the going forward work at that time everybody knew it's possible these cost might materialize maybe they've done so without you know but that doesn't that doesn't change anything in terms of from the transportation special saying something like this takes into account the cost of the vehicles now first put that in context one huge previously sent a a draft of the change or that was incorrect that didn't take please the court remember if i was an unambiguous bilateral contract modification it means what it says the changes clause in this fixed price contract provides no basis for adjustment to recover the additional compensation that they seek to that let's begin by looking at the actual claim let me ask you why wasn't the dissent correct in that at minimum this isn't something that can be established on summary judgment when you're talking about the that whether there was a meeting of the mind claim but there's no right to a claim in the first place and under this contract there's no right for them to recover the cost that they're seeking here because the changes clause that this modification cites to does not provide that consistently held that silence is not enough to create an ambiguity in the mccabe case the contract was silent about a high priest fiction that was a case where the parties agreed that the army corps of engineers could deposit waste on an for minor changes you have the ability to attempt to make claims or request a judgment adjustment but here we have a major change and they can't do anything about it your honor it's not leaving them that's not right to say they can't do anything about it it's a fully negotiated by a lateral modification so they have two options they can turn down the change they can say we're not willing to sign this bilateral modification that puts the ball back on the postal services side in the postal service has two options they can either not make the change or they can terminate but as a practical matter you're putting them in a very difficult posture because if they don't agree to go along with you then they have they are putting at risk their ability to possibly get the alternative route and they're putting at r contract and we had asked if this was an emergency contract and aren't perfect i mean they had an emerging contract but that was terminated and then it was wrapped into this contract that was signed in two thousand and seven and so the parties at that time agreed that they would have a terminations for notice that determination with notice clause applied so i did party has the right without cost is what that clause says without cost to terminate part or all of this contract with sixty days notice so they'd read in two thousand and seven that that was how this would work and the reason that the parties agreed to this is so that they could have a general contract that they had didn't have to constantly renegotiate where they could add and subtract routes and all they did in and that's exactly it's essential if they are doing here hey this was a big change well that's exactly what the contract said i mean that was there was no limit in the contract for the size of the the change that could be made all it said was that routes would be added or subtracted in this manner and the parties agreed to that in two thousand and seven when the government did exactly what it agreed to do when it made a smart case in the same way that it made modifications four times prior and then afterwards when it made two more my patience was in contract mr handel cited a number of cases for the proposition that he didn't have to include a reserve clause or anything like that to reserve the rights what do you think of those cases first of all they're not controlling here the cases that you cite into our service trucking services and they're not basing the contractors and come back for cost later a lot of the cases that are cited in the briefs are construction cases and the reason we made the decision that we did between chantilly and the other woman in mind right now the other board case was that those are construction cases where the government can make a change to the contract and say now we have more money we're going to add a fourth floor of this building that you're currently building the contractor has no choice but to continue with that construction contract and those cases have an actual right that they have and express right for the contractor that then come back and say this is how much more cost me to do that and so this is not that type of case when you say a lot of them are you saying all of them are you saying i mean how do you distinguish the beetle case the beetle case first of all the beetle cases completely different from what we have here is nothing like this case the appellant sought payment for services that had already ordered and perform and the parties didn't realize for two and a half years that he that this guy had been doing honey many more miles and he thought that he was supposed to do as he had been doing more miles than he had agreed to in the contract say so we're going to pay him out on equitable grounds the board said that that the contract didn't contemplate well as a mean actually the boyfriend of the government had breached the contract in that case there's no breach in this case there's no the government has never breached any of the promises that it made in two thousand and seven when the parties agreed that this is that they were going to change the contract by adding and subtracting routes and i don't know him or be ok so it's not controlling because it's i mean it's a board ca that actually is totally distinguishable that contract was breached and then as far as you know when we just make these general i mean opposing counsel made some kind of general comments that normally in these types of cases the contractors able to come back that's it's imprecise that the cases where that happens it's because there's an express right to do that in the contract that's being referenced i think in the briefing there were some suggestion that this language in this its own contracting system there's a website it has all the clauses that referenced in the contract as you look through the contract that we submitted i mean there are so many points where it cites to specific contract clauses normally  a far contract those clauses are all in section fifty two of the federal acquisition regulation you can go to that and look at it that's not what we're talking about here it's a different kind of contract and so the rules that apply to the different kind of contract from all others that the postal service has used or is a different kind of contract than normal government contracts i'm not sure i understand what your point the only distinction i make in your honor is that the main distinction that they need to be made here is that the changes clause and this contract does not provide a mechanism for the plaintiff to come back after it negotiates a bilateral amendment and ask for additional money that that's not a right that provided in the contract that they agreed to in two thousand and seven so they're trying to find rights that aren't in there and so that's the only reason i'm and they're doing that by referring to cases that relied on different contract clause has the government done a partial terminations i mean this seems like more than just a change here actually terminating an entire portion of the route had a it's just a matter of language if we call this a partial terminations they would have the right to compensation granted we get is a matter of language and you have to be very careful about what language you're using this is not a terminations they did not terminate this contract they removed iraq but isn't it a partial terminator it's not your honor they did not remove they it says that this contract is being this route is being a limited per pursuant to the changes class at the when you're out of it with the then you have to go to the terminations causes you the terminations class provides the determination clause provides that if they couldn't agree and they decided to terminate that particular route or the entire contractors they didn't do they would have got sixty days payment they would if they were got sixty days notice they would have continued to perform or not it's up to the party to decide but that germination clause kicks in a defines their rights and they have limited rights but those are the rights that they agreed to when they signed a contract in two thousand so that's what the parties set up when they when they built this contract and signed it it's one thing that just one point sounds in response to the argument about the new rate per mile somehow providing them compensating them for the change they point out that they were paid on the annual contract basis so what's your position on that do you think that there was any intention all evidence did not affect the outcome of the case at all the contract was not ambiguous the court was careful to say that it said it strands of evidence had no bearing on how can although we need not consider the extrinsic evidence to interpret this unambiguous agreement we know that much of it is consistent with the agreement plain meaning so all they did was note that the evidence was consistent and so the majority did the exact same thing in the majority opinion simply pointing out that if we did even if we over the course of a year or so and you just made what about their argument that that's just a formal calculation or that's just a calculation that would have occurred even without the change first of all your honor that that relies on extrinsic evidence which is just not required your business and i need to do is contract but i mean if you're going to look at extrinsic evidence there was evidence before the board that that that's not the postal service position at the contracting officer  consider this to be an increase in rate and he considered it to be related to the fact that they were losing a large route but again that's not relevant to the outcome of this case and i'm not exactly sure you know how they but they believe that to be true to begin with but but again i mean i'm playing bass in the plain language of the four corners as document you're looking at a significant increase in the consider in the amount that they're being paid understand or to make it under reasonable for him not to understand that the performances are offered in full satisfaction in this case based on the contract of the base contract that this man was based on it's completely unreasonable for just a minute think that they can come back later and get additional costs as a fixed price contract and they agreed to this change the contract provides no mechanism for the types that type of extra money that they're now coming e might explain why the government thinks that what it does about this case you know this very short change order is only ambiguous if you would target it to be and a needs to be done all parties are willing to do it but for whatever reason they can't agree as to what the prey should be and and in that situation if that comes up which comes up all the time and in that situation here are your options