is page eighty one and then section appendix a which starts on page two seventy one and goes to three of five next which is also with you if you build an oval by the court i'd like to address well our briefs address several issues of mistake of law major errors of law i would like to address two issues the board's interpretation of the contract which failed to give meaning to the contract as a whole and the board improperly utilized e  mean there is put aside whether a contract could be viewed in davison face to be ambiguous on face where the parties enter into a contract with both understanding the  other interpretation of the terms or a provision and they both know what that interpretation is both sides and they enter in agreeing to that interpretation isn't that the end of the increase that is a of those multiple admissions your honor were one was a navy version of a conference call which does refer which was an internal memo which was not reflected in sin by on its version of that conference call and moreover was disputed during all the deposition testimony by the in that conference call the other issue a navy person who attended a site visit three weeks before the solicitation was issued said that he in fact equally he gave a deposition testimony and the declaration stated that the navy person did not make that statement that the navy person only said that access would deposition testimony because in the board's opinion symbiotic stood not need to be at the trade or doing any removal equipment and that is surveys and a great deal of work on site and that was in the statement to work and also sent via onyx proposal indicated that it was planning to be on site doing removal and contract required primarily for a navy trainers it was replacement of the p l c the control systems and that work was going to be done by sim by on ix the one trainer great l been out of service for a number of years required additional facilities type work replacement of the piping and burners and other work mechanical work in addition to the control system and that non p l c work was going to be done by symbiote onyx sub contractor in fact one absolutely critical and non disputed fact that was totally ignored by the board was that before one there was nothing in writing anywhere both before the solicitation before the proposals october before that came up a think right the first of october and then there was a presentation on the twentieth and twenty first at the program at the performance post to the proposals in july of twenty fifteen and all four ask a question about action to do to a truck access to the facility to that by the navy stated that there was only restricted access truck access to one door that was that answer which was given to all four sets of thirty thirty six thirty three and we discussed this extensively in our reply brief or twenty two twenty three is the navy navy's telling all the all fours that there is only one restriction and that's to one loading dock if if the navy had actually had this interpretation that there was a total restriction for this storm to half month period surely that would have been contained in that answer rather than simply saying there's a restriction to one loading the navy had reasonable grounds to believe that somebody on ice could not complete this contract on time and they properly issued a p r notice symbiotic made repeated statements that they could not complete this contract without access to the to the s s the trainers during the interim period excuse for not being able to comply with the schedule not be able to complete the contract on time is that we had grounds to believe they could not complete in context with our interpretation ask them for article sure and says they did not give them instead they raise an excuse it would actually defeat their claim for an entirely different reason in the sense that it would show that they did not have the interpretation of contract at the time the same interpretation the contract time if it as your counsel opposing health limited is that they interpret the contract as meaning no access at the time th preferential against the government which is what's in by on it is trying to do they have to show that they have the interpretation that they're seeking to enforce the time they made their bed and they're saying at the time they made their bid they soon there was no access they want that say no he said there's a material issue fact that works well with all due respect she actually said that at the time and their own admissions established that at the time they knew there was no access they said he's saying that they thought there were there was only no access for certain purposes or just no access to certain parts but not a complete no access for the purposes of their so contrary well that their own statements establish that they actually knew that there was no access based on their own  is clear of this federal circuit this is of course president that if an opposing contractor knew of an ambiguity and knew that the government was unaware of this potential alternative interpretation and felt that they did and failed to acquire unfair the put the government on notice then they cannot s to enforce that an alternative interpretation so even assuming they would which we would not concede is actually true that there is no access they certainly should have had knowledge of the government's alternative interpretation and they cannot choose not to enquire not to put the government on notice knowing that the government is fully unaware of this alternative interpretation what is your response to the government's response to the contractor question page thirty six thirty three of the appendix the government clearly the navy fairly answer the question  the question was really purely dealing with access restrictions the south loading dock and they answer the question with regard to the south loading dock they had as as i just indicated the government had the navy had no notice of any other ambiguity no notice of any other issue to think that there was any reason to go beyond it they answer the question and address the question which specifically asked for access restrictions to this one area and they answered that question and white with me and i guess it's a fair argument that the other side can say we were talking about had any question with regard to access restriction or want to clarify anything after that fact they certainly could have done it so my onyx had the opportunity to clarify access restrictions just like this other offer or they actually had two opportunities because there are two sets of questions and answers after the first site visit there are questions and answers after that first gustafson e mail where he said we have six weeks and we have to be out after knowing that there were hard milestones after knowing that there was another contractor to coordinate around they chose not to ask that question and then they chose not to bed  who is aware of the fact that there is a potential issue in a contract is it's incumbent upon them and if they're aware that the government is unaware of this potential turn of interpretation has to require that they have to they have the duty of anchor in the failure to do so is it your position that the con ambiguous or is it your position that the purse on a position is that the contract is ambiguous in the sense that it certainly leaves a gap in the sense that it certainly does not on its face define what happens in that interim period it certainly does not leave that to talk about a inflation period and removal period and leave this third period in between it certainly does not say made some conclusions and did is we have conceded you certainly did waste some facts and we would certainly say once you start looking at pictures of evidence to interpret this contract which is which is not what we're trying to do here you can certainly get to the point where been put on notice that that that the navy has a different view and then they have to comply you know if they did if they if you know somebody on x knew that the navy had a different view which which councils actually admitted that they did in their own emails to undisputed facts it meant that they knew that this contract originally imposed access restrictions and according to their own of the executive vice president they just assume the government changed its mind they knew that this contract had access fact based on true statements and what he ignores is all the other statements establishing yes those two statements might create issues of fact but they're not material because there are other statements in the record established it's and i honestly have that knowledge yes as we can see in their brief there was this issue of whether it was said specifically in industry day in the census and why on its own personnel did contradict the navy's declaration that that was said but what is not contradicted don't know why e s p is assuming access because the face of the contract says it's either ambiguous and you have to inquire or there is no access likewise the contract language makes it clear that so my onyx own interpretation begs questions that should have been in is slightly inconsistent with the contract in the sense that the contract specifically talks about other instances of coronation but doesn't mention in the instances of coordination like was the extent that they wanted to coordinate in a sense they would have needed an associate contractor y an associate contractor calls wasn't specifically incorporated into that contract so seeing these other instances in the solicitation should have raised these red flags to symbiosis that we need to inquire we need to figure out whether or not our interpretation is shared by the government  likewise had they even assumed so had even taken the time to share their own statements in their own knowledge which is under spirit they certainly had knowledge that there was another contract that was getting priority they certainly had knowledge of hard milestones yet that other contract as i said was actually publicly available at the time is the minute there bit that isn't true that your sub contractors couldn't meet the requirements because without having access no substitute contractor could meet their requirements without having access likewise the substitute sub contractor that's in my onyx found after the termination for default and rewarded happened could also perform with no access and that some contractors a noted after the contractors report your that they were ready to work with also indicated this contract could be performed off site with no access on time and actually for less money but so my onyx chose not to the full of that to the government until after the contract is re jordan had they done that sooner we certainly would have been potentially sitting in a very different position here but we're not your honor as i noted we specifically had grounds to question symbolics performance based on the repeated statement that they couldn't perform on time nor did in their response or adequate requests radical assurances indicate they could and they're all there tends to show that the contract interpretation issue somehow justified their use are  actual knowledge of the government's own turn of interpretation of the later fire or the fact that they should have had knowledge of the government's interpretation and failed to inquire with that i see my time is about to expire and unless this court has any additional this contract the solicitation and this contract also said that there would be a partnership meeting with the nephi contractor and when this issue first came up at the performance at the post award conference that the navy same where you don't have access to in this period the navy said well we'll work this out at the partnership meeting with the n this mutual access with the partnership meeting that was also addressed at the of embassy third conference call that this issue of ritual excess can be addressed at this partnership meeting which specifically defines the work to be done in those two periods and leaves the vast majority of work to be done at any time during the contract so we don't think f one was in big  us at all and the only i'd like to give you the cite in the pellets three main brief pages twelve and thirty four we cite all the deposition testimony where the navy acknowledged that there's nothing that says you can't have access also at the site visit testified and submitted declarations and that's at appendix it's seventeen thirty three to seventeen thirty six sixteen twenty seven to sixteen thirty two and then twenty one sixty five twenty one so the eighth that his handwritten note and the information that he got at the site was it was only there'd be restrictions to four specific  and in that of connection it seventy two eight seventy three and eight seventy four only those the work again that was an appendix say for those primarily for those fo compartments one two three and five those are the only things that are listed and there is nothing in this handout that indicates there is a blanket restriction moreover