[00:00:01] Speaker 00: The next argued case is number 21, 1830, CSI Aviation Incorporated against the Department of Homeland Security, General Services Administration. [00:00:17] Speaker 00: Mr. Workmaster. [00:00:20] Speaker 02: May it please the court. [00:00:22] Speaker 02: This case presents a single issue. [00:00:25] Speaker 02: Did CSI's commercial item schedule contract with the General Services Administration [00:00:32] Speaker 02: incorporate CSI's standard commercial terms and conditions that they have used with all of their customers for decades. [00:00:39] Speaker 02: And those terms and conditions, of course, in the schedule program is a commercial item acquisition. [00:00:45] Speaker 02: Those terms and conditions are the baseline for the entire Scales program. [00:00:50] Speaker 02: Under this court's decision in Northrop Grumman, the answer to that question is clearly yes, as we've explained in our papers, [00:00:59] Speaker 02: The CSI Term and Conditions were incorporated into the contract when the contract was awarded in 2009. [00:01:04] Speaker 02: So let me ask you this. [00:01:07] Speaker 03: If we agree with you that the board improperly granted summary judgment in the government's favor, does that automatically mean that summary judgment should have been granted in your favor? [00:01:18] Speaker 03: In this case, yes, Your Honor, it does. [00:01:20] Speaker 03: Well, let me ask you this hypothetical, because the language that incorporates it is certainly in your favor, but it's not altogether clear to me. [00:01:30] Speaker 03: I think the board got hung up on [00:01:32] Speaker 03: which specific document it referenced, and that seems to me just to be not what Northrop requires. [00:01:38] Speaker 03: It's a clear intention of the parties, not just you, the parties to incorporate another document. [00:01:45] Speaker 03: And so I don't think that the board got to the step of looking at the terms and conditions document and determining whether the parties intended to incorporate those terms. [00:01:56] Speaker 03: So here's my hypothetical, and I don't have a record to determine this myself. [00:02:01] Speaker 03: Your terms and conditions document is not one that's specifically written for the government, right? [00:02:06] Speaker 03: It's used for all kinds of commercial charter flights, including private parties. [00:02:10] Speaker 03: Yes, Your Honor. [00:02:10] Speaker 03: It's the Schedules Program. [00:02:11] Speaker 03: So do we know whether or not some of those terms and conditions listed in that document are inconsistent with other terms of the government contract? [00:02:23] Speaker 02: The government has, in the litigation below, this issue isn't for the court right now, but the government has, in the past, asserted that there is [00:02:30] Speaker 02: that there is a conflict, Your Honor. [00:02:31] Speaker 02: But that is a question of contract interpretation. [00:02:33] Speaker 03: No, no, no, no. [00:02:34] Speaker 03: So here's what I want to ask you about. [00:02:36] Speaker 03: Because I understand you want to shut that off and say, well, to the extent there may be some inconsistency, we look at contract interpretation, we look at order of precedence, and the like. [00:02:45] Speaker 03: That may be true, but it also may have some evidence on whether the party is intended to incorporate them, I think. [00:02:53] Speaker 03: And I think that nobody has grappled with this question. [00:02:56] Speaker 03: What if, and let me finish the hypothetical finally, you have 12 separate conditions in this document, and you go through these documents, and 10 of them clearly conflict with the contract. [00:03:08] Speaker 03: And there's no way the government would ever agree with 10 of them. [00:03:13] Speaker 03: Two of them don't seem to conflict. [00:03:15] Speaker 03: Do you think that that's a clear evidence that the government intended only to incorporate the ones that don't conflict or incorporate the whole document but then go back to contract interpretation? [00:03:27] Speaker 03: It seems to me that if you're adding a standard document that wasn't written specifically for the government and it largely conflicts with the contract itself, [00:03:37] Speaker 03: the rest of the contract itself, it suggests that that document really, the parties did not intend mutually to incorporate it. [00:03:48] Speaker 03: Now, I understand we have no factual basis to make that determination one way or another, but it seems to me that the board, that's a question that the board should have looked into intent. [00:03:58] Speaker 03: And I don't understand why that just because the government should not have won on summary judgment, [00:04:05] Speaker 03: that you automatically win without looking at the party's intent here and whether there's any genuine, you know, disputed issues of fact, one of which seems to be this. [00:04:15] Speaker 02: Well, Your Honor, under this Court's, a few thoughts on that, Your Honor. [00:04:18] Speaker 02: Under this Court's standard in North Brampton, we meet that standard. [00:04:22] Speaker 02: The contract is not ambiguous on this question. [00:04:24] Speaker 02: We start with the contract language. [00:04:26] Speaker 02: You don't go to anything outside of the contract language. [00:04:28] Speaker 02: as this court has made clear in numerous cases, unless there is an ambiguity. [00:04:33] Speaker 03: And if you look at the language here, Your Honor, you have when the contract was... Okay, I get that, but can you, let me just, because I gave you a really long speaking question, I didn't really let you answer my hypothetical. [00:04:43] Speaker 03: Do you think it would be unambiguous with the reference language you have, but referencing a document where [00:04:51] Speaker 03: Let me make the hypothetical even more extreme. [00:04:53] Speaker 03: 11 of the 12 conditions clearly couldn't apply. [00:04:57] Speaker 03: Would that still be unambiguously incorporating that document? [00:05:01] Speaker 02: Yes, Your Honor. [00:05:02] Speaker 02: And as GSA's own regulations contemplate that very scenario, Your Honor, GSA for years has incorporated contractors. [00:05:11] Speaker 02: I mean, the GSA Schedules Program is all about [00:05:13] Speaker 02: selling commercial items to the government. [00:05:14] Speaker 02: The predicate is you've been selling this commercially, you come in to us, you make your offer, you sold it commercially, here's the pricing, and schedule contractors all the time submit their standard terms and conditions that they have for years. [00:05:27] Speaker 02: GSA has negotiated with those for years, and they've incorporated them for years, and there is now in the GSA's regulations a very provision [00:05:34] Speaker 02: the contemplates if you've been ended it and that provision is actually out in CSI schedule contract which takes care of this issue the government gsa doesn't want to negotiate all the terms out of it was it's a it says your honor that there are certain clauses and we cite this in our papers it's a gsar is the five fifty two two twelve dash four provision and i there might be another citation there but there's a specific provision gsa's regulations that say certain [00:06:03] Speaker 02: terms that are in a contractor's terms and conditions. [00:06:05] Speaker 02: If they conflict, for example, open-ended indemnities that the government can't agree to, that provision says, a standard GSA provision says, that provision will be read out. [00:06:17] Speaker 02: And the reason for that, of course, is so that you don't have to engage in negotiating term by term by term. [00:06:23] Speaker 02: There are certain terms in a contractor's terms and conditions that are simply out of the contract by virtue of regulation. [00:06:33] Speaker 04: It seems to me that you've got two theories here. [00:06:35] Speaker 04: One is that there was incorporation of the terms and conditions in the offer document. [00:06:42] Speaker 04: Let's put that one aside for the moment. [00:06:45] Speaker 04: The other theory is that it was incorporated in the price list. [00:06:52] Speaker 04: That second theory, it seems to me, is troublesome because what it says is the terms and conditions that exist now are in the future. [00:07:03] Speaker 04: I wonder whether the incorporation doctrine really allows for a situation where there's a changing landscape. [00:07:11] Speaker 04: in a changing provision. [00:07:13] Speaker 04: That just doesn't seem to me right, that that's what the government would want to agree to. [00:07:18] Speaker 02: A few thoughts on that, Your Honors. [00:07:20] Speaker 02: As we also pointed out in our papers, the GSAR provision I just mentioned, the 552-212-4 provision, contemplates exactly that, that the government, GSA, and the contractor will agree to a set of terms and conditions, and then that provision, Your Honor, expressly says the contractor can then make unilateral [00:07:39] Speaker 02: changes to those terms and conditions, so long as they're not material changes. [00:07:44] Speaker 02: And the provisions we're talking about here, the provisions that issue in this, it's what the regulation says, and the government never responds to that. [00:07:52] Speaker 03: It suggests that the government has agreed to those terms and conditions in the first instance, though, and will allow you to make changes. [00:07:58] Speaker 03: We're back at the threshold question of whether the government, in this context, has agreed to this terms and conditions document. [00:08:06] Speaker 03: Yes, Your Honor. [00:08:07] Speaker 03: I mean that regulation doesn't seem to help you very much when we're still answering whether these terms and conditions in this document [00:08:15] Speaker 03: are actually the government intended by mutual agreement to incorporate them. [00:08:23] Speaker 03: Let me ask you this, and I don't want to get into too detailed because there is no factual record here for me to do this, but I'm looking at 5525. [00:08:31] Speaker 03: There are so many different copies of this, and this is where I think the board got hung up, so I'm not going to get hung up about it. [00:08:38] Speaker 03: but it includes a paragraph for fuel charges. [00:08:42] Speaker 03: Isn't the contract, doesn't the contract already cover things like fuel charges? [00:08:46] Speaker 02: 5525 would you say your own? [00:09:04] Speaker 03: fuel charges your honor yes so let me just to be clear what I'm what here's here's my issue is [00:09:13] Speaker 03: The very document that seems to reference this terms and conditions document has a specific laid out right above that item for fuel surcharges, which was in the pricing memorandum. [00:09:27] Speaker 03: And it tells you how to do that. [00:09:29] Speaker 03: I don't know if that conflicts with this, if that supplements it. [00:09:32] Speaker 03: But let's just assume this does conflict with it for purpose of the hypothetical. [00:09:38] Speaker 03: Clearly, what's specifically laid out here would override this, right? [00:09:43] Speaker 02: Well, again, I think, Your Honor, that gets into a question of contract interpretation and where it would fall in the order. [00:09:49] Speaker 03: Well, so again, I guess your answer to this was no. [00:09:52] Speaker 03: But let me make clear one more time that, and I think this regulation argument that you were relying on didn't answer it for me. [00:10:01] Speaker 03: If every single thing in this terms and conditions except for one item [00:10:07] Speaker 03: was clearly in conflict with the rest of the contract document. [00:10:13] Speaker 03: How could you reasonably assume that the government had intended to incorporate the one non-conflicting paragraph by just this general reference? [00:10:24] Speaker 03: That seems to me to be unreasonable. [00:10:28] Speaker 02: On these facts, Your Honor. [00:10:29] Speaker 02: That is, the government's never worked with any of that. [00:10:32] Speaker 02: I understand. [00:10:32] Speaker 03: Can you answer the hypothetical first? [00:10:33] Speaker 03: Is there at some point where, even though the documents may reference and suggest incorporation of document, if you look at the document itself, it's clear that nobody intended that to be incorporated. [00:10:48] Speaker 02: Wouldn't you have clear languages in corporation, Your Honor? [00:10:51] Speaker 02: like we do here where it says with this document that we're looking at. [00:10:54] Speaker 03: Well, there has to be a line, though, right? [00:10:56] Speaker 03: If it says, you know, I incorporate the Dr. Seuss book into my contract, clearly the Dr. Seuss book is not incorporated. [00:11:02] Speaker 03: That's an absurdity. [00:11:04] Speaker 03: But there's a line between what is contract interpretation and what is clearly an aberrant provision that nobody intended to govern. [00:11:13] Speaker 02: I think, Your Honor, there would be a line of reasonableness. [00:11:16] Speaker 02: I would think it would be likely a line of reasonableness. [00:11:18] Speaker 03: And when you have... Doesn't the board have to determine that here as a matter of fact? [00:11:22] Speaker 02: I don't think so, Your Honor, because here there's been an argument that that's the case with these terms. [00:11:27] Speaker 03: And when you have a GSA... Well, the board never got to it because it relied solely on an improperly high standard for incorporation. [00:11:36] Speaker 03: But I would say, Your Honor, that's the only issue that was before the board, the only issue that was before the court, especially when you know... But that's why this is a strange procedural posture, because just because you both cross-move for summary judgment doesn't mean we have to agree with you that one of you gets summary judgment. [00:11:52] Speaker 03: If we see a factual issue, and I see one, [00:11:55] Speaker 03: Why shouldn't we remand it to the board and say, you've got to look at this under a different legal standard and determine, based on disputed facts, whether the parties intended to incorporate this? [00:12:06] Speaker 02: If this court were to find that there is a genuine issue of material fact, yes, Your Honor. [00:12:10] Speaker 02: I would submit there is no genuine issue of material fact here because the language of incorporation is so clear. [00:12:16] Speaker 02: And again, back to the predicate of this is a GSA schedule contract. [00:12:20] Speaker 02: The whole system is designed to serve as a base. [00:12:25] Speaker 02: And this court has held that the Palantir, the CGI federal cases, the importance of commercial terms and conditions when you're dealing with the GSA schedule acquisition. [00:12:33] Speaker 02: This case is like that. [00:12:35] Speaker 02: So I would suggest, Your Honor, to find that because there could potentially be inconsistencies here, which is interesting. [00:12:42] Speaker 02: The government did mention in its briefing before this court a couple that say, well, we've got this. [00:12:47] Speaker 02: I think they referred to it like a choice of law provision in their briefing. [00:12:50] Speaker 02: but your honor what's interesting, the two provisions that are issued here, the cancellation provision and the rounding provision, the government hasn't even argued before this court, although they had ample opportunity to do so, that there was any conflict between those terms and anything else in the contract. [00:13:05] Speaker 03: Since you raised that, and I know you're into your rebuttal time, but on that point, when the government canceled these flights, was there any provision in the contract that got you any kind of [00:13:15] Speaker 03: damages or compensation for the cancel flight for the money you'd already incurred? [00:13:20] Speaker 03: No, Your Honor. [00:13:21] Speaker 02: No. [00:13:21] Speaker 02: I mean, there was a fight at one point prior in the litigation, there was a fight between CSI and the government over whether that issue should be addressed by the cancellation provision or the termination clause. [00:13:32] Speaker 02: So at one point, the government did argue that, that recovery would be under... But is that because this dispute was [00:13:38] Speaker 03: turned up this particular way over cancellation, is your view there's nothing in the contract that like in the cancellation clause, or not in the cancellation clauses, in the termination clauses where you could come back and say, look, I scheduled this, I had to pay this deposit, the airline only gave me back this much, you have to give me this much plus the cost of the flight crew. [00:13:58] Speaker 02: Our view is that these cancellations, the cancellations are great. [00:14:00] Speaker 02: No, but could you under the contract get that other relief? [00:14:05] Speaker 02: only if the cancellation provision here was not available, which it is. [00:14:09] Speaker 03: Let's assume it's not available, or is there something on their contract that could get you damages for cancellation? [00:14:17] Speaker 02: Potentially, Your Honor, if they were to be treated as terminations for convenience. [00:14:22] Speaker 02: In our position, they were not terminations for convenience, they were cancellations. [00:14:29] Speaker 03: Did you not try to seek those kind of damages? [00:14:33] Speaker 03: Because the cancellation [00:14:35] Speaker 03: clause gets you 100% refund in some circumstances, even if it's clear you didn't expend those monies, right? [00:14:42] Speaker 03: That is correct, Ron. [00:14:43] Speaker 02: That is correct. [00:14:46] Speaker 02: Currently before the board, before the court, the only claim that's before the court is the claim for the cancellation charges. [00:14:53] Speaker 02: I did just, and I realize my time is running out. [00:14:56] Speaker 02: But I did just before I sit down, I did also want to make the point that another significant issue with the board's decision is that, Your Honor, before we got to the board, there was not any question between the fundamental purpose of contract interpretation... Can I just... I know, I keep interrupting you when you're... Can I ask you one more thing? [00:15:12] Speaker 03: Because I think the procedural posture of this case is just strange. [00:15:15] Speaker 03: How do you envision this going, even if we agree all the way with you that the cancellation clauses apply? [00:15:21] Speaker 03: Is it just a calculation, automatic calculation? [00:15:25] Speaker 03: Is there any duty to mitigate damages here? [00:15:29] Speaker 02: Our view is that there would be, on the cancellation provision, it would be a calculation of [00:15:37] Speaker 02: the number of flights that were canceled times the price for those flights. [00:15:40] Speaker 03: Even if the government had a defense that your actual method of recovery should have been under the termination for convenience clause, which limits you to actual damage. [00:15:52] Speaker 02: They could argue that, Your Honor, but the board on that issue and an earlier decision, I think it was the April 2020 decision, has already found that the price list that was incorporated into the contract takes precedence over the contract standard termination for convenience clause. [00:16:04] Speaker 02: So that already back below, Your Honor, is already law of the case. [00:16:10] Speaker 03: Well, law of the case at the board, but not here. [00:16:12] Speaker 02: That's correct, Your Honor. [00:16:13] Speaker 02: I see my time is expired. [00:16:18] Speaker 00: OK. [00:16:20] Speaker 00: We'll save you rebuttal time. [00:16:22] Speaker 00: Thank you, Your Honor. [00:16:23] Speaker 00: We can pursue these questions with the government. [00:16:27] Speaker 00: Mr. Chair. [00:16:32] Speaker 01: Your Honors. [00:16:34] Speaker 01: focused narrowly on one aspect of this appeal, which I believe is CSI's strongest argument, which is that the contract incorporated the November 2008 offer under the standard, and part of that offer [00:16:54] Speaker 01: and the November 2008 offer includes 1108 terms and conditions. [00:16:59] Speaker 04: Yeah, it says it specifically. [00:17:01] Speaker 04: The offer document on 5289 says specifically CSI terms and conditions. [00:17:10] Speaker 01: We concede that the language here, the incorporation language here as to the November 2008 offer satisfies the Northrop standard because it is a judicially approved language [00:17:23] Speaker 01: that the judges have accepted. [00:17:26] Speaker 01: Now, after the Northrop Center test, the issue becomes what is the content of the offer? [00:17:33] Speaker 03: And I believe that that portion of the analysis is not necessarily governed by the Wait, are you trying to argue what the board did, which is I'm a little surprised you concede that that language is sufficient, but if you do, you do. [00:17:48] Speaker 03: Are you trying to argue because we can't find in the record one specific version of that document? [00:17:55] Speaker 01: No, Your Honor. [00:17:56] Speaker 01: Here's our position. [00:17:57] Speaker 03: Because these terms and conditions documents, there's multiple copies of them, but they're all largely the same, aren't they? [00:18:04] Speaker 03: There's no material differences between any of them, as I understand it. [00:18:08] Speaker 01: We do not know, Your Honor, because we have pages missing. [00:18:12] Speaker 01: Each of the terms and conditions is a five-page document. [00:18:14] Speaker 01: We have two or five pages missing, and we cannot compare them to make a determination whether or not they're materially similar. [00:18:23] Speaker 03: To be clear, we're not arguing against... Why don't you say that at five... Can you... I'm really... This record is a mess, too. [00:18:31] Speaker 03: I was talking with your friend about one version of it, which appears at 5525. [00:18:38] Speaker 01: Yeah, that's the 1108 terms and conditions. [00:18:42] Speaker 01: And another version in the... And it has 22 paragraphs. [00:18:46] Speaker 01: So on the part is... [00:18:50] Speaker 01: submissions. [00:18:51] Speaker 01: There are three versions of terms and conditions of note. [00:18:56] Speaker 01: Now the 1108 terms and condition, there's appendix page 5525. [00:19:00] Speaker 03: I mean, the 5525 says it's an 1108 one. [00:19:05] Speaker 03: Isn't that what's referenced in the offer? [00:19:06] Speaker 01: Yes, sir. [00:19:07] Speaker 01: As the board has explained, the nomenclature proceeding in the terms and conditions [00:19:16] Speaker 01: is not necessarily a date. [00:19:18] Speaker 01: If I may direct your attention to appendix page number 8704. [00:19:25] Speaker 01: Now we have at least two versions of 2008 offer. [00:19:32] Speaker 04: Is it not the case that the version that appears at 5525 is in the government's files next to the offer document? [00:19:45] Speaker 01: So far, the answer to your question is no. [00:19:53] Speaker 01: No? [00:19:54] Speaker 01: Our position is that there are at least two different versions of the November 2008 offer. [00:19:59] Speaker 04: I'm going to ask you a simple question. [00:20:01] Speaker 04: The government files show that the offer document is next to the terms and conditions that are at 50 foot 25 25, right? [00:20:14] Speaker 01: That is correct. [00:20:16] Speaker 01: It is in fact, I'm sorry about the earlier response. [00:20:18] Speaker 01: That is correct, Your Honor. [00:20:20] Speaker 03: Are you suggesting that there's other terms and conditions documents here that are significantly different from this one? [00:20:27] Speaker 01: As to the three, if I may identify three versions of the terms and conditions of identifying the parties briefings. [00:20:36] Speaker 01: The one is 109 terms and conditions, Appendix page 8704. [00:20:41] Speaker 01: So the one, we have one related upon by CSI is the GSA's contract file. [00:20:53] Speaker 01: The 5525. [00:20:54] Speaker 01: That is correct. [00:20:55] Speaker 01: The CSI explained in its reply brief in rule number three that the CSI does not have to identify [00:21:04] Speaker 04: Which specific pages... Just help me answer my question. [00:21:09] Speaker 04: Where did the other two versions come from? [00:21:11] Speaker 04: They come from government files? [00:21:13] Speaker 04: They come from CSI's files? [00:21:15] Speaker 01: Where do they come from? [00:21:18] Speaker 01: The second one that I just mentioned, one or nine terms and conditions. [00:21:22] Speaker 01: was introduced for the first time at the deposition of one of GSA's contracting officers deposition. [00:21:28] Speaker 04: It was not produced. [00:21:29] Speaker 04: Where did it come from? [00:21:30] Speaker 01: It was not produced. [00:21:33] Speaker 01: We do not know. [00:21:34] Speaker 01: It was introduced by the CSIS council when they were deposing the CO. [00:21:40] Speaker 03: So that's from, let's just assume that's from their record. [00:21:44] Speaker 03: You keep saying 8704 and I keep looking and I don't have an 8704 in my appendix. [00:21:49] Speaker 03: I know there were some problems with the appendix numbering here. [00:21:52] Speaker 03: Do you have this other terms and conditions document you're trying to point us to? [00:21:56] Speaker 03: Do you know where it is? [00:21:59] Speaker 01: Yes, Your Honor. [00:22:00] Speaker 01: It was the exhibit number. [00:22:04] Speaker 03: Did you not bring your appendix with you? [00:22:08] Speaker 03: You need to bring your appendix to oral argument. [00:22:11] Speaker 03: Yes, Your Honor. [00:22:12] Speaker 03: Because my appendix goes from 8702 to 8741. [00:22:17] Speaker 03: Let me just ask you this and step back because I don't think it's going to be helpful to try to dig through this appendix to look for it. [00:22:26] Speaker 03: Are you aware, even if there's different dated versions, that there are material differences between the terms of any of these documents? [00:22:37] Speaker 01: As to the cancellation provision and the rounding provision, the two key provisions, there are no material differences. [00:22:44] Speaker 03: Are there any differences really at all, or are they just kind of cosmetic differences? [00:22:52] Speaker 03: I mean, if you don't know, say, you don't know, but I'm a little, just go ahead. [00:23:02] Speaker 04: Where does the third version come from? [00:23:04] Speaker 01: The third one is the 02, 09 terms and conditions. [00:23:08] Speaker 01: It was the, that one was in fact produced during the, [00:23:14] Speaker 01: talking production during discovery. [00:23:16] Speaker 04: I'm sorry, whose production? [00:23:18] Speaker 01: I believe that was the CSI. [00:23:21] Speaker 01: So it came from CSI's files? [00:23:25] Speaker 04: That is my understanding. [00:23:25] Speaker 04: So two of these came from CSI's files and the 53.5 came from the government files? [00:23:32] Speaker 01: That is correct, Your Honor. [00:23:35] Speaker 01: I want to focus narrowly on [00:23:41] Speaker 03: Let me just back up, because I really want to make sure I understand your argument. [00:23:48] Speaker 03: At the outset, you agreed that this language in the offer was sufficient to suggesting corporation of terms of conditions, but we don't know which one. [00:24:01] Speaker 03: Is that what you're arguing? [00:24:04] Speaker 03: That it was sufficient to indicate that the parties intended to incorporate these terms and conditions, but why wouldn't, did you misstate or did I misunderstand you? [00:24:16] Speaker 01: I must have misstated. [00:24:16] Speaker 01: Our position is that the language incorporating the November 2008 offer is a judicially approved language and it is sufficient. [00:24:30] Speaker 01: Now we dispute whether or not the... What do you dispute then? [00:24:39] Speaker 01: Whether or not any version of terms and conditions, particularly the two provisions that they need, made their way into the contract. [00:24:52] Speaker 03: I don't understand that at all. [00:24:54] Speaker 03: If you agree that the language was legally sufficient to incorporate terms and conditions, and that every copy, despite the fact that we have multiple copies of it, everyone has basically the same clauses, then why does it matter which version we're looking at? [00:25:15] Speaker 03: This is where I think the board went wrong in requiring it to point to a specific document. [00:25:22] Speaker 01: The point I was trying to make is that the concern that you expressed during the prior questioning, which is that it is obvious when we look at the terms and conditions that not every provision was meant to be part of the contract. [00:25:37] Speaker 01: For example, the forum selection clause, it cannot be. [00:25:39] Speaker 01: The parties could not have intended to incorporate the forum selection clause into the contract. [00:25:47] Speaker 01: The next question is, what then do we do with what we have? [00:25:52] Speaker 01: we have various versions of terms and conditions that are incomplete. [00:25:57] Speaker 03: What do you mean they're incomplete? [00:25:59] Speaker 03: I mean, are they really incomplete or are they largely the same? [00:26:03] Speaker 03: I mean, you keep saying they're incomplete, but we've only looked at the one at 5525. [00:26:08] Speaker 03: Is there another one in the record? [00:26:10] Speaker 03: And that's the one from your file. [00:26:12] Speaker 03: Why don't we just assume that that's the right one? [00:26:14] Speaker 03: I'm sure your friend on the other side would probably be happy to say that 5525 is [00:26:22] Speaker 03: is the correct one. [00:26:23] Speaker 03: So we don't have to fumble around with this argument that we don't know which one. [00:26:27] Speaker 03: So if that's the right one, and you agree that that language is sufficient to incorporate that one, then what's the issue here? [00:26:36] Speaker 01: The issue is that the analysis is not finished, even if we were to incorporate any version of the terms and conditions, as you were asking the opposing counsel. [00:26:48] Speaker 01: It is to explain why it is incomplete. [00:26:51] Speaker 01: We have pages missing out of five-page document. [00:26:55] Speaker 01: Each one of the three, each version of the terms and conditions is missing the first two pages. [00:27:04] Speaker 01: What's the first two pages? [00:27:10] Speaker 01: Each version of the terms and conditions cited by the parties is a five-page document. [00:27:15] Speaker 01: but each one of them is missing first two pages. [00:27:19] Speaker 04: Well, it's not missing terms and conditions because they're numbered sequentially and they're all, it goes from one to whatever it is. [00:27:28] Speaker 04: If you look at 5525, there may be some preliminary document that's pages one and two here, but the terms and conditions are right there, numbered, right? [00:27:43] Speaker 01: That is correct, but the thing is, [00:27:45] Speaker 01: the terms and conditions themselves report to the first page of this charter agreement and we cannot find the first page that the terms and conditions were referring to. [00:27:57] Speaker 04: Where does it refer to the first page? [00:28:01] Speaker 01: You explained in our brief that [00:28:21] Speaker 03: Do you have any reason to believe that the first two pages have additional terms and conditions? [00:28:28] Speaker 01: No, Your Honor. [00:28:29] Speaker 03: Well, they didn't incorporate a document by reference that might have had other preparatory pages. [00:28:36] Speaker 03: They incorporated terms and conditions, which this seems to be a complete copy of. [00:28:42] Speaker 01: Your Honor, the contract incorporates the offer. [00:28:47] Speaker 01: And terms and conditions are not necessarily part of the offer. [00:28:51] Speaker 01: And even if all the concerns that you expressed were... Wait, wait. [00:29:02] Speaker 03: Can I just stop again? [00:29:03] Speaker 03: I really am baffled as to what you're arguing. [00:29:06] Speaker 03: You agree that the language in the offer is sufficient to incorporate terms and conditions as referenced? [00:29:18] Speaker 01: Legally sufficient. [00:29:20] Speaker 01: It is legally sufficient to incorporate the offer, which does not include terms and conditions. [00:29:28] Speaker 03: I thought the offer expressly referenced terms and conditions. [00:29:33] Speaker 01: That is correct, but the offer also says these terms and conditions are included for references and also for the purposes of having the standard commercial warranty apply. [00:29:52] Speaker 03: D. I fail to understand why the fact that there are two preceding pages to what appears to be a complete terms and conditions document has any relevance here. [00:30:07] Speaker 03: If this is a complete terms and conditions document, and let's just assume that the other two pages have no relevance to this case whatsoever, [00:30:19] Speaker 03: then those are the facts and we have an offer that incorporates these terms and conditions and they're clear even though there's different copies let's just go with this one then I don't I mean I failed to understand how we could not rule where the contractor you're the [00:30:49] Speaker 01: because it is clear that not every single term of provision on the terms and conditions is meant to be incorporated. [00:30:57] Speaker 01: Now, the next question is that if it's still each term... Wait, wait, wait. [00:30:59] Speaker 03: So, yeah, no, no, no. [00:31:00] Speaker 03: I get that. [00:31:00] Speaker 03: But that does not seem to me to be the argument you raised that I was suggesting earlier. [00:31:06] Speaker 03: You seem to suggest that now we're going to have to look at them case by case to see if they conflict. [00:31:12] Speaker 03: with the other things. [00:31:14] Speaker 03: And if there is, I mean, if there's an argument that the cancellation clause conflicts with another term in the contract, then maybe that other term may take precedence. [00:31:24] Speaker 03: But I didn't really understand your argument to be that, well, even if this language explicitly includes them and we know what the document is and we know the content of it is, that there's no proof that [00:31:38] Speaker 03: these were intended to be incorporated because we don't know which ones. [00:31:42] Speaker 03: That's not the way it generally works. [00:31:44] Speaker 03: I mean, what I was suggesting was that the entire document was so inconsistent you couldn't understand the parties who have intended incorporation, but that doesn't seem to be the argument you're making now. [00:31:57] Speaker 03: And certainly they're making your brief. [00:32:01] Speaker 01: You know, the argument that I'm making here is that the [00:32:07] Speaker 01: is referred to pages 18 to 21, which is that even if CSI is right about all of these arguments that they raised in the opening brief, we still have to wrestle with which of the provisions are being made part of the contract. [00:32:27] Speaker 01: And the answer to that question is, Your Honor, is that the- What difference does it make if they're all the same? [00:32:33] Speaker 04: I mean, here we have in the offer document, apparently attached to it, terms and conditions, that's incorporated. [00:32:40] Speaker 04: Now, conceivably that could conflict with the price provision which says terms and conditions of a certain date, I forgot what the date is, or any future ones. [00:32:51] Speaker 04: There might be a conflict between those two, but nobody's pointed out a conflict. [00:33:00] Speaker 03: We're not talking about- Is it your view that they have to go through clause by clause and show specifically that the parties intended to incorporate each clause? [00:33:11] Speaker 01: No, Your Honor, that is not what the Northrop requires. [00:33:13] Speaker 03: Wait, the Northrop government, I mean, so you've said that the language was legally sufficient under Northrop government to incorporate this document. [00:33:22] Speaker 03: Let's just assume the document is whole, so it is incorporated the whole document. [00:33:27] Speaker 03: Whether certain ones are applicable or not seem to be a matter of contract interpretation, no? [00:33:34] Speaker 03: That is correct. [00:33:35] Speaker 03: Is that something that's going to be resolved? [00:33:37] Speaker 03: That's not for us. [00:33:38] Speaker 03: I mean, we can't determine on this record whether this cancellation clause is consistent or not with the contract, can we? [00:33:45] Speaker 01: You're on the that is correct, but you didn't really point out that that's something that still needs to be resolved if we You know reverse the case here You know the the the board note on Noted that although the board did not go into this in detail Well, what we're really applying here is the us with the standard commercial warranty in the terms of conditions because we have [00:34:15] Speaker 01: We have no basis to say that the offer does not say we are applying the cancellation or rounding provisions. [00:34:26] Speaker 03: It doesn't have to do that, though, does it? [00:34:29] Speaker 03: Let's just start so we don't keep quibbling over the terms, that we've now found this language in the offer is legally sufficient to incorporate this entire document. [00:34:39] Speaker 03: If that's the case, then where do we go from there? [00:34:43] Speaker 01: then we need to determine what the provisions are being, we need to determine the purpose of the incorporation and which features of the extrinsic document that are being incorporated. [00:35:07] Speaker 01: I see that my time is up and unless Your Honor has any more questions. [00:35:15] Speaker 00: Do you want to proceed further? [00:35:17] Speaker 00: No, I'm done. [00:35:19] Speaker 00: Thank you. [00:35:19] Speaker 00: And we'll hear from Mr. Workmas. [00:35:24] Speaker 02: Thank you, Your Honor. [00:35:25] Speaker 02: Just a few points. [00:35:28] Speaker 02: I understand what the government said. [00:35:31] Speaker 03: Can I ask you this? [00:35:34] Speaker 03: Yes, sir. [00:35:34] Speaker 03: Because I'm still a little confused about what's going to happen. [00:35:37] Speaker 03: Let's just assume I now agree with you that the incorporation language is sufficient to incorporate that entire document. [00:35:46] Speaker 03: Does that resolve the case or do we still have to determine whether as a matter of contract interpretation that cancellation clause [00:35:55] Speaker 03: is not us, the board, is consistent with the remainder of the contract. [00:36:00] Speaker 02: We would say, Your Honor, the board has already determined that. [00:36:03] Speaker 02: But yet, if the board had not already determined that, yes, the board would need to determine that. [00:36:06] Speaker 02: And then the board would need, presumably, to determine how many cancellations there were, what place were cancellations. [00:36:12] Speaker 03: Sure, some serious damages issues. [00:36:13] Speaker 03: But it wasn't clear to me that the board's decision here seemed to overly focus on which version, which seemed to me beside the point. [00:36:22] Speaker 03: But if those cancellation clauses, if the entire document is incorporated, you agree at least the venue provision is not applicable. [00:36:33] Speaker 02: Corrector right so it's possible other ones are not applicable or in conflict, but it would be possible Yes, if there are material if there are the provisions that are relevant to the litigation where there's an argument that would have to be so there's still potentially and not an incorporation argument, but a a [00:36:51] Speaker 03: another legal issue for the board to determine whether that cancellation clause is consistent with the rest of the contract. [00:36:58] Speaker 03: Yes. [00:36:59] Speaker 03: Which we don't need to reach. [00:37:00] Speaker 03: You say the board's already done it. [00:37:02] Speaker 03: Correct. [00:37:02] Speaker 03: I'm not going to try to figure that out. [00:37:04] Speaker 03: The board can do that on remand. [00:37:05] Speaker 03: Correct. [00:37:06] Speaker 04: Is there an issue here as to whether the cancellation clause as a penalty clause is unenforceable and that you should only be able to recover the excess clause? [00:37:18] Speaker 04: In other words, there has to be mitigation. [00:37:21] Speaker 02: Your honor, the government has not raised that as an argument. [00:37:24] Speaker 02: I would say no, because cancellation provisions are standard commercial provisions. [00:37:30] Speaker 02: They are designed to account for, you know, this is, we're talking about airline charters, things that are canceled with less than 14 days notice. [00:37:37] Speaker 02: I mean, it's a standard provision for all of us, if we will, I guess, pre-pandemic. [00:37:42] Speaker 02: If you canceled a flight with, you know, and we're talking about flights that would fly, you know, whole, you know, plane loads of people, you cancel a flight with less than 14 days notice. [00:37:51] Speaker 02: a cancellation provision tied to the price of the flight is perfectly reasonable and a standard commercial practice. [00:37:58] Speaker 03: uh... and and gs a schedule program your honor because it was showing if there's another clause in the contract that would override that and say could be read to say you have to mitigate damages i understand you don't agree but if there is another contract then that would override the standard policy that would be that would be it yes it'd be a matter for for resolution issue either there's just a couple of factual matters want to make clear before i start sit down if you're your honors [00:38:23] Speaker 02: The government council referred to appendix 9024 to 9031 as another example of a set of CSI's terms and conditions. [00:38:34] Speaker 02: Those are the 0209 terms and conditions. [00:38:37] Speaker 02: And the version, the appendix pages that he was referring to, is an email sent from CSI to GSA in February of 2009 that attached those terms and conditions. [00:38:50] Speaker 02: So those were terms that GSA had. [00:38:52] Speaker 02: That was not simply a document that was produced during discovery. [00:38:57] Speaker 02: I just wanted to make that clear. [00:38:58] Speaker 03: Since I have you up here, do you know what the prior two pages that he's talking about in that document are? [00:39:04] Speaker 02: There was testimony on that during discovery. [00:39:08] Speaker 02: So the last three pages here, they are the full set of terms and conditions. [00:39:11] Speaker 02: Their CSI would use those. [00:39:12] Speaker 02: Those are the three pages they would attach for their commercial work. [00:39:16] Speaker 02: The first couple of pages were their standard contract template they would use to fill out with their commercial customers. [00:39:22] Speaker 02: But those terms and conditions that we pointed out in our papers [00:39:25] Speaker 02: There was testimony on this as well. [00:39:26] Speaker 02: That's the entire set of terms and conditions, as Judge Shack noted. [00:39:29] Speaker 02: They start with number one and go up through number 22. [00:39:33] Speaker 02: Your Honor, unless there are other questions, I have nothing further to say. [00:39:39] Speaker 02: And thank you to all of you. [00:39:42] Speaker 00: All right. [00:39:43] Speaker 00: Thanks to counsel. [00:39:45] Speaker 00: The case is taken under submission. [00:39:47] Speaker 00: And that concludes this panel's argument cases for Mr. Shack.