constructors versus united states in darwin construction company versus united states which has been has been cited approvingly in one hundred and eight dollars cases most recently interestingly enough in our utica manufacturing discretion in several ways that are very similar to liz von darwin and now you think one theme that runs through all these cases is this court's concern about  requirement that a contrarian a contracting officer who terminates revolt evaluate whether the terminated defaulting contractor could complete the project sooner then the replacement contractor c procured in the in the hearing we asked a number of questions of the contracting officer different ways what kind of process did you go through how did you make your determination on if the e c c the the allegedly defaulting contractor could complete project sooner than a replacement contractor there is no real clear answer on the record that the contract officer would never describe the process he went through the clearest example in the appendix tha appendix page one thousand and fourteen and then on to the top of appendix one thousand and fifteen kind of captures the issue we had that there was no evidence of the record no discovery was ever provided and no testimony was ever had that show that the contracting officer did anything other than simply write a memo a termination memo that said he considered whether the whether the project could be completed faster by easier replacement contractor is that accurate he had evidence as to the state of completion of the project he had evidence as to the state of completion of the project but that's doesn't go to the material issue of whether he evaluated whether or not the e c c the defaulting contractor could have completed the project sooner than bringing in what ultimately was a replacement contractor named vertex there's two separate there's a lot of cases that the government cites d c acts empire decision that issue in these d c acts in the other lines of cases is never gotten to or it's dealt with in a very clear evidence area way so do you saying that the discretion was abused when the even if you stipulate that the contract in that the contract or default the contractor is late is is missing the contra completion date that's not the end of the inquiry in terms of whether the contracting officer has abused his discretion there is a there is a states three f four states that it's required before in the term it shall and the regulation its requirement that the government contracting officer review whether the project could be completed faster by the defaulting contractor or whether it could be completed faster by reaper carrying and completing and presumably the policy rationale behind that as the government already includes a liquidated damages clause in its contracts so if the government is correct of contracting officers correct and be actually considered weighted or with articulated findings by the contract secondly it seems like the contracting officer actually did consider this factor but ultimately contract an officer that's responsible for managing the situation have have lost faith in e c c s ability to even give me a reliable new d contract completion date so when you're at a loss like that we d can debate whether that was a reasonable conclusion by the contracting officer but given that the contracting officer did make that conclusion it seems like he is telling us that he isn't in a position anymore useful evidence as to whether or not the contractor may have abused his discretion i think the issue here is not whether or not e c c of late i think the issue here that we think is important and it serves the government's policy  position behind three of four is is that there's already a remedy for the government in the event that they are cracked and the contractor is late so what happened in this case and it's very similar not just being late for say it's it's being late and then coming up with new proposals and then falling behind schedule with those you know a lot of the proposed schedules and then trying now for the port contracting officer where he says so it can be done i mean it's not like it's impossible is it probable probably not and it goes further and says i would not i would say not probable only because in the history of this project they have responding to some of the concerns we've raised about subcontractor manpower and things that nature and then in his recommendation would you see in the last paragraph bottom of the next one thousand one hundred and forty two in the rd sentence he states a rd line he states it appears to be projecting it into project eight that should be achievable if you look back up four paragraphs up from there he says the narrative states that the critical deliveries of switch gear in the doors and that is what is driving the new into project from september to november november t seen if we go back to the appendix and you're you're citing to page twenty two which is where the government's lawyer who was asking him to speculate on hypotheticals which were not based on the question to that was in your statement at the manpower remains at the needed level of from that i infer that from what you were analyzing they mean e c c had supplied manpower consistent with this recovery schedule for at least a few months prior to and he says that's my recollection yes but the problem was the contracting officer didn't actually support any of his conclusions that he wrote his memorandum they never produced a single email and never produced a single document known contemporaneous record to support the conclusion that he made and it is particularly noteworthy that there were no e mails because the contract officer was here in d c to projects in bahrain the time difference means that most of the interaction between the d folks and the project folks in bahrain was done by e mail because of the time change i think going to our argument that the contract officer abused his discretion you so the schedule of the only person from the government side that  project and so he just based on their past history he just can't believe that they're going to do it i mean isn't there even the point you even though the thing you pointed me to an analyst on the ground well if we give them all if this effort is worth one more chance then maybe it can be monitored closely so we'll know if they're going to screw up basically just paraphrasing settle have it out of me but you know both of being honest individuals seem at a minimum frustrated recognizing that e c c has had multiple opportunities to comply with which it's failed to do and that is impacting the contracting officers decision as to whether to trust e c c to be able to finish the project under any circumstances yes it could be feasible it doesn't mean that's going to happen in the contracting officer past it figure out whether he thinks it's going to happen here he says he doesn't think he can trust that they can but that doesn't alter his mandatory responsibility to valuate whether e does he believe e c c would actually get it done sooner given their past history of of many failures to do so you bring in a different contractor that doesn't have a past history of all those bill years you know maybe you could your perspective if he didn't have doubts about whether they would actually get it done he would never throw in there we can stay on top of them and watch him closely so that we'll know if they're not going to do it because obviously everybody was suspicious and that percentage was from the september two thousand and fifteen project schedule by the time they reached the germination date in april two thousand and sixteen e c c the government signed off on a pa class that showed sixty three percent completion i don't believe it's actually in the appendix but it's in the in the trunk or you've used that that part of your argument is that they didn't bring in a different eleven of the thirteen management personnel that were formally u c c employees they they went from being easy management employees to being virtex to take over contractor management employees they also retain the same what's called super subcontractor  he g e how he was doing of the actual work it was doing ninety percent of the actual he did the contracting officer know at the time he made the decision that that's what their intention was he did and in fact he was relieved of his decision to keep the fifty well people that keeping a significant portion of the c c's employees was unreasonable what do you think you would have thought about keeping nice it that it's a distinction without a difference because you basically you basically took five hundred dollars laborers and eleven management personnel and changed out literally to vertex but to people and to management people so the project was virtually unchanged from a from a work performance standpoint you had the same team the same management personnel you just had a different corporate banner at the top if you will i mean we  informs mr to mattie you're going to you know if you terminate us it's going to take a replacement contractor much longer to complete this project so practiced practically speaking they terminated they kept all the same management team they kept the same super subcontractor who was doing all the work they added two and a half months of additional time in order in order to in order to thank negotiate the take over contract with  with the same subcontractor and the same laborers and you can see from the month of august september october november and december they they never even approach the manpower loading that the number of workers out on the  contemporaneous memorandum and subsequent testimony at the hearing where he said e c c even with all of its problems if it had not been terminated would have completed by november of two thousand and sixteen so the government terminates they now get the project more than one year later which which is in the contract also didn't do the required analysis from from three f four where he was supposed to he's required to evaluate whether in this case he she or another contractor to complete the project faster it's important because this project was for transients and listed quarters sailors so that there was other testimony in the evidence that where the where the contributions are testified to talk to the base commander and that it was very important to the government that they get the structure completed as fast as possible to get the sailors off the ship they were in the harbor in bahrain so i think the failing of the government contracting officer was not doing the evaluation because if he had done the default it's more likely than not perhaps they were overbid or overestimated or whatever or the contract officer felt that they'd make representations that they had  they might not be able to meet i think it's hard to argue with that but after they were in default they changed to one or two people a and kept on going as they had before to complete the contract and why isn't that a significant factor that should have been taken into consideration i th factual analysis we have to say how is this going to affect the conclusion as to whether they were not in default which is the issue so it's of assuming we clear that hurdle somehow with with things that happen afterwards the  point i want to make on that is the record reflected that the government did not think that it was ok for the same management to be managing the british government was told by the surety contractor they want to change the people at the top it doesn't look as if they didn't care for the management or emphasis or whatever but then you would tote then change anything else to this so contractor was doing all the wasn't actually the problem the government's belief was that it was e c c s magic one of the claims that are assertions that really didn't get addressed by the word because they were just sound they were going to fall down if used was this question of whether they were paying is now presenting to this court the threshold question of how does the show that you weren't in default so you're saying that when a contractor's in default the government has a right to terminate that contract and they don't have to incident to that determination or as part of that terminations decide for sure whether it would be better to have someone else completely contract or not the government can simply terminate and then move forward to have the work done in an that's right the government gets contract rights like anyone gets contract rights and if their conditions are there for a default it's really government to decide what's the best way for there are factors that sure the government need is supposed to consider those that's what the far says but that doesn't mean that there's some right that that creates a source of a right for the contractor to then add a nd layer of well yes you might have a contract rate but now we also need to do is some sort of like an a p a review of government decision making that's not there's no source for that kind and so certainly the government needs isn't even making those arguments there's not really just a separate cause of action that allows the c c to claim about that a dispute the remedy the government chooses to undertake in light of that all there is no separate cause of action they can bring  not believe that there is any right or clause or basis for e c c to be bringing any any claim like that to be sure a contractor can bring other claims they can save a government acted in bad faith they can say all kinds of things about the government's conduct but without which there isn't no idea that we would review whether the government made the right choice of who to go forward with it once they deemed the contract defaulted you know even if we were to do that here there's isn't there evidence very why the contracting officer i mean maybe he didn't make all the best judgments but why he made the determination is he did about i think he sees he just can't be trusted for completion purposes right so even if we get through all these legal hurdles  why is this even matter why is it material the were just ending up with e c c disagreeing with the word on its factual conclusions but there's definitely support substantial evidence for all those conclusions at the board found that were down the contract you also didn't do the right job didn't look at the right factors did make reasonable determinations on these factors and just didn't have a basis to trust that e c c would be able to get the job done on any schedule just didn't have any schedule from the c c so there's no way to compare it to what somebody else can do if you don't think the e c can give you any reliable stated that the end of the day the question of best interest is for the government to decide what's in the best interests there's not some decision for e c c or even for the court to try to decide what's in the best interest the government that's just something in the best interest of the government if you look at appendix six thirty five dollars sixty three cents there is a contract an officer was being questioned about what benefit the government got from terminating the c c on line five the question states what benefit to the government get from terminating e c c the country the answer answers what benefits question mark and the question is what benefits did you get in the contracting officer responds i would say there wasn't any benefit at all this was a loss that the government gave up and and then also addressing the issue of late is late and the right of the government to terminate sort of halt simply on the basis that a are to mcdonnell douglas twelve citing les von again so i think the issue is not as the government presents it that if the contractor is behind schedule and the in the contra nasir determines that he doesn't think the contractor can meet the contra completion date that doesn't give the absolute right to terminate if that would just to be clear were you behind schedule or at the time of the termination had the completion date already passed the completion date had already passed  like the ones you just cited where the contractor in those cases was behind schedule but the completion date had not yet passed so i guess conceivably those could have been completed there's a mix of cases on this and some of them there a contractor was it was it was passed the completion date others they weren't  there was an interesting and i think your view that there what is the cause of action that you have to bring here what how is it that you're entitled and what are you entitled to we believe the contractor abused his discretion because he didn't evaluate as required by the sooner than a replacement contractor and even though the c x of the contracting officer doesn't have to itemize and explain and discuss every single one of these regulatory factors you're saying contracting officer was in error so year because that particular factor you want to address he was required to address if you look at this from an atom standpoint so the failure to evaluate the record shows the failure to route deadlines i don't know why it's they needed to try to go further and say well now let me speculate what i think might eventually be able to hit but that's a slight what they're telling me because i can't rely on what they're telling me and now let me go ahead and compare that to see what unknown new contractor might be able to but the deval termination requirement mandates that the government do exactly that they have to be forward looking there the requirement is ok your light let's see if you can still finish in or then bring in somebody else in it and that requires em both with respect to any incumbent defaulting contractor as well as any potential  contractor it requires the contract officer to estimate essentially whether he thinks based on we you would want us to say even though d c x says that the contracting officers are required to consider every single one of the factors  in this particular case that this particular contracting officer was required to consider this particular factor at least more than you had done in this particular instance this particular contracting officer like every single default term a nation circumstance in every single government contract was required to make a floor of looking analysis as to whether the defaulting incumbent could complete the project faster then a replacement contractor and the importance of that as best state even brought up in other cases there was a determination at the trial level that the contracting officer did in fact go through the required analysis argument as he didn't go through the required analysis and if he had gone through the required analysis he would have relied upon his scheduler who told him that that e c c was going to finish by november of two thousand and sixteen which would have saved at least a year on the project and if the government was right that in fact e responsible for that life not only would it have gotten their project a year sooner they would have been able to assess liquidated damages against e c c that's the hardening they get for the harm that is supposedly caused by the delay right there's a liquidated damages clause in every construction contract of the government so if the government is correct and they are late but they can finish sooner than vertex and the record certainly show that they could have finished under the vertex then they would have received  remedy as repeated and all of these lines of cases it's a disfavor many that contract nasir didn't go through the required analysis and he failed to to make an evaluation of what was in the best interest of the government we don't disagree with the government the government