even the boards have been pretty clear that those types of increases you're not entitled to an equitable just when you get this is different and the reason why it's different is because of the location of where the contract was performed but when you entered into the contract that doesn't come as a surprise you knew what the location was absolutely into the contract absolutely your honor and in fact i think both parties understood it right and the reason and that's the reason why it's a little bit different in our case and in our contract there is this fuel consumption or conservation program that they want to put in and in most federal government contracts if you have a just your typical facility services contract you would need a fuel conservation program by the very nature of the firm fixed price contract you already have a contractor with an incentive to cut consumption of don't you have more of an incentive to cut consumption the higher the price of the fuel is i don't understand your argument with the character energy consumption in this case because it seems to me as i said that in this case with the energy consumption program which is trying to give you an incentive to use less rather the more and that's where the difference lies the difference is in this case the sole source of the fuel is from the united states we're on an island in the middle of the indian ocean and there is no commercial access to fuel there is no other civilian access to fuel the only place we can buy this the it was an offer to the government look for the minimalist changes and rates let's just have an agreement of ten percent above or ten percent below nobody wants for equitable adjustment but beyond that proposed for contracted ministration for whatever reason that we thought it would be appropriate we thought it would be easier for both parties for the ten percent it would be consistent with other economic adjustment clauses that are in the far so that makes sense however the the government rejected it they said no we don't want to insert a ten percent plus or minus with fuel rate increases or consumption increases on the contract so it was really the united states that pulled that back we offered it they rejected the offer so we went back to where they was agreed to it was it is in the final arrangement to an increase in the contract price in the face of an increase in the d o b prevailing right so all what happened was after negotiations when the government said no we don't want that change we went back to the four corners of the contract and the four corners of the contract in our opinion says that yes we're responsible for consumption and we will we'll do our best to get our consumption in them in a manner that consistent with do that provision and now you're saying we withdrew and you should read that sort of contract history is saying we withdrew it because we didn't need it because we thought those provisions lie in any of them know that the you think in the fine tract allows you to not have to pay for the adjustment of your cost the rising fuel costs fifty two to forty three days for the changes cost ok the changes clause says a change in government furnish material that causes an increased cost to performance we're entitled to an equitable or just not always the far favors you decide that that's part of our problem here are they exactly that's our heart of the problem partly that's the heart of your problem well we believe this we believe when you read the contract there's a whole if you take into consideration the fuel conservation program that we were required to put in place where the focus was on consumption not rate consumption that when you read that as a whole it's obvious to us that as long as we took care of our consumption and lowered our consumption when we got to keep the benefit of the lower consumption we're just say that can you put us anything in the contract i mean you  provisions which are incorporated what is there in the contract language contractual language quite explicitly gives you the pay for increased costs right it puts the big shifts the burden no no it gives you the clear provision in the contract now i think they need to be read together you've got one provision that says when you buy gas from the united states government this is what we're going to charge you the prevailing right and this is what you're going to provisions this is i don't believe this is a more specific provision to the far fifty two to forty three dash for you got to read them to get it right what does fifty two to forty three days for say with respect to or fuel is defined well let's back up to forty three days for talks about government furnished material correct material is defined under the far under forty five point one one as something that is consumed during the performance of the contract generally fuel is used or consumed very performance of the contract therefore fuel is material and if you is material if there's a change in the government furnished material that causes an increase in our cost of performance and there is no doubt the increase of the d o d prevailing rate caused us an increase cost the performance our contract we want to make absolutely crystal clear that with respect to the cost of fuel the contract to be responsible for pain d at a rate and terms of the prevailing great how would you do that the only thing that provision says is when you're buying fuel from us on a reimbursement basement this is the price it doesn't set that any change to that price we're not going is the price that you will quite reimburse the government right absolutely but that doesn't mean this is the issue in the cash if you're hitting right on the issue the issue becomes then who bears the risk when that reimbursement rate the deal the prevailing rate increases what our position is that's the real issue and what our position is is that fifty two to forty three dash four says that if you've got government furnished material which is fuel and you change it and it causes an increased cost of our performance the changes clause allows for an equitable adjustment so the issue isn't because whenever we're dealing with the united states navy the deal the prevailing rate is really disconnected to some extent to the contracting agency at this point they're just pulling off a deal the prevailing rate for that area of the world the asian area so i don't know how much the navy had control of those rigs deal he did but maybe not the navy but the queen is where does the risk get placed under the contract because that's what a contract is in its simplest form i think may have please the court the court should affirm the board's conclusion that the contract language place the risk of fluctuations in the price of the fuel on d g twenty is in europe your position of the contract is unambiguous yes well how can it be unambiguous when the contract incorporates the provision of far and at least on their face it appears that there might be some inconsistency between the two provisions as to how they apply the  inconsistency as the board explained in its decision because the contract needs to be construed as a whole and that includes the changes clause and what the board did is consider whether or not there was indeed a change in the contract requiring will let's assume the provision we've been citing in the contract was not there and we just had referenced incorporation of the far provisions how then would you construe the situation here would the contractor be entitled to the increased cost changing the increased cost if you that's i don't really see that as a change from the decision that the board rendered the the four provision is incorporated by reference into this contract and what is the far provision in the applicable to the circumstance leaving aside what the contract calls for not just the far provision and what would apply in terms of well the far provision has been construed by this court in numerous cases and what the court looks to is whether there has been a change in the contract requirements of for example there is the m a more distant case from this court where in that case there was a there was an anticipation on the contractors part that the notice of proceed would be issued by a certain date and then the notice of proceed was issued later by the government so the government did something differently but still that was not a change within the meaning of the changes clause ok i just want to understand what's assume the contract was silent as to and he's busy explicit provision about who's obligated to pay what connection with fuel costs and the few costs of the time signed the contract is a dollar seventy mile per gallon and a year later the cost of fuel is three dollars and seventy nine cents per gallon does the far in the absence of any other contractual language with the far provision come into play i e there's been a change over the past year cost of fuel has skyrocketed and this is the kind of change that demands an apple or just cable that is indeed a different case because you don't have no i understand i'm just trying to understand the far provision how it relates outside of the context of this contract the far provision is construed of according to this court's decisions you construe the four provision in the context of all the other provisions and what you do is you decide whether or not there has been a change in the contract where quire mess considering what the contract is ok so a my hypothetical if parties enter into a contract and the cost  at the time is one dollar and seventy nine cents per gallon and it unexpectedly skyrockets we've been in here to more than double that would be far provision that we're talking about come into play if it's a fixed price contract  i assume that it is a fixed price contract as this contract is the answer would be no it would not come into play because if it's price contract contemplates that all of these costs so even already  decision of this court which construes the far clause the very same for clause on a fixed price contract and says that these were costs are part of the contractor's costs that they are to be incorporated in the contractor's proposal to do the work for that fixed price that type of a cost if there is a fluctuation in that cost which is part of the contractor's proposal then the responsibility of the contractor infix for his country the the board made the assumption that the fuel was a government furnished material and we believe that the saying that it could have been argued differently but here we are defending the board's decision based on the board's rationale and the board points out that need you construe the contract as a whole in light of all the provisions of the contract including the provision for contract furnished fuel two point five point one point one which as the court understand says that the contractor has to purchase the fuel for these decision based on the board's rationale representing the united states correct alternatively the court could come to its own conclusion that the fuel is not a government furnished material based on the fact that if you look the correct interpretation of this relationship i'm simply pointing out that there are different provisions for government furnished materials government for at least feel contractor furnace fuel  and hypothetically the court could come to its own decision a different way take a different route to affirm and say can you just clarify for me i'm very confused but what you're saying is that the government's position that this was government finish furnish whether it could be construed differently but we're defending the decision based on the board's rationale and the board's own rationale is that this is a government furnished material and that there is no change in the government furnished material within the meaning of the changes clause because the contract has to be construed as a whole and it was understood and anticipated and i'm a little decision and this is on page twenty two it's at the center of the page and the board says i quo even if the fuel at issue was government furnished material within the meaning of far fifty two point two four three days for fluctuations in the prevailing d o t rate would not constitute a change i thought that was the small term argument i'm sorry ana i thought that was an alternative argument no that is the main rationale of the board the board's conclusion is based on its reasoning that when the contractors read it as a whole there is no change within the meaning of the changes clause and it goes on and explains that what we're talking about here is ed that is the price of fuel change dramatically what with the board's rationale is is that when you look at the contract as a whole the it was anticipated that there would be relationship between contractor and government change to the point where equity it's we should intervene to provide a fair and equitable relationship between the government into the proposal that might have made it easy to obtain an equitable adjustment was not included in the final contract i would think that the price changes in gasoline were a surprise and everybody knew fuel at that at the time of performance so it isn't really changing the contract to changing it in usually surrounding the country is that asked for it to intervene it was pointed out during the negotiations by the government the government pointed out that there could well be escalations in the price of the fuel as well as other parts of the proposal that was submitted and that there was no provision in the contract in the terms for any economic price adjustment clause that this was a fixed price contract and it was the contractors responsibility to take that into account so that all that was pointed out in the negotiations and so we're view is that the contract was absolutely clear it didn't just it wasn't just silent  embarrassed the government for the cost of the time of the use of fuel yes the contract is clear because the contract language first of all it is a fixed price contract this is part of the cost that the contractor has to take into account and the contract language distinguishes between government furnished rule and contractor furnished fuel and this contractor furnished fuel is only for the vehicles and the equipment that the contractor itself operates its for that part of the contract that the contractor must purchase the fuel and it purchases the fuel  working towards that is the contractor operated vehicles and equipment so the contractor purchases the fuel only for the vehicles and equipment that it itself are two types of fuel the contract furnished fuel is only for the contractor operated vehicles if the contractor is operating the vehicle itself and the fuel for that vehicle is contractor furnish fuel and the contractor must pay for and all the other fuel used on the base for whatever other reason would be government furnished fuel and is furnished free of charge as the board pointed out in its  rate and that puts the contractor on notice that there could be well be fluctuations in this rate and the d o d prevailing grade is something that everybody knows that we support target set something that's no worldwide r publicly known historically known it's out there it varies over time and it's based on it's calculated based on certain components considering transportation costs costs with respect to this case to me that that parole evidence and although there was discussion before this court is still limited to work eventually ended up in the  contract with respect and this flows back to whether there's an ambiguity in the contract or not if there's an ambiguity in the contract absolutely those discussions are relevant and they should go to the intent of the parties but she or there has larger picture i think this court still must look at the court the contract as it ended up not as it was discussed during negotiations and so although i think it is it's window dressing to some extent as far as a matter of law but the interpretation of the contract is i don't think it's relevant and this is not necessarily relevant i don't think it can be used on the poor levels to define what th think the most logical contract interpretation is that those aspects which don't quite work out are not subject to review indirectly but  rather stuck with the letter of the contract in the assumption that risk which doesn't help your argument i would i would agree with you up to the point of the definition or the interpretation of the entire contract