we will hear argument next and number sixteen one zero two one western bean joint venture versus  mean please of course this is a case that focuses on what is known in the dredging industry as maintenance trading and i can't emphasize more strongly to the court how important that term is to the dredging industry how  virtually nine states to keep its authorize depth open if it's a fifty foot channel you have to keep dredging it to make sure it stays at fifty but it's maintenance material then you have new work dredging or sometimes called construction dredging that's where you're dredging material that's virgin that hasn't been dredged before many times it's the deepening of the channel so if for example the project to deepen new york harbor is new is new work dredging and usually involves very hard material this project was described as a main stretching project now a dredging contractor approaching a project like this of course looks at the title of the project first and says ok it's a maintenance dredging project what type of work is involved what's the description of work well there's a description of work loss and it says you were to dredge sediments from the miami river contaminated sediments from the miami river all right that provides just a little bit more information the next place a dredging contractor looks is to the character of materials clause what types of materials are these settlements that are being part your honor what happened was in the one nine hundred thirty s the the channel was to be dredged to a depth of minus fifteen feet but the surveys that were conducted years later showed that the contractor at that time did cobbles and so forth along loose cobbles along the bottom when you look go beyond the character materials cause to try to find out well where are these sentiments what's their composition the best information is in the geotechnical information it's included with the solicitation in the contract that's in the form of boring logs the form of what problems and particularly a form of what are known as particle size distribution test or gradation curves where they take and test some of the material that comes out of the borings to determine its grain size critically in this case the profile of the bottom was easily process a bow and i i must mention here that that's another critical distinction in this case from the typical dredging trousers of kabul with the only pro social now it would not your honor if you had to bring up to twelve inch probably got busted off as a result of your drug use well the contractor in removing the material separated materials and there were stockpiles of running up and you going along you hit some of this loose between the sediments and the limestone because that profile would was drawn in and there was no real disagreement between the parties as to where that was the material that was above that line is a little bit more difficult but the court below didn't even want to consider it because the court below found that cinci knew there was some rock what is on your view fifteen for the edging level doesn't apply cobbles along the pot and wasn't in the scene even there they all know western being to be safe even though there was no information provided the plans expects to allow this number said we're going to assume there's three to five percent maintenance contract and it clearly required or the escalation of some virgin material yes and i think that was laid out that way in that particular contract so i mean that means there is a it's quite possible you could have a the corps of engineers is only permitted to use operation and maintenance funding for maintenance raging and they're not allowed to use that funding for new work dredging they have to use construction general funding this project was funded entirely by operation and  someone like that that's something that we obviously don't have any my client has no power to address but the important thing is your honor that this material i'm like a typical graveyard trigger it had to be process if you're a view the problem wasn't dredging the problem with process that's right you know trouble they're going the stuff that's right and that's what made the proper description of the materials to my client so critical and if you had if your eyes or your argument if you'd only know the earlier loaded and there's a separation old tires and like that are taken out and there are a series essential e of grizzlies or conveyor belt that separate the material in the various sizes it's a it's a it's a very large an interesting and complicated process and of course these were to be contaminated sediments so polymers were added so that when you you were to end up with something that was dry and that was contaminated free that could be taken to a disposal site because my client sent a memo to the corps of engineers it's found that pages appendix eleven eighty six to eleven eighty nine and it was it was addressing this very issue informing the corps of engineers that we felt that there was going to be or less sediment that actually would be removed under this contract then was eleven or six or thirteen  the corps of engineers before bidding that this was what we suspected the response was well much you have different geo technical information we have you just did it and you see it a bit it according to the specs there was no way that our client right believe any reasonable dredging contractor would have thought that in a maintenance dredging contract where the materials are described as contaminated sediments that materials below that sediment line which were square clearly virgin materials would have to be dredged and disposed of the more logical sanction would be we even relieve it or if you really want us to remove it you've now either you've now constructively changed this contract and we want to be compensated very specific provision you have to dredge by us fifteen but there as a requirement to drip to minus fifteen feet your honor but that's the materials that were described to settlement if if you and everything was what was described as either settlements or below this line burgeoning if the material below that sharp interface line is not a settlement then it's not maintenance material and yes you can be required to dredge down to that line but it becomes a constructive change to the contract because that's not the material that's maintenance material that was the purpose of this contract and the interesting irony here is you know we're dealing with a fifteen section except in section project our claim is resections one through six there was an eighteen month delay for funding reasons when they resume for seven to fifteen seven the fifteen the corps of engineers decided to relax its position because we didn't want to dredge down to minus fifteen we continually asked for permission to stop as we hit harder stuff in one through six in the cour no you take it down the mine is fifteen unless you can show it's it's massive monolithic in situ rock so we were constantly bringing up this material needs and having to process it and seven to fifteen the corps of engineers allowed the contractor basically to leave that material but because they left that material they had an underwriting quantity so the contractor under the variation estimated quantities closer to the core we didn't get enough revenue material that was not settlement when in one through six when they removed it they were paid nothing and that's what this kind was all about you have used all of your time i'm sorry but you may have your rebuttal time back thank you very much r found that weston being was not required to perform any work beyond the requirements of the contract further the court correctly found that the conditions indicated in the contract documents did not differ materially disregard the plain language of the character of materials to be dredged clause and other contract revisions but as was to be concedes the contract must be read as a whole and in a manner that is meaning to all of its  the character materials regret clause is the only contract provision that describes the materials required to be dredged and in fact the phrase to be geysers requires specifically to inform potential betters that those are the types of for this for this dredge in addition we've pointed to the dredge management materials plan which indicated that there during the twenty year period every maybe both construction magnate stretching and again that western be considered today that it does not wish for the contract to be deemed illegal in any manner so that there simply is no evidence in terms of statutes or otherwise it's been presented from by west in which has occurred that there was urgent i'm not aware of any and i don't believe the court made any findings regarding other dredging contracts so reason why raise it as your adversaries making this argument the nationals to say that there isn't a binary difference between as the stuff on top of the soft to moderately hard limestone rock would one still say that the dredging had to include the soft to moderately hard climb stone rock just because that was confirm the requirement to dredge to minus fifteen feet so these provisions taken together clearly require us to need to dredge to the dimensions of the template down to minus fifteen feet to indicate what discussions maronite have taken place in any event that there was no indication from western being that it believed not in the record that they believed there was some kind of ambiguity government i don't have to take it up  bid to the requirements in the contract so that western being was told it as if you're going to dredge all material in the template do not submit a bid that indicates that you are going to exclude thirty percent and i is i guess sort of newish today that if one takes the blue and gold you have to ask for clarification who what you just said about the course response which i think was describing what they said about the course response yes why is that not clarification it to fifteen feet well that is yes that is clarification so even if the court construes western beans inquiry to the core as sufficient undergoing going which is not the response from the government was bid to minus fifteen feet and as i see it i suppose one could possibly argue that that response was itself ambiguous since it was a dispute about what if the response was follow the contract and nobody had figured out what the contract met and if that's not terribly clarified what it may help to look at it again this is one sided testimony that may help again to look at the testimony from page one of seven to see exactly how west being witness characterized the response from the government but as i recall their response was something to the effect that  well ok in fact it is exactly at page one of seven which of the many pages in the many page two fifty five beginning at line seventeen well since you provided nothing materially different police did the specification and after a few minutes of silence mrs cruz came back on the line and bison that since you provided nothing materially different please bid the specifications in the solicitation it's a not unusual government answer to a question that it as you see it but the thing is we we our client did tell the corps how they saw it and that this was material that was a maintenance material and as i said previously what's interesting and it's in their area seven through fifteen the court in fact did in practice carry out what we thought the should have done in areas one through six you know in looking at what types of materials could you discern needed to be dredged based on this character materials cause all the geotechnical information which really is  paramount you just don't learn anything from the character materials clause and not self you have to look at the geotechnical information we pointed out to the trial court below that the government estimate you're looking at all the same information that's available to the bidders classified all the material as much all of it even the limestone so the government estimate was based on mine in what is sentiment a set sentiment so they couldn't have been further off from what had it had to be done on this project because you should not have been required to remove it and certainly not to treat it in a maintenance trajan contract and was immaterial above that sharp interface to the extent that there were rocks and limestone and materials imbedded in that something that none of the boring showed was that not a differing site condition because there you had indeed a subsurface or latent physical condition that was materially different from what was indicated in the contract w hard material was imbedded in the sediment that was a differing cyc in the ship and i think that's fundamentally what the court below didn't really grasp is that we really had two different types of claims with regard to this condition a constructive change below the sharp interface and a differing site condition above it the court below simply took the view that look you were required to dredge to minus fifteen feet the character materials cla says that you're not required to dredge massive monolithic rock so everything else has to be dredged no because if you see if you come to that conclusion you're reading the changes caused and the differing say conditions cause of the contract you saying that putting aside massive monolithic rock which we all agree doesn't need to be dredged if there is anything else that's different from what's represented in the contract we have to dredge without compensation that voids the than a risk that the government took we don't believe your honor except to the extent of a reasonable very liberal allowance of three to five percent oversize material that wasn't based on really any showing of detectable information beyond that we didn't take the risk if the corps of engineers would would engage in a practice that was a constructive change without compensation or that the at the corps of engineers would would limit the differing say conditions clause what they lower court's decision effectively said was in this case the differing slike initiatives clause only applies to one type of material in the universe massive monolithic in situ rock if you encounter any other type of material that's different materially different from what's represented we don't have to consider it because you were told to dredge to minus fifteen that's just not the case it's not the way dredging contracts are performed you look at the geotechnical information you look at the purpose