act would otherwise release the government from liability under ordinary principles of contract law which is to say in possibility of performance you grew with that yes your honor this isn't so much a sovereign act issue we don't disagree that the government had the right to limit base access and there's absolutely no no dispute about that and you're standing up and in fact you know i walk around c today and i see different procedures in place in security than it was five years ago ten years ago what we have an issue here it's basically my question is do you have anything about and possibility of performance in the it's not and i don't think there was an impossibility of performance what we have here though your order is a situation where the government has the right to restrict face access the commanding officer has pretty much unrestricted you know in places you know every just sort of but but the bottom line is we didn't have that in this case the base commander had the authority to limit the base access anyway that she conned were the corps of engineers say we researched the basic curing restrictions according to the mails from air force please personally documentation dated before march of two thousand and six the security restrictions for certain types of comment layer were in effect before august of two thousand and six a ward of the aforementioned contract the october two thousand and seven policy was a real issue of the same restrictions as those implemented shortly after september eleventh of two thousand if if they had always done this the way they did it two thousand and seven you're out right that is created two thousand and seven policy was and that is correct to the nub of this is did it actually change that is correct and even the board recognized that up until spring of two thousand and seven there were that there were no restrictions in place and they wanted it that's the real requestion right because clearly these these people were getting  two thousand and seven that doesn't mean there wasn't a policy it just it could either mean there wasn't a policy and they did change it or nobody was and forcing the policy that is correct so now we have here is a situation where we're looking at the regulations and what are the regulations say and what was that actually i have to question about that yes i am a little puzzled i think you both the government can respond to both agree that this is a matter of regulatory interpretation yes so we would employ our normal rules of regulatory interpretation if it's plain it's plain if it's ambiguous we'd look to we probably defer to the government or do you agree that it's regulatory interpretation i do it seems odd to me honestly that it's regulatory interpretation when this is a base pacific policy on access i don't understand why it's not a factual determination because the contract required them to policy on security access is why that's not a factual issue versus a regulatory issue well my understanding of the case law is that the regular regulatory review is a noble that may be different from each and every different area and therefore it is specifically a limited true miles from air force base and so we have to look at malice from our porous bases interpretation and  waivers of unfavorable result right yes of actually true two thousand and five and so that's what we're doing is the government is saying we have a two thousand and five regulation that was issued before the contract was awarded and we have a two thousand and seven memo from the commanding officer for the two thousand and five and nine one one dispatcher already in place name with the national criminal information center system for once but that's a fact and there was testimony from the commanding officer that at least for inquiry indicated that once unwarranted always mad oh question or regulatory question because if it's a fact question that we're reviewing for substantial other debts then we have testimony from the government that this policy or that space was meant to include a general background check even though it only reference all this other stuff even if the government did something by it they're better off by the plain language they put in the regulation and it's our position that the plain language restriction to wants more that this is not a factual issue this is a regulation out for him for murder he's suspected of murder and so he goes to try to get in and they say no no you've got a warrant we're going to turn you over to the police and so he goes and he confesses to murder now we know he's a murderer and they put him out and now according to the plaintiff's reading now he gets to walk on base because it's an open door because he no longer has an open war attack that handing back you do you agree that really can at this as a matter of regulatory interpretation that was the way we described it in our brief the statute that the organic statute that sure does the basis of one hundred one three and one hundred one does use the word regulatory so what i'm talking about fifty u s c seven nine seven and what it says is a defense property security regulation is a property security regulation that and one of the ways that it's created is by a military commander so it that this statute says that and and that is the way we describe it in our brief i think we get to the same and it's plain then we don't get to the same that would require yes your honor but that would require reading the statute as meaning that every convicted spy felon and wife could walk on the base while people who might be only suspected of it could be stopped and that doesn't that would lead us that as long as i walk around i mean there's also testimony that there was policies in place that they ran things through the montana thing that would bring up those kind of felons well but well that was all part of the wants and warrants check if i can take a step back for senate here if years the problem for me is it's clear that there was a practice of doing something maybe more than once more check but it's also clear you didn't enforce this practice a long long time against a bunch of people that were then suddenly excluded that maybe this job very tough it is contradictory to do if i could respectfully change that your honor and say no the policy was the same so for example and i'm talking about  that the policy wasn't enforced i mean getting that there was a loophole that was exploited and that was closed yes and so what if i could give you an example in two thousand and six we have a congressional letter that's in the record of eight to eighty seven where congress so this was the policy what happened as i understand it and the records act entirely clear it was that there was a power policy allowing vouching where a veteran could bring somebody else on the base by valjean for them it was really supposed to happen it certainly was  average for contractors but it had happened or at least seems like that it happened so there was testimony that people were able to get on base it wasn't a good idea if they realized security wise so they tried to put an end to this practice that that  was against policy and that made it more difficult but i think there's two important points to that one of which is this before at the pre construction meeting where talc were g t c i tended that meeting they were told in the minutes of that are eight to seventy they were told background checks the word back in their background checks would be conducted and that felt would be excluded and we have the minutes for that and we have the stipulated testimony of mr barnett which is cited by the trial judge who said that he remembers that meeting and he remembers that he being told along those lines so they did have notice they knew if they were paying attention at that meeting because they attended that meeting j t c attended that meeting are we permitted to consider and i think i am an answer yes you're i mean i hate i believe that that would be illegal as long as i mean if you're reading the contract and we believe that that's represented in the contracts will be legal i  think you can do that without if that has the government satisfied with the burden of demonstrating the second factor yes your honor it would also if you look at the contract if this is it in the appendix that one of three of the general area requirements there's a that activities of the contractor and i'm reading this and contractors employees and subcontractors and their employees while on the base will be conducted in accordance with base regulations it's their responsibility to comply with base regulations it's their responsibility to get their people ready so that they can come on the base the fact that there were some exceptions and mistakes made in the policy didn't mean that the policy didn't exist and didn't mean it wasn't a sovereign act so even though to in the past that the plaintiffs may have gotten some people on the basis of the loophole that didn't mean that the policy didn't they were told that this was how it was going to be so even if there had been which your honor because it was against the base policy i would say it wasn't of course a common practice whatever it was before that they were told that this meeting before the start of the contract if there wa s that there would be background checks and that the that friends would be excluded and i mean that it's somewhat helpful to you but if they've been operating under the same policy in the same language for a long time and it doesn't seem like this was isolated incidences of a loophole it seems like this company did a substantial portion of the work on the space it's in an isolated area they do the work they hit it big surely use convict labor as it's the right definition that was  we don't have any evidence of that because nobody kept records of it but they did testify to it and it was the only guy said yes you know it's only evidence we have so yes i protect that that most of this a lot of their workforce were parolees and in prerelease we have a letter from of the p relief program to another company saying we can't get your people basically more so we can participate why don't we take that into context when we look at that pre construction meeting it doesn't it doesn't sound like it was an l says oh there's a big change in policy here we're not to let you on base anymore if you have a conviction or on parole or probation and if they knew that it had seen once warms language and for however many years they were getting people in then  despite this one reference of the meeting they thought the policy was something else and they didn't they have not the posse respectfully your honor that it sounds like the government thought the policy was something you know your honor and if you read that congressional letter eighty two eighty seven well that's in two thousand and six i mean if that's been going on or we have that's before any of this happened so that was the stated policy but there's also testimony testimony of mr ward testimony of major fenton and of colonel finck and i apologise and and both of them said this was this was the practice i and also it just makes sense that context didn't have an open door on a military base on a p l one military base so respectfully your honor you know that both the ongoing policy the ongoing of practice doesn't sound like a loophole if you're honest if if if if they hadn't been told clearly at that meeting before they signed the contract where they told literally anything that they hadn't been told clearly before for the last twenty years there's nothing the record about but in that meeting it was it was stated that there would be a background check and i mean basically that they have to listen in the pre construction meeting and understand what the rules are going to be garko when they put in their bid so they could have at that meeting if they'd been paying attention all they had to do was listen as mr barnett did realize oh even if we done it before maybe there's a problem here maybe you know maybe we just chat before we sign a contract that's that's all we were asking is that they listen at the meeting that they were supposed to be listening at and then before they signed the contract know what they're signing and that and that that's separate from the fact that their reading of the regulation with with background information on crimes and if it does that instead of asking i mean there's no reason that the basic would turn a blind eye to that so they would would it would rely upon that that in october two thousand and ten is the court said we call it guidance and that's what and we say that's what was taken for by their that the trial judge but the most important thing is that if the check that they took after that didn't change it's not over now we're going to do this different check it's actually the exact same check that they'd always been doing so that th sixteen where he says it's the same gets the title and a three twenty where he says i how they're going to redeposit he made it had this personal opinion but that experience i have no idea what experience he had but he keep it was not his job to interpret or to comment on the fact that he had an opinion makes him just like any other rapidly to be in that area he has no authoritative opinion they just happen to get his email so respectfully are i wouldn't say that that's authoritative really for anything except for the fact that this one gentleman happened to have this one opinion if i may just briefly address the excusable the way which means that they need to show that this wasn't foreseeable to the cost and then it would discuss that but they also have to show that they ask for time they have to show that there was a request for time this wasn't considered by the judge in the judges that initial opinion because initial they raised it in a motion for reconsideration and in that respect and act eighty three thirty three in footnote three in response that motion for reconsideration what the board judge said is quote there is no evidence in the record or argument in a and a couple minutes extra very quickly your honor in regards to the acceleration there are two different elements one case a lot of cases say that you need to ask for time extensions others say the judge that government just prerelease center they are approved they're allowed access to the base and it continued on for another five months where these individuals were allowed on the base in regards to the impossible to a performance issue i may  misspoke have in the chair in regards to was it impossible for them to perform in the time frame in which the government gave them and in that respect there was in possibility of performance throughout the the record there is a tremendous amount of information about there is a lack of workforce there is no number of people in montana eccentrics cetera so what happens is calcutta goes out they get whoever they can off the street to try to complete this work so was there a possibility of performance if you give us another year yes if we are confined to this particular timeframe then it was