before the board and performing the inflation of mc cable that was allowed by the original specifications  to do with expenses incurred like in just in the month of september two thousand and twelve and maybe part of october two thousand and twelve when you were proceeding in installing the mc cable before the final word came quantum argument is that what you're quantum argument is about no not exactly part of it it is one you move on before you move off of that point in terms of the issue of removing what was already installed is that what was already installed was that just what was installed in the september and october to do the installation of the empty cables that is now at issue and that those costs the installation and then the remov to that side of the case and therefore that's independent of the stipulation about the change of construction i know that i think the board the government did say thought i thought i was remembering seeing in the joint appendix and i'm sorry i don't have the page numbers in a and express explicit section of its brief that says this is not recoverable because once non contracting officer corps representative said you really really need to put the rigid stuff off they are not the flexible stuff it was on reasonable to proceed that didn't happen your honor and two of the final decision not the final decision but pages i think a government brief to the board that says that discussion appellant failure to mitigate damages as a reason not to l my question to you is when when you were working on this and you were initially told by government representatives and i understand it was not the contracting officer  install mc cable were there timing requirements under the contract that required you to start installing the wire when you did with the ribbon penalties had you not met certain timing requirements with respect to the understand your argument about acting as a volunteer if you were to move forward what else could you have done at that point to mitigate other than put in the request for for clarification nothing except when we went and we asked for clarification on our upon in september what came  the architect engineer or the corps of engineers design came back and said no we want you to utilize  again and then meanwhile the duck man and everybody else was putting is everything and so it was terrible now to put  wasteful effort of installing the mc cable against the government's wishes that the government did not believe this those were recoverable and that continues to be the government's position all throughout whether you put the mitigation  theory to it or any other theory reasonableness causation the point the government busy has always made is that while it would agree that the contract initially wasn't clear enough perhaps that the government during the performance of the contract was at all times totally clear that they believed that the that's the rigid e m c was required and that's all that they would accept in the space  true is it not that council is correct that if one perceives upon the direction of those on site or those or the architect for instance but without the approval of the contracting officer that they're proceeding at that's the law or not it's not that simple as yes or no because it depends on what the contractor does so if the contractor puts the government on notice i disagree with your interpreter it's contracting also noticed i disagree with the interpretation on notice that you don't think that's what the contract requires if you proceed you're still just going to be treated as a volunteer well your honor i would i would look to the the cases i'm sorry i don't have a specific one that's coming to mind but i would look to the cases that address how the changes clause operates and the obligation to put the government on notice d and that if you do that you then can under the changes clause recover the additional compensation i think the same cases i would believe the same cases that address these constructive changes would show that as long as you put the government on notice as required d by the changes caused that if you all  and the contractor the person shouldn't have been doing this because it's only the contracting officer that has the authority and your fix something and here that person didn't step into this was it was over a year later and the reason it was over a year later was because lymphoma was didn't go to the contracting officer for a final decision until january of two thousand and fourteen and so this was something that happened came up in  contract but ultimately it's the same personnel within that resident engineers office that was ultimately decided to follow their direction without going to the contracting officer and until two thousand and fourteen can c reasonably seeking when the government suggested there was a different issue an issue here by seeking a definitive dispositive response given what the contract otherwise required the part that was unreasonably on it was not seeking that the act of seeking a definitive response that was perfectly reasonable on the part that was unreasonable in the board's properly rejected compensation was the decision to go ahead in time to invention what the scheduling deadlines in the contract but again there are a number of ways to handle this and so if the boehner wants feels that this must be resolved before they can proceed one way contractors can handle this is by telling the contracting officer right then and there not a year or two later but telling contract nelson right then and there i'm being directed to do this i don't believe that's what my contract says i can't proceed until you change the contract if this is what you want and i believe th officer it ultimately accepted initially the resolution of the the resident engineers office and decided to seek its additional cost which is something if they do but what it couldn't do was disregard that instruction and go through this wasteful effort of installing something that all along the court was saying they wouldn't accept when it comes to the stipulations limo last argues d that when stipulations are binding but it doesn't show that the board rejected in concluding that the contract had been changed that's contrary to the the agreement of parties that this should be treated as a constructive challenge and that's the manner in which the board resolved the case by agreement  parties is simply no basis to disturb the board's conclusion or its ruling in this case and for these reasons and those expressed and all based on the board's opinion we respectfully request that  the questions on the judge's ok thank you in september and october and amounted to paying for some of the hang is paying for some of the equipment and paying for the superintendent and everything else that's w labor that was involved and everything else and that's how we put it in the actual cost of going to you know the course and pricing data that we had you can't take anything off