transportation company versus department of agriculture two thousand and seventeen sixteen seventeen mr well which the judge imposed a higher legal standard of proof on the appellate that is required by law it was appropriate if i'm going to be even more direct it appears the judge determined the outcome which he favored and then built backwards a decision to support that outcome in particular i can point out there was a repeated testimony at trial as to both the appellant's means and methods of operation and their intended methods of performance prior to modification number one to the contract in particular the time of the appellate intended to bring rocky materials down the mississippi river out into the gulf of mexico place rock into information which was called for by the congress in this case about different site conditions which we didn't that feature of warp on the groin there was a hump an underground hump which was not shown in the contract plans and specifications it wasn't shown in the original as bid plan to specifications it also was not shown in the modification number one plans and specifications actually i'm sorry your honor was shown a modification of the one but modification number one was put out after two hurricanes that impacted the gulf of mexico and it was put out as a change the contract to change a feature of the work do something differently add or subtract didn't you people t two questions out of that one the first is did did mark i inspect the site yes as well as they could from the top of the water however they could not last post they were allowed but it would be financially and practically have their own bath a metric survey done to give them the tough talk to fuel the area no they had to rely on the government specifications for that which are as a matter of law supposed to be accurate as to where they told that the conditions were the word that has been used over and over again is dynamic ever changing yes your honor but that is not in fact a clickable to the claim yes the water levels go up and down everywhere in the gulf the mississippi river the pond near my house but the sea floor itself yes changes some in this case however this pump was a semi permanent feature or perhaps hardly featured in other words when we obtained the real data that was actual that was actually available to the government prior to the issu solicitation it showed up when we compared with the data that was shown after the surveys after the hurricanes home still there so this is not a this is not a matter of where there is sand or accretion filling in a we're going away it's not a matter of the water level going up and down we're talking about an underwater ridge which prevented the appellant's intended mains methods of performance that was there before during and after when when the government issued modification one didn't come back with adjustments to the price that is correct or that that is correct or out of that wasn't provided until after contract performance it's been completed and so i'm just curious why after seeing in mock one  notice about home and then other adjustments made you know you were you came back with a new proposal on the construction schedule but you didn't come back with any proposal on cha price your honor respectfully i don't know that we came back up with a proposal on the construction schedule or the a proposal in the plan the request for the pricing was make sense in parenthesis with a notice to proceed in other words we weren't asked how much is going to cost to do modification number one are you still going to be able to pursue the we're told get to work and i believe the testimony at trial was that they got those proceed and they went to work and perhaps they should have provided a they requested price adjustment or price proposal at some point they're after before the completion of the work but nonetheless that didn't obviate their obligation to go to work as directed at that same time so it's not as if they were asked how much is this going to cost and then the government decides whether or not they were going to still vote with the work cloud it was directed to proceed i guess what i'm wondering is if your client had the subjective plan to use the original plan dimensions as it's going to do the construction assumption that there was no home in behind that growing area and then all of a sudden now in this modification one there is all this new information about changes to the proposed plan it would seem like if you did have that subjective plan then that's when you would have a look at the government and now that he's made these sorts of adjustments to the plan that impacts how we're planning on doing construction and so therefore not only is it going impacted by modification one year out of when they gave notices of the difference like conditions they didn't they didn't necessarily go into of the point the how the means and methods were impacted directly but they did give notice of the difference like condition told this was change these were not changes that the government's made to the contract there were changes that were caused by an act of god and this is kind of your f y i as to what you're about to encounter not this is actually corrections made to the contracts which were you know corrected mistakes in the bid solicitation documents and so the appellant was presented with a situation where they had a nose to proceed on a contract which they believe was modified based on the government's representations incorrect would have been the same number not two different numbers that doesn't go to a discrepancy in the testimony as to its inaccuracy in fact it bolsters the fact that that's what they intended to do or else they were going to the same number and the lack of contemporaneous because they didn't have contemporaneous evidence there is no indication this proves to the the board by a preponderance of the evidence that you have to have contemporaneous documentation at the time well how are we supposed to interpret the contract in a way that necessarily requires the growing to be a certain length because it allows you to more efficiently do the construction i don't see anything in the contract that says that and then of course as i understood the board's decision it said there was no contemporaneous evidence to support that kind of theory and understanding of both parties had a meeting of the minds of the contract and that well two points your honor the first is a meeting of the minds no i'm sure the government didn't know how the appellant intended to pursue the work and there's no there's no contradiction as you call it intends to do it exactly as it was testified to under oath in open court with no contrary information representation so why is it part of the bathroom metrics typography the area and say here's what we want you to build build it here now when they did that it is open to the contractor to use that available area in such a way as they see fit and appropriate to build the job so well no there's not a box drawn on the contract plans that say fleeting area because the appellate review the plans and specifications solve the growing was going to create a protected area and that the death of the breast area behind the groin would be sufficient but for the shortening of the growing in modern one and especially the hump she used that for a fleeting area that was a reasonable interpretation of how to use the work or you know the government didn't say here's your fleeting area but the contractor had you know full opportunity to make use of the work limited as they saw fit that was an appropriate and respectable use of that area to fleet barges to have materials on site to better service the rest of the work mr wells here into your bottle tom you and i was i was about to say i'm into it there's not another question this moment i'd like to say  it please the court the court should affirm because the board correctly decided the only legal issue which is interpretation of the contract and its findings of fact are supported by substantial evidence there was only a single claim for damages based on alternative theories either under the changes clause differing site condition or a defective specification at the board charter or contended that the the other bottom elevations north of the area where it says it with saddam north of the growing where it says it was going to have the fleeting area that that was a differing site condition regarding that contention the board found based on contemporaneous job records and i've borne out what we had here was three sets of contemporaneous job records the government's records chophouse records and the subcontractors records and based on all those contemporaneous records the board found that from january to february of two thousand and six when they're starting work what's happening is that the work is being impacted by severe weather and changing water depths the board finds this is the dynamic environment that the contract for told and what is happening is as the board said it is clear that the water depths were changing during contract performance as areas that were accessible at first became an accessible within a short period of time it points out with it within a two week period from january to then into february of two thousand and six the area right behind where they're building the beginning of the growing is filling in with sand and it points out the bore points out is its decision that this area which had been six feet in depth where you could get in a barge of that draft six feet has now filled in and these findings are pages twenty two twenty three fifty three and fifty seven of the joint appendix as i understand chopped out argument they're saying that the sand was always there at the time of your original solicitation and so therefore it's inaccurate for the government to see just as a basis for mark on the sandbar was s first on the differing psych condition claim look at what was happening at the site and their own it found that in these contemporaneous job records there's no mention of this sandbar home as impacting the job or even any mention of it at all what the what the job records talk about is building the beginning of the growing the most eastern and and that area according to the government's own personnel erroneous lee alleged to be the result of hurricanes but in fact was not a result of hurricanes but rather the government's own initial errors in the survey isn't that record express  ordering that these modification of modification one list of money asleep at the time of the mother cation suggested by the government to have been a change site condition due to the hurricanes which would have been within the contract and dynamic conditions that could have been reasonably forseeable but in fact it turns out that the board found it was not a result of the hurricane and it was a result of the government's original surveying errors so why are there not to be compensation  for a change in conditions in light of the government's erroneous original survey and then the subsequent modification of the board addressed exactly the court's point with the board pointed out is that the case should be analyzed under the changes course and it assumed that the change in the lathe of the growing was a change and also that the hump which appears in the in  the drawings with the modification is a change and then it looked to see whether they would be entitlement under the changes course and what the board pointed out in its opinion is when you  i asked first of all do these changes impact the work and the answer was no it was no because the board looked at the all these contemporaneous job additional time with you need additional costs give us your proposal and this this change order included all of the revised drawings and this was issued in december before any of the work was speak on and as the board found this change order was absolutely clear if you looked at it you could see that the growing was nine hundred twenty six feet so you knew right away that there is a a short of the growing yet there's no mention in any documents of that change in that the groin area and its later it's coordinates as impacting the work also the board found that the sand bar hump was clearly shown in these revised drawings but there's no mention of the sand bar hump impacting the work in any of the contemporaneous records any of these daily reports there's not also no mention in any of the  sort of lumped together i would say they're lumped together to be fair to the board's opinion the board looks at the whole body of evidence and concludes that if there really was a plan for a fleeting area in the north of the groom line it would have come out at some point you would have talked about it you would have written about it would have been in your daily reports somewhere some time you would have said something about it but there's no mention of it anywhere and with the board points out is the claim there's only one claim and what the claim really is based upon is that there was supposed to be a fleeting area a fleeting area to the north of the blue line where you would have a arduous and they would be filled with rock throughout the job and that your store's place where you can you can do your work interpretation of the contract and that's the only the only legal issue in the case really everything else is factual and what the board did is point out that based on the provisions of the contract it was on reasonable to assume that you could have this fleeting area these barges if they're half filled they draft six feet meaning that that area has to be at least six feet deep throughout the whole job to have these barges in that area and that was an unreasonable assumption it was pointed to language on the drawings these are on the drawings of the growing and on the brake orders word says quote autumn elevations may change due to the dynamics of the environment it also pointed to special provision eight which warns of title fluctuations in the water taps and it points to the construction specifications which so you that access to the sites may be impeded due to shallow water conditions and the board found that it was unreasonable to rely on one drawing which had certain contours on it and assumed that that would be good career of july two thousand and five when the solicitation was issued or for about the performance of the job the surveys that are noted in the original specifications are from two thousand and three and two thousand and four the board also cited to the personal experience of the sub contractor who had built the the earlier break warders and there that contractor the subcontractor had experienced these changing water taps as breakwaters or or built areas behind them fill in with sand and that is exactly what happened on on this job as the board found of the quick raised of certain questions i just wanted to address both there was a question about notice  the the only notice that was given in this case was all there was an oral complaint on january twenty fifth two thousand and six which is the word in the court the the board's opinion at the joint appendix page twenty two and the complaint is about access to the jobsite there is there was an access route in and the complaint is that that access cruden has filled in since the hurricanes and so you can't you can't get your borage is an all net access route and what i'll point out in the board finds its opinion is that there were no depp's noted on the plans for the access road so there's no there's no difference i can dition for the access route there's never really any real claim for access group into the job site but what the government does is wave the work limits you can't get in the way the clans indicated where you can access the growing otherwise  k i think i've covered the are the records for other questions in terms of the site this said i wanted to address that a little bit more here the testimony about the site this said that they conducted was that they went along the area of the growing in july of two thousand five and this is you know before the hurricanes and also before they put in their bid and they went with a a meter and they tested the depths of the water and based on their site this it they came up with their bid and the board finds that that is evidence that is contrary to the notion that they should be entitled to a change just based on the changes in the modification basically just because some of the expert testimony is rejected because it was based on only on a reasonable interpretation of the contract was also based on a completion date that the expert arrived that basically the whole claim itself is based on this alternative universe where  clothes matter but it is more appropriately viewed as a different such condition because the modification number one of the contract yes it's cortical made changes to the contract but it was provided to the to the appellate as an f was for what they were going to encounter not to any real changes that were made to the work to be performed the hope was shown it was always there it's not as if they had added that feature of work or the difficulty behind the growing hump was always there the length of the growing the link of the growing always went from the tip of the island to breakwater zero on the top of the plant specifications which were bid they provided a incorrect link to the groin modification number one they corrected the length of the growing they didn't say we've now told you to build a shorter growing they always intended for the groin to be built to the link to which it was built in the play of the specifications as bid upon however they were indicating that the growing would be longer so that that is not a change that was made to the contract that is a correction that was made it was  it would be a different cyclist that was found it was not represented correctly in the contract and then encountered by the contractor upon mobilization of the side i also like to point out briefly mr finals work was not based upon a faulty reading of the contract nor an alternative universe in which water depths were static no one has ever indicated that the water depths were not done that no one is ever indicated that there would not be some accretion or away of material around the breakwaters around the ground as part of the purpose of the features however the feature that impacted forms most this hump was always there these plans to develop a fleeting area behind the that was based on the bit in specifications and what was actually built upon by the opponent and allowable use of the work limits is not something is not something that they were told they had to do nor are they told they could but they weren't prevented by any means from doing it that's how they reasonably decided to pursue the work mr can only base his decisions on the fact that that was a reasonable use of the work limits and the the playing methods of performance his methodology  called into question but legally as we pointed out in our brief there is no problem with his methodology it was not a total cost analysis and the fact that he later in rebuttal performed a a total cost analysis and that he showed similar just quickly explain i understand you have a theory for why this is materially different condition can you explain why the board's analysis lacks substantial evidence what the borderline on to conclude that it wasn't the change what was intended by the appellant yes the board is correct that there were changes that were out there i was going to weather in the gulf there's always going to be tough high and low tides in the girl however even the mr finals work took into account those severe weather days and took them out of the damage of calculation the crew the board's unreasonable in its determination because the fact of the matter is that hump and the changes that were corrected not made a modification number one exacerbated every other condition out there including the