[00:00:00] Speaker 04:
Our next case is 23-2229 Balfour B&T Construction LLC versus the GSA.

[00:00:10] Speaker 04:
Mr. Dupree, you reserve three minutes of time for rebuttal, correct?

[00:00:18] Speaker 04:
Correct.

[00:00:18] Speaker 04:
All right, you may start whenever you want.

[00:00:28] Speaker 00:
Thank you, Judge Raina.

[00:00:29] Speaker 00:
And may it please the court, Tom Dupree on behalf of Balfour Beatty.

[00:00:33] Speaker 00:
The board committed legal error and misinterpreted our contract when it forced Balfour Beatty to bear the costs of the government's own flawed bridging design, its failure to share its superior knowledge of the true conditions of the project site, and all the resulting delays that this- Dupree, you've got a number of issues here.

[00:00:53] Speaker 03:
Which do you think is the most important one?

[00:00:56] Speaker 03:
And what I'm thinking of is you've got the mat slab issue, the generators issue kind of together.

[00:01:04] Speaker 03:
Then you've got the contaminated soil, the contaminated water, and certain other different site conditions.

[00:01:13] Speaker 03:
Which, to you, do you think is important for you to focus on in argument?

[00:01:18] Speaker 00:
Because we obviously can't touch on all of them.

[00:01:20] Speaker 00:
Sure.

[00:01:20] Speaker 00:
I'd like to focus today, if I could, on the design issue, which encompasses MAT slab generators and encompasses many aspects of the flawed design, and also the delay issues.

[00:01:31] Speaker 00:
If we have time to... It's the 107 days.

[00:01:34] Speaker 00:
Well, yes.

[00:01:35] Speaker 00:
We have different components of delay.

[00:01:36] Speaker 00:
I think it's 171

[00:01:38] Speaker 00:
for the piece that we'll focus on today, which is the pre-excavation delay.

[00:01:43] Speaker 00:
But if I could begin with the design claims.

[00:01:45] Speaker 00:
And here, the board committed a fundamental legal error when it said that the controlling authority in this case is Mortenson, excuse me, is Floor rather than Mortenson.

[00:01:56] Speaker 00:
In this case, the government chose to use a design, build, bridging project delivery method.

[00:02:03] Speaker 00:
Under the board's decision in Mortenson, and frankly, the United States Supreme Court decision in Spearin,

[00:02:08] Speaker 00:
That means that the government warranted its portion of the design.

[00:02:13] Speaker 00:
And that's confirmed by the language of the contractor.

[00:02:15] Speaker 00:
Do they have to specifically warrant it?

[00:02:17] Speaker 00:
They don't, Your Honor.

[00:02:18] Speaker 00:
In fact, this court in white refers to it as an implied warranty.

[00:02:22] Speaker 00:
That, going back to Spearant,

[00:02:24] Speaker 00:
When the government gives design specifications, as it's undisputed they did here, that carries with it an implied warranty.

[00:02:31] Speaker 00:
We were directed to build to that 30% design.

[00:02:34] Speaker 00:
We were prohibited from deviating from it.

[00:02:37] Speaker 00:
And we were, in fact, directed to rely on that design in submitting our price proposal.

[00:02:42] Speaker 00:
And of course, it turned out that the design, again, undisputed, couldn't be built.

[00:02:47] Speaker 00:
It was flawed in many ways.

[00:02:49] Speaker 00:
And where the board went awry, Your Honor, is simply excusing the government from the fact that it had warranted its design.

[00:02:58] Speaker 00:
So for that reason, Judge Schall, I think that first issue, our design claim, which encompasses, again, multiple aspects of the design,

[00:03:05] Speaker 00:
I think should be reversed by this court on the basis that the board simply applied the wrong law when it said that floor, which is a design build case where the contractor designs it, it said floor was the controlling authority, not Mortenson.

[00:03:19] Speaker 00:
Clear and indisputable error.

[00:03:22] Speaker 03:
One question.

[00:03:24] Speaker 03:
It's mentioned in the brief.

[00:03:26] Speaker 03:
What exactly is this process that's referred to as, and I think it's in the spec, too, this process that's referred to as validation.

[00:03:35] Speaker 03:
What was supposed to happen there, and what was it supposed to achieve?

[00:03:40] Speaker 00:
Sure.

[00:03:40] Speaker 00:
Validation occurs after contract award.

[00:03:43] Speaker 00:
And that's when the contractor actually starts kicking the tires and double checks the work that was designed.

[00:03:48] Speaker 00:
But before work has started.

[00:03:49] Speaker 00:
Correct.

[00:03:51] Speaker 00:
Yes, before work is started.

[00:03:52] Speaker 00:
But the key point, I think the relevant point here, is that validation occurs after the price is locked in, after the project has been awarded, after the bid has been made.

[00:04:02] Speaker 00:
That's when validation occurs.

[00:04:04] Speaker 00:
So if the contractor discovers an error during the validation process, well that might require, that would require, a price adjustment.

[00:04:12] Speaker 00:
That's the key point here.

[00:04:13] Speaker 03:
What is the contractor supposed to do during the validation process?

[00:04:16] Speaker 00:
What is his responsibility?

[00:04:18] Speaker 00:
They typically, as I said, kick the tires on the work that's done.

[00:04:22] Speaker 00:
That can involve double checking the calculations, making sure that it can actually be built.

[00:04:27] Speaker 00:
Again, it's looking over the shoulder of the work that the government did in the original design.

[00:04:32] Speaker 00:
The design work.

[00:04:33] Speaker 00:
Correct.

[00:04:34] Speaker 00:
But again, key point, by the time that validation happens, the price has already been set.

[00:04:39] Speaker 00:
And that's the key point here.

[00:04:40] Speaker 00:
So the fact that we had an obligation to validate it is irrelevant because, again, it happened afterward.

[00:04:47] Speaker 00:
So the board committed a key legal error that we believe requires judgment in our favor on the design claims because Mortenson and Spearin applied to this case.

[00:04:58] Speaker 00:
If I could turn to the compensable delay issue, which is the second issue, and here

[00:05:02] Speaker 00:
I'd like to focus on the pre-excavation period.

[00:05:05] Speaker 00:
That was 171 days of delay, undisputed on this record.

[00:05:09] Speaker 00:
This is window one.

[00:05:10] Speaker 00:
Your honor is right.

[00:05:12] Speaker 00:
Exactly right.

[00:05:12] Speaker 00:
Window one.

[00:05:14] Speaker 00:
And so here, the reason for that delay was twofold.

[00:05:18] Speaker 00:
The government did two things that caused the delay.

[00:05:21] Speaker 00:
is it submitted a faulty design.

[00:05:23] Speaker 00:
And number two, at the 11th hour, it reassigned responsibility to perform the soil pre-characterization report.

[00:05:32] Speaker 00:
We're all ready to roll.

[00:05:33] Speaker 00:
The government said, hey, guys, guess what?

[00:05:34] Speaker 00:
We actually didn't do this.

[00:05:36] Speaker 00:
You do it instead.

[00:05:37] Speaker 00:
That caused months of delay, which, again, I don't think the government is contesting that they are at least partially

[00:05:42] Speaker 00:
at fault for all of that.

[00:05:44] Speaker 00:
But where the board went awry is it said that we, the contractor, engaged in concurrent delay.

[00:05:51] Speaker 00:
And our key point here, Your Honor, is that if the court agrees with us on the first claim, on the design claim, it follows that we are entitled to recovery for compensable delay.

[00:06:04] Speaker 00:
And here's why.

[00:06:05] Speaker 00:
The reason the board gave for the ostensible concurrent delay was, they said,

[00:06:10] Speaker 00:
You guys haven't completed the pre-excavation work that you were supposed to based on the plan schedule.

[00:06:17] Speaker 00:
But here's the thing.

[00:06:17] Speaker 04:
So you got paid for the delay though, right?

[00:06:20] Speaker 00:
No, Your Honor.

[00:06:22] Speaker 00:
That's what we're seeking.

[00:06:24] Speaker 00:
The government actually did give us more time to complete it, but they didn't compensate us for it.

[00:06:30] Speaker 00:
It's kind of a disconnect here.

[00:06:32] Speaker 00:
And so what we're asking this court to do is to rule that we are entitled, in window one, to 171 days of compensable delay.

[00:06:41] Speaker 00:
And the key point that I want to emphasize for this court

[00:06:44] Speaker 00:
is if the court agrees with us on the design claim, we are entitled to compensable delay, the 171 days, for the following reason.

[00:06:54] Speaker 00:
The board's concurrent delay finding is negated if this court agrees with us on the design claim.

[00:07:02] Speaker 00:
And the reason for that is that the ostensible reason why the government thought we did a concurrent delay is we didn't complete the pre-excavation

[00:07:09] Speaker 00:
But the reason we couldn't do the pre-excavation work on the planned schedule was because we were fixing the government's flawed design.

[00:07:16] Speaker 03:
We couldn't get a permit that would allow us to be- When you say the design claim, what exactly in terms of are you talking about?

[00:07:25] Speaker 00:
I'm talking about-

[00:07:27] Speaker 00:
the mat slab issue, the generators issue, the inadequate subterranean walls, the various aspects in which the government's design was defective.

[00:07:37] Speaker 02:
How do we sort that out if we think you only win on some of those and not all of them?

[00:07:43] Speaker 02:
Well, we still have to send it back, but we can't really figure out how much of it is compensable delay or not.

[00:07:50] Speaker 02:
Let's just say that all I think that the board messed up on is the math slap.

[00:07:54] Speaker 02:
I think the math slap is pretty specific about what they warranted.

[00:07:58] Speaker 02:
It was going to be there's two numbers, maybe, that provide some discrepancy.

[00:08:02] Speaker 02:
But what it ultimately ended up being was way up above those numbers.

[00:08:06] Speaker 02:
That seems like a defect to me.

[00:08:08] Speaker 02:
What if that's the only thing I find for you on the design defect?

[00:08:11] Speaker 02:
How does that affect your argument on this principal delight?

[00:08:14] Speaker 00:
I think in that universe, Judge Hughes, the right answer would be to order to reverse and render judgment be entered in our favor on the design claim.

[00:08:23] Speaker 00:
The amount of damages stemming from that is actually going to be determined at a future date.

[00:08:27] Speaker 00:
We have the future date where we're going to determine the damages on the basis of the claims to which we're entitled.

[00:08:32] Speaker 00:
So I think, logistically, what the court would say is reverse on design, render judgment for Balfour on design, and then, to your honor's point, at a future date, they will calculate the precise amount of damages that flow from that claim.

[00:08:47] Speaker 00:
Meaning the Matt Slap claim?

[00:08:49] Speaker 00:
Among others, but the other elements of our design claim, like the generator.

[00:08:53] Speaker 00:
Judge Hughes' question was.

[00:08:54] Speaker 00:
Judge Hughes' question, exactly.

[00:08:55] Speaker 00:
He cabined it to the Matt Slap claim.

[00:08:57] Speaker 00:
Yes, yes, yes.

[00:08:59] Speaker 00:
And I take the point, Judge Hughes, but I would say that.

[00:09:02] Speaker 02:
No, I understand you have arguments on other ones.

[00:09:03] Speaker 02:
I think the Matt Slap is a very strong one for you.

[00:09:06] Speaker 02:
The other ones, I think, are a little bit harder.

[00:09:08] Speaker 00:
I hear what you're saying, Your Honor.

[00:09:09] Speaker 00:
I would simply say that the board's legal error, saying that Mortenson didn't govern, that affected everything.

[00:09:15] Speaker 00:
That was just the fundamental legal error.

[00:09:16] Speaker 00:
They analyzed it under the wrong standard.

[00:09:18] Speaker 00:
So that's why I take Your Honor's point, but I do think all of them are compressed within it.

[00:09:25] Speaker 00:
If I could then move on to the other remaining issues that we have, which are the differing site conditions and superior knowledge claims.

[00:09:35] Speaker 03:
One of the things that struck me in the brief, you seem to go back and forth between superior knowledge and type 1 differing site condition.

[00:09:45] Speaker 03:
Which one is it?

[00:09:46] Speaker 00:
Well, Judge Shaw, it's because we went on both, Your Honor.

[00:09:48] Speaker 00:
We put both in the alternative.

[00:09:50] Speaker 00:
We submitted both as a basis for decision.

[00:09:54] Speaker 00:
We went on both.

[00:09:55] Speaker 00:
So I'll begin with superior knowledge.

[00:09:58] Speaker 00:
What did you think is your strongest?

[00:10:00] Speaker 00:
I think probably superior knowledge, precisely because we have evidence that the court has seen that they knew the conditions, the true conditions at this site, and they didn't tell us

[00:10:09] Speaker 00:
during the procurement process.

[00:10:10] Speaker 03:
Are you talking about the water or the soil?

[00:10:12] Speaker 00:
I'm talking primarily about three things.

[00:10:14] Speaker 00:
The first thing is that they told us that the soil was 5% contaminated when they were sending emails to one another saying, I bet 75% is going to be contaminated.

[00:10:22] Speaker 00:
And in fact, 80% was contaminated.

[00:10:25] Speaker 00:
Number two, the water.

[00:10:27] Speaker 00:
The report, the geotechnical report said the water is clean enough to drink.

[00:10:32] Speaker 00:
Well, it wasn't clean enough to drink.

[00:10:33] Speaker 00:
It was heavily contaminated that we couldn't even discharge it into the municipal sewer system.

[00:10:38] Speaker 00:
And the third thing was the underground caissons.

[00:10:42] Speaker 00:
They said, well, you might find some remnants of pieces and structures.

[00:10:46] Speaker 00:
Well, what we actually found, Your Honor,

[00:10:48] Speaker 00:
were 19 deep-dell caissons buried beneath the surface.

[00:10:53] Speaker 00:
And then in discovery, we discovered the government had sight drawings that showed these specific 19 caissons in a crow crusher pit all buried.

[00:11:02] Speaker 04:
You were aware of some of these circumstances, too.

[00:11:04] Speaker 04:
You had knowledge of the underground structures, that there were underground structures.

[00:11:08] Speaker 00:
Well, Judge, I think what they said and what we had knowledge of was, in the government's words, there were remnants.

[00:11:15] Speaker 00:
And they said, in fact, that they have been, or in large part, had been removed.

[00:11:20] Speaker 04:
And I think one- Isn't that enough to compel you to go and do due diligence on those particular circumstances?

[00:11:27] Speaker 00:
It's not, Your Honor.

[00:11:28] Speaker 00:
And here, I would point out that there are cases.

[00:11:31] Speaker 00:
We cite a few in our brief.

[00:11:32] Speaker 00:
There's the marine industries.

[00:11:34] Speaker 04:
Do you still have superior knowledge?

[00:11:36] Speaker 04:
Do you still have the superior knowledge issue working in a situation like I described?

[00:11:42] Speaker 00:
You do, Your Honor, because, again, they are in possession of the knowledge.

[00:11:46] Speaker 00:
They knew exactly what was buried there.

[00:11:48] Speaker 00:
They knew exactly.

[00:11:50] Speaker 00:
We didn't.

[00:11:51] Speaker 00:
The most that they can say is the argument, Your Honor, articulated, which is they say,

[00:11:55] Speaker 00:
We have generalized exculpatory language and disclaimers that should have put you on notice that maybe we don't know exactly what's better.

[00:12:02] Speaker 00:
This court and the court of claims have said that is not enough to defeat a superior knowledge claim.

[00:12:07] Speaker 00:
This sort of generalized exculpatory language, these sorts of broad disclaimers, is insufficient as a matter of law to defeat a superior knowledge's claim or a differing site conditions claim for that matter.

[00:12:20] Speaker 00:
We got absolutely none of that.

[00:12:23] Speaker 00:
What they told us was wrong and then we later found out they had known it all along.

[00:12:29] Speaker 00:
So for those reasons, Your Honor, we believe that we prevail on those claims regardless of whether the court analyzes it as superior knowledge or as differing site conditions.

[00:12:38] Speaker 00:
The final point I'd like to make before I sit down is if the court rules in our favor on those differing site conditions, superior knowledge claims,

[00:12:47] Speaker 00:
Each one of those claims also brings with it some days of compensable delay.

[00:12:52] Speaker 00:
We set that forth in footnote two of our opening brief, again in footnote one of our reply brief, where we identify the precise compensable days of delay that accompany a finding in our favor on the other claims.

[00:13:07] Speaker 00:
So I just ask the court not lose sight of that if it were to rule in our favor on any of the differing site condition or superior knowledge claims.

[00:13:14] Speaker 00:
And with that, I'll reserve.

[00:13:15] Speaker 00:
Thank you.

[00:13:16] Speaker 04:
Thank you, counsel.

[00:13:28] Speaker 01:
Good morning, Your Honor, and may it please the Court.

[00:13:34] Speaker 01:
Beginning with the issue of compensable delay in window number one, of course, as the Court is aware, this is a substantial evidence question.

[00:13:41] Speaker 01:
There is substantial evidence in the record for the Board's rejection of Balfour's claim for pre-excavation delay, even when the soil pre-characterization requirement had shifted to the contractor.

[00:13:55] Speaker 01:
For example, at appendix 4793, there's a construction schedule there that shows, as the board found at appendix 78, that Balfour's concurrent delays of numerous activities delays that of excavation at the site.

[00:14:10] Speaker 01:
So it was not the soil precaritorization change that caused the concurrency of delay, nor was it, as Balfour admitted before the board of appendix 17408 to 409, the excavation and sediment permit.

[00:14:25] Speaker 01:
As supported by substantial evidence, the court should affirm.

[00:14:28] Speaker 03:
Mark, the pre-characterization, what exactly is that?

[00:14:32] Speaker 03:
I mean, it was something that originally the GSA was going to do, then it handed it off to the contractor.

[00:14:40] Speaker 03:
But what is involved?

[00:14:41] Speaker 03:
Is this a further check to do further checks of the soil?

[00:14:45] Speaker 01:
Yes, Your Honor.

[00:14:46] Speaker 01:
My understanding, and again, I'm not a structural engineer or a geotechnical engineer, but my understanding is that this was a soil characterization study that BALFOR, originally GSA was under contract as the party to do, that then was shifted to BALFOR and was compensated to do this task.

[00:15:07] Speaker 01:
They produced a report about the quality of various soils at the site to characterize that soil for disposition down the road.

[00:15:15] Speaker 01:
And this is done after contract award, though?

[00:15:17] Speaker 01:
This was done after contract award, yes.

[00:15:20] Speaker 01:
And to be clear, it would have been done by GSA as well, potentially after contract award, because there was no timeline on doing it before contract award.

[00:15:30] Speaker 01:
Again, as supported by substantial evidence, the court should affirm the delay.

[00:15:34] Speaker 01:
The rejection of Balfour's claim for pre-excavation delay

[00:15:40] Speaker 01:
Turning to the legal errors claimed in the bridging documents, I understood Judge Hughes to be perhaps inclined to rule that the mat slab thickness was warranted in the bridging documents at issue.

[00:15:55] Speaker 01:
However, the court should affirm the board's finding that rather than denoting or representing a design specification with regard to the mat slab thickness,

[00:16:08] Speaker 01:
Bridging documents themselves, and this is at appendix 83, the board properly found, raised a question that Balfour should have inquired of the contracting officer.

[00:16:18] Speaker 02:
If it was a question of the, I think, if I get the numbers wrong, you can correct me, but one thing said 16 and one thing said 24, right?

[00:16:27] Speaker 02:
Something like that.

[00:16:28] Speaker 01:
Those numbers, Your Honor, came in validation after the board.

[00:16:32] Speaker 02:
But it ended up being almost twice that.

[00:16:35] Speaker 02:
So even if the range,

[00:16:39] Speaker 02:
was even if there was a range, aren't they entitled to rely on that range and not expect it to be almost twice that range?

[00:16:48] Speaker 01:
No, Your Honor, because there was no range in the bridging documents itself.

[00:16:53] Speaker 01:
Vow for during validation, as Judge Shaw mentioned before, what I was discussing with opposing counsel, validation is an important

[00:17:00] Speaker 01:
Part of this project after award the contract say about the flaps at appendix 3801 there's a drawing SB 101 That rather than having a specific number of inches that the slab was to be simply says quote match adjacent existing building foundations that is the entirety of the specification in SB 101 and

[00:17:27] Speaker 01:
Then there is a report in the bridging documents as well that, as the board found at appendix 83, would have reasonably caused the contractor to understand that there is a difference between the slabs needed because the bearing pressure on the slabs for the building that Balfour was going to build versus the one that was directly next to it was going to be different.

[00:17:48] Speaker 01:
And that's at appendix 1737.

[00:17:50] Speaker 01:
The board properly found, based on those two obvious discrepancies, that Balfour should have inquired of the contracting officer.

[00:18:00] Speaker 01:
In reply before this court, Balfour does claim that the order of precedence clause resolved that inconsistency.

[00:18:06] Speaker 01:
That argument should be forfeited because it was not made in the opening brief.

[00:18:10] Speaker 01:
And in any event, additionally, a basis for affirmance on this ground is that the specification in drawing

[00:18:19] Speaker 01:
SB 101 at Appendix 3801 is actually a performance specification.

[00:18:24] Speaker 01:
It does not specify the manner of performance.

[00:18:27] Speaker 01:
It specifies an objective that the contractor was to, quote, match adjacent existing building foundations.

[00:18:34] Speaker 01:
That's all that it says.

[00:18:35] Speaker 03:
Mr. Burn, I have one question.

[00:18:37] Speaker 03:
This is more in the nature of a housekeeping inquiry, I guess.

[00:18:41] Speaker 03:
And Mr. Dupree would also speak to this.

[00:18:44] Speaker 03:
We have confidential markings.

[00:18:47] Speaker 03:
on the appendices, and it appears, unless I'm wrong, that some of the specification is confidential.

[00:18:57] Speaker 03:
Is this still something?

[00:18:59] Speaker 03:
In terms of any discussion or any opinion, what does this mean?

[00:19:03] Speaker 03:
Can we ignore this confidentiality now, or is it still something we have to be concerned about?

[00:19:08] Speaker 01:
Insofar as the parties have quoted the specification in the briefs, Your Honor, those have been in the public record.

[00:19:13] Speaker 01:
And therefore, there is no need for the court to continue to shield those quotes.

[00:19:17] Speaker 03:
But what if we look at something that's if the court looks at something that's not in the briefs?

[00:19:25] Speaker 01:
We would request for us to be able to

[00:19:28] Speaker 01:
consider compliance with the board's protective order that were perhaps given notice of that potentiality and ability to comment.

[00:19:36] Speaker 03:
Are parts of the specification confidential?

[00:19:38] Speaker 01:
They are.

[00:19:39] Speaker 03:
Why is that?

[00:19:41] Speaker 01:
My understanding, Your Honor, is that the project does include sensitive aspects of a national security organization.

[00:19:47] Speaker 01:
Because it's going to be for Homeland Security?

[00:19:49] Speaker 01:
Correct.

[00:19:51] Speaker 04:
Well, let's leave discussion now of the

[00:19:55] Speaker 04:
highlighted information in the protective order that we have.

[00:20:01] Speaker 04:
And I'm looking at it.

[00:20:02] Speaker 04:
It's in the blue brief.

[00:20:04] Speaker 04:
And let's stick to what we know to be public, what's in the public brief right now, OK?

[00:20:09] Speaker 01:
Correct.

[00:20:12] Speaker 01:
So if it's in the brief, it's fine.

[00:20:13] Speaker 01:
If it's in the brief, it's fine for public comment and publishing, Your Honor.

[00:20:19] Speaker 01:
The generator exhaust requirements, Your Honor, is the other bridging document error alleged and focused on in this case.

[00:20:27] Speaker 01:
That, however, is a performance specification.

[00:20:31] Speaker 01:
Again, as the board correctly found the appendix 83 to 84, as Balfour had known all along, for example, at appendix 3921 and 2741, the requirement to comply with these environmental

[00:20:46] Speaker 01:
exhaust requirements on generators always was in the bridging documents and was a performance objective as opposed to a design specification.

[00:20:56] Speaker 01:
And Your Honor, just to take a step back on where we are in this with these bridging documents.

[00:21:01] Speaker 04:
Could you address real quickly Balfour's argument about the legal layer on floor?

[00:21:08] Speaker 01:
Your Honor, the floor, as an initial matter, floor is a CBCA, a Civilian Board of Contract Appeals precedent that is binding on the Civilian Board of Contract Appeals.

[00:21:17] Speaker 01:
Mortenson, MA Mortenson, is an ASBCA precedent that is not binding on the CBCA as a matter of law.

[00:21:24] Speaker 01:
In this case, it was correct for the board nonetheless to find that floor controlled the analysis with regard to the mat slab thickness and the generator exhaust requirements, because neither of those are design specifications.

[00:21:37] Speaker 01:
Neither of those are the government saying you are definitely going to be able to build the project based on these objectives or these specifications.

[00:21:48] Speaker 01:
That is not what we have in the bridging documents.

[00:21:51] Speaker 04:
I gather you don't agree with Balfour's assessment of floor.

[00:21:57] Speaker 01:
We don't agree that it was incorrect for the board to find floor control.

[00:22:01] Speaker 04:
What's wrong with their arguments that they made a few minutes ago?

[00:22:07] Speaker 01:
concern, Your Honor, as we specified in our brief at 31 to 32, for example, is that this is a preliminary, conceptual, incomplete, not fully coordinated design that Balfour, as Judge Shall recognize, was to then validate during performance.

[00:22:27] Speaker 01:
In M.A.

[00:22:27] Speaker 01:
Mortenson, which is the board decision, the ASVCA decision,

[00:22:32] Speaker 01:
that Balfour wants this court to find controls in this case with the entirety of the bridging documents, that 35% design was stipulated as being complete.

[00:22:43] Speaker 01:
There is no stipulation in the bridging documents at any level of completeness.

[00:22:48] Speaker 01:
There is a 30% conceptual design that multiple places in the bridging documents, for example, at 1339 of the appendix and 2736 of the appendix,

[00:23:00] Speaker 01:
First side of the appendix 1339 your honor Additionally at appendix 2736 Focusing on 27.

[00:23:10] Speaker 01:
I guess I can go in order I can quote for the court what these documents say 1339 the bridging documents are not intended nor are they accurate for actual construction rather they are intended to convey the conceptual design and

[00:23:24] Speaker 01:
and historic preservation approach of the building, as well as the project-specific design criteria and requirements.

[00:23:31] Speaker 01:
2736 echoes this and says, bridging documents are, quote, not fully coordinated, but rather conceptual in nature and are intended to depict the overall intent of the project in terms of general design concept, the main architectural elements, and describe the performance of the other systems.

[00:23:50] Speaker 02:
But if they had specific requirements in them, aren't they designed from the government that the government is warning?

[00:23:58] Speaker 01:
If they had specific requirements in them, yes, runner.

[00:24:01] Speaker 02:
You're citing a lot of precatory language, but there's a lot of specifics in these documents, too.

[00:24:06] Speaker 02:
And that's kind of what we have to determine.

[00:24:08] Speaker 01:
The court only needs to determine whether these specific requirements at issue in this case were design or performance.

[00:24:15] Speaker 01:
The point with regard to the prefatory language is that Balfour is already in some sense behind the eight ball and being able to convince the court that there is a design specification in these documents, given the preliminary not fully coordinated conceptual nature of them.

[00:24:33] Speaker 01:
where there's no stipulation of completeness.

[00:24:35] Speaker 02:
But they weren't free to throw this out, right?

[00:24:37] Speaker 02:
They had to follow the design that was set forth in these documents.

[00:24:43] Speaker 01:
They were able to change the design so long as it was not changing it from being to something substantially different.

[00:24:51] Speaker 01:
from the concept.

[00:24:52] Speaker 01:
And that's at Appendix 2743.

[00:24:54] Speaker 01:
That's a substantially different standard.

[00:24:57] Speaker 01:
So they did have substantial leeway to change and build off of the documents that the agency gave them as a head start.

[00:25:06] Speaker 01:
Again, in the validation process at Appendix 2736, the contractor was to be responsible for

[00:25:16] Speaker 01:
Let me just quote.

[00:25:17] Speaker 01:
The contractor had, quote, responsibility to draw, redraw, and complete designs to create a, quote, fully coordinated design of the work included in the bridging documents at no additional cost to the government.

[00:25:32] Speaker 01:
The contractor had to draw.

[00:25:34] Speaker 02:
So the government said, here's what our basic design requirements are for this project.

[00:25:39] Speaker 01:
Concept.

[00:25:41] Speaker 02:
It's a little bit more specific.

[00:25:46] Speaker 02:
in here.

[00:25:48] Speaker 02:
And they say, give us your price for this following the things we have in here.

[00:25:54] Speaker 02:
But you have to validate it.

[00:25:56] Speaker 02:
And if it changes, you can't change your price, even if it's substantially different.

[00:26:01] Speaker 01:
If it's substantially different, you need to get permission from the government to change the design.

[00:26:06] Speaker 01:
And then, of course, that does come into potentially more compensation.

[00:26:10] Speaker 01:
As the board found, for example, Your Honor, at Appendix 100,

[00:26:14] Speaker 01:
The board did recognize that with regard to fuel storage tanks, for example, there was a warranty.

[00:26:21] Speaker 01:
And there did apply the MA Mortenson standard of the contract.

[00:26:26] Speaker 01:
This was a substantial change to what was conceptualized.

[00:26:29] Speaker 02:
So you agree that if there is a design that is specific enough to contain a warranty, that Mortenson applies.

[00:26:36] Speaker 01:
Correct.

[00:26:36] Speaker 02:
So if you find the slab stuff is a design that has a warranty, then you lose on that one, right?

[00:26:42] Speaker 02:
I mean, I know you don't think it is, and I understand your arguments, but if we say that there's enough in this document that the government will warrant that this slab would be of a certain thickness, and it turned out it was significantly more, that would be compensable in some way.

[00:26:58] Speaker 01:
If, as a matter of law, the court finds the language at Appendix 3801 to be a design specification that, again, only stated match adjacent existing building foundations,

[00:27:12] Speaker 01:
then yes, if Balfour is able to overcome all of the other language in this solicitation, the bridging documents that are conceptual, preliminary, incomplete, then they may be entitled to compensation for that.

[00:27:25] Speaker 01:
But the court should affirm the board's sound conclusion that there was a question in the documents as regard to the mat-sub thickness.

[00:27:32] Speaker 01:
Balfour failed to inquire.

[00:27:34] Speaker 01:
Balfour forfeits its argument on appeal about the order of precedence clause.

[00:27:38] Speaker 01:
And in any event, that's a performance specification that carries no design warranty.

[00:27:46] Speaker 01:
On the underground obstructions point, and I realize I have 45 seconds.

[00:27:48] Speaker 04:
Let me ask you a quick question here.

[00:27:50] Speaker 04:
It seems that the board determined that the bridging documents were performance.

[00:27:56] Speaker 04:
And based on that, it automatically allocates risk to the contractor.

[00:28:04] Speaker 04:
Am I correct on that?

[00:28:05] Speaker 01:
I don't believe the board found, as we demonstrated in our brief, the board did not make an overarching finding as to whether the bridging documents were either performance or design specifications, but rather the board considered, for example.

[00:28:29] Speaker 04:
And because of that, its specifications allocated the risk to the contractor.

[00:28:35] Speaker 04:
I have that at J83.

[00:28:37] Speaker 04:
But anyway, my point is, it seems to me that it's on that basis that the board goes on and makes its decision on Mortison.

[00:28:46] Speaker 01:
Your Honor, to be clear, at Appendix 82, the board has the overarching consideration of to what extent a 30% design

[00:28:56] Speaker 01:
was design or performance.

[00:28:58] Speaker 01:
And it talks before that about the fact that you can have both design and performance specifications in the same solicitation.

[00:29:05] Speaker 01:
It then goes on to distinguish floor from Mortensen on Appendix 83 with regard particularly to the mat slab thickness and the generator exhaust requirements.

[00:29:16] Speaker 01:
Those are the two issues that were before the board preserved for the board's decision below.

[00:29:22] Speaker 04:
What happens if we rule against you

[00:29:26] Speaker 04:
with respect to allocation of the risk to the contractor, that initial assessment that the board makes.

[00:29:31] Speaker 04:
Does that affect the entirety of the case?

[00:29:36] Speaker 01:
If the court finds, I guess I'm understanding your honor's question, because the board did not find overarchingly whether the bridging documents were designed or performance specifications.

[00:29:50] Speaker 01:
but rather the board did take it piece by piece and conclude based on each alleged design or bridging document error, whether that included or encompassed a performance or design specification.

[00:30:04] Speaker 01:
Appendix 83 is the example with regard to the method.

[00:30:06] Speaker 02:
Some of them were designed.

[00:30:07] Speaker 02:
Some of them, well, the board found some were designed, some were performance.

[00:30:10] Speaker 02:
You agree with the board's allocation.

[00:30:13] Speaker 02:
Your friend on the other side is arguing for a different allocation of design versus performance, and he thinks more of them are design.

[00:30:20] Speaker 01:
That would be an accurate summary, yes, Your Honor.

[00:30:25] Speaker 01:
If I may, I realize I'm into my- You're out of time.

[00:30:29] Speaker 01:
Yes.

[00:30:30] Speaker 01:
Go ahead.

[00:30:31] Speaker 01:
Well, I was just going to comment briefly on the underground obstructions issue with regard to superior knowledge and differing site conditions.

[00:30:39] Speaker 01:
Our brief demonstrates that Balfour's claims in this regard are wholly at odds with the specific warnings at issue in the bridging documents

[00:30:49] Speaker 01:
as to what was going to be uncovered when excavation of the site began.

[00:30:55] Speaker 01:
For example, on the contaminated soil piece at 44 to 46 of our response brief, we demonstrate there that there is no superior knowledge with regard to that given, for example,

[00:31:12] Speaker 01:
that at Appendix 2065, there is expressed references to there being coal fragments and ash in this sediment or this soil that was going to be excavated.

[00:31:24] Speaker 01:
Similarly, with regard to contaminated groundwater, there are multiple equivocations in the solicitation.

[00:31:34] Speaker 01:
For example, the specifications or the geotechnical report, sorry, at Appendix 2070.

[00:31:41] Speaker 01:
was equivocal as to the water quality.

[00:31:44] Speaker 01:
Additionally, moving on to the Bell Cassins, which I also recognize.

[00:31:48] Speaker 04:
You want to wrap that up here?

[00:31:49] Speaker 01:
Yes.

[00:31:50] Speaker 01:
Your Honor, just to put a point on what we're talking about with the specificity of these warnings in the solicitation.

[00:31:56] Speaker 04:
No, no.

[00:31:56] Speaker 04:
I'd like for you to conclude.

[00:31:57] Speaker 01:
Yes.

[00:31:58] Speaker 01:
And with that, at Appendix 2065, I'm also going to point the court out to the Bell Cassin warning being there.

[00:32:04] Speaker 01:
And for these reasons, we respectfully request that the court affirm the decision of the board.

[00:32:08] Speaker 01:
Thank you.

[00:32:09] Speaker 01:
Thank you.

[00:32:17] Speaker 04:
Councilor Dupree, you have a little over two minutes.

[00:32:20] Speaker 00:
Just a few points, Your Honor.

[00:32:21] Speaker 00:
First, on the question of the design issues, Judge Hughes, you're absolutely correct in saying that general precatory language cannot overcome specifics.

[00:32:30] Speaker 02:
And in that regard... What's your response to him on the slab, that the best part of the document just has matched the existing?

[00:32:36] Speaker 00:
Well, it's a design specification.

[00:32:38] Speaker 00:
I mean, frankly, to be totally honest, I cannot imagine how you could argue anything.

[00:32:43] Speaker 02:
Was there any reference to what the existing was in these documents?

[00:32:47] Speaker 00:
Yeah, well, it said match the existing and then you look at the existing and it says 18.

[00:32:51] Speaker 00:
So it's a design specification as is.

[00:32:53] Speaker 00:
The other issue, the generator's design issue.

[00:32:57] Speaker 00:
Well, right, but the design specification there was the height.

[00:33:01] Speaker 00:
They couldn't fit.

[00:33:02] Speaker 00:
I mean, so again, height of ceiling, thickness of mat slab, or textbook examples of design specifications.

[00:33:07] Speaker 04:
The generator's a different issue, isn't it?

[00:33:10] Speaker 04:
If you were aware of the two different types of generators that one may have to fit and one wouldn't,

[00:33:15] Speaker 00:
Well, the issue there, Your Honor, is that the specified equipment did not fit in the specified dimensions.

[00:33:21] Speaker 00:
So again, we were given design specifications, the height of the rooms.

[00:33:26] Speaker 00:
That doesn't work.

[00:33:27] Speaker 00:
Again, design specification, not performance.

[00:33:31] Speaker 00:
Everything we've been talking about.

[00:33:33] Speaker 04:
Didn't the documents also specify the larger generator in the event that the smaller one didn't work?

[00:33:39] Speaker 00:
Yeah, the documents specify the various types of generators.

[00:33:42] Speaker 00:
And our point is simply that what we were directed to provide did not fit in the space that we were directed to build.

[00:33:49] Speaker 00:
That's why it's a design specification.

[00:33:51] Speaker 00:
The other point I would make in regard to Judge Hughes's question is, in the white case, it's 296 F third at 1084.

[00:34:00] Speaker 00:
That's where this court specifically says, when the government provides a contractor with design specifications, the contractor is bound to build according to the specifications.

[00:34:08] Speaker 00:
That's this case.

[00:34:09] Speaker 00:
The contract carries an implied warranty, full stop.

[00:34:11] Speaker 00:
That's this case.

[00:34:13] Speaker 00:
I would also point out that we had to bid.

[00:34:15] Speaker 00:
We had to formulate our price proposal based on that design.

[00:34:19] Speaker 00:
So that, too, cuts in our favor.

[00:34:21] Speaker 00:
I also want to point out with regard to remanding, hopefully for more than just the mat slab,

[00:34:26] Speaker 00:
The board actually failed to address several of our design defect claims, the inadequate ventilation and the subterranean walls not being sufficiently thick.

[00:34:34] Speaker 00:
The board simply overlooked those claims.

[00:34:36] Speaker 00:
So that would be another reason if this court were to remand to enable the board to consider those claims that it failed to do the first time.

[00:34:44] Speaker 00:
On the delay point, let me quickly point out page 78 of the board's decision, the joint appendix.

[00:34:50] Speaker 00:
This is where the board recognizes the point I made in my opening, which is to say the board recognizes that our pre-excavation site work could not begin until we had the permit in hand.

[00:35:02] Speaker 00:
That is a key point, because what it means is, well, we didn't have the permit in hand.

[00:35:08] Speaker 00:
Why?

[00:35:08] Speaker 00:
It's because of the design issues.

[00:35:11] Speaker 00:
So that's why, if this court agrees with us on design, it automatically follows as the night the day that we get the compensable days of delay.

[00:35:20] Speaker 00:
The final point on the differing site conditions is simply to direct the court.

[00:35:35] Speaker 00:
I understand the instinct, but all I would say is I think this court could comfortably rule as a matter of law, if we went on design, it negates the board's justification.

[00:35:49] Speaker 00:
So I would say maybe the court could say it negates the justification of concurrent delay and let the board figure out what the consequence of that is.

[00:35:57] Speaker 00:
But I think that's the key point, that it negates the concurrent delay.

[00:36:00] Speaker 04:
That sounds like a good place to end, too.

[00:36:01] Speaker 00:
Thank you, Judge.

[00:36:02] Speaker 04:
Appreciate it.