this case is about a set of circumstances that arose out of a problem between the united states army corps of engineers and a set of privatized utility providers at fort bliss and i'll pas the set of circumstances that arose out of this relationship has been variously and i think very fairly characterized by the government as an irreconcilable conflict an underage boy gap a dilemma and of course essentially the privatized asian at least us sensibly transferred ownership rights from the army to the privatized utility providers in the actual physical infrastructure on the project the pipes the conduits the gas lines etc now that's done by contract between the army and a privatized utility fires following that privatized engine which took place in two thousand and three in two thousand and four the army separately embarks on a massive construction expansion at fort bliss and when i say massive we're talking about four plus billion dollars tripling the size of the base from nine thousand to thirty thousand people so let's go back to slow that when you say it  i understand that that means that the u s government has no interest in the utilities anywhere everything i've been transferred over to the private parties that's correct your honor with the exception that that the the period of transfer lasts for fifty years and it's subject to renewal it's also subject to modification so if the army the department of the army wants to take those systems back ultimately has a right to do so for the time being it has not done so and so for the for the period that we're talking about the ownership of those systems rested with the privacy gelati providers and the fact that it was privately owned it was made entirely known to her clients before they bid on this project correct your honor the all it certainly does are on a test they are privately owned to to a contractor who is awarded work by the government by the army the term owned in terms of a third party  would i would compare the utility privatized vision to your home or my home i figure mint hired a contractor to tear down my house and rebuild it to the government's specifications the government would have the obligation to secure the right to do that prior to the camp three and four contract award the rights of the utility providers as compared to the right of government contractors who have been awarded work was the subject of voluminous discussions over a period of years from two thousand and six through two thousand and ten and leading up until the moment of the camp three and four task order award universally during every single conversation every analysis every memorandum and every e mail government internally and including in conversations with counsel and memoranda from counsel determined over and over again that the only five alternatives to solving this problem that they had and again the problem being the right having been transferred and the in the army not having incorporated coordination with those utility providers into its design for the expansion program the only viable alternative for solving that dilemma was that the may talk contractors perform work and coordination that term is used over and over again in those conversations and the meaning of cordon ation throughout that entire time tree and leading up to the award of camp three and four was that the may talk contractor would install the new prime rate delivery system and make the final collections there it's regardless of what has been understood before here's a special notice that seems to me to be telling you how this is going to work understood your honor and again respectfully we disagree with what that notice means and the fact that it indeed does say typically it does not say it must be performed it does not say that the contractor must time all the time they need do the work i understand the question around and once again i think that's a special notice when read and context with the entire contract and as we've cited in our national brief there are many many provisions of the contract that specifically differentiate work that the contractor would perform from work that utility provided were so you're reading this special notice as saying what to say you don't have to be bothered by the fact that these utility systems are privately owned they can do whatever you want notwithstanding the existing grangemouth is that how you read special now that's certainly not your honor and tug hill does not argue that there was no responsibility to coordinate but as we set forth in the brief coordination in this case as it meant for every single discussion that the army ever had about this issue was to work with the utility providers to connect new construction to the old construction perhaps of the utility providers conduct inspections work with them in the field as necessary to get those inspections done but never at any point up through the award of the contract had had those terms  used to require a may talk contractor to secure the right to perform work that the government had already asked to perform the year telecines arguments today  means it was in play once and may talk was executed all of the events leading understand that if you did make or a glitch with respect to the may talk then we can't entertain those arguments today i certainly understand that judge and a  raised their attention they took a look very specifically at that provision their privately owned what does that mean in the context of the contract award that we've already been given where across a thousand pages  specifications very specifically delineates what work we do vs what the utility providers would do and it means exactly that they're privately owned we have to consider it for purposes of coordination for their work not for whatever arrangements the government may have made to secure the right to perform this contract that's the government's obligation the government designed this expansion program and throughout the course of the period of years in creating this program it's the government's i think that that especially those in the case that we will be responsible for coordinating in the context of the entire contract in other words the work is ours and we've got to make sure that it complies with their standards we've got to make sure that they shade whatever discussions need to happen between tokyo and that utility provider in the field to make that work happen and turn it on at the end of the day that's coordinating negotiating and finalising that utility systems work but is twofold first with respect to constructive change once again talking about does not read that notice to require the arrangements that ultimately were forced upon tug hill the facts very clearly proved that after the award tohil didn't have any option no self performance no deals with the u p to have a combination of inspections and review it was you some contract work to us at whatever price we dictate it could be twenty million dollars it could be fifty million dollars it's our work and that circumstance is a clear departure from the coordination requirement that had long been understood by the government again the only viable alternative that the government had ever come up with to solve this problem was for the may talk to perform the work talking on this case and to address the problem with utility providers internally to government chance that did not happen  here also with respect to constructive change we feel that the findings of fact were arbitrary capricious not supported by the substantial weight of the evidence eight days of trial six hundred twenty five exhibits sixteen witnesses and the board found numerous events including the pre construction meeting where the chili providers effectively claimed the work and told toggle that's what work you can do it up to that point tug hill had still been planning on using its own forces and unless you can get these guys to give something not your stunk and you better include that mccall what what's going on here is that the essence of i think i think that is absolutely the essence of it your honor i would say there is a there is an interplay i think that is important instead of just looking at the five senses alone there's another play of the senses and in particular i think the middle sentence is the typical requirement in other words what the what the government is doing here is putting out a sort of basic scenario of what the government thinks would happen and then it uses the phrase however tying back to that typically sentence to allow the contractors the bitters to make their own private arrangements and then the final sentence puts the contractor on notice that they need to include the cost of those poor nation arrangements those negotiation arrangements those finalization cost information that it has without speculating on possible relationships that the bidders could enter into with the with the utility so i think that's right i would not use the term up for grabs but i would say it permits a broad spectrum of potential arrangements but it allows that could the bidders to include those costs in there that isn't there evidence in the record that  government did actually know more though that it disclosed in the special that it didn't know that the europeans were probably not going to allow the self performance by whoever it on this contract i think the key to that is is the word probably that they used in the question your honor i think there is evidence in the record and there is evidence that tom hill was also on notice that the sort of basic position that these utility providers were going to have was that they were going to do all the work but i think it would be speculation on the part of the government i don't know how to have made this special notice more clear without entering into the world of speculation if we had a offense that says the utility providers may claim their rights i actually think that's pretty much covered by the typically sentence where it sets forth hope of some government could have done that but i think then that sort of changes the government's approach to this in that and the part that is kind of i buy that however sense what the government was allowing the bidders to do was to enter into their own done or this is only way it can be done well i would say your honor that i wouldn't say it's hiding the ball what i would say is this is really the extent of what the government knew without getting into a sort of contemplating further actions  and in addition circularly if you're if if you issue the special notice with this limited knowledge it you're talking about or it can only inform so far even in some limited basis then why are you holding me the guilt to understand something that you do not want to explain or they you do not understand or that you cannot explain well no i wouldn't say that that i would i would disagree with that characterization are but i would i would say that it's not that we couldn't explain it it's that first of all we think the special notice very clearly explained that it the first sentence talks about the private ownership and the second sentence specifically says this scope of work includes those negotiations to say it's possible that the utility providers or we give it some amount of level of certainty that the utility providers will assert these rights i think not only goes too far but it just doesn't convey to accurately what the government's position was and i saw what was a goalless position i mean even knew that you argue in part that tokyo should have known that there that they were going to have to deal directly with utilities and another part of your you were not sure what tokyo should have done or or would have played out i don't think it's that i think it is it's the government's position is that tony hill had the freedom to negotiate some deal other than what we would have considered at the time thought typical deal no they didn't have the freedom to opportunity to galatz to hell that was well i think it's i wouldn't go for speculation this case but then i would assume that if there was some sort of impossible impasse there may have been some kind of a you know they would have some sort of claim but there wasn't in this case and it didn't come to you all and you said your only option or sole remedy i think is they go she ate what you eat and just got up government washed its hands of it that's correct are we said are the only option was to continue to negotiate with the peace but that also because that is within exactly why didn't you say that in the notice your only option is to negotiate with the u p c who will do all of the work i would say your honor that i think that very much what the special notice does it doesn't use those specific language but it sa this going to work includes coordinating projects utility work fireman's with the owners of the privatized utility systems and i think that puts them on more than enough notice that those were the people to whom they had to and it's not in our pleadings but in the pleadings below it notes that there were three bitters i believe that either all three or two of them were within range of the s government's estimate so they were acceptable and out of that no none of the three bids included any costs for coordination so we didn't know and then further i think the government would say there's some element of allowing for risk in this top kill as well as a bitter is free to bid to this that whatever value th knowing that this is a fixed price fixed delivery plant contract and that they assume the risk for any cost of war that's what raises questions because you assume that  another note that there's some discussion about sole source and the issue of private utilities and around that language is not only special notice that that points out that this is a contractual arrangement whereby the bitter must respect existing property rights before includes a provision about that and that provision was actually part of this contract it's the firm it's in responsibilities clause so far fifty two point two three six dash seven so the the idea that this is some sort of particularly unusual arrangement whereby a bit or a contractor has to deal with other people's private property i think the court point out correctly do that sometimes we do construction on your own house but is also true that that's not a particularly unusual arrangement in the term of government contracts as for the nothing in any brief one till here until before this court did anything but refer to the contract the way they defined it as the b three four contract  ca b three four contract the later contract and so i we would argue that the they do not have a valid case before this court because they brought it up at no previous stage duty that to kill point two that would have included any more disclosure than what was disclosed in the plain language of the special notice is true i think what mr duggal points out is that the corps of engineers thought about how to handle this arrangement and they contemplated alternate possibilities there were previous c a b g contracts and those contain different arrangements with how to deal with the utility whatever it is we're offering it to you rather than a little boy about it and i would argue the point we point out when we dispute the sort of language that you know used was that it was a challenge it was the kind of contractual arrangements that happen was the things that happen in government contracting all the time to deal with issues like this or issues that are just as difficult as this and it's almost a the idea that the government would have to disclose alternate arrangements that it contemplated in making the contract particularly here where the action is very clear and places responsibility squarely on the contractors and it goes far beyond any kind of duty of good faith and fair dealing particularly that that would have accrued under the may talk because may talk is simply about selection of the appropriate contractor there's nothing in the may talk that would a duty of good faith to reveal items about utility providers utility providers are specifically an item that's language requirement for the work found that the special notice was clear but the items that mr dugdale talks about are a meeting wherein the utility providers asserted their rights well that there's no need to have findings of fact on that because those rights are exactly what's contemplated by the special matters so we would be our position that the board did not care not including the facts and they clearly found enough facts to support their hold and for those reasons your honor previous version of the special notice prepared by the army's contract of the army's project manager rather and that version of the special notice was very explicit and mandated that the winning better but subcontract work nonetheless the project manager mr wallace testified in his deposition which is part of the record repeatedly that that special notice that was actually issued was a crystal clear sole source requirement likewise a contracting officer issued her decision in part on the basis that special notice was a sole source requirement now that's according to tokyo's position quite different than what it actually meant but that's how it was enforced during the project a sole source requirement now and that the board the government has essentially crafted a new meaning for the special notice that it was not actually a sole source requirement but it was something some form of hybrid some form of negotiation where maybe you can do it maybe we can do it but it's not in a legal sole source and from toggles perspective that's that's the key to this change argument the special notice did not require use of the u p but in practice it was in force as a as a sole source  so so if we were to finally a favor basically you're looking for that's correct your honor essentially talking all came out of pocket to pay the utility providers to perform the utility system scope of work and they accomplished that work and and in fact performed quite well on the project there's no issues there it just cost