case for argument is sixteen to twenty six hundred regency construction versus fartman a people are i mean has two points but the main focus of our appeal is on the issue of whether or not the forty one slope in the project specifications on the side slopes of the prison was a design or a performance specifications known as background this they are like what we just heard it is not nearly so intricate so simple but not so nearly so intricate a situation this is a maintenance dredging contract work and that for a canal in the new orleans area this is after katrina there's a bunch of stuff mainly material silted into the canal and reduce your best argument what's your best case and or concluded otherwise they conclude that this was a performance testimony was in both testimony in trial and in their iraq two responses that they made it engineering decision the slopes would hold for one they made that i specific provision in the contract for the final product that had to be reached and i believe that the degree of the slope was a near obligation but the method by which you achieve that that was that's correct right and you were free to use whatever method you wanted to   means and method that's left up to a contractor there's always going to be a degree of design specification that is designed by the typically the government interference contract and so i believe that means and methods in this contract were limited in availability i mean certainly you couldn't bring in a hydraulic see going river going to rage in the syrian certainly they would never have allowed regency to putting coffer dams and de water in the canal and then do it by hand so that mean there was a very limited amount of ways that you could do this other than by dragline or train however yes they were unable to pick their own means and methods however i think you know when we look at a case like like that are to try to sion that it's that you're always going to have a mixed bag like cases are almost always a question of law and fact performance of construction contract is always going to have a certain amount of leniency given toward the contractor and how they pursue the work i've never seen a heavy construction contract in which the actual means and methods were so specifically designed as to leave no room for the contractor to choose their own methods to some of the group and this case certainly had our means and methods been the nature of your argument here which i appreciate and respect which is kind of like well this is a close call well you know it's you i think used the term mixed bag doesn't that answer the question given our standard of review with the  whichever way you come out and doesn't that require compel us to agree with the board over you know your other respects that only proves that i believe that while i did use the phrase mixed bag as to the elements of a contract quite firm in my position that the that it's a design specification on the slopes and also the standard for us to findings of fact certainly are entitled to a great deal of deference to her on her the case or this court is not bound by her legal decisions and her legal decision is that the slope is a performance not a design specification i believe that's a question of contract interpretation of a factual determination variance allowed to contractors and how they're going to pursue the work however in this case there is no evidence that any other means and methods would have been any more efficient and certainly not that these and means and methods contributed to the failure out that failure is not the responsibility of the contractor his means and methods of performance were his own but they didn't contribute to the failure of the slopes the slopes were designed feature and they're great and therefore under spear and they are and they come no responsibility for their failure nor for their design that the scorcher overturn the board's decision on that point and remand back for further findings as to damages as a result of the failed slopes and the setting that both you know that standard and as counsel acknowledges acknowledges on page twenty two of its brief it could determine the means and methods of the slope requirement is a forty one slope requirement that was the end requirement of the channel side slopes in the contractor was not told how it was to cheat that objective simply what it was to achieve that case is most analog in finally before leaving it up to two quick question on an under design spec issue it's important to know how the contractor was paid for this particular task what the contractor was paid for this particular task order the court that i believe the like is a much more dispositive case for our position that yes it's always going to be in some ways a mixed bag but when you have a mixed bag i think the court has to at a minimum look to see what level of the mixture is law and what method level of the mixture is fact in this case especially with the question of the site slopes and the whether they're designed or whether that the design specification i believe that the mixture strongly