morning they please the court believed western was terminated for fall for failure to make progress in the be a hospital relation project in two thousand and fourteen therefore this is a lisbon case lisbon should be applied to the v a s determination expected to its merits under lisbon the government must have a correct understanding of the remaining work and the time remaining to perform and complete that work it's a heavy ice contention that the contracting officer utilized an incorrect completion date of july thirtieth two thousand and fourteen to make it to the poll termination you're for the government failed sense might spur the proof under lisbon eight or beyond so what the board said was that your client didn't make a proper go west or autonomy extension we focused our appeal around a contractual basis for a time extension that we believe is justified as a result of the combination of a unilateral change order number four and what is the swiss station  excess of the one hundred twenty nine days i don't know if it was couched in terms of a contractual right in conjunction with the unilateral change order was issued by the government granted a don't have them the page references to those at hand your honor the the point of or the primary point of the appeal was to suggest that unilateral change or number four which extended the contract which extended base jumper to one hundred twenty nine days to march twelfth two thousand and fourteen as a matter of right as a as a matter of contract right should have resulted a corresponding extension to the contract completion that in our argument is that the only way that the phase three the contractually mandated and specified phase three duration could be maintained was by an extension of the contract and this is best illustrated by reference to appendix three two two one which  to the start of phase three and so on by contract the phases were set up in essence on a critical path basis and so when the government extended phase to one hundred twenty nine days eighteen point four weeks and if it failed then to extend the contract it what it did it swallowed the entire eighteen weeks fall but if it's a matter of contract right it didn't need to be necessarily presented to the contracting officer before fall in fact it's our position that contracting officer should have recognize a contractual completion date of july the thirtieth was unreasonable under the circumstances because it allowed the contractor one day to complete phase three after the com extension of phase two and so on its face it was and reasonable then to judge a w r eyes progress under the lisbon standard based on this truncated completion date of july the thirtieth so the government's position claims that under a totality of the circumstances that even if they incorrectly utilize the july thirtieth two thousand and fourteen douglas standard in two thousand and three which reaffirmed lisbon because the government is still required to evaluate a failure to make progress terminations part of all against the correct time remaining for performance in these other factors that the government raised in its brief such as the subcontractor problem that it encountered the the performance of phase two that it was behind in phase two these are factors to be considered in making the lisbet determination and legal effect of unilateral change or number four on the completion day if it if the government can issue unilateral change over member for for one hundred forty nine days extending the completion date of phase two and yet not extend or not maintain the eighteen week stipulated time period for phase three in the government in this case is being allowed to eliminate eighteen weeks from the schedule and terminate aid for default on a shorter unilaterally truncated schedule in other words the government by virtue of unilateral change or number for granted eighteen weeks to complete face to and then took it out of phase three literally that was the effect  change or number four without a corresponding prime extension and in fact i'm not sure that time extension is the right term to use a w i simply convinced that by contract they were allowed to maintain the phase durations for phase three which was eighteen weeks and phase four which was four weeks a total of twenty two weeks in what the so we believe that that was on its face and reasonable for the contracting office officer to have done that so it it really from a b m perspective it's not necessarily may have understood that the date was not extended they nonetheless had a legal right to the additional days you're that is certainly correct me that there's various pieces of correspondence here in the record that indicate that age of you i understood that even the extension of the period of time for faces one and two did not extend the ultimate time for completion right coming from eight  thirteen will predate change for i mean that i understand that and so that at that point in december the parties were still hoping to maintain a july thirty completion da extension of but not mine but phase one and phase two did not affect the final completion that is that is correct in part however the correspondence in december did not result in any formal modification to the schedule or to the parties contract the group with the problem as i don't see where he asked for a one hundred twenty nine days on some theory that there was an automatic contract extend i don't even see where you actually asked for and what i'm extension at all and you said well i don't tell you where it is in the record but if you can't show it to me i have to assume it's there well your make a time extension of the board well this was a this was a challenge to termination for all and certainly a w i still had the ability but you c the expense and if you didn't ask for one right from the burden from the shipping burden of proof on under lisbon a w i still had the opportunity to demonstrate that any delays were excused regardless of whether or not it had presented a formal time extension request prior to the perman ation and and so but again it's a different species of prime extension it's not really a time extension request it is the belief that under the contract i've made i was in power through the eighteen we stipulated  right or principle that says under the contract we had a right to those eighteen weeks and we have a right to the four legal authority you can point us to that stands for that proposition that when one portion entitled to fourteen weeks to to perform phase one two weeks to form phase to the government was entitled to two weeks of move in and move out after phase two in the contract said  to eighteen weeks to complete phase three in the contract says the government is entitle to two weeks move in move out between face three and face four and in this case when the government issued change order number four without recognizing that they unilaterally deleted eighteen weeks of phase three affectively and then terminated a to adequately assure the contracting officer that they could diligently and timely complete the work the board summarized its conclusion and its o reconsideration and its stated there that a w i was approximately three weeks behind schedule for phase two with fifty percent of the work completed for face two and had fallen behind on both  one and two and that a w i had created uncertainties with regard to its mechanical sub contractor problem is that or consider the completion date to be the original the decision only makes sense if you are dealing with the original completion date we are dealing with the original completion date but we're dealing question the question the whole argument here is whether they were automatically depends does it not on how long the contractor had left to do the work if the contractor had three years to do the work assurances might have been adequate but if they had three weeks they wouldn't have the completion date isn't that a critical part of determining whether the assurances were adequate or not yes it is a critical part but also it all turns does it not on this completion issue because as i charge for me to see how we could say well the plaintiffs may well be right about the completion date but nonetheless they were not adequate assurances of completion where the board was making a determination  with the original completion date in mind that's my problem and i think that's just i'm just repeating just x question i understand the court's concern the contracting officer explained that he had zero the point i'm trying to make clear is that there was no point forward no path forward there was no mechanical subcontractor lined up there was no roofing contractor for the work and in phase three that had been hired and therefore there was no path for your argument is that the project was a call it was just sitting there no one was doing any work didn't look like there was any progress now or any idea going forward interpretation what our argument this is like the court must look to the entire contract and the the phases that were in amendment six to the solicitation are indeed the  for the work that were in the original contract schedule that was approved by the government but what the other provisions of the contract provide is that if the contract if the contract or false spe contractor falls behind in phase one and it is the cause of the delay in face one then the contractor has to make up time and the contractor a w i understood this because as the court pointed out in or non rational correct and the problem was that during our year i find your argument a little little troubling since you don't seem to be defending what the board said which as i understand it with respect to the hundred twenty nine day extension is that they never asked for it in accordance with contract arms you agree with that yes yes that is indeed part of her argument because there's another provision of the contract that deals with the extension of the contract completion date and that's quoted in our brief pages thirty thirty three to thirty four we put that provision and what the board found is number one that wasn't able or a request that includ information demonstrating that there was a delay to the critical path and that the government was responsible for delays on the critical path and therefore a w i never demonstrated any entitlement to an extension of the contract completion date therefore the contract completion date remained as it was in the contract it was july twenty eighth two thousand and fourteen the ever make the request for the hundred  nov twenty second two thousand and fourteen and that this is one hundred thirty six days beyond the date i think that's perhaps what the the court was referring to and what opposing counsel was referring to it's not a formal i think the way to answer that is that there wasn't a request for an extension of phase two and the contracting officer rejected that request for an extension of  but again there's a finding by the board that there was never a presentation of a updated schedule and changes to the updated schedule and a showing that a delay on the critical path caused by fifteen which states that the contractor when he falls behind has to make up time and it mentions specifically working additional shifts working overtime working  other days which are not work days always to increase the manpower on the job and make up for the delay well if that would apply if there were no changes right but if there are changes then the contractor has a right to say all these changes of obviously caused me to do have to do more work and therefore the original completion date becomes impossible of achievement so that's the situation in which a contractor can but generally go into it wouldn't it wouldn't be able to say well it worked double shifts i agree but what i would point the court to that specific article that deals with the extension of the completion date that specific article says that you have to show delay caused by the government to the critical path so we're back to the critical path yes we're back to the critical path and in fact that specific article references the changes clause which you're on to brought up and it entitled to an extension of the contract completion date there was no such demonstration during the progress of this contract there was also no such demonstration in the hearing before the board and the board found that a w i had never made a properly justified request for an extension of the contract completion date therefore it remained july credited the testimony of the contracting officer where the contracting officer explained that there was no path forward he had no confidence in the progress of the job i would point the court to the testimony of pages one twenty one one twenty two one thirteen one twenty seven one thirty six where the contract miller says from his perspective is such a weight doesn't matter whether it's december two thousand and fourteen or july two thousand and fourteen because there is no path forward and the way the december two thousand and fourteen date came up is it was a date used by the expert at the hearing effect of justify due to owner changes design problems different site conditions that's what brought us all the way to make twelfth two thousand and fourteen for purposes of phase the doing right that that is correct or there was nothing that prevented it of ya from doing that nevertheless the fact remains that the government's unilateral change order number fo without a recognition of the stipulated eighteen weeks for phase three and eighteen weeks for phase four sensually remove those unilaterally from the contract as well and that's where we believe that the