[00:00:00] Speaker 05:
The first case for argument this morning is 21-2323, EEC International versus Secretary of the Army.

[00:00:08] Speaker 05:
Mr. Holmes, whenever you're ready.

[00:00:10] Speaker 01:
Good morning, Your Honors.

[00:00:12] Speaker 01:
My name is Dale Holmes, and I'm the attorney representing Environmental Chemical Corporation International, ECCI.

[00:00:18] Speaker 01:
I've been handling these cases for eight plus long years of exhausting, expensive litigation.

[00:00:26] Speaker 01:
I mention that because I believe it's relevant and I'll get to it in more detail related to the Wilkins case and some of the cautions that the Supreme Court recently gave us about.

[00:00:36] Speaker 01:
these kinds of jurisdictional issues being decided late in the process and the extreme waste of litigation resources that comes from that kind of a decision.

[00:00:44] Speaker 05:
So, um, so why don't you begin with this jurisdictional question and you've got our note or letter.

[00:00:51] Speaker 01:
Yes.

[00:00:52] Speaker 01:
Yes, I did.

[00:00:53] Speaker 01:
And I would gladly like to do that, your honor.

[00:00:55] Speaker 01:
So, um, the Supreme court gave us recent guidance in Wilkins versus United States on how to treat jurisdictional provisions and statutes.

[00:01:04] Speaker 01:
We think that Wilkins is directly applicable and precedent for this court in the present appeal and we believe it supports ECC's position for several reasons, so let me get to those.

[00:01:17] Speaker 01:
Based on the holding and reasoning in Wilkins that some certain provision that's an issue on the jurisdictional matter before us is a procedural requirement in our view and not a jurisdictional requirement that would have supported dismissal of these appeals.

[00:01:33] Speaker 01:
to decide whether or not a language in a statute, and by the way, the language we're talking about here, some certain, isn't in the statute.

[00:01:42] Speaker 05:
Well, that's what's kind of odd.

[00:01:43] Speaker 05:
We read all of these cases, and they're talking about discerning congressional intent and looking for specificity in that intent.

[00:01:53] Speaker 05:
OK, so we don't have a statute, but we do have a FAR provision that's based on,

[00:01:58] Speaker 05:
It's defining the term in the statute of claim, right?

[00:02:01] Speaker 01:
Yes.

[00:02:01] Speaker 05:
So in your view, is that enough of a hook or not enough of a hook to be looking at congressional intent on the jurisdictional question?

[00:02:09] Speaker 01:
Well, Congress didn't implement the FAR.

[00:02:12] Speaker 01:
That was a federal agency that implemented it.

[00:02:14] Speaker 01:
And we don't think that Congress intended for that language and the definition of a claim to be used as a jurisdictional bar to the filing of an appeal.

[00:02:25] Speaker 01:
I mean, it doesn't fit the whole process in the Contract Disputes Act for how claims are processed and also the other aspect about negotiations and ADR, which is in the Contract Disputes Act that was added after the original act was passed.

[00:02:40] Speaker 01:
I want to get back to the language from Wilkins because I think it is very instructive on how we should look at the issue here.

[00:02:48] Speaker 01:
Wilkins says that, quote, this court will treat a procedural requirement as jurisdictional only if Congress clearly states that it is.

[00:02:58] Speaker 01:
In our view, the Contract Disputes Act does not have this language about some certain, and it has no indication

[00:03:05] Speaker 01:
that the some certain should be treated as jurisdictional.

[00:03:08] Speaker 01:
For that reason, we think that it's pretty clear.

[00:03:11] Speaker 05:
So we have two buckets in jurisdiction, subject matter and then what the Supreme Court has been calling repeatedly in cases, claim processing rule.

[00:03:18] Speaker 05:
Typically, the claim processing rule, if you look at all the cases, it's usually the time limit.

[00:03:24] Speaker 05:
How do you think this is clearly a claim processing rule that's into that bucket?

[00:03:29] Speaker 01:
We do, yes.

[00:03:30] Speaker 05:
Talk to me about that.

[00:03:32] Speaker 01:
Well, first of all, the Contract Disputes Act, when it didn't put a definition of a claim out there, it left that to the agencies through their regulations.

[00:03:46] Speaker 01:
And we just don't think that a

[00:03:52] Speaker 01:
requirement for a particular dollar amount is substantive enough to rise to the level of you lose jurisdiction.

[00:04:03] Speaker 01:
By the way, we think and we think we've proven that we actually did give us some certainty in our claim.

[00:04:08] Speaker 05:
OK, so let's move to the merits.

[00:04:10] Speaker 05:
Well, firstly, if we decide this is not jurisdictional, what's the next step in this case as you see it?

[00:04:18] Speaker 01:
Yes, and that was the point I wanted to raise.

[00:04:20] Speaker 01:
We think that this is a procedural rule.

[00:04:23] Speaker 01:
And obviously, in this case, the Contract Disputes Act was not followed by the government.

[00:04:27] Speaker 01:
They didn't issue a final decision.

[00:04:29] Speaker 01:
There's no evaluation of the claim by a contracting officer.

[00:04:32] Speaker 05:
I know, but we're kind of past that.

[00:04:34] Speaker 01:
Well, we are.

[00:04:35] Speaker 05:
You had your trial.

[00:04:36] Speaker 05:
It lasted like over a week, right?

[00:04:38] Speaker 01:
Two-week trial, correct.

[00:04:40] Speaker 05:
And then this motion came in a few months after that.

[00:04:43] Speaker 05:
So you've never had a decision.

[00:04:45] Speaker 05:
You do not yet have a decision on the board from the board on the merits.

[00:04:50] Speaker 05:
for most of the clients yes that there was a decision on a part of the claim actually came to the federal circuit and and it was decided without a problem if we were to stop conclude that uh... there is there is not a jurisdictional bar uh... do we just remanded in the board having had a hearing goes back and writes the decision on the merits hearing in this case is that we what happens yes we think that's an object

[00:05:16] Speaker 01:
If the board concluded that it couldn't determine the sum certain for whatever reason, again we think the board could handle that by some kind of a order requesting the parties to address that issue and provide exactly how.

[00:05:30] Speaker 01:
The sum is in the claim.

[00:05:31] Speaker 01:
There's multiple parts to the claim.

[00:05:33] Speaker 03:
Besides Wilkins, do you have other cases you want us to look at on the jurisdictional point?

[00:05:37] Speaker 01:
I'm sorry?

[00:05:38] Speaker 03:
Besides Wilkins, do you have any other cases you would like us to examine on the jurisdictional point?

[00:05:43] Speaker 01:
Yes, I think the case cited in Wilkins, the Supreme Court case Botchler, is also of relevance on this issue.

[00:05:53] Speaker 01:
And that's, again, a case where they remanded the case and corrected the procedural issue that they found to be present in that case.

[00:06:06] Speaker 05:
What about court then?

[00:06:07] Speaker 05:
Judge Justice Ginsburg, I find that opinion helpful because Justice Ginsburg sort of summarizes all of the precedents in this area.

[00:06:16] Speaker 05:
Have you looked at that one?

[00:06:18] Speaker 01:
I have not personally looked at that one, Your Honor.

[00:06:21] Speaker 01:
One final point related to Wilkins, if I could, before we move to the merits of how you calculate the sum certain, which I've walked through in our briefs.

[00:06:30] Speaker 01:
But I do want to, you know, that Wilkins talked about using procedural

[00:06:37] Speaker 01:
rulings on these kinds of matters promoting the orderly progression of the litigation and eliminating waste and disruption.

[00:06:44] Speaker 01:
And we think that this is a textbook case for how that has happened because of all of the time that's been in the late raising of the issue by the government and then the board ruling on it after seven years of litigation and multiple summary judgments of two-week trial.

[00:07:01] Speaker 01:
And there was no evidence in the record from a contracting officer that indicated

[00:07:07] Speaker 05:
they couldn't determine what the some certain what i mean we're in a weird procedural posture yes it would be this appeal turned out to be kind of a hybrid i mean you know you've it we didn't you didn't dispute jurisdictions you proceeded to argue the merits but it's a little weird for us now to look at the mayor assuming we sent it back

[00:07:31] Speaker 05:
To say anything, would you say it's premature for us to then say anything about the merits because we're going to send it back and you anticipate the board's going to issue a decision on the merits then?

[00:07:44] Speaker 01:
Yes.

[00:07:45] Speaker 05:
That we don't have yet, right?

[00:07:47] Speaker 01:
Correct, that's right.

[00:07:49] Speaker 01:
Because the whole gist of the board's decisions in both cases is jurisdictional and they looked at the claims from that perspective But if you do go back and look at the issue of some certain we wanted to highlight that

[00:08:05] Speaker 01:
you can do simple math and get to the some certainty.

[00:08:08] Speaker 05:
Well, I know you keep saying that, so you're happy.

[00:08:10] Speaker 05:
I mean, I understand the standard, as I understand it, is pretty low in terms of specificity.

[00:08:17] Speaker 05:
But I think looking at the cases that at least were cited in the briefs, this is a little more complicated than the simple math cases that the court or the board has looked at before, right?

[00:08:28] Speaker 01:
Well, actually, I would respectfully disagree, Your Honor.

[00:08:33] Speaker 01:
Here's why.

[00:08:35] Speaker 01:
If you go look at the claim, and it's 612 pages long, and it's 13 plus million dollars, and so from that perspective most of the cases that the board looks at aren't that large and aren't that complicated.

[00:08:49] Speaker 01:
Then there's hundreds of pages of estimates that come along with the claim.

[00:08:54] Speaker 01:
And so you do have to study the claim carefully, and it's a lengthy narrative, and it's got a lot of backup documents.

[00:09:00] Speaker 01:
But in terms of how simple it is to look at, we listed in the claimant, and there's an exhibit in the appendix that we put together, Appendix 608, that pretty much does the math for you.

[00:09:12] Speaker 01:
It tells you the pages from the claims that you go to.

[00:09:15] Speaker 05:
Is that the spreadsheet, or is that something else?

[00:09:17] Speaker 01:
It was a spreadsheet, yes.

[00:09:20] Speaker 01:
So you have to look at multiple pages in the claim to determine the dollar amounts.

[00:09:24] Speaker 01:
But you do it through simple math.

[00:09:25] Speaker 05:
Did this come up?

[00:09:26] Speaker 05:
Was this a source of debate during this hearing?

[00:09:29] Speaker 05:
I mean, were there questions raised about this claim and what's the dollar amount?

[00:09:35] Speaker 05:
I mean, I don't know what you did for seven days.

[00:09:37] Speaker 05:
I'm sure there was a lot going on in the trial.

[00:09:39] Speaker 05:
But did these issues come up?

[00:09:40] Speaker 01:
Nine days, no.

[00:09:41] Speaker 01:
No issue was ever raised.

[00:09:43] Speaker 01:
The contracting officer didn't testify that he didn't understand the dollar amounts.

[00:09:47] Speaker 01:
no cost experts, and there was much cost testimony from both the government and from ECCI.

[00:09:54] Speaker 01:
Nobody ever said, we can't figure out the amount of this claim.

[00:09:58] Speaker 01:
And you simply can.

[00:09:59] Speaker 01:
If you go to that chart again, and you take our claim listed the days of delay, specifically month by month, the cause of the delay, and the dollar amount of the cost the contractor incurred for each of those days of delay.

[00:10:14] Speaker 01:
And then you simply had to multiply those together

[00:10:16] Speaker 01:
And then you had to add profit and overhead.

[00:10:19] Speaker 01:
There's another place in the claim where the profit and overhead is listed.

[00:10:26] Speaker 05:
Again, there are a lot of ifs here.

[00:10:28] Speaker 05:
If we were to conclude that jurisdiction was not a bar, if we were to remand it for the board to, I guess, finish its work and write an opinion on the merits, is it too late now?

[00:10:39] Speaker 05:
I mean, was some certain the dispute over whether or not there was enough specificity with each claim, is that going to be part of the board's analysis, or is that just off the table because it wasn't raised previously?

[00:10:54] Speaker 01:
uh... well the board is going to see if it's a reminder the board is going to issue a decision on entitlement whether or not the claim allegations we made are valid

[00:11:02] Speaker 01:
and quantum which would be a cost component and so we would expect and if the board has any further questions about the quantum you know they can issue orders and there could be supplemental evidence but bottom line is we think the record is complete at this point and they can determine if they find entitlement a specific dollar amount.

[00:11:19] Speaker 00:
Do you think you're foreclosed if we were to remand this case do you think you would be foreclosed from actually doing the math and presenting your

[00:11:31] Speaker 00:
contentions in terms of the actual dollar amounts?

[00:11:35] Speaker 01:
If this court ordered it remanded it indicated that it's a procedural matter that could be corrected we think we would be able to correct it and could be allowed to correct it.

[00:11:44] Speaker 00:
You know you spent a lot of time arguing that this is a matter of simple math and anybody could do this and the government is saying well wait a second it's not so simple.

[00:11:54] Speaker 00:
Well it seems to me if it's a matter of simple math you should have been able at some point to

[00:12:00] Speaker 00:
to do the math and present it and not leave it as an open question for somebody else to sort out.

[00:12:07] Speaker 01:
Right.

[00:12:08] Speaker 01:
And we did that.

[00:12:09] Speaker 01:
The math was done in the pleadings and in the motion practice after the trial when this jurisdictional issue was looked at.

[00:12:17] Speaker 01:
We actually filed an affidavit where the math was done.

[00:12:20] Speaker 01:
And again, the summary is that chart that I referred you to earlier.

[00:12:26] Speaker 01:
And if you go to that chart, and that chart comes completely from the claim.

[00:12:30] Speaker 01:
the claim documents.

[00:12:31] Speaker 01:
If you go to the different pages in the claim that that chart shows it will tell you exactly where the numbers came from and everything adds up to the exact amount of the claim.

[00:12:39] Speaker 03:
We don't have the formulas underlying the spreadsheet right?

[00:12:43] Speaker 03:
You said there was a different part we should look at to kind of get the summary of the chart.

[00:12:48] Speaker 03:
Is there a different page you want us to look at for that?

[00:12:50] Speaker 01:
Yes.

[00:12:52] Speaker 01:
Well, that chart actually does the math for you and gives you the exact amount of the

[00:12:59] Speaker 03:
of the uh... but what i'm saying that i don't have it on my computer where i could like you know actually see it.

[00:13:05] Speaker 03:
You said there was an affidavit or something that would actually do a little summary.

[00:13:09] Speaker 01:
Yes, there's an affidavit by mr scott hayward and it is in the record and let me if i could check my notes real quick i know i'm about to run out of time here

[00:13:19] Speaker 01:
The affidavit was drafted by Mr. Hayward, and it explains how he prepared that chart and how he did the math.

[00:13:26] Speaker 01:
So I think it's referred to in our brief.

[00:13:29] Speaker 01:
And at this point, my apologies that I don't have it readily at hand.

[00:13:33] Speaker 01:
I would like to reserve the last minute and a half for my rebuttal.

[00:13:36] Speaker 05:
Please do.

[00:13:36] Speaker 05:
Let's hear from the government.

[00:13:38] Speaker 02:
Could you give me that citation when you get back up?

[00:13:40] Speaker 01:
I'm sorry?

[00:13:41] Speaker 02:
Could you give me that citation when you get back up?

[00:13:43] Speaker 02:
Yes.

[00:13:43] Speaker 02:
Yes.

[00:13:43] Speaker 02:
Thank you.

[00:13:44] Speaker 04:
Good morning.

[00:13:44] Speaker 04:
May it please the court?

[00:13:46] Speaker 04:
To answer the court's question about whether the sum start and requirement is a jurisdictional element of the CDA, the answer is yes.

[00:13:54] Speaker 04:
And the court decided that in secure force in 2018 when the court in a binding decision.

[00:14:00] Speaker 04:
Our court.

[00:14:01] Speaker 04:
This court, secure force, yes.

[00:14:03] Speaker 04:
In a binding decision reversing the trial court's decision that the trial court had jurisdiction over a claim dealing with a

[00:14:10] Speaker 04:
challenging a termination for convenience that had no sum certain.

[00:14:14] Speaker 00:
Wilkins sheds a somewhat different light on things, don't you think?

[00:14:21] Speaker 04:
No, Your Honor, because secure force was decided after Henderson.

[00:14:25] Speaker 04:
And Henderson is very similar to Wilkins in that it deals with whether a statute of limitations, in that case a VA statute, was either a claims processing rule or was jurisdictional.

[00:14:40] Speaker 04:
And Secure Force was decided without any recognition of any concern in light of Hennessey.

[00:14:48] Speaker 05:
Did anybody raise the jurisdictional point in Secure Force?

[00:14:51] Speaker 04:
That was the point of the court's holding in Secure Force.

[00:14:59] Speaker 04:
The government appealed the trial court's finding that it had jurisdiction over a claim challenging a termination for convenience

[00:15:08] Speaker 04:
that had no some certain in it.

[00:15:10] Speaker 05:
Let me ask you, I'm not remembering in succor force.

[00:15:14] Speaker 05:
I mean, this, this case, the facts of this case seemed to be a poster child for what Wilkins was talking about because here we've got eight years of no CDs, no early opinion.

[00:15:27] Speaker 05:
Five years of settlement, a hearing, months after the hearing, not a peep about jurisdiction.

[00:15:34] Speaker 05:
And then jurisdiction comes in at the end.

[00:15:36] Speaker 05:
And that's kind of what the Supreme Court has been telling us in some of the recent cases.

[00:15:40] Speaker 05:
Like, this doesn't make a lot of sense for judicial efficiency or fairness to the litigants.

[00:15:46] Speaker 05:
And so we ought to take a careful look.

[00:15:48] Speaker 05:
So let's leave secure forces us.

[00:15:51] Speaker 05:
And no matter how right or wrong we are, it doesn't matter if the Supreme Court seems to be telling us we're wrong about that.

[00:15:57] Speaker 05:
So whether we were right or wrong is... So why don't we talk about what the Supreme Court requires?

[00:16:03] Speaker 05:
Take secure force off the table and tell us what the Supreme Court would do with a case like this.

[00:16:09] Speaker 04:
So the trend at the Supreme Court has been focusing on statutes and rules that have time limitations.

[00:16:19] Speaker 04:
And the CDA and the sum certain requirement is nothing like those cases.

[00:16:23] Speaker 05:
But not all of them.

[00:16:24] Speaker 05:
You're right.

[00:16:25] Speaker 05:
I mean, most of them, but not all of them.

[00:16:27] Speaker 05:
So is your argument, do we have one, two buckets subject matter jurisdiction and claims processing rules?

[00:16:35] Speaker 05:
And one, do you agree that there are two buckets?

[00:16:38] Speaker 05:
And two, are you telling us then that this is a subject matter jurisdiction bucket and not the claims processing rule bucket?

[00:16:44] Speaker 04:
Wilkins and Henderson and the cases that are, those cases are primarily about timelines and time limitations.

[00:16:55] Speaker 04:
This case is about a substantive element of a claim that goes to the court or the board's jurisdiction and we see that in the CDA itself.

[00:17:05] Speaker 04:
Following the instructions in Wilson and Henderson, what we see in the CDA in section 41 USC, section 7104, Congress authorized the board to hear an appeal of a contracting officer's final decision under 7103.

[00:17:23] Speaker 04:
We go to 7103, and that provision, 7103A, 1, and 2 together,

[00:17:30] Speaker 04:
say that the contractor has to submit a claim, and each claim by the contractor shall be in writing.

[00:17:37] Speaker 04:
And so 7104 and 7103 are setting out the board's jurisdiction.

[00:17:41] Speaker 04:
And what is a claim?

[00:17:43] Speaker 04:
This court in Essex, Electro Engineers.

[00:17:46] Speaker 03:
Why did you wait until after the full hearing on the merits to actually bring up jurisdiction?

[00:17:51] Speaker 03:
What was the timeline?

[00:17:52] Speaker 03:
Why was that your timeline here?

[00:17:55] Speaker 04:
The jurisdictional issue came to the forefront when two months... I'll actually back up a little bit.

[00:18:03] Speaker 04:
In 2019, the board held that ECCI's delay claim based on security changes was not cognizable.

[00:18:13] Speaker 04:
That any security changes that took place at the project were not a government-caused delay.

[00:18:21] Speaker 04:
A year later, they're getting ready for trial, and ECCI produces a new expert report that doesn't claim any delay days because of the security changes.

[00:18:33] Speaker 04:
This is a huge shift from what was presented in the claim, and that caused the court to go back and say, wait a minute, what's going on?

[00:18:41] Speaker 04:
And that's when the court, during post-trial briefing, they didn't delay the trial, but during post-trial briefing, post-hearing briefing, raised the question of the board's jurisdiction.

[00:18:52] Speaker 04:
And it's that kind of concern that is what requires there to be a sum certain.

[00:19:00] Speaker 04:
And when we look, again, back at the statute, when we look.

[00:19:03] Speaker 04:
Well, let me ask you.

[00:19:04] Speaker 05:
I mean, I understand that you went through the idea of the statute says claim and then

[00:19:10] Speaker 05:
Presumably, you've been delegated the ability or the right to put some clothes on the claim issue.

[00:19:17] Speaker 05:
But in the Supreme Court's opinions, at least the ones that I've read, this has come down.

[00:19:23] Speaker 05:
This change has come down.

[00:19:25] Speaker 05:
The only thing we're looking at is congressional intent at what Congress said.

[00:19:31] Speaker 05:
And the standard repeated in Wilkins, it's from Bechler or however you pronounce that name, only if Congress clearly states that it is.

[00:19:40] Speaker 05:
So even if Congress says the time limit is seven days, my understanding as Supreme Court president, tell me if I'm wrong, that even, I mean, they're still requiring a more detailed expression by Congress.

[00:19:54] Speaker 05:
So I take your point that generally, yeah, we can trace why some certain in the FAR regulations is related to something that Congress said because they said claim.

[00:20:04] Speaker 05:
How on earth can you think that the specificity in Congress's use of the term claim can get us to the point where it's jurisdictional if there's no some certain expressed with respect to the claim?

[00:20:20] Speaker 04:
Your Honor, going back to the statute, the CDA, the plain language of the term claim, this court held in Essex,

[00:20:29] Speaker 04:
includes a requirement to state a sum certain.

[00:20:32] Speaker 04:
That is the concept of a claim.

[00:20:34] Speaker 04:
Is that what Congress said, or is that what the FAR said?

[00:20:37] Speaker 04:
No, that's what this court interpreting claim juxtaposed with the FAR provision.

[00:20:43] Speaker 04:
And so someone was challenging the FAR provision.

[00:20:45] Speaker 05:
And you think that satisfied with what the Supreme Court has described to us in its recent prudence on jurisdiction for a clear statement of Congress?

[00:20:54] Speaker 04:
Yes, in addition, but I would point out in addition, three other places in 7103 in the statute itself provides reference to amounts, that the claim has to have an amount.

[00:21:08] Speaker 04:
7103B1 requires when a contractor has a claim over $100,000, they have to certify

[00:21:16] Speaker 04:
unquote, the amount requested accurately reflects the contract adjustment for which the contractor believes the federal government is liable.

[00:21:25] Speaker 04:
So that language is indicating that you need to have a claim that has an amount, i.e.

[00:21:31] Speaker 04:
a sum certain.

[00:21:32] Speaker 04:
A similar reference to amounts of the claim are in 7103 F1 and F2.

[00:21:37] Speaker 03:
If we disagree with you on your arguments relating to jurisdiction, do you agree that the appropriate remedy is a remand?

[00:21:44] Speaker 04:
No, Your Honor.

[00:21:45] Speaker 04:
If this court were, and actually the court may not need to reach this question, the court could affirm on an alternate ground that the claim failed under the FAR, failed to state a claim.

[00:22:00] Speaker 04:
Because the board has already found that it failed to comply with the FAR provisions.

[00:22:05] Speaker 04:
And that would be an independent basis for affirming the board's decision.

[00:22:09] Speaker 04:
So likely the court did increase.

[00:22:11] Speaker 04:
But let me ask you about that.

[00:22:12] Speaker 05:
OK, that's one option.

[00:22:14] Speaker 05:
I think I appreciate what you're saying.

[00:22:16] Speaker 05:
But if the alternative is we tell the board, they had an eight-day trial, a nine-day trial, and they didn't write an opinion.

[00:22:27] Speaker 05:
And they didn't write an opinion because they felt like they were foreclosed by the jurisdictional argument.

[00:22:32] Speaker 05:
But let's assume this is not jurisdictional.

[00:22:35] Speaker 05:
So you still have some certain requirement in the FAR, but the board has a record on that.

[00:22:41] Speaker 05:
And you, I don't know.

[00:22:42] Speaker 05:
I don't know if you raised the sum certain under FAR, if that was part and parcel of this nine-day trial.

[00:22:48] Speaker 05:
But that's what we would be looking at.

[00:22:49] Speaker 05:
We would be looking at that record, correct?

[00:22:52] Speaker 05:
The record before the board that you put on and your friend put on.

[00:22:57] Speaker 05:
And I haven't gone through nine days of record testimony.

[00:23:02] Speaker 05:
But did you make an argument at trial that this violates FAR because there's not a sufficient sum certain?

[00:23:09] Speaker 05:
Was that part and parcel of discussion of damages and so forth at the trial?

[00:23:15] Speaker 04:
I did not try the case, Your Honor, but I don't know if that was raised in those terms at the trial.

[00:23:23] Speaker 05:
Let's assume it wasn't raised.

[00:23:24] Speaker 05:
So there was no real challenge to their evidence as being insufficient under the FAR provisions, hypothetically.

[00:23:33] Speaker 05:
If we say it's not jurisdictional, the board goes back and resolves the case based on the arguments raised and the evidence put in.

[00:23:41] Speaker 05:
It's a nine-day trial, right?

[00:23:44] Speaker 04:
But the trial goes beyond what's in the claim.

[00:23:46] Speaker 04:
And the question would be whether, under the FAR, did they submit a claim that met the requirements of the FAR provisions.

[00:23:53] Speaker 04:
And that's what this court has decided.

[00:23:54] Speaker 05:
But if it's not jurisdictional,

[00:23:56] Speaker 05:
And that's what the Supreme Court was looking at at Wilkins or whatever.

[00:24:00] Speaker 05:
The main difference between jurisdiction here

[00:24:05] Speaker 05:
is only whether or not you're foreclosed, if it's not jurisdictional, too late, too bad.

[00:24:11] Speaker 05:
You could have raised a motion to dismiss and the lack of sufficiency of the evidence or failure to comply with FAR.

[00:24:18] Speaker 05:
But aren't those arguments foreclosed to you?

[00:24:21] Speaker 05:
I don't know.

[00:24:22] Speaker 05:
You and I don't know whether they've been made or not.

[00:24:24] Speaker 04:
Not necessarily, Your Honor.

[00:24:25] Speaker 05:
So they're not foreclosed.

[00:24:27] Speaker 05:
If it's not a jurisdictional argument,

[00:24:29] Speaker 05:
You can come in after the hearing record is closed, after all the arguments are made, and you can make a new motion after the trial based on FAR?

[00:24:40] Speaker 04:
That the claim failed to state a claim, because they failed to have a sum certain in the claim.

[00:24:46] Speaker 05:
And you think you can raise that at the juncture it's at now, even if it's not a jurisdictional argument?

[00:24:54] Speaker 04:
I don't think it's precluded.

[00:24:57] Speaker 05:
I mean, all the arguments you made three months after the hearing record closed about, wait, they haven't satisfied the jurisdictional requirements.

[00:25:06] Speaker 05:
I agree with you.

[00:25:07] Speaker 05:
If it is jurisdictional, you can raise it then too.

[00:25:09] Speaker 05:
But if it's not, you still think you can raise that argument that late in the proceeding?

[00:25:14] Speaker 04:
Because the board actually went through the process and determined that there was no sum certain, that this claim that had been presented was being litigated.

[00:25:22] Speaker 05:
When did it go through the process?

[00:25:23] Speaker 05:
You mean in this post, based on your raising this as a jurisdictional argument, post hearing?

[00:25:30] Speaker 04:
Right.

[00:25:31] Speaker 04:
The board found that the elements of the claim were not met under the FAR.

[00:25:36] Speaker 04:
And that's what this court can review and affirm on that basis, that there was never a claim.

[00:25:41] Speaker 05:
OK, so let's leave the jurisdictional question aside.

[00:25:45] Speaker 05:
Same case.

[00:25:46] Speaker 05:
Goes through eight years of settlement, negotiations, whatever.

[00:25:49] Speaker 05:
Nine-day hearing, hearing record closed, not a peep about the FAR, some certain provision.

[00:25:56] Speaker 05:
And then you can come in three months later and say, hey, wait a minute.

[00:25:59] Speaker 05:
We've got a motion to dismiss or whatever.

[00:26:01] Speaker 05:
You should foreclose the whole claim.

[00:26:03] Speaker 05:
You're saying you could do that too, even if it's not jurisdictional.

[00:26:06] Speaker 05:
I mean, it's not up to me.

[00:26:08] Speaker 04:
I think it could be raised.

[00:26:10] Speaker 04:
I think it could be raised.

[00:26:11] Speaker 04:
And here, the board found that there was no some certain.

[00:26:14] Speaker 04:
And the some certain documents that are being relied on at this point are nothing like what was presented at the claim.

[00:26:25] Speaker 04:
In the claim, there was no breakout of some sort.

[00:26:29] Speaker 05:
Well, but you knew that, at least as of the first day of hearing or months before.

[00:26:34] Speaker 05:
You had the same record of what the contractor had provided, right?

[00:26:38] Speaker 05:
Did you offer a motion to dismiss, motion for summary judgment, raise it at trial, the issue of whether or not they feel to satisfy this uncertain requirement under FAR?

[00:26:50] Speaker 04:
There were other motions that were filed on various aspects of the case, but some certain question was raised in the motion to dismiss in August of 2020.

[00:27:04] Speaker 05:
So the answer to my question is no.

[00:27:06] Speaker 04:
I'm sorry, the answer is no.

[00:27:07] Speaker 04:
It wasn't raised earlier.

[00:27:09] Speaker 04:
There are no further questions then?

[00:27:10] Speaker 05:
Thank you.

[00:27:13] Speaker 01:
I think I just have about a minute and a half, but I did want to cover two or three real quick things in rebuttal and also provide your honor with the citation.

[00:27:23] Speaker 01:
The pages in the appendix where the affidavit and the explanation are, I would cite appendix 578 and then additionally

[00:27:33] Speaker 01:
597 to 603.

[00:27:37] Speaker 01:
And I think those are the explanations for doing the math.

[00:27:40] Speaker 01:
On the some certain issue, I was at the trial the entire time.

[00:27:45] Speaker 01:
The words some certain were never uttered by a lawyer, a witness, or the judge during that trial.

[00:27:50] Speaker 05:
Was FAR provision dealing with some certain?

[00:27:52] Speaker 05:
I mean, did they use the FAR provision as opposed to using the term?

[00:27:55] Speaker 05:
it was met for prevention was never mentioned the word some sort of never mention it's not made about lack of specificity with respect to the uh... charges the individual charges

[00:28:08] Speaker 01:
there was extensive cost expert testimony.

[00:28:10] Speaker 05:
Do you know enough about the procedures that the board follows as to whether or not procedurally they would still have the authority or the ability to reopen the record or to entertain a motion to dismiss a month after hearing?

[00:28:24] Speaker 05:
I mean let's put ourselves back in a situation.

[00:28:26] Speaker 01:
The board certainly has procedures where they can open a record if they feel like they need additional evidence to address any of the issues before them.

[00:28:36] Speaker 01:
And that happens.

[00:28:38] Speaker 01:
I've been board practicing for 40 years.

[00:28:40] Speaker 05:
But there were plenty of opportunities starting years ago for the government to erase these issues, correct?

[00:28:49] Speaker 01:
Absolutely, Your Honor.

[00:28:49] Speaker 01:
I think that's a very good point to end on.

[00:28:53] Speaker 02:
before you.

[00:28:54] Speaker 01:
Okay, yeah, and we're out, and I'll hope that we can continue.

[00:28:57] Speaker 03:
I was just going to say that right before you end, so I was like, don't leave me yet.

[00:29:02] Speaker 03:
Yeah, that made me laugh.

[00:29:03] Speaker 03:
So if we want to find that this is not jurisdictional, do you believe these some certain issues can be raised?

[00:29:10] Speaker 03:
We do go ahead and do a remand.

[00:29:13] Speaker 01:
If the government wanted to have that addressed, I think the board absolutely could issue an order and

[00:29:21] Speaker 01:
have additional evidence, additional briefing to address some certain and answer any questions it might have if some certain related to the decision they were issuing on the merits.

[00:29:31] Speaker 01:
That absolutely can be done.

[00:29:35] Speaker 01:
And I know we're about to start the second appeal.

[00:29:37] Speaker 05:
Well, yeah, we've got to end this one before we do that.

[00:29:40] Speaker 01:
OK.

[00:29:41] Speaker 05:
OK.

[00:29:41] Speaker 05:
Thanks both sides, and the case is submitted.