aim fixed price construction contracts it also involves these scheduling flaws that are found in fixed price construction contracts i would argument that they only applies to what we call a base skill i took a baseline sketch with the initial schedule to be submitted by the contractor at the start of the project and that's what they it goes to if you look at it took over she started withholding ten percent and then when it came to march first two thousand and twelve which was the target date initial target date for the completion of the government withheld one hundred percent of the a progress payments and withheld all the payments progress payment is as long as it's mature that excuses performance and that's what hurt you the contract and never said i refused to perform unless you know i get an extra work or something like that say that i'm no longer financially able to perform because i have a million dollars coming from he between march first and april twenty third what basis were you entitle to that fuel costs you sign away that right in the modification that said after march two thousand and twelve you were wholly clause i don't like a contract mandatory because it's a mandatory clause meaning it's when they signed to thirteen did the parties agreed to throw out the disputes close to mandatory disputes clause or the war risk clause that was specially put in this contract in afghanistan it didn't do them you know basically everybody thought that the power plant would be built by this other contractor that was building a power plant around and no one knew all these events that would occur in a band out a month late when the modification was signed in november the floods occurred that flooded the entire site what we're talking of payouts here what was the critical that you were required under the modification to provide the temporary power after mars two thousand and twelve that's what the modification size all these other things about changes and psi conditions and things like that might have been of that money back because the temporary power of whatever was not within our control or the permit power was on within our control you agreed on the face of the model specifically without any reservation the fuel in the generators course the bout of two hundred fifty thousand dollars a month all right and the bones was taking place on what happened is they didn't stop on march first and saying oh we're not supplying the fuel they bought the fuel that they paid for the generators between march first and march thirty first the government came back on i guess you would as march twenty eighth or something like that and says that when not going to pay you for the fuel we're not going to pay you for your so they went beyond what they were required to do by the modification but i think we're on a side track on the fuel frankly i don't understand why you're arguing this point your point seemed to be or at least your strongest point seem to be that other parts of the program payments that don't relate to the fuel issue were withheld improperly because they relied on the fact that you no longer have a reliable schedule and that there were issues with contractor maintenance yes  if there is no schedule and there are problems with sub contractor payments they withhold all the progress made amends with the board found not discussed in the legal reason the board found november right after thanksgiving and july when the secretary of state apologize for the incident ok and all fifteen thousand nato trucks how is this related that you weren't paying the sub contract or that you didn't ever supply them a satisfactory schedule i understand this is an awful difficult contract there were tons of delays caused by lots of different things but what we're looking at is whether they were justified in the holding progress payments based of one your failure to deliver a new schedule and your and their perceived failure that you are paying their sub contract or one the schedule was  we're terminating the contract wait wait wait what april are you talking about are you talking about april two thousand and twelve april fourth two thousand and twelve well how does that help you because by that time you'd already reached in march or at least sometime in late after refusing to make the payments for the fuel i think we're getting wound up in facts again if you want to read if you want to spend your time arguing about whether the finding the board that you can submit a sufficient schedule you can but what i'm more interested in is the legal argument about whether the government can deny payments based upon and inches bishan schedule ok i can marr compare we're not going to release any payments to you i mean as far as head goes because we use that baseline schedule you know to compare all the other dates and everything else i think and that's what progress payments that you've supposed to make aren't you saying i'm not going to pay you mr contractor let's assume that you're the guy on the third pay you but i want you to finish i want you to be on hand for next year pay a quarter million dollars every month and be on that job because that's what you signed up for you know to gain bell you know  schedule and you don't have approved schedule we can terminate but you can't have it both ways you can have i'm not gonna pay you but you better do to form your contract and that's what it you don't if you taught him and you don't perform correctly they can hold back a maximum of ten percent retention because they know they can take any contract by holding back all payments and you're saying that thinking about the first breach situation you could hold back one hundred percent of payments you could hold back on percent of the fuel off and the generators and saying contractor you're still going to go ahead and continue performing the remaining ten percent of the contract you're going to supply fuel for the the existing buildings for the  opposite was such a great and mick and knowledgeable person about the law but between the two of them that's what i learnt a learn what the sense of justice is and i learned provide fuel to continue to provide fuel right the contractors cost but it's hard to reconcile that with instead of paying the ninety percent as seems  fourteenth two thousand and twelve and culminating in april twenty third two thousand and twelve where basically the island said look i can perform the contract there's lots of back and forth i'm sure you're not going to perform a contract we're not going to perform the contract eventually came down to go shooting tell us when you're going to trying to power off and when they did it was turned over to another contractor supplied the power this case is really about the failure to earn payment the law is ten u s c twenty three zero seven cited by the board judge explains in order to be paid three things have to be present number one the contractor must the progress payments may only be paid as commensurate with with the work actually accomplished and or to it has to be according to the contract specifications and number plenty of testimony to factor that was not going on at all and i can show you in the accounting documents first of all there was no bills whatsoever for fuel here what's at issue is prompt a man requests forty four and forty five they were for a bunch of miscellaneous things the total three hundred fifteen thousand dollars and they were not paid i can show you in the accounting documents not only that there was under clinton seventeen that there is no request for fuel at all you can just go right down the pages and see seventeen zero zero zero requested you can then look at the government's own estimate of how much work has been done and you'll see that what they what they have but they've said is that they've deducted but not retained three hundred  fifteen thousand dollars having found the work simply was not in place and then if you go further to the you know in the the record also it takes twelve thirty five has a history of payments and you'll see that the retained his are well within ten percent in fact even if you were to say so the distinction is work having been accomplished in the first place and the government obviously had no faith that it was and there is numerous documents in the record and numerous testimony to the effect of the highland was consistently asking for document where contracting contract administrator wrote to highland and said you claim that work is being done but we see no work being done so there was a real lack of faith that any work was being done the governor was not about to create for work it was not done but the documents rather than withholding just ten percent well again the justification for not paying on on progress payment requests forty four and forty five which total three hundred fifteen thousand dollars was that for the fuel simply had not been delivered so if you look at the documents that assessed that the pay estimates for example were found at appendix ph eight seventy eight and hate it in for the show three hundred fifteen thousand dollars as having been deducted and the reason there was a the contracting officer explained to her terminations letter found that appendix seventy six the government was actually owed nine hundred three thousand dollars to serve a good show that had overpaid by nine hundred three thousand dollars so they weren't about to pay another three hundred fifteen thousand explain that there is excusable delay or given excuses for why things went to live where there was lots of testimony in this five day trial record is very long i sure think it sixteen hundred twenty nine pages something like that and what and there's lots of testimony about the flooding and so forth and what the government witnesses testified to and what the judge credited was that these things were never shown to be on a critical path so for example in the case of the pakistan border closure the contracting officer testified if you would have shown me that you actually had those generators there i could have contacted naval nato officials they could have determined whether they were actually there and then i also would assess whether you needed them whether they're on a critical path now in fact the generators except for three that were allegedly stolen  did show up in february of two thousand and twelve several months almost three months before terminations so that was never shown to be an excuse that actually affected the work the rain which was i think a day or two and a member two thousand and eleven  assessed contracting representatives were at the site every day and basically reported there was no work going on and it did not it was not a critical path at work i think in that case they said the permits had not even been obtained it would have had to bet obtained in order for that work to do so whether was a pakistani border closure the rain or other miscellaneous and generally generalized complaints some of which had to do with the sub contractors and cells which of course in a fixed price contract is the obligation of the contractor was no doubt a difficult environment and the bidders knew this is the word judge found there was at least one or two questions or better said it won't there be a special quinn in case we cannot deliver by the delivery date which then was two thousand and nine i think it wound up being much later two thousand and twelve and the government said no you have to be sure that that if you cannot deliver these facilities ready for occupancy including power then you will do you will provide temporary facilities and agrees and actually this seems to be an unusual circumstance if difficulties arise never mind we'll pay ninety percent nonetheless the difficulties didn't rise and that the government just cut it off and that doesn't seem to fit with the community and the basis for the ninety percent no no i want to make clear your honor that that in this case only ten percent of actual turning work accomplished was with help and that's that you can see that in the government and the pay histories of twelve thirty five you can see it in the earnings reports that i identified to you and you can also see it in the government's  and the far and the payment clause is also cited by the judge to make clear that without a contract contract is the basis for assessing whether work is in place the government had doubts as to whether the work was in pay place they were not about to pay for nothing the contracting officer explained to pages twenty one ninety four ninety five are testimony i simply can't pay on an allegation that you've done work and given the inspections of the field given submissions of inflated people on the job of inflated progress she simply had no confidence that work was actually being accomplished if she had agreed that work was accomplished she would then have had to pay whatever was left remaining on that particular activities budget and then she could have only so attracted ten percent there's no question about that it was really a question about whether the work had been accomplished whether it was whether it met the contract standards and whether that would prompt payment certificate was accurate and those things are required by four which says payment shall be based on earnings and payment shall not be made for work that contains quality to fact the facts at paragraph three point four point three appendix five eighty seven says provided the contract contractor has provided a complete schedule of these various reports shall serve as a basis for determining contractor payment was updated reports are required and so having explained that as did other engineers that did work was not going to be performed they could not pay for it but we agree one hundred percent that if they were if the work had been in place if they going to speculate and found something that had been paid for was met quality standards they would have had to pay for it and they could only use the track to ten percent but as the contracting officer said it had terminations letter from the appendix seventy six in fact the government had overpaid on my job by nine hundred dollars but even if you reject what i'm telling you and two six seven three six two million dollars thirty two million two hundred sixty seven three hundred sixty two dollars and that's found in the previous three appendix page twelve thirty five three hundred fifteen thousand dollars over three hundred thirty two million equals zero point nine percent that is eleven point one times less or one thousand one hundred one hundred ten percent less than the ten percent that cause allows so even if the ten percent applied to these deductions as the because the court has particular questions much more have anything further to add because the judge basically found all the questions as fact whether the progress was was actually where the work was actually accomplished whether the parties agreed that this particular work the power work with severability was not it was it was integral from the very beginning that these that these buildings these barracks have power  the contract with the board judge explained that without power there was no electricity there was no water there was no sewage there were no evolution facilities which are important for for people of the muslim faith who wash their hands twenty seven all the witnesses agreed that all the contractor had to do here was take the power to run cables through docks and connect to existing power on the base now at some point they were they were thinking of expanding a base to house more soldiers than they of housing and that it happened there would have had to been an expansion of the power plant but instead of housing those additional soldiers because of difficulties in expanding the power plant they simply cut out the power plant out of both highlands work and have a follow on contractors work but there was sufficient power and as i said we're judged credit testimony that in fact all they had to do is connect to the existing power and that would have been sufficient to run power from camp hero over to the combat support battalion base which which they were constructing so would not have been worthless it was important work in fact it was it was it was completed by a fall and contractor support has no further questions and my specifically saying that the existing electrical distribution system would not and it capitalizes not supported distro load for this project  was always stated that you need additional expansion at the power plant in order to have permanent power given to this c s p the  first sentence on appendix one forty six and that never changed except for the attempted testimony that oh we could have set off some  of building schools and provided power to these buildings the other thing is that it if you look at appendix twelve thirty five it is the corps of engineers official progress payment history we hear they say that they have proved on march first two thousand and twelve that first two week period of time between much worse and march fifteenth two hundred thirty eight thousand six hundred ninety dollars in progress famous again and which is forty four and forty five they have proved another seventy six thousand eight twenty three hundred fifteen thousand dollars and they said that that does not pay and it so basically the government had approved of those numbers they had a group of corps of engineers or go shoe the buildings and of truth that it wasn't in two way after the terminations they came up with this oh you're only finished eighty six percent not ninety percent these thirty one buildings but the official documents show that they approve the progress of payments you know air after all the corps of engineers looked at it there is no findin bomb the board of opar judge trash that there was any overpayment you could read you know his hundred fifty page opinion you see nothing about the overpayments