take can i can i rewind you for a second and just focus on this and i'm not sure what to make of it the board described your claim as simply and purely be related to the transportation rate times the number of days for each it's very easy to see how maybe it's enough to track related maybe you have excess capacity that damages might be how many other traps you had to bring into the into the middle east to serve and all that but i wonder are you limited to essentially your corny she said transportation contract rate times the number of days i think well to begin with this was a bifurcated proceeding we never got to damages and i think that contrary kind of a number of days is the outer limit of what we can title two hundred each of the different series but again because we never got to the damages phase you know this is just such a liability we didn't have to really drill down on exactly what the measure was in each instance but it was along the lines of like any civil complaint where you state the maximum amount that you might be entitled to with i think the problem here and set putting aside whether you've got damages  unrelated to the twenty nine days cap or is your theory that even though everybody understood there was a twenty nine big cap there was bad faith activity by the government that made it impossible for anyone to ever work within that our theory was that this was a delivery contract and in order to be able to deliver make additional deliveries we needed the trucks back and the government had a duty to try to return those trucks and it violated that by over ordering food by not trying not to facilitate in the return of the truck by using it for storage and i think that that is entirely consistent you know even if you conclude that the borgata right that the contract you're overrode the storage prohibition and kept speeds up to twenty nine days that is precisely when you would want people to have a duty to try to procure additional storage and i think it's consistent if you look at the actual evidence it's consistent with the idea that they understood even after m after we knew we didn't have enough storage and we're just now getting around to getting enough storage which is a sign that they didn't do what they could facilitate the return of the trucks to reduce the amount of trucks used for storage and similarly it's not a thing that there but independent of that they had obligation to try to do enough to reduce the need for storage to tell the troops and if you'll start ordering from my food to show that there would be this problem with storing food on trucks and with the inability to return trucks so what's wrong with the following way of looking at this mach twenty seven with a two because contracting officers concerned about is with respect to whether or not that overloaded the cap on transportation use which is for customer positive benefits that it specifically linked to the capability to unload and return truck whether that is overriding the storage prohibition and i think to begin with it doesn't address storage it doesn't speak in terms of it and it's part of an agreement my twenty seven included specific language that says that  except the provided here in trying to find the language here except as provided here in all of the other remaining all of the remaining provisions reign in full force and effect which i think at a minimum have to kind of talk a lot of idea a kind of clear statement if you're going to yourself of liability you have to speak clearly of another basic principle of contract interpretation when you're dealing with the government and you know none of that i think was present here and then in addition to that you have the extraneous evidence or  outside evidence you have a page thirty nine and sixty nine you have agility telling a comforting office report in march of two thousand and five six months after my points of a person place you're violating the storage probation here using our truck for storage in violation of  increased for a while after my twenty seven before it went down but in any event i think that even when you have to look at it more of the input rather than what came out of it and they were just simply didn't look at that you have to look and see whether they actually did things to decrease the store to decrease the rate of over twenty nine day trips and see what did they actually do to try to provide for adequate storage what do they do to try to cut down over ordering and again as i said if you look at you know page thirty nine fourteen  appendix it looks very much like inside the government when they were in the privacy of their own offices they said we didn't do enough that you know here it is we've known for a year that there wasn't enough storage and we're just doing something about it now that is i think not at a time that they were doing more earlier and further more contracting officers representative burkett didn't you know there was rampant over or going on and the army tried to fix its mistakes by essentially really delivering this to good on agility stropped and you know you can look through the whole record and you can try to find instances where they're telling the people who are engaging in over ordering you know kind of out guys you have enough and i do simply haven't found it yet then i think the best of things when you're looking at it is what are because the reality is that the twenty ninth cap did shift certain risks away from the government to your site is it not i think it did but i don't when you look at it what it shifted to is the risk of you and and everything came in under the twenty nine well i think that the the way that we can make it sound small is if there was a four percent of the overall cost of the contract but you know it's one thousand seven hundred fifty days over twenty nine days it's on you know four essentially truck trip days above the twenty nine the cap there are literally scores of trucks that were out there for more than fifty days so they may say it's a small amount but if it's such a small amount pay it it's you know twelve million you're starting with an argument that you've made the footnotes in your brief i'm not gonna talk about the entire deal but we talk about these claims in certain footnotes but the deal as a whole was for round trips through the entire time of the contract from on too long and notably agility makes no claim if there's this independent cause for a breach of the storage provision your honor the jury makes no claim for any trip under twenty nine days throughout the course of the contract and they make no claim but so what and if they say they thought that maybe they had a claim but they got paid so why fuss about it they probably didn't sort of know what they did i am not sure what what you think the fair the implication about the claims that they brought on i think it reflects not only councils arguments but i think it reflects the understanding of the parties at the time that the way payment was going to be made was per round trip that happens in the model two and then it's continued in march twenty seventh and what march twenty seventh really does is modify model to some change which was to change from a contract the contract for other places like oman or qatar which is the original contract before racoons it was for one w it was from the warehouse to the delivery point and then there was a provision that talked about demurrage fees that demurrage pre provision talks of uses the same language as we point out in our brief it talks about  general structure that the parties were going to use and that structure change from one way with demurrage to round trip that language the the inclusion of round trip inherently includes any storage mind too it was modified in in both model two or i should say that in my two it reflects the party's understanding that the way any storage problems were going to be addressed was through the fre structure that was set up and my attitude which at the time was unlimited so exactly the way the part is performed here but the idea that there are new claims for storage problems while not to was in effect reflects that same understanding that what the parties thought was that the payment structure that was going to handle things over twenty nine days including where those delays were the result of storage came from that payment structure whole thing about nine twenty seven was that we're going to put a cap but at the same time we're going to do everything we can to make sure that that these trucks get back to you in a quick fashion right absolutely right when you don't really defend the board's position that it didn't have to decide the five do you i think the board's position that it didn't have to decide the implied duty claim i think comes down  brief saying that that that would be an arcane appropriate contractual sense i see you saying that it was essentially harmless error because there's no evidence and reach i think it along the lines of i mean obviously it would have been much more helpful to our position had the board elaborated on its reasons but the reason standing alone that the plain language of the contract here like as in lake shore and metcalf and the cases that talk about the implied duty where the implied duty depends on what the actual terms of the contract are and here if you cannot expand the duties under the contract in the way that the plan that the that the trucks for whatever purposes and they don't have to return of trucks meaning in contemplating that we have an average time of returning trucks and we have and outside time of returning trucks there there is it would have entailed the contemplation that transportation liaison officer which was attempt to reduce times but there was also sort of two other negotiations back and forth the first one is that there was a question of how much paperwork to put in and mr switch it was very clear that for any times over the minimum which was the original draft that would be too much problem and miss four agreed to that and the parties agreed on a sort of nineteen day limit that's telling here because i believe it's eighteen days was the existing average trip time so that reflects the party's agreement that we are making this deal for everything and for things over the average up to twenty nine you show us documentation we'll pay those claims but you're also agreeing to a twenty nine day cap the second point on that is that the parties also agreed to an increase in fees that was something  were talked about originally but they also agreed to a higher minimum for most of the regions over of iraq so this is a deal that set a firm cap a calf that mr switzer in his own words said was understanding that you're going to you're going to get more money and you're going to get more liaison's and we're all going to make this whole process the more efficient but then the government said you know what don't even bother him back their trucks because now we're protected and they you know they just went out of their way to sit on those trucks and and made it impossible for them to to live with this twenty one thousand cap you would agree in those circumstances that that there is an implied duty claim there should be a cert right i think i would agree your honor with all of the regular carry out of the right that it was i think i would say that under those circumstances there would at least to be a claim because if you take a look at appendix twenty which is the board's opinion one of the things mr porter testified to with respect to sort of exceptions and relief and all those things she gives a specific example in her testimony where for example all of the trucks and this is the quote part we're out over twenty nine days and for some reason agility was going to be out of business beyond their losses that's the sort of circumstances that she had contemplated these kind of exceptions so i think what i'd say to your question is beyond the the scope of the agreement here was for a set of circumstances that looked like it did on the ground and there's there's evidence in the record that there were delays of up to at least one truck have been reported out for over one hundred fifty days and under those circumstances where a small number and julie talked about my numbers the numbers i have and what they changed it to was was dead the number seventeen hundred days was out of i believe it's around thirty eight thousand and that number is about five percent so these numbers are still small regardless of how you measure them but the deal was that for work this out of circumstances on the ground we accept this cap structure and i think to your hypothetical if the set of circumstances on the ground shifted in a prove harm to itself like we actually had to bring in a thousand more trucks from from into the city into the area because too many of our trucks were out for for so long was that part of this proceeding i mean a bit of a disadvantage are in that i did not represent government in that proceeding it is my understanding what a minimum v there was a selection  poll of fifty trucks out of out of the seventeen hundred eighty one truck trips that had been over twenty nine that evidence was presented and there is samples of that in the record of fifty particular trucks so there was you know at least evidence sampling of what the trucks looked like afterwards and there is certainly evidence in the record of the existence of delays and emails that complained about various de lay's resignation here here i guess is what i'm trying to get at and it does seem to me that the correspondence surrounding the agreement on march twenty seventh created a non written down contract between the government and agility about submitting claims over and above the contract rate claims in my twenty seven and then there is a question well what was that agreed and there was testimony in the contracting officer for testified while i contemplated that would be some sort of set of extreme circumstances and i guess my question is did agility in this proceeding have notice of what it might have to prove to us stablish of reach of that non written down agreement so that it could prove that like we had to bring in twice the number of contracts into the theater  theater that we otherwise would have because we couldn't actually make the deliveries we were required to because so many of our trucks were sitting you know being a be used as johnny refrigerator somewhere for a long time i believe they did your honor  and i know certainly they have the the ability to cross from this for on her this particular testimony to attempt to revive it and they certainly have the ability to look at any of the trips that were in question  we can ever address that in the first since well i think that would be if you could address it in the first place because that this court would find as a batter of walked that there is no implied duty because of the specifics of the contract or other and they define similarly there is no constructive change as a matter of walk off the nova review because any of the changes that are contemplated by the alleged constructive change flow from th direct changes to the contract we have to accept the proposition as a matter of law that that express contract can essentially laid down the ability to a certain  the ability to assert this particular implied you to call your honor where it is entirely compassed by the cap that the parties agreed to and the multiple findings of fact end even if we accept the board's conclusion that there wasn't a separate contractual agreement so to look at that additional claims doesn't at least her view that that you know you can make a claim indicates some conclusion that there might be an implied duty claim that could arise that that wouldn't be completely covered by this i think that that is is certainly possible i do not think right but the nature of the exceptions were not written down in that had to be established by custom that's correct or are and in the sense of at the board that was used particularly to the topic of whether or not board's be given the opportunity in the first instance to determine what the understanding of the parties was with respect to what the obligation was of the government to return the truck to what duties it had and at what point it would be what i would point the job he had a case for more or come more compensation because they weren't doing enough to reduce the storage by buying another refrigeration early enough in the conflict and i think that is an indication that you know the people who know this case the best the government people on the inside when they don't know you know they're being watched more or less this think they were doing enough and very ship and said in other circumstances are really let's get this go too far and you know when you have that kind of evidence that the board had to consider in the it the informal agreement habermas twenty seven was reached for concerning the postmark twenty seven era it was waived it's right there in our complaint and paragraph twenty nine and fifty one and as judge from noticed the board below certainly thought it was preserved enough that they addressed and i think the important thing there is that when you look at the big actual government's own conduct it's entirely consistent with what we say the agreement said which was that you know above above a certain time we didn't have the document well and there's no evidence whatsoever that it was concerned costs which is what which was contracting out for ford to play for him because after all when she came back when she when she got the documentation she said that they better prove in every instance of the delay was essentially the government's fault she didn't say anything at all about cost until much much later when she was finally denying the claim at no point along that situation  every time you had you could show that it was the government's fault and what's the point of the twenty nine hundred capped at a minimum it is a much it's a heavier burden and instead of a kind of ministerial information about you know the name of the driver truck or vehicle identification number time out time and you know reasons for the delay we have to prove that the girl a that essentially that agility was blameless and the government had all of the blame all the blame and secondly the kind of quantum of documentation was much different in that