united states court of appeals for the federal circuit is now open and that should save the united states and this honorable court good morning counsel our st case for today is two  about construction some housing units and miles from air force base in great falls montana during the course of construction mold was found in the crawl spaces i think it's important for the panel to understand what a crawl space is and how it's isolated from the occupied and living spaces called crawl spaces is just a an area under the living unit sealed from the outside it is sealed between the crawl space and the living unit in between the crawl space in the outside there are gaps in the framing and so forth and so the way this system was are no delivery events to the structure outside correct all right and well the system was designed to have that air filter because there is minor portions of when you talk about ventilation it's not a significant amount there's minor portions of the air that are pushed out during the system when the system is the in operation but that enough there's enough air circulating to prevent the buildup that is correct once it's in operation so the issue here is mold that may develop during the course of construction that is correct  thank you and so all of the areas to the living space are areas that are sealed off the specifications were clear that after the st floor framing was installed which includes floor of that area was to be sealed even the duct work you mention the ventilation system even the duct work to pass through the crawl space was to be a seamless material or to be tightly sealed they did not want any air coming from the crawl space into the living area and as mentioned in the breeze those areas even though they receive minor amounts of air they are deemed to be unheeded areas and unconditioned areas now is a relates to mold the mold is not regulated by the e p a there are no specifications within the contract that indicated there were limitations on mold that would be found on rough training materials which were those materials that were in the crawl space now the contract is not silent on mold the contract recognizes that mold can grow on organic material and so in those living spaces the contractor is very clear that if there d is mold found on finished carpenter eat cabinets drywall those type of organic surfaces that the mold was to be removed however in regards to the rough framing and the crawl space there was need to do some mold remediation if it was discovered in large quantities or unhealthy amounts to i guess to protect the employees during the construction makes you say that the indoor air quality as used in e m t three hundred and eighty five is defined by the ashtray definition investigation using appropriate guidelines published by and it talks about a c g i c and then they refrigeration and air conditioning engineers that is ashura and so those are the standards that are to be used none of these other standards that are in there discuss that issue and so is the standard and then  and eighty five provision had some kind of requirement an obligation it needed to follow if something were to occur and that something would be this mold that was found in the crawl space areas that had workers what they did is they went in and they had someone come in and look at the area they did a review of that and by step they had people back in the area working so that was a safety issue in d regards to the workers so the workers what they did is they like things down and they went back and they commenced work now what the government required was significantly more than that so in regards to the safety provision if you review all of the documents jason at that point the only thing that i could find in regards to mold was three hundred and eighty five it had someone come in they looked at the mall they were able to occupy it the government if you look at the entire scope of the government's protection of existing vegetation structure which was found to be not a clickable because this was new construction it was not existing construction irrelevant to any occupant of the home because as i understand it the indoor air in the home nothing from the crawl space ever goes up into the house and so even if there is something incredibly noxious or or mold or something like that there there really isn't any concern and so you can't say that mold even if it's grass like growing all over the place in the crawl space is a material defect in the home could you comment on that and and explain constructive change playing st taking out when and now they have to prove two things they have to show that they performed work that was outside the contract and they have to show that they provided did that at the direction of the government so the t it true that other properties were also similarly infested with all of those mold other properties not being built by j t c s connection with it i guess i'm not certain why that necessarily weighs in favor of the government i mean you know the government is the giant in the room but the fact that the contractors decided to just for mediate and not go after the government for payment based on it being a design flaw it doesn't seem to me to make it clear that it's not in fact that the side flaw if it's basically everyone was encountering the same problem if they were using the government design isn't just a design contract then it's not a signed contract because the child held the contract and paid performance requirements and in making up holding that page significant cause of the degree of mold in this particular circumstances that choice to not lay down the plastic vapor barrier i guess until several weeks or a few months after everything else regarding the floor had been assembled and sealed off do you know if those other prior home constructions by other cost and degree of remediation that those contractors have to do it is not the same cost and level that k p c had to undertake is that right that may or may not be there's no  own direction the court held that higher one hijacked its company and chose to proceed with its recommendation unilaterally the record contains no evidence of the government selecting one method over another nor expressing any preference that's a why that makes a difference what what is hypothetically were to say well this design is defective so therefore it's the defective design that caused the most problem here the trial court made a factual finding that the court and hellcats cannot overcome that what caused the mold was there sequencing and not any reliance upon a purported design specification but even assuming that was the case they cannot them in terms of how to proceed and how you know how to conduct the remediation when we didn't know about the remediation until it was already implemented that profiled followed in formulating a plan we didn't receive their plan until march st and that document is obviously a proceeding page here and you can see in the cover page at five o nine examination in regards to the government's expert when i asked the government's expert about this being a non condition space and about the places being sealed to specifically said i just don't agree with it well from  contractor's perspective you need to look at the plans and specifications and the plans and specifications specifically say those areas are sealed off in regards to the methodology used that were  comment or question about the installation of the baker barrier i refer you to offend it's nine for nine dollars to one dollar which is the government's march th two thousand and eleven letter it says j p seashell continued to implement the recommendations provided by c p a and have c t a perform final inspections prior to installing the baber barrier to ensure that the mole problem has been sufficiently resolved additionally the government will require reinspection of each building so the government was telling j t c that you have to perform this work as directed by  to ensure that there is not going to be a mold issue and we want you to do it before the vapor barrier is placed on now in regards to the other phases i think it's important for the court to