Legal Case Summary

Optimum Services, Inc. v. Army


Date Argued: Tue Nov 04 2014
Case Number: A142789
Docket Number: 2592700
Judges:Not available
Duration: 38 minutes
Court Name: Federal Circuit

Case Summary

**Case Summary: Optimum Services, Inc. v. Army (Docket No. 2592700)** **Court:** [Specify Court if known] **Date:** [Specify Date if known] **Background:** Optimum Services, Inc. filed a case against the Army, claiming [insert brief description of claims, e.g., breach of contract, wrongful termination, discrimination, etc.]. The crux of the dispute revolves around [briefly outline the key issues involved in the case, e.g., contractual obligations, employment rights, etc.]. **Facts:** - Optimum Services, Inc. is a [description of the business, e.g., government contracting company] that entered into an agreement with the Army for [specific services/products provided]. - The agreement specified [key terms of the contract or relationship]. - [Omit or summarize any relevant actions taken by either party that led to the dispute, including communications, performance under the contract, etc.]. - The Army [insert actions taken by the Army that led to the dispute, such as termination of the contract, failure to make payments, etc.]. **Legal Issues:** 1. [Identify legal issue 1, e.g., whether the Army breached the contract]. 2. [Identify legal issue 2, e.g., whether Optimum Services complied with the terms of the contract]. 3. [Additional legal issues, if applicable]. **Arguments:** - **Optimum Services, Inc.** argues that [summarize the main arguments of Optimum, including any evidence or legal precedents cited]. - **The Army** contends that [summarize the defense's arguments and any statutory or contractual provisions cited]. **Ruling:** [Describe the court’s decision on the matter. Mention whether the court ruled in favor of Optimum Services, Inc. or the Army, and any specific judgments or orders issued by the court]. **Conclusion:** The case highlights important aspects of [insert broader implications of the case, such as government contracting law, employment rights, etc.]. The outcome may have significant repercussions for future interactions between government agencies and contracting firms. **Note:** Specific details and outcomes of the case have not been included and should be updated with the appropriate information. --- This case summary is a general framework and would need specific details regarding the actual proceedings, arguments, and outcomes related to Docket No. 2592700, which I currently do not have access to. Please verify the case details for accuracy if you're seeking official documentation or legal advice.

Optimum Services, Inc. v. Army


Oral Audio Transcript(Beta version)

The armed services board of contract appeals succinctly describe the central issue in this case, type I, differing site condition case as follows. We find that if a differing site condition was found, supporting piles would have to be redesigned accordingly. If, however, so conditions were found to be consistent with the contract pouring, the original pile design, if design had been courted with the course pile design manual, would suffice. So it helped me understand exactly what you're playing here. Does that understand you're not playing any change in the pile design? Was it change in the contract for that change in piles or the traditional compensation, right? Well, actually yes, I mean the point is that the differing site condition resulted in a change to the design of the piles, which results. I thought your claim was that it delayed the redesign of the piles, not that the redesign itself, if it had been done promptly, was itself a change. Am I mistaken about that? Well, the redesign resulted in additional costs, but you're correct that the primary cost that we're seeking is delay to the installation of the piles. You know, you've never asked for compensation for the additional costs of the redesign, right? I believe that is a component in the claim that was submitted to the contracting officer. There's a CBC engineers report in the joint appended that says that the three pile redesigns were due to differing soil conditions at the site and changes to the design criteria. In your required rate, you only mentioned soil conditions in omitted design criteria. What is there in the records that helps us disentangle those two different reasons for the redesign? Well, the CBC report you mentioned also refers to the difference in skin fraction or skin friction. It went down from, I believe, 227 to 126. And that's certainly strong evidence that the soil conditions were such that a redesign was required. Additionally, as we point out strongly in the briefs, there were three subsequent pile designs, often that were rejected by the core. And the reason the core rejected them was because they felt that the calculations submitted by my client optimum were not sufficient, were not taking in the weakness of the soil

. So, I understand the calculations, they rejected their calculation, but where does it say they rejected them due to a differing soil condition? Right. I don't think there is any further. The reason for the rejection of the pile calculation is the fact that optimal calculations were too optimistic about how good the soils were for pile support. The core, I guess not the same thing as the differing site condition from the one specified. I think it's all a little strong evidence, you're honored that. And the point is, optimum submitted in original submittal back on September 9 before the differing site condition was found. And that's in site condition, or that submittal was accrued by the core. The problem is that you got to find the board that there wasn't any different site condition. And I thought your primary argument was, well, okay, even if that's true, there was still the need to investigate whether there was a different site condition. And that caused a substantial delay because the government didn't do that promptly. I thought that was the essence of your plan and why I was thinking about that. Well, that's part of the plan. There's actually two aspects to it. The first being the core error, if there are several errors, but the first error that we presented is that there was in fact a differing site condition

. I was more rejected. Well, agreed, but the board's sole reason for rejecting that was the expert testimony. There's nothing else that the board relies on, right? Because of all the evidence that we put into the record that counter-mands that, this course is said, but we don't consider that to make fact-finding. I mean, they had evidence to support a conclusion that there was no different site condition. You've got a very hard time overcoming that. What do you call an expert? We didn't think we needed one here, honor. We had, they didn't think that expert testimony, boarded, so it's agreed. And we rebutted why that expert testimony really didn't help the board. But the board disagreed with you. And so we were on a substantial evidence review, and in order for us to find no substantial evidence, you have to knock out that expert testimony somehow. Right. And I believe we did do that in our briefing. Well, you didn't even argue on appeal that the expert opinion was, you know, inappropriate. I mean, you argued with the mayor of the opinion, but you didn't say it should have that excluded

. That he wasn't an expert, sufficiently. Did you make the emotion to love to exclude it, or did you just argue about the weight of this opinion? Well, the expert testimony was limited to the area of geotechnical information. And so do you agree that the expert testimony was properly admitted then? I agree that the testimony was properly admitted with respect to the geotechnical information. However, the only thing the expert said was that the conditions, the condition of the contract as compared to the site conditions were not identical. He didn't say they were the same. He simply said they were not identically, so they were close. He compared data from one boring CB-10 and from the B-1 boring. And then he says there's no DSC. And then he says, wait a minute, right? That's his expert conclusion. Well, we did object to the legal conclusion that he could make a determination that there was no GSC. And an argument that we make in our briefing papers is that as a GSC, that ultimately a conclusion for the courts makes. Whether it's a legal, you know, and it qualifies a different site condition. But he can opine as to whether the physical condition is different. He can, and he says that they were different

. Oh, what was the same for the moment that we reject your argument that there was no different site condition, which is wrong, or is not supported by substantial outlets. Let's assume that there was no different site condition. You still have a hint as I understand it, that the government was obligated to promptly investigate this problem, and it's failure to do so across the delay. Is there any other argument for the late one, other than that? Is there an argument about the delay in approving submissions? Or are we solely talking about the failure to promptly investigate what the different site condition extended to the area of the trial? There is an investigation as we've argued in our briefing papers. Yes, it's my question. Are we solely talking about delay resulting from the government's scheduled promptly investigate the extended different site condition? With respect to the delay claim, that's correct, but the investigation continues on through, I believe, the approval of the consideration of the delay. The delay is also through the delay claim, and it's a delay that is being conducted, and the delay is also through the delay claim. I'm a little confused. I know that the board found that there was concurrent delay that prevented you from being contemplated for this middle process, and it doesn't seem like you argued and you agreed that that was a delay. I'm not wrong. How many of you are not raising that to middle issue, are you? I see that I'm into my remarks. I will keep going. The concurrent delay claim, no, no, just tell me about this middle. You had a separate issue at the board that you should be compensated for delaying the middle process

. Correct, you lost. Is that issue before us on a PL, that you put it in your book, or is it anywhere because I don't see it? No, we did not, and the reason for that is that, so assuming that you were talking about the middle and the way that it's going to go, I'd like to get back to this notion that the government's delaying and investigating this allennage difference-like condition, right? I understand the confusion. Is that the argument you have, assuming we disagree with you, that there is a different-like condition, is that the only argument you're making now? There are two different semiddles, if I can back up a little bit, and the first-semital was the one that the core approved after the discovery of a different psychedition. And there's no dispute here that there was a different psychedition. Don't we yes the rich? There was a different psychedition, but not in the pilot, as much as that. Well, there's a dispute as to that in the record as well, but yes, there was mock discovered in the area, then there was an investigation of how far that mock extended. Yes, by which you're contending to find understand that the failure promptly investigates how far the mock extended caused the delay in the redesign and that the source of your delay is clank, right? That's correct, Your Honor. And the investigation of the delay includes the period where Opimum submitted three different designs which were denied by the core because the calculations from the course perspective did not take into account the decrease in the strength of the soil to uphold the pilot. And ultimately, as the court is aware, the timber piles called for by the contract were abandoned entirely and steel a few legal piles were put at your doubtful and pure proposal. Well, correct, but the core also proposed using concrete weights to weigh down the piles, something that wouldn't have done if there were no reason if the original timber piles of themselves were adequate. Okay, but just one last question here, the government says the extent that you're claiming that there was a delay in promptly investigating the different site condition that you didn't raise that a lot, are they correct about that? I don't believe so, Your Honor, and we've cited materials in our moving papers where we did in fact raise that pool. I don't see that discussion in the board's decision and I didn't raise your papers, I'm saying that. Can you point to me somewhere in the board's decision where it specifically ruled on the delay in investigation claim? I don't believe the board did rule specifically on the delay in investigation claim. In our moving papers, we cited the government was good enough to put in all of our briefs below, but we cited our initial claim to the contracting officer identified this issue very specifically and quotes authority and support of this, including the public

. The one instruction that is no right there. It's at a779-80. Okay, I can just see there's a quote from a construction treatise which specifically indicates that you can recover for investigative delay. It's hard to read this really quickly, but that's what you'd say is where did you raise the ten-year arguments to the board? Well, I believe it was raised in the complaint as well when we cite that in our moving papers and in our post hearing brief. The fact that the board didn't take that into account, I think. We were in your post hearing brief in our post hearing brief at a1,077 through 1885. Okay, I think we're out of time. We'll give you three minutes for a bottle. Thank you. I would like, if I may, to find that site for you with respect to the single piece of paper. I'll try to do it now, but if I don't, may I submit some? You can submit it for the major short-life. Mr. Well, I have a plan in the front. If it is, I'm going to propose it

. May please the courts. So this seems to boil down to the question of whether the government promptly investigated the extent of the different site condition and whether they raised that issue a lot. Right? It could, but respectfully know this can be disposed of by the fact that what the court was sending in with the questions to the opponent about whether there's a factual finding that there was actually not any luck at the site of the weird. Sure, sure. I mean, if we agree with that, you went on the different site condition, but I think the point is if we see that there's a separate delay that the court delayed and investigating those areas. Whether it ultimately ended up being one or not, they could still get compensated for the delay. Why isn't that a viable argument? Then we should send back to the board. Not the basis for that delay is still derivative of the different site condition clause. And Section V of that clause, credit for conditions and compensation upon the conditions, if the conditions do material is so different. I don't understand that I'm not sure that the process of not praising this properly isn't very separately. The delay claim, not as a tight condition claim, is the government takes too long in investigating the different site condition, even if it turns out not to be a different site condition. I mean, for instance, somebody comes to you and says, we think there might be a different site condition. The government says, okay, stop work. We're going to investigate it and it takes two years to do it

. They get money for that, don't they? Under those hypothetical facts, yes, if the work is stopped, then the government's responsibility absolutely without it. I understand that it's a little fuzzy as the way it's been presented, but it seems to me that their argument is essentially that you did delay investigating and that caused them a delay in their project, which they should get compensated for. I agree that the fact is there aren't even, I do not agree that the government does not agree that that is what the case, the facts and the litigation below bears out. Well, it's not whether the facts bear it out or not, because I think there's an official fact that could be made. Of course, I want to know for you whether you think they wade it or not, because it seems like in the claim they just thought it made too, that that may have been a grave, but I'm not sure that they preserved it toward it. Yes, it is our position, and I think we put this in our brief that this particular argument we believe that the contract was... But is that, is, is, is citation of the claim, correct? Is that, is, did you look at that? It doesn't something 9 and 80. And it looks like that what they're talking about, although since there are two little legs different side conditions here, I'm not sure which is really true. And, and when I looked at it, that was my conclusion as well. But as, that raises, or it doesn't raise. There is certainly an indication, I mean, the do site that's free, there's a block code of the treatise section about the government's obligation to investigate under the different side conditions. How well that raises the issue is, is not particularly clear to me reading the claim

. Going to the litigation before the board though, and I go right to the pages that Mr. Gagan cited 1077, 1055, and this precincts board. Those are factual recentations, those that's not an argument at all about whether or not there was a delay occasion by the government. But as the government has come, Timber suggests that if you put the facts out there, that will be sufficient to make a claim. Yes, to make a claim, I apologize. I, I was answering Brian, I said, your question about whether in this proceeding, is all a size wave position. Well, whether the Scott Timber case bears on the question of whether there's a wave, because Scott Timber suggests that if you articulate the facts that support legal theory, you're failure to dot the ice across the teeth and pull it by the right name. Is not going to include the claim, right? Yes, yes, that's what's right. There was a, but then going back to what facts we have here. Not only do you have to talk about what evidence is in the record and what facts, you know, really for just quite not the time. But what did happen? There was a stopper quarter, right, immediately before the area that dealt with the mod G zero zero four. About that defined area in the month and then when four was, or mod four was signed by laterally and taken care of that stopper quarter for that particular area was lifted. There was no separate stopper for the area in the weirs. You know, in the court, acknowledge that found that finding a decision, they don't appear to be challenging any of that in their appeal

. So those are factual substantial airtight issues that OSI is essentially completed. And so if we're going to assess whether or not the government investigation of particular delay can be sort of really good at this point, there are very insurmountable hurdles. Well, I would be kind of if we had findings from the board about this claim, but we don't face the board seems to dismiss the concerns about the government's investigation of different site conditions claimed by saying well, there wasn't a different site condition. So you're out of court. Yes, it's up. It made the factual finding that there was actually a lot to get the area we were sending for 49. But that I think what we're suggesting to you is that that's not complicit on a delay claim based on a theory that the government failed to promise best again. Thank you. If you indulge me, I can back this out. The way I'm going to. The difference, I understand the court's questions. They're both in different site condition and clause. The government's obligations to investigate the notice difference. I think the confusion is we're recognizing that they didn't explicitly invoke some kind of delay claim or suspension of work clause or the life. But the fact they presented suggests that because of the government's delay, they indeed were in some kind of suspension of work state or the like and that the factual statement in their brief are sufficient to say that without formally labeling it back. I guess my response would be to look at the suspension of work clause and the analysis that typically goes into a normal delay. We have a precipitating event that allegedly is the government's responsibility and I stress allegedly and the body with original jurisdiction should be in one to engage in the factual investigation and fact finding that might support whether or not as opposed to seeming like OSI was in some sort of style. So it's not the work situation even though there was no stop work order at the rear site that it actually happened. So that suggests a remand to have the board address that question does but then we get back to the issue of the OSI has an opportunity to litigate this and they did and then we come back to what we are given our brief about the concurrent delay as Mr. gave to point it out all of this alleges delay due to the failure of investigate was at the same time in part predicated one OSI's understanding of the reason the government was rejecting its weird piling some middle given the concurrent delay to a large extended based on motion that should have gone ahead with the design during the period of the different site. I'm not sure that's a reasonable conclusion. Well the court are the court that if the site condition did extend to the area of the piling he would think that that would require some things to never end the way we designed. So holding up the design while the investigation takes place, it seems to be a reasonable thing to do. Again, hypothetically if I could actually there's one thing that we didn't know the size of it. Actually, I really call out and I'll be into hypothetically yes. Yes, hypothetically yes, yes. If all of the things would get, there's things happen. I want to sort of call out to the court sort of causation issue with respect to their designs and just mock

. But the fact they presented suggests that because of the government's delay, they indeed were in some kind of suspension of work state or the like and that the factual statement in their brief are sufficient to say that without formally labeling it back. I guess my response would be to look at the suspension of work clause and the analysis that typically goes into a normal delay. We have a precipitating event that allegedly is the government's responsibility and I stress allegedly and the body with original jurisdiction should be in one to engage in the factual investigation and fact finding that might support whether or not as opposed to seeming like OSI was in some sort of style. So it's not the work situation even though there was no stop work order at the rear site that it actually happened. So that suggests a remand to have the board address that question does but then we get back to the issue of the OSI has an opportunity to litigate this and they did and then we come back to what we are given our brief about the concurrent delay as Mr. gave to point it out all of this alleges delay due to the failure of investigate was at the same time in part predicated one OSI's understanding of the reason the government was rejecting its weird piling some middle given the concurrent delay to a large extended based on motion that should have gone ahead with the design during the period of the different site. I'm not sure that's a reasonable conclusion. Well the court are the court that if the site condition did extend to the area of the piling he would think that that would require some things to never end the way we designed. So holding up the design while the investigation takes place, it seems to be a reasonable thing to do. Again, hypothetically if I could actually there's one thing that we didn't know the size of it. Actually, I really call out and I'll be into hypothetically yes. Yes, hypothetically yes, yes. If all of the things would get, there's things happen. I want to sort of call out to the court sort of causation issue with respect to their designs and just mock. It's Mr. Gapen pointed out on September 9th was when they put in their original weird design in 2009. The government turned that back to them on September 2nd 2009 with their comments. And you can find those at J572 and 574. The weird or I'm sorry, the much in the non-year area, the one that was actually resolved to your mind for it, wasn't even noticed by OSI. Like actually observing it or technically noticing the government for five days later on the 23rd. There's just no possible connection between the original design and this month. Nobody even suspected that there was luck anywhere until after these design processes began. Mr. Gapen's argument in this area seems to be if there was no different sight conditions why you accept the two pile design as adequate for uplift and then reject the four pile design. And yes, I agree that that's how I understand this argument. It asks the court basically conclude an OSI's favor based on assumptions. It does seem particularly odd that there was an original acceptance with some rejections of other reasons. And then after this different sight condition on another place of this sight was discovered it went through subsequent designs

. It's Mr. Gapen pointed out on September 9th was when they put in their original weird design in 2009. The government turned that back to them on September 2nd 2009 with their comments. And you can find those at J572 and 574. The weird or I'm sorry, the much in the non-year area, the one that was actually resolved to your mind for it, wasn't even noticed by OSI. Like actually observing it or technically noticing the government for five days later on the 23rd. There's just no possible connection between the original design and this month. Nobody even suspected that there was luck anywhere until after these design processes began. Mr. Gapen's argument in this area seems to be if there was no different sight conditions why you accept the two pile design as adequate for uplift and then reject the four pile design. And yes, I agree that that's how I understand this argument. It asks the court basically conclude an OSI's favor based on assumptions. It does seem particularly odd that there was an original acceptance with some rejections of other reasons. And then after this different sight condition on another place of this sight was discovered it went through subsequent designs. Why? I agree that's the reason. And then the record that I can find except your rejections based on calculations as to why that is the middle for a rejection. And those were rejections based on calculations I could walk the court through some of them but I don't know if that would be a productive use of them. It was the point though. Why are you a little angry as necessary if there's no different sight conditions? I assume you're going to say because the original design was defective. It was through all of the particular instances and I think. That's the acceptance of the first design with that just to keep it clear. I think an error by the court. Well, it was a conditional acceptance. It was coded C for a number of reasons and one's beyond those that OSI talked about and it was brief or here for a general. It was a lot of the court just to concentrate on the 50 foot thing because there were so many errors. There were other errors elsewhere that needed it to be. So, in any possible, in fact the first sort of C recording that they indicated was for wind loading that the design was not adequate for wind loading. I hear the piles 25 foot up in the air in her can zone might push the hundred away

. Why? I agree that's the reason. And then the record that I can find except your rejections based on calculations as to why that is the middle for a rejection. And those were rejections based on calculations I could walk the court through some of them but I don't know if that would be a productive use of them. It was the point though. Why are you a little angry as necessary if there's no different sight conditions? I assume you're going to say because the original design was defective. It was through all of the particular instances and I think. That's the acceptance of the first design with that just to keep it clear. I think an error by the court. Well, it was a conditional acceptance. It was coded C for a number of reasons and one's beyond those that OSI talked about and it was brief or here for a general. It was a lot of the court just to concentrate on the 50 foot thing because there were so many errors. There were other errors elsewhere that needed it to be. So, in any possible, in fact the first sort of C recording that they indicated was for wind loading that the design was not adequate for wind loading. I hear the piles 25 foot up in the air in her can zone might push the hundred away. Not necessarily uplifted. I don't understand the point that the governments approval of the design and then later finally the design in adequate was a change or a violation of the contract. I don't perceive that anywhere in the record history that I guess you know. If the government's view that this is substantial evidence challenge the court that there was no actual luck at the site where the way is to work to be built. Yeah, but that doesn't seem to resolve a question on whether the investigation related and cost the money which is an issue that wasn't addressed by the court. Why shouldn't they send it back and have the board address that the late. You take a look at my p five to bilateral that process and this is a my that where the government acknowledged OSI concerns about the presence of potential not to refer. I'm sorry reference the end of the page. I'm sorry. I'm there. 693 through 694. And the scope of work is as I take everybody using the briefing contractor. So you're technical investigation of the location where the we're will be constructed. The purpose of the investigation shall be to evaluate the effect of the positive key to play moral and the we're designed and the design of associated pilots

. Not necessarily uplifted. I don't understand the point that the governments approval of the design and then later finally the design in adequate was a change or a violation of the contract. I don't perceive that anywhere in the record history that I guess you know. If the government's view that this is substantial evidence challenge the court that there was no actual luck at the site where the way is to work to be built. Yeah, but that doesn't seem to resolve a question on whether the investigation related and cost the money which is an issue that wasn't addressed by the court. Why shouldn't they send it back and have the board address that the late. You take a look at my p five to bilateral that process and this is a my that where the government acknowledged OSI concerns about the presence of potential not to refer. I'm sorry reference the end of the page. I'm sorry. I'm there. 693 through 694. And the scope of work is as I take everybody using the briefing contractor. So you're technical investigation of the location where the we're will be constructed. The purpose of the investigation shall be to evaluate the effect of the positive key to play moral and the we're designed and the design of associated pilots. So you're saying that I was on the last day already that page for that. Well, we got paid for the investigation. I don't think that that's particularly an issue. We're not arguing that there's an accordance satisfaction over everything. What I'm saying in terms of signing responsibility for any alleged delay with respect to investigation parties agreed on the gears of number 18. That the latest that OSI would be doing this investigation. Well, I'm going to use suggesting that this mod release the delay claim we're talking about. It's not what I intended. I was not that's not what I was. I didn't suggest that I was in the city is going back to my what I hope earlier said. It's been earlier about the factually nature of delay claims. This is something that indicates concerts their allegations on the extended government delay where there was an alleged period of not working on anything from the OSI. Well, that's the cause of an investigation. I mean like a merits argument about why the government didn't cost the way but the board didn't address that

. So you're saying that I was on the last day already that page for that. Well, we got paid for the investigation. I don't think that that's particularly an issue. We're not arguing that there's an accordance satisfaction over everything. What I'm saying in terms of signing responsibility for any alleged delay with respect to investigation parties agreed on the gears of number 18. That the latest that OSI would be doing this investigation. Well, I'm going to use suggesting that this mod release the delay claim we're talking about. It's not what I intended. I was not that's not what I was. I didn't suggest that I was in the city is going back to my what I hope earlier said. It's been earlier about the factually nature of delay claims. This is something that indicates concerts their allegations on the extended government delay where there was an alleged period of not working on anything from the OSI. Well, that's the cause of an investigation. I mean like a merits argument about why the government didn't cost the way but the board didn't address that. Again, indicative of the fact that the board didn't think that issue was properly raised to it. It's our condition that yes and again, looking at you know, there are actual papers before the board and the argument. We are unable to find any indication where that specification is raised by OSI as opposed to their claim that it's an effective contract. We're turning to judge Hughes's question about where in the record the course statement about uplift capacities being not as adequate as what optimum had included in its second set of submittals. It's actually in the board's opinion a denim 13 binding of fact 38. The core of throat quota uplift capacities will likely be much less than those currently calculated by OSI. Well, he's in that just talking about the fact that your calculations are wrong and that it's going to give different uplift capacities. It doesn't say anything about the soil conditions. Well, optimum uplift capacities dropped based on the findings of the core board. And now the core is coming back and saying we don't agree and again the core approved the earlier submittal based on the original calculations. So I'm going to have to subject to certain conditions. Right. And Mr. Wolak mentioned the wind loading and he also said the wind loading it could in certain circumstances affect the uplift

. Again, indicative of the fact that the board didn't think that issue was properly raised to it. It's our condition that yes and again, looking at you know, there are actual papers before the board and the argument. We are unable to find any indication where that specification is raised by OSI as opposed to their claim that it's an effective contract. We're turning to judge Hughes's question about where in the record the course statement about uplift capacities being not as adequate as what optimum had included in its second set of submittals. It's actually in the board's opinion a denim 13 binding of fact 38. The core of throat quota uplift capacities will likely be much less than those currently calculated by OSI. Well, he's in that just talking about the fact that your calculations are wrong and that it's going to give different uplift capacities. It doesn't say anything about the soil conditions. Well, optimum uplift capacities dropped based on the findings of the core board. And now the core is coming back and saying we don't agree and again the core approved the earlier submittal based on the original calculations. So I'm going to have to subject to certain conditions. Right. And Mr. Wolak mentioned the wind loading and he also said the wind loading it could in certain circumstances affect the uplift. I don't know about that. I don't know of anything in the record that supports that but I will say this there's nothing in the record really wind loading is ever an issue again beyond that initial submittal. It's the only issue is uplift after that. There's no reference to wind load. So they're not related to each. I don't know of anything in the record that supports that idea. I'm not a geotechnical engineer but not that I'm aware of no. But you're not claiming that the redesign was a change in the contract. Ultimately, the change from timber piles to steel healing piles. But that was all part of the investigation. It's part of the delay. But if you're not saying that acquiring the change in the piles was a violation of the contract. That's correct. Your honor

. I don't know about that. I don't know of anything in the record that supports that but I will say this there's nothing in the record really wind loading is ever an issue again beyond that initial submittal. It's the only issue is uplift after that. There's no reference to wind load. So they're not related to each. I don't know of anything in the record that supports that idea. I'm not a geotechnical engineer but not that I'm aware of no. But you're not claiming that the redesign was a change in the contract. Ultimately, the change from timber piles to steel healing piles. But that was all part of the investigation. It's part of the delay. But if you're not saying that acquiring the change in the piles was a violation of the contract. That's correct. Your honor. It was agreed to. I just want to clarify if I think this is what you've told me before but in your papers to the board the sole place you say you raised the life plan. I suppose the different types of issues is that pages to me seven to ten and five of your first hearing. Well, it's in our papers. This is the only thing you've got to me on your main. But let's assume that's correct. Those things are all labeled OSI counters its different flight conditions. How do you think the board is put on notice that you're raising a separate delay came as opposed to different flight condition claims when all you do is a factual recitation under a different flight condition claim and you make no legal argument whatsoever about a separate delay. I don't necessarily agree that we made no legal point to me in your posturing brief because you haven't done that yet. Well, I would return to judge Dijk's point in the contender issue that it was certainly raised to the contracting officer. Yes, but you can raise things to a contracting officer and lay it in the night raising them to the board. So where did you raise it to the board is not in the sexual section. Is it raised as a separate legal argument anyway? The delay with respect to the investigation? I believe the facts that we presented support that. I think the board is it's incumbent upon the board to parse your actual recitation to disperse an illegal very name might support a completely different delay point

. It was agreed to. I just want to clarify if I think this is what you've told me before but in your papers to the board the sole place you say you raised the life plan. I suppose the different types of issues is that pages to me seven to ten and five of your first hearing. Well, it's in our papers. This is the only thing you've got to me on your main. But let's assume that's correct. Those things are all labeled OSI counters its different flight conditions. How do you think the board is put on notice that you're raising a separate delay came as opposed to different flight condition claims when all you do is a factual recitation under a different flight condition claim and you make no legal argument whatsoever about a separate delay. I don't necessarily agree that we made no legal point to me in your posturing brief because you haven't done that yet. Well, I would return to judge Dijk's point in the contender issue that it was certainly raised to the contracting officer. Yes, but you can raise things to a contracting officer and lay it in the night raising them to the board. So where did you raise it to the board is not in the sexual section. Is it raised as a separate legal argument anyway? The delay with respect to the investigation? I believe the facts that we presented support that. I think the board is it's incumbent upon the board to parse your actual recitation to disperse an illegal very name might support a completely different delay point. I don't think it's incumbent on the board, but I also don't think the board can simply ignore the facts in this case as your honors have correctly divine. Why did everything change if there were not the results of the investigation, the protracted investigation, where not such that there was a different psych condition. So you're not saying as I know other than the pages 1077 and see to which you cited it, it's in there somewhere. What do you find? No, not at all. You did make it the lay claim, the right to the board. Correct. The board's missing perhaps as a connection between the lay claim and the bill to properly investigate. That's correct your honor and the board's opinion does a real disservice to them. Does the lay claim about the submittles? And not you told me before that you had not re-rated on appeal. Well, that's specific to not to the submittles that come after the discovery of the different psych conditions. We have raised that point in our papers. The initial submittal and the delay with respect to returning that, we have not raised. And the reason for that is, the bill's original approvals didn't matter because there was a different psych condition. Those were never going to go forward

. It was a subsequent submittal and the delay in approving those in the December time frame that matter. Okay, thank you, Mr. Newton. Thank you. Thank both counsel and cases submitted