[00:00:00] Speaker 02:
The next case is contractual.

[00:00:02] Speaker 02:
It's the A.J.

[00:00:04] Speaker 02:
Crogwell v. Secretary of the Army, 2023-1373.

[00:00:08] Speaker 02:
Mr. Zachary S. Jacobson.

[00:00:16] Speaker 02:
Yes, Your Honor.

[00:00:21] Speaker 02:
We note that there's a motion pending.

[00:00:26] Speaker 02:
to submit additional documentation in support of the client's request for remand, which our clerk's office has found deficient in a couple of respects, and Kelly has not had a chance to respond to.

[00:00:41] Speaker 02:
So you'll each have that opportunity during your appointed time now.

[00:00:48] Speaker 03:
Thank you, Your Honor.

[00:00:50] Speaker 03:
And may I please support?

[00:00:54] Speaker 03:
Good morning.

[00:00:54] Speaker 03:
And I'm here on behalf of Contract Watt's Wajo Kuyo Joint Venture, the appellant in this matter.

[00:01:01] Speaker 03:
And we're here to ask this court to reverse the Armed Service Board of Contract Appeals dismissal of our claim appeal at the board for lack of jurisdiction and to remand to the board to allow it to proceed on the merits.

[00:01:12] Speaker 03:
But before I begin, I would like to address the motion that was filed on Friday and get that out of the way before proceeding with my argument.

[00:01:21] Speaker 03:
So a set up letter, a number of key issues that the board considered and were briefed upon have since been resolved.

[00:01:28] Speaker 03:
Number one, no party in the joint venture disputes or objects to the certified claim that was filed on behalf of the joint venture.

[00:01:39] Speaker 01:
Now, how does that make any difference to the appeal, assuming we disagree with you on

[00:01:46] Speaker 01:
your main appeal that the board had your section of law.

[00:01:50] Speaker 03:
Well, from our perspective, it doesn't change our argument at all.

[00:01:56] Speaker 03:
But what it would do is, similar to a defective certification or some other issue with a claim, it cures that deficiency.

[00:02:03] Speaker 03:
Because there's no longer an issue that the government has an interest in.

[00:02:08] Speaker 01:
contracting officer's decision on your claim, because a contracting officer refused to address your claim because it wasn't certified by the right people, right?

[00:02:19] Speaker 03:
Well, Your Honor, this occurs for a number of reasons where we don't get a contracting officer's final decision, and it's treated as a deemed denial.

[00:02:25] Speaker 01:
Once it's in the board... But it's a deemed denial when they don't respond in time.

[00:02:31] Speaker 01:
This wasn't a deemed denial because they responded and said, you haven't properly certified the claim.

[00:02:37] Speaker 01:
And so if you want to go forward on that claim, don't you have to resubmit it?

[00:02:42] Speaker 03:
Once the appeal is filed with the Board of Contract Appeals, the contracting officer loses the authority to do anything with the claim.

[00:02:49] Speaker 03:
It is now resting with the board.

[00:02:51] Speaker 01:
And so the board is now the appropriate... But the board only reviews the contracting officer's decision, right?

[00:02:56] Speaker 01:
And the contracting officer's decision here was that it wasn't certified by a proper representative of the joint venture.

[00:03:04] Speaker 01:
And so the board can review that.

[00:03:07] Speaker 01:
The board can't now review the merits of your claim when the merits of your claim had never been considered by the contracting officer or deemed denied by Operation Aba.

[00:03:16] Speaker 03:
Can it?

[00:03:17] Speaker 03:
Yes, it can, Your Honor.

[00:03:18] Speaker 03:
Under the Contract Disputes Act, once the board is able to assume jurisdiction over a claim appeal, the claim, the contracting officer's final decision, that is all just part of the record.

[00:03:30] Speaker 03:
And we now proceed with a complaint with an answer like any other litigation.

[00:03:34] Speaker 03:
And so the fact that the contracting officer did an issue of final decision is not effective.

[00:03:39] Speaker 01:
The contracting officer did issue a final decision.

[00:03:42] Speaker 01:
He said you didn't properly certify the claim.

[00:03:46] Speaker 03:
That's correct.

[00:03:47] Speaker 03:
We had a court decision.

[00:03:48] Speaker 03:
Right.

[00:03:49] Speaker 03:
And you lost.

[00:03:50] Speaker 03:
at the board.

[00:03:51] Speaker 03:
Yes, Your Honor.

[00:03:51] Speaker 01:
And you're going to lose here – assuming you're going to lose here – I can't speak for my colleagues – you're going to lose with me because you didn't – the record is clear to me that you weren't authorized to submit that.

[00:04:01] Speaker 01:
Why don't you have to start over?

[00:04:03] Speaker 01:
I don't understand why you just didn't agree to it sooner and ask the agency.

[00:04:08] Speaker 01:
Maybe the agency will give you what you want, and you'll stop wasting our time.

[00:04:13] Speaker 01:
Well, Your Honor, I mean, this – Did you notify the agency?

[00:04:17] Speaker 01:
that you all have now agreed and that they should treat that claim as properly certified?

[00:04:23] Speaker 01:
Yes, Your Honor.

[00:04:24] Speaker 01:
Have you received?

[00:04:25] Speaker 01:
When did you do it?

[00:04:26] Speaker 01:
On May 31st?

[00:04:27] Speaker 01:
Yes, Your Honor.

[00:04:28] Speaker 01:
So you haven't heard from them yet?

[00:04:29] Speaker 01:
That's correct.

[00:04:30] Speaker 02:
How did you know that?

[00:04:31] Speaker 02:
There are seven times the contracting officer registered.

[00:04:36] Speaker 02:
You have this derivative agreement, which on its face seems to say, except for your program father,

[00:04:43] Speaker 02:
that this is a 50-50 deal.

[00:04:44] Speaker 02:
Both sides have to agree to major issues.

[00:04:48] Speaker 02:
The contracting officer will realize there's a problem there.

[00:04:51] Speaker 02:
From the very beginning, the contracting officer says, who's going to be able to sign a law?

[00:04:55] Speaker 02:
And we gave them, the joint manager gave them a letter signed by both

[00:05:03] Speaker 02:
corporate people with a corporate seal that said, here are the four people who are authorized, correct?

[00:05:08] Speaker 01:
They were authorized representatives.

[00:05:10] Speaker 02:
That's what they did in that document.

[00:05:12] Speaker 02:
So it said both parties said, we agree that these people are people you can rely on for the contract, correct?

[00:05:19] Speaker 02:
Yes.

[00:05:20] Speaker 02:
Then what happened was some of those names got changed as the contract went on.

[00:05:24] Speaker 02:
And the joint venture never believed

[00:05:28] Speaker 02:
back to the contract of the officer, a similar document with both names on it saying, here are the people.

[00:05:35] Speaker 02:
Never gave them that.

[00:05:36] Speaker 03:
Similar to the single document they received.

[00:05:38] Speaker 02:
Never gave them a single document that says both names, here's what it is, tell us who the contracting officer needs to know.

[00:05:46] Speaker 02:
And so, as this went on, I counted in the record seven times the contractor said in response to the first concerns, please give me a revised version of the original letter that had both names on it,

[00:05:59] Speaker 02:
that I mean certified.

[00:06:01] Speaker 02:
And you've never done that.

[00:06:03] Speaker 02:
And what you gave to us here is not that document.

[00:06:09] Speaker 02:
So the question is, why don't you simply give the contracting officer the document that she's asked for, signed by both parties?

[00:06:18] Speaker 02:
Now that you've just made up, and the parties are in the long run opposite, that would be a very simple document to give, right?

[00:06:25] Speaker 03:
Well, Your Honor, it would be a simple document, but we're already at the Board of Contract Appeals, and this would be essentially starting the entire claims process.

[00:06:33] Speaker 02:
Well, so I assume they would lose here.

[00:06:35] Speaker 02:
Is there anything that borrows you from moving back to a Contracting Officer with the documents that seven times they've been asking for?

[00:06:43] Speaker 02:
Because both of these are, if it says, here is Mr. Salazar's authorised to file these four matters, the last two contract payments and the two RMAs.

[00:06:53] Speaker 03:
Well, Your Honor, we would have to start the entire, it would be a brand new claim.

[00:06:56] Speaker 03:
And so it would be subject to both laws now.

[00:06:57] Speaker 02:
Well, it doesn't really help, other than the fact that you might have to spend a little money to make up for the fact that seven times you never gave her what they wanted.

[00:07:05] Speaker 02:
Is there any estoppel here, or you have six years in which to file your claim, right?

[00:07:10] Speaker 02:
Well, that's correct, Your Honor, but this requirement... Are you worried about some kind of estoppel or bar that you'll be dealing with when you simply go back and file?

[00:07:20] Speaker 02:
The piece of paper that has both names on it says that here is the person who can file the third claim, so you can file it?

[00:07:26] Speaker 02:
Well, no, Your Honor.

[00:07:27] Speaker 03:
The concern is that the government is demanding something that is not within their right to demand.

[00:07:32] Speaker 03:
And it's actually something that was not ever demanded before.

[00:07:35] Speaker 02:
I assume it is on that.

[00:07:38] Speaker 02:
I'm sorry.

[00:07:38] Speaker 02:
I assume it is on the merits of the claim, except for the fact that you have a money little bit, and you're unhappy that you lost on the merits of your claim.

[00:07:48] Speaker 02:
What is going to stop you

[00:07:50] Speaker 02:
from giving the contracting officer what they've asked for, which is a document authorizing persons to file these particular events signed by both parties with the ceiling.

[00:08:01] Speaker 03:
Well, there would be nothing stopping them, Your Honor, from submitting that document.

[00:08:05] Speaker 01:
And you've already written the claim.

[00:08:06] Speaker 01:
The claim hasn't changed, right?

[00:08:08] Speaker 03:
Well, Your Honor, other than, you know, there's the exchange rate and the interest calculations.

[00:08:14] Speaker 01:
Fine, but so you're essentially asking us to tell the board to do this rather than the agency.

[00:08:19] Speaker 01:
Why would the board want to do this?

[00:08:22] Speaker 01:
The matter is already before the board, the contracting officer.

[00:08:25] Speaker 01:
Properly.

[00:08:25] Speaker 01:
No, no.

[00:08:27] Speaker 01:
The premise of this all is all these – because we're talking about your motion.

[00:08:31] Speaker 01:
I'm not – I'm past the merits of your argument.

[00:08:33] Speaker 01:
The premise of this – of my questions are the board is right.

[00:08:37] Speaker 01:
The contracting officer properly refused to entertain your claim because it wasn't submitted by authorized representatives.

[00:08:44] Speaker 01:
So the board dismissed it.

[00:08:46] Speaker 01:
And that's going to get affirmed.

[00:08:48] Speaker 01:
So how would we remand this to the board if it wasn't properly before them?

[00:08:54] Speaker 03:
Well, Your Honor, this is akin to what you would see in sort of defective certification situation.

[00:08:59] Speaker 03:
It's a curable defect.

[00:09:01] Speaker 03:
And the parties have cured that defect.

[00:09:03] Speaker 03:
And so rather than going all the way back to the very beginning and submitting a single document and then restarting the whole process, it can simply go to the board and proceed on the merits.

[00:09:11] Speaker 03:
It would be much more efficient.

[00:09:12] Speaker 02:
But it almost seems like you prefer an argument to the money.

[00:09:19] Speaker 02:
You have a way to get the money, but you're holding onto an argument.

[00:09:27] Speaker 01:
Well, Your Honor, because once it goes down... In those curable defect and certifications, hasn't the contracting officer often addressed the merits of the claim, too?

[00:09:37] Speaker 01:
And the government brings up a certification defect at the board?

[00:09:42] Speaker 01:
Yeah, but the contracting officer never addressed the merits of this claim.

[00:09:47] Speaker 01:
We have no idea whether the contracting officer agrees or disagrees with your client.

[00:09:52] Speaker 01:
And you're asking people farther along in the stage to address the merits of it.

[00:09:58] Speaker 01:
You said you submitted this to the government, so we'll ask them, but presumably they'll know that this claim is not properly certified.

[00:10:06] Speaker 01:
You won't get a decision from them saying, yes, we agree with you.

[00:10:10] Speaker 01:
Here's your money.

[00:10:10] Speaker 03:
well the issue with that your honor is procedurally they can't issue a decision because once it has left the contract well once we have planned the boards dismissal they can't right well we would have to submit a new claim and then they would review that claim essentially to know I ask you if you submit so you don't think you can submit a new claim to them now

[00:10:28] Speaker 03:
Well, we would submit it to them now, of course, yes, Your Honor.

[00:10:32] Speaker 03:
We haven't done that yet.

[00:10:33] Speaker 03:
Well, we can't, because we're still in litigation of the existing – the claim is still live as part of the appeals process.

[00:10:39] Speaker 01:
So you could withdraw your appeal here and let the Board's dismissal stand and submit a new claim tomorrow.

[00:10:48] Speaker 01:
We could do that, Your Honor, but now we're – again, we're starting – So you could wait for us to – from the Board's dismissal and submit a new claim.

[00:10:58] Speaker 03:
we could also do that your honor but again now we're starting the process over again so the contracting officer now is going to have to do issue the contracting officer's final decision again and then we're going to have to go back to the board why do you think you're going to have to go back to the board

[00:11:12] Speaker 01:
Well, if you think your claim is correct, don't you think the government is going to just give it to you?

[00:11:16] Speaker 03:
Well, Your Honor, based on the interaction with this contracting officer, we're just not convinced that the contracting officer is going to give our claim.

[00:11:22] Speaker 01:
Your interactions with the contracting officer are so good, please give me the name to the people who actually are authorized to file this.

[00:11:28] Speaker 01:
Is there anything at all that suggests that the contracting officer is going to deny the claim on its merits?

[00:11:33] Speaker 03:
You know your honor in fact these are such routine requests and especially the the retainage and funding that is that has been put aside for So why do you think the contracting officer won't give it to you?

[00:11:43] Speaker 01:
Why don't you file a properly certified claim?

[00:11:46] Speaker 03:
Well it's because we have we have once we're we have the certainty of of what we've already we've already argued We've already gotten a rule for file at the board.

[00:11:53] Speaker 03:
We already have everybody in place.

[00:11:55] Speaker 03:
We can proceed Sorry about that.

[00:11:58] Speaker 01:
I mean, I don't think you're gonna get that I'm just

[00:12:01] Speaker 01:
I don't understand why you're not just pursuing this at the proper place.

[00:12:06] Speaker 03:
Well, I mean, Your Honor, at this point, when this happened, I mean, we already were here.

[00:12:10] Speaker 03:
We already had arguments scheduled.

[00:12:11] Speaker 03:
We already had briefs filed.

[00:12:13] Speaker 03:
And, you know, we received the document.

[00:12:16] Speaker 01:
I mean, how long has this been dispute been going on between the two parts of the joint venture?

[00:12:21] Speaker 01:
Why do you take to a week before an oral argument to resolve this?

[00:12:25] Speaker 03:
Well, I don't know, Your Honor.

[00:12:26] Speaker 03:
We're not representing Contract Watts and their dispute in Japan.

[00:12:29] Speaker 03:
So we don't really, I don't know the ins and outs of the procedures.

[00:12:32] Speaker 03:
But it's been going on since.

[00:12:34] Speaker 03:
be essentially the next to this dispute in the record.

[00:12:37] Speaker 02:
Just one little question.

[00:12:38] Speaker 02:
How do we know you're authorized to be in front of us?

[00:12:42] Speaker 02:
Well, Your Honor, because we're... But you're representing the joint venture.

[00:12:45] Speaker 03:
Yes, Your Honor.

[00:12:46] Speaker 02:
Right.

[00:12:46] Speaker 02:
So how did I know the other side agreed to have you do that?

[00:12:50] Speaker 03:
Well, I mean, the other side... Well, the board did not raise this issue.

[00:12:53] Speaker 02:
Well, sooner we would have asked you in the merits of your appeal that the file doesn't help you and basically you can't... A decision between here is one required

[00:13:03] Speaker 02:
Both of you have signed on the same piece of paper.

[00:13:06] Speaker 02:
And we just have dismissed for now.

[00:13:09] Speaker 02:
There's no controversy.

[00:13:10] Speaker 02:
You're not here, right?

[00:13:14] Speaker 03:
If that were included, the issue before the court.

[00:13:16] Speaker 02:
Who is on the list?

[00:13:18] Speaker 02:
Why did you have to bring this up here?

[00:13:20] Speaker 03:
Well, the issue before the court is just on the narrow CDA jurisdictional issue of whether you needed that two-signature requirement in submitting the claim.

[00:13:32] Speaker 02:
The question I have.

[00:13:33] Speaker 02:
to boil it down is that time is what matters here.

[00:13:37] Speaker 02:
If you're correct, and I hope you are, then nothing bores you from going and filing new claims, right?

[00:13:46] Speaker 02:
And it looks like the two contract payments are just money that had to be had.

[00:13:49] Speaker 02:
No objection.

[00:13:50] Speaker 02:
In other areas, there may be some objection.

[00:13:52] Speaker 02:
We don't know about those, right?

[00:13:55] Speaker 02:
So, what's it mean if you could withdraw this appeal and re-file within a week

[00:14:02] Speaker 02:
uh... probably get your money.

[00:14:05] Speaker 02:
If it took us a year to decide the case, right, you would have to wait.

[00:14:10] Speaker 03:
Well, I mean, Your Honor, if we go back to the contracting officer, we're going to have to wait months, if not a year, for them to issue a decision, and if that's assuming... No, you just said this was routine.

[00:14:19] Speaker 03:
Well, it's because of the time it takes for a contracting officer to review everything.

[00:14:23] Speaker 03:
I mean, because they have to go through all the financials of these projects.

[00:14:26] Speaker 03:
I mean, the submission, we only put a very...

[00:14:30] Speaker 02:
You don't have to go through that anyhow.

[00:14:32] Speaker 02:
So all I'm saying is if it's up to you to decide the case, that's just another year you have to wait.

[00:14:37] Speaker 03:
Well, there is one risk that I want to draw your attention to, Your Honor, and it's that there is the factual determination of whether there is, in fact, an issue with the statute of limitations, because it's a claim accrual standard, which is very fact dependent.

[00:14:48] Speaker 03:
And the performance of this contract has been going on since outside of the six-year statute of limitations.

[00:14:53] Speaker 03:
And we think we have a very compelling argument.

[00:14:55] Speaker 03:
that all the claims did accrue within the statute of limitations, but because some of that contract performance is outside of the window, there is the chance the government may disagree.

[00:15:04] Speaker 03:
And we'll be right back at the board having a different argument.

[00:15:06] Speaker 03:
Only this time it will be on statute of limitations, and it will be all because we followed the appeals process to where it led us, Your Honor, and we were unable to succeed.

[00:15:16] Speaker 02:
Counsel, you're almost through your time, but we'll give you two minutes for a bottle, and we'll hear from Mr. Long.

[00:15:39] Speaker 04:
Good morning.

[00:15:41] Speaker 04:
One quick point, I think, and then I look forward to the Court's questions, if any.

[00:15:46] Speaker 04:
I just want to distinguish, I think there was some perhaps conflation between the certification issue and the authorization issue.

[00:15:54] Speaker 04:
I just wanted to make clear for the panel, for the Court, that this goes to authorization, a question of who could submit a claim, as opposed to the

[00:16:05] Speaker 04:
certification issue which can be resolved without the board losing jurisdiction.

[00:16:12] Speaker 04:
The board expressly concluded in its decision it was not a certification issue here, but rather a question of who was able to speak for the joint venture in submitting the claim.

[00:16:22] Speaker 04:
The statutory requirement is that there be a claim by the contractor

[00:16:25] Speaker 04:
that was not present here.

[00:16:26] Speaker 04:
So I just wanted to clear that up.

[00:16:28] Speaker 01:
And one other point- So just to make sure I understand in your mind, your view and the board- your view of what the board said is there's no claim by the contractor at all, not that the contractor submitted a claim that wasn't properly certified.

[00:16:41] Speaker 03:
Correct, Your Honor.

[00:16:41] Speaker 01:
And the- So I take it then your argument in response to what we've been talking about is there's nothing to remand to the board because there's no proper claim before the board.

[00:16:50] Speaker 04:
Correct.

[00:16:51] Speaker 04:
There was no claim submitted to the contracting officer.

[00:16:54] Speaker 04:
and no claim in front of the board.

[00:16:58] Speaker 04:
The contractor officer did issue a letter saying you haven't presented a proper claim, but the claim that proceeded, the purported claim that proceeded, it wasn't by the contractor for reasons, I think.

[00:17:10] Speaker 00:
Do you have any sense of whether there's going to be any statute of limitations difficulties if they resubmit their claim?

[00:17:17] Speaker 04:
I don't have a sense of that, Your Honor.

[00:17:18] Speaker 04:
I'm not sure exactly what the accrual date would be for some of these expenses and how that would play against the presentment requirement.

[00:17:24] Speaker 02:
The government hasn't responded to the motion to submit additional documents.

[00:17:30] Speaker 02:
Do you have any position on that?

[00:17:33] Speaker 04:
Yes, the court should deny the motion.

[00:17:35] Speaker 04:
The record's closed.

[00:17:37] Speaker 04:
Rule 16, for starters, provides that the record includes the materials before the ASBCA.

[00:17:42] Speaker 04:
This obviously wasn't before them.

[00:17:44] Speaker 04:
And there's no extenuating circumstance or any reason why this should be admitted to the record now.

[00:17:50] Speaker 04:
There's a suggestion of mootness, I think, in CWI's repellence motion.

[00:17:56] Speaker 04:
There may not be a controversy between CWI and UK, but there is a controversy between

[00:18:01] Speaker 04:
the Secretary of the Army and the joint venture.

[00:18:04] Speaker 04:
And we are obviously defending the SBCA's jurisdictional dismissal.

[00:18:07] Speaker 04:
And so this matter isn't moot.

[00:18:09] Speaker 04:
To the extent this might be evidence, the record is closed.

[00:18:11] Speaker 04:
And there's been no reason given why the record should be reopened to admit this document.

[00:18:16] Speaker 04:
So it should neither be considered for moot nor considered for the merits issues.

[00:18:20] Speaker 02:
If we disagreed with you, what is your comment on the

[00:18:24] Speaker 02:
content of the letter.

[00:18:27] Speaker 04:
Sure.

[00:18:27] Speaker 04:
So the contents that I will say that it is the contracting officers will be the one to sort of decide what this means, obviously.

[00:18:37] Speaker 04:
It is closer, I think, to the sort of writing that the Corps was looking for in terms of explaining who could do what for the joint venture.

[00:18:45] Speaker 04:
But I'll note that the appellant

[00:18:49] Speaker 04:
in its briefing rejected this January 2021 letter that was submitted by UK.

[00:18:55] Speaker 04:
And the reason why CWI rejected that in its briefing was because only UK had submitted it.

[00:19:00] Speaker 04:
That letter had a qualification that appellant doesn't like, which is all matters must be approved by the Supervisory Board.

[00:19:06] Speaker 04:
This letter also only signed by UK.

[00:19:09] Speaker 04:
And so it may run against Article 3.4 of the Joint Venture Agreement, which says that any authority to act must be in writing signed

[00:19:17] Speaker 04:
And you're going to ask when the JV must be in a writing signed by both parties.

[00:19:21] Speaker 01:
So in your view, if they want to submit a proper contracting party claim, they need to do what the contracting author says, which is submit a letter to them signed by the bureau saying, these are the people that can authorize a claim.

[00:19:38] Speaker 04:
Right.

[00:19:38] Speaker 04:
Signed by the board, I think it could be signed by both parties, both saying, these are the people, akin to the 2016 letter.

[00:19:45] Speaker 04:
And none of this does that.

[00:19:46] Speaker 04:
None of this does that.

[00:19:47] Speaker 04:
The 2016 letter explains who can do what.

[00:19:50] Speaker 02:
Wasn't the contractor and officer saying consistently throughout, give me what you gave me that started this whole contract?

[00:19:56] Speaker 02:
Yes.

[00:19:57] Speaker 02:
Give me a document that's signed by both parties with an official senior saying this is a corporate act, or an act of both members, and that's what they want?

[00:20:05] Speaker 04:
Yes, Your Honor.

[00:20:06] Speaker 04:
I think the record is clear that

[00:20:08] Speaker 04:
The contracting officer did do that.

[00:20:11] Speaker 04:
There were no objections raised to the 2016 letter.

[00:20:13] Speaker 04:
It was viewed as sufficient and a correct or proper identification of who could speak for and bind the contractor.

[00:20:20] Speaker 04:
Nothing that followed that 2016 letter had the same effect.

[00:20:23] Speaker 04:
And that, yes, Your Honor, we agree.

[00:20:25] Speaker 04:
That was the contracting officer.

[00:20:26] Speaker 02:
It wasn't the effect of this late file motion, simply saying to us, just please adjudicate the case in your favor.

[00:20:34] Speaker 02:
Send it back to the board saying,

[00:20:36] Speaker 02:
Section 5 has authorized this person to fire us from the very beginning.

[00:20:41] Speaker 02:
You have made a terrible mistake.

[00:20:43] Speaker 02:
The contracting officer made a mistake.

[00:20:45] Speaker 02:
The case is properly in front of you.

[00:20:47] Speaker 02:
That's what they're asking for.

[00:20:48] Speaker 04:
That's what they're asking for, Your Honor.

[00:20:49] Speaker 01:
I will say, to the extent that... Well, in some sense, what they submitted, even if we accept it, doesn't matter to your legal arguments, right?

[00:20:55] Speaker 04:
Correct, Your Honor.

[00:20:56] Speaker 04:
That's right.

[00:20:57] Speaker 04:
And one other thing I'll point out, Your Honor, to the Court, is there was some discussion about how long it might take the contracting office to respond to a claim.

[00:21:04] Speaker 04:
I just want to note that the CDA does have a requirement that a decision be

[00:21:09] Speaker 02:
Issued in a reasonable time so any concern that this is a drag-on for years I think would run into that reason when this wasn't a contract Provided that in terms of these periodic payments that if the payment is submitted to the contracting officer and appears to be court-informed The payment is a priority to pay.

[00:21:28] Speaker 02:
It's not a matter and the money will go into the bank account I Confess your honor.

[00:21:34] Speaker 02:
I'm not certain about that's what the contract unless it says

[00:21:38] Speaker 02:
So my question is, where does the contracting officer get the authority to refuse to pay?

[00:21:44] Speaker 02:
So what is the statutory authority?

[00:21:47] Speaker 02:
Contracting officers say, I'm just not going to pay this.

[00:21:50] Speaker 04:
Well, the contracting officer said, I need to know who can submit invoices.

[00:21:55] Speaker 04:
Who is saying these amounts are due from the government?

[00:22:00] Speaker 04:
And for a while that wasn't an issue, as far as I can tell, until we reached a point when certain people left CWI and it became less clear who could speak for the contractor.

[00:22:10] Speaker 04:
And so that was the contracting officer's concern.

[00:22:12] Speaker 04:
And I think that's what was communicated in that series of letters that began in late 2020 going forward into 2021.

[00:22:20] Speaker 02:
Well, is there a specific provision that requires the claim to be filed by somebody who's authorized, or is that simply in the nature of the contract?

[00:22:29] Speaker 04:
So the CD, the Contract of Suits Act requires that the claim be submitted by a contractor.

[00:22:37] Speaker 04:
And in the case of a JV, the contractor is the JV.

[00:22:40] Speaker 04:
That's who's contracted with the government, not the individual.

[00:22:44] Speaker 04:
The person who's submitting the reported CDA claim, Omar El-Basouni in this instance, has to have authority to speak for the JV.

[00:23:02] Speaker 04:
If there are no further questions, we ask that you affirm the board's decision.

[00:23:05] Speaker 04:
Thank you.

[00:23:06] Speaker 02:
Thank you, Counselor.

[00:23:07] Speaker 02:
Mr. Jacobson has two minutes for a vote.

[00:23:12] Speaker 03:
I will be brief.

[00:23:14] Speaker 03:
To sort of set some context for these letters that were exchanged with the government, number one, the joint venture agreement doesn't set forth any requirement that the designated individual will speak on behalf of the joint venture.

[00:23:26] Speaker 03:
And in fact, that requirement doesn't exist in the FAR.

[00:23:29] Speaker 03:
It doesn't exist in law.

[00:23:30] Speaker 03:
It's something this contracting officer imposed upon the joint venture.

[00:23:33] Speaker 03:
However, I think the record is pretty clear.

[00:23:35] Speaker 03:
that these issues came up not over a mere personnel change, but because there was a dispute between the joint venturers and one of the venturers who previously had not communicated with the government at all, started sending letters and emails to the government.

[00:23:49] Speaker 03:
And the government's actions here exceeded the authority that you would typically expect from a contracting officer by getting involved in a joint venture's dispute.

[00:23:57] Speaker 03:
And so the whole reason we're here, we're talking about routine invoices.

[00:24:01] Speaker 03:
We're talking about letters.

[00:24:02] Speaker 03:
The government, it wasn't just the claim.

[00:24:04] Speaker 03:
The government refused to accept anything from the joint venture unless it had a piece of paper with two signatures on it, which it wasn't going to get, frankly, because the parties were in the middle of the dispute.

[00:24:14] Speaker 03:
And now that the dispute is resolved, what the government is essentially saying is we have to go back and start over, all over again, and hope that the government will this time cooperate with the joint venture.

[00:24:24] Speaker 03:
We ask that you, therefore, reverse the... Well, the problem wasn't of the government's making, right?

[00:24:31] Speaker 03:
Well, I mean, there's no requirement.

[00:24:33] Speaker 02:
You have a joint venture, right?

[00:24:35] Speaker 03:
Yes, Your Honor.

[00:24:36] Speaker 02:
You need to have some authority.

[00:24:37] Speaker 02:
Somebody has to act for the joint venture, right?

[00:24:39] Speaker 03:
Well, the presumption, Your Honor, is anyone acting on behalf of the joint venture who works for one of the ventures has the authority.

[00:24:44] Speaker 02:
Where's the presumption?

[00:24:46] Speaker 03:
Well, if this court's decision is slummy, Your Honor, that's where, instead of barring some sort of restriction in the joint venture agreement, the presumption, the legal presumption is that really anyone

[00:24:55] Speaker 03:
who works for the joint venture reportedly could fund it.

[00:24:57] Speaker 03:
It's just like with any other company.

[00:24:59] Speaker 02:
If a vice president... I really need this joint venture contract.

[00:25:02] Speaker 02:
And you say, does it look like... Well, there's a problem, yes, Your Honor.

[00:25:06] Speaker 03:
What does the joint venture contract say?

[00:25:08] Speaker 02:
At what point in time has the contracting officer made aware of the contents of the joint venture agreement?

[00:25:13] Speaker 03:
Well, the joint venture agreement, Your Honor, was included in the initial proposal that the parties sent.

[00:25:18] Speaker 02:
And that contract... So the joint contract would then be moved from the get-go.

[00:25:22] Speaker 03:
Yes, Your Honor.

[00:25:23] Speaker 02:
And that, and the initial... Is it just presumably by the contractor level or somebody asked for the initial, like, in 2001, whether they're giving a letter that both people's names are?

[00:25:33] Speaker 03:
Well, Your Honor, since we haven't had an opportunity to discover, we don't know the next, where that letter came from.

[00:25:38] Speaker 03:
But what we do know is that both parties signed the contract because they had to sign their final proposal.

[00:25:43] Speaker 01:
What do you mean you don't know where that letter came from?

[00:25:46] Speaker 01:
Isn't it from your client?

[00:25:48] Speaker 03:
Well, no, it is from our client, Your Honor.

[00:25:50] Speaker 03:
It's that the record was not developed to establish, was this requested by the government?

[00:25:54] Speaker 03:
Did they just do this on their own accord?

[00:25:56] Speaker 03:
That's something that we would want to, if this issue were to come up again, to be developed through discovery.

[00:26:02] Speaker 02:
Thank you, counsel.

[00:26:04] Speaker 02:
Thank you, Your Honor.