a foster wheeler as the court is aware this case involves repairs to the historic alcatraz citadel where the government issued to you unilateral modifications the greatly expanded the scope of work to include major structural repairs to the b n c cellblocks of the civil although many issues were tried before the board and that presents four issues on appeal and those issues i'd like to address but i'm happy to focus on any particular issue that the  ex expert's methodology we also submit that this is unsupported by substantial evidence because the government admitted and mix general conditions costs were at least approximately one thousand five hundred dollars a day so you  sorry this is judge choose do you agree that actual cost is proper goal and you have to justify using something other than actual cost i agree that the case law hold generally speaking that for an equitable adjustment that actual costs are the preferred method here we submitted the actual labor hours but we used the parties agreed to contractual rates which were the fully loaded rates for those labor costs well are those actual cost to you or are those something else they are not the actual call to us so how is it legal how is it legal error for the board to disregard your expert testimony if they're not actually costs i don't think any of the cases that the board cited or that the government side hold that relying on the parties contractual rates for the general conditions cost is inappropriate thought you agreed that the president generally required actual costs unless you had some kind of justification that you couldn't prove actual costs and i didn't see anything in the record that w that suggested you couldn't prove actual costs or you didn't seem to argue you couldn't so i'm just curious why you didn't just from the records to show what the actual cost were here instead of using these contractual labor rates your honor anik using the contractual labor rates was a fair last bit to determine what the general conditions costs were and in the wilner case decided by the claims court the court there used the hourly rates provided for in the contract and the court also noted there that when the contractors methodology is generally sound but there's a problem with the application of the methodology because some aspect of it is faulty disallowing recovery for the entire  is what the board did here at disallowed any recovery despite the fact that the government's expert told the forward then i think you're pivoting to the nd question i was still trying to to figure out whether you thought actual you provided actual costs and it doesn't seem like you did and it doesn't seem like you tried to justify that this with the best method you could do you just method so if you want to talk about the government estimate you can you know i agree it's to crimea not to give you any any recovery but if there's no proof of actual call what the board has done in the past and the eight vs inside build case was to award the liquidated damages rate as a failure rate and in this case did you did you did you ask for that no your honor well how did the board do that if you didn't ask for it i don't know if you want to get to the government government expert is saying what the actual costs are based on an actual cost methodology are just poking holes in your methodology and say yeah but under that it would be reduced to the  dollars rate i do have an opinion as to what the government's expert was doing yes your honor and i would direct suggest that the court examine appendix fifteen judge's description of how it should be done which we which was we determine the actual cost for people and apply the actual you know overhead rate so that's i just that this is what's dollars so in the report it sounds like he's just adjusting your methodology not going to actual cost am i missing something is there another government expert that actually relies on actual cost know your honor and i mean i agree with you that the report does not seem strictly consistent with how the government's expert testified to the board but the fact remains that the government's expert told the board that it is applied the methodology that the board was seeking and that that well if there's if there's conflicting evidence in terms of the expert report in the testimony isn't it up to the board to admitted that you're entitled to forty six how are we to substitute our fact finding for the board on the well the government i believe did it this was the appropriate conditions i mean if the government says we it is compensable then here's how much is those then the government should be bound by that i mean both parties tries a case assuming essentially that th and then to come up with zero as i stated before is is a draconian result so unless the court has any more questions on the st issue i'd like to move to the  issue with the court's permission for the nd issue on appeal the board or warded no time to perform modification one experts estimation of ninety days wasn't a weighty admission because the agency's expert said well those days aren't compensable but the agency's expert said those ninety days are excusable in other words concurrent delays and the board didn't address that or reduce the liquidated damages award by those ninety days and so again what we have is an agency admission that the board didn't take into consideration their didn't fully explain its reasoning for and we would submit that that is arbitrary and capricious and not supported by substantial evidence i see that my time reliable factual evidence for actual cost but nonetheless in your post trial brief you apparently according to your friends on the other side agreed to the one thousand five hundred and forty six even if that's not a correct number if you agree any time related to ten i'm going to i'm going to give you one more try to see if you're going to answer my question if you're not we'll just you know stop wasting my time and we can move on i understand all that the point is if in your post trial grouping you say we disagree with all of their arguments they should they didn't prove out for a coffee shouldn't get any money at all blah blah blah but if you disagree with the on the compensation for days of the like here is the dollar amount they should get per day need it is not a qualify statement of the agency that this is the actual text in the general conditions caused by the experience by the contractor in this case and therefore without any qualification and so there's the whole question about costs actual cos choose to get is is your point on this even though it's not really clearly worded that to the extent this is an admission it's an admission that if the board uses amex methodology there still needs related should not have been in their primary example of that a home office overhead which is not an element of extended general condition because of the close to home office overhead if in a general conditions or site supervision primarily demonstrates this in our recent response pages thirty two through thirty six regarding additional compensation for the modification to financial evidence also supports the board's finding that and i failed to prove that it incurred performance of the contract where the substantial evidence on the record establishes that and i needed to segregate costs during that period because it was performing both modified and base scope of work however substantial evidence supports the board's finding that and they failed to prove that its claim costs were recoverable because it's not true that it incurred costs for the genuine purpose of materially advancing negotiations with the government as the decision thank you thank you to get three minutes left thank you your honor i just want to briefly address some of the points that time council offices raised on the requests for equitable adjustment cos in the briefs the government argues that negotiations had ceased and that that's a reason why the court should affirm the board's determination that this was not for the purpose as part of negotiation through august of two thousand and fourteen the board also had before it the invoices from mix rd party contractors and attorneys and consultants that it utilized in preparing the request for equitable adjustment and those invoices have descriptions of the work done and numerous i mean many many of those descriptions state the board relied heavily on the fact that some of those descriptions were redacted however the board didn't cite any law and i've been unable to find any law the the fact of redaction is enough to overcome the strong presumption that these calls were incurred for a legitimate purpose and of negotiation and not for the purpose of prosecuting the claim and on that point we asked as the court reversed the demand and on the other issues as well and again i see that my time is about t expire i do want to leave a moment to answer any questions that the court may have none thank you mr pickett we thank both sides in the case of thank you very much