medical and appeal number zero six thirty four zero five bagby versus united states postal service on the two case argument list this morning will hear argument first in appeal number zero six dash five zero nine second claim on the rigid forms first the slip forms if i define a stand correctly thirty two separate core elements here one that use of the three metre rigid forms was a defective specification and as  slip forms that that's a representation that either one of them will work under the contract and that the specification is defective in suggesting that the slip form approach would work and that's that's part of their that that that there is a serious variance between that claim as articulated to the contracting officer and the claim as litigated in the court below the first step is to look at page forty eight for also and these are things that can be seen in the truck or philip are you saying then that neither of the claims raised in the court below were in any way touched on in the the earth moving issue is at forty forty one in the record yes and then forty eight forty eight fifty eight is a is a is a letter from their secretary that they attach to pla but the point because i understand that they made two arguments on this point before the court of programs and one of the slip form had to be used because of the three metre rigid  interests lump was inconsistent with rigid four where those presented his two separate claims before the court a federal client with now they were presented is the same client they were but alternative reasons as to why so do you agree that if they won on either one of those theories they they would have one on the original form pay the thing put it put aside the jurisdictional issue for the moment if they if either the use of the three metre rigid forms was requested in the same set of africa facts are it issues that the series or the articulation of the claim to the contracting officer doesn't preclude litigation subsequent to defective in this area of concrete or whether in fact there must be that much detail even though any contract to go through the engineer and i would think that these details would be clear to any claims as we call them maybe we can even call them claims but the submission to the contracting officer where the contractors upset about something are typically written by lay people by  in the court below starting with the complaint and going through the entire length of the litigation was represented articulations by a lawyer all right so what you're saying is because the non three four five five what does that have to do with anything in your case if i understand it at all is because that the issues raised these for the contract and officer were so different from the issues litigated in the court that the contracting officer never knew he was supposed to decide such matters so he didn't decide them and therefore the system was short circuited and instead of the first resort being to the contracting officer a whole new case was presented to the court below the well that's what you say a half and then i kind of understand how we can judge that because we're not comparing apples and apples we're comparing apples and oranges or we're comparing informal submissions by non lawyers to be due to catered by non lawyers at the c e o level with litigation in front of lawyers judges by experienced lawyer litigator and that's a little bit of an you're not saying that a court jurisdiction depends on the theory which theory is being presented to it then jurisdiction of the pardons jurisdiction of the subject matter what was before us with clay they said that they were going to have to take twenty thousand but that was way pre business i recall the sequence no i thought they made an initial estimate didn't trust their own estimate step two they hired an expert to do it the expert came up with a totally different conclusion they did relying on their experts conclusion and the government's experts had the same view and therefore the expectation of the bitter that he didn't rely on the core documents or his own calculations that in making the biddy relied on the expert he hired that's not right he says by reading the article but what we're saying is that the is before we get to what you're saying i am kind understand what he's saying yes i thought he was saying that he had varying estimates but his final estimate was neither export amount reduced by the estimated cost of the anticipated dirt removal not exactly even cover their current would be the difference between the expect robberies at one one seven one five that they raised this issue the issue was ok so should we send this back to have judge let i'll make it clear finding about this given the fact that there seems to and that potential is too speculative to engage in writing what are we supposed to be comparing to i thought we're supposed to compare what the bidder expected based on whatever what was the strongest evidence that he expected a balance job rather than the fifty thousand cubic yards or whatever the figure is that the government is suggesting was the actual expectation upon contract and then we come to the reliance paul did you put in any evidence of who alliance that would support a finding that the contractor will live on this on reasonable  was reading problems that don't exist if you use the other tests you see the government agreed t test the reworks would not have been required by the government f have to have already reviewed it before it in this case i can understand anybody to be arguing that the bitter hadn't read the material and hadn't read the contract so why are we talking about interpretation everywhere but it's agreed that he did read it yes and then and so where we disagree is whether his interpretation was reasonable or unreasonable and also that while there's disagreement that he did build it such a device right so so on points one and three there's no doubt in anybody's mind what the true facts were so that then the real issue is when he read it is giving him the option to use test then of course they wouldn't build into their bid calculations the more expensive difficult demanding privilege breath test so i don't understand how they somehow failed to not relying on seems to me he's precisely relying on because you disagree with whether his interpretation is reasonable and i can understand how arguments could be made on both sides of that but but but if we assume that is a reasonable term patient of the various contract provisions you then say he has to lose anyway because he didn't rely on it doesn't make any sense to me he did rely on well to relieve the point just  opposite his didn't seem to assume he could use this created he'd pass all the tests there be no real work done in fact the government required that the other test be used it was more exacting lots of expensive rework was thereby required he did expensive rework that rework was not part of what he did here for he ends up incurring huge costs he had no way to expend that wouldn't need them and they would already be part of his bid he would have anticipated the extra costs he would have built them in he wouldn't be entitled to any equitable justice it seems to me it's exactly the opposite of what you're saying and what you're just articulated is exactly the reason for the remarks required so