[00:00:00] Speaker 01:
Our next case for argument is 22-2202, carrying hands, health equipment and supplies, versus the Secretary of Veterans Affairs.

[00:00:09] Speaker 01:
Mr. Tulchin, am I saying it right?

[00:00:10] Speaker 00:
You said it right.

[00:00:11] Speaker 01:
Mr. Tulchin, please proceed.

[00:00:13] Speaker 00:
Thank you, Your Honors.

[00:00:15] Speaker 00:
We're here on an appeal from the Civilian Board of Contract Appeals that granted summary judgment, the order granted summary judgment to the government and denied

[00:00:25] Speaker 00:
I guess our cross-motion was a partial cross-motion with respect to a contract dispute involving

[00:00:35] Speaker 00:
effectively two sets of contracts.

[00:00:37] Speaker 00:
So there really are four issues that are before the court.

[00:00:43] Speaker 00:
First one is, are these requirements contracts?

[00:00:46] Speaker 00:
Second one is, are these illusory, non-contracts, no contracts?

[00:00:50] Speaker 00:
Third is, are they indefinite delivery, indefinite quantity, IDIQ contracts?

[00:00:54] Speaker 00:
And I guess the fourth issue is,

[00:00:56] Speaker 00:
are the facts undisputed in these regards because this matter is decided on summary judgment.

[00:01:02] Speaker 00:
So if there are any factual disputes, then the court should reverse the CBCA.

[00:01:07] Speaker 02:
Can I start on the 2015 contracts?

[00:01:10] Speaker 02:
You say on page one of your gray brief, the 2015 contracts state explicitly that they are requirements contracts.

[00:01:19] Speaker 02:
Can you show me where that is?

[00:01:21] Speaker 00:
Paragraph C1.

[00:01:22] Speaker 00:
It appears several times because there are several contracts, but you can find it.

[00:01:27] Speaker 00:
I have one marked here on page 1040 of the appendix.

[00:01:32] Speaker 00:
And what C1 says is, and I'll read the entire paragraph, the volume or amounts shown in the contract line item numbers cleanse our estimates only and impose no obligation on the VA.

[00:01:44] Speaker 00:
And this is the key, because this now is the key sentence.

[00:01:47] Speaker 00:
The contract shall be for the actual requirements of the VA as ordered by the VA during the life of the contract.

[00:01:54] Speaker 00:
Now, I can't come up with any more clear language as to... Well, how about all requirements?

[00:02:01] Speaker 00:
Wouldn't that be clearer?

[00:02:04] Speaker 00:
It says shall be for all the actual requirements.

[00:02:07] Speaker 00:
I don't think there's any difference in the English language.

[00:02:10] Speaker 00:
If I say I'm ordering your requirements, or I'm ordering all your requirements, it means the same thing.

[00:02:15] Speaker 00:
Your requirements, the actual requirements, that's what it says.

[00:02:20] Speaker 00:
So if you ask me is there a statement here, it's absolutely clear.

[00:02:26] Speaker 00:
And I know that

[00:02:27] Speaker 00:
We tend to loosen our language and try to say, using the word all, add something to a sentence, but it doesn't.

[00:02:34] Speaker 02:
How about the FAR provision for requirements contracts?

[00:02:38] Speaker 02:
Wouldn't that be a clearer way of stating this is a requirements contract?

[00:02:42] Speaker 00:
It should have been in here.

[00:02:43] Speaker 00:
My client didn't draft the contract.

[00:02:44] Speaker 00:
The government drafted the contract.

[00:02:46] Speaker 00:
But it's not in here.

[00:02:47] Speaker 00:
And the case law is absolutely clear that it doesn't have to be in here for this to be a requirements contract.

[00:02:53] Speaker 00:
The cases say, and in fact, the force of contract appeals use the Christian doctrine to say that it has to be interpreted to be in the contract.

[00:03:04] Speaker 00:
The requirements clause has to be in the contract by law.

[00:03:07] Speaker 00:
And it is inherently there under the Christian doctrine.

[00:03:12] Speaker 00:
I don't think the Court of Federal Claims has said that.

[00:03:15] Speaker 00:
But the Court of Federal Claims says we don't need the clause in here for the requirements contract.

[00:03:20] Speaker 00:
And the Federal Circuit hasn't spoken to that particular issue.

[00:03:24] Speaker 00:
But logic tells you it doesn't have to be there.

[00:03:26] Speaker 00:
I look at contracts all the time, and I see the way contracting officers draft contracts, and there are always problems in the way they draft the contracts.

[00:03:38] Speaker 00:
There just are.

[00:03:42] Speaker 00:
contracting officer to do it correctly.

[00:03:44] Speaker 00:
And if they don't do it correctly, they can't then sit back and say, I'm sorry.

[00:03:50] Speaker 00:
We're not allowing this contract to be enforced because I didn't put a clause in there that the law says should be in there.

[00:03:57] Speaker 00:
But the case law says it doesn't have to be in there for it to be a requirements contract.

[00:04:02] Speaker 00:
But when this clause says you're going to order the requirements, that's it.

[00:04:06] Speaker 00:
And the Board of Contract Appeals said, well, you've got to read this in the context of the first sentence, which says the volumes or amounts shown are estimates only.

[00:04:19] Speaker 00:
But that is a clause that is mandated in a requirements contract.

[00:04:23] Speaker 00:
But for some reason, the judge in the Board of Contract Appeals read that as being something that made this not a requirements contract when FAR says, 16.503, that it must be in a requirements contract.

[00:04:34] Speaker 00:
But again, the board of contract.

[00:04:36] Speaker 02:
That same estimates language has to be in an indefinite quantity contract.

[00:04:40] Speaker 02:
That's not a requirements contract.

[00:04:41] Speaker 02:
Isn't that correct?

[00:04:42] Speaker 00:
It has to be in both.

[00:04:43] Speaker 00:
It has to be in both.

[00:04:44] Speaker 01:
Are we talking about, right now, I'm sorry, just to keep track of the 2014 contracts or the 2015?

[00:04:48] Speaker 01:
What are you focusing on?

[00:04:50] Speaker 01:
2015.

[00:04:50] Speaker 01:
I'll get 2015.

[00:04:51] Speaker 00:
Right.

[00:04:52] Speaker 03:
The court asked me to focus first on that.

[00:04:54] Speaker 03:
The magic words of exclusivity are, can you say this contract was for the actual requirements as ordered?

[00:05:01] Speaker 00:
Right.

[00:05:02] Speaker 00:
And again, 16.503.

[00:05:04] Speaker 03:
As opposed to it meaning, well, in each order, these are actual requirements needed at a particular time, as reflected by the specific order.

[00:05:16] Speaker 00:
But that's not what it says.

[00:05:17] Speaker 00:
It says, as ordered during the life of the contract.

[00:05:20] Speaker 00:
It doesn't say.

[00:05:22] Speaker 00:
It says during the life of the contract, as ordered during the life of the contract.

[00:05:27] Speaker 00:
Okay.

[00:05:28] Speaker 03:
Each individual order is for the actual requirements at that time that they needed.

[00:05:35] Speaker 03:
Somebody needed this many band-aids and this much somewhere, and those were the actual requirements in that area done sequentially during the course of the contract.

[00:05:46] Speaker 03:
That's what I understood the government to magic language to me.

[00:05:52] Speaker 03:
Whereas if it had read all the requirements, that would have been much more words of expertise.

[00:05:57] Speaker 00:
Okay, and I can answer that in two ways.

[00:05:59] Speaker 00:
One, 16.503 of FAR says there has to be a clause in there that says as ordered.

[00:06:05] Speaker 00:
That's a requirement of a requirements contract.

[00:06:08] Speaker 00:
So that's all that says.

[00:06:09] Speaker 00:
This is a mandated, this concept of as ordered is mandated by FAR in a requirements contract.

[00:06:15] Speaker 03:
It has meaning.

[00:06:16] Speaker 00:
It has meaning.

[00:06:17] Speaker 00:
It means as ordered, as ordered, which means... And I appreciate it.

[00:06:23] Speaker 03:
I think your case from 2015 hangs on that one.

[00:06:26] Speaker 03:
It does work.

[00:06:26] Speaker 03:
That's it.

[00:06:27] Speaker 00:
Well, it's these words combined with the fact that there's nothing to contradict these words.

[00:06:42] Speaker 00:
Okay, so if there were other clauses in there like an IDIQ clause.

[00:06:48] Speaker 00:
Right.

[00:06:49] Speaker 00:
But in this case, you only have these words.

[00:06:51] Speaker 00:
You don't have IDIQ words or any other words.

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And there is nothing anywhere, whether it's an IDIQ word or anything, there's nothing that contradicts these words.

[00:07:05] Speaker 00:
And that's the key.

[00:07:06] Speaker 00:
If you have a word, if you have a clause, and it says clearly what it says, you're going to order requirements of the government, and there's nothing that contradicts this,

[00:07:16] Speaker 00:
then this court should be finding that these are requirements contracts.

[00:07:21] Speaker 00:
Now remember what the Board of Contract Appeals did is that they said it's an illusory contract.

[00:07:26] Speaker 00:
It's meaningless.

[00:07:27] Speaker 00:
It doesn't mean anything.

[00:07:28] Speaker 00:
The government doesn't have to do anything.

[00:07:29] Speaker 00:
Now think about that.

[00:07:31] Speaker 00:
What the Board of Contract Appeals says is that even though it says the contract shall be for the actual requirements of the VA, that doesn't mean anything because this contract doesn't mean for the actual requirements of the VA.

[00:07:42] Speaker 00:
It means the VA could ignore it.

[00:07:45] Speaker 00:
Now, that makes very little sense.

[00:07:47] Speaker 00:
That makes no sense whatsoever.

[00:07:48] Speaker 01:
So you're saying that the sentence, basically, if we read it the way the government would have us read it, the words, for the actual requirements of the VA, are entirely superfluous.

[00:07:58] Speaker 01:
Because that sentence could be modified to say, the contract shall be for whatever ordered by the VA during the life of the contractor.

[00:08:04] Speaker 00:
That's the problem.

[00:08:04] Speaker 00:
That's the problem with the board of contractors.

[00:08:06] Speaker 01:
So their interpretation renders that language entirely superfluous.

[00:08:09] Speaker 00:
The board of contractors and the government's interpretation renders it superfluous.

[00:08:12] Speaker 00:
government chapter.

[00:08:14] Speaker 01:
This is ultimately... Can you construe language as a general canon of construction against the drafter?

[00:08:19] Speaker 00:
Absolutely.

[00:08:21] Speaker 01:
These are friendly questions.

[00:08:23] Speaker 00:
Yeah, I understand.

[00:08:25] Speaker 00:
These are drafted by the government, should be interpreted against the government.

[00:08:30] Speaker 00:
Yeah, OK, so that's what the Board of Contract Appeals fell back on.

[00:08:34] Speaker 00:
Is it patent?

[00:08:35] Speaker 00:
First of all, the case law says that the characterization of a contract doesn't fall under the rubric of patent versus latent versus ambiguous.

[00:08:43] Speaker 00:
The issue of patent versus latent is a factual issue.

[00:08:47] Speaker 00:
Does it say 2, or does it say 20?

[00:08:51] Speaker 00:
Okay, those are Peyton versus Leighton ambiguities, factual.

[00:08:55] Speaker 00:
It says when it comes to the characterization of the contract, there's no such thing.

[00:08:58] Speaker 00:
You don't even apply the rubric of Peyton versus Leighton.

[00:09:01] Speaker 00:
Okay, that's one.

[00:09:02] Speaker 01:
And two is... Okay, but if it's ambiguous, what happens here?

[00:09:05] Speaker 00:
If it's ambiguous, you interpret it against the government.

[00:09:08] Speaker 00:
But the ambiguity here would clearly not be patent because there's nothing in it that contradicts it.

[00:09:14] Speaker 02:
So a patent ambiguity means as it's here... Why isn't the absence of the FAR requirements provision and the absence of the word all actual requirements, why aren't those patent ambiguities that you had an obligation to bring out?

[00:09:30] Speaker 00:
Does the absence of a clause create a patent ambiguity?

[00:09:34] Speaker 00:
I'm not sure if the word is patent versus patent.

[00:09:37] Speaker 00:
I'm not sure either.

[00:09:39] Speaker 00:
I've never seen a case and it doesn't make sense to me that the absence of something creates a patent ambiguity, especially when the case law says that that clause doesn't have to be here for this to be a requirements contract.

[00:09:52] Speaker 00:
So it makes no sense logically and there's no case that says that that's what a patent ambiguity is.

[00:09:57] Speaker 00:
There's no patent ambiguity, and perhaps you can argue that there's a latent ambiguity, and so if so, then it's interpreted against the government.

[00:10:06] Speaker 03:
But more importantly, you don't even get to this issue versus patent ambiguity.

[00:10:17] Speaker 00:
We said there's no patent ambiguity.

[00:10:21] Speaker 00:
I honestly do not think that there is an ambiguity here.

[00:10:23] Speaker 00:
When the contract says you're going to order actual requirements, it says you're going to order actual requirements.

[00:10:28] Speaker 00:
Our argument below was that we should get some re-judgment because it is so flawed.

[00:10:33] Speaker 01:
Well, if I get it, you're going to argue it's not ambiguous.

[00:10:35] Speaker 01:
And guess what?

[00:10:36] Speaker 01:
They're going to argue it's not ambiguous.

[00:10:38] Speaker 01:
That doesn't mean it isn't ambiguous.

[00:10:39] Speaker 01:
Did you argue in the alternative if the court construes it as ambiguous?

[00:10:44] Speaker 01:
here's what should happen.

[00:10:45] Speaker 01:
Did you make that argument in the alternative?

[00:10:47] Speaker 01:
People do that a lot.

[00:10:48] Speaker 01:
People say, I don't think it's ambiguous, but if you think it's ambiguous, here's what should happen.

[00:10:52] Speaker 00:
Yes, we argued that, contra-preferendum, that if it is ambiguous, it's interpreted against them, and it's not a Peyton versus Layton issue.

[00:10:59] Speaker 01:
You did that on pages 13 to 16 of your brief, right?

[00:11:02] Speaker 00:
What's that?

[00:11:02] Speaker 01:
You did it on pages 13 to 16 of your brief.

[00:11:04] Speaker 00:
Right, correct.

[00:11:05] Speaker 00:
And we argued the same thing below.

[00:11:10] Speaker 00:
I'll turn very, very briefly now.

[00:11:11] Speaker 00:
I know I'm into my five-minute rebuttal.

[00:11:14] Speaker 01:
You want to touch on 2014?

[00:11:16] Speaker 00:
Yeah, very briefly.

[00:11:17] Speaker 00:
2014 is a harder case for us.

[00:11:21] Speaker 00:
Yeah.

[00:11:23] Speaker 00:
Don't think that I don't recognize that.

[00:11:25] Speaker 00:
The issue, though, in 2014.

[00:11:27] Speaker 00:
I might suggest nearly impossible case for you, but continue, please.

[00:11:34] Speaker 00:
The issue with the 2014 is, is there a question of fact?

[00:11:40] Speaker 00:
I don't think we have the argument there that it's absolutely clear.

[00:11:44] Speaker 00:
But in 2014, are there questions of fact that would mandate the summary judgment not be granted?

[00:11:50] Speaker 00:
And we think that there are questions of fact.

[00:11:52] Speaker 00:
And we raise those questions.

[00:11:54] Speaker 00:
Biggest question is, 2014 contracts all supposedly contained a PWS performance work statement.

[00:12:01] Speaker 00:
It's incorporated by reference on page one of each one of those 2014 contracts.

[00:12:06] Speaker 00:
But the government never produced it.

[00:12:07] Speaker 00:
It's not part of this file.

[00:12:10] Speaker 00:
And we couldn't get it from the government.

[00:12:11] Speaker 00:
The government can't find it.

[00:12:13] Speaker 00:
We did have one government witness who said pretty sure that it would have been the same PWS as was in the 2015 contracts because it's the same basic thing.

[00:12:23] Speaker 00:
And the PWS in the 2015 contracts contained a clause that that's what we've been looking at, the actual requirements clause.

[00:12:33] Speaker 00:
Were there questions of fact we think that there are questions of fact that precluded summary judgment with respect to 2014 Because then we'd have the same actual requirements language Because we know that there was a PWS that was attached to that contract we don't have a copy of it and

[00:12:56] Speaker 00:
We think the government has a problem.

[00:12:58] Speaker 03:
How do you know there was one attached?

[00:12:59] Speaker 00:
Because it says on page one of each of the 2014 contract that the PWS SOW is attached as exhibit blank.

[00:13:06] Speaker 00:
And they're not.

[00:13:08] Speaker 00:
And the government witness said, it's pretty sure it's 2015, the same as the 2015.

[00:13:13] Speaker 00:
We don't have it.

[00:13:14] Speaker 00:
That in and of itself is a question of fact.

[00:13:16] Speaker 00:
And that should have been clear to the sentry judge.

[00:13:18] Speaker 01:
And I'll reserve the rest of my time.

[00:13:20] Speaker 01:
Let's save the rest of the rebuttal.

[00:13:21] Speaker 01:
Mr. Long?

[00:13:39] Speaker 04:
Thank you, Your Honor.

[00:13:39] Speaker 04:
May it please the Court.

[00:13:40] Speaker 04:
With respect to the 2015 contracts, the absence of the requirements clause creates strong questions, at the very least, about the nature of this contract.

[00:13:51] Speaker 04:
The requirements clause that's mandated by the FAR is quite clear.

[00:13:54] Speaker 04:
It says that the government shall order everything described in the schedule from this contractor.

[00:14:00] Speaker 04:
There's nothing that meets that level of definiteness in this contract.

[00:14:05] Speaker 01:
Well, it doesn't have to meet that exact level of definition.

[00:14:08] Speaker 01:
It doesn't have to.

[00:14:09] Speaker 01:
I mean, it says for the actual requirements of the VA.

[00:14:13] Speaker 01:
And the one issue you have to convince me of is what meaning would that have other than seeking to be a requirements contract?

[00:14:23] Speaker 01:
Because I can literally extract those words and read the sentence without them.

[00:14:29] Speaker 01:
And it's exactly what you think, if I extract them, the whole thing should mean.

[00:14:33] Speaker 01:
which means that your reading renders those words completely superfluous.

[00:14:37] Speaker 01:
So it bothers me, and you drafted the contract.

[00:14:40] Speaker 01:
So go ahead and tell me what that's your heart hurdle with me, at least in this case.

[00:14:44] Speaker 04:
Understood, Your Honor.

[00:14:47] Speaker 04:
The board focuses, and we focus in our briefs, on that prior sentence as well.

[00:14:51] Speaker 04:
The estimates only language.

[00:14:52] Speaker 01:
The prior sentence, he's exactly right.

[00:14:54] Speaker 01:
The FAR requirements contract has that prior sentence in it.

[00:14:57] Speaker 01:
So how could that prior sentence be indicative of not being a requirements contract when the FAR requirements provision has the sentence in it?

[00:15:04] Speaker 04:
That's not exactly my point, Your Honor.

[00:15:06] Speaker 04:
My point is that when you read this language, which is obviously not the requirements clause, together, when you read this language together, as it appears in Paragraph C. It's obviously not the requirements clause.

[00:15:16] Speaker 01:
So I'm sorry.

[00:15:17] Speaker 01:
You mean it's not FAR.

[00:15:17] Speaker 04:
Yes.

[00:15:18] Speaker 04:
I apologize.

[00:15:19] Speaker 01:
Okay.

[00:15:19] Speaker 01:
Because I kind of think it is a requirements clause.

[00:15:21] Speaker 01:
That's where I'm going.

[00:15:22] Speaker 01:
That's the problem.

[00:15:22] Speaker 01:
Understood.

[00:15:23] Speaker 04:
I apologize.

[00:15:23] Speaker 04:
I meant that it is not the FAR mandated version of a requirements clause.

[00:15:29] Speaker 04:
When you read the language together, the prior sentence states that these are estimates only in the schedule.

[00:15:36] Speaker 04:
And the subsequent sentence clarifies that statement by saying that the contract is for the actual requirements of VA as ordered by the VA.

[00:15:46] Speaker 04:
And so that first phrase that you're concerned about rendering superfluous

[00:15:52] Speaker 04:
is a clarification of what proceeds.

[00:15:55] Speaker 04:
And so it's not superfluous for that reason.

[00:15:57] Speaker 01:
No, that's not right.

[00:15:58] Speaker 01:
The second sentence could say, the contract shall be for the amounts ordered by the VA during the life of the contract.

[00:16:06] Speaker 01:
And that would equally take care of exactly the concern you said for the actual requirements language takes care of.

[00:16:14] Speaker 01:
The first sentence could say, these are estimates.

[00:16:16] Speaker 01:
And the second sentence could say, the contract shall be for the amounts ordered.

[00:16:24] Speaker 01:
You gave no meaning to those words whatsoever, so try again.

[00:16:29] Speaker 04:
The meaning that we would offer, Your Honor, is what I've just said.

[00:16:32] Speaker 04:
I understand, Your Honors, a few of it, but that's the interpretation that we believe is true.

[00:16:37] Speaker 01:
If you can't just say it by the view of it, you have to actually say why it's wrong.

[00:16:40] Speaker 01:
Why am I wrong that you haven't actually imbued any meaning to those words, that the rest of the sentence continues to do exactly what you just said in the absence of those words?

[00:16:57] Speaker 04:
Your Honor, I don't have an alternative interpretation that would address the concern that you raised.

[00:17:06] Speaker 01:
OK, fair enough.

[00:17:07] Speaker 01:
I really appreciate the genuineness of your response and that you didn't try to BS me.

[00:17:11] Speaker 01:
Thank you for that.

[00:17:12] Speaker 02:
Does that mean that at minimum the language that you've now discussed is at least susceptible to the meaning that the plaintiffs here wanted to have?

[00:17:25] Speaker 04:
Well, Your Honor, it's a rule of contractual interpretation that the contract should be interpreted in a manner, and this is what Chief Judge Moore's referring to, in a way that doesn't render any phrases superfluous.

[00:17:38] Speaker 04:
And so I think that then if the court is going in the direction that I'm understanding, then yes, I think at that point we have to ask ourselves what then this phrase is intended to mean.

[00:17:51] Speaker 04:
And then you would fall back on questions of whether there's an ambiguity and then latent or patent ambiguity.

[00:18:00] Speaker 01:
I know.

[00:18:01] Speaker 01:
So the problem with me is the point I made, which I know you clearly understand, combined with the government drafted the contract on top of it

[00:18:08] Speaker 01:
You know, we've got a lot of things that are weighing in one direction.

[00:18:11] Speaker 01:
But if it is ambiguous, what happens then?

[00:18:13] Speaker 01:
Suppose I say, OK, I don't apply the government's argument about the four.

[00:18:19] Speaker 01:
the actual requirements language.

[00:18:21] Speaker 01:
But what if I say it's at least ambiguous?

[00:18:24] Speaker 01:
And what happens with this case?

[00:18:25] Speaker 04:
So if we decide that both parties' interpretations are within a zone of reasonableness, that's the definition of ambiguity.

[00:18:32] Speaker 04:
We then ask whether it was latent or patent.

[00:18:35] Speaker 04:
Latent ambiguity requires inquiry on the part of the contractor.

[00:18:39] Speaker 04:
We

[00:18:40] Speaker 04:
I will say quite straight, we did not make this point in our briefs.

[00:18:44] Speaker 04:
Let's start with that.

[00:18:45] Speaker 04:
But if the court needs to do something.

[00:18:47] Speaker 01:
Who did make the point?

[00:18:48] Speaker 01:
We did not.

[00:18:49] Speaker 01:
Oh, OK.

[00:18:49] Speaker 04:
So the court.

[00:18:51] Speaker 01:
Well, they did.

[00:18:51] Speaker 01:
They, on pages 13 to 16, I don't know.

[00:18:54] Speaker 01:
I'm going to be honest.

[00:18:55] Speaker 01:
I don't know whether they're between Peyton and Layton.

[00:18:56] Speaker 01:
But I mean, I think I could figure it out, actually, based on the words.

[00:18:58] Speaker 01:
But on pages 13 to 16 of their brief, they made this doctrine of contra preferentum argument.

[00:19:05] Speaker 01:
Which one does that go to, and what's your response to it?

[00:19:10] Speaker 04:
If you'll let me move down this light and paint for a moment.

[00:19:14] Speaker 04:
So having determined ambiguity, obviously this is a legal question, the court needs to interpret it.

[00:19:20] Speaker 04:
Recognizing we didn't focus on patent ambiguities, the question then becomes whether there is such an obvious glaring ambiguity that the contractor needed to inquire about it.

[00:19:30] Speaker 04:
The contracts don't contain the far-mandated crime of flaws, which everyone knows as a constructive matter needed to be in there.

[00:19:38] Speaker 04:
And so we would suggest that there was a duty to inquire in this instance.

[00:19:44] Speaker 04:
If the court decides that there is not a glaring patent ambiguity, at that point we reach the question of what to do with a latent ambiguity.

[00:19:53] Speaker 01:
And then contrapreference.

[00:19:54] Speaker 01:
When you say which everyone knows should have been in here, with all due respect, the government drafted this contract.

[00:20:00] Speaker 01:
So who do I hold it against if something that everyone knows should have been there wasn't in there?

[00:20:04] Speaker 01:
Many of these government contracts are entered with smaller entities who aren't even necessarily meaningfully represented by knowledgeable government attorneys the way the US government has.

[00:20:15] Speaker 01:
So I'm a little hesitant.

[00:20:16] Speaker 01:
I don't know the facts of this case, but that's why maybe that goes into some sort of fact-finding related to ambiguity.

[00:20:23] Speaker 01:
I don't know.

[00:20:23] Speaker 01:
I don't know.

[00:20:24] Speaker 04:
I'm just questioning.

[00:20:27] Speaker 04:
Understanding your your honor's point very very well teachers more about the nature of these contractors nonetheless Contracting parties are charged with knowledge of the pertinent law.

[00:20:36] Speaker 04:
That is I believe I don't have a case with me, but I believe that And so they were just as aware as the VA Equally aware.

[00:20:45] Speaker 04:
It's a concession there.

[00:20:47] Speaker 04:
It's to some extent that it needed to be in there.

[00:20:50] Speaker 01:
And so that

[00:20:57] Speaker 01:
there I don't think that's true I believe that far 1650 I thought that our case said that there's you know it weighs strongly if the forest

[00:21:08] Speaker 04:
Yes, we're talking about slightly different things.

[00:21:11] Speaker 04:
The FAR mandates it, and we are now taking the position that it cannot be a fire requirements contract because it lacks the clause.

[00:21:16] Speaker 04:
That's not what we've said, obviously.

[00:21:18] Speaker 04:
So yes, the court can fine it as a fire requirements contract despite the lack of adherence to the FAR requirement.

[00:21:25] Speaker 04:
That's my point.

[00:21:27] Speaker 04:
So with respect to contra-proferendum, Your Honor, there's a four-part analysis.

[00:21:34] Speaker 04:
A, contract specifications drawn by the government, true here.

[00:21:38] Speaker 04:
B, the language is the subject of more than one interpretation.

[00:21:41] Speaker 04:
I'm assuming that the court is reaching that point.

[00:21:44] Speaker 04:
B, the contractor actually unreasonably construed.

[00:21:47] Speaker 04:
Oh, I'm sorry.

[00:21:48] Speaker 04:
Three, the intention of the parties does not otherwise appear.

[00:21:50] Speaker 04:
And four, the contractor actually unreasonably construed specifications in accordance with this meeting.

[00:21:56] Speaker 04:
With respect to the intent of the part, we make our points that only one interpretation is reasonably here.

[00:22:03] Speaker 04:
With respect to the question of intent of the parties, carrying hands does not pull forth anything to suggest that the parties did intend that these be requirements contracts.

[00:22:14] Speaker 04:
And the only thing that's been pointed to is a single email on the record.

[00:22:18] Speaker 03:
There's really nothing truly in the record about the intent of the parties, is there?

[00:22:24] Speaker 04:
I believe that that is a fair statement.

[00:22:27] Speaker 04:
Our position has been that the email, the only thing that's been pointed out.

[00:22:31] Speaker 03:
You know when you brought in the person that wrote the contract and said, were you trying to write a requirement?

[00:22:36] Speaker 03:
What kind of contract did you sign?

[00:22:38] Speaker 04:
Correct, Your Honor.

[00:22:38] Speaker 04:
The only evidence in the record is this one email, which we've said doesn't demonstrate anything.

[00:22:43] Speaker 03:
Typically, in a latent ambiguity context, the party that's arguing on the public finance in latent ambiguity is supposed to say that he lied on it.

[00:22:52] Speaker 03:
to his detriment and we don't have any evidence to that effect, right?

[00:22:56] Speaker 04:
That's right, Your Honor.

[00:22:58] Speaker 03:
I mean, even if there is a late-mandatory, the current government doesn't win automatically.

[00:23:02] Speaker 03:
You have to show that he, in essence, with his interpretation that he thought existed, he took steps to rely on him or to his detriment.

[00:23:11] Speaker 03:
Correct.

[00:23:11] Speaker 03:
So it seemed to me that if we decided to overlay an ambiguity, you would demand the case.

[00:23:16] Speaker 04:
Yes, Your Honor.

[00:23:17] Speaker 04:
We agree with that.

[00:23:18] Speaker 04:
Yes.

[00:23:19] Speaker 04:
Correct.

[00:23:19] Speaker 01:
Can you, would you mind addressing the 2014 contract?

[00:23:23] Speaker 04:
Sure.

[00:23:23] Speaker 01:
The main question that's come up is... And if you have more on 2015, I'm not meaning to push you off of it.

[00:23:28] Speaker 04:
I think I've said enough, Your Honor.

[00:23:31] Speaker 04:
With respect to the 2014 contract, the main point that's been raised is this presence or absence of a similar performance work statement.

[00:23:40] Speaker 01:
The board, am I right that the board concluded these are IDIQ contracts?

[00:23:44] Speaker 01:
Correct, Your Honor.

[00:23:45] Speaker 04:
The board did conclude that they were IDIQ contracts.

[00:23:47] Speaker 04:
It found the 2015 contracts illusory and the 2014 to be IDIQ.

[00:23:51] Speaker 03:
And with respect to that point, where is there any minimum quality stated, period?

[00:23:56] Speaker 04:
So, Your Honor, the schedules... In the schedules we have, there is no minimum quality in anything.

[00:24:04] Speaker 04:
Correct, Your Honor.

[00:24:04] Speaker 04:
I read them similarly.

[00:24:06] Speaker 03:
Even if you view the minimum-maximum clause as being a minimum quality, which you can submit to those in your camp, even if you didn't, there is nothing stated in it but the violence.

[00:24:17] Speaker 04:
Yes, Your Honor.

[00:24:17] Speaker 04:
That's right.

[00:24:18] Speaker 03:
How often is this possibly being an IDI2 contract?

[00:24:24] Speaker 04:
Your Honor, we agree with that read of the schedules.

[00:24:29] Speaker 03:
Kerringham's point here is that these are requirements contracts, and so... My point is, it seems to me that in any amount these can't qualify as IDIQ contracts, and that's why I believe your adversary wisely shifted and said, I basically want these things to be requirement contracts, and I want to go back and ask some testimony about what was really intended here.

[00:24:50] Speaker 03:
And he's saying because there's a...

[00:24:52] Speaker 03:
you should fact here, I may be able to get access to the statement or false.

[00:24:59] Speaker 03:
And if he convinced the court on the 2015 contract, us, if that was a recurrence contract, he's going to win on the 14th, and he's willing to put his eggs all in that basket.

[00:25:10] Speaker 03:
Right?

[00:25:10] Speaker 03:
I mean, that's what I think.

[00:25:12] Speaker 04:
Wise man.

[00:25:14] Speaker 04:
Your Honor, with respect to these 2014 contracts, I'll say... Well, why isn't there a question of fact?

[00:25:21] Speaker 03:
Because we know from the contract that there was supposed to be a statement of work on the cause that has the magic words in 2015.

[00:25:32] Speaker 03:
We know that there was one in the contract.

[00:25:35] Speaker 04:
Right?

[00:25:36] Speaker 04:
No, you aren't right.

[00:25:37] Speaker 03:
The contract says, attached here to is, or whatever it says.

[00:25:43] Speaker 04:
Yes.

[00:25:45] Speaker 03:
And so does the government tell me that that necessarily means there's some doubt as to whether there was going to be one in it?

[00:25:55] Speaker 04:
Your Honor, there's no doubt.

[00:25:57] Speaker 03:
There were two questions here.

[00:25:58] Speaker 03:
One was, was there going to be this, I'll call it a statement of work, of information in the 14 contracts, yes or no?

[00:26:08] Speaker 03:
And if the answer is yes, there was, then the question was, well, what was it?

[00:26:13] Speaker 03:
That opens, then, the question of talking to the counterfactors.

[00:26:17] Speaker 04:
So with respect to the first question, Your Honor, we don't have testimony talking about intent to have put that in there.

[00:26:26] Speaker 04:
But the reference to the performance work statement on the schedule.

[00:26:30] Speaker 03:
Maybe we remand on that point.

[00:26:31] Speaker 03:
And we say it's unclear.

[00:26:33] Speaker 03:
It's unclear from the record whether there is dispute of material factor because was any of this raised?

[00:26:41] Speaker 03:
Has any of this been forfeited?

[00:26:43] Speaker 04:
Right, so it has been forfeited because the parties entered into the contract as is.

[00:26:48] Speaker 04:
There's nothing in this record to suggest that these contracts, as executed, contained the performance work statement.

[00:26:56] Speaker 04:
Yes, they contain the reference, but they don't contain the performance work statement.

[00:27:00] Speaker 04:
This is the statement.

[00:27:02] Speaker 03:
Well, we know they're not in the contract because they're not in the record.

[00:27:05] Speaker 03:
We have what is purportedly the entirety of the contract documents.

[00:27:09] Speaker 01:
Right, and we don't have a suggestion that there's a mutual mistake or something went wrong in the execution here, but rather... Just for clarification, are you saying there is no attachment and, you know, no amount of discovery in the world will turn one up?

[00:27:25] Speaker 01:
Because doesn't the first page say that there's an attachment to something?

[00:27:29] Speaker 04:
Yes, it does.

[00:27:30] Speaker 01:
But we don't have it in this record, so are you saying there isn't one at all and that was an error?

[00:27:35] Speaker 01:
I'm confused.

[00:27:37] Speaker 04:
I am saying that carrying hands has not raised an issue of genuine material fact to suggest that these ever contain these performance work statements.

[00:27:48] Speaker 04:
There is deposition testimony that's been pointed to.

[00:27:51] Speaker 04:
But that deposition testimony only says that if it had been in here, it would have been similar.

[00:27:57] Speaker 04:
Or it might have been similar, actually.

[00:27:58] Speaker 04:
The deposition testimony is more equivocal than my friend suggests.

[00:28:02] Speaker 04:
And so, but that doesn't raise a genuine issue of material effect as to whether they were actually included.

[00:28:07] Speaker 04:
And I see nothing in this record to suggest that these are not the contracts as executed.

[00:28:12] Speaker 01:
There hasn't been a... Or you think you see nothing in the record except for the contract itself that says there's an attachment that's not there.

[00:28:17] Speaker 04:
Yes, yes, yes, yes.

[00:28:20] Speaker 04:
That is right.

[00:28:20] Speaker 01:
Let me ask you, I'm just going to help you.

[00:28:23] Speaker 01:
These are friendly questions, so just take me at my word.

[00:28:25] Speaker 01:
I don't lie about that.

[00:28:29] Speaker 01:
The FAR-ID-IQ clause was included in this contract, correct?

[00:28:33] Speaker 04:
Yes, Your Honor, that's right.

[00:28:34] Speaker 01:
Next, the contract said it did have a minimum, but it had this weird minimum, minimum of one order.

[00:28:40] Speaker 01:
Is it the government's position that that is one dollar, or is it the government's position that one order meets the IDIQ requirement that there be a minimum?

[00:28:50] Speaker 04:
Sure.

[00:28:50] Speaker 04:
So to reconcile your question and Judge Clevengers, he is referring, I believe, Your Honor, to the schedule in the contract.

[00:28:58] Speaker 04:
So the IDIQ clause, the FAR IDQ clause that is included in these 2014 contracts says, see the schedule.

[00:29:07] Speaker 04:
That contains the minimum.

[00:29:08] Speaker 03:
A minimum will be specified, and that's like a dollar minimum.

[00:29:12] Speaker 03:
The minimum is supposed to be in the schedule.

[00:29:14] Speaker 04:
Yes.

[00:29:15] Speaker 04:
That is what the FAR clause says, and that is picking up on Judge Clevengers' question.

[00:29:18] Speaker 04:
You're, Your Honor, I believe, pointing to the Order Limitations Clause.

[00:29:23] Speaker 04:
And the point that we've made in response to that is that whether it says less than one order or less than one doubter, neither thing makes these requirements contracts.

[00:29:33] Speaker 04:
It might undercut the suggestion that they are IDIQ contracts, but it doesn't make them.

[00:29:38] Speaker 01:
And that issue's not on appeal to us, right?

[00:29:40] Speaker 01:
Did anyone appeal?

[00:29:41] Speaker 01:
I mean, they argued their requirements contracts.

[00:29:44] Speaker 01:
If we say we don't see anything in this record,

[00:29:48] Speaker 01:
that creates a genuine issue of fact about whether there are requirements contracts or something like that.

[00:29:53] Speaker 01:
Does that end the case?

[00:29:54] Speaker 01:
Do I have to get into whether these are proper IDIQ contacts or whether they have flaws?

[00:30:00] Speaker 04:
You do not know.

[00:30:01] Speaker 04:
Yes, that's what I would like to do.

[00:30:04] Speaker 01:
Right.

[00:30:04] Speaker 04:
You do not need to reach that.

[00:30:05] Speaker 04:
The question here is whether there are requirements contracts.

[00:30:08] Speaker 04:
There's obviously we have not.

[00:30:09] Speaker 01:
So I'll just answer the question in front of us.

[00:30:10] Speaker 01:
All right.

[00:30:11] Speaker 01:
Thank you, counsel.

[00:30:11] Speaker 04:
Thank you.

[00:30:14] Speaker 01:
Mr. Fulton, you have some rebuttal time.

[00:30:21] Speaker 00:
So let me focus for a couple of more seconds on the 2014 contracts.

[00:30:28] Speaker 00:
The questions of fact are based upon the... You have a minute and 42 seconds and you're choosing poorly with your time, but go for it.

[00:30:40] Speaker 00:
Let's talk about the 2015 contracts.

[00:30:46] Speaker 00:
Look, your honors are correct that we did raise, I think Judge Clevenger said, what we did is we looked at this, we said these are requirements contracts.

[00:30:56] Speaker 00:
Our better argument, obviously, is the 2015 contract, because I think on their face they're requirements contracts.

[00:31:04] Speaker 00:
The 2014 contracts, I think, on their face are ambiguous.

[00:31:09] Speaker 00:
And the issue then is, as I said, on 2015, we should win.

[00:31:15] Speaker 01:
I mean, I... Well, I... I mean, you just said 2014 are ambiguous.

[00:31:19] Speaker 01:
You went back to 2014, you snuck it in.

[00:31:21] Speaker 03:
I snuck it in, yeah.

[00:31:22] Speaker 01:
Yeah, okay, well then I'm going to waste your time on it since you decided to do that.

[00:31:26] Speaker 01:
2014 contracts, I don't know how you can, how does their ambiguity turn them into potentially requirement contracts?

[00:31:33] Speaker 01:
Whether or not there's a flaw in the definition of them as IDIQ contracts is one question, but that's not your, you're not disputing whether they're IDIQ contracts.

[00:31:41] Speaker 01:
You have to prove that there's at least ambiguity as to whether they're requirements contracts.

[00:31:46] Speaker 01:
And I see nothing anywhere that suggests these are requirements.

[00:31:50] Speaker 00:
There is a clause in the 2014 contracts, B.3.1, B.3.1.

[00:31:55] Speaker 00:
It says there, the contractor shall furnish all, got the word all in there, shall furnish all labor, transportation, materials, tools, equipment.

[00:32:04] Speaker 01:
Can you be both an IDIQ contract and a records contract?

[00:32:06] Speaker 01:
uh... can be both i think one is a subset of the other but uh... i'm i'm not sure but that's not what we're arguing here it's the far i think you is in this contract the far i think you clauses in this contract why doesn't that end it may not be a perfect i think you may be a flawed i think you but how does in the face of the far i think you clause being there how how can you argue it's ambiguous as to whether it was meant to be a requirements contract well because if the far if the if the

[00:32:36] Speaker 00:
problem that creates the problem, the issue that creates the problem in the IDEIQ contract says maybe this is a requirements contract, then that creates the ambiguity.