[00:00:15] Speaker 00: The United States Court of Appeals for the Federal Circuit is now open and in session. [00:00:20] Speaker 00: God save the United States and this honorable court. [00:00:24] Speaker 04: Good morning. [00:00:24] Speaker 04: Please be seated. [00:00:28] Speaker 04: We are very happy to be here today in the Northern District of Georgia in this beautiful courtroom. [00:00:35] Speaker 04: And we have today four cases on the schedule. [00:00:41] Speaker 04: Our first case, [00:00:43] Speaker 04: is A-View Technologies versus HHS. [00:00:49] Speaker 04: Mr. Bargava, did I say our name correctly? [00:00:52] Speaker 04: Yes, thank you. [00:00:53] Speaker 04: Okay, please, whenever you're ready. [00:01:01] Speaker 02: May it please the court, my name is Michael Bargava and I represent A-View Technologies Corporation. [00:01:06] Speaker 02: In the briefing for this case, it became clear that the parties agreed on two key points, which should significantly narrow the issues here. [00:01:16] Speaker 02: First, the parties agreed task order issued by the FDA is a procurement contract over which the Civilian Board of Contract Appeals would have jurisdiction on the Contract Speeds Act. [00:01:29] Speaker 02: And second, parties agree that AVU's end user license agreement, or EULA, was incorporated into that task order. [00:01:39] Speaker 02: Under basic contract principles, the only logical conclusion to that is that the terms of the EULA became an enforceable part of a procurement contract. [00:01:49] Speaker 02: This court reiterated that basic concept just last year in CSI Aviation versus DHS. [00:01:56] Speaker 02: But EULA, is that interchangeable with MSA in the briefing? [00:02:00] Speaker 02: Yes, correct. [00:02:01] Speaker 02: It's known as either the Master Subscription Agreement, which is ADU's particular term for it, but EULA is the more common term. [00:02:09] Speaker 02: Didn't you argue to the board that MSA or EULA was a standalone contract enforceable on its own? [00:02:17] Speaker 02: That's correct. [00:02:18] Speaker 02: It is both. [00:02:19] Speaker 02: It is a standalone contract that was incorporated into the task force. [00:02:23] Speaker 04: Do you have alternative arguments? [00:02:24] Speaker 04: Are you arguing, first of all, it's a standalone contract, but also, alternatively, it should be incorporated into the schedule contract? [00:02:35] Speaker 04: Or do you have alternatives? [00:02:36] Speaker 04: Or are you just arguing that it's standalone? [00:02:39] Speaker 02: It is incorporated. [00:02:40] Speaker 02: There's no dispute among the parties. [00:02:42] Speaker 02: It is incorporated into the task force and into that particular contract. [00:02:47] Speaker 02: The government doesn't disagree with that. [00:02:49] Speaker 02: That's an established fact. [00:02:52] Speaker 02: But you did separately argue, at least to the board. [00:02:55] Speaker 02: I'm not sure what you're arguing to us. [00:02:56] Speaker 02: But at least to the board, you told them, I thought the MSA is a standalone contract. [00:03:02] Speaker 02: And so board, what you need to analyze is whether the MSA is standing alone is a procurement contract. [00:03:07] Speaker 02: Wasn't that part of what you argued? [00:03:09] Speaker 02: Well, partly. [00:03:11] Speaker 02: We argued, yes, that it is a standalone contract. [00:03:15] Speaker 02: We did not argue that the court had to, excuse me, that the board had to look at it in isolation. [00:03:20] Speaker 02: That was not our argument. [00:03:22] Speaker 02: That was the government's argument in a reply brief to their summary judgment motion. [00:03:28] Speaker 02: And then the court asked for more, excuse me, the board asked for more briefing on that. [00:03:33] Speaker 02: But it was our argument throughout. [00:03:35] Speaker 02: that this was a standalone contract that was incorporated into the task force. [00:03:39] Speaker 02: And there's no evidence of that. [00:03:40] Speaker 04: I'm having a little bit of a hard time following. [00:03:42] Speaker 04: And let me tell you why. [00:03:45] Speaker 04: One thing that the board did is it looked at it as a standalone contract and analyzed it in isolation. [00:03:53] Speaker 04: On appeal, you're arguing that I think that they erred by doing that and that they should have considered it as part of the full contract. [00:04:02] Speaker 04: And that's when you say standalone, you're throwing me off. [00:04:06] Speaker 04: Because standalone feels like isolation. [00:04:09] Speaker 04: Isolated contract, standalone contract. [00:04:11] Speaker 04: Could you be a little bit more clear about what you're arguing now and what you are here below? [00:04:16] Speaker 02: Yes, Your Honor. [00:04:17] Speaker 02: So it can be a standalone contract. [00:04:20] Speaker 02: And this is the standard EULA that AVU uses with all customers, not just the government. [00:04:27] Speaker 02: and it was incorporated into the contract. [00:04:29] Speaker 02: We do argue, both below and here, that the board erred in analyzing it separately, because it was clearly part of a procurement contract, just as in the Rockies Express case a few years ago. [00:04:46] Speaker 02: My concern is, if you told the board it's a standalone contract, analyze it separately, and then the board analyzed it separately at your invitation, [00:04:57] Speaker 02: What's wrong with what the board did? [00:04:59] Speaker 02: Well, Your Honor, we didn't ask the board to analyze it separately. [00:05:04] Speaker 02: We asked the board to analyze it as part of the procurement contract. [00:05:09] Speaker 03: Do you have anything that would be helpful, for at least me, for you to tell us exactly what issues you believe we should be deciding here? [00:05:17] Speaker 03: And I think that will interplay with some of the questions that my colleague said. [00:05:21] Speaker 02: Well, Your Honor, thank you for that. [00:05:26] Speaker 02: Another way to think about this is that if Karasoft had brought this claim, it's the reseller, the original prime contractor, if Karasoft had brought this claim, [00:05:36] Speaker 02: There would be no dispute here over whether this was a procurement contract over which the board had jurisdiction on the Contract Disputes Act. [00:05:46] Speaker 02: Nobody would be arguing that. [00:05:48] Speaker 03: I don't think you answered my question. [00:05:49] Speaker 03: I mean, maybe my question was unclear, but I was wondering if you could just, and you can like tell me there are two that you think we need to decide, and you can just say this or that. [00:05:57] Speaker 03: I just want to make sure I level set to make sure we're all on the same page. [00:06:01] Speaker 02: Yes, Your Honor. [00:06:02] Speaker 02: And that was my next sentence. [00:06:03] Speaker 02: I'm sorry. [00:06:04] Speaker 02: Oh, OK. [00:06:05] Speaker 02: I didn't realize you were doing that. [00:06:06] Speaker 02: Proceed ahead. [00:06:07] Speaker 02: So the issue, now that that's established, that Carasoft could bring this claim as a procurement contract, then the real issue is whether AVUE can bring this claim. [00:06:21] Speaker 02: And so the issue there is whether AVUE has privity with the government here through the EU. [00:06:28] Speaker 02: And that's the question that both we and the government are asking this court to resolve. [00:06:33] Speaker 04: Right. [00:06:34] Speaker 04: But that's also a question that wasn't resolved below. [00:06:37] Speaker 04: Does it make sense for us to resolve it without a decision from the board below? [00:06:42] Speaker 02: We do think it makes sense, Your Honor. [00:06:44] Speaker 02: I mean, first of all, it's a purely legal question as to whether there is privity here. [00:06:51] Speaker 02: The facts that the board found were undisputed facts in its opinion. [00:06:59] Speaker 02: So there's no dispute of facts here if the issue has been fully briefed both by AVU and the government. [00:07:06] Speaker 02: And it doesn't make sense in our opinion to remand [00:07:10] Speaker 02: this for a determination of privity issue, because it almost inevitably is going to end up back in this court after that. [00:07:17] Speaker 02: And so for judicial company reasons, it makes sense for you. [00:07:20] Speaker 04: For the president-appellate court, it generally is preferable to have a decision to review. [00:07:25] Speaker 04: We don't usually make decisions in the first instance without a reviewing court and without the trial court having made the determination of the board in this circumstance. [00:07:35] Speaker 04: Can I go back to a question that Judge Stark asked? [00:07:39] Speaker 04: Do you have somewhere in the record that you could cite to in the appendix to support that you argued the MSA [00:07:48] Speaker 04: requested that the board look at the MSA as incorporated into the schedule contract and argued that together as opposed to looking at the MSA alone? [00:08:00] Speaker 02: I can't get you the site, Your Honor. [00:08:04] Speaker 02: Again, the board asked for supplemental briefing specifically on this. [00:08:09] Speaker 04: I just want to make sure that you've argued it. [00:08:11] Speaker 04: So if you can just get us a site to the appendix so that we can see where it was argued below. [00:08:16] Speaker 04: If the board was told to analyze it on its own or stand alone, then it would be hard for us to say there's error. [00:08:27] Speaker 02: Yes, and Your Honor, the government does say in its brief that AHU was pushing the argument that this was a stand alone case. [00:08:33] Speaker 02: That's not correct. [00:08:35] Speaker 02: This was an issue that the government brought up in its brief. [00:08:38] Speaker 02: in its reply brief, and then the board asked for supplemental briefing. [00:08:42] Speaker 02: But in that supplemental briefing, we specifically did say, this is part of a larger procurement agreement that you have to look at. [00:08:49] Speaker 02: If you have the site, that would be helpful for us. [00:08:51] Speaker 02: And I have an appendix question for you as well. [00:08:53] Speaker 02: Do you have it there? [00:08:54] Speaker 02: I do have it there. [00:08:57] Speaker 02: I'll wait if you want to give the site to Judge Cole. [00:09:02] Speaker 02: I will have to look through. [00:09:04] Speaker 02: I'll give it to you. [00:09:06] Speaker 02: Do you have a 170 to 171? [00:09:09] Speaker 02: The government cites that as saying, at least at the motion to dismiss stage, that's you arguing [00:09:15] Speaker 02: that the MSA is a standalone contract, and that that's how you prevailed at the motion to dismiss stage. [00:09:20] Speaker 02: True or not true? [00:09:22] Speaker 02: Again, Your Honor, it is a standalone contract. [00:09:25] Speaker 02: So the answer is yes. [00:09:28] Speaker 02: That was your argument, at least, part of your argument to the board. [00:09:32] Speaker 02: That it is a standalone contract, yes. [00:09:35] Speaker 02: We have never wavered on it. [00:09:36] Speaker 02: It is a standalone contract. [00:09:38] Speaker 02: Again, this is the way. [00:09:40] Speaker 02: So was it two alternative arguments you made to the board? [00:09:44] Speaker 02: It's a standalone contract, but it also is incorporated into a larger procurement contract? [00:09:50] Speaker 02: No, Your Honor. [00:09:52] Speaker 02: So we are saying that this is a standalone contract, but we never asked the board to analyze it separately from the procurement contract in which it's incorporated. [00:10:04] Speaker 02: So are you seeing some distinction between arguing to the board it's standalone and whether they need to analyze it separately? [00:10:11] Speaker 02: I don't understand that distinction. [00:10:13] Speaker 02: I mean, this happens in other contracts as well. [00:10:18] Speaker 02: Again, back to Rockies Express. [00:10:21] Speaker 02: There was a precedent agreement. [00:10:23] Speaker 02: That was an agreement to agree upon other agreements, essentially. [00:10:27] Speaker 02: And all of these were incorporated into what this court said was a procurement contract. [00:10:34] Speaker 02: And all of those individual contracts, all the service agreements and such in Rockies Express, were standalone agreements, but they were incorporated into other agreements. [00:10:44] Speaker 02: And all of them, this court said, you have to look at them holistically and to determine whether it's a procurement contract for jurisdiction purposes. [00:10:55] Speaker 04: I understand that. [00:10:56] Speaker 04: I just want to make sure that that's how you argued it below. [00:10:59] Speaker 04: Because, of course, if you argued it differently below, as this sounds, talking about a freestanding contract, then we want to make sure that the board didn't [00:11:09] Speaker 04: You know, if the board was told to analyze it that way and now we're arguing error on appeal, that's not going to work. [00:11:16] Speaker 04: Right? [00:11:17] Speaker 02: No, Your Honor, we did not ask the board to analyze it separately. [00:11:20] Speaker 02: They asked for supplemental briefing specifically on that question as to whether it, in isolation, could be used. [00:11:25] Speaker 04: Give us the thing when you're finished. [00:11:28] Speaker 02: Can I go back to what you said about there's no dispute Carasoft could have brought this claim? [00:11:34] Speaker 02: And I think that might be right. [00:11:36] Speaker 02: But then I don't understand that in the reply brief to us at page 10, you seem to go out of your way to say that Carasoft is not a party to the MSA. [00:11:44] Speaker 02: not a party to the EULA. [00:11:47] Speaker 02: If they're not a party to that, then how could they bring the claim? [00:11:52] Speaker 02: Because it was incorporated into their larger... Exactly. [00:11:55] Speaker 02: So then what is the point of continuing to emphasize that it's a stand-alone... Are you saying that the EULA is a stand-alone agreement that it's just not enforceable? [00:12:07] Speaker 02: I mean, it can't be enforceable by Karasoff. [00:12:11] Speaker 02: You just told us that they're not a party to it. [00:12:14] Speaker 02: We do think it's enforceable, Your Honor. [00:12:17] Speaker 02: Is the NSA enforceable by Karasoff? [00:12:20] Speaker 02: But we think, again, basic contract principles, that if language is incorporated into a broader agreement and that language is violated, the parties in privity of the broader agreement can sue for violation of any of the language in that. [00:12:42] Speaker 02: So we do believe that Karasov could sue on this. [00:12:46] Speaker 02: But we also agree. [00:12:47] Speaker 02: We also think that Avi could sue. [00:12:50] Speaker 02: reserve the rest of my time. [00:12:52] Speaker 04: Okay. [00:12:53] Speaker 04: Thank you, Mr. Bergrava. [00:12:55] Speaker 04: Let's hear from the government. [00:12:57] Speaker 04: Mr. Bolt, whenever you're ready. [00:13:07] Speaker 01: May I please report? [00:13:08] Speaker 01: The government did not contract. [00:13:11] Speaker 01: They contracted with Carousel. [00:13:14] Speaker 01: Only Carousel can sue the government under Carousel's contracts, and it does not. [00:13:20] Speaker 01: The question before the court is whether a view is a contractor for purposes of the Contract of Speeds Act. [00:13:29] Speaker 01: Even under the resolution, the matter in which the board resolved it, [00:13:33] Speaker 01: where it said, even if this is some sort of contract, it's not a procurement contract for purposes of the CDA. [00:13:38] Speaker 01: That's still answering the question, is ADU a contractor for purposes of the CDA? [00:13:45] Speaker 03: Can you address this question that my colleagues have been asking about, the freestanding contract issue versus the incorporation? [00:13:52] Speaker 03: What was argued before? [00:13:55] Speaker 01: I can't put my finger on a citation [00:13:59] Speaker 01: has the court asked whether AB specifically argued below that it has privity through incorporation. [00:14:07] Speaker 01: My general recollection is that it has argued both of these things at all places. [00:14:13] Speaker 01: That it has argued that as part of its arguments, I believe, it has said it's incorporated into the Karasoff schedule contract, which we agree. [00:14:26] Speaker 01: Even separately, it's a separate thought track. [00:14:29] Speaker 01: The argument then, of course. [00:14:30] Speaker 04: So you think that they have argued both, and they argued kind of alternatively or not? [00:14:36] Speaker 01: That's my general recollection. [00:14:37] Speaker 01: I don't know for sure that it wasn't. [00:14:39] Speaker 04: When you say that's my general recollection, I had an or question. [00:14:43] Speaker 04: So what is your general recollection, that they argued both theories? [00:14:47] Speaker 04: That they made both arguments, yes. [00:14:48] Speaker 01: That they put both theories into their briefs, and that if they looked, that they could find [00:14:56] Speaker 01: an argument where it leads exactly and how it fits into the argument may be changed over time, but my general recollection is that yes, both arguments [00:15:05] Speaker 01: The problem will show up in the briefs, including from below. [00:15:09] Speaker 02: Let me just press you a little bit on that, because I understood your briefing to us to argue that they survived the motion to dismiss only by arguing that the MSA is a standalone agreement, at least implying to the board, don't worry about whether it's incorporated or not. [00:15:29] Speaker 02: And then I think one reading of what the board did in the end was say, we're only asked in this case to decide if the MSA is a standalone procurement contract. [00:15:39] Speaker 02: It isn't. [00:15:41] Speaker 02: Therefore, the government wins. [00:15:44] Speaker 02: Is that what happened below? [00:15:45] Speaker 02: Because if it did, then I'm not sure how that squares with the fact that you're conceding they made this alternative argument that they emphasized to us. [00:15:55] Speaker 01: The way they survived the motion to dismiss, to start with the first part, is that they convinced the board that they had made adequate allegations, non-firmness allegations, that they had a contract with the government. [00:16:07] Speaker 01: And I do think that that's right, that they convinced the board by saying, we have this separate document. [00:16:15] Speaker 01: Put aside the carousel contracts. [00:16:16] Speaker 01: That was the main part of their arguments below and even now. [00:16:20] Speaker 01: I think if the question is, [00:16:25] Speaker 01: Yes, we have a contract, but is it a contract with Karasoff or is it a contract with AVU? [00:16:30] Speaker 01: It's clearly a contract with Karasoff. [00:16:31] Speaker 01: So AVU is trying to get around that by saying, we have a separate contract. [00:16:35] Speaker 01: We have our own contract. [00:16:36] Speaker 01: And either it's part of Karasoff's contract. [00:16:39] Speaker 01: It doesn't make sense. [00:16:40] Speaker 01: The terms are part of Karasoff's contract, but Karasoff is still the only contractor there. [00:16:45] Speaker 01: Or this document is our own contract. [00:16:49] Speaker 01: But neither of these arguments works. [00:16:51] Speaker 04: Isn't it true though that the board only addressed one of those theories, which is that the separate contract theory and then said that one wasn't a pyramid contract, right? [00:17:03] Speaker 04: I don't see how we can address the alternative theory when the board didn't do so in the first instance. [00:17:13] Speaker 04: What do you think? [00:17:15] Speaker 01: Well, certainly the government argued throughout the board case, this should be dismissed. [00:17:19] Speaker 01: Again, this should be dismissed in the summer. [00:17:20] Speaker 01: The judge's motion, again, if A.D. [00:17:22] Speaker 01: was not a contractor, I think the court would be able to say, the board should have just said there is no contract at all. [00:17:29] Speaker 01: between AVU and the government, it doesn't have to go into this analysis of, well, if there is a contract, is it a procurement contract under the CDA? [00:17:37] Speaker 01: So I think that question is properly before the court, based on all of the arguments the government made below, that this should have been dismissed from the beginning, when AVU was never able to show the board, is a contract between me and the government? [00:17:51] Speaker 01: It was always, here's Kenesaw's contract. [00:17:53] Speaker 03: Is it your position, though, that we should not address the privity argument that your present counsel reads? [00:17:59] Speaker 01: We think that the court should. [00:18:02] Speaker 01: We start by saying there was no contract at all. [00:18:05] Speaker 01: That's the argument, the privity argument, is that there's no contract at all here. [00:18:08] Speaker 01: And whereas the board said, well, even if there is a contract, it's not a procurement contract within our CDA jurisdiction, we say the court should just say, instead of that what we think is a little bit of a strained analysis to say, well, if there were a contract, it's not a procurement contract, we think the court should say, [00:18:25] Speaker 01: There is no contract at all here. [00:18:27] Speaker 01: And so in that sense, yes, we do think the board should resolve the priority argument, because there was not. [00:18:32] Speaker 04: What about engaged learning? [00:18:34] Speaker 04: I mean, the board resolved this as a jurisdictional issue. [00:18:38] Speaker 04: Is it really more of a merits issue under engaged learning? [00:18:42] Speaker 01: It's both. [00:18:42] Speaker 01: And in this case, the procedural stage is important. [00:18:45] Speaker 01: The board issued its order. [00:18:48] Speaker 01: after summary judgment briefing, after discovery was closed, both sides are agreeing that the facts are definite at this point. [00:18:56] Speaker 01: So what we understand Engaged Learning to be saying is that at an early stage of the case, the court or board may not be appropriate to require the other side to have their proof of their jurisdictional facts. [00:19:11] Speaker 01: But of course, there were motions to dismiss here, and the board said, well, the allegations are good enough under Engaged Learning. [00:19:17] Speaker 01: The point at which this got dismissed, the procedural stage of the case, is either there's going to be a trial, or in this case, the government got the judgment. [00:19:26] Speaker 01: So there has to be some reason to have a trial. [00:19:30] Speaker 01: The jurisdictional issue can be a merits issue, too, as I think is reflected by the Supreme Court's cases, which we cited. [00:19:39] Speaker 01: Brownback and Venezuela. [00:19:42] Speaker 01: So just because it's a merits issue doesn't mean that it also has a jurisdictional consequence, which is what happened here. [00:19:49] Speaker 01: If there's no contract between the government and the contractor, whenever that's decided, even if it's post-trial. [00:19:55] Speaker 04: I mean, it could be that it's not jurisdictional. [00:19:57] Speaker 04: It's just that they don't have a contract, and therefore, they're not successful. [00:20:02] Speaker 01: Right, it is a merits issue, but it doesn't mean it's not a jurisdictional issue, too. [00:20:06] Speaker 01: Because you have to have a contractor be a contractor, which is a jurisdictional issue. [00:20:10] Speaker 03: Why are you trying to sell part of the report having to be a jurisdictional issue? [00:20:12] Speaker 03: I mean, at least my take on age learning seemed to set a fairly low bar in order to show jurisdiction. [00:20:20] Speaker 03: Like, what's wrong with it just being a merits issue? [00:20:22] Speaker 03: I don't think that's a bad thing for your case. [00:20:25] Speaker 04: It's just that you have to have a plausible allegation. [00:20:28] Speaker 01: There's nothing wrong with it being a merits issue. [00:20:31] Speaker 01: It is a merits issue. [00:20:32] Speaker 01: And I'm just making the point that I don't think the board did anything wrong by describing it as a jurisdictional issue, because it's both. [00:20:39] Speaker 02: What do you see in engaged learning that would limit it to just the initial part of the case before there's discovery? [00:20:49] Speaker 02: Why shouldn't we understand engaged learning as already deciding that a non-frivolous allegation is sufficient even after discovery to establish jurisdiction, not the merits? [00:21:02] Speaker 01: Well, I mean, I don't think engaged learning changed a number of precedents from this court and the Supreme Court, like Cedars-Sinai, that made clear that jurisdictional challenges can come in two forms. [00:21:11] Speaker 01: And so they can be a facial attack on whether the allegations are adequate, where they can say the fact you're alleging is not true. [00:21:19] Speaker 01: And so my understanding of engaged learning is that the court, in that case, said if somebody [00:21:25] Speaker 01: Regardless, you can't necessarily require a claimant to prove its allegations at an early stage of the case. [00:21:32] Speaker 01: If they have a non-frivolous allegation of jurisdiction, that's good enough for now. [00:21:37] Speaker 01: But at an appropriate point in the case, at some point, the facts have to be proven. [00:21:43] Speaker 01: And if they're not, it surely goes to the merits. [00:21:45] Speaker 01: It decides the merits. [00:21:46] Speaker 01: If you don't have a contract, then you don't have a meritorious contract. [00:21:49] Speaker 01: But also, at the same time, the board's jurisdiction is limited to cases where you have a contract. [00:21:55] Speaker 01: If you don't have a contract, it also means the board didn't have jurisdiction. [00:21:59] Speaker 01: Whenever that may be decided, the fact that it's a merits, they're not mutually exclusive, in my understanding, under the Supreme Court's rulings. [00:22:06] Speaker 01: The fact that it decides a merits doesn't mean it doesn't also decide. [00:22:09] Speaker 02: And this is maybe jurisdictional and merits, what's your best argument that [00:22:14] Speaker 02: The MSA, as incorporated into the larger scheduling contract, is not a procurement contract enforceable by AU. [00:22:26] Speaker 01: it's that it's a contract with Karasoff. [00:22:28] Speaker 01: It is a procurement contract between the government and Karasoff. [00:22:30] Speaker 01: Its terms, that MSA, is terms that got put into a Karasoff contract, a scheduled contract, and then another, by effect, a task order issued by the FDA under that scheduled contract. [00:22:42] Speaker 02: Doesn't the EULA or MSA itself say that it's an agreement between A-View and the end user, which here is the FDA? [00:22:51] Speaker 01: It doesn't actually say that, because the version that's in the contract, the blank version, [00:22:56] Speaker 01: doesn't actually say any agency detentions of blank temporal. [00:23:01] Speaker 02: Why isn't there a genuine dispute of material fact over which version is the one that the government agreed to? [00:23:09] Speaker 01: Well, on the specific granular facts, I don't think there actually even is a dispute that the one at MX 2991 is the one that was put into the GSA contract with Karasoff. [00:23:24] Speaker 01: And I certainly don't think there's a dispute at all. [00:23:27] Speaker 01: It's not a genuine one that this later version that was proposed was ever agreed to by the government. [00:23:33] Speaker 01: There's no indication of that. [00:23:35] Speaker 01: And it's clear that the government didn't enter into or modify that task order contract to add any other version of this MSX. [00:23:45] Speaker 01: So I think it's pretty clear, if it's even disputed at all, that the version 2991, the blank template, is the only one that was ever agreed to. [00:23:54] Speaker 04: If we were to analyze the MSAs incorporated into Karasoff's GSA-scheduled contract in that fashion, we would have to resolve the privity issue, wouldn't we, in order to resolve whether, in fact, who the contractor was? [00:24:12] Speaker 01: Yes, to decide who the contractor is, you have to address privity. [00:24:16] Speaker 01: I think that's right. [00:24:17] Speaker 01: That would be the question. [00:24:20] Speaker 01: But the cases we see it is, [00:24:24] Speaker 01: It's not a question of whether there is or isn't a procurement contract. [00:24:28] Speaker 01: There is. [00:24:29] Speaker 01: It's with Carousel. [00:24:30] Speaker 01: And that's the point. [00:24:31] Speaker 01: There's no contract with ADU. [00:24:35] Speaker 01: So if Carousel wants to sue the government, it can do that as a contractor. [00:24:39] Speaker 01: But ADU can't under Carousel's contracts. [00:24:47] Speaker 01: So for these reasons and those in our brief and the board's opinion, we respectfully request that the court affirm the court's decision. [00:24:55] Speaker 04: Thank you, Mr. Ball. [00:24:56] Speaker 04: Mr. Barcava? [00:25:01] Speaker 04: You have three minutes, a little over three minutes. [00:25:05] Speaker 02: Thank you, Your Honors. [00:25:05] Speaker 02: First of all, the citation you were looking for is in the appendix 731 is where the briefing starts. [00:25:13] Speaker 02: And we do specifically make the argument here that, again, as the board asked, you can, if you analyze it, as a standard. [00:25:23] Speaker 04: I see that briefing starts at 731. [00:25:25] Speaker 04: Can you point us to the specific language [00:25:29] Speaker 04: that you're relying on in the document, that'll be more helpful for us as opposed to the entire document. [00:25:35] Speaker 02: Yes, Your Honor. [00:25:36] Speaker 02: On page 736, we argue that the board should analyze it as incorporated into the larger document. [00:25:51] Speaker 02: So Your Honor, the government here has conceded that Karasoff could bring a claim if it brought a claim, and that there would not be a jurisdictional issue here. [00:26:02] Speaker 02: So again, it really does come down to privity, as I was saying to you, Your Honor. [00:26:08] Speaker 02: So we believe that the court needs to determine the privity issue. [00:26:12] Speaker 02: The facts are all established. [00:26:14] Speaker 02: The contract specifically says that there's a provision in there saying that if it's incorporated into a broader government contract, it does not need signatures. [00:26:29] Speaker 02: The government has conceded that it agreed to all of the terms. [00:26:33] Speaker 02: in that EULA, including that specific provision that said it didn't need signatures. [00:26:40] Speaker 02: So it did establish a contract directly with AVU when it signed the task force. [00:26:47] Speaker 02: It established a contract with Karasoft, and it established a contract with AVU. [00:26:55] Speaker 02: Again, the government hammers on the point [00:26:58] Speaker 02: In the ordinary procurement, there is only one prime contractor. [00:27:03] Speaker 02: This is not the ordinary procurement. [00:27:05] Speaker 02: There is, again, a separate contract that is very clearly established as part of the task order, and the government agreed to it, and knowingly agreed to it. [00:27:15] Speaker 02: Its only mistake was a legal mistake in it thinking that it didn't agree to it with AB, but it clearly did, according to the undisputed evidence. [00:27:29] Speaker 02: Do you agree that it's the version at A2991 that is the operative agreement that you believe you have with the government? [00:27:39] Speaker 02: Correct. [00:27:40] Speaker 02: That's the only one that was agreed to by the parties. [00:27:43] Speaker 02: There was discussion later on after the task order was issued as to whether there would be a different version of the ABU [00:27:52] Speaker 02: But that was done because the government specifically wanted additional terms. [00:27:58] Speaker 02: There were some price discounts and some additional optionality that the government had asked for. [00:28:04] Speaker 02: And AV was providing for the government. [00:28:06] Speaker 02: The government at that time said, no, we don't want to sign it. [00:28:09] Speaker 02: And the AV said, fine, that's fine with us. [00:28:11] Speaker 02: We already have the both sides agreed that the version that you cited was the operative version. [00:28:20] Speaker 02: Thank you. [00:28:21] Speaker 04: Thank you. [00:28:23] Speaker 04: We thank both counsel and we're going to take the case under submission.