please the court in this case comes before you on the finding by the trial court that there were no material issues of fact connected with the granting of the will fifty six  motion we challenged the trial court below and we have submitted in our preferred argument that there were real issues of genuine fact in this case and i will use the template of the trial court in  setting forth what those issues were but i don't doubt that there are there are issues in the case that it seemed like the deficiency was proof it seemed like the trial judge hill that you had essentially no proof on the required elements material changes in this contract or any of them in writing yes the big one that we're talking about of course the june twentieth that's the one that everything turns on my correct one is that in writing that is in writing can you show me in the record where that isn't written and june twenty five the where the contracting officer as agreed to it so you and i can show you where the contracting officer has agreed to it because the theory of this case is that he doesn't necessarily have to sign a writing agreeing to it we have no right that's why this is a constructive change case if we had a writing we would have a change under the contract and we would need to be going on the constructive change here or the other point is we show the truck went through material changes in the scope of this contract we showed the trial court that the cabling in this case which was originally bid at three thousand feet went to five thousand feet was originally six pair twenty four ports went to twelve pair which is twenty four reports that the government says require a written change order unless you or it does if you're going to follow the protocol for changes in the contract then it would not here arguing about a constructive change but we are here are communicants struck to change because the protocols were not fall because the change provisions in the contract including fifty two to forty three one were not followed we have admitted that and we don't contend that the contracting officer signed a writing consistent with the terms of the contract which is why we argue constructive change and which is why the trial court first said well you didn't show any material difference in the contract performance and we did it but if you're going to have a constructive change you're going to have to have a pretty solid evidence more than solid evidence that the contracting officer has consented to a different course of conduct where's that well i'm not sure i agree with buffalo announcers crawford says throughout i never see anything that where he ever says he agreed to anything ok he's arrested throughout it you know no no no no except to answer that iran or somehow the new twelve pair cabling rather than six was delivered by the government to  are very well but the point that he may not have read something still cuts against you you have to have his consent you have to be aren't you kind of bound to have him read and consent before anything can go forward not if this is a constructive change case we do not i'm still denying to figure out how anything happens here without consent by the country being if we show a pattern of conduct by the contracting officers technical representative who is obligated to interface with the contracting officer and if we show documents going to the contracting officer which imputes knowledge to him and we show the changes made which were made to this contract performance as a result of all that the issue of fact is what did the contracting officer know and when did he know  compensation unless the contracting officer proved his own thinking of provision g two of the contract you know pick up on your discussion of judge rater it just seems to me that the argument that you're making runs into these contract provisions that go beyond what's normally in a contract based on the far well your honor we have argued that in a constructive change context regardless of how strong the contract provisions are and perhaps they could even be stronger than they are in this contract that if we can demonstrate that changes were made which we did to the trial court that we were not paid for the changes and that there was knowledge by the government of the changes that were made an acceptance of the hampton roads site with the changes then we are entitled to a constructive change but the problem here is the the contract signs off on and you don't have that here but i think that's the problem with these unique contract provisions in this case but i have not seen a case from this court where it has fat around that although the conduct of the government was part of this pattern or part of the change but because of the contract provisions you cannot have constructive change i don't know how many cases we've had with these kind of i don't mean i haven't obviously sat on every panel where we addressed this issue but this was the first case i've seen where you had these particular provisions well and and also in the case can show the material facts warrant in a constructive change then the court is entitle to grant it is i do you have an additional problem with the provision that requires you to give written notice with in twenty days after the costs are incurred the notice to the contracting officer which evidently did not occur i believe your honor going back to these project meeting minutes we were were we w that the twenty days when we were advising at least the technical representative contract to obstruct the representative who was there as to the you know the in you know the the increase in cost to answer your question no we have enough no communication to the contracting office but it is then required right which is required of the contract but again the constructive change doctor unless it's unless it's going to be held by this court that that if you have these contract of agents who can't use the doctor the doctor doesn't apply as a matter of law period which which no decision so far has said it said you look at the factual circumstances of each case to see whether it should be applied which which means that as a matter of evidence the trial court is going to be convinced that that the contractors entitle to something were convinced that he isn't and that we never had a chance to present well i'll tell you i'm a little troubled by the greater context here where you received more than four million dollars payment on a four point four million dollars contract and do less than thirty percent of the work a little hard to see that you were greatly prejudiced by this whole process but we were prejudiced to the extent that  confirmed that we had incurred costs of four point five million dollars and recommended the payment of the four million dollars the dca was convinced and in it's a county that we had incurred those costs but that's one of the that's one compensation and yes the cost but it doesn't necessarily equate to compensation and yet the navy relied on that dca reported making the payment to i assume and i s and the d was not required to audit these numbers to begin with they were doing the terminations contract settlement proposal and the defense logistics agency had asked them to do the audit just to make sure where these costs were incurred and they were all on credit hampton roads but the government received it leased over two point six million dollars of equipment for all the sites there was only one site your honor is correct that was fully installed which is in this road but that tells me as a matter of evidence that something was going on which caused this additional money to be spent only for hampton roads and when you change for example the the location of monitors from twenty five to fifty which we also showed the truck work when you change the card readers on the equipment what you've done is change the overall scope of the contract and that's what we were arguing to the truck and the truck with doesn't really go into the details as to what the changes were it simply says you didn't show anything and in point of fact this record is loaded with the changes that were made including you know that you know the dca you know report on on thank you for it please the court the parties are pound to the expression language of their contract this right we don't need a lecture on that of course they are everybody knows that where our response to his arguments about what's in the record you and to the contrary information systems own the deposition in the record of information systems own program manager the january letter from information systems all of the status reports were paired by information systems confirm that these changes were never approved by the contracting officer the evidence is replete that's all that's also admitted he says nevertheless he should prevail because it was a constructive change but in order to prove a constructive change you need to prove that there was an order or fault of the government by an authorised government official in this case the contract last year and then your your the your position must be that since the contracting officer normally has to approve and since under this contract the explicit we have to approve that since he didn't approve that's the end of the case  including constructive change and produce a contrary result yes you are i mean information systems proceed in this case under the clauses which provide for an engineering change proposal and for a modification to the contract  and that modification the contract was never approved moreover we do agree with the pro quo that ultimately the information systems purpose failed to present to the trial court any evidence of damages or any evidence that the work was not contemplated by the contract mr major there seems to be something going on here they say that the dca a audit finds that they were incurred enormous costs to do just thirty percent of the work there's a pattern of delays and difficulty in the were the government delivers different material evidently pursuant to an earlier request th seems to be a great deal of revision going on throughout this process how do you know your honor of all the it's because they were terminated for the convenience of the government i mean the dca had determined in its early audits that information systems had severely underpinned this contract however when terminated for the convenience of the government they were entitled to their costs and so alternately even though they did approximately two point two million dollars worth of contract work when terminated for the convenience of the government the government still had to pay that the four million dollars that they paid them because their labor costs were extremely hazardous then that might be but my my point is that somehow the government acquiesced in allowing them to go on to expend a great deal of money to do thirty percent of the work of the contract how do we get to that point one hundred the government where there are a lot of constructive changes going on throughout the process and you know really what i'm asking no and they've actually only argued that there was a serious what would be effectively found in the c p s series of four constructive changes in the contract  for approximately i believe it is by their allegation probably ninety thousand dollars for equipment for which they seek approximately eight hundred ninety thousand more damages at least  the closest we can tell one of the difficulties is the theory information systems going to present to the trial court in terms of its damages has changed several times and at one point an information system said that eight hundred ninety consisted  upon two piece of evidence to say that they incurred cost one of those pieces of evidence was the dca audit which was expressly qualify we do agree that to the extent the argument is that their accounting data  what the government can take issue with their accounting that's correct we can find no problems with their account but let me ask what is it likely different would be if if if they were so far behind in their work and for them at an earlier stage and the government might have waived its right to forgive them so what the government one of the possibilities going to have looked at was attempting to reestablish the schedule with information systems and if they couldn't meet that schedule then they would be terminated for default but ultimately at the end of the day the concern was that the government might have graced it's right to terminate them for a while when i remember correctly the there were numerous communications from the contracting officers representative to the contracting officer ritually never responded to any of them well no that would be communications from the terminating contracting officer to the contracting officer who administered the contract when the contract was terminated for the convenience of the government the government had a terminating contracting officer review their terminations that were what i'm getting at is that the whole process seems to become farcical if the contracting officer hides in the weeds and won't get anything from anybody including his own people and meanwhile the contractor goes out of a lot of work and a lot of money and then the contacting all of the shows up at the end of the dangers well i never approved anything personally in writing so  his own technical representative and to any official who working on the contract when the contracting officers available yes but the problem here was the contracting officer provided is that he was unavailable and on leave at the time that the te contracting officer representing where the technical contracting officer was trying to contact him so he did respond ultimately he did not respond within the zone are you representing that he responded promptly to everything that w sent to him by other government officials except during a brief period leap well your honor that's not my recollection of this record at all the only thing he i suppose you might be referring to another allegation there's another allegation that the the engineering change proposal was sent to the contracting officer and that it was not approved by the contracting officer for a several month period but you know the contracting officer was under no professionally to the contractor work to his own representative let me get even more specific wasn't the only three meetings when all these technical changes were discussed three meetings over a period of year here in this contract that is correct or ah well i'm just supplementing my chief judges school commentary i think this is a question you need to respond to but your honor he received the engineering change proposal ultimately  did not approve it that is clear from the minutes because it was an engineering change proposal he could reasonably reliable on the language of the contract that information systems was not proceed with those changes until he had approved so in the context of this contract the contracting officer could rely upon the fact that if you did not prove the engineering change proposal i said would not be performing the engineering change for ever and therefore he didn't need to respond military that nice of facilities and so forth if people don't communicate if you can't count on the c e o to be informed to go to meetings to answer proposals promptly and how can the whole system work with instrument your disapprove it and then things could have moved forward well because while he believed that it was a technically acceptable proposal based on the advice of the client agency sparboe or ultimately his difficulty was  with regards to the front with regard to the pricing of it information systems itzhak approximately nine hundred thousand dollars for installing about ninety thousand what he said went on day one and they could either fix it or not fix it depending on what they were able to do and then everybody would be informed of what's going on the process to move forward rapidly or you're on an ideal world he would have disapproved of it one of about an ideal world how about the world supervised by law in the world supervised by law he thing that i'm a little troubled too it seems like there could have been a response there could have been some kind of communication that would've facilitated that avoided this dispute at least well your honor there is i can say the record does not provide any information as to write he did not respond other then with regards to his his response to the term in contracting officer can you explain the delay in this case that some people might be troubled or focusing on the fact that this is a contract from the early or mid ninety's that was terminated in the mid ninety's and it's now two thousand and information systems previously filed its case in the court of federal claims based upon the theory among other raising all of these issues but based on one of the theories was that this case had been actually settled in the settlement had been approved in order to have after the court disapproved of that trial court they dismissed all their remaining claims and appealed solely that claim to this court after appeal it after this court  the ins in many ways it's the fault of i would not blame any party solely it's simply unfortunately part of the nature of litigation the parties went through discovery in the subsequent case after the government had initially filed a motion for summary judgment on another aspect of the claim that information systems had brought parties went through discovery the case was then we file the second motion for summary judgment at the close of discovery on the constructive change well your honor that presumes of course you're right and the government doesn't agree that information systems is right there are methods and throughout the process there were opportunities for this case to be settled even even if they're wrong it seems like it should be would be resolved against information systems all right mr singer  twelve cable needed to perform at hampton roads the government has provided five thousand feet of new twelve pair cable so that change from six pair to twelve pair was already provided by the government along with this letter is the cost breakout for the difference between the installation of the six pair under the contract and the twelve pair the difference being six hundred twenty three thousand dollars so we installed the twelve pair the government provided that and they can't really say that they didn't know about it because in fact they they were part of the process the second unless point is in the audit report again which is at appendix eighty three the dca while it well ordered it and confirm four point four million dollars of course it concluded that there were costs in excess of the contract of four hundred sixty thousand dollars and therefore the total warney payment was for four million dollars the four hundred sixty thousand costs incur but which dca confirmed were in excess of the contract is a conclusion we raised with the trial court by a motion in limine the on this foreigner sixty thousand dollars which is pretty much what this case is about that that motion in limine was pending a was filed and we never had a decision on that which again becomes an issue of fact as to what that four hundred sixty thousand dollars the conclusion of the dca that it was in excess of the contract