core we seek an order directing the district court to convert gilding determination for default into a terminations for convenience under the far under lisbon step one building had the burden to project on a properly adjusted completion date as part of its step one terminations analysis gilding was required to give you ip credit for then known excusable delay so the district court eight large number of facts findings which were which were against your client and determining that problem is the district court never made any such findings on this issue so if you look at after you plow through all the factual findings there are the compute conclusions of law that you are twenty three and conclusions of law one through three the district court correctly set forth the far and set forth the case law to apply to determine if the default for termination was validly issued and then in conclusion of law number four the district court then laid out the factual findings followed by the citations to the legal authorities on which it based its decision but this is critical to the entire appeal that on this ground the district court did not point to any evidence either in all of the previous findings of fact or anything else in the record that validated gilpin's  to terminate u i p and that gil bain had engaged in the actual act of making an evaluation as to whether or not there was a properly adjusted completion date that's the key so if there were no excusable delay it is and if i take it that the last recovery plan by you i p had something about three hundred and fifty nine days to complete the camp need so that seems hard to counter unless there were excusable delays which is why i was asking you about why the district court's conclusions that they weren't excusable delays was wrong well it schedules is not enough the old bane had to take a step back and gilding itself had to look at all the delay factors and determine whether or not any of those delay factors were excusable so this  doesn't have justifiable insecurity and can't terminate the subcontractor is at the position you're taking with a slight modification the holding of lisbon mcdonnell douglas is that the contractor is required to conduct its own independent analysis well relying on saying there has to be read what i mean obviously it was determined that was justifiably in secure and hence terminated it and the district court found that that was reasonable so the question is does there have to be something more which it would it be a written some sort of written document or an s so that's why i was asking is that your position and i said with a twist the cases say there has to be an analysis and what you have to do is look to see what is the properly adjusted completion da court found that there weren't any and then tell me why yes your honor i just wanted to say say the reason i was saying with a twist is the cases don't necessarily say it has to be in writing they just have to perform the  act and that's why i said that and if i perform the act what do you and i mean by your vote not to look at all the delays and see what caused them and see who is responsible i think in today's business world it would be unlikely that it would all be was the programming delay and before we decide whose fault it is they're supposed to say in light of those delays what is the actual revised completion date and in fact when gil day that's the navy and i'm going to get to that in a minute regarding the programming and the problems with the programming gilding asked for a delay of two hundred and sixty two days so and that occurred before the terminations so at least in the district they did yes and that that would certainly be a separate issue but the district court found that in fact programming was not on the critical path and and so we would have to determine that that was clearly erroneous totaled in excess of twenty and what it did was it took the problem with the program the problem with the programming is this project required the contractor to use cat caterpillar i s o software for the programming that navy put that in that specification when when the contractor building went to get it they were told oh the navy really didn't have the right to sublicense that programming and that you're going to have to do something about it so  twenty in the a some little was made to the navy's that said programming is on the critical path and it wasn't the fault of my client c ip programming was on the critical path and we need to because the district court found that was false well we need to look at whether it was false or not right the district court found this is what the district court found was all of this a middle going for a full dollars documents that were submitted to the navy that that plus a time just an analysis that was done two days after the terminations that said programming was on the critical path  biased as any witness can possibly be because his project was on the line and then they just record pointed to two other exhibits in the month of may that well he cited to them if you read the contents they have nothing to do with programming being the critical path and so in the face of you know of longstanding federal procurement law that says contemporaneous actions of the parties will be given great if not controlling weight he relies on to e mails that are irrelevant to the issue and the self serving testimony and he says that well that tells me that programming really wasn't on the critical path but it really if you look at the entirety of the exhibit six hundred and fourteen and why and said it was false so is there something in the you said there is a huge record that would indicate that programming was on the critical path and i wanted to know whether you could identify a specific document or most of the exhibits not being part of the electronic records so we had to bring a motion to transmit the exhibits to the court and so it's trial exhibit so there were three binders in this is docket thirty that page eighty two dollars and that says the date that the navy's programming change quote delayed the placement of the order for the switch equipment then you also have at page eighty three the date the contracting officer issued authorization to prove seed with the programming change established the date for ordering t switchgear equipment and then those are two documents among several that are cited in our in our breed i think that if you look at i think that's all can give you for now but that the other thing and this is pretty important the executive vice president of gilding expressly certified the submittal to the navy and said it was in good faith and it's accurate and complete and it is replete with exhibits throughout the the document that show this now the other document that i would point to is the the time impact analysis that was prepared two days after the terminations and if i don't have that at my own i should have that at my fingertips here do you still maintain that listening or mcdonnell douglas may be both require that under lisbon and you ip is actually the party with the burden of proving a excusable delay in this case and judged the district court correctly held that you have failed to carry that burden as set forth in paragraph four of his friends and fact and conclusions of law he wrote twenty four u i p's delays were not excusable and you ip was not entitled to any time extension that would case law actually says st of all list when the case upon which you ip relies is not an excusable delay case and in fact if you look at footnote nine of the case it says excusable delay is an affirmative defense and the court is not considering that here it did say however that the contracting officer and by analogy gill bain needs to undertake a quote unquote study of the time left to complete the job and the work left to be done and building did that and the case law says mcdonnell douglas and in fact mcdonnell douglas didn't even involve an actual completion date for the a twelve fighter jets but the court nonetheless said look you need to undertake an analysis and you can rely upon the contractor schedules as part of that analysis morgana he says the same thing so what is where is th took into account the circumstances existing at the time of terminations and made a recommendation upstream to his superior superiors about the status of the job he looked at mr commitments unable to prepare compliance submittals the fact that your ip wasn't making progress here those deficiencies and the schedules and the recovery schedules that judged ultimately relied upon and as your honor correctly pointed out that last april twenty four thousand recovery schedule is fatal to you eyepiece case because it projected that you ip needed three hundred and fifty nine d programming was on the critical path that those delays in getting the switch gear or in they finding out what the actual date for completion was  extended what's your response to that the district court's findings in that regard are not clearly erroneous because there is a wealth of evidence supporting his conclusion l the the argument as to why programming was allegedly on the critical path and if you look at exhibit six hundred and fourteen page forty which is the switchgear fragment or a portion of a schedule reflecting why the job is being delayed gil bain alleged to the navy that the reason why programming was delaying the job is because you needed to know what type of software to use  before you could place the order for the switchgear and before you could fabricate fabricate the switchgear in other words the lack of knowledge about that type of software impacted a long lead  but as the district court correctly found though the factual underpinnings of that are yet were not accurate and it's an awkward position for me to be arguing that that's the truth you look at what happened on the job adopting opposing counsel's own theory that we should look at what actually happened to inform our judgment well you can't come to any other conclusion than that programming was not on the critical path order for after terminating u i p gilbert giving place the order to buy the switch gear on august st two thousand and fourteen months before the navy issued direction on what type of software to be used and the response of kenney the supplier provided gil bain with a bill of materials to include in a submittal to the navy in september how do you know what material if you're going to need to buy and provide if it's somehow being impacted by the software the engineer of record who designed the system said and testif trial are for a two dollars to four dollars a three that it was not necessary to know which type of software to use because in order to fabricate the switchgear equipment because he had th requisite knowledge that the type of software that is used in the industry would be compatible with the type of products such as protective realize that he would use and that the only components that were dependent on knowing what type of software to use included him and scout to which are communications hardware that those components were not necessary to satisfy five the navy's witness testing requirement which is basically a dry run of the switchgear to make sure it works in kenny's fabrication plant in illinois may i ask you this if it was known to giving at least around mid april of the delays you ip was having why did gilding wait until after sending question is why wait until after sending you ip extermination letter to have kenny supplied the switchboard i think that gil bain rightly did not would then be able to be able to argue that gil bain you have directed me to use this quote de facto sole source supplier and that was the argument that you ip was making contemporaneously to buy some plain mean  one other maybe more suppliers right and so down the line we see this other supplier s p s which i have done a fine in my opposition brief that could at least come to comply with the switchgear house and there is evidence that power concord comply with the switchgear itself and maybe those could be put together so that the issue is how much would that cost would there have been an assumption of risk if that portion of disco that work from u i piece contract then the question is well that's a pretty live large chunk of their work this was largely a procurement contract for generators and switchgear and if you ip can't provide the switchgear because it doesn't have the money or resources or competence then what's to say it will be able to provide the generators and if it can't provide either of those components then what's left and if you did dock to all of the value of their subcontract pursuant to the deductive change orders that then is you ip going to be able to perform remaining work on its contract where you're really not going to be paying it very much so it's a it created a conundrum and the district court correctly looked at that issue looked at the terminations clause and said i know there are possible other remedies available there were other remedies could have exercised but it was not required to do so as a matter of law so you're saying these are business decisions their business decisions supported by the four corners of the contract that was that was signe says basically we need a year from the date of terminations to complete the job there wasn't enough time there was there's no time extension that would justify reversing the district based on that  admission because if you look at that initial loss of forty five days it means that even if gil bain or the navy  completion date that only takes you out to march late march and at the time of terminations if you look at that recovery schedule from april it says they need a year from the time of germination to complete the job if you're short by three months that's not go it done and again gilding is not required to do any kind of robotic or formulaic analysis it just needs to know enough to know that it has a reasonable belief that you  is not going to complete on time and that's what those recovery schedules were telling kill ban and that's why the district court was right to basically sustain the term terminations mid term a nation based on th analysis i won't get into the specific sole source or th position indicator issues other than just to say there was evidence going back on those issues back and forth and the district court had to weigh it and he did and beyond which for the th position indicator issue it was something where you have to look at it at the time of terminations not after the fact and that's what mcdon must correct in understanding that it wasn't impossible to have a th position indicator it was as the navy determined it needed correct and we had at least two suppliers saying they could do it kenny and power come on before terminations and so you have to look at what gill may knew at the time not what they learned later after the fact the fact when the navy relaxed that specification testimony given three years later there is no study in the record and that alone the fact that they didn't do it is grounds to reverse under mcdonnell douglas under the big donald douglas case the court held the government did not as it urges satisfy its burden by merely showing that the contractor was behind schedule and that's at one thousand and sixteen in lisbon the court said you do not satisfy your burden by merely the guy yet you do not satisfy your your burn by merely showing that the contractor was behind schedule i guess they repeated the rule so at the very end of counsel's presentation he said  job and had a reasonable reasonable belief u i p will not complete on time that doesn't get it done under the under the rules there is no study in the record and again for this court to find that  district court's ruling should be affirmed they have to that this court has to say gilding committed a fraud on the united states navy and in order to get an extension to the completion