contractor who on very short notice arrange to supply desperately needed living trailers to troops interact in the early stages of the war with some problems and mr howe let's assume you're right about the government's obligation to to provide security that that obligation was breached and that you have damages if you can prove that my problem here is to use the jury verdict method which is what you say ought to be used there has to be proof that no other method is available and i don't see that that has been done here i don't see that you have shown that the inability to get cost eight hundred dollars sub contractor or in some other way to do what is usually done to prove damages me what it is that you did to attempt to prove damages something i can understand whether you have shown that there is no other method available well the method that was used to and i will speak about the delay claims of the method that was used was to develop a delayed a model and there are actually five models that were presented to the board one by the government  of a delay day or value of a day that the trucks were not were not moving there was a what is the data that is used to show what you call the price i mean you would have thought that there would be evidence as to how many trucks there were how how many days they had to sit idle but we don't have the right well there was there were models its sources other sub contractors its own experience and determined that was excessive and brought that down to a degree three three hundred dollars per day what was the big what was the trace of experience i think the important point is that the three hundred dollars that k b r determined would be the basis for the settlement was based on their own experience their own vetting of those numbers their own it was based on their own experience candidly you don't have any facts wrong knowledge in the record do you in the record as i said the price was vet government's contractual promise to provide military escorts to k b r and its subcontractors under a log cabin three close quote where in private security did we address not we attempted to make that distinction and if it isn't precisely stated by apologize for that but the the actual fact is that your board accepted the the the facts in those cases the government objected there because there was not cost of pricing data to support a change judge margolis the court of federal claims so that was only one factor to consider in requested and then eventually said no we're not going to pay anything which doesn't seem to clearly reasonable other than their apparent concern as to where these numbers came from and so that's really what i'm trying to understand as to what the obligation might have been on the government or k b r to go beyond th in the area and determine that that was a reasonable price five hundred dollars not reasonable three hundred dollars was reasonable judge wallach i have some questions about that have k p c sub correct as far as i can tell nothing in change five or the f k t c some contracts identified a specific time by which the army was obligated to place trailers in the con i right there was no express time in the force protection clause which is the language the board uses but the contract taken as a whole called for delivery of trailers on a specific date and it's the same time promised delivery of force protection within the those two provisions there was legation a promise by the government to deliver me right to the point where i was going given everything else the army needed to fight the war in fact trailers were a relatively low priority  not your thing they were the highest priority item and that's just not true is it well your honor i respectfully disagree with then they cut it within the broad scope of fighting a war none of us priority in that subcontract by its plain language with these trailers so that was true at the time the sub contractors entered into subsequently yes conditions change but if you stay within the far in advance of any other dates for any of the services including food including and ish that may not have been a good decision was that was implementing judge or general sanchez's direction to his contracts people that was the basis for which the contract was entered into yes the government can change its priorities and expect to do so but it has contractual consequences and they  can't can't be a contract that says deliver the services and i don't i'm not going to give you a date when you're going to be able to do that and you know you'll just have to ride go with the flow  affirm for three independent reasons mr tyler could you address the question of what the record shows about the basis for this three hundred dollar a day estimate and the estimate for the number of days your honor and respect which i don't think that the record shows very much i mean there are certainly models that are used to input that figure however in terms of specific data there is no specific actual cost stated in the suspended i don't recall whether part of that audit was working incrementally different components of what k b r was filling the government for i don't know if it got to the micro level of looking at the reasonableness of certain estimate amount breach however damages were not warranted because there was no actual cost information to support them so here going back to your question and looking at what the government viewed when it would have considered k b r is claiming it didn't just look at the absence of actual cost although that is the barometer in the context of an area in the context of cost plus contracts as to what can be built it also looked at the nature of the contract and it's very important to keep in mind here that when dca went back and they were looking at  lay at the border and i got the feeling that there was no dispute as to the disruption and there were undoubtedly necessarily additional calls the real question is where was the consider breach to be settled in this case and don't think take it can necessarily be rather those for the trailers yes there was there it is in dispute it with respect to the issue in private security  timeliness of the security in private security the issue was that the government didn't actually provide force protection for the food convoys because the food convoys had to move so quickly that they couldn't wait for the government to provide force protection if food spoils before it reaches the mouth of a soldier it's useless and performance is impossible but trailers don't spoil so trailers can be delayed and they're not rendered useless by a boy who you say that the government provided convoy support for every single trailer convoy that moved the question before the board when it we whether when it moved that is correct and the question before the board was simply was was that move it movement fast enough and i do want to address a question that you asked a few moments ago before i go into the distinctions between this case and private security you mentioned that there was a breach and that you know we have to you know operate from that basic assumption and you know setting aside whether we can see that there was a breach which we do not concede here that the breach translates in this case you still have to show that the breach results in some sort of damages that the breach proximately causes damages and that was not possible here based on the facts in front of the board and the reason why it's not firm fixed price contract that they injured in two dollars of st quatre failed to anticipate any particular levels delay did not account for a delay they didn't show a change in the work that resulted from a delay their position before the board was that they were entitled to costs for every single day of delay regardless of whether it rose to the level of something that was factored into the phone fixed price or not and if that's the case then k b r should not have paid a higher firm fixed price to account for  price contract with st queta to assume delay risk they then executed change orders over the duration of that contract that extended the contract without adjusting the cost without adjusting the scope of the work so by executing that contract mr ho talks about how the contract has to be looked at this is a contract case change orders are part of the contract and they interpreted the provisions in the sub contract and mean that when these delays happen this wasn't a change we're not giving more compensation for the only time cost of k b r what am i missing you're not you're not missing anything in terms of reading the contract judge i think that's accurate it is a cost plus contracts when k b r in the government but every single cost of alger to the government has to be reasonable and what makes a cost reasonable especially in the context of an r e a is whether it is actually based on actual cost what makes a cost reasonable in the contract context of a contract based on  e to be reasonable but the only thing i'm challenging is whether it has to be cost to be as opposed to price and i'm not seeing where there is a requirement that k b r government contract that says  r but with respect to st kuwaiti and k b r there are multiple provisions both contractual and legal requirements for our e a s that would inform whether actual costs are required it's important to remember here that there are multiple clauses sub contract that not only require st quaid to provide actual cost but also give k b r access to st quaids actual cost and numerous courts have held that when you fail to use leverage when you fail to comply with basic contract terms like that the assessed after the fact their legal team provided two justifications to the st both of them were rejected by the board the st was that actual costs were not required because this was a commercial item and therefore fell into an exception the  was an assumption that middle eastern contractors did not keep costs records again the board rejected both of these they rejected the commercial item argument on the basis that this was only a they made no showing that other data was unavailable from the sub contractor correct they made no showing that actual cost data was available if i understand your question correctly they did models they get good models from the sub contractor your honor in those models the board found relied on data that was verifiably inaccurate and they had inputs that were contradictory based on k b r zone e mails and documentation they found that st quickly had actual cost and actually had redacted actual cost records instead of providing them to k b r and that all informs the reasonableness because if you don't use the leverage that's given to you if you just allow a subcontractor to disregard the terms of a sub contract if you don't comply with longstanding requirements when you're paying an requirement that would have been binding on you had you submitted the same cost of the government those costs aren't reasonable and that infects the cost of k b r billed to the government the costs have to be reasonable when incurred so if k b r paid something that it later bill the government and those costs reasonable at the time of payment they don't become reasonable because their trial or the government this is judge rolling i want you to back up a little bit where in the record is that redaction i miss  trucks there by refusing to disclose its cost we have the board comes back to that in the discussion section when it's evaluating the reasonableness of the actual cost but certainly if actual costs were required by the contract they're required ferrari a's and even the term that reasonable especially with all that all those requirements i do want to go back to some points that were raised earlier and specifically judge newman i believe you raised the contract language and the breach issue i want to be very clear on the contract language in this case when we're evaluating the applicability of private security the contract language is not exactly the same so the force protection clause and change five is the same but there is in the scope of work section additional language and because the contract has to be read as a whole that additional language matters it says it is the commander's intent to rapidly vet down the remainder of c j t f seven soldiers in accordance with the stablished and provided priorities now mr host said that those priorities were in the stated in the contract to be not considered a tall yes your honor so i believe the standard it's i think the parties agree that essex is a standard we think that this is the analysis the board did it was  evaluating at what point the delay became across the line from something that was just mere delay anticipated delay it was known to the parties at the time of contract formation and cross the line to a failure to perform and it is found that that didn't happen for the risk that was assumed was in the contract that's a factual finding and i can tell you when you're talking about the interaction between government contractors and the government what is not reasonable is for the government to pay for the same thing twice and ultimately that's what this case boils down to if you disagree on the applicability of private security if you think that that additional contract language doesn't matter if you think that the parties differing expectations based on that contract language doesn't matter  imports that breach fine into this case you still need to find proximate cause and damages and if the costs have already been paid for because they are in the contract then there is no proximate cause and there are no damages and one of the board's finding that that was not contested with any data and your calls with it on appeal but doesn't provide any indication that it's factually wrong is that this particular risk the risk that happened was in the contract and that's not just the government's position that was is position because in interpreting the same contract terms in a different contract with a different sub contractor k b r reached the conclusion that different that more compensation was not allowable because the risk had already been provided for already been allocated the terms precluded additional compensation and regardless of whether there was a delay and in general fairness obligation of the government to come at the table and negotiate ways to fix resolutions the government cannot pay for the same thing twice it is not reasonable for the government to do that r st grade he was willing to provide that security for free presumably understanding that the delay costs were already in the contract in private security what the government did as it came in and it tried to break apart a firm fixed price it said that the part that you used to pay private security is not allowable and the rest of it is we're not doing that here for better or worse we pay that entire firm fixed price the only issue in this case is that k b r and st quade have come back for more money nearly over thirty percent more than the original contract value for a delay that as a matter of fact the board found is was anticipated it was priced into the contract and that's evident from the change orders because every single time the period of performance was extended there was no compensation that was added there was no change in the sublet work this is exactly what was in vision in fact every single change order referred back to those subcontract terms and conditions it said for example in change order one this is in accordance with the sub contractor terms and conditions stating that days lost to convoy support shall not be taken into consideration so they are clearly looking back they were referencing those prior terms and they are interpreting the contract for us what they're saying is that what happened is not a change that warrants more compensation and they do this over the entire life of the contract it wasn't until the contract was over until the government already paid all this money vacated your own st quit came back for more and they came back for a lot more they came back for fifty million dollars more and the government doesn't regardless of the applicability of private security it is reasonable for the government to pay that cost again and that is the basis on which discourse  priorities under the contract and only then did the board turn to interpret in the contract but i think this court has made clear the reverse order is required you look at the language of the contract and you determine if it's ambiguous and if it's not in big us you stay with the plain meaning of the contract and we think there was nothing ambiguous in the contract when it came to the government's priorities the trailers  were prioritized over all other priorities in that contract and including ammunition supported cetera that was the statements in the statement of work that the judge i can check and provide that later if that's appropriate pushed out the date for delivery of the trailers as an indication of an understanding of the risks that is that it had undertaken i don't think that's accurate contractors the prime contractors will often determine what was a reasonable time period with within which the government would provide the force protection the poor never mentions the essex case in its decision and as a as a matter of law government contract law there's a difference between a change and a government to lay they are typically covered under different clauses  can have the lay associated with the change but what we have here is pure delay and there was no change in the contract it was a pure the lay of delivery of government promised force protection so that language