[00:00:00] Speaker 04:
The next case for argument is 22-2143 BCC UI projects versus Secretary of the Attorney.

[00:00:10] Speaker 04:
Whenever you're ready, sir.

[00:00:13] Speaker 00:
May it please the Court, Patrick Kernan here on behalf of the Appellant.

[00:00:19] Speaker 00:
The ASBCA decision below imposed overly restrictive requirements.

[00:00:23] Speaker 00:
inconsistent with this court precedent in finding that there was no jurisdiction of the case before the court.

[00:00:30] Speaker 00:
We would ask the court to overturn that decision.

[00:00:33] Speaker 02:
And didn't it just require that the contractor be the one that submit the claim?

[00:00:38] Speaker 00:
Yes, Your Honor.

[00:00:38] Speaker 00:
Well, there were several facets to the decision.

[00:00:41] Speaker 02:
One of them was the issue of... I know there's a bunch of other issues, but isn't that the fundamental issue is that the individual that submitted and signed the claim was not authorized to submit it on behalf of the joint venture.

[00:00:53] Speaker 00:
It's our position that the JV, and consistent with this court precedent, any member of the JV, unless there's explicit authority otherwise, could submit a claim on behalf of the JV.

[00:01:05] Speaker 02:
The agreement had identified a specific person who was authorized to sign the contract, sign solicitations, applicable amendments, and bind the entire joint venture.

[00:01:15] Speaker 02:
That sounds like that's the guy that's got the authority.

[00:01:18] Speaker 02:
And even if it doesn't explicitly talk about claims, when your guy tried to submit a claim, this guy came in and said, no, he can't.

[00:01:27] Speaker 02:
So it's not very ambiguous about who gets to submit a claim.

[00:01:31] Speaker 02:
It's this guy, not your guy.

[00:01:33] Speaker 00:
Well, if you look at the JV itself, it is ambiguous because it doesn't say who submits the claim.

[00:01:37] Speaker 02:
Yes, but to the extent that's ambiguous, we have extrinsic evidence from this guy who's the authorization to enter into most of the contractual obligations saying, yeah, nobody else, it's me.

[00:01:48] Speaker 00:
Yeah, that was his representation at that point, but it was also a settlement between the parties where they authorized it.

[00:01:55] Speaker 02:
The settlement was way too late though, right?

[00:01:57] Speaker 02:
It was after this contract was done and over.

[00:01:59] Speaker 00:
Well, I don't know what you mean by done and over.

[00:02:01] Speaker 02:
The contract was final payment had gone out.

[00:02:05] Speaker 00:
No, that's what the contracting office kept saying.

[00:02:07] Speaker 00:
The final payment was made, but there was no release of claims on this.

[00:02:10] Speaker 00:
So they were still entitled to submit a claim.

[00:02:12] Speaker 00:
And that's a problem with the contracting officer decision in this case is that they were making representations to the contractor.

[00:02:18] Speaker 02:
Did they submit a new claim that was authorized by the JV?

[00:02:22] Speaker 00:
It relates back to the ones they originally submitted, your honor.

[00:02:25] Speaker 02:
If we think it's too late, then that original claim was by an unauthorized person.

[00:02:33] Speaker 02:
You need that settlement agreement to ratify, right?

[00:02:36] Speaker 00:
Well, our position is that he had the authority to begin with, but the settlement agreement ratified.

[00:02:42] Speaker 00:
What was the purpose of submitting it to the contracting officer if there wasn't to ratify it?

[00:02:47] Speaker 04:
Is it your position that he had the authority in the first instance?

[00:02:50] Speaker 00:
Any member of the JV in the absence of explicit authority otherwise had the authority to submit a claim.

[00:02:58] Speaker 02:
The JV did not say they did not have the authority to submit a claim.

[00:03:05] Speaker 02:
The JV said, this guy doesn't have authority.

[00:03:08] Speaker 00:
The JV did not address whether or not the claim could, who could submit a claim.

[00:03:12] Speaker 02:
Yes, but when it was asked who could submit a claim, the actual entity, they said, not this guy, only me.

[00:03:19] Speaker 00:
They were never asked.

[00:03:20] Speaker 00:
The individual submitted an email saying that was not authorized.

[00:03:24] Speaker 00:
He represented that.

[00:03:25] Speaker 02:
So let's just assume you're wrong on that point.

[00:03:28] Speaker 02:
Your guy was not entitled to submit a claim.

[00:03:31] Speaker 02:
Where does that leave you in this case?

[00:03:33] Speaker 00:
It leaves us with we had a settlement agreement that was submitted to the contracting officer.

[00:03:37] Speaker 00:
There was no point to submit it to the contracting officer if they weren't trying to authorize the initial claim.

[00:03:42] Speaker 02:
Is that what it said?

[00:03:43] Speaker 02:
I thought it just said we'll split the profits.

[00:03:45] Speaker 02:
It didn't say this person is now, this claim is now ratified and certified by the JV.

[00:03:49] Speaker 00:
It said they have the authorization to submit a claim and the purpose of submitting it to the contracting.

[00:03:53] Speaker 02:
Can you point that to me in the appendix?

[00:04:11] Speaker 03:
275.

[00:04:11] Speaker 03:
What is it?

[00:04:13] Speaker 03:
275.

[00:04:16] Speaker 03:
That's what I'm looking at.

[00:04:17] Speaker 03:
I hope I'm looking at the right thing, but you're about to tell me.

[00:04:30] Speaker 00:
Yes, Your Honor.

[00:04:37] Speaker 00:
in the second paragraph and said, second part of comments agrees that it has submitted a claim for a contract and should pay 50% of the proceeds paid by USACE for such semi-proposal to the first party.

[00:04:48] Speaker 00:
So they acknowledge the submission of the claim and they've agreed how it would be divided.

[00:04:53] Speaker 02:
Well, I mean, assume we read this as retroactively authorizing the submission of a claim, and it doesn't really say that.

[00:05:00] Speaker 02:
It just acknowledges the claim was submitted, and if you get money, you're going to pay 50% to me.

[00:05:06] Speaker 02:
Isn't there still a problem with the timing of this?

[00:05:09] Speaker 00:
Not if it was submitted to the contracting officer to ratify the initial initial submissions.

[00:05:14] Speaker 00:
I mean, what would be the point?

[00:05:15] Speaker 02:
I think the contracting officer's position was that this was too late, that a claim could not have been submitted at this point.

[00:05:25] Speaker 00:
I would, I don't know.

[00:05:27] Speaker 02:
The ratification can't occur after the time for completion of claims has occurred.

[00:05:31] Speaker 02:
The original claim was defective.

[00:05:34] Speaker 02:
This has to be, the ratification has to be a timely ratification so that the contracting officer still had the authority to act on the claim.

[00:05:42] Speaker 02:
Not that it had the authority to act back then.

[00:05:44] Speaker 00:
Two points.

[00:05:45] Speaker 00:
I don't think it was untimely, according to the facts.

[00:05:48] Speaker 00:
You're saying that the contract was closed out, but it was not closed out.

[00:05:51] Speaker 00:
There was no release of claims, so they still had authority to submit a claim.

[00:05:55] Speaker 00:
The contracting officers' interpretation on that is erroneous.

[00:05:58] Speaker 00:
And the contractor kept telling them that was erroneous, that they did not submit a release of claims.

[00:06:04] Speaker 02:
And the second point is... I mean, the guy that didn't have the authority to submit the claim kept telling them that.

[00:06:08] Speaker 00:
everyone.

[00:06:09] Speaker 00:
There was a number of emails on that point.

[00:06:11] Speaker 02:
Including the one from the guy identified in the contract that was authorized to do things?

[00:06:17] Speaker 00:
He submitted the settlement paperwork, Your Honor.

[00:06:23] Speaker 00:
And the other point is that it's always correctable who submitted the

[00:06:31] Speaker 00:
validation of who submitted the claim.

[00:06:33] Speaker 00:
This court has held that it can be corrected by the contractor.

[00:06:37] Speaker 00:
So in this instance, they did do the settlement and they corrected who had authorization to submit the claim.

[00:06:43] Speaker 00:
And in that way, they did properly submit the claim without authorization.

[00:06:50] Speaker 04:
Well, even accepting what you're saying is correct, you still got a time in this problem, do you not?

[00:06:55] Speaker 04:
Because the last communication with the contracting officer was in 2016, and then you filed in 2021.

[00:07:01] Speaker 04:
So how do you account for the five-year delay as being appropriate under the law?

[00:07:06] Speaker 00:
Well, we filed within the six-year statute of limitations of the claim arising with respect to the 90-day requirement.

[00:07:17] Speaker 00:
Our position is there was no final decision in this case.

[00:07:20] Speaker 00:
The contracting officer never issued a decision

[00:07:22] Speaker 00:
that advised the contractor of his appellate rights, which is a requirement.

[00:07:28] Speaker 04:
When that happens, then the 90 days is out the window and you're into the six-year statute of limitations.

[00:07:33] Speaker 00:
Yes, Your Honor.

[00:07:34] Speaker 00:
That's the point to put the contractor on notice that he's got to file his claim so that the clock starts to go.

[00:07:42] Speaker 00:
And in this case, they were almost misleading to the contractor.

[00:07:44] Speaker 00:
The email said that, as Your Honor said, this contract is closed out.

[00:07:49] Speaker 00:
That's the end of it.

[00:07:50] Speaker 00:
You know, so they didn't even tell them that it basically was 11.

[00:07:53] Speaker 02:
What's misleading about that?

[00:07:54] Speaker 02:
I mean, we're not going to address your claim because the contract's done.

[00:07:58] Speaker 02:
If you wanted to challenge that time waste determination, why didn't you do it within the proper amount of time?

[00:08:03] Speaker 00:
Well, the contractor wasn't told that he said it was done.

[00:08:06] Speaker 00:
I think the wording was in the email was,

[00:08:14] Speaker 00:
I consider this matter closed.

[00:08:16] Speaker 00:
Consider this matter closed doesn't advise him that he has an appellate right, that the matter is closed.

[00:08:21] Speaker 00:
So he basically misled the contractor in that regard.

[00:08:25] Speaker 00:
Not only did he not advise him of his appellate rights, he accurately misled them with his email.

[00:08:30] Speaker 00:
There's another email, he said the same thing.

[00:08:33] Speaker 00:
Consider this matter closed, final pay was made.

[00:08:37] Speaker 00:
So not only did he not tell him he had the right to appeal to the court of claims or ASPCA, he told him that the matter was closed.

[00:08:45] Speaker 00:
In this situation, we're dealing with a contractor that's in Afghanistan, foreign country.

[00:08:50] Speaker 00:
I mean, we're before the court talking about these confusing procedures, et cetera, and you're expecting him to interpret these somewhat misleading statements from the contracting officer, understand to him that he had these appellate rights to appeal to this court

[00:09:05] Speaker 00:
back here in Washington, D.C.

[00:09:09] Speaker 00:
With respect to the court's decision below with regard to the submission of the claim, the court held below that the first letter, July 17th, 2014, was not a claim.

[00:09:21] Speaker 00:
And the reason they said that it was not a sum certain.

[00:09:24] Speaker 00:
This court in August 22nd of 2023 ruled that the sum certain requirement is not a jurisdictional

[00:09:32] Speaker 00:
Um, so, and that was before this decision was issued.

[00:09:36] Speaker 00:
So at a minimum, that issue needs to be returned to that court because they held that as some certain with respect to that initial claim, um, was, um, was jurisdictional and therefore, uh, that initial, uh, letter was not a claim.

[00:09:50] Speaker 04:
Did you make that argument in this case?

[00:09:52] Speaker 00:
No, because our briefing was done around the January timeframe and that decision- It was still available to you though.

[00:09:57] Speaker 00:
Yeah.

[00:09:57] Speaker 02:
I mean, just because you didn't think of it doesn't mean you can raise it after the fact.

[00:10:02] Speaker 00:
that the, what respect to that argument?

[00:10:07] Speaker 00:
The some certain not being jurisdiction.

[00:10:08] Speaker 00:
We said it was a some certain.

[00:10:14] Speaker 00:
The first time that we were presented with that.

[00:10:15] Speaker 02:
Yeah, but you didn't say in the alternative, if it's not considered a some certain, it's not jurisdictional, so it shouldn't have been dismissed for lack of jurisdiction.

[00:10:23] Speaker 02:
That argument was available to you, but you just didn't make it.

[00:10:26] Speaker 00:
Well, I mean, the first time that it came up was in the decision of the ASBCA.

[00:10:30] Speaker 02:
Yeah, because those people, I mean, it came up in our court because the people in that case made the argument.

[00:10:37] Speaker 02:
You didn't.

[00:10:38] Speaker 00:
But no one was saying that it was an act which I'm certain, so that the case should be dismissed, so we would be arguing against ourselves to raise it before the ASBCA.

[00:10:48] Speaker 02:
Well, you could have raised it to us, though.

[00:10:50] Speaker 00:
We did raise that issue in our briefing to the ASBCA before you.

[00:10:54] Speaker 00:
that there was an act with some certain amount in this matter.

[00:11:14] Speaker 01:
May it please the court?

[00:11:16] Speaker 01:
The board correctly dismissed this case because the joint venture that the government contracted with

[00:11:23] Speaker 01:
never submitted a valid claim.

[00:11:26] Speaker 02:
What's wrong with his argument that the settlement agreement ratified the claim?

[00:11:32] Speaker 01:
Well, a number of things.

[00:11:33] Speaker 01:
First, we don't think there was a claim there, but just to start with the idea of ratification.

[00:11:40] Speaker 01:
It's certainly true that you can come in and convert some prior correspondence to a claim.

[00:11:46] Speaker 01:
But the problem in this case is that never happened.

[00:11:50] Speaker 01:
If you look at Appendix 2600, I mean, this is a key page.

[00:11:53] Speaker 01:
You've got this exchange.

[00:11:55] Speaker 01:
Nobody's confused there.

[00:11:57] Speaker 01:
You've got this exchange on Appendix 2600, where after everything's done now, now the settlement agreement, as they call it, is done.

[00:12:04] Speaker 01:
You've got the consultant with lots of experience, including as a government contracting officer, the consultant working for the contractor saying,

[00:12:15] Speaker 03:
I'm sorry, we're on 2600.

[00:12:17] Speaker 03:
Where should I look?

[00:12:18] Speaker 03:
There's more than one email here.

[00:12:20] Speaker 01:
Right, so it's the first email and the second email on the top of the page.

[00:12:23] Speaker 01:
So the second from the top of the page, the last part of that email... Hi Frank.

[00:12:28] Speaker 01:
Hi Frank, right, and then specifically that last part, last part of that sentence.

[00:12:32] Speaker 01:
We wish to proceed with the REA and or possibly convert it to a claim.

[00:12:38] Speaker 01:
Then you look at the response from the government contracting officer.

[00:12:43] Speaker 01:
Convert to a claim.

[00:12:44] Speaker 01:
REA has been responded to because the government had denied these REAs.

[00:12:48] Speaker 01:
So we don't have anyone confused here about what's going on.

[00:12:53] Speaker 01:
We just have for the next five plus years after this exchange, nothing.

[00:12:58] Speaker 01:
There is no then, here's our claim certification now that the authority issue has worked out.

[00:13:04] Speaker 01:
There's just nothing for five years until all of a sudden in 2021,

[00:13:09] Speaker 01:
There is a notice of appeal with the board file that claims that the government never responded to what we say is an REA.

[00:13:17] Speaker 01:
They call it a claim.

[00:13:20] Speaker 03:
So do you take this little one-line email, convert to a claim REA has been responded to, to be a final denial of a request for equitable adjustment?

[00:13:32] Speaker 01:
No.

[00:13:33] Speaker 01:
That already had happened.

[00:13:34] Speaker 01:
That had already happened.

[00:13:35] Speaker 03:
This confirms that it happened.

[00:13:38] Speaker 01:
It confirms that the ARIA had been denied.

[00:13:40] Speaker 01:
It confirms that both parties understood what was going on here.

[00:13:44] Speaker 03:
And this is the contracting officer saying, convert to a claim.

[00:13:48] Speaker 03:
What was that a direction to the contractor to do?

[00:13:53] Speaker 01:
It's a direction in response to this consultant saying, if you want to proceed with this, the next step is you need to submit your claim certification.

[00:14:02] Speaker 01:
You need to ask for a final decision.

[00:14:04] Speaker 01:
You need to do what the CDA requires.

[00:14:06] Speaker 03:
You need to ask an additional request for a final decision on what you said was an already final denial of the request for equitable adjustment.

[00:14:19] Speaker 01:
It's not an additional request for a final decision from our perspective, because although there's disagreement between the parties here, when we go look at that, the prior correspondence, we do not find a request for a final decision at all there.

[00:14:32] Speaker 01:
And to the contrary, what we see there is, and again, there was some discussion about there was misleading,

[00:14:40] Speaker 01:
and that it's a contractor in Afghanistan who doesn't understand.

[00:14:43] Speaker 01:
That's not who this was exchanged with.

[00:14:45] Speaker 01:
If you go look at these REAs, they're on the letterhead of a consultant who used to work for the government as a contracting officer.

[00:14:51] Speaker 01:
And in those REAs, you do not have the CDA claim certification that was significant, for example, in Zephyr.

[00:14:59] Speaker 01:
To the contrary, you have a person who is well-informed and sophisticated in government contracting submitting to a government contracting officer a document that cites

[00:15:10] Speaker 01:
with the statutory reference, the REA certification, which is different than the CDA's claim certification.

[00:15:19] Speaker 02:
So these REAs we are talking about, are these also the ones that were submitted by the unauthorized person?

[00:15:26] Speaker 01:
Correct.

[00:15:26] Speaker 01:
There was never an REA.

[00:15:27] Speaker 02:
And that was the basis for why the government rejected them?

[00:15:31] Speaker 02:
One of the basis, yes.

[00:15:33] Speaker 02:
So the problem is not just that the government rejected them for

[00:15:37] Speaker 02:
being unauthorized, those could never be converted to a claim without a proper CDA certification because they weren't claims in the first place.

[00:15:47] Speaker 02:
And it's fuzzy, I know, between REA and claim, and probably Zafer made it a little bit fuzzier, but at least in Zafer it said there was a certification, right?

[00:15:57] Speaker 00:
Right, absolutely.

[00:15:58] Speaker 02:
And your view is there is no certification of these REAs that could potentially transform what was titled an REA into a claim?

[00:16:06] Speaker 01:
That's correct.

[00:16:07] Speaker 01:
There's only the OREA certification.

[00:16:08] Speaker 01:
There was not the claim certification.

[00:16:10] Speaker 02:
And so even if there was going to be ratification somehow, it's not really ratification.

[00:16:15] Speaker 02:
They have to submit something saying, here's our claim now, and here's the certification.

[00:16:21] Speaker 01:
Right, even if you were to say that what was submitted before was now somehow ratified, authorized, retrospectively, that's not enough because what was submitted before not only was it denied, but it wasn't a claim.

[00:16:35] Speaker 02:
So this settlement agreement we looked at then, the problem with it is not so much, well, there's probably a lot of problems in your view, but even if we accept that it tried to ratify a claim, what it was ratifying was not a claim, and it couldn't

[00:16:51] Speaker 02:
couldn't retroactively make it a claim without a CDA certification and the like.

[00:16:56] Speaker 01:
Correct.

[00:16:56] Speaker 01:
And further to that point, it's never possible to put the government on the clock retrospectively.

[00:17:02] Speaker 01:
You need some further thing.

[00:17:03] Speaker 01:
There's interest starts from the date of the claim, the government's on the clock for its final decision.

[00:17:09] Speaker 01:
Even if you come back with some very short one-page thing that takes

[00:17:13] Speaker 01:
prior correspondence says now it's claimed.

[00:17:15] Speaker 01:
You need something further to turn it into a claim and that's what never happened here.

[00:17:21] Speaker 01:
That's why I was pointing the court to that to that page appendix 2600.

[00:17:25] Speaker 03:
Did the board here find that this settlement agreement

[00:17:32] Speaker 03:
The February 7, 2016 settlement agreement was not, in fact, a ratification of authority to have made the earlier filings made only by the Z company?

[00:17:51] Speaker 03:
I thought it did.

[00:17:53] Speaker 01:
The board did determine on Appendix 14, there's a heading that says, the quote, settlement did not retroactively provide Mr. Sutherland, that was the consultant working for the contractor, authority to submit the claims.

[00:18:11] Speaker 01:
And then further on Appendix 15, the board is stating, observing, that the appellant did not even argue below

[00:18:23] Speaker 01:
that those emails had the effect of perfecting a claim.

[00:18:32] Speaker 01:
So after the settlement, there was email exchange between the government and the contractor.

[00:18:39] Speaker 01:
And that argument wasn't made even that those emails then had the effect of now, in essence, being the claim, perfecting the claim, converting it to a claim.

[00:18:49] Speaker 01:
So that argument wasn't even made.

[00:18:51] Speaker 03:
So the boards are both of those determinations, determinations that we owe deference to because the first is factual and the second is, I don't know, a forfeiture or something point.

[00:19:09] Speaker 03:
Well, the first one, just to make sure that the February 7, 2016 settlement agreement did not, in fact, report to grant retrospective authorization to the earlier filings.

[00:19:34] Speaker 01:
Yeah, on deference, I think it would depend on how you interpret that.

[00:19:36] Speaker 03:
Is that a factual determination?

[00:19:38] Speaker 01:
Not necessarily.

[00:19:39] Speaker 01:
If it's legal interpretation of a contract, a settlement agreement, I wouldn't say that's factual if the court were to see more in that finding than just straight interpretation of a contract, perhaps.

[00:19:52] Speaker 01:
I mean, there certainly was material put before the court.

[00:19:58] Speaker 01:
I think the board there was just reading the document on its face and it doesn't really say what the appellant wants it to say as far as retroactive.

[00:20:10] Speaker 01:
It's acknowledging something that apparently they thought happened that really did not ever happen as far as submission of a claim before.

[00:20:18] Speaker 01:
And so that's what that paragraph two in that settlement agreement, it doesn't now say, okay, now we agree

[00:20:25] Speaker 01:
you can submit a claim, or that now we agree that an authorized claim was submitted in the past.

[00:20:31] Speaker 01:
It doesn't actually say that.

[00:20:33] Speaker 01:
It seems to be a misunderstanding between the two of them.

[00:20:36] Speaker 03:
Well, it could be the way I think it was described earlier.

[00:20:39] Speaker 03:
I think Judge Hughes said we recognize that there was a claim filed, and this is the percent that we've agreed we get, and each of the two ventures get, without doing anything more than that.

[00:20:53] Speaker 01:
So the language specifically on appendix 275 in that settlement agreement is the second party covenants and agrees that it has submitted a claim.

[00:21:03] Speaker 03:
The second party is the Z company.

[00:21:05] Speaker 01:
Yes.

[00:21:05] Speaker 01:
But it was never able to do that.

[00:21:07] Speaker 01:
So there's a little bit of a disconnect there between the two.

[00:21:09] Speaker 03:
But it just says, we agree that one of us submitted a claim.

[00:21:16] Speaker 03:
That doesn't say that we agree that it was properly submitted on our behalf.

[00:21:23] Speaker 01:
Absolutely not.

[00:21:24] Speaker 01:
Right.

[00:21:24] Speaker 01:
And even then, submitting that agreement to the government now, if you're the government, you're receiving this information, and you're thinking, well, I've already denied what was submitted to me.

[00:21:37] Speaker 01:
Can I ask you that?

[00:21:38] Speaker 02:
I don't understand how it would work.

[00:21:47] Speaker 02:
If they're just, I mean, first of all, it seems like there's a factual mistake in that settlement agreement, which was that a claim was submitted.

[00:21:55] Speaker 02:
Your view is no CDA claim was submitted because there was no certification.

[00:22:00] Speaker 02:
Let's just assume there actually had been a certification by an unauthorized person.

[00:22:04] Speaker 02:
What would happen then with this language?

[00:22:09] Speaker 02:
I mean, I guess my point is if there

[00:22:14] Speaker 02:
How can somebody, because the government's required to respond to a claim within a certain amount of time, right?

[00:22:19] Speaker 02:
Yes.

[00:22:19] Speaker 02:
Wordsteam denied.

[00:22:20] Speaker 02:
And then they have to bring a challenge to that.

[00:22:23] Speaker 02:
I don't understand what would happen to this later ratification if it somehow was a claim before and the government had mistakenly said it's not a claim.

[00:22:34] Speaker 01:
It's still, they still would have needed to take a further step because even if they had supposed that what they submitted the first time had the CDA claim certification, but not from somebody who had authority to provide it.

[00:22:46] Speaker 01:
Now they decide, okay, we've worked it out.

[00:22:48] Speaker 01:
We're going to split it 50-50.

[00:22:50] Speaker 01:
What's next?

[00:22:52] Speaker 01:
just giving the government okay we've worked it out and this person says they submitted it doesn't do it you need to be deferred i mean this course recognize the anti-fraud purposes of the certification you need to actually give the government a certification that is authorized when provided and that certainly never happened with the the the the court but the book board below said that even assuming so this is what i'm a little unclear even assuming that a valid claim was submitted

[00:23:23] Speaker 04:
It was OK because it was unequivocally denied more than 90 days prior to this appeal.

[00:23:29] Speaker 04:
But under that assumption, I think your friend is arguing, well, it wasn't unequivocally denied because they didn't provide appeal rights.

[00:23:38] Speaker 04:
So you can't kind of just convert it and say, even if.

[00:23:42] Speaker 04:
It was OK because they were under the clock of 90 days.

[00:23:46] Speaker 01:
even if they were able to establish that there was a defect for lack of appeal rights, they would have to show prejudice to have it make any difference and stop the running of the clock to file and potentially make it timely.

[00:23:58] Speaker 01:
And so the board went through how there was no evidence that the board found credible of any prejudice.

[00:24:04] Speaker 01:
And the declaration that was submitted in

[00:24:08] Speaker 01:
support of that, the board found to just be not true, the statements made in there, to the point that it had no evidentiary value.

[00:24:16] Speaker 04:
But isn't it fair if one is construing what is being done, and there is no notice of appeal rights?

[00:24:25] Speaker 04:
Can't the contractor fairly assume, well, this means it's not a final denial, because there's no notice of appeal rights?

[00:24:33] Speaker 01:
Not be a fair assumption?

[00:24:34] Speaker 01:
So there wasn't a contracting officer's final decision here.

[00:24:38] Speaker 01:
That's why there was no appeal rights.

[00:24:40] Speaker 01:
And the reason there wasn't a contracting officer's final decision is because these parties who were communicating with each other and spoke the same language, the consultant with the contracting officer, they understood each other that no requests for a final decision had been made.

[00:24:54] Speaker 01:
So as we point out, the only reason the appeal rights are not there, the only reason it wasn't styled as a contracting officer's final decision

[00:25:02] Speaker 01:
is because the alleged claims weren't styled as claims.

[00:25:06] Speaker 01:
And so you can't have it both ways.

[00:25:08] Speaker 01:
I mean, there's no question.

[00:25:09] Speaker 01:
No, I know.

[00:25:09] Speaker 04:
But I'm just going to the boards looking at it, wanting to have it both ways, and saying, even if there was a final denial, they were under the 90-day clock and not under the 60-year clock.

[00:25:22] Speaker 01:
I don't think it's the board that wants to have it both ways.

[00:25:23] Speaker 01:
I think it's the appellant here.

[00:25:25] Speaker 01:
So the point is, if that's a claim,

[00:25:29] Speaker 01:
If that document is a claim and it was authorized and all that, if that's a claim... Which document?

[00:25:34] Speaker 01:
The second or A, the document at Appendix 197, that's the one they claim is their claim.

[00:25:44] Speaker 01:
But the point is, if that's a claim, it was denied.

[00:25:46] Speaker 01:
So you get 90 days from when your claim is denied.

[00:25:49] Speaker 01:
So we're saying there was no claim here, but even if there was,

[00:25:54] Speaker 01:
It wasn't appealed within 90 days of the denial of that document.

[00:25:59] Speaker 01:
So from our perspective, there's three problems here, where even one is too many.

[00:26:04] Speaker 01:
There's the lack of authority.

[00:26:06] Speaker 01:
There's that these documents just were not claims.

[00:26:08] Speaker 01:
They were not requesting that the government provide a final decision to start the CDA.

[00:26:12] Speaker 01:
And even if they were, they were promptly and unequivocally denied.

[00:26:16] Speaker 01:
So the request at this court affirmed.

[00:26:20] Speaker 03:
I just want to be clear.

[00:26:21] Speaker 03:
When do you think the two REA requests were denied?

[00:26:28] Speaker 03:
So the first one.

[00:26:30] Speaker 01:
September 15, 2014?

[00:26:32] Speaker 01:
That's right, on appendix 195.

[00:26:34] Speaker 01:
Right.

[00:26:34] Speaker 01:
And when's the second one?

[00:26:35] Speaker 01:
The second one is denied.

[00:26:40] Speaker 01:
appendix 2513 on December 16, 2015.

[00:26:45] Speaker 03:
That's right.

[00:26:45] Speaker 03:
Right.

[00:26:46] Speaker 03:
And then the settlement agreement comes in within 90 days.

[00:26:49] Speaker 03:
So if that one is still somehow live, right, it comes in February 7, 2016.

[00:26:56] Speaker 03:
That's 50 days or so.

[00:27:00] Speaker 01:
Yeah, I don't understand the significance of the settlement agreement between those parties being 90 days.

[00:27:04] Speaker 03:
Well, there was a conversation way back at the beginning of this argument about whether the settlement agreement was kind of too late.

[00:27:12] Speaker 03:
Suppose it was a ratification and a retrospective, retroactive ratification.

[00:27:18] Speaker 03:
The clock was still available on the assumption that that December 16th, 2015 decision was a denial of a claim.

[00:27:29] Speaker 01:
But the 90 days, these are separate things, I think.

[00:27:31] Speaker 01:
The 90 days is from the denial to the board.

[00:27:36] Speaker 01:
That's right.

[00:27:39] Speaker 01:
after the REA denial to work, claim denial allegedly, to the parties working things out as nine days.

[00:27:47] Speaker 01:
I don't see the significance there.

[00:27:49] Speaker 01:
I mean, certainly, once they worked it out, they were within the six years when they could have submitted their claim.

[00:27:55] Speaker 01:
And then there would have been 90 days from the denial to where they could go to the board.

[00:27:59] Speaker 01:
But factually, you're right.

[00:28:01] Speaker 01:
Yes, the settlement agreement, appendix 275, was within.

[00:28:04] Speaker 01:
It was February 7.

[00:28:07] Speaker 01:
The denial of the second REA was

[00:28:10] Speaker 03:
The board speaks of, this is sort of in the alternative, after the board says there was a claim, namely the second REA was denied December 17, 2015, and says, but no appeal was filed within 90 days of that.

[00:28:31] Speaker 03:
And I'm trying to understand your primary position, maybe based on that email, is that that just wasn't a claim, so no clock was ever running.

[00:28:42] Speaker 03:
Nope.

[00:28:42] Speaker 03:
I'm saying no, right.

[00:28:43] Speaker 03:
No clock to get to the board.

[00:28:45] Speaker 03:
No 90 day clock was ever running.

[00:28:48] Speaker 03:
There just wasn't the prerequisite, namely a final denial of the CDA claim or 90 days.

[00:28:55] Speaker 03:
Is it no 120 days of inaction on a claim, which then permits the contractor to say it's deemed denied doesn't require the contractor to contractor can sit there forever.

[00:29:06] Speaker 03:
Right.

[00:29:07] Speaker 03:
Um, and not be mandated to deem it a denial.

[00:29:12] Speaker 01:
Right, our primary position, we disagree with the board a little bit, we say there was never a valid claim.

[00:29:19] Speaker 01:
So none of those clocks started.

[00:29:21] Speaker 01:
But we totally agree with the board on the principle basis of the word authority.

[00:29:24] Speaker 03:
But putting aside some certain, which I just want to put aside, then if we thought

[00:29:32] Speaker 03:
that the settlement agreement was a valid retroactive ratification of at least the second claim, or the second request for equitable adjustment.

[00:29:43] Speaker 03:
Where does that leave us?

[00:29:45] Speaker 01:
So if you thought that them entering into their settlement agreement and then giving the government a copy of their settlement agreement had the effect of submitting a certified claim valid under the CDA, then I suppose you would then decide whether you think that the subsequent emails where the government is making clear, I've already denied this,

[00:30:06] Speaker 01:
is a final decision, such that the clock started, or you decide that, well, the government didn't respond.

[00:30:13] Speaker 01:
There was a failure to respond, even the government saying, I've denied this.

[00:30:16] Speaker 01:
This is closed.

[00:30:18] Speaker 01:
In which case, yeah, there'd be no clock.

[00:30:21] Speaker 01:
They could come in 100 years, if that was what the court decided.

[00:30:23] Speaker 01:
Obviously, we think that's wrong.

[00:30:33] Speaker 00:
Just briefly, I think I ran over on the initial.

[00:30:36] Speaker 00:
With respect to the claims, as the court identified, the ASPCA did decide that there was a valid claim with the second letter that was submitted on May 27, 2015.

[00:30:49] Speaker 00:
So there had to have been a valid final decision.

[00:30:51] Speaker 00:
In this case, there was never a valid final decision.

[00:30:54] Speaker 00:
Council even admitted that initially that there was never a valid final decision.

[00:30:57] Speaker 00:
It was just a bunch of emails.

[00:30:58] Speaker 00:
There was no rights given to the contracting officer.

[00:31:01] Speaker 00:
There was no

[00:31:03] Speaker 00:
way for them to know about the appeal rights with the issue of regard to prejudice.

[00:31:07] Speaker 03:
The business of prejudice, as I understand it, comes up when there is a final decision, but it omits a regulatory and maybe even statutorily required notice of appeal rights.

[00:31:20] Speaker 03:
But that doesn't even come up if there just never was a final decision.

[00:31:28] Speaker 00:
That's correct.

[00:31:31] Speaker 00:
And there is a limit on this, as everyone is well aware.

[00:31:33] Speaker 00:
There's a six-year statute of limitations.

[00:31:35] Speaker 00:
The government has the ability to give them the 90 days and move everybody forward, but they never did that in this case.

[00:31:42] Speaker 00:
With respect to the first claim,

[00:31:44] Speaker 00:
In this case, we're saying it wasn't a valid certification.

[00:31:47] Speaker 00:
This court's decision in ECC International indicates that that was a valid claim, because the only reason the court found below that it wasn't a valid claim was that it didn't have a sum certain.

[00:31:57] Speaker 00:
And we know that's not a jurisdictional requirement.

[00:31:58] Speaker 00:
It did have a net amount identified.

[00:32:03] Speaker 03:
And it did... This is the arithmetic error?

[00:32:05] Speaker 00:
Yeah, the arithmetic error, correct.

[00:32:08] Speaker 00:
And that was the July 17, 2014.

[00:32:14] Speaker 00:
Thank you, Your Honor.