you the next case for argument a seventeen one five eight for a meridian engineer year but again it's the geotechnical information provided as part of the punch act is known to be and it's accepted by the case of all the most reliable indicator of the subsurface conditions in one particular area that meridian should have experienced or tired should have it should have been reasonably foreseeable the actual conditions because meridian should have wanted to investigate whether there were unstable saturated conditions of stream this is extent that the government has argued that you know whether the where in southern arizona is they're not i think again it depends on the each area is different and you can't just make general assumptions about you know areas geographic areas either based on the state or based on even being in a flood plain it was have to go back to the specific geo technical information that was submit test trenches and test holes demonstrated that there was really no reason to think that the soils would be unstable or unsuitable for construction it wouldn't be in a fluid condition based on what was reflected in those boring  interesting point because i think that that's a lot of what plays into it and to be frank before i you know ever used to do this type of work i would have made the same sorts of you know common sense you guys are inexperienced engineering company and tucson is not too far from  and the reason for that is well that's true but it's also the place where we learn some part of their experience or so they say looking at these boring tests and i guess in addition to our own experience and our own knowledge that we've built over time we're willing to take this risk and it's laid out well it's laid out but again the case law and this includes of the foster decision and also this court's two thousand and fourteen metcalf decision is pretty straightforward about the fact that even a disclaimer that is written into boring logs or other sort of geotechnical information can't function to shift that risk from the government to the contractor the whole purpose of the difference like missions are those used to be called the change conditions as with the purpose extent that they were indicated in the contract that's why the different site conditions fars is incorporated in the contract to account for close to the situation where a firm fixed price is given have based on the bid and based on that i'm sorry that it is based in turn on the geo technical information is provided as part of the contract so to hold anything different with in fact read a different site conditions out of the contract and shift all the rest back to the contractor and say that indeed there was no situation where the difference  conditions ours would apply i think again foster and that cath have i have made it pretty clear that the contractors entitle to rely on those boring logs and even to the extent that they bring their own experience to bear and that's  dr hart took a look at these forums and drew a very specific distinction yes there are places where some of the clay is wet that doesn't necessarily mean that it's in a fluid state wet clay can be in the water and can still be used as you know error there was a geo technical information and we were told to it as you see it i mean that's the general instruction that contractors are given where you're given or iraq's test holes as trenches and you're told here are specific subsurface and surface investigations that the court did in designing this project you're entitled to rely upon those and bid according to what you think the conditions are represented in the contract when you then encounter something different something materially different at the contract site that constitutes a different  indicated there were certain types of soils there were some boring ones that indicated different types of soils radium looked at all of them as you're supposed to one interpret and were they out dated in your they were out dated but again that's the response why is that a lot of pet no big you agree because it happens all the have for clarification or you know you want to send somebody down there didn't have to look at the site again that's not a possibility we would have had we wouldn't have had time to do that there were three or four weeks it was during monsoon  if there would have been permits required and given the time involved permits wouldn't have been issued to get onto the site so the land that was owned by the corps of engineers at that point it wasn't planned or i'm sorry i'm one of the coordinating state agencies is that it would have been possible f flooding through the whole area that the whole purpose of this project is to build a channel where that water could flood so it because of that they were unable to get access and again i think the key to solving it is clear that there is no responsibility contractor to do an independent investigation or to ask her clarification it's up to the contractor to rely on the boring logs that are provided and they're often outdated when you're dealing with government agencies it often happens that the government  certain investigations does their site investigations designed for projects and then has to wait for funding and in fact that's what happened here it doesn't mean that the responsibility passes to the contractor or that it's a can into you know a contradiction or a conflict in the specifications you want to get your expert mr weathers testimony are on which to see if he relied was submitted two months prior to one of meridian submitted its second amended complaint which alleged unpaid contract thirteen no no no your honor our calculation is that there is a overpayment of three hundred twenty six thousand dollars or at the time of the two others calculation it's now about eighty three paragraphs discussing this whole thing so all i'm having a hard time seeing how we can review that as it is and how you're adding more stuff in that i guess undoes some of this stuff i mean  inquiry remain the same we're supposed to review this opinion this decision my hair yes it's hard to do you know we don't have very much meat on these bones but now you've changed you're saying that this isn't any longer operable no that's all we're saying we're kill that but when you look at appendix forty four you have there because i'm just trying to find the paragraph c is five c is the court's resolution yes so what is your understanding of the resolution the resolution is that the what we claim that we had over already for certain contract quantities ok because we had over them for certain contract quantities we were entitled to set off those amounts from other amounts that were  any for their claim for under three it's because because we were entitled to offset mounds due to the government from any amounts due to very early so in light of the fact that there is a both parties put together in evidence to record it but on experts at trial to testify about these matters about these quantities and the court ultimately came to resolution we don't think we have an analysis we should just go and do the analysis on our own problems and say the analysis of we have we don't expect that the court has some sort of accounting but the court can certainly agree that that no releasing releasing the united states from liability concerning these flood events or from the story of the casing but they argue is that the release doesn't apply because the parties continued or because the government there was some sort of conduct and tanaka internal conduct an internal deliberation prepared in the context of a potential settlement that really had no idea about it until discovery after after it you know so that brings us to the point one into it the government the  no basis for it for anyone to assume that that language which constitutes a meeting of the minds with respect to one bilateral modification between the two same parties would not constitute a meeting of minds which reflect with respect to another wasn't giving you that information doesn't that indicate ongoing negotiation of some short there but if you could ask them about it first off i say with respect to those identical those identical same release language so unless there's some information that that reading point to to show that the analysis somehow would somehow be different with respect to the letter that it would with respect to the security without that you know have clear up going back to what we had talked about follows up here for my opening statements if you look at the case law that is summarized on page thirty four to thirty five of the opinion that court federal claims opinion itself and then the argument on page twenty eight through thirty one of our opening brief i think you'll find that you know a lot more information whether or not the contractors are required to go and do any sort of side investigation with regard to the accord and satisfaction accord and satisfaction conclusion why would why not you know what's different one fact if i understand what you're saying i think that the key is that you know the court still did not go through the analysis and it would be under no no you understand what i'm negotiation so if we disagree with you on one we disagree with you on the other with regards perhaps with regard to the language in the modification yes but i think even in that case you have to take community healing into account and that farmers an