[00:00:11] Speaker 02:
We're going to hear next number 18-1394, Guarantee Company of North America versus Akana.

[00:00:38] Speaker 02:
Would counsel for the guarantee case please come up?

[00:00:48] Speaker ?:
Thank you.

[00:01:19] Speaker 02:
Okay, Mr. Pike.

[00:01:20] Speaker 04:
Thank you.

[00:01:28] Speaker 00:
May it please the Court, Your Honors.

[00:01:30] Speaker 00:
My name is Patrick Pike.

[00:01:32] Speaker 00:
I'm the attorney for the Guarantee Company of North America USA.

[00:01:37] Speaker 00:
This case is about a surety.

[00:01:41] Speaker 01:
In the blue brave at 16, you rely on Bell BCIV, Old Dominion Demolition.

[00:01:49] Speaker 01:
Does that have anything to do with the Contract Disputes Act?

[00:01:53] Speaker 01:
No.

[00:01:57] Speaker 01:
From my view, this is a hard row for you to hoe because of the CDA.

[00:02:03] Speaker 01:
In the normal course, sure, sureties do what you wanted to do all the time.

[00:02:12] Speaker 01:
But how is GCNA a contractor to the government pursuant to 7107

[00:02:20] Speaker 01:
Seven of the CDA.

[00:02:22] Speaker 00:
Yes, your honor.

[00:02:23] Speaker 00:
The government contract in this case is the settlement agreement between the government and GCNA.

[00:02:31] Speaker 00:
That settlement agreement was negotiated between the government and the shuri and both parties came to the resolution that the government would accept and wanted a tender of a contractor to the government to perform construction services

[00:02:47] Speaker 02:
And to finish a defaulted project okay, but that may help you on the anti-assignment act Why does it help you under the CDA and in particular?

[00:02:57] Speaker 02:
How does it really distinguish the fireman's case?

[00:03:00] Speaker 02:
I mean, I think these cases like firemen's that have Construed the CDA as restrictively as they have may be open to question But there it is and we're bound by it so

[00:03:15] Speaker 02:
How can we distinguish firemen's because you have a settlement agreement as opposed to an assignment?

[00:03:24] Speaker 00:
Well, the answer, Your Honor, I think, is this.

[00:03:27] Speaker 00:
Firemen's and the cases cited in the briefs are takeover cases, where the assurity entered into a contract with the government, like we did, to perform under a performance bond, like the guarantee company did.

[00:03:42] Speaker 00:
And in order to do that,

[00:03:44] Speaker 00:
The sureties went out and located a contractor, like Guarantee Company did, and presented that contractor to the government for the government's approval, like the Guarantee Company did, then agreed to finance completion of the work, like the Guarantee Company did.

[00:04:02] Speaker 02:
But I don't understand that those cases might help you if the claims here related to the post takeover performance, but they don't.

[00:04:13] Speaker 02:
aren't I correct about that?

[00:04:16] Speaker 00:
Well, I don't think so, Your Honor, for this reason.

[00:04:19] Speaker 00:
You're right about what they relate to.

[00:04:21] Speaker 00:
But the pre-takeover claims cases deal with the situation where the government raises the anti-assignment acts as a defense, saying that the pre-takeover claims occurred when there was no contract between the default contractor and the government.

[00:04:38] Speaker 00:
The government waived that here, just like it did in the Maharaj case,

[00:04:43] Speaker 02:
Just like I'm sorry, they waive what?

[00:04:45] Speaker 02:
I mean, they waive the anti-assignment act.

[00:04:47] Speaker 02:
Well, fine.

[00:04:47] Speaker 02:
We're not talking about the anti-assignment act.

[00:04:49] Speaker 02:
We're talking about the cases like Fireman's and others that have construed the Contract Disputes Act as limited to contractors and excluding sureties that take by assignment.

[00:05:04] Speaker 02:
And indeed they appear to exclude sureties who are subrogated.

[00:05:10] Speaker 02:
Well, subrogation's not this case, right?

[00:05:13] Speaker 00:
I agree.

[00:05:13] Speaker 00:
It's not subrogation.

[00:05:14] Speaker 00:
But let's analyze those takeover cases.

[00:05:17] Speaker 00:
The takeover cases where the government agreed to hear the pre-takeover cases, the contractor's cases, in the takeover cases where the government waived the Anti-Assignment Act and agreed to that, those cases were before the war.

[00:05:34] Speaker 00:
It's the same thing here.

[00:05:36] Speaker 00:
We've got a contract where the

[00:05:39] Speaker 00:
government and the surety agreed.

[00:05:42] Speaker 02:
Which case says that pre-takeover claims can be brought before the board?

[00:05:48] Speaker 00:
The Maharaj case, which is the Department of Labor Contract Appeals Board, and also the Safeco case, Your Honor.

[00:05:57] Speaker 00:
In that case, the government actually objected to the surety bringing pre-takeover claims.

[00:06:12] Speaker 00:
So, and that's the standard situation where the government wants the anti-assignment acts as a defense.

[00:06:17] Speaker 00:
The government objected in that case to the board hearing pre-takeover claims.

[00:06:23] Speaker 00:
The board analyzed the totality of the facts and the circumstances and determined that there was a waiver of the anti-assignment acts.

[00:06:32] Speaker 02:
Well, that's not what we're talking about.

[00:06:34] Speaker 02:
Where did Moribani suggest that

[00:06:40] Speaker 02:
the CDA was applicable to a pre-takeover claim.

[00:06:46] Speaker 00:
Well, the best answer I can give you, Your Honor, is it's not.

[00:06:51] Speaker 00:
If it's not, it's because of the Anti-Assignment Acts.

[00:06:55] Speaker 02:
No, no.

[00:06:56] Speaker 02:
Fireman said it's because of the CDA.

[00:06:59] Speaker 00:
But in the Fireman's case, the government raised the Anti-Assignment Act.

[00:07:04] Speaker 01:
What do you have that analyzes the CDA in your favor in these circumstances?

[00:07:08] Speaker 00:
The CDA itself, Your Honor, we're a government contractor.

[00:07:11] Speaker 00:
The surety entered into a contract with the government.

[00:07:16] Speaker 04:
But you're not suing on that contract.

[00:07:18] Speaker 04:
You're trying to intervene in the original contractor's suit against the government.

[00:07:24] Speaker 04:
If you were trying to sue over the agreement you entered into with the government, you would be a government contractor for purposes of the CDA.

[00:07:32] Speaker 04:
But you're not doing that.

[00:07:34] Speaker 04:
You're trying to sue on a different contract for

[00:07:39] Speaker 04:
pre-takeover conduct, and Fireman's Fund seems to prohibit that.

[00:07:45] Speaker 00:
Your Honor, here's what we're suing on.

[00:07:47] Speaker 00:
Under the indemnity agreement, which is universal, every Miller Act surety has indemnity agreements.

[00:07:54] Speaker 01:
I have to tell you, I think you have a heck of a policy argument because of the Miller Act.

[00:08:01] Speaker 01:
In effect, what Fireman's Fund says is that the only way that insurance companies

[00:08:09] Speaker 01:
should issue a Miller Act bond is if they get all the cash up front from the contractor because they have no standard remedies, if Fireman's Fund is correct.

[00:08:22] Speaker 01:
But I think it's still finding authority on us.

[00:08:26] Speaker 00:
Well, I guess we have a difference of opinion.

[00:08:29] Speaker 04:
Can I ask you this?

[00:08:30] Speaker 04:
Why isn't the government here?

[00:08:32] Speaker 00:
The government got a flat tire on the way in.

[00:08:34] Speaker 00:
But if the answer is why didn't they appeal?

[00:08:37] Speaker 04:
No, I wasn't joking.

[00:08:38] Speaker 04:
That was a serious question.

[00:08:39] Speaker 00:
No, no.

[00:08:39] Speaker 00:
I didn't mean to be flip.

[00:08:41] Speaker 04:
The government... Well, you were.

[00:08:42] Speaker 04:
The government agreed to your motion to intervene, I think, below, authorize the settlement agreement.

[00:08:51] Speaker 04:
I want to know how they think that was consistent with Fireman's Fund.

[00:08:57] Speaker 03:
Do they know about this case?

[00:08:59] Speaker 00:
Oh, they know all about it, Your Honor.

[00:09:00] Speaker 00:
The reason they didn't appeal is they lost on a motion for summary judgment, which didn't meet the finality requirements.

[00:09:07] Speaker 04:
That's why they didn't appeal.

[00:09:09] Speaker 04:
Sure, but you had a, not final order, but the collateral order thing.

[00:09:14] Speaker 04:
They could have moved to intervene on appeal.

[00:09:18] Speaker 04:
They didn't.

[00:09:19] Speaker 04:
They chose not to.

[00:09:21] Speaker 04:
And I can't tell you why.

[00:09:24] Speaker 04:
Perhaps because they took a second look and once it got to the Justice Department and decided it wasn't consistent with the Fireman's Fund.

[00:09:32] Speaker 00:
Your Honor, I think it is, respectfully.

[00:09:33] Speaker 00:
I think it's consistent.

[00:09:35] Speaker 00:
These cases, these pre-takeover claim cases, the reason they're barred is because the government raised the Anti-Assignment Act.

[00:09:44] Speaker 00:
There's a takeover agreement.

[00:09:45] Speaker 00:
So that's the pendant contract, the takeover agreement between the government and the surety.

[00:09:51] Speaker 00:
Then the question is, how does the surety get to the pre-takeover claims?

[00:09:56] Speaker 00:
The answer is the government waives

[00:09:58] Speaker 00:
the Anti-Assignment Act.

[00:10:01] Speaker 02:
But it still doesn't solve the CDA problem, which is what firemen's and other cases are about.

[00:10:07] Speaker 02:
As Judge Wallach and I have been suggesting, those cases may not make a lot of sense in terms of policy.

[00:10:15] Speaker 02:
But there they are, and we're stuck with them.

[00:10:18] Speaker 00:
Let me try this approach, Your Honor.

[00:10:20] Speaker 00:
We've got the takeover agreement.

[00:10:21] Speaker 00:
The case we're bringing before the appeals court

[00:10:27] Speaker 00:
is Icona's case.

[00:10:30] Speaker 00:
It's assigned to the surety.

[00:10:31] Speaker 00:
The surety is the attorney in fact.

[00:10:33] Speaker 00:
The case we're bringing is Icona's case.

[00:10:37] Speaker 00:
So it's the same claim Icona had.

[00:10:40] Speaker 00:
It's not a different claim.

[00:10:41] Speaker 00:
It's exactly the same claim.

[00:10:43] Speaker 00:
And the ASPCA basically recognized that.

[00:10:46] Speaker 00:
And what it based its opinion on, it's a very narrow opinion on the Burnside Ott case.

[00:10:53] Speaker 00:
which we contend doesn't have anything to do with this.

[00:10:56] Speaker 04:
Well, sure.

[00:10:56] Speaker 04:
I don't find the board judge's reasoning very persuasive, but he didn't look at firemen's.

[00:11:02] Speaker 04:
But I'm still confused as to why you're here and not the government.

[00:11:07] Speaker 04:
It may be that if the government had entered into a takeover agreement with you and you had waived all those claims, that that would be a defense to the contractors, to Kana's case at the board.

[00:11:20] Speaker 04:
But why aren't they the ones asserting it, not you?

[00:11:24] Speaker 00:
Well, I can tell you what Michael Shields, who is the court's attorney, told me.

[00:11:31] Speaker 00:
He told me they sent it to the Justice Department, and the Justice Department didn't determine that it was a final opinion.

[00:11:39] Speaker 00:
And I raised with Mr. Shields the collateral order rule, the relaxed finality requirements for this court.

[00:11:48] Speaker 00:
And my understanding is he couldn't convince the Justice Department to go along with that.

[00:11:54] Speaker 00:
That's my understanding.

[00:11:55] Speaker 04:
But so if we disagree with you and dismiss your appeal and say you can't intervene, the government still has the agreement with you as a defense to Akana's default action, right?

[00:12:12] Speaker 00:
The agreement is still in place, but a material term of it wasn't performed, the dismissal of this appeal.

[00:12:20] Speaker 00:
That's a material term of the settlement agreement.

[00:12:23] Speaker 00:
The surety paid $1.4 million.

[00:12:27] Speaker 00:
In return, the government released the surety, released ICANA as well.

[00:12:31] Speaker 00:
And part of the settlement was that we would see to the dismissal of the case based on the indemnity agreement, the assignment provisions, and the power of attorney, which were specifically negotiated with the government.

[00:12:48] Speaker 00:
And if the court looks at Robert Wood's declaration, the contracting officer, and the government's brief

[00:12:54] Speaker 00:
It's clear that the government knew all about this beforehand.

[00:12:59] Speaker 00:
That was the essential.

[00:13:00] Speaker 01:
What you did is what's normally done in the bonding industry.

[00:13:05] Speaker 00:
Correct.

[00:13:07] Speaker 00:
Well, the other thing here to keep in mind, I think what this surety did was exemplary.

[00:13:13] Speaker 00:
We've got a project here.

[00:13:15] Speaker 00:
It's security at the Pentagon.

[00:13:18] Speaker 00:
It was falling behind.

[00:13:19] Speaker 00:
The government's got a bond.

[00:13:21] Speaker 00:
It wants to finish this job.

[00:13:23] Speaker 00:
If the surety walked away and said, we're going to let the thing go through the whole dispute of appeals and appeals to the appeals.

[00:13:32] Speaker 00:
Meanwhile, we've got this security project at the Pentagon.

[00:13:35] Speaker 01:
I'll tell you this.

[00:13:37] Speaker 01:
If we're bound by firemen's, I think you ought to seek in bank.

[00:13:43] Speaker 01:
That's my opinion.

[00:13:45] Speaker 02:
Well, you want to sit down on that now?

[00:13:47] Speaker 00:
Yeah, I think I'll foot while I'm ahead.

[00:13:50] Speaker 00:
Your Honor, I didn't mean to be flippant.

[00:13:51] Speaker 00:
The man called me and said he was coming, but he had a flat tire.

[00:13:54] Speaker 00:
I thought that's what you were asking.

[00:13:56] Speaker 00:
Honestly.

[00:13:58] Speaker 04:
Oh, you mean whether there was somebody here or not?

[00:14:00] Speaker 00:
Yes, I thought you were asking.

[00:14:01] Speaker 00:
Michael Shields.

[00:14:02] Speaker 00:
OK, thank you.

[00:14:08] Speaker 02:
Mr. Scott.

[00:14:14] Speaker 03:
May it please the court.

[00:14:16] Speaker 02:
So this Burnside-Ott theory is just wrong, right?

[00:14:21] Speaker 03:
I was surprised to see that.

[00:14:23] Speaker 03:
I did not argue it.

[00:14:25] Speaker 03:
I don't think, candidly, that the agreement between the GIA would violate Burnside-Ott.

[00:14:36] Speaker 03:
The settlement agreement might, but I think Burnside-Ott, I was surprised that when there were so many easier ways to go in this case.

[00:14:45] Speaker 03:
under the CDA.

[00:14:46] Speaker 03:
Farman's Fund, this contract.

[00:14:49] Speaker 02:
You're not contending that the Anti-Assignment Act is a bar here, right?

[00:14:55] Speaker 02:
No, I think it is, but I don't think I need to go there.

[00:14:57] Speaker 02:
Why would it be a bar given the agreement to the government's apparent waiver of the Anti-Assignment Act?

[00:15:04] Speaker 03:
The Farman's Fund said that the general indemnity agreement could not be when used by the government.

[00:15:12] Speaker 03:
could not be used because of the Anti-Assignment Act.

[00:15:14] Speaker 03:
You could not assign the contract, I mean the claims.

[00:15:20] Speaker 03:
They're doing the same thing now in a slightly different way.

[00:15:24] Speaker 04:
But the government can waive that.

[00:15:25] Speaker 04:
The government has the authority to assert an Anti-Assignment Act problem, but they can waive it.

[00:15:32] Speaker 04:
So they can allow assignment of claims to assurity.

[00:15:35] Speaker 03:
Absolutely.

[00:15:36] Speaker 03:
But they took none of the steps.

[00:15:39] Speaker 03:
that were required here to waive that.

[00:15:41] Speaker 04:
For example, your view is the settlement agreement between the surety and the government is insufficient under the Anti-Assignment Act to constitute Waitner.

[00:15:49] Speaker 03:
Yes.

[00:15:49] Speaker 04:
Assuming it was that the government did take the proper steps and this settlement agreement is a takeover agreement and qualifies under the Anti-Assignment Act, then the government can waive those problems and the claims would be the sureties, right?

[00:16:09] Speaker 03:
Yes, but they could never under the Contract Disputes Act.

[00:16:12] Speaker 02:
That's the issue.

[00:16:13] Speaker 02:
It's a different issue.

[00:16:13] Speaker 03:
They can't ever get to the board or have any standings in the board because that's settlement agreement.

[00:16:20] Speaker 03:
Sure, they can't.

[00:16:21] Speaker 04:
They can't.

[00:16:22] Speaker 04:
But if the government had done a proper takeover agreement, waived all the claims, and the claims became the sureties, and then the surety and the government entered into a settlement agreement getting rid of everything, then the government might be able to use that as a defense against you.

[00:16:37] Speaker 04:
The surety still has no place in the board, actually.

[00:16:42] Speaker 03:
I think you're correct.

[00:16:42] Speaker 04:
Unless the government somehow breaches its contract with the surety.

[00:16:46] Speaker 03:
That's correct.

[00:16:47] Speaker 04:
And I think what will happen... First of all, I do want to answer... So you anticipate, even if they lose, getting a defense from the government, that your claims are barred by the settlement agreement?

[00:16:58] Speaker 03:
There's an odd circumstance, because not only did GCNA say that they were going to cause these claims to be...

[00:17:07] Speaker 03:
dismissed, but if the government's required to pay any money, then GCNA indemnifies the government.

[00:17:17] Speaker 03:
So no matter what, I think this is going back to the district court in Virginia to determine what happens next under the Bell case.

[00:17:28] Speaker 03:
That's candidly what I think is going to happen with this case, because if ICANA loses,

[00:17:37] Speaker 03:
It's over.

[00:17:38] Speaker 03:
I mean, it's over.

[00:17:38] Speaker 03:
Nothing happens.

[00:17:40] Speaker 03:
They can come after GCNA.

[00:17:42] Speaker 03:
I mean, GCNA can come after ICANA under the indemnity agreement.

[00:17:48] Speaker 03:
If they win and money is determined to be owed, then that's where really it's interesting is that that settlement agreement or

[00:18:02] Speaker 03:
Or do we have to go back to the district court in Virginia to determine what then the indented agreement really says, and was there bad faith in all these other issues that are raised in that court?

[00:18:13] Speaker 02:
OK, but that's for some other proceeding.

[00:18:18] Speaker 02:
But tell me again, is the Anti-Assignment Act a problem here, or has it been waived by the government?

[00:18:27] Speaker 03:
based on the facts that's presented and what has happened.

[00:18:30] Speaker 03:
It has not been waived by the government.

[00:18:32] Speaker 03:
The Anti-Assignment Act was not even addressed.

[00:18:35] Speaker 03:
I mean, the assignment of the claims was not addressed in the settlement agreement.

[00:18:39] Speaker 03:
There's nothing in the record that suggests they even knew about the general indemnity agreement or anything else.

[00:18:46] Speaker 03:
And none of the requirements for waiver have been met.

[00:18:49] Speaker 03:
So the Anti-Assignment Act is applicable in that they haven't waived it.

[00:18:57] Speaker 03:
To answer one of the questions that the court asked earlier, Mr. Pike has argued that the settlement agreement itself is a contract under the CDA, and it is not.

[00:19:11] Speaker 03:
Under 41 USC 7702.

[00:19:13] Speaker 02:
It's not within the categories of contracts.

[00:19:17] Speaker 03:
I'm sorry?

[00:19:18] Speaker 02:
It's not within the categories.

[00:19:19] Speaker 03:
It's not within the categories.

[00:19:21] Speaker 03:
It's not a contract.

[00:19:24] Speaker 04:
It's just not a CDA contract.

[00:19:26] Speaker 03:
It's not a CDA contract, so therefore they're not a contractor under the CDA.

[00:19:31] Speaker 03:
The board never had jurisdiction and can never have jurisdiction.

[00:19:36] Speaker 04:
But that's only if we view it as not a takeover agreement under the Anti-Assignment Act.

[00:19:42] Speaker 04:
sufficient under the Anti-Signment Act as a takeover agreement, then it is a CDA contract.

[00:19:48] Speaker 04:
It turns them into a contractor.

[00:19:50] Speaker 03:
Only under a Farman's Fund and all the other cases, only for post importation.

[00:19:56] Speaker 03:
And then there's not even a claim on that contract yet.

[00:20:01] Speaker 03:
You'd have to take a couple of steps.

[00:20:04] Speaker 02:
We understand.

[00:20:04] Speaker 02:
These are pre-takeover claims, right?

[00:20:07] Speaker 03:
Yes, these are pre-takeover claims.

[00:20:08] Speaker 01:
What about the policy question I raised about

[00:20:12] Speaker 01:
the discouragement of bonding companies from issuing the Miller Act bond?

[00:20:18] Speaker 03:
I think the bigger issue is for contractors that would be willing to enter into a general indemnification agreement that required them to give up their rights to be able to pursue the government for wrongful action so they could indemnify the surety.

[00:20:34] Speaker 03:
That's where I think the issue comes in.

[00:20:36] Speaker 03:
As a policy issue,

[00:20:38] Speaker 01:
I'm noticing a question, it cuts both ways.

[00:20:41] Speaker 03:
It cuts both ways.

[00:20:43] Speaker 01:
The problem I was with the law as it's interpreted right now, under the CDA.

[00:20:50] Speaker 03:
Under the CDA or under Bell, I think that it puts contractors that have agreed to a personal intimidation under a tremendous burden.

[00:21:00] Speaker 03:
That if they can go under and settle all these cases, absent is showing a bad faith, which is very difficult.

[00:21:07] Speaker 03:
But I think there's an argument there here.

[00:21:10] Speaker 01:
And that's an interesting question later on.

[00:21:12] Speaker 03:
That goes back to the district court.

[00:21:16] Speaker 03:
But you can't get there in the board, which is really, I think, the issue here.

[00:21:20] Speaker 03:
Can you get to any of these issues in the board?

[00:21:24] Speaker 03:
And the answer is no.

[00:21:25] Speaker 02:
Is there anything in the history of the CDA that suggests it was intended to bar sureties from suing when they have an assignment from the contractor?

[00:21:37] Speaker 03:
I think Farman's Fund, all the cases.

[00:21:40] Speaker 02:
I'm talking about the legislative history of the CDA.

[00:21:44] Speaker 03:
Your Honor, if I told you I hadn't gone back and looked at that, I cannot answer that question in good conscience and tell you I've gone back and looked at that.

[00:21:53] Speaker 03:
The CDA is, I think this is where Burnside does come into play, that it is the exclusive remedy for a contractor.

[00:22:02] Speaker 03:
And contractors rely on that.

[00:22:05] Speaker 03:
in order to be able to obtain a bond and feel secure that they can provide the indemnification.

[00:22:17] Speaker 02:
OK.

[00:22:18] Speaker 02:
Anything further?

[00:22:19] Speaker 03:
Your Honor, I think that's really it.

[00:22:21] Speaker 03:
Thank you very much.

[00:22:22] Speaker 02:
OK.

[00:22:23] Speaker 02:
Thank you.

[00:22:25] Speaker 02:
Mr. Pike, you have a couple minutes here.

[00:22:35] Speaker 00:
Your honors, we have a government contract.

[00:22:37] Speaker 00:
That's clear.

[00:22:38] Speaker 00:
The question is, does it come within the Contract Disputes Act?

[00:22:43] Speaker 04:
The types of contracts that are recognized... Even if your contract with the government comes within the Contract Disputes Act, that's not the contract that was before the board.

[00:22:58] Speaker 04:
The contractor sued on its contract.

[00:23:01] Speaker 04:
And so the question is, are you allowed to intervene and get rid of their claims?

[00:23:06] Speaker 04:
under that separate contract?

[00:23:08] Speaker 00:
Yes.

[00:23:09] Speaker 00:
We intervene as the assignee and as the attorney in fact.

[00:23:14] Speaker 00:
Now, Mr. Scott indicated that no sure no contractor would sign an indemnity agreement.

[00:23:23] Speaker 00:
ICANA could have avoided all of this.

[00:23:25] Speaker 00:
We made a collateral demand.

[00:23:27] Speaker 00:
If they would have met the collateral demand, they could have gone forward.

[00:23:30] Speaker 00:
They breached on the collateral demand.

[00:23:33] Speaker 00:
The collateral demand in the court recognizes, the board recognized it, and so did the Eastern District of Virginia.

[00:23:39] Speaker 00:
That activated the assignment clause.

[00:23:41] Speaker 00:
That activated the attorney in fact clause.

[00:23:43] Speaker 00:
When we go in to intervene, we are intervening as ICANA, as their attorney in fact, through the assignment and attorney in fact clauses.

[00:23:54] Speaker 00:
Those facts are in dispute.

[00:23:58] Speaker 04:
I think they are.

[00:23:59] Speaker 04:
I think your friend on the other side just got up and said that the government didn't follow the sufficient procedures to get the follow-through agreement and to waive the Anti-Assignment Act defenses.

[00:24:14] Speaker 04:
I mean, settle an agreement with the surety may or may not waive the anti-assignment.

[00:24:18] Speaker 04:
We don't have enough.

[00:24:20] Speaker 04:
That issue's not really before us.

[00:24:23] Speaker 00:
The anti-assignment issue?

[00:24:24] Speaker 04:
Yeah.

[00:24:24] Speaker 02:
I mean, I don't think it matters one way or another.

[00:24:26] Speaker 02:
Is the government taking a position on the anti-assignment act?

[00:24:29] Speaker 00:
Oh, yes, your honor.

[00:24:32] Speaker 00:
Well, their position is that they waived it.

[00:24:34] Speaker 00:
And if one looks at Contracting Officer Wood's declaration, which is attached to the government's motion for summary judgment, the government goes on and on for six, eight pages about the assignment, the negotiations.

[00:24:49] Speaker 00:
They recognize the assignment to the surety.

[00:24:51] Speaker 00:
They recognize that the surety was now

[00:24:54] Speaker 00:
assignee and attorney.

[00:24:55] Speaker 00:
In fact, this has clearly been waived.

[00:24:57] Speaker 00:
There's no question about that.

[00:25:01] Speaker 04:
Well, I mean, there are procedures to follow up under the Anti-Simon Act.

[00:25:07] Speaker 04:
So is it clear that they followed the proper procedures?

[00:25:11] Speaker 00:
I can't tell you that, Your Honor.

[00:25:13] Speaker 00:
I can tell you there's nothing in the legislative history that deals with this situation or would bar a surety from doing exactly what this surety did here.

[00:25:25] Speaker 00:
I've researched that pretty thoroughly.

[00:25:28] Speaker 02:
Okay.

[00:25:29] Speaker 02:
Thank you, Mr. Pike.

[00:25:30] Speaker 02:
Thank both of you.

[00:25:30] Speaker 02:
Thank you, Your Honors.

[00:25:31] Speaker 02:
The case is submitted.