this is a case about a wrongful termination of a contract as this court has previously held and decisions of default terminations is a drastic sanction which should be imposed for sustained only for good grounds and on solid evidence  was unreasonable and unnecessary here that the army through the corps of engineers incorrectly unreasonably of applied various parts of the contract against the contract we've we've argued that this is very evident in the baro area directional schrage so the project at issue here is a levy improvement project in northeastern louisiana it's been contracted with the army to perform this over a fixed period of time they were required to excavate certain materials and place them on the  increase the the embankment that were required to take those materials from designated baro areas two of those designated borrow areas were on the land side of the levee there's the river side and the land side the government attained a lot of agreements from  landowners to use this material the government those those agreements were not part of the contract with the man the government did place restrictions on the borrower areas those borrow areas were but it was known to the government at the time that the that the the amount of film material in those borrowers would be exhausted or used up still the government imposed imposed directional restrictions on the contractor in terms of how it could how it levels of production we were achieving and we contend and we've argued in our briefings that those productivity levels of the board determined work around because the board was basic first of all the answers terminations were made production that was being achieved during that year period was based on a number that was agreed to between the contractor in the government if a condition were satisfied and that condition work to open the contractor to open up the borrowers to use scraper equipment to lay out the material to allow it to drive patiently because there are also moisture restrictions and in the in the contract in other words the soil there you're saying the number the food came up a realistic number was not the correct number we don't believe it was a correct number and we did we did site so that in our we did argue that in our brief that the the the productivity determinations first of all the notes the amount of the amount of material to at the beginning of the cure period and the board found the during the cure period the amount excavated in the sixty four and seven q b series was that right yes that's so they run six thousand that's that's thousand yes and change under the ten thousand that there's two issues there are first of all the there was a period of time during the cure period roughly the first fifteen days where this restriction was not lifted in terms of allowing it vance construction to open up the bar area during that ramp and there was a ramping up period where bands had to get additional equipment out there and it vance agreed that it could meet the ten thousand yards a day if the government would allow advanced open of the bar didn't exist at restrictions they did your honor after about twelve days into the cure period and when they did advances productivity level  significantly the sixty four hundred dollars sixty four hundred in the board account for that increase and to simply take the the number of cubic yards of material that you removing and multiply that by the number of days over left to come up with the number of that days during the cure period and i remember looking at this recount number but how many days during the cure period did you excavate more than ten thousand cubic yards i don't have that's the specific number of was it was it was not more than half as it's been the back to just press question about the the productivity we believe that if a proper calculation that should have been made by the board would be to look at the total number of days remaining in the contract including the allowable excusable date delays that the contracting officer did not give credit for the board get credit for some of those days at at that level we would have in achieving productivity at a much higher rate is that not up to ten thousand cubic yards per day but at a rate sufficient to be able to complete the work within the law the allotted time travel number you came up with the number ninety two hundred and change and counsel seems to me that the board make the actual findings that the delay was caused to a c s is inadequate the watering uppers and you don't seem to already going to say you seem to fall back on the argument that it was a government that the controlling there had to do with being able to utilize all of the materials in that drainage requirement would have been in effect  irrelevant because by allowing events to excavate the materials using the open cutting method as opposed to doing slot cutting or cutting trenches would have allowed advance to dry the materials out sufficiently and overcome any of the drainage issues that arose there were drainage issues and i'm not going to stand here and say that it vance did not have problems with draining this baro area but this allowing an opening up of the borrow pit when knowing what the government knowing that all of these materials had to be would have had to be used we contend that that's an unnecessary restriction that the government placed on advances ability to perform the work in accordance with the means in the method that it was should have been permitted to use requirement was in the contract your argument really seems to be that the government should have made take an extra contractual steps to accommodate a contractor that was not under the terms of the contract able to perform which is an unusual doctrine it seems to me i don't understand in certain circumstances it's going to be in the government's interest maybe in any circumstances to go ahead and leave particular contractor quire and in order to ensure that the contract gets performed by the initial contractor but i'm not sure where doc trying the we would find support for the proposition that the the default termination if the government does not we're certain contractually agreed upon rights that it has and finds that under the contract as written the contract or can't afford your own of the best  weapon responder that is two points first of all it's i see it almost akin to a defective specification where this fireman is put in there and the government knows at the time that it's put in there that it it's doing it to protect agreements that it has with with landowners but it knows it's most likely not going to be necessary and yet it still imposes that on the contractor that is the first to be entered into that conkwright yes we did enter into the contract the second point is when that was the government had disappeared knowledge here you're dealing with a contractor that i gather does this all the time it van has has significant an experience on this but the but the government did have reports that were prepared and we cited to the five or no to report that showed that the amount of materials in the borrower is one to way into being would all have to be used to satisfy the quantity requirements the second the second point in response to your question or your comment is that the government did lift this restriction and when the restriction was lifted the productivity increased significantly ok we're going to you ruben time would you like to say that yes i would like of this case i'd like to turn first if i could to the arguments raised by vance concerning the allegedly expert contractual requirements regarding the excavation required to borrow it to be those contractual requir are spelled out in the contract notwithstanding advances characterization that these are extra contractual these are in fact expressly contractual and they're found in the contract and they know that and let's read just briefly what they do say around her because they tell a great deal about what the contract required advance to do so there are several provisions i'll just touch on one or two with perspective to be provided among other things that they will not be permitted to excavate required start in the upper left corner and go all the way down to the lower left hand corner and then move over sort of the top and move to the box in rows in rugs starting on the west finishing on the east isn't the case a d your opposing counsel says that everybody knew that all of them cereal from the borrowed area would have to ultimately be taken that is not correct ok much t ground compacted is going to equal the elevation on the levee in dam the agency's typical practice is to try to oversize the area of the borrow pit if they can for the pragmatic reason that it's really expensive to go back and buy more dirt later write so the requirements were one and two a first and then to be if you need i understand that the contractors take the position that well we all do that is the case but in fact the agreements with the landowner which drove the specifications here indicated that the contractor into being would start on the left which was a lower lying frankly a pond and moved to the rock and the reason for that is because honor although advances argues for the proposition that they were completely unaware of these agreements maybe they were but that point is irrelevant because the government doesn't have an obligation to explain why specifications are the way they are but start out with the requirements were advanced visited the site the boy george found in fact that advanced saw a pond on the site when they visited the site treated and the contract clearly spells out the do water part but anything like to draw the court attention to one document not to mention a directory in our brief and that is a page one when you don't which is advances excavation plan cars to conserve our arable land and to make all the more use of available borrow material advance shall proceed in accordance with and then identify the specification that's the same specification we're speaking of were among other reasons to conserve arable land and addition your honor in addition to the fact that the contract specifically required this as the board judge found as a matter of fact the difficulties which faced with respect to the moisture control emotional level in the to be was not a result of the government contradictions but was a result of advances inadequate be watering job in that particular site the board made specific findings of fact at thirteen that day the advance failed to aggressively the water in june of two thousand and five at the decision on page twenty feet to the board judge notes that a court contended that advanced did a sub par job with respect to do you watering and the board expressly found that we agree and indeed at the bottom of page twenty of the board's decision is a very lengthy paragraph expressly rejecting all three arguments which advance that the contract on the front page of the contract at page forty seven of the appendix is a very front page of the governor inserted a little warning on the very front page of the contract and it sends the bar area excavated under this contract are required to be excavated considerably deeper than other projects in this area see the specification so they flag on the front page this is going to be a harder job and in fact when you look at it you find that not only do they say it's going to be considerably deeper in the specification it says expressly in the specification excavation to the required depth may require excavation below the ground water table that's on page one twelve of the contract specs and then it entirely consistent with the fact that the contract styled out in plain language is possible that it was their obligation to do water that whatever the source of the water wherever it came from and you see as presented to experts before the board vs the the decision of the board well the decision of the board your honor was actually considered more than just the opinions of those two experts those were mr can all mr feed the board also considered the opinion of the government expert a true gentleman named mr strickler and the board also considered other record evidence including these daily job reports some of those were created by the contractors there cause you see some of those created by the government q a r s and finding fact and thirty two and finding fact number thirty three the board said expressly that he considered all of them and we looked at thirty three we will see what the board says very point is in thirty three that is mr spock was report an excerpt of that report unfortunately not the entire thing but an excerpt of that report is included in your appendix at appendix page two zero seven seven point one tariff thirty three is perhaps a little confusing because i was trying to sort through it and i is the board seeing when the board says based on the degree finding that in the remaining time i have never expressed to us very quick points number one of the notion that the government took eleven or twelve days to respond to this request for us to open up our appeared to be i believe the record does not support that and i would refer t government's response as i referred to your letter dated august eighth two thousand and five which is the request for the deviation received by facsimile on august fifteenth at the very idea of engineering office wherein you amount of work to be completed was slightly more than fifty percent in fact it's fifty five percent the board found that they were entitle to one hundred fourteen days of additional contract performance you can find that is fine in fact thirty three which amounts to twenty five percent of the contract time remaining yet fifty five percent of the work remains to be completed on this work the board specifically found as fact finding fact twenty eight and eighteen that sixty four hundred was the appropriate measure of the by the time of contract completion was in fact eleven thousand yards and you can find that finding back thirty three so where a contractor has a requirement to move eleven thousand yards a day averages only fifty four hundred yards a day is a copy of the frenzel corporation's summary prepared by mr canal and slid into the record and in that about the i see six column from the top bottom scuse me is the ninety two thirty six deviation request received by fax dated august fifteenth he made a comment that that was a back dated letter there's no evidence in the record that that letter was back dated by advance and submitted later that it was dated a because but the fact is that the that that is in the record is that the deviation request was granted and short at that time events began opening up the bar area and is productivity rates increased and mr condole testimony is that at that point from that point until the end of been tilted the the contract was terminated by the contracting officer eventually or cheating an average daily production rate of ninety two hundred thirty six cubic yards per day the calculation that we submitted in the brief would be is if we had the board correctly determined that the forty two days should have been added to the eighty six days remaining in the contract so when we carried it into the two thousand and six construction season it vance would have needed to achieve a production rate of eighty eight hundred forty eight cubic yards per day to complete the work within that remaining time well less than the production rate that advanced was achieving when it was terminated we believe that the keep me there was everybody knew it vance was going to use all that material to meet the compaction requirements and the government really had no reasonable basis to keep that restriction imposed and it also meant lee agreed with advance and lifted that restriction and allowed events to open up the bar area and when it when it did that advances productivity levels increase that's clear from the from the testimony from the evidence in the record and there was no consideration given by board to that to that factor i think there was a finding that yes from two to the increase but not to the levels that are going now completion of the of the project on time and one of the factors for that does rain is that the board also included in its calculation about one hundred thousand cubic yards of an compacted material just basically loose dirt that had to be placed that is not a controlling feature work in the record is clear the government's witnesses thousand yards which would have had a ten percent factor of roughly ten percent would have been would have been saying that the the the man who gets up late in the morning finds himself a night still running isn't this  i'm not going to stand here and say that advances performance during the first two years of the project was stellar and property there were reasons for those delays that we're seeing two thousand and four construction season and if the board looked at the records and there were significant delays during that period of time between june and december when the work when the days were counting if you will and high river stages and usually severe weather those had an impact on productivity events raise those issues with the corps but they weren't they weren't resolved so there's you know there's blame to go around there and there's room in advance to accept responsibility for some of those but when diverse when you know when the time came to to really meet it requirements in the two thousand and five season and when the restrictions the unnecessary restrictions were lifted events we believe the record shows that advance was meeting those production levels and could have achieved that and the board gave no consideration to that we believe there is authority for for the proposition that the board should have given consideration for that and that was it was error or not based on that we would ask that the court the court reversed the court of the order contract to build decision in remand with instructions to