good morning your honor eric scharf on behalf of the martek this court is confronted with an unusual situation which lamar tex initial brief demonstrated error in the contractual lens in which the just record used to resolve the dispute a prior approached the deal into subpoenaed bidders meeting a set meet setting a price for fabricating the mark text design of a conveyor system a c t came along and said effectively we can build a better mousetrap better design we'll have our own professional eye when generics then we'll also fabricated the new deals per the new deal is formalized in a purchase order the district courts incorrect contractual lands was one of incorporation by reference in which the bid package became part of the contract moralized in the purchase order but of course the purchase order the undisputed contract makes no reference to the bid package and that makes the district's approach legal error under iowa law which requires a clear me ask you about this the district court says and i'm quoting the delays and the need for on site modification where the direct result of a large tax and adequate supervision and management of the project that's a quote it is and it's kind of a finding of fact and we kind of have to find it clearly erroneous to tell us in question disagree of my premises there but that assuming that it is a finding of fact and assuming that it has to be clearly erroneous why is it clearly erroneous because the district court is viewing the facts of the incorrect contractual lens when you look at the issue of who they are problems in the manner of the contract that critically depends upon what the court understands the relative contractual obligations of the parties are when the district court understood us to be bound by the bid package it understood us to be bound by the a s c code the steel institute code so the district court understood us to have taken on contractual obligation the roles that we didn't take on this  is most acutely felt in the issue of delay because the court understands us to have undertook an engineering role or design role where we have to formally approve a c t s drawings and bless them to start work and we did so when the district court made those findings it was looking using the wrong yardstick in effect contractually and when the contractual lens is changed when the a s c drops out those findings in the understanding of who is responsible for the problems in the project can and should change radically and that of course is all we're seeking in this is a very limited relief of vacating the order remaining for further proceedings in which we try to make the case directly to the district court that set through all wasn't actually applied to use a trade i understand your question is could it be and that reaches a question of whether you can secure whether a city can secure or from its on an alternate grounds they can't there are a number of substantial of reasons why chute a i s c should not apply the single broadest way to understand that is the a s c is a technical manual it has hundreds of pages on how to bolt and clip and weld together pieces of steel it applies in the narrow context where somebody is fabricating out of something at a steal the parties deal the broader deal headline head a c t designing in engineering and then fabricating and those st two components c can't govern those in particular the requirement to have a professional engineer in iowa the steel co doesn't govern professional engineering codes and couldn't trump iowa professional engineer expertise but i want to come back to a broader point could this quarter from an alternate grounds of course court can do what it wants as a matter of power it shouldn't and here's why this is the most key reason why the district court was asked to do precisely this proposed findings fact documentary one hundred and sixty nine dollars right after trial said court find that there's a trade custom and find that governs and the district court declined to do so that isn't expressed in a decline though right it that's why i used the word decline terms of the bid package were included in any subsequent contract so it seemed to be relying on a corporation rather than a factual finding on usage of and in fact your honor i'm glad you phrased it that way because that's exactly right the reason we know that with with certainty is the words i just read you come from page five of the court's order they come to mediately after the heading that reads conclusions of law whatever else we know an alternate ground of formants on trade usage would lie through findings of fact because both parties briefs explain this trait custom is a fiza factual issue this court says a steadfast rule against finding facts on appeal it would be even more doubly more imperative not to do so where a district court were asked to find those facts st and declined it following judge benton's comment declined but didn't express the reject that exact finding you cannot affirm the order on the basis of that but i will law does have a pretty liberal view of allowing a court to look at extrinsic evidence doesn't i don't know about liberal i think i would characterize it as  pretty much the same rule throughout the entire united states there's a rubric for that which you see in both federal and state courts the st step in all of that is always a finding an expressed finding of ambiguity which requires the two sides to have different views of a particular term in a contract and both of those used to be reasonable at that point there's ambiguity at that point it is then legitimate to take extrinsic evidence and that st step to the initial step of ambiguity didn't happen here and here i'm going to quote directly from a c t s epperly response brief in page his sixteen foot no one to the extent the district court did not express the address the contract terms as a legal matter something we would agree with including whether it was in big us such that the district court would determine the terms as the fact finder the district court can hardly be blamed considering how the case was presented to the court by the parties the parties did not argue here's the ambiguity go t and consider it now was or evidence that in a technical sense could be considered extrinsic of course but that evidence was evidence of the performance the court's hearing testimony about what happened in the actual building of this project but that can't be confused with a parole evidence analysis that starts with a determination of ambiguity takes in evidence that wears on that bears upon that ambiguity and ends with a good a finding of fact by the court saying you know what there were two ships it following up on that we also know that extensive evidence is by definition evidence so it runs squarely up against the prohibitions court because finding facts on appeal it would be an evidentiary ruling not a factual ruling and a c t cites cases examples of cases tony alamo nationwide insurance for from an alternate grounds well those are younger abstention and motion dismiss cases where something could be decided on the pleadings where there wasn't a factual issue here there's been a full bench trial and many of the findings of fact that a c t is now urging on this court as an alternate basis we're already not a good judge ben's comment not expressly rejected but declined because they didn't find their way into the order and there were good reasons for them not to find their way into order into the order it's difficult in the space of five minutes or ten minute argument to express all the factual shortcomings with the a s c code and how it shouldn't apply to a deal in which which shifted from just straight fabrication to engineering and design i would have to rest on the brief for that and i'm drawing very very very close in the time here  as i wanted to reserve a substantial amount for proposal but i want to emphasize the relief we're seeking is extremely limited vacating the order remaining for further proceedings consistent with that and that will allow a c t o that will preserve to a c t all of these arguments if a c t really believes a trait custom that the district court just overlooked trade custom and didn't express to reject it for judge bans comment a c t is free that on the district court of course if we lose here today we don't have that same opportunity and the injustice done to us is the decision couched in terms of incorporation by reference is wrong as a matter of iowa law and all of those findings  fact that are attended to that that use that contractual lens or contractual what you are strict may well be rethought on remand and all we ask for is the chance to do that i'm going to thank you to reserve the rest of my time sure you may good morning may it please the court there's a fundamental disagreement about the legal basis for the district court's findings but a poet called to review judgments they do not review opinions so it's important to focus on the critical findings that were made by the district court and the two that at issue in this appeal are the district court finding st that eighty a c t was reasonable and withholding fabrication until the martek approved its drawings and nd that lamar tech implemented a fast track delivery methodology and or which lamar tech then took on the risk of cost overruns the parties presented theories and evidence but they did not ask the district court to identify the specific legal basis for finding specific terms in the agreement lamar tech now attempts after a four day trial to the bench to limit this court to only looking at the terms of the agreement in the purchase order on an  issue that it itself did not even raise to the district court looking to the district court's order the word incorporation is never used in the martek itself where lies and history court comes close with the sentence but martek is bound by the words used when it expressly stated that the terms of the big big package were included that's a mistake right ms oxley but it's not an incorporation by reference what the court said was immediately but a year ago that included in the subsequent document agreed he is look i completely agree that he is looking at the bit package when you're looking at an ambiguous contract and i don't know how you can get up here and say that there was no ambiguity if you look at the case that kind of brings me to the standard to review i don't mean to dodge your question and i'll get to it but i think you answered it when you get it means incorporated go it exactly and when you look at the case case  by this court there was no express finding of ambiguity what the appellate court said was the district court held a hearing and heard extensive evidence which necessarily meant that the district court found an ambiguity that was four days worth of extensive testimony this is a bench trial there were numerous depositions that were offered that the court read outside of those four days there are over one hundred exhibits the fighting issues were the meaning of the specific terms in the purchase order its proposal but again the district court did make a very specific finding as to that point when on page three the district court said the martek submitted a bid pursuant to the bit package and that brings me back to your question g benton when you're considering ambiguous contracts the things that you look at which is pretty black letter law across the country include things like the parties prior negotiations and the statements that were made in th usage of trade and the parties understanding there were significant evidence about the parties understanding about what those different terms meant on page five of the district courts order right and i have this order with me be either right before or after he's talking about the big package he says a c t was reasonable and expecting our martek to follow the procedure it had specifically laid out in soliciting bid and on which a c t had relied  in the cases where in the aisle cases where where incorporation is discussed that is the front and center in legal argument and that kind of brings me back to a point that i started to make if i didn't make tech never said to the district court you can't use incorporation by reference because there are not clear and specific words in the purchase order and you cannot look beyond the purchase order to determine what that is they never made that legal previously pointed out and also identified the intent of the parties the ambiguity in the contract in determining what the parties meant but i would point the court to the hof myer case which is an iowa case dealing with the fair member right that's the one where the that are adopted or rules that are adopted by the federal public defender that was enough of a reference to the very specific i would administer of code section that had just recently been adopted even though it didn't identify the administrative code even it just said rules adopted by and so to the extent that the court is looking for and i will case that addresses what it takes to be incorporated i would suggest that that case support again the specified by administrative rule and that was enough under i will law to incorporate a very specific i would ministry of code and in the same way here the purchase order with respect to the whether or not the i o c applies specified we're not the ones that know anything about it i see well martek is the one that identified the a f c in the bid package it can hardly say that it's not aware of the a f c i think that whether or not limit and so as a factual matter whether or not the a f c should have applied the district court heard very significant evidence about the a f c code including the very same arguments that lamar tech is trying to make now to distance in the big package and then ai ai a c t then prepares and submit its bid pursuant to that big package which is what the district court found and the market has already said that the fact in the district court because it needed to bring in other things that were not in the purchase order and so the fact that i think that that's a pretty significant fact when you're talking about there weren't those other items specifically referenced but other items expressly testified that it was not in any great degree meant and it was because they were trying to get in a it had something to do with a subsequent delivery schedule that the parties argued about whether or not it was part of the contract so and that was not one of the listed identifiers again the fact that the other statement or the other phrase in the purchase order that was litigated pretty heavily at the district court was the fact that the that a c t had to comply with the intent of the architect and engineer and we heard this morning that he said that that lamar tech was originally going to be that but that that changed under the a c t bid again very significant evidence presented at trial about who was the architect the heir ph was the architect identified on the big package lamar tex own  witnesses testified that pierre ph was still the architect of the delivery schedule and that was included in the bid that was attached to the purchase order had just a statement of weeks one of reasonable intent exact the architect engineer go it exactly and there there were a few other points that i wanted to make about the very specific findings that the district court made and that and i  think that goes to the point that this was a four day trial in the bench the district court heard a significant amount of it evidence and then put it into a six page order did the district court identify every single thing that he considered or didn't considered or rejected the fact that he didn't put something in it as your honor pointed out doesn't mean that he rejected it he just didn't state it expressly but the district court also made important finding by the district court it found that the changes in the elevation is what actually caused the delays and the revisions to the design of the conveyor and heat the district court expressly identified the testimony from george one wing and one cardenas witnesses as to the importance of the elevation the district court also said that these changes to the boundary conditions then caused you to have to redesign it strongs and then importantly these specific findings follow directly from the district court's identification of that time table that i mentioned in the purchase order and including the period for the general assembly approval drawings i don't think lamar tech disputes that it was required to approve the approved goldstraw ngs and the modern tech also wants to kind of sit back and say all we did was collect all our only obligation was to pay money entire physical plant the conveyor was one small part of it and as judge been pointed out earlier the district court judge expressly found that it was lamar tex failure to supervise all of those various entities that really  resulted in the delays and that is a basis for the district court's judgment and so we would ask that the district court heard that this court affirm the actual judgment of the district court and not get caught up in the minute legal issues that are addressed here we're not asking to get caught up in the minutia were ask you to get caught up in the overarching contractual lens through which the other facts were seen when the court is evaluating the evidence and looking at performance and trying to assign blame for why there were problems with the project the court understands us to be bound by things in the big package that we did not consider ourselves bound by and we considered under a different approach to the deal we were not the design or an engineer and that's the critical point here counsel let me ask your question there was no integration class right that is correct and more importantly there is this open ended that everything here does not necessarily describe the full intent of the work or what's going to happen you've got to follow all these other things including intent and apple recode requirements and all this stuff my goodness it seems like a free for all here in terms of contract law your honor there probably should have been clause but it is a thirty eight page contract with eight separate schedules and i want to your question dovetails quite a bit with what counsel was saying there about well let martek introduce t c in the big package that is true they did so at a point when they when they were devising something with it were saying to the world we want you to build build us one of these gold manufacture this and tell us what will cost to do that and to do that you've got to follow the  see the the entire world changes when a city comes and says work in very experts we can design engineer and fabricate and do this much want global approach for you and guess what the parties then incorporates a c t s proposal that's i believe exhibit eight to the contract they could have inserted a s c they didn't martic obviously intentionally took it out because it was in the st version not in the nd but if i'm if i'm understanding what's happening now it would seem that counsel conceded that the word included is a synonym for incorporated and that and i think the dictionary did that to go ahead i agree i think what we're ending up arguing about is the exact meaning of what the district court did in a five page order and again i heard no response whatsoever to my point that all of what we're arguing about the critical language we're relying on comes under the heading the prominently reads conclusions of law not findings of fact now i agree there are findings of fact which are unfortunate f martek side i would submit to you that they were made of the incorrect contractual lens when you believe a party is held to certain contractual obligations to approve drawings or do other things and then that doesn't happen it's natural to want to assign blame to them for other problems in the project but it all starts with the idea of what the contractual obligations are task one or under your reman three what would argue or instructions be to the district court tell us what you meant her w i don't think so your honor i think i think what you would do is vacate the order and remain for proceedings consistent and that would be what i had been it would you know district judges sometimes criticize us if it's not it back for further proceedings please tell us what you want us to do or what we want me as a district judge to do one option is you could ask for clarification of the order of what the court's basis for decision was but that i think is implicit in vacating and i think if the court the district court upon room in vacate your the st thing they're going to do is hold a status conference and a c t will likely urge its points it is trying to make your choice you could have fun and trade and trade custom and usage right and that would make us bulletproof because everyone knows you can appeal a fact issue so why don't you do that and then you can hear from the