the pleasure of receiving a motion judge led to thirty kids chief it is my pleasure this morning to move the admission of samantha jamison and i know of her qualifications quite well she has served with distinction as my locker for the past year and a half and she has made a tremendous contribution to the work of my chambers and to the work of this court so without further ado i move the admission  samantha jamieson who is a member of the bar in good standing of the highest court of north carolina i have knowledge of her credentials and i'm satisfied that chief possesses the necessary qualifications and i think she served  fact that they are in progress tremendous work was underway and the government said the same thing it was in progress in science and in our brief keep in mind this is what's critical while much weight is put by the board on the fact that this is a design build contractor forgot that in this proposition how can two thousand june of two thousand and three be a date that you say you deserve compensation they we deserve compensation for is june july august and but keep in mind a design build contract means when you're there in july you're not starting construction for almost a year and structure did not start until summer of two thousand and four and so when things aren't progress and you see work underway and then you do exactly what  a contractor should do you ask the government a question after your july visit these questions and answers are in the record cited and are free and just before you enter your bid the government says you'll need to provide for mobilization when asked about  construction they answer only mobilization so they in fact hump out of the problem we did our visit we did what you should do we asked questions and the government said it again very selectively and then an october two thousand and three post contract  we did another visit with them they said there will be there in march two thousand and four and we made a decision then about our design precisely based on their presentation then the government represent patients weren't they posing a future it was yes to the contractors says the contractor knowledge is the contractor acknowledges that it's taken the steps to ascertain the nature and location of the work and the government assumes no responsibility for any conclusions based on those observations is in this very clear that you're assuming all responsibility absolutely not in this court's precedent instructors and the other cases we cite is that general pay and we were told again and again that whatever happened they were there would be there and it would not be our responsibility and the best evidence of what these kind that is look at the government's own budget estimate in this that the government was representing the assurances you have received from the from the local government for these things would be in place and seems to me a fair reading of all of the documentation is  government because while i might be worried about the state of things in kazakhstan who do i trust i trust the u s government because they're on the ground and been there for multiple years and told us what's going to be there and their own budget but it seems to me that there's no question that the government was going to provide the utilities at the government's expense but there seemed to me to be some serious question about whether they were going to do it based on the information made available by the government unless this court is going to write an opinion that says general disclaimers display specific representation zones will be contrary other decisions of this court cited in our brief that can't work but look at us for more on the contract right not a predicate for us having to install everything and then look down at what this contract language says m h fifteen for all right we are two up tame utilities that's not building it from the ground up that is not that that contract land and you look at all the time track mind which together engineering feasibility study the site reported and said it's very important that those utilities will be there for the construction of they'll be considerable expense and he ended the day the the responsibility we can confirm that utilities will be in place for mobilization plan on standby generator for mobilization as a site will be in the naria without any this isn't the last where the last word was always that they're coming but also back on your question nine hundred to eight hundred it's asking two things will they be there and that we have no liability and if you think that we were important enough that they'll be there and i don't think this is how we want government to be in writing contracts and making representations but ability who is going to pay that's when we were told without paul occasion without asterix again and again  and then we go there for the visit and we see they are now there and we ask them which is what you want contractors to do and what do they say when we say will it be there and make sure we have no my ability the only thing they roll back from all their statement by ross according to mr vivian and it's not particularly clear as to the timing but in the cross examination mr bean they can find it with the statement that was about two years later when he was looking into whether it was a true statement or not and so it appears that he was not aware that mr ross made that statement the time and he also testified that he did not realize that the contractor was relying on the state he was correct because they weren't relying on that statement and so there was no need to correct the state because  that time they had already changed their design to this that we are like actually like afterthought i mean if you're telling us now that they didn't have to correct this they were because it really didn't matter anyway because you do rely on them but i service that the designers can talk to each other but in that same stream of communications prior to mr ross making that statement it floor explains that they're already looking for alternate sources of steel and so what mr ross makes that statement is a statement that has no impact wood floors it is already doing what they're going to do later and so anybody including the contoured there are going to have a great impact with that they certainly are and that that is an after the fact argument because at the time when mr  bidding straight construct these fabrication process and the quality of materials he's using versus the specifications of floor provided but it came with it could be both i mean that obviously the design was a factor and the absence of available local steel is another factor and that's an argument the floor has made that there is the multiple causation theory and it is more than that it seems to me the board's finding that that  problem was due to the redesign itself only is it lack substantial evidence oh no not at all under the multiple causation theory the floor posits is based on the cal federal case in the anchor saving what it doesn't quote from those decisions is the nugget of what has to be shown first that the causation has to be definitely established and then also there has to be but for causation that is but for the change in the butt for the russian steel statement floor would have done would have done the redesign but here we know from the testimony of mr toad vine and mr manchester at the board of floor employees they said no the reason why we changed this was not just because in steel it was because of the other things the problems with the sub contractor being able to manufacture install those files to make quality control statements and so forth and so we go back and look at with the word found whether it's supported by the substantial evidence the answer is absolutely yes because the board looked at what it looked at particularly with the timeline of things and pile design change and the board looked at that and said yes that's the evidence that tells us that in fact the real reason in this huge mr toad like saying it but that's the real reason why for change the design for reason why is that all clear in this so i get the impression and i have been so many of these cases that it's a game you try to tell them as little as you can and they try to acquire more information there just and forthright exchange of everything you know or may know it was but that's their legal implications i understand that's the answer you know you want to they're not going to give me that answer but th on your own the government said specifically where the liability falls it's in the age of fifteen point one it says kemper really chilling shall be built with labor materials furnished by the contractor the cost of which is included in the contract price it is for temporarily chillies floor will pay for and build those utilities and it says what kind of utilities they can use in that section see it says it shall not rely on anything other than stand by generators that is if they wanted to use the lease that were coming in from the cars like government it would have to get a contract change the contract said you're going to stand by generators and we know that's what floor actually planned to do it they didn't rely on any of the statements you can look at their pre designed or their pre everything else up to the construction site but after a while it's not there from i mean they have to use temporary power i mean they had no choice respectfully that's not what we told them that's not what the government told floor they  that they could not rely on the offsite utilities for temporary power they said in section c and he said the dot design will contractor shall rely solely on standby generators for construction power that is what floor bid on was to tempera used onsite generators for temporary power and that's what they did that's what they relied on and we knew that because of the power and the bill is well where it's most clearly stated in the power point immediately after they submitted their proposal and so what we told them what we put in the contract is that you shall rely on standby generators so it didn't matter when those utilities really come in as long as they came in before permanent power was needed that's not an issue in this country they were from the power was available for stage completion is not part of the plan anything else in the new sense then when the question was asked will you have a permit utilities in time for temporary use there was no need to answer that question because you couldn't use permit and that was in section three of the contract what the but we did change section to see to reflect the contractor should not depend on the utilities being present that's a little different me answer you gave it whoops he said directly the contract documents should inaccurate and they weren't inaccurate because these are the one that says it's kind of after the fact that we find this section see that we might have a way out but we should have amended the contract that's not the answer you get will we he should have but he also said certainly the truth to make the contract between is the complete having representations you knew that the utilities will be arriving at the site in june of two thousand and three now that the commitment met were necessary to be in there but in terms of getting to the cause of action they were misrepresentations and you could rely on them so all the contracting officer might think the cleanest way to put these documents together would be to take that out what he said was if you read the contract as one document then it's accurate and that's what he's pointed section c which says the contractor couldn't rely on rely on the expert testimony of the end cecil w s a's own report including the then new five which you produced during the course of the project and the testimony of or that the e mail from herb wesley to march thirtieth two thousand and five this is an internal e mail from her west to his floors design manager and what herb west said with respect to whether the wall meant the i p c requirements postie is very clear and he ended up speaking to his own people it does not comply with the minimum were correct and supported by substantial evidence if i could  think one last point on the wall there's a button issue the floor is raised in this latest briefing that somehow the government may have waived its the design defect through the design review process we cited kenneth re region struction that the actions of the government inspecting the performance of the contract are not a waiver of the contract or arms to comply with the contract and we would submit that that's exactly the tenor and the words in the design process there's nothing in that process of the klavern design which there certainly is clarity sign a process in which the government said we waive our right to force the contract just because you've moved on from the thirty five percent design to the sixty percent design to the ninety percent design that's just simply not there the for the only been thank you just three quick points with respect to not only did they say they should have changed the contract with respect to utilities why didn't the gotcha game that's going on look at ten eighty nine to ninety s timony and ten twenty nine the purchasing contract in oxford testimony we did it we knew they would rely on this and it would get lower bids and they'd be lucky and that's exactly the gamesmanship that you referenced judge rader with respect to the piles and piles nation look at the state department's own admission its own hose project report page six forty one of the appendix where they say that the pilot there are russian directors what caused the change and it impeded the progress of the work of the ninety six set in motion it's stored marymount of problems including ones that cited said you couldn't get the stuff the local folks to provide what you needed why couldn't we because they all used russian steel it's all tied together the cord needed to driver was there within a week of having the piles we weren't having any trouble finding anybody and the reason they were there it went to eat within a week look at our engineering feasibility our i'm sorry our geotechnical engineer stuff which then i think it's five or five but i think the