] Speaker 03:
It's January 25, 2012, two months before the contract completion date.

[00:30:13] Speaker 03:
It provides a summary of the different requests up to that point in time.

[00:30:18] Speaker 03:
up to work weekends, and it provides an explanation as to why.

[00:30:23] Speaker 03:
And the main reason why is the job is behind.

[00:30:26] Speaker 04:
It talks about only... Look, the problem with your argument is that if that's a good enough reason to make it arbitrary for the CO to deny

[00:30:40] Speaker 04:
The weekend request, it basically grants you the weekend request automatically.

[00:30:45] Speaker 04:
You say, oh, we're behind.

[00:30:47] Speaker 04:
We need to work Saturdays.

[00:30:49] Speaker 04:
And then the CEO comes back and says, well, you can't work Saturdays because we don't have the funding to provide personnel to monitor your work, and blah, blah, blah.

[00:30:58] Speaker 04:
That can't be a good enough reason to find an abuse of discretion.

[00:31:01] Speaker 04:
Otherwise, there would basically be no reason to have to be given other than we're behind.

[00:31:06] Speaker 03:
Well, I think from my client's perspective,

[00:31:09] Speaker 03:
when a job is behind based on disputed issues of responsibility for delay, and the contract allows a way to recover that time by the contractor at his own expense working a second shift or a Saturday.

[00:31:22] Speaker 03:
That's not what that clause says, though.

[00:31:25] Speaker 04:
The clause gives the contracting officer discretion.

[00:31:28] Speaker 04:
And not only did the contracting officer determine that it would not be in the interest of the government because of the financial impact, the contracting officer determined that the one day she visited, no productive work was being done anyway.

[00:31:44] Speaker 03:
Yes, that's what she said.

[00:31:45] Speaker 03:
The one day that she visited, there was no productive work going on.

[00:31:48] Speaker 04:
So that's substantial evidence.

[00:31:50] Speaker 03:
That is completely contradicted and undermined by the daily report that reflects the look that was put on that day.

[00:31:55] Speaker 04:
We're not reweighing the evidence.

[00:31:56] Speaker 04:
We look at substantial evidence.

[00:31:58] Speaker 04:
And the board found her testimony credible.

[00:32:01] Speaker 04:
And that's substantial evidence.

[00:32:05] Speaker 03:
On the issue of excusable delay and critical path analysis,

[00:32:11] Speaker 03:
When you're talking about a critical path and whether it extends the project completion date, you don't have to prove 100% of the delay is one party's responsibility.

[00:32:20] Speaker 03:
And I go to the sprinkler example because the Navy's expert found that to be 62 days of delay on the critical path.

[00:32:27] Speaker 03:
That's sufficient for establishing the element of excusable delay for constructive acceleration.

[00:32:32] Speaker 03:
That alone is the proper basis to reverse the board's findings on excusable delay.

[00:32:37] Speaker 02:
OK, counsel, I thank you.

[00:32:38] Speaker 02:
I thank both counsel.

[00:32:39] Speaker 02:
This case is taken under submission.