demolished argue may please accord argue believes that reversible error was made in a number of areas in the decision in particular starting with the period knowledge the major supplied misled the contractor or did not put it on notice to inquire and for the government field provide the relevant information the court found that r t a did satisfy elements one and element takes the engineer and says hey go out and take a look to see if we can use that warp during construction and that's the so called fs to report appendix eight hundred sixteen and that that report was commissioned by the engineering contractors didn't have that report but all of them would have wanted to use that there were five bidders on this none of them asked any questions about about the condition of award i think the decision makes it makes a mistake by question that actually a construction crew has been in business for a long time to the other bidders were his cousins he actually worked for for one of the other contractors one of the contractors finished a four million dollar contract for the design engineer what became so difficult to pull up these piles the navy asked do we need to consider do we need to do that we'll have to pull them he said no but they didn't present that evidence to r t and they said no you call them in their entirety three years went by and three million more dollars out of the one company spent to try to pull those piles and they couldn't be pulled and the contractor they were using around the contractor were using that was reagan construction reconstruction is right next door to this facility he was the one if you look at the pictures with the jacket he was the one who worked on this war and put the jackets on what to do what does this have to do with the factors that you were just talking about cleaning with the government was aware that the that it was reasonable to believe that you could use the wharf and that the condition of the wharf on its face looked good even evenly fs t v fourteen even the apple report said that if you looked at the wharf it looked fine it was you know what yes i think is clearly roadies because even knowing what they knew now that engineers asked for another study and so that shows you what the engineering staff was highly unusual i think the testimony of mr ahern who was the reagan guy said it was unusual and haskell considered constructional successor contractor who took almost three million dollars to do this and couldn't get done and the third prong so we believe that all four prongs were clearly evident we argued that it was a cardinal change why was it a cartoon change it was karma change because it was impossible to do the court refers to the spirit case and says that contract can't be compensated for something it's possible to do we say that this was impossible to do you had reconstruction who would work for the need for you had he was unable to apple the report was saying that these piles are tossed they're gone every single one had to have this enormous amount of effort people underwater with welding doing stuff that was never really contemplated by any of the builders and then in the end it was impossible to do and what r t a said was well kind of off enough and they got government said no and the government paid five hundred thousand dollars for reagan to cut th the one twenty five so there was a was going on in this contract and how it was managed but we believe having that apple the report and not disclosing it and then going on trying to get your own and not disclosing that either the navy didn't talk about any of those reports so is it is it your position that with respect to the possibility that that shouldn't have been attorneys in for default and therefore there should be no liquidated damages are you saying that the government owes you money well certainly we believe we should have been terminated because we were terminated two causes one was time i think we show you the world we wrote three and thirteen more days because we had one hundred ninety days to do stuff after we were done with it was the truth that that was an extra so the time was really a flaw and a second we were telling them that these can't be information he did have superior knowledge with respect to very important facts right it sort of the court should not have found the court did find that two of the four elements of the superior knowledge doctrine were met the courts not of found any of the would think that it could use this existing worth in the matter that already a day after war it alleged that it previously planned to do what you say that but you actually had two reports including one underwater analysis that you knew of the contractors didn't have the ability to do so why don't you just give them that and let them know upfront oh by the way when you're bidding you're not going to have you're not going to be able to use this one and so the contract did say that the contracts terms make clear that the the existing war had to be demolished as the first item of work and so an idea that i was going to use the  war to do new construction was inconsistent with the contract terms in other words the designer designed a project in which the words could not be u furthermore the as the court recognized including several photographs it was obvious from a visual inspection of the site that one could not just assume that this structure was in good condition and was capable and there are two separate issues that are that are being discussed here there's the removal of the piles and that's a separate that's really separate issue from the superior knowledge claim as has been presented throughout this litigation the removal  piles was not impossible so for example on page forty one of our brief we cite to a number of testimony where both the completion contractor an r t a was capable of removing the piles it was extremely difficult but only after already a created that condition by reckless demolition r t a snapped off the piles so rather than leaving the steel for these piles that supported the old wharf rather than leaving them high in the water and taking care in the demolition to leave them so that something called a vibratory extractor could be clamped on securely vibrate the entire element to break the friction with the with the earth and lift the whole thing out rather than leave those sticking up above water already used its crane in a matter shouldn't have to just recklessly demolish the top of this structure and what it left were according to the dive reports that more were provided conducted after the terminations on the bottom there were mangled twisted and damaged pieces of these old steel piles at that point it was extremely difficult to go down in many cases first remove all sorts of debris that also been dropped down there remove that clear the way locate the pile sometimes expose piece dig down basically move the soil in order  done which there's a clean smooth bottom and we presented the expert testimony of nancy byrne who did a hydrographic survey on this project before the project was started and then after the germination and after the germination there was all of this debris found not only that hydrographic survey there were dive reports conducted which revealed all of this debris mounds of debris that have been dropped down there so the tank going back to this issue of extracting the pile it was a condition that already a created for itself and another way in which that was shown was that some of the piles were less damage than others when the completion contractor went out there to try to remove them and those ones that had clean steel sticking up higher in the water  i'm sorry the government's construction manager testified were coming out with relative ease very different than those that were most mangled and and had been damage it's true that ultimately after the completion contractor made efforts the navy did not require every single files be removed many were approximately half were left in place under a settlement that occurred between the completion contractor the  and the government but this was a condition again this was a condition that already a created for itself it submitted a demolition plan to the government in which he chose to do this and told the government we're going to break the piles a technical plan this is appendix thirty three forty six r t a again remained silent it hadn't asked questions pretty award because it didn't air pretty big because it didn't want to reveal its thinking it said now it was the presumptive awardee and it still remain completely silent about any plan to use the war instead it wrote to the navy again on appendix thirty three forty six that it it's going to be performing work from the land side in the water side saying nothing about possible using there's there's no problem with that necessarily and furthermore the pre work tech the plan said that already it was going to be using a barge later after the project was actually worded  project manager someone different who prepared the bid which said we're going to use barges and we're going to have crews on water for demolition and that's that appendix thirty three a one already has project manager came in developed a new demolition concept and his concept was we're going to get on that old wharf and try to work from there that wasn't what the bid was actually based on and so the superior knowledge doctrine none of these elements should have been met it fails from contractually greed rate based on the number of days that the navy claimed liquidated damages and there were two periods there was the period from the final contract completion date for already his contract which was extended from the original date by four hundred sixty seven in a separate post art project but the government still committed the full remaining contract balance which had been increased into the eight million eight million dollars like you said the government had a higher much higher estimate for what this country was likely estimate was was ran between i believe eight point five and nine million says it was the next highest bid i remember was approximate twenty percent higher than already is bid and the government's estimate and the estimate was a similar similar price the idea that the project isn't done is not sufficient reason for an extension but that was basically the theory that was presented the only scheduling expert who conduct which you looked at the causes and responsibility for the delays concluded that no additional time extension be on that four hundred sixty seven days that had already been granted by the navy no additional time extension can be justified for any reason case as the default germination the default terminations would be upheld authority it was in default for any reason and it wasn't a fall for several reasons both of the bases that the court looked at were justified that is the failure to complete the dollars in addition what really percipient stated the fault was that the project basically came to a standstill equipment was broken and it wasn't being repaired it was a saga of broken promises and missed milestones as far as repairing the equipment and the major quitman just sat there broken during the final months of the project so basically no progress was occurring day with pass and the project wouldn't get any closer to pollution is the government's witnesses that you know they would be in october and they say ok you get till june no so we couldn't do anything while we were waiting on those on those modifications second of all it wasn't that he said if you if you heard these are in the grip it wouldn't pull while they're out there pulling the piles and they said they wanted to do it from million dollars ultimately it took three million dollars and they think they didn't wind up pulling all the piles as one hundred twenty five are the two forty eight that are still in there are called approximately forty and some of them did go easy but a lot of did not go easy and my brother talked about the snap off r t a didn't cause the problem with the piles if you turn to appendix eight seventy two you'll see mr hearn who was down there and supervising the divers and equipment he worked for reagan he was one of the bidders and he's company as it is right next to the school he justifies it while the divers go down to the pile excavate material around the plant to they could get a section of that was relatively sound then they cut off the upper portion of the pile however much that needed to be could be a matter of inches could be a matter of a couple of feet till it was clear clean section of pile then they put the vibratory extractor on it clamp onto it start t vibration put strain on it with the crane and would shake the pile and vibrator and would start to come up this it was that was the mode to pull these piles you should have been able to do that from from a march from above water but because of these conditions of the  because some of the closet break up either just below the vibratory hammer or as far down below the mud line and that's the unusual circumstance i'm talking about you don't see steel in the dirt snap off and then we either cut them again and i think the impossibility of the pulling of the piles made made for a card of change and that's what are you seeking and it's letter for common change was asking for some direction asking for some more funds to do t kind of inspection but that's a reasonable inspection far that the government relies on talks about a reasonable inspection and having an underwater engineering study was not a reasonable inspection so we don't believe that that far portion but what about you know having the whole war stay up they were going to request the state to keep a piece of it up and that's not reasonable when you think about what what the it now that engineers were trying to find out is can you use this during demolition a lot of times what these contractors do is they use what's there they support sometimes because because then you know in the water the problem being in the water and maybe just as well just is that the barges go up and down with the tide you have to make changes all the time and it's not a stable platform so we always ring contractors try to try to use the land whenever possible and there was no prohibition the you couldn't think about that and with these reports in their possession and not providing them testimony that the breaking was unexpected i think some breaking news is not unexpected just the massive type of braking that occurred in the braking that occurred inside the ground that reagan faced that that was unexpected but if your piles would break it's just that the the apple two report talks about ninety seven percent of the piles having having sixty percent or less refers to sixty percent of the