but i think in this case it would apply to the plenary notice because for the government to provide notice of the exercise of an option it the contract here breaks that into two steps the government has to revive the political arena it's in the final notice if it provides one or the other then the government has not provided notice of the exercise the option this contract splits that required notice into two pieces and the regulation doesn't provide any basis to distinguish we can of soup pieces the regulation doesn't say for example final notice it just says notice of the exercise in here that's two pieces they're both required but if there are any doubt on that i think you can look at the purpose of the regulation which is to provide the contractor actual knowledge of what it is that the government is seeking to do so the contractor can act appropriately on that in other words can rely on it and understand what it is the government is talking about and so i don't see it with respect to the regulatory purpose there's any reason either to distinguish between a final notice and a preliminary notice your ambiguity argument is separate and preliminary notice has to do st is simply was the government providing culinary notice at all is that is that what it was doing is that how this communication should be understood and the nd is fine let's say it was perhaps prefer providing some kind of notice identify the option for which it is providing notice and i think on both of those you have really just essentially ambiguity you have it what was an informal communication i want to provide notice with respect to the other options on the contract email here of the e mail said this is preliminary notice then sure i guess we would all know that it's not referring to the six month option but the e mail actually doesn't say that it is a point of contention is the point of dispute between the parties as to whether the e mail can be understood as providing notice at all a at a word rates on contracts and what the dispute was here i think the context in which this e mail arose is very important and i think i just want to i guess clarify things put aside your contention that this could not constitute a preliminary notice there is the separate question which is what i've been focusing on it seems to me that on its face this is an email that does not make clear whether it's paragraph eight or paragraph nine of the thirty six contract that is being referred to and as i take it the government's maybe only but anyway principle response to that is how could possibly be the paragraph eight you don't have to give preliminary notice and it doesn't seem to me that that is a sufficient response in the context of a completely informal communication which was not even intended to be a preliminary notice though is the board said it may be in fact have been one but if if it's if it was in fact a preliminary notice even though it wasn't intended to be that still leaves the question what was the writer mr seaman referring to when he said we intend to follow the contract and to do against exercise options without saying which one and then in the informal context does tell you something  about or doesn't tell you this is i thought i want you to concentrate on this this point what that what does that tell you about the question could anybody really think it was referring to paragraph eight  that that was a reasonable interpretation of the email mr seaman who wrote the e mail and was the contracting officer on the contract testify that he could refer to some combination of the year long options where it could refer to the six month option our will so you know bookend the issue of extrinsic evidence but i will note that you know we don't think that this that eight informal e mail sent by the government to a contractor is a contract in of itself it's not produced in the way that a contract is the government has gone through the string scrutinized scrutiny of the government to be a contract but putting that aside i mean you know the whole of the contemplation of a compromise this is as we discussed earlier this is not pariah your honor to be clear we're not arguing the government has to use a particular form we're not arguing it has to use particularly what particular language but it's common ground between the parties that what the government does have to do is it has to be an end big us and in this instance there was it least two ambiguities on the piece of this email if you're going to take it as potentially being some kind of notice by the government i think it's a quid understand that when the government is providing notice what it's providing is notice of  intense the government has processes that it goes through to determine whether it's going to exercise options whether it's going to contract reach out to the contractor this isn't something that is just done in an informal fashion on the government and so for the government to actually do that for the government to proceed and to send the notice the government has to have that intent and then to communicate that and hence the contractor and i think there's an ambiguity and they have the and that is literally what the it in other words  difference and i bring up intent three different reason which is that the government actually has to arrive at a position itself and then that's what causes it to send the notice so you wouldn't expect to see this kind of thing in informal e mail you wouldn't expect to see it without some type of language that indicates that the government is actually intending to exercise a particular option in other words as opposed to just options in general in the future and you certainly wouldn't expect to see it in an e mail that is part of a conversation on a different topic or that e mail paragraph nine potential ambiguity i believe judge try to raised it the very beginning and i just hear her clearest explanation why it's at least somewhat reasonable that mr seaman here could be invoking or referencing the paragraph eight option and why it would be unreasonable to think that mr seaman is referring only to the paragraph not option all right so the preceding e mail was requesting to renegotiate rates mr seaman responded and he wrote the government intends to exercise options at awarded rates on contracts it didn't say what options the focus of the sentence the focus of what he was saying was the at word rates he was not distinguishing one way or the other between either of the different types of options that were present in this contract and i will note as i said that both mr seaman as well as the into the subjective intentions of different people or subjective views necessarily answers that question well i mean i think that you know if i just stick to that e mail yes you are so are you done with your answer sticking to the e mail the answer is the focus was on the rates it spoke generally about options it made no attempt to distinguish between the different types of options as everyone who saw this i think recognizing testified  so they can i could continue on this point to a little bit and this is i mean this is what i've been focusing it does seem to me that the point judge dyke mentioned and i think is to my mind the only thing that the government says about it couldn't possibly have been paragraph eight because no intent needed to be given has to paragraph say and what seems odd to me about that is that for that to have for us it seems to me one would have to assume that in a completely informal e mail communication not intended to be a formal notice that the subject matter of the  limited to only that which is contractually required and i don't see a basis for that in an informal communication from what i just said is an idea that to my mind i mean i want to hear what the government has to say would be quite helpful to your point of view what do you think about it your honor we agree with that we argue that it's much in our reply brief in response to the government's argument haitian on the distinction between these two different options basically the government's argument on this point simply assumes the result i mean it just assumes that you would have as your owner put it this level of particularly in formality that there's no reason to be to expect would have appeared in this type of informal communication on a different topic that was addressing options generally as required by the call what option periods does that schedule refer to oh i believe that refers to the former i guess it would be at that point it would be three x the st option already been exercised the three option a was going back and forth with the government that they had been as they had been since before c p a purchased the predecessor the predecessor business here about renegotiating the rates in c p a was trying to convey to the government here the rates you're the adjustments here's what we're looking at for you know for the life of the potential life of this contract high it was concerned about having to perform future based on these rates of contract run you're under i mean the there is evidence on that specifically there are client was concerned about having to perform at that moment because as it told the government it was losing a fair amount of money every single month it was contemplating defaulting on the contract in the short term another it's immediately before there were any other options that would year option and not the six month period why isn't that reasonable to read the january st e mail as referring to the same option oh that has to do with the difference between clear in this january th e mail from the contracting officer to your client if it says a final schedule of rates blah blah blah and it says it only contain option periods that reference with option periods is to the one year your it's right yes your honor and the reason is because those rates which were among the rates that c p a wish to renegotiate those rates were contained in the contract itself whereas for the six month option there were there were there is no rate in the contract that said by a mathematical formula if the government exercises that option s current option that was being exercised the so called year one option that would automatically then affect the rates of the six month option so it's the reason it wasn't included was because the recently nothing to renegotiate with respect to that i will note c p a at that notice of intent to exercise an option has to be unambiguous qualified yatta yatta yatta do we only look at the january thirty one e mail to decide an ambiguity or do we look at a lot of surrounding circumstances e mails leading up to the january thirty one e mail maybe e mails after the january thirty one e mail and any other what i'll call it's forensic evidence or if you look at everything to figure out whether the contents of the january thirty one e mail ambiguous so the legal standard here is that their house is that the e mail has to be capable of communicating through than to be a notice as to be capable of communicating actual notice that's a fact question and i think at the end of the day its totality of the circumstances whatever might be relevant to that obviously if you have a notice that is perfectly clear on its face the other circumstances but when you get to a certain point where you look at it and you say on its face this is just it's hard to tell what it means at that point the ambiguity rule kicks in in the parties agree that it's ambiguous it's not effective notice and so at that point i think you could just look at the piece of it and say this is simply a big us and we think the court could go either way on that because the mail on its face is not clear as to what it was the government was was actually providing notice of if anything i think your honour's  be unambiguous and crystal clear or is it appropriate to determine whether that e mail communicates preliminary notice you can look at other things like say e mails leading up to january thirty one or perhaps e mails after january thirty one that perhaps just that everybody understood that the general or thirty one e mail was in fact let me write the requirements of the fire of course just that it's in writing and it's received more than sixty days before and the actual option expires and so the question of whether or not you need to look at the context what the parties were talking about i think we do agree that the e mail on its face it has to be looked at within the context of the actual contract as putting council just indicated i'm just looking for an answer right or are you saying the answer is yes it's totally appropriate to look at a bunch of e mail exchanges leading up to january thirty or more with regard to whether or not a reasonable contractor would have expected the  january st e mail to indicate notice of intent to exercise options i do think it would be proper for the were to look at the full chain of what the parties were talking about and also of course the contract terms themselves which is opposing counsel indicated there are are only awarded rayna if you can look at other things perhaps other documents to figure out whether document x is in fact unambiguous unambiguous lee communicating to limit or you know is that the government's view whether or not is that a univocal reference to the one year option or might it have been referring in the alternative to the six month option put have put aside the multi year just on that question not seventeen to a seven g now whether it was intended to be a notice of intent not anything else just interpret ing a reference to d the options whether it is clearly referring only to the one year option or was ambiguous as to whether it was referring to either the one year or the six about it we get to look at the other e mails if so what other evidence might we get to look at the board look at other evidence did you in your brief rely on other evidence just on that question certainly honor so as i said i think that it is proper for this court to look at the context of the e mail based on the communications between the parties with regard to whether or not the court should  delve into the extra evidence as far as the depositions of the contracting officer and the contracting specialist and getting into the subject the subject of intent that was underlying that e mail before it was sent that's what i think we're getting outside of  is employing so the testimony of at least seems and perhaps elbow also i guess i would like to hear you talk about is not about their subjective intent but rather both of them and most clear but one of the particular clearly recognized yes yes which was ambiguous that's not subjective intent that's where contracting people when i read this language yes it's ambiguous do we get to look at that and why not that's not subjective intent embrace of the context as questions i had they were essentially being asked to should read the e mail and say whether or not it could have been read a different way that subjective professional contracting officers reading the way in which and saying is this clear to you or not and they say no right i'm just said but that's that was it within the context of on i will give you for purposes of questions that this was and the attempt to give notice of something or other right and the only question is is it ambiguous as to which of two options there was an expression of intent to give notice that the government intended to exercise its not ambiguous your honor because as the court noted obviously there is no necessary intent for the dash eight cars and also only one of them to tell me that i mean i as you know i'm quite interested that why does that matter seems to me in a completely informal communication the communication would not you would not expect it to be limited to that which the contract required somebody to give notice of this is just the contracting officer in the middle of a linux changed saying you ask for more money we intend to exercise options it doesn't say some options  but not this is a document limited to the four corners of what we were required to say too so i think relevant there is that the fall the rest of the straight out that was intended exercise options at awarded rates and again the option years one  dollars of the appendix is where the closet as agreed to by the parties in here and it says that the government i'm reading the dash eight cause here the government may require continued performance of any services within the limits and at the rate specifying the contract these rates may be adjusted only as a result of revisions to prevailing leader labor rates and it does provide that in the interim perhaps the context of going on for five years there are going adjustments the prevailing labor rates those can be written in and changed within the context of that pause right  matter of english put aside the change to a th you know why does it make perfect sense for mr seaman to be saying let's assume he was talking about six months six months extension we expect we intend to exercise the option at that rate no adjustment as opposed to both prevailing labor rate just right well obviously there's no requirement for the preliminary intent but also that that would have that could have been within the cost provides for context to ask for an increase based on the additional labor rate now i will note that they didn't follow up with emails asking that saying ok well if you guys are exercising the six month contract as we've indicated we're losing money on this contract that's because the prevailing labor rates are too hi therefore within the confines of that cause we would like you to negotiate on the rates with us they clear the tone of the e mails between the parties and sent internally after the fact which are on the record is that this was them shutting down negotiations on changing the contract rates which october st it appears for the st time in the record which is a full six months or six weeks excuse me before the basin agreement was ever signed and reports actually assumed its contract i think that timeline is relevant because here we have four to fifty four months of negotiations by very serious very serious decision for company to undertake would would impact their ability to be able to win more caught government contracts in the future and so the ability the context of the long spoken negotiations and then the fact that the and one option each with a different price and so these are specific option year prices that were negotiated and agreed to by the party before this contract was signed other ways that what what what should i make if anything to the referenced texas gulf in beaumont i believe that must must of been a typo i'm your honor because you're correct that the dash thirty seven contract is what is what's what's been the mistake is the mistake thirty six instead of thirty option you're on the beaumont contract was exercised just a few days after the email and so that's that's not an issue at litigation but there are similar contract is more what does does that suggest that this e mail is actually the the typo correction should have been our thirty on both of these contracts and then the contracting out service you know later does refer to both contracts both contract number saying we intend to exercise the options that you worded rates on these two contract numbers and as i noted i believe it is in the record on the  beaumont contract option was exercised actually just a few days later by the more formal preliminary notice that it is the practice of the government you know this video page there's a next day e mail referred to i have to go off texas go for thirty seven  reacting to these e mails from the from the contracting office or implying that they you know maybe would have to consider defaulting on the contract which again is a very serious choice for a contractor to make that is in the record at page one thousand but i i think they are somewhat disjointed the way the parties but fair and then the contracting officer responds that it's their right so what's your clearest cleanest and a two sentence explanation why when there are two different options provisions in this contract why when the e mail just says options he's necessarily referring to daschle and necessarily to this court's analysis however he's just testifying what a reasonable line but certainly your honor but i mean again that because there is no deference given to the does the decisions of the contracting officer under the c p a the necessary flipside of that is that we can't take into consideration what this contract necessarily dash nine because the parties we're talking about exercising options at warded rates there are no awarded rates for at the daschle contract in addition to because there's no requirement for a policeman or a notice under the under the dash eight contracts the clear context of those emails that they're talking about the four option you're getting the contracting officer be referring to dash eight and saying and by the way my position is i want it to be the services option to be awarded rights why couldn't that mean that again because it considering the context of this is the e mail chain the fact that the parties are asking the government to increase its rates had they under immediate modification of a contract to a price modification not necessarily a price my patient had to the immediate contract and i don't think that's fair on the face of the e mail chain again considering this contractor's position that they thought they were losing so much money under this contract that they purchased from another another party if they had understood them to be the government to be exercising the dash eight clause it makes sense that they would try to say ok well they were within the closet has the wiggle room for the prevailing labor rate adjustment so ok at the very least can we the up the rates given the prevailing liberated just that that seems to be relying on you would think they would subjectively react to this e mail as opposed to what is the actual content of this email why does it reasonable contract or or i would think contracting officer would understand from this language and we have right to professional federal contract or contracting officers saying the court on a summary judgment determination from the board and so it's a legal conclusion only there were no finding a fax at boards obvious there is no trial or any i'm kind of more factual finding that we might expect i mean off of the hearings here  subjective intent and impressions of a contracting officer when they're sending an e mail i mean the natural conclusion of that would be say a contracting officer believes that an exercise an option has to go out on letterhead and has to be sent by a st class mail so that contacting ups are typed everything up in e mail sent to the party but in his mind does not believe that he has actually exercise the option until he put something on letterhead are we going to then say well the subjective intent of the contracting officer was not actually exercise that option therefore the option was not exercised the reasonable determination i would imagine as a matter of practice parties probably would stipulate to when a contract is signed or when a contract was accepted as as a fact i'm not quite sure i understand it well  extending the law here acceptance of contracts exercises of options to the world we're in right now which is a preliminary notice of intent to exercise that option right and so exercising an option is very much to me basically saying acceptance of an offer and so now we're trying to figure out whether it's a government issued  to that but i mean i i will note that in their parents opening brief they state that the intent of the government has to be an in pink us and that is not the standard the standard is whether the new this is unambiguous we're not talking about the intent of the government to do something which is maybe just semantics but when we're looking here at just a written email from a contracting officer with the text that we have before the court here it's not about what the contract because government intended to do but rather what what the reasonable contract or reading the face of the notice argued in our opening brief binya page twenty that the e mail was ambiguous in how in what it meant in that respect not what the government intended that was a different argument that was presented earlier in our brief with respect to that testimony  know look you've got two government contracting officers lots of experience one of them testified that you could refer to any of these various options one of them said this is miss l b j that was the that was the proper understanding of the e mail is that it referred to all of the different that was about an exchange of information regarding the renegotiation of rates that's what that was about it wasn't talking about that the government going to be providing notice or anything like that was sort of a separate thing i mean really none of this was concerning notice at least at the time but that if you look at the six month contract i mean that could bring it out another year that would be by default at that then prevailing rates so i mean if that's the option that we're thinking about and that could be another year of performance losing substantial amounts of money each and finally  i would like to address my friends representation that mr seaman sent the late untimely notice with the intention of following up on the earlier e mail that he said he actually testified to the contrary that's it page two hundred and forty five of the of the appendix the government