starting in the middle of forty preceding indicates that however if the government has taken any action that might be construed as a waiver of the contract of every form of state the contracting officer shall send a notice to the and the end of the board's sort of dismissed that concept altogether and ignored it in their findings so but they're pretty pretty construed to just restate the general rule about waiver by the government right not that i'm aware of that i have not found a federal holding case hold by a higher court that limits the interpretation to this regulation goes beyond the de vito requirement it's different than the defeat of requirements correct is it statutory in nature it gives the grants us a contractual right unto the contract of protecting them and it also protects the arguing that forty nine four zero two five was violated here are the i am you are but then that comes back to my question why isn't this regulation just like the one and issue in d c x it's not designed to benefit the contractor it's not that it's a benefit at that point the violation of section five goes to speak to the irregularities of the contracting officers behavior and the lack of a contemporaneous record there's no way it's prejudicial to the contractor  it's in addition to the the list of things in the in half because it is sort of memorializes the behavior is not five doesn't say this is what you will do to make your analysis is it says this is what you do to show that you even went through the analysis so that after the fact we can look and see what the contracting officer do what steps did they take who did they talk to what analysis did they make about time money proprietary the nature of the agreements and the modifications so without it we're left just guessing at what the c e o may or may not have done so that way i believe that's how it's we also believe that the board found that the government accepted shipping requests a fact that the c e o denied an error in his terminations notice what do you mean accepted shipping the service in the in the the courts finding he' excepted by the how do you how are they accepted might be entered into the government system and then the d c m may accept some begins to set up shipping dates and they start corresponding about how many there was no delivery that's correct because we had no inspections what do you mean you had ordered inspections and were regularly the timing of this is very odd at the end of february the inspector on the on that involved in the contract retired so we put some time for a new inspector to be assigned to the  case during the month of march this communications in the record that indicate that they didn't had contacted the c m a asking for a new inspections to be set up and the timing of those inspections just were never finalized but i don't the service was accepted by to see the government he should have notified all the parties involved that there is an extension or a new date of determining a new date for delivery determined and set that calendar was that calendar w set then all the parties could have proceeded in properly scheduling inspections and properly setting up a delivery date not just a proposed delivery date based on the service that was submitted  contractor it seems odd that that there would be scheduling dates set up and visits to the plant indicated that there was you know she the situation was nowhere close to production i think  the danger with that phrasing or the phrasing in some of the language that you see in the record is that these are j mics and i'm not and i'm not a technical guy but there's collapsible containers and part of the essential for some of the essential parts of the production are actually showing how they're put together so it was you know when up and things done i know who was the d c and they were out would go and say well nothing's happening well you've got hundreds of parts that have to come together and the coming together of those parts is part of the essential process and production also showing that that can happen and how that happens is also essential so but it but there were there were and approved the process could have accelerated quite quickly and i believe that there's evidence in the record that they indicate that somewhere between twenty four and twenty eight units per day once the final inspection of the procedures of assemblage was accomplished that would have been the output where where is the contract say the government has to inspect the priest's features for assembling as opposed to the product again i'm not sure if that specific thing which is in the contract itself but that's the reality of what the jamie if the regulations think pretty clear to me that there's a requirement that there be a termination memorandum in the file and there's a lot of really good reasons for that including some of what the discussion of some of the factual we heard what why is it that the government believes that contrary to what appears to be clear language in the regulation that there must be a termination memorandum that in this case or that that doesn't apply good morning right to me please the court you want to you're correct that the far this and forty nine point four zero two dash five states that want to contract is terminated for default the contracting officer shall prepare a memorandum for the contract file explaining the reasons for the action taken that is not that regulation in the fire does not specify the precise form that the memo has to take in this case there's actually no dispute but so so any document that you prepared during the course of the chain inspections or during the course leading up to performance your position is that that can be viewed as the for i'm sorry it's the terminations notice yes it accompanied the termination notice that was sent to the contractor that's correct but it explained a great detail of the reasons for the contracting officers decision and and is the government's position as found by the board and supported by numerous board decisions of the court of federal claims decision that under these circumstances that document fully satisfy the far requirement the you look at pavers had next one seventy two if they had just put the header in which is memorandum will they say you know that are on the first page says the curate notice with it because of the following think highlights the as i said the form over substance the nature of the argument because there's been absolutely no showing of a dating anyone here or there but if there had then if the contracting officer had simply taken the same document put a different title of it stabled it and put it in a different section of the file the contract file as a termination number and i'm in it said the exact same thing then under dana's reasoning it wouldn't have any basis for complaining so there's simply no proceed to challenge that if he wishes would you rather that the purpose of the regulation is the government's position is it's to benefit the government so that the government will have something in the file that it can show if there is subsequent litigation about the termination to show that you are a at the well i guess that's one of the aspects maybe to have a paper trail for the government but isn't the main reason or at least a reason so that the contractor will know the basis for the delivery by date the end of even a single one of a single completed unit of these containers now your friends seem to suggest that there were some that the government dropped the ball in certain respects at certain time frames including failure to come to do th far along de dannan had progressed up to february of two thousand and eleven but even under that scenario it was a conflict of evidence as de danaan says in his brief case twenty four the board was presented with two very different  of the board way that evidence and there's no basis for this court or what is a board so bound inspection in terms of inspection the testimony before the board know what the board say the board explanations of the waiver doctrine starting with the veto and so before you could have a finding under far section forty nine point four two three see that there's been action that might be construed as a waiver you have to look to how the court is defining a waiver as and a video with the two elements of forbearance and reliance and so if the government hasn't taken any action that could be construed as amounting to a waiver then four years might be construed as a waiver american understand of the regulations so that if the government has taken action which constitutes a way or might be construed as a way that's cursory references so it's waived any waiver argument but even if the court to address it on the merits of the short period of time between the passage of the delivery order deadlines and mid march two thousand eleven then the termination issuance in april two thousand and eleven roughly a month in the context of this case would not be sufficient to him out to two to allow the court to reach a conclusion that there been any forbearance by the government  all the way out till may two thousand and eleven was silence there was no indication or a response from the contracting officer that they should go forward and that they would be allowed to extend out the deadlines and  in addition to that there was there was a total failure approval for the board and the second prong of any waiver argument which would be the reliance by deeding and as the board found there was some minimal evidence offered by damien about a thousand dollars that was spent and some parts in about thirty two thousand dollars in payroll but there was no evidence that those expenses actually related to performing this contractor support other work so there was simply no evidence that's found by the board that could support any contracting officer so that there is a contemporaneous record that if the contractor wants to bring the matter forward for review if there's explanations not just restatements there's explanations of the steps taken by the contracting officer to make the termination memorandum and that now excuse me there's a file have a termination memorandum in it not an actual one just the one that the judge sort of created at a correct but what if in the facts of the c x the contractor did have a memorandum went through a rational explanation of their decision describe the steps they took this cutting how did that do that so that we're d c actually him again specifically with regard to the memorandum he admitted that he didn't do  and when the notice of terminations does pacifically lay out facts but it doesn't describe analysis they never made the comparison of ok will we need these units somebody new is going to get it to him and get it to us  one hundred twenty days where the inspector had already testified that they didn't you could probably have these things done in two weeks what would you have done differently had there been a criminal action memorandum that reflected what was already in the record it would have if it was an honest one it would have shown that he made no analysis if there was a document that had the title terminations in a memorandum and simply repeated all the steps that were in the termination notice what would you have done differently it would have it would have exposed the fact that none of the seven steps required by section half the d c i acts as if you can use to determine an abuse of discretion it would show that they didn't get done and in the absence the random you could make those same arguments you try to make those arguments and you didn't well that's what i think that's why i believe why we're here is because we have no record to go on so the government that that's the new part of what we have talked about is that some sort of the president says our clients in my