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

[00:00:02] Speaker 02:
Next case is Advanced Powder Solutions versus the Secretary of Defense, 2020-12-67, Mr. Baines.

[00:00:12] Speaker 00:
Good morning.

[00:00:13] Speaker 00:
Good morning, distinguished members of the panel and may it please the court.

[00:00:17] Speaker 00:
This is Bryant Baines arguing for the Appellant Advanced Powder Solutions.

[00:00:23] Speaker 00:
Your Honors.

[00:00:25] Speaker 00:
The issues were, the issues, there were two issues that were here to ask the court to decide today.

[00:00:30] Speaker 00:
The first one is whether the ASBC erred when it dismissed a case's moot after a contracting officer withdrew a final decision.

[00:00:42] Speaker 00:
But a challenge to that practice remained.

[00:00:45] Speaker 00:
And especially whereas here the government claimed that the

[00:00:51] Speaker 00:
that the claim that it was unsubstantiated was wrong and that it was, and it disputed that it was being withdrawn.

[00:00:58] Speaker 01:
Is it your argument that, that whenever a motion for summary judgment is pending, that a case cannot be dismissed as moot?

[00:01:07] Speaker 00:
No, your honor, that's not, not always, but in this instance, I think that, uh, that the facts of the case dictate that the challenge practice remained for several reasons.

[00:01:18] Speaker 00:
One, uh,

[00:01:20] Speaker 00:
The voluntary cessation doctrine applies here and the Board or the government did not unequivocally withdraw the claim and say that it would not bring it again as the Board had required in prior cases.

[00:01:34] Speaker 00:
Secondly, when you look at the motion for summary judgment and then the government's issues of disputed fact that it raised below

[00:01:44] Speaker 00:
We stated or we cited to the first or the amended contracting officer's final decision that accepted the indirect rates and said that there shouldn't have been any issue of disputed fact about that summary judgment was appropriate because there was no material fact raised.

[00:02:05] Speaker 01:
The government... Is the only thing that you're pointing to indicate that it's not unequivocally withdrawn

[00:02:14] Speaker 00:
uh... the may twenty nineteen proposed deferment agreement no your honor uh... we're also pointing to the government's response to the uh... to the motion for summary judgment at page uh... at appendix one twenty six the first line of that says the government disputes that the amended cofd established that the mda contract claims and cofd quote were unsubstantiated and being withdrawn so they actually disputed both things well what was the timing of that response

[00:02:43] Speaker 00:
The timing of that response was at or around the same time as the motion to dismiss was being briefed and decided.

[00:02:51] Speaker 00:
So these were contemporaneous motions.

[00:02:53] Speaker 00:
They were being argued and briefed at the same time.

[00:02:57] Speaker 00:
The other issue, Your Honor, is that when you look at the deferment agreement, it's very problematic in this context.

[00:03:06] Speaker 00:
It acknowledges the prior debt.

[00:03:09] Speaker 00:
And I'm looking at Appendix 174.

[00:03:12] Speaker 00:
It acknowledges the prior debt of 350,000 and change.

[00:03:16] Speaker 00:
It also says in paragraph four that, or paragraph five, that the contractor agrees to pay the government the debt.

[00:03:27] Speaker 00:
So it acknowledges the debt.

[00:03:29] Speaker 00:
And then most problematic is that it says if the appeal is withdrawn or dismissed by the ASBCA without decision, the contractor agrees to pay the government the debt.

[00:03:40] Speaker 00:
So let me back up.

[00:03:42] Speaker 01:
Didn't the court find that that deferment agreement likely represented a mistake?

[00:03:48] Speaker 00:
I'm sorry, Your Honor.

[00:03:51] Speaker 01:
No, go ahead.

[00:03:52] Speaker 00:
The government had a full opportunity to say it was a mistake below and did not.

[00:03:56] Speaker 00:
In fact, they confirmed it.

[00:03:58] Speaker 00:
They confirmed the number.

[00:04:00] Speaker 00:
We first raised it to the government directly, to the contracting officer directly.

[00:04:05] Speaker 00:
And then in our briefing on the motion to dismiss,

[00:04:10] Speaker 00:
We raised this issue and that's at page, that's at appendix 166 through 174, your honor.

[00:04:25] Speaker 00:
We raised that and get the government, we raised it first to the contracting officer and said this is an error, please change this, we don't wanna acknowledge this debt and we're worried that you're gonna seek dismissal and then we're gonna have to pay it or we're gonna have to set aside money as the last paragraph requires

[00:04:39] Speaker 00:
on page 175 of the appendix.

[00:04:45] Speaker 00:
The contracting officer did not respond to it, and then in the briefing, the government just continued and said in response to it that it was beneficial somehow.

[00:04:56] Speaker 00:
They did not argue that it was a mistake, and they did not argue any of the other factors.

[00:05:01] Speaker 00:
In fact, that's the most critical point here, Your Honor.

[00:05:05] Speaker 00:
In our initial briefing,

[00:05:09] Speaker 00:
In footnote one on page 23, we raised an issue of the Chenery Doctrine.

[00:05:15] Speaker 00:
The government, in this case, argues no less than five things that it did not argue or raise below.

[00:05:21] Speaker 00:
And under the Chenery Doctrine, the government cannot defend a case on a basis that it did not raise before the administrative tribunal below.

[00:05:30] Speaker 00:
First of all, on the motion to dismiss, there are at least three things that the government didn't raise below.

[00:05:36] Speaker 00:
It did not raise that the voluntary cessation doctrine does not apply to the board.

[00:05:41] Speaker 00:
In fact, it disputed, as I pointed out earlier, in its opposition to the motion for summary judgment of appendix 126, it actually disputed that the contracting officer's final decision was withdrawn.

[00:05:57] Speaker 00:
It had a full opportunity to say it was a mistake, an error, but instead it confirmed the number and said we're going with that.

[00:06:03] Speaker 00:
The second thing it did

[00:06:05] Speaker 00:
uh... it didn't raise the government didn't raise below it did not assert and uh... it provided no evidence that the deferment agreement was a typo the board had no evidence oh i'm sorry councilman council on february eleventh twenty nineteen uh... wasn't there in fact a decision withdrawing the overpayment claim it withdrew it your honor but it didn't unequivocally withdraw and it did not promise to not bring it again

[00:06:34] Speaker 02:
didn't have to do that.

[00:06:35] Speaker 02:
There was no requirement that it did.

[00:06:40] Speaker 02:
It was a decision.

[00:06:41] Speaker 02:
And why didn't that decision determine, move your claim?

[00:06:48] Speaker 02:
And therefore, why shouldn't we just send it back to the board and say, attend to the final technical detail and dismiss the summary judgment motion?

[00:07:00] Speaker 00:
Well, Your Honor, the

[00:07:03] Speaker 00:
under the voluntary cessation doctrine applies to any challenge conduct.

[00:07:09] Speaker 00:
And in this case, if the government is able to willy-nilly just withdraw the claim or reinstate it, or in this case, with a deferment agreement, have a contractor acknowledge it again, even after it's been withdrawn, that is very problematic.

[00:07:26] Speaker 04:
Isn't the voluntary cessation doctrine

[00:07:28] Speaker 04:
directed to, as you said, conduct, is to enjoin particular behavior by an agency or action that's being contemplated by a governmental body.

[00:07:42] Speaker 04:
But does it actually apply in situations dealing with a contract?

[00:07:48] Speaker 00:
Absolutely, Your Honor.

[00:07:49] Speaker 00:
In CCL, this court applied it to a procurement.

[00:07:55] Speaker 00:
In Chapman, this court applied it to a procurement violation as well.

[00:08:01] Speaker 00:
So the voluntary cessation doctrine applies to any challenge conduct.

[00:08:05] Speaker 00:
Here, there was a final decision that was incorrect and unsubstantiated, and we had challenged it on a motion for summary judgment.

[00:08:14] Speaker 00:
The board didn't lose jurisdiction.

[00:08:16] Speaker 00:
As Judge Clark pulled in 2019 in the L3 case,

[00:08:20] Speaker 00:
The board doesn't lose jurisdiction merely when a final decision is withdrawn.

[00:08:27] Speaker 01:
Counsel, you're not saying that you want to have resolution on the merits so you could seek fees, right?

[00:08:35] Speaker 01:
You seem to completely reject that idea.

[00:08:40] Speaker 00:
Well, we're not arguing that here, Your Honor, because it's not necessary to get to that point.

[00:08:44] Speaker 01:
As the Court knows... Well, then what is your real interest here?

[00:08:48] Speaker 00:
The real interest is finality, Your Honor.

[00:08:50] Speaker 00:
and consistent interpretation of the Contract Disputes Act.

[00:08:55] Speaker 00:
The court applies the voluntary cessation doctrine as does the Federal Circuit.

[00:09:00] Speaker 00:
And the government has argued for some reason that the voluntary cessation doctrine shouldn't apply to the board.

[00:09:05] Speaker 04:
But you want finality because you're afraid of some sort of action that will occur in the future, that the government will come back for those other funds, correct?

[00:09:16] Speaker 04:
Well, yes, Your Honor.

[00:09:18] Speaker 00:
That's your fear.

[00:09:20] Speaker 04:
You're afraid that the government's going to come back after you sometime in the future.

[00:09:26] Speaker 00:
Well, and that is exactly why the burden is on the government to prove that it won't.

[00:09:30] Speaker 04:
But isn't that speculative?

[00:09:32] Speaker 04:
I mean, we don't know if that's the case or not.

[00:09:35] Speaker 04:
The record indicates that it's not.

[00:09:37] Speaker 04:
But shouldn't the courts wait to rule on this particular issue when, in fact, the government does come back after you?

[00:09:46] Speaker 02:
No, your honor, because... Isn't that what race judicata is for?

[00:09:52] Speaker 00:
Well, your honor, race judicata is to ensure the finality of decisions.

[00:09:57] Speaker 00:
And the, you know, the mootness doctrine is not only about whether the claim was withdrawn, but whether it is actually fully, whether it is final and whether it is unlikely to recur.

[00:10:13] Speaker 00:
That is the government's burden of proof.

[00:10:15] Speaker 00:
The government never proved that it was not likely to occur.

[00:10:17] Speaker 00:
In fact, it disputed that it was withdrawn in its contract in the argument on the motion for summary judgment below.

[00:10:26] Speaker 02:
So... Isn't there a distinction between a practice that might reoccur and a particular claim which won't reoccur?

[00:10:42] Speaker 02:
Well, Your Honor, that's what...

[00:10:45] Speaker 00:
That's what makes the deferment agreement in this context so nefarious and the government's refusal to change it.

[00:10:51] Speaker 00:
Because, you know, when you had both, they had two opportunities to say that the claim was withdrawn and it was unequivocally withdrawn.

[00:10:59] Speaker 04:
What is it that you want the government to say, that they will never bring this claim against you in the future?

[00:11:05] Speaker 00:
Yes, Your Honor, that was what was required in the prior cases before the board, that when they were applying the voluntary cessation doctrine, obviously,

[00:11:13] Speaker 00:
they require the government to come in and say we're not only withdrawing this but we're unequivocally withdrawing and aren't going to bring it again what if the government said that today to the court well i think it's too late now your honor now we're at the point where the government has now that that would be a new argument under the chennery doctrine you know so why would you be satisfied with that sorry your honor regardless of the legal technicalities why wouldn't you be satisfied with that

[00:11:44] Speaker 00:
Well, Your Honor, the government has waffled back and forth on this, and they've had full opportunities to say that we unequivocally withdraw it.

[00:11:57] Speaker 00:
They've had an opportunity to say that our prior claim was unsubstantiated and didn't.

[00:12:02] Speaker 00:
So we have an active dispute of challenge conduct.

[00:12:05] Speaker 04:
Going back to Judge O'Malley's question, what if the government was to say that now?

[00:12:11] Speaker 00:
I don't think it would work now, Your Honor.

[00:12:14] Speaker 00:
I think that's disingenuous and it's not appropriate at this stage to start adding facts.

[00:12:23] Speaker 00:
So we have a situation where the board has obviously found a typo based on nothing

[00:12:30] Speaker 04:
But wouldn't that grant the relief you're looking for?

[00:12:34] Speaker 04:
Because I asked you, what is it that you're looking for here?

[00:12:37] Speaker 04:
And you're looking to a surge of fear, the fear that the government will come after you in the future.

[00:12:44] Speaker 04:
The government tells you today, we're not going to come after you in the future.

[00:12:48] Speaker 04:
Isn't that case over?

[00:12:51] Speaker 00:
Well, Your Honor, it's not over until the summary judgment is entered.

[00:12:55] Speaker 00:
Because we have asked for two things.

[00:12:57] Speaker 00:
We've asked for

[00:12:58] Speaker 00:
We've asked for the court to find that... But there's no controversy anymore, is there?

[00:13:04] Speaker 00:
Yes, Your Honor, there's challenge conduct.

[00:13:06] Speaker 00:
The court is certainly, or the board was certainly able to decide that the government claim was unsubstantiated and that the costs that were previously challenged as not reasonable, allocable, or allowable were actually found to be... But if the government says today, we're not going to pursue you in the future,

[00:13:28] Speaker 04:
Does it that moot all of these arguments you're making?

[00:13:31] Speaker 00:
No, Your Honor, it doesn't.

[00:13:34] Speaker 00:
Because they can't, this is an administrative, this is a review of an administrative tribunal and a certain posture.

[00:13:43] Speaker 00:
And so it doesn't moot it today.

[00:13:45] Speaker 00:
It doesn't erase the deferment agreement that's still there and has never been changed.

[00:13:50] Speaker 02:
Councilor, why don't we hear from the government now?

[00:13:54] Speaker 02:
We'll hear from the government now.

[00:13:56] Speaker 02:
save two minutes of your rebuttal time?

[00:14:01] Speaker 00:
All right, your honor.

[00:14:03] Speaker 03:
Mr. Yale.

[00:14:06] Speaker 03:
Thank you, your honor, and may it please the court.

[00:14:09] Speaker 03:
I'd like to address a few points.

[00:14:11] Speaker 03:
Just the first point about whether or not this claim had been withdrawn.

[00:14:19] Speaker 03:
Opposing counsel talked about earlier briefing

[00:14:23] Speaker 03:
But what was clear when the briefing was concluded was that both parties agreed that the government's claims of $350,000 that had been withdrawn by the second contracting officer's final decision.

[00:14:43] Speaker 03:
And so we think that without that claim, then there's no statutory jurisdiction.

[00:14:48] Speaker 03:
There's no wide dispute left.

[00:14:51] Speaker 03:
And so, we think that that covers it.

[00:14:55] Speaker 04:
Now, the... And, John, would you say that that's a final decision made by the contracting officer?

[00:15:01] Speaker 03:
Well, yes.

[00:15:04] Speaker 03:
It's a legal binding decision by the contracting officer withdrawing it.

[00:15:11] Speaker 03:
Now, there was a little bit of confusion early on whether or not the...

[00:15:18] Speaker 03:
the second contracting officer's final decision applied to all three of the contracts.

[00:15:27] Speaker 03:
She specifically stated it applied to the airport contract.

[00:15:32] Speaker 03:
But as the briefing demonstrated and as the government said, what we're talking about is, it says in that contracting officer's final decision, as the board pointed out,

[00:15:43] Speaker 03:
that it applies to the years 2011 to 2013.

[00:15:47] Speaker 03:
So they're applying the same rationale.

[00:15:51] Speaker 03:
She was accepting the indirect rate and applying that to all three contracts.

[00:15:56] Speaker 03:
And so that deals with the claim that was at issue.

[00:16:02] Speaker 03:
And that's the final decision.

[00:16:05] Speaker 03:
And that should move this case without getting into anything else.

[00:16:10] Speaker 01:
Are you talking about...

[00:16:12] Speaker 01:
Are you saying it's unequivocal or not?

[00:16:15] Speaker 03:
Yes, it's, it's unequivocal.

[00:16:18] Speaker 03:
Now there seems to be some, uh, it would appear that advanced patterns arguing that, um, there has to be something else on other than an unequivocal clear withdrawal of the claim and that there needs to be some sort of guarantee promise that in the future, um, this

[00:16:40] Speaker 03:
The claim can't be brought again, but somehow a similar claim based upon, you know, the same indirect costs would be brought again.

[00:16:50] Speaker 03:
We don't see how that's based on any legal principle.

[00:16:55] Speaker 01:
Well, County of Los Angeles versus Davis, the court specifically said that if you're considering voluntary cessation, one of the things you have to determine is whether it can be said with assurance

[00:17:10] Speaker 01:
that there's no reasonable expectation that the alleged violation will recur.

[00:17:14] Speaker 01:
And given the deferment agreement, or proposed deferment agreement, which seemed to basically back away from all the withdrawal, how can we say that that's satisfied?

[00:17:26] Speaker 03:
Well, a couple of points to that, Your Honor.

[00:17:28] Speaker 03:
One, I mean, there's been no case at the board that specifically accepts the voluntary succession doctrine.

[00:17:36] Speaker 01:
Well, I don't even understand that argument, because how can you say

[00:17:40] Speaker 01:
the board applies the mootness doctrine and case and controversy, but we're going to assume it doesn't apply any of its exceptions.

[00:17:49] Speaker 01:
That doesn't really make any sense.

[00:17:51] Speaker 03:
Well, there's no case that says that you need to apply all of the specific exceptions, which if you look at the voluntary succession doctrine, what those are really going to, it's really more of an equitable

[00:18:04] Speaker 03:
exception with going to the situation where you have wrongdoing by a party, and they say that they're essentially going to cease that wrongdoing.

[00:18:17] Speaker 03:
There's therefore no live controversy, but the Supreme Court has created this exception so that in the future, this wrongful conduct won't just come into place again.

[00:18:30] Speaker 01:
Well, why doesn't this decision by the contracting officer that APS says was totally unsupported and yet was demanding payment, why isn't that wrongful, at least from the perspective of APS?

[00:18:45] Speaker 03:
Well, a couple of points on that.

[00:18:47] Speaker 03:
One, I mean, there's no claim here that there was some sort of a bad faith bringing of this claim.

[00:18:54] Speaker 03:
I mean, those are allegations that are being made here.

[00:18:58] Speaker 03:
but they had originally stated in their complaint that they had some sort of a good faith and, you know, violation of the duty of good faith and fair dealing.

[00:19:09] Speaker 03:
But they, they, they dismissed that claim.

[00:19:12] Speaker 03:
So the fact of whether or not at the first point in time that whether or not the first contracting officer's final decision was based on substantiated facts, I mean, that's

[00:19:27] Speaker 03:
What would be an issue here is whether or not that they're actually, the conduct is the overpayment.

[00:19:33] Speaker 03:
And there's no case that sets forth that the bringing of a claim in the absence of some sort of bad faith claim is wrongful conduct.

[00:19:42] Speaker 03:
So we think that the voluntary succession doctrine just doesn't apply here.

[00:19:48] Speaker 01:
And frankly- Isn't the point of those exceptions to say there would still be a case of controversy?

[00:19:54] Speaker 01:
And that's why there are exceptions to the rootness factor?

[00:19:58] Speaker 03:
Well, I think to some extent, you know, that, that may be the case, but it's in the situation of, of wrongful conduct and not under a statutory framework about bringing a claim, um, which the bringing of a claim where it's not been even at all alleged to be some sort of.

[00:20:18] Speaker 01:
Well, what if the government asserts this claim after our decision in this appeal that would APS have any recourse?

[00:20:28] Speaker 03:
Well, I mean, there's been no indication that the government would go forth and submit that claim.

[00:20:36] Speaker 01:
Are you prepared to represent to the court today that they would not?

[00:20:42] Speaker 03:
Well, I mean, we can certainly represent to the court the same way in some of these cases.

[00:20:49] Speaker 03:
It says that where, you know, the Pellants' Council has pointed to saying that there's

[00:20:58] Speaker 03:
no intention that the government would bring a claim in the future.

[00:21:01] Speaker 03:
I mean, that's a fair representation.

[00:21:03] Speaker 03:
I mean, we're also talking about where years pass when this withdrawal happened.

[00:21:08] Speaker 03:
But just to be clear, it's, you know, even if you look in our brief, there are cases such as the URS case that specifically dealt with this situation as to whether or not there needs to be some sort of a promise.

[00:21:22] Speaker 03:
So even the board is recognizing that there doesn't need to be a promise to bring in in the future.

[00:21:28] Speaker 03:
So we don't think we ever need to get to the point of a promise or not, because there needs to be a claim for jurisdiction, and that claim has been withdrawn.

[00:21:41] Speaker 03:
And the only real piece of evidence that was brought forth was this draft deferment agreement.

[00:21:52] Speaker 03:
And the board considered that.

[00:21:54] Speaker 03:
It considered whether or not there was some sort of nefarious intent for that.

[00:21:58] Speaker 03:
And it looked at the purpose of it.

[00:22:00] Speaker 03:
And as a factual matter, it considered it and just found that it was an error.

[00:22:06] Speaker 03:
And if you look at that, I mean, what that really is doing is providing protection for contractors because what it's saying is they're not going to go out and collect that amount of money.

[00:22:18] Speaker 03:
And whether or not that needed to be a different amount can be considered an error, but it's certainly not evidence that

[00:22:27] Speaker 03:
you know, that the government is going to go forward and sort of rip-saw as the board pointed out, rip-saw the contractor back and forth.

[00:22:39] Speaker 03:
And we'd also like to point out that, you know, a big purpose of the board is really informal and efficient resolution.

[00:22:51] Speaker 03:
under the statutory framework of these disputes.

[00:22:54] Speaker 03:
And when you look at the chronology of what happened here, you know, there was an appeal, and within a relatively short period of time, within five months, you know, the parties had executed a couple of stays to discuss settlement, and the parties had, you know, and arising out of that was the Second Contracting Officer's final decision.

[00:23:19] Speaker 03:
Um, to, to, you know, essentially provide the release really that's being requested here, which is, um, you know, essentially, uh, adjudicated dealing with the government claims.

[00:23:37] Speaker 03:
And also, and so the notion that there's been some sort of bad faith conduct or some sort of whipsawing, waffling has been portrayed is just not, it's just not accurate.

[00:23:51] Speaker 03:
I'd like to very briefly just address the summary judgment point.

[00:23:56] Speaker 03:
I mean, summary judgment is just a procedural mechanism.

[00:23:58] Speaker 03:
And so, you know, if there's no claims, if those claims have been withdrawn, then there's really nothing left.

[00:24:06] Speaker 03:
for the board to decide on that.

[00:24:09] Speaker 03:
And we think that the board properly didn't reach the issue because it didn't have to reach the issue.

[00:24:14] Speaker 02:
Wasn't there a motion that needed to be disposed of?

[00:24:20] Speaker 03:
Well, the motion, Judge Royce, so the motion was filed after the contracting officer's final decision and the government's motion to dismiss based upon mootness.

[00:24:34] Speaker 03:
And so in response to that,

[00:24:36] Speaker 03:
Um, advanced power certainly responded that, um, you know, they indicated that not only was the air force contract that smooth, um, based upon the final decision, but, um, essentially that all of these had, all of the claims had been withdrawn, which we had, which we later were agreed to.

[00:24:58] Speaker 02:
There was all the motion was the melody.

[00:25:02] Speaker 02:
But if the motion was a nullity, it still should have been disposed of, shouldn't it?

[00:25:09] Speaker 03:
Well, you know, we think that it's moot regardless.

[00:25:13] Speaker 03:
And so if there's no jurisdiction, it wouldn't necessarily need to.

[00:25:18] Speaker 03:
If there's no jurisdiction to hear the case, then it's more along the lines of some sort of procedural technicality.

[00:25:25] Speaker 01:
Well, as the board explained in Murray, once a proper appeal has been filed and jurisdiction attaches, just because something becomes moot doesn't divest the board of jurisdiction.

[00:25:40] Speaker 03:
Well, I mean, I think that that was dealing with a different factual scenario, and that's certainly not the rule that the board has been following in the cases like URS or L3.

[00:25:55] Speaker 03:
and Dynacorp in the cases that we've been putting forth.

[00:26:03] Speaker 03:
The appeal is moot, and if it's a matter of the court, these claims have been withdrawn.

[00:26:13] Speaker 03:
There's no basis for summary judgment.

[00:26:15] Speaker 03:
We have outstanding motions that just need to be denied.

[00:26:22] Speaker 03:
That's something else.

[00:26:24] Speaker 03:
I mean, that's more counsel.

[00:26:26] Speaker 04:
It seems to me that you're, you're arguing that we're the ones that should decide the summer judgment motion.

[00:26:33] Speaker 04:
And we can't, we can't do that.

[00:26:35] Speaker 04:
And that motion is still outstanding and it has not been decided and we cannot decide it.

[00:26:43] Speaker 04:
So doesn't that mean we have to send this back down and instruct the board to dismiss this?

[00:26:50] Speaker 03:
Well, it can be sent back down with an instruction to dismiss.

[00:26:55] Speaker 03:
We are certainly not arguing that you should decide the summary judgment motion.

[00:27:01] Speaker 03:
In fact, we argue the opposite based on banks and other cases.

[00:27:07] Speaker 03:
My point, though, is that there's nothing left.

[00:27:10] Speaker 03:
The basis of the summary judgment motion is gone.

[00:27:15] Speaker 03:
And so the government has accepted the race.

[00:27:20] Speaker 03:
The claims were withdrawn.

[00:27:22] Speaker 03:
And so there's nothing left.

[00:27:24] Speaker 01:
We have a whole body of case law in the context of cases or controversy and discussion of what renders something moot.

[00:27:33] Speaker 01:
And we really do require a pretty unequivocal showing that the claim could not be revived.

[00:27:42] Speaker 01:
And I hear what you're saying as well, but the board can apply case or controversy law to itself and yet not apply the mootness doctrine as the Supreme Court and this court have always articulated it.

[00:28:01] Speaker 03:
Well, I think that that is correct.

[00:28:04] Speaker 03:
And we explain the rationale because this is different.

[00:28:07] Speaker 03:
This isn't a court.

[00:28:08] Speaker 03:
And it's also based upon, it has a statutory jurisdiction based upon a claim.

[00:28:13] Speaker 03:
And that claim no longer exists.

[00:28:15] Speaker 03:
And so the board can accept on credential reason some portion of a mootness doctrine, which or, and view it as, you know, jurisdictional based upon the existence of a claim.

[00:28:31] Speaker 03:
But the board is different because it has this jurisdiction that's based upon the existence of the claim.

[00:28:37] Speaker 03:
And so we don't think it's the same scenario where there's instances of wrongdoing or whatnot.

[00:28:45] Speaker 03:
I mean, some of the cases that this court has... Isn't the misapplication of the law, isn't that wrongful?

[00:28:58] Speaker 03:
application of the law does not seem to be akin to the situations where the mutinous doctrine was put forth in the first place, which would be wrongfulness, like, for example, constitutional violations with discrimination and whatnot.

[00:29:17] Speaker 03:
I mean, here, the conduct at issue in the case is really

[00:29:23] Speaker 03:
whether or not there was an overpayment or not.

[00:29:27] Speaker 03:
It's not the bringing of the claim, which is what's being alleged here.

[00:29:32] Speaker 03:
And so it's not a similar and analogous situation.

[00:29:37] Speaker 03:
And I hear that my time is up.

[00:29:40] Speaker 03:
And so if there's no further questions, I simply ask that the court affirm the judgment of the board.

[00:29:51] Speaker 03:
And alternatively,

[00:29:54] Speaker 03:
you know, send it back with a request to dismiss the summary judgment motion.

[00:30:02] Speaker 02:
Thank you, Mr. Yale.

[00:30:04] Speaker 02:
Mr. Baines has a little rebuttal time.

[00:30:06] Speaker 00:
Thank you, Your Honor.

[00:30:07] Speaker 00:
Your Honor, APS certainly disagrees with the government's argument that APS has not been whipsawed.

[00:30:16] Speaker 00:
When you look at the history of this case and the way the Contract Disputes Act is supposed to work,

[00:30:20] Speaker 00:
The contracting officer is supposed to administratively decide something based on the facts, not just ignore it and take it directly to litigation or take it directly to a final decision that has to then be appealed and then litigation entered.

[00:30:34] Speaker 00:
But that's what happened here.

[00:30:37] Speaker 00:
We have never abandoned the argument that the claims that the government made here were always unsubstantiated, whether it be

[00:30:46] Speaker 00:
you know, through bad faith or just simply a breach of the contract itself or a misinterpretation of the cost accounting standards and the applicable cost principles.

[00:30:57] Speaker 00:
So the purpose of, we would suggest that the purpose of this court is to ensure the uniformity of decisions under the Contract Dispute Act and to ensure that contracting officers perform their duties diligently and that they

[00:31:14] Speaker 00:
that they ensure that these things are substantiated and when, you know, before we even get into litigation.

[00:31:20] Speaker 00:
The problem here is that the contracting officer did not do that and when we got into litigation, the contracting officer ultimately looked at the same evidence as before and then, only then after recommendations from counsel and lots of argument and litigation that went on, they amended the claim, not withdrew it.

[00:31:43] Speaker 00:
There's no unequivocal withdrawal here and there's no promise that this challenge conduct won't occur.

[00:31:50] Speaker 00:
And in terms of jurisdiction, we agree with Judge O'Malley that once you apply mootness doctrines or doctrines like this, that this court interprets under the Contract Disputes Act that they should be applied uniformly and with all elements.

[00:32:08] Speaker 00:
The board has certainly done that since the cases

[00:32:11] Speaker 00:
And they've done that in the cases of the government sites, including Quimba, where they made the government promise that they wouldn't bring it again, or the other cases where the parties just simply didn't oppose that it was moved.

[00:32:25] Speaker 00:
The most recent case on this is L3 by Judge Clark, where the government had a claim, and that site is 19-1 BCA 37288, but March 19, 2019.

[00:32:41] Speaker 00:
But in that case, the board retained jurisdiction on that point after the withdrawal of the COFD because the board said there was jurisdiction.

[00:32:52] Speaker 00:
Now, I don't think jurisdiction ends, especially when there's challenge conduct like this that the government has not proven will recur and that it will not do again.

[00:33:02] Speaker 00:
And with that, Your Honors, we will stand on our briefs and ask that I

[00:33:11] Speaker 00:
I know the court has already said or already may believe that it does not have the power to enter summary judgment, but on that last point, I would just suggest that the government has not stated any material facts and has not disputed that its claims were unsubstantiated in any material way.

[00:33:32] Speaker 00:
So on that, we'll stand on the briefs and we thank you for y'all for the panel's time today.

[00:33:39] Speaker 02:
Thank you, Counsel.

[00:33:40] Speaker 02:
We will do our best to figure it out.

[00:33:42] Speaker 02:
The case is submitted.

[00:33:44] Speaker 00:
Thank you, Your Honors.

[00:33:46] Speaker 00:
Have a good day.

[00:33:49] Speaker 04:
The Honorable Court is adjourned until tomorrow morning at 10 a.m.