government action was specifically targeted at the contractor to reappropriate benefit guaranteed by the contract to the trial court is wrong for a number of reasons number one it's a radical cooperate or a duty not to hinder performance example so that the court found below findings of fact number one at the beginning of the job they were into a different psych condition with the soil and i ask you  sean if you go back to some of the malone case the u s very similar circumstances little different result different circumstances or same circumstance him alone but there were there was an example or there were refurbishing military of the way done with with this work and all of a sudden the contracting officer came back and said i reject your work i want you to go back and do it all over again the contractor refused and he was terminated from the fall the malone court said are resolved as a contractual matter under those clauses what aspects of the airplane are left that would have to turn on the question of that obligation of good faith and fair dealing th issue cost you how much did the chlordane issue cost you it's the fact that from the beginning to the end we were hit with all these very significant problems that the laid the project to the point where it finished almost two years after the contract completion date we spent twenty six million dollars more than the contract price you want us to say and i guess i didn't get that from your briefs but you want to say that if you of the conduct and you put it all together that it was sort of this generalized breach of good faith and fair dealing and therefore what i think you can look at one or two or three you can look at the expanse because it was beyond a reasonable period of delay i say alone that if if if the court this court agreed that some material breach applying the malone standard you can rule that that's a material breach of contract they remanded back for damages that that's my position what other examples do you have of the government in this behavior if you see it then the differing site condition issue there was overzealous and difficult in retail tory aspects of a government inspector the reason that you know when you're doing home building each and every unit has to be inspected so there was under refuted evidence that the court even gave examples in their decision of when she found this inspector overzealous difficult and a retaliatory inspector there was a countertop that was one sixty fourth of an inch  of be a forty two inches it was forty two inches and this much in the inspector said on any other job i would have accepted this particular countertop it's even good quality but not this one this project is a war and that that was quoted in the judge's decision and that was throughout the inspection process there were numerous other examples is that the chairman is the amount of damages in any way turn on the amount of funds of the material breach on the amount in terms of in response to the couple of questions asked before i think you said any material breach triggers a right to damages and so i took away from that maybe that you were saying if there was any material breach say on the site conditions this other stuff just doesn't even have to be attended to so that leads me to this question is that really correct or might the amount of damages that you're entitled to under the governing lot if there is a material breach depend on how many material breaches they were there were what specifically they were or is it or is there a clean divide material breach but now we're doing damages and you get all your point of i when when when judge o'malley question whether i can properly understood your question i was talking about malone in malone the contractor default you said i'm done if you're going to try to make me go back and redo all my work and not pay me i'm done you stop work the court malone found that the government breached the contract and there therefore converted the terminations for default to a terminations for convenience under terminations for convenience you're in time to all your cost performance less what you've been paid to me at the same thing here makes house mistake was complete he pondered his dealings that counts as long as you have one good one you're entitled to the same run that it is that your position yes your honor and my one good one is the beginning of the decision were the contract or the gulf of the truck or homes i gave you beautiful homes military families are happy you only paid me fifty million dollars when i thought i would be able to perform this work in seven hundred twenty days and you navy would treat me reasonably you would cooperate with me during my construction you would not hinder my performance and i'd be able to do that for fifty million dollars instead from the beginning to the end you delayed me on recently two hundred  incompetence is a breach of the duty i've never seen a case where a judge has identified contracting off from i mean there there are hard nosed tactics negotiating where i get that the government's entitle to retention they're entitled to retain money on a job that they can't use that full to to make the contractor give up claims we had a number of claims related according and the government would say in response in response to our payment requests we'll pay you and we won't retain money if you give up your claims or claim rights and unfortunately you know modifications were sign during the project where we gave up claim rights to get paid and were not asking for that money back those were changes we signed them there were modifications but when you consider all that conduct on the on this type of job it rises to material breach we did not to we did not give give give up so that was part of the fifty million dollars that's the just a contract price but we were not compensated for the expense of soil issue we were not fully compensated for the corning issue we were not fully compensated for all the delays that it was a cascading effect for example when the two hundred sixty days expired and they finally said you can go back to work on the soils that within a couple of weeks they threaten us with the follow up and said you're behind schedule now we had to switch our whole entire method of operation study using the concrete system that we had designed we did go to what was called post tension concrete so the concrete cures faster that cost us five million fair dealing do we have to send it back for the trial court to then say under this standard and whether we say that they have to look at the totality of the circumstances or otherwise we have to have let's give the trial court the first shoot there's an internal e mail from a captain in the navy so the resident officer in charge of construction for the navy saying issue a preemptive strike letter to the contractor issue a preemptive strike alert  does any of your claims clued in the cite condition claim turn turn only on breach of an expressed term of contract or do all of your claims so for example there are the particular standard for duty it with faith and fair dealing if we thought that was wrong the normal instinct is give the trier of fact the chance to apply the right standard but that may not even might not be necessary if there is an independent breach of contract not dependent on the standard for duty of good faith and fair dealing and so i'm asking is there such a claim that was included in the contract as far fifty two to thirty six dollars fifteen i believe there is a duty on the contracting officer to promptly investigate the claim when the trial court made their decision that the which the navy reached that clot separate and apart from that delay to imply do you good faith in for dallas well you're if i understand this discussion what you're saying is that with regard to the soil condition issue in the chlordane issue there it's those are not issues good faith and fair dealing those are issues of contract interpretation is that correct no incorrect it's both so under the differing psi condition clause they have to promptly investigate they breach that but when i went out i had it does not make happen to design build contract we were supposed to design this project and give that to the to the government and then we built to it when we hit that soil that bad soil we developed a design to deal with that so they would not let us proceed with that so we contend that there feller less proceed to mitigate for the breach of contract on the two hundred sixty days but even the trop court even though she found breached even though she found were entitled to two hundred sixty days there was no impact she gave us no r on expanse of soil based on on florida when we realized that disparity in damages when we went for a breach of contract claim total cost it was twenty six million dollars claim the way a schedule analysis works and looking at discreet issues of the way and how much they delayed you are claim was like thirteen million and we were filled fearful that the court would get confused as to why there was this big disparity so we dropped count to drop ok your time's up sorry i will give you an extra ten minutes over story or three minutes be applied to the fact of the issue that is before the court and centex and other decisions from this court actually enunciated that particularized need for having the targeted action to design to reappropriate a benefit of the contract that began in centex frankly we do not take issue with malone malone was the first time that this court addressed the implied duty of good faith and fair dealing squarely at the common law doctrine and under the current standard malone would still be found to be a breach given given the way that the facts of that case played out it but when you say the current standard precision pines if we don't say it's distinguishable and based on a unique set of facts it couldn't be overruled malone  and it's got to the one specifically said that the malone standard still applies in circumstances other than the precise circumstances at issue and for station right that was it that was and and we do not take issue with them on at all the government doesn't take issue with milan we believe that as a common law doctrine the implied you get the safe and fair dealing is necessarily the location of it has just become more wholesome over time we're not arguing that malone was incredibly decided we're not asking this court to overturn seventy percent of the work and continue to pay that would say when they they were perforated the benefit when they said you're not doing the appropriate thing that's not the legal standard that we set out the legal standard set out on them alone didn't have anything to think about about the precise standard that set forth in the restatement of torts and our contract and and we reiterated that standard again and got one right that is correct your honor and again because of the that makes no sense in a two party cage does it for example in your case it's you versus that kid if any action that the government takes or over that kept a could be targeted at the moon but it's not it's going to be targeted at the other party and there's no question who that is in precision pine we had a three party problem and precision  was looking at the question of what does that surge parties independent action have to do before it's relevant to the litigation between the other two parties so i'm having a little trouble honor as an initial matter the legal standard is applicable across all types of cases and imprecision time with this court did with this court said yes the government had the ability to suspend these timbers the contract but what the court then looked to was the action of the far service toward person pine during that suspension period so it was the same two party action that we have here because what the court was looking at with how was the fire service treating precision pine during the suspension period to determine whether or not there was a differing standard that i mean we still have malone and we still have got one which is a which is is fundamentally a different standard and you keep calling it work open but it's it's fundamentally different and and and the outcome could change based on that fundamentally different standard how do we know following up on that point how do we know what the trial judge would have done with this under m well your honor again because malone would we wouldn't reach a different outcome with similar case with that type of action and those facts this is exactly what the trial court this is the same result the trial court would reach under that malone standard and again what occurred say not not the one that you the case then goes to the damages phase and the damages would not vary according to how many different bases of the preaching of good faith and fair duty there were no your honor there's no support for this idea that an aggregate breach then leads to lead to one hundred percent recovery recovery still must be linked to the br the two hundred sixty day delay and that the trial court found we just knew that finding however we did not challenge it on appeal but certainly the trial court also specifically made a finding of fact that that two hundred sixty day even challenged on appeal but they did receive the benefit of that two hundred sixty day extension which i did and are wanted to g applied the wrong legal standard in concluding that they were supposed to so they specifically argued that she used the wrong analysis that she analyzed only those circumstances where you have concurrent causes of delay so that you can't determine exactly which caused the harm but she did not analyze it in terms of sequential delays so their argument that is that they're not subsumed in the later causes of the lay because they had to do a lot of things to expedite the rest of the fact that she made that all of the delays meeting up to two thousand and six or subsumed by that two hundred sixty day delay she made that finding a fact based on the testimony of metcalf an expert at the trial court level and therefore there is a finding of fact on that issue that such a preacher that he rejects the finding that there was no such brief preaching remit of that point do we have to address the liquidated damages question or does that properly get because we've managed a it may not arise because the delay at that point may no longer be caused by medical well your honor that hasn't been fall liquidated damages would would be arguably totally different so how do you say that wasn't raised on a fee yes your honor the liquidated damages might run the other way  dealing everything is encompassed in the party contract macapp the glee didn't perform to the terms and was surprised that the navy was holding back has to the terms of its agreed upon contract and what is what's the contract language or maybe i'll put it this way on this question about pre clearing design changes the contract provision i guess you have to pre clear changes that go outside the contract and you pointed were within the contract specifications the pre clearance the one met have submitted to the government the design specifications and the government approved cations the government precedence yes it says something about you know ranking different kinds of of issues it doesn't say that even that once you submit a design and it's  approved the fact then becomes part of the contract specification well it's specifically states that except to the extent that any variation has been approved in writing by the government and that that's what the navy was seeking asking might have to do  adhere to the terms of the provision and once the design specifications had been approved the further approval for different different sets occasion for these reasons your honor for the reasons outlined in our could look at those four findings by applying the reasonable tennis test of malone which i argued below applied and make a finding that the contract was materially breeched i do not believe it has to be remanded for that purpose if the judge wanted to could have willingly do that then it has to be remanded for new working the damages as well that's correct and that's where i get back into malone if the government maturely breaches a contract in a material breach of wrongful termination of a contract just like him alone as a by operation of law it converts to a cost reimbursement contract and that's precisely what we're going to argue that this material breach by operational blog just like in the wrongful termination setting becomes a cost reimbursement contract and think about the sink about the russian know in malone the contractor left in mecca he continues to perform he could cost the government millions of more more dollars if somebody would have to come back in and finish what they've done so if you would agree with with me that the navy was in material breach and any particular time during a contract they could have walked off the job lick their wounds and went on to the next job just but but so why should milt i should malone be treated more favorably than metcalf i submit they should not they're there in the same position there's an internal e mail from mr camorra to the to the contracting officer don imus or that talks about this procedure for asking for variations and in there he says this is a three two zero one seven if change approved by their desire that caps desire because remember this is a design built contract is lesser than their specifications but meets the r f p we cannot force a contractor to comply with the it's black and white there was no contract requirement that made us submit variations from the design that met the contract forms so in short i asked but this court reverse