barges you needed because you were four hundred thousand dollars in debt in arrears to them and or they didn't have confidence in your abilities so while there may have been some service sub contractors with cars who are willing to work with you because  concern is that that is a substantial evidence to support the lower tribunals conclusion that it was an unforeseen circumstances that cons to be unable to perform so why don't you go to the heart of that and tell me what i'm absolutely wrong standard of course is your hon the thirty percent number with respect to what the government claims was acceptable at an early point in time and when i say a fault i was trying to find a judge more question about the issue of excusable delay ok well you're not apart from the b i'd like to address as well with respect to the authorities will delay issue that judge moore is asked the standard is it that simply somebody can do the job out there the standard is what is the contract to do to put itself in a position to be able to complete the contract the language from for instance i think it's the darwin case is did we make diligent in continuous efforts to find subcontractors that it could help us complete it did we usually stab the excusable delay issue is what is this how do you define that standard of what's forseen i think judge morse question was didn't the board find that it was foreseeable and that's evidenced by the fact that two contractors out of literally countless gave a note to us and i think that's a huge stringent of a standard for determining unforseen ability but it's a question of fact is that it's a question of large that i think it's a question of law when you apply the standard if i can see for purposes of this argument whether something is foreseeable or not i think it's a question of law i think the standard itself when you look at the law whether you make continuous and diligent efforts to find subcontractors whether you use down there and get premium dollars that was being paid by b p to clean up the gulf coast the only evidently a good government put on was these examples of two people at l b of letters we provided them he said one i don't want to work with because i'm too busy with no reasons why although it's a reasonable inference maybe they want to get down to the gulf coast and make more money or two we had concerns about pay and you get back to what the definition of what an forseeable is i suggest  i got this quit all the time i never had trouble doing it i done this kind of work before for the corps of engineers i've been gotten accommodate i've been coming nations for them for doing it in the past i've never had a problem before and it wasn't  that i started having trouble look at the back when we do with the fact that even what you did wasn't done properly i mean there there isn't a lot of dispute that i mean the board specifically found that that it wasn't tied in properly july fifteenth of december fifteenth they should notice to proceed to start in a timely manner we got to about december i think it was seven think there were eighteen and had to stop due to contractual reasons highwater holiday season and then the the fish the evidence established before the trauma nation was despite that and i get in the argument of a technical default which is the cases we cite in the courts say you can't afford somebody simply because you don't technically need something particularly if you get what you contract and this i mean you know would be bothered by technicalities but that's the law and you signed a contract and the contract for a party to be placed in certain locations and you didn't place it in any of those locations you put it elsewhere didn't work some there's evidence it did but there's well in that place if you want to try to get around the fact that you didn't and we did it because we put an expert getting back to the case before us expert testimony who evaluated visiting could work just as well  government hire another subculture to come in and move all the stone and pay them why it worked just as well why did the government decide no it couldn't stay where it was it had to be moved and they went through the exercise of paying someone else t to locate some of the stone because the stone is all underwater it's difficult to tell where everything was but they were able to according to one government witness locate some of the stone but they weren't ultimately able to reposition it as it should have been under contract part time and my understanding and on page five thirty three believe the record is that they located it stone that was already there and moved that stone around and then i believe they've added some additional stone but there was  thing didn't think was placed properly there was actually stone used then and so you know i see a domino effect here so then they don't have enough money to pay their subcontractors and then they end up with further delay and yet then when all the survey data and what based on what they did see they believed that only a percentage of it should be paid for now later on when their separately negotiating this takeover agreement or then looking at they're looking at it from the context of needing to also remedia work and then possibly placing his stone and so in terms of the calculation as to the fact that it was more stone it's not entirely clear where those numbers came from it does appear that they were some sort of as the progress payment was and as soon as i did the government contributes to  breaching the contract in the first instance not making an appropriate progress no your honor they didn't contribute to the delay in what they did is they made a payment that was partial under the contract none of the work was conforming so they could have withheld all money but they said that they wanted to mitigate truck work moving forward to help them be able to move forward with the meeting remediating the work on the hard points and continuing the work for them the larger portion of the contract for the croc rat so they did it away t that far off in terms of the partial payment it's unclear your honor and i agree there is there is some confusion as to the exact tonnage and part of that may be that when you're dealing with work that's underwater and you're using survey data in large part to try to figure out what work is conforming and what order work work is not conforming there can be a question as to the precise amount but ultimately truckload abandon the site and left the stone there and the stone was left and needed to be the position and when working with the shirts he that was the estimate that the agency the corps came up with in terms of how much work needed to be remedied versus new work that needs to be laid i guess i'm just having a little trouble with the with the with the delay problem when and if you paid them for something they would have had the money to pay the sub contract they wouldn't have been in the financial trouble that they that you found that it was not satisfactory only placed and so there was a survey there were surveys that were completed initial surveys that were completed right when the stone was being laid in early december and then there was a larger and there was there were bigger surveys that were conducted in the oh correct in the wrong location i think that's that's correct your honor the hard points were put in the wrong place but the contracting offer still accepted the miss location assuming that truckload was going to be remedying the hard points that were created in constructed in that location when the wonderful thing that was contingent on them fixing it that's correct so it wasn't the parcel being it was and you did some of the work right so we're going to pay for it or we're going to pay you for the stone even though it's in the wrong place it was give you a substantial evidence in the factual findings of the board made there was certainly testimony from both parties regarding how the hard points work for example truck legit offer an expert saying that they were while they didn't meet the contract requirements they still met i believe the design function while the core offered their own expert who said that while they may be marginally acceptable to support the design function they're not going to function in the long term because there's a concern of erosion and the board acknowledged this conflicting testimony and found that the had provided a credible witness and made that clear the credibility determination so there was certainly evidence to support within the context of central evidence a finding that the work was not conforming what about argument of foreseeability i mean it does seem like most of the boer jews were caught up in use of correcting if you will still so it turns out that there were one needs to be so contractors that would work with them for other well the court way conflicting factual evidence on this issue for example the contracting officer offered testimony noting that for other projects that the corps was involved with they were unaware of contractors indicating that they or the oil spill was causing delay for them spill now there was testimony that truckload presented regarding i believe five additional contractors they contacted who said they were unavailable i don't recall from the trial testimony whether or not they actually said they were unavailable from the oil spill live that was on page ninety gone and you've identified a contractor who has said that they might be available but they haven't signed on so again we're we're dealing with in the realm of factual evidence and substantial evidence and the fact that the court could reach a different conclusion is not a b a or at the time was there and substantiated that figure then once we go off for a delay period they say wait a minute we've got some problems with this invoices for this smaller amount so we did because we needed money specific way that what he defined as marginal being it means it's ok to acceptable i'm paraphrasing but it's in my brief we saw it from the record and he says what i mean by margin which is it's ok right now but if it goes off any more it won't be acceptable and that was the description in our brief bike mr shells who was their expert in internal engineer and after all this occurs in june if the government attorney correct or incorrect she said there was competing evidence  suggest she didn't say either the testimony of mr pink or their expert was the best he could say on two different times he was asked why is its potential and potential doesn't meet the standard of doesn't affect the performance of the aircraft was wrongfully turned it's the same concept just because they didn't didn't go in one particular direction doesn't mean they didn't work as a system and the government engineers it needed that was one of the higher ups of the core set of the time to mr pinkert one of the engineers the government has received from benefit from the stone and might have some obligation to reconvince the contractor for this is months and months after they've already paid us