[00:00:00] Speaker 00: The next case for argument is 23-1042, Textron Aviation versus United States. [00:00:06] Speaker 00: Good morning. [00:00:06] Speaker 01: Please proceed. [00:00:11] Speaker 01: Good morning. [00:00:11] Speaker 01: May it please the court. [00:00:12] Speaker 01: William Peterson on behalf of the appellant, Textron Aviation Defense. [00:00:17] Speaker 01: The court of federal claims erred in two ways in holding that Textron's claim was barred by limitations. [00:00:24] Speaker 01: First, it applied the wrong test to distinguish between non-routine requests for payment, which can be asserted as claims immediately, and routine requests, which can be asserted as claims only after being disputed by the government. [00:00:38] Speaker 01: Under the correct test for a non-routine request, whether Textron was injured by unexpected or unforeseen government activity? [00:00:46] Speaker 03: Your Honor? [00:00:47] Speaker 03: I'm just waiting to hear him point [00:00:51] Speaker 01: But the test, the correct test, is whether the contractor has been injured by unforeseen or unexpected government activity, essentially akin to a breach of contract. [00:01:00] Speaker 00: So can you point us to, I mean, the district court, the court of middle claims judge did a very detailed, clear [00:01:07] Speaker 00: analysis of, I think, every case that the sides and more that the sides gave. [00:01:13] Speaker 00: And he has a very detailed discussion. [00:01:16] Speaker 00: He's not stating tests. [00:01:18] Speaker 00: He's really drawing everything he says from the cases. [00:01:22] Speaker 00: So can you point us [00:01:24] Speaker 00: To where in the opinion he reaches a conclusion that you say is contrary to, I guess you haven't yet told us which cases it's contrary to. [00:01:34] Speaker 01: Yes, Your Honor. [00:01:35] Speaker 01: So we're dealing with a relatively constrained universe of cases discussing the difference between routine and non-routine requirements. [00:01:41] Speaker 01: I look at four cases. [00:01:43] Speaker 01: There's the Reflectone decision, there's James Im-Ellett's construction company. [00:01:49] Speaker 00: Yeah, and he discusses, he's the one who told them on like Appendix 18, 19. [00:01:53] Speaker 00: He has quite a detailed discussion about this routine and non-routine. [00:01:57] Speaker 01: That's correct. [00:01:58] Speaker 01: And I look at appendix page 22. [00:02:00] Speaker 01: So the two key cases from our perspective are Parsons, which we think the district, the Court of Federal Claims certainly grappled with, but we think the Court of Federal Claims was wrong about. [00:02:09] Speaker 01: And KBR, which also discusses the difference between routine and non-routine requests, but isn't discussed in this portion of the Court of Federal Claims opinion. [00:02:18] Speaker 01: So KBR [00:02:19] Speaker 01: is the case that links routine versus non-routine requests to accrual under the Contract Disputes Act. [00:02:28] Speaker 03: And KBR rejects... So, Your Honor, if you look, it is specifically appendix page 22. [00:02:49] Speaker 01: The critical question, and I'm eliding, this is appendix page 22, this is in the second full paragraph. [00:02:56] Speaker 01: The critical question, and I'm eliding somewhat, is whether the payment seeks compensation because of unforeseen or unintended circumstances. [00:03:07] Speaker 00: And it cites ELECT for that. [00:03:09] Speaker 01: It cites ELECT for that. [00:03:10] Speaker 01: Now, ELECT cited Reflectone for that proposition. [00:03:14] Speaker 01: When you look in Reflectone at the list of unforeseen and unexpected circumstances, all of those in Reflectone involve unexpected government action that injured the contractor. [00:03:27] Speaker 01: And you see this in Parsons. [00:03:28] Speaker 03: And where does that test come from? [00:03:30] Speaker 03: It comes from Parsons, doesn't it? [00:03:33] Speaker 01: It comes from Parsons. [00:03:34] Speaker 03: OK, so what is the test in Parsons? [00:03:36] Speaker 03: Can you have Parsons there? [00:03:38] Speaker 01: Yes, Your Honor, I certainly do. [00:03:40] Speaker 03: Parsons asks, Parsons notes specifically that 1171 in the appendix in the West Wall region. [00:03:55] Speaker 01: Well, Your Honor, I'm looking specifically at 1171. [00:03:57] Speaker 03: As a result of intervening, un-personing circumstances for government action. [00:04:07] Speaker 03: As a result of intervening, conversing circumstances or [00:04:22] Speaker 01: And Your Honor, I'm looking for the precise language. [00:04:27] Speaker 01: What I'm looking at... Sorry, that's 1171. [00:04:33] Speaker 01: Is not the result of intervening unforeseen circumstances or government action. [00:04:39] Speaker 03: Meaning there are two categories. [00:04:41] Speaker 03: There are unforeseen intervening circumstances and there's government action. [00:04:48] Speaker 03: Yes, Your Honor, but let me go back a couple of... I see that, but let me try... If Parsons isn't limited to only unforeseen actions as a result of government action, then why was the court wrong in this case? [00:05:09] Speaker 01: Because the facts of our case are actually somewhat similar to Parsons. [00:05:15] Speaker 01: Because unforeseen circumstances. [00:05:17] Speaker 03: Under that analysis, then there's injury, as there was injury. [00:05:23] Speaker 01: Not quite, Your Honor. [00:05:24] Speaker 01: So unforeseen circumstances has to be understood in the context of Parsons. [00:05:28] Speaker 01: So keep in mind, Parsons involve acts that were, if you just take the common meaning of the phrase, unforeseen. [00:05:35] Speaker 01: Parsons involved billing mistakes. [00:05:37] Speaker 01: Parsons didn't involve what one would ordinarily think of the way a contract is supposed to work. [00:05:43] Speaker 01: So what this court looked at in Parsons is said, and I'm looking specifically, was Parsons requesting costs [00:05:49] Speaker 01: because of additional or unforeseen work at the government's best. [00:05:54] Speaker 01: Is this under the contract or is this outside the contract? [00:05:57] Speaker 03: So what Parsons said is when the contractor is requesting money for work that was under the contract... [00:06:07] Speaker 03: Routine or non-routine will depend on the fact of certain chances, right? [00:06:11] Speaker 01: Well, that's right. [00:06:11] Speaker 01: But fundamentally, what Reflectome tells us is a routine request is looking for money under the contract in accordance with the scheduled course of contractual progression. [00:06:19] Speaker 01: A non-routine request is essentially a potential breach of contract. [00:06:23] Speaker 01: It is outside the contract. [00:06:25] Speaker 01: So what a CAS 413 calculation is doing is it is verifying whether the right amount was previously put in [00:06:34] Speaker 01: to define benefit pension plans. [00:06:36] Speaker 01: So contributions to define benefit pension plans are made based on actuarial estimates. [00:06:42] Speaker 01: You're trying to estimate the amount of money that you need to put in. [00:06:45] Speaker 04: Why did Textron wait until 2018 to submit a case 413 adjustment request to the government? [00:06:50] Speaker 01: Your Honor, these were complex calculations, and it's not in the record, but there were ongoing negotiations with the government this entire time. [00:06:59] Speaker 00: Could it, in your view, based on your task, it seems to me that [00:07:04] Speaker 00: If we fast forward two years, if you didn't come in in 2018 under your test, you could come in in 2028 for the first time and make this request or in 2038. [00:07:15] Speaker 00: Are there any limits to your tests? [00:07:19] Speaker 00: In terms of you having complete control over when this action proceeds? [00:07:25] Speaker 01: So, Your Honor, I think this is where the Strategic Technologies Institute's case, we filed the 28-J letter on, is helpful. [00:07:31] Speaker 01: It does point out that if the government believes that the contractor isn't submitting these sorts of routine requests when it should, then the government has tools available to it. [00:07:42] Speaker 01: So there are going to be some ability for the government to come in and perhaps assert a claim against a contractor. [00:07:48] Speaker 00: OK. [00:07:49] Speaker 00: if you kind of waved in there that these are routine requests. [00:07:53] Speaker 00: And that's obviously the heart of the dispute here. [00:07:55] Speaker 00: So I'll take that off the table. [00:07:57] Speaker 00: But what's the answer to the question? [00:07:59] Speaker 00: You know what this case is and what this request is. [00:08:02] Speaker 00: Let's not call it routine or not. [00:08:04] Speaker 00: Yes, ma'am. [00:08:05] Speaker 00: Could they come in in 2028 for the first time? [00:08:09] Speaker 01: We think that. [00:08:10] Speaker 01: So yes your honor with respect to section seventy one oh three the statute of limitations here the government may have. [00:08:19] Speaker 00: The answer to me is yes you could come in in twenty twenty you could have come in the first time in twenty twenty eight you could come in in twenty thirty eight for the first time. [00:08:28] Speaker 00: And that's the way the system ought to work under the statute of limitations. [00:08:31] Speaker 00: Your clock doesn't start to run until you commit. [00:08:33] Speaker 01: So two answers, Robert, which is there are two different periods you need to think about. [00:08:37] Speaker 01: One is the period of time in which the contractor is required to submit the request to the government. [00:08:43] Speaker 01: There are. [00:08:44] Speaker 01: That's set here. [00:08:46] Speaker 01: No, Your Honor, that's set. [00:08:47] Speaker 01: So if you look, for example, at the KBR case. [00:08:51] Speaker 03: Are you trying to get away from the value of your decisions? [00:08:54] Speaker 03: Am I the question? [00:08:56] Speaker 01: Where are you going? [00:08:58] Speaker 01: Let me try to give you my view of the world, which is that a contractor has to submit a request to the government which has to be disputed before there can be a claim that is asserted. [00:09:07] Speaker 01: So there may be periods of time in which the contractor has to submit that request. [00:09:12] Speaker 01: So KBR, for example, talks about FAR 52.216- What's the time frame? [00:09:18] Speaker 01: There's no time limit. [00:09:19] Speaker 00: Well, except now you're leaping towards, we're trying to stay away from, I mean, another clear issue decided by the district court here was differentiating KBR, but it was on your argument that you needed a claim submission procedure. [00:09:34] Speaker 00: And so he [00:09:35] Speaker 00: Got rid of a distance KBR based on that issue So KBR isn't really helped if we buy with the district court said about KBR then that's not a that's a different issue KBR also addressed the routine and non-routine distinction KBR does clearly [00:09:52] Speaker 01: It's not just language in the background. [00:09:56] Speaker 01: KBR expressly rejected the decision below. [00:09:59] Speaker 01: As we pointed out, the government argued the test applied by the Court of Federal Claims in KBR. [00:10:04] Speaker 01: In that case, the government said a payment request is non-routine simply if it seeks compensation because of unforeseen or unintended circumstances. [00:10:12] Speaker 01: That's page 11 of its Apple Lease brief. [00:10:14] Speaker 01: The government lost that in KBR. [00:10:17] Speaker 01: This court held that the whole point of a non-routine request [00:10:20] Speaker 01: is that a contractor that has been injured by unexpected or unforeseen action on the government's part may seek immediate payment support. [00:10:27] Speaker 04: What gets touched on is injury in this case. [00:10:29] Speaker 04: You just mentioned injured. [00:10:30] Speaker 04: I want to follow up on that. [00:10:31] Speaker 01: Well, if you look at the claims that we actually asserted in the Court of Federal Claims, our theory is we were injured when the government breached the contract and refused to pay the request, refused to make the adjustment that we requested. [00:10:45] Speaker 01: That's after you made your claim. [00:10:46] Speaker 01: Yes. [00:10:46] Speaker 01: Now, that claim made... After you made a CDA claim. [00:10:49] Speaker 00: The claim was based on the fact that the government owed you this money as of what? [00:10:54] Speaker 00: As of what? [00:10:56] Speaker 01: Our theory was that the government owed us the money when we requested it. [00:11:01] Speaker 00: You're not asking for any interest dating back to 2012 or 2013? [00:11:04] Speaker 01: No, Your Honor, we're certainly not. [00:11:06] Speaker 01: And part of the CDA claim, if you look in the record, is a CDA claim for a breach of contract that occurred after the government refused to pay in response to our letter of request. [00:11:18] Speaker 03: Could we come back to the routine versus non-routine issue? [00:11:24] Speaker 03: after considering all your arguments to decide that the court better plan to use the correct legal analysis to decide whether this was routine or nonroutine, so that there's no argument over what standard being used. [00:11:41] Speaker 03: Then the decision as to routine or nonroutine is a fact question. [00:11:52] Speaker 01: on the circumstances? [00:11:56] Speaker 03: If the legal test is correct, Your Honor, yes. [00:12:06] Speaker 03: Thank you. [00:12:11] Speaker 01: But let me turn back just briefly. [00:12:13] Speaker 01: So two things. [00:12:14] Speaker 01: The nature of that, sorry. [00:12:16] Speaker 01: Your Honor, let me, Judge Prost, let me tell you the question about the timing. [00:12:22] Speaker 01: The rule that we're advocating for is one that would apply both to the government and to the contractor. [00:12:26] Speaker 01: So, Judge Crost, assume that you're correct. [00:12:28] Speaker 01: Assume that we waited until 2020 or 2023 to submit these calculations. [00:12:32] Speaker 01: And the calculations, rather than showing that we had a debt... Well, assume that we waited, but assume that we had a pension surplus instead of a deficit. [00:12:43] Speaker 01: In those circumstances, we would owe money to the government. [00:12:46] Speaker 01: I think it would be absurd to suggest that the government's claim against the contractor for that surplus would be untimely because the contractor didn't provide calculations to the government earlier. [00:12:58] Speaker 01: The government's claim for that surplus would accrue at the time the contractor says, here's a surplus that I'm not going to pay. [00:13:03] Speaker 00: Well, there are certainly other reasons why we have statute of limitations. [00:13:07] Speaker 00: And one of them is for staleness. [00:13:09] Speaker 00: I mean, if we're talking about 2050, I mean, I know there's a lot of record keeping going on, but isn't it, does it make any sense to you that these cases could go on in perpetuity and you could have complete control over when to assert your claim and there's no, effectively, your [00:13:26] Speaker 00: Your test has no statute of limitations for you. [00:13:29] Speaker 01: Well, Judge Prost, I'm suggesting there are two different inquiries. [00:13:31] Speaker 01: The first is, when did we have to submit this CAS 413 submission to the government asking for this money, providing it with the calculations? [00:13:39] Speaker 01: And I'm saying that is a different inquiry from the six-year statute of limitations that happens afterwards. [00:13:45] Speaker 01: So the government is perfectly free, in this case on remand. [00:13:50] Speaker 01: So, Your Honor, again, I'd point you to the KBR decision. [00:13:53] Speaker 01: That involved, for example, final indirect costs. [00:13:56] Speaker 01: It deals with this issue of indefinite claim accrual. [00:13:58] Speaker 01: And it's exactly the same thing. [00:13:59] Speaker 01: The government made the same arguments there. [00:14:01] Speaker 01: KBR pointed out there are regulatory restrictions on when we're allowed to request these costs. [00:14:07] Speaker 01: That's a different inquiry than claim accrual. [00:14:11] Speaker 03: And you made that argument, and you lost it, and you didn't appeal. [00:14:13] Speaker 03: the pre-existing routine of KBR problems? [00:14:17] Speaker 01: Well, we didn't argue it as a mandatory claim submission procedure on appeal, but we have certainly preserved and argued the difference between routine and non-routine claims. [00:14:25] Speaker 00: And finally, Your Honor, I think- OK, and the court said in KBR, KBR could not have calculated the requirement, some certain, for its claim, contention that the government was unable to serve two years. [00:14:36] Speaker 00: Have you put out evidence in this record why you could not have calculated [00:14:40] Speaker 00: made all of these calculations between 2012 and 2018? [00:14:45] Speaker 01: We did not put on that evidence, but Your Honor, we believe the government's burden. [00:14:49] Speaker 01: It's an affirmative defense the government needed to prove. [00:14:51] Speaker 01: The government did not submit evidence in this record showing as a matter of law when we knew or should have known this uncertain. [00:14:57] Speaker 01: So we think even if we're wrong about routine versus non-routine request, it would be necessary [00:15:14] Speaker 02: May it please the court. [00:15:16] Speaker 02: The trial court correctly recognized that Tex-Tron. [00:15:19] Speaker 00: I'm sorry, because I'll forget this. [00:15:22] Speaker 00: They submitted the 28J, as your friend just mentioned, a few minutes ago on Friday. [00:15:27] Speaker 00: And I don't think the government responded, obviously, because they didn't have enough time. [00:15:32] Speaker 00: But do you have any response to the, I assume you don't agree with your friend, that the case that he submitted on 28J, that name escapes me, is really relevant to this case? [00:15:43] Speaker 00: So could you speak to that? [00:15:44] Speaker 02: That's correct. [00:15:44] Speaker 02: And I'm happy to address that case. [00:15:45] Speaker 02: That's the STI case. [00:15:47] Speaker 02: And actually, I think that case contradicts a point [00:15:50] Speaker 02: that Council for Textron made just now about how it would apply if the government only received the calculations years later. [00:15:58] Speaker 02: In that case, SCI shows that the application of the facts of that sort of situation, when the government only receives it later, [00:16:05] Speaker 02: is that's when the government's statute of limitations starts, when the accrual starts with the government, when they get the information. [00:16:12] Speaker 02: That's what happened in that case, that the accrual occurred when the belated submission was actually given to the government to review that had the incorrect information in it. [00:16:23] Speaker 02: That's not the case for the contractor. [00:16:24] Speaker 02: The contractor not only has the information, it's their information, they have a pre-existing obligation to do the calculation upon the triggering event, which is the termination or curtailment of the pension plan. [00:16:40] Speaker 02: So when these pension plans were terminated or curtailed, effective December 31, 2012, and the only wrinkle in this case being that there was a bankruptcy proceeding, but that was all over by February 15, 2013, [00:16:55] Speaker 02: When those pension plans were terminated or curtailed way back when, Textron had, its predecessor, had an obligation at that time to do the calculation to determine is there a surplus or a deficit. [00:17:09] Speaker 00: Well, actually, you're being a little too generous or the reverse. [00:17:13] Speaker 00: They had six years to do those calculations. [00:17:15] Speaker 00: They didn't have an obligation to do it in five minutes or in five months. [00:17:19] Speaker 00: They have a six-year statute of limitations, which is not nothing. [00:17:22] Speaker 02: Absolutely. [00:17:23] Speaker 02: So under the Gates versus Raytheon case, there's a clear rule that this applies in the period when the termination occurs. [00:17:32] Speaker 02: But not only that, exactly right. [00:17:35] Speaker 02: The whole point of this generous six-year statute of limitations is that it gives either side plenty of time to decide when to pursue its claim within those six years, to prepare its claim with as much time as it wants. [00:17:49] Speaker 02: And so it's never expected that the claimant will, the minute their claim accrues, have their claim prepared. [00:17:58] Speaker 02: Of course there will be time. [00:17:59] Speaker 02: But that's for them to decide. [00:18:01] Speaker 02: The government has to do the same thing. [00:18:03] Speaker 02: The government gets six years from when the events that the liability is based on occurred and were known. [00:18:10] Speaker 02: Each side gets six years from that point to prepare its claim and submit its claim. [00:18:15] Speaker 04: How did you describe the injury? [00:18:17] Speaker 04: in this case. [00:18:18] Speaker 04: The opposing counsel gave one description. [00:18:20] Speaker 04: Do you have a differing description of the injury? [00:18:23] Speaker 02: Under electric boat, it's clear. [00:18:24] Speaker 02: The injury is, if the government owes you money and you don't have it, for these purposes, that's your injury. [00:18:31] Speaker 02: So just like an electric boat, it's not when the government refuses to pay you. [00:18:35] Speaker 02: That's not your injury. [00:18:36] Speaker 02: You have a right to money under the contract provisions. [00:18:39] Speaker 02: This case is cast 413. [00:18:42] Speaker 02: When you're owed that and don't have it, for these purposes, you have an injury that you can pursue in a claim. [00:18:47] Speaker 00: So what would happen if under this pension thing that was resolved, they owed you money? [00:18:53] Speaker 00: They owe the government money. [00:18:54] Speaker 00: So then the injury is to the government. [00:18:56] Speaker 00: It's not to them, right? [00:18:58] Speaker 02: Exactly. [00:18:58] Speaker 02: When the government is owed money and doesn't have it, then the statute of limitations accrues. [00:19:04] Speaker 02: The exception might be if the government doesn't know. [00:19:06] Speaker 02: If the contractor hasn't met its obligation to say, government, I've done my calculation, and here's the result, well, then the accrual might not happen until there's knowledge, or should be knowledge. [00:19:15] Speaker 00: Can I ask you just a question? [00:19:17] Speaker 00: I thought the, as I said earlier, I thought the Court of Federal Claims opinion was quite helpful, clear, farsighted, going through. [00:19:25] Speaker 00: And I guess they were directing themselves to the questions the arguments raised below and going through the cases in detail. [00:19:33] Speaker 00: Your brief seems to be a little different. [00:19:38] Speaker 00: I mean, you ultimately reach the routine, non-routine sort of at the end of the brief. [00:19:42] Speaker 00: Does the government have any difference [00:19:47] Speaker 00: with anything that the district court said with respect to the case law, et cetera, does the government disagree with any of the court's analysis, the relevant analysis, and its discussion and interpretation and application of the cases? [00:20:01] Speaker 02: Right. [00:20:01] Speaker 02: There is a little bit of a difference, both below and here in this court. [00:20:05] Speaker 02: It's our position that Textron establishing that this is routine [00:20:11] Speaker 02: is not a way to avoid the statute of limitations. [00:20:14] Speaker 02: We don't think it's correct that, certainly, if you reach and decide that this depends on routine versus non-routine, we agree with the Court of Federal Claims analysis in that regard. [00:20:23] Speaker 02: However, we don't think it's right to take this routine versus non-routine concept and apply it to claim approval, to statute of limitations. [00:20:32] Speaker 02: We think these are separate concepts. [00:20:34] Speaker 02: And to explain that. [00:20:35] Speaker 00: Is there any cases? [00:20:37] Speaker 00: parsed it out the way you're parsing it out? [00:20:39] Speaker 00: Because it seems like our cases are supported with the way the district court viewed this routine, non-routine differentiation. [00:20:47] Speaker 02: I think that there is the ability to look at cases and say, this seems to suggest that the routine versus non-routine matters. [00:20:56] Speaker 02: However, I don't think any case for this. [00:20:58] Speaker 03: Aren't you pushing it as KBR a little bit? [00:21:01] Speaker 02: Well, consider what was actually decided in KBR. [00:21:04] Speaker 03: I know what was decided. [00:21:06] Speaker 03: The language in it. [00:21:07] Speaker 02: I think that's true. [00:21:08] Speaker 03: It looked to me like you were pushing against it. [00:21:11] Speaker 03: The part of KBR that you ever said was elevated. [00:21:15] Speaker 03: And I said, no, no, no, KBR is a pre-existing condition case, yada, yada. [00:21:20] Speaker 03: So I think what you're suggesting is that that language in KBR upfront talking about routine, non-routine accrual is what you think is wrong. [00:21:33] Speaker 02: I agree. [00:21:34] Speaker 02: And first of all, I'm just telling you what I think is right. [00:21:36] Speaker 02: And I think going back to reflect tone, to say that the routine versus non-routine distinction is something that bears upon claim of cruel isn't quite right. [00:21:48] Speaker 02: I think the routine versus non-routine distinction [00:21:50] Speaker 02: something that bears upon did the contractor submit a valid claim the presentment requirement did what they actually submit is that does that meet the requirements it doesn't it doesn't create some rule whereby the contractor is not allowed to submit some category of claims [00:22:09] Speaker 02: in a non-routine claim letter whenever it wants. [00:22:12] Speaker 02: I mean, if that's the law, I think the government would start moving to dismiss a lot of cases that we haven't because we would be looking, oh, is this, okay, you've got a claim letter here, non-routine, totally valid, but this seems like a routine matter. [00:22:28] Speaker 02: How do you know when you've got the letter, whether it's routine or not? [00:22:32] Speaker 02: If you've got a letter with a claim certification on it, it's a non-routine submission. [00:22:36] Speaker 02: It's not an invoice. [00:22:37] Speaker 02: It's not a voucher. [00:22:38] Speaker 03: It's kind of a certification. [00:22:39] Speaker 02: Right. [00:22:40] Speaker 02: Because a certification has a CDN requirement. [00:22:42] Speaker 02: For claims over $100,000, absolutely. [00:22:45] Speaker 02: And the point that, you know, when you look at the regulation, the definition of claim, all that... But the certification makes it routine? [00:22:52] Speaker 02: Non-routine. [00:22:53] Speaker ?: What? [00:22:55] Speaker 02: This is not an invoice. [00:22:56] Speaker 02: So there are examples in the regulations. [00:23:00] Speaker 03: You have a claim for some payment of money, right? [00:23:04] Speaker 03: And if you're a contractor and you're submitting it to a contracting officer and you read the CDA and it says you better certify it to make it a claim, it's your claim. [00:23:13] Speaker 03: Why does that make it routine or non-routine? [00:23:15] Speaker 02: So let me start with where routine versus non-routine comes from. [00:23:18] Speaker 02: It comes from the definition of the regulation for 2.101 that says a routine, it describes routine, an invoice, voucher, or other routine submission. [00:23:29] Speaker 02: I'm sorry, Your Honor. [00:23:32] Speaker 02: It says, so the language about halfway through that FAR 2.101 definition of claim says, a voucher invoice or other routine request for payment that is not in dispute when submitted is not a claim. [00:23:45] Speaker 02: And as explained in reflective, the point of saying that is, if you looked at the beginning of that definition of a claim, an invoice could [00:23:52] Speaker 02: technically fit in but a contracting officer receiving an invoice is not going to say they're asking me for a final decision under the under the CDA they're not going to recognize that kind of submission as that it's just an invoice so it'll be processed under normal invoice requirements but when a contracting officer receives [00:24:10] Speaker 02: a demand. [00:24:11] Speaker 02: It's not an invoice or a voucher, but rather has this claim certification and indicates a final decision is being requested. [00:24:18] Speaker 02: The contracting officer knows they are asking me for a final decision. [00:24:23] Speaker 00: I mean, I guess the problem of having this, you know, we have a lot of hard cases and we have a lot of work to do. [00:24:28] Speaker 00: We've got, I mean, the district court based its findings and the relevance of routine and non-return routine on a slew of our cases. [00:24:37] Speaker 00: So are you suggesting here that we take these cases along and reverse our precedent, which I think supports the analysis that the Court of Federal Claims did here on routine versus nonroutine? [00:24:49] Speaker 02: I don't think that's necessary, because I think that Textron is asking for an extension of what's said in those cases beyond anything that was decided. [00:24:56] Speaker 00: Well, we agree with that. [00:24:58] Speaker 00: But that's not kind of the grabbing of what we were talking about in terms of [00:25:02] Speaker 00: the government suggesting that the routine, non-routine differentiation that comes out of reflectone and electric at Parsons, I think, and maybe a few others, and what the court federal claims said here was off-base. [00:25:15] Speaker 02: Well, I think Parsons and KBR are their two main cases, as counsel protection said. [00:25:20] Speaker 02: And when you look at what happened in both those cases and then whether it would require this court to not follow those cases, in neither case is that true. [00:25:29] Speaker 00: In KBR, the whole thing- Well, KBR is kind of off the table for maybe other reasons. [00:25:33] Speaker 00: But on the term of all the cases that [00:25:35] Speaker 02: And certainly there's no question that there's a lot of cases that discuss routine versus non routine but is there any case that says if you have a routine claim you're not allowed to present to the contracting officer at whenever you want a non routine claim certified claim letter [00:25:53] Speaker 02: So even if you have some, is there really support for this idea that it's not the form of what the contractor's submitting, but rather some whole bucket of claims, normal claims under the contract, where the contractor just doesn't... Well, Camille, we're here to ask the questions, not to answer them. [00:26:11] Speaker 02: And let me answer. [00:26:12] Speaker 02: Reflect Zone en banc says that's not right. [00:26:15] Speaker 02: That's how I think I and almost everybody read Reflect Zone. [00:26:19] Speaker 02: The contractor can submit the claim when the contractor wants to. [00:26:22] Speaker 02: There is no prerequisite to the prerequisite of submitting the claim. [00:26:26] Speaker 04: Do you agree that we do not need to decide whether or not this routine versus nonroutine and the applicability to the statute of limitations issue in order to decide potentially in your favor in this case? [00:26:40] Speaker 02: Yes, that's true. [00:26:41] Speaker 02: The court could certainly say, as we say in our brief, that even if this is the law, that the trial court is correct, that this would not properly be described as routine. [00:26:53] Speaker 02: The problem, I think, is just that it would add another case. [00:26:55] Speaker 02: to what I think is a divergence of this routine versus non-routine away from just a question of was there adequate presentment into other areas where I don't think it's right. [00:27:07] Speaker 00: You're just arguing against yourself because if you're complaining and worried that without another case that goes to my suggestion that we've got cases that already say that and we're not going to overrule them in this context. [00:27:19] Speaker 02: And again, I don't think you'd be overruling them to agree with us. [00:27:22] Speaker 02: I think the cases don't actually have holdings that are contradictory to our argument. [00:27:26] Speaker 02: But certainly, to reverse the case, the court would not only have to agree with text drawn on the law. [00:27:33] Speaker 00: Which case? [00:27:34] Speaker 02: This case. [00:27:35] Speaker 02: OK. [00:27:35] Speaker 02: But also conclude that the trial court was wrong to say that this is not a routine claim. [00:27:40] Speaker 02: And there's a variety of reasons why, as we point out briefly, at least in our brief, even if it's true that a routine claim is some category of claims that can't be pursued immediately, that wouldn't allow text-drawn [00:27:54] Speaker 02: Textron's case here to proceed. [00:27:56] Speaker 02: First, as the trial court explained, this Cas413 adjustment with a termination of a pension plan is not a routine claim. [00:28:04] Speaker 02: Many cases from this court point out this is unusual. [00:28:08] Speaker 02: This is not a normal type of claim. [00:28:10] Speaker 02: as we identify in the brief. [00:28:13] Speaker 02: Second, even if that's true, it's just more steps that Textron needed to complete within that generous six-year statute of limitations. [00:28:21] Speaker 02: Even if they had to have a dispute with the government first, then after they have the dispute, then they can bring their claim for this. [00:28:27] Speaker 02: That just means they have more to do within the six years. [00:28:30] Speaker 02: And finally, even if there was some requirement to get into a dispute with the government before the claim was submitted, the entity that's before the court here, the appellant, the contractor, Textile and Aviation Defense, that subsidiary, didn't do that. [00:28:44] Speaker 04: The letter from 2018- So if you're running short on time, do you want to talk at all about, I thought one of your arguments that maybe was pretty convincing about the policy concerns, and I think you said, [00:28:54] Speaker 04: ability to wait a hundred years on statute limitations. [00:28:57] Speaker 04: Do you want to address that at all before you say it? [00:28:59] Speaker 02: Absolutely. [00:28:59] Speaker 02: I mean under Textron's reasoning there would be no statute of limitations in effect. [00:29:04] Speaker 02: The contractor would just decide when it wants to get into a dispute. [00:29:07] Speaker 02: Take an example of a very routine situation. [00:29:09] Speaker 02: Contractor has an invoice for work that was done. [00:29:12] Speaker 02: There's no dispute about it all, but the contractor waits eight years to submit that invoice. [00:29:17] Speaker 02: And then the government says, this is very old. [00:29:21] Speaker 02: I'm not paying this. [00:29:22] Speaker 02: And the contractor says, well, now we've got a dispute, so I want my money. [00:29:26] Speaker 02: That is barred by the statute of limitations. [00:29:28] Speaker 02: That's the most routine thing you can think of. [00:29:30] Speaker 02: And that is clearly barred by the statute of limitations. [00:29:33] Speaker 02: So there's no separate statute of limitations for complicated claims or simple claims. [00:29:38] Speaker 02: It's six years for everything. [00:29:40] Speaker 02: And there's no ability for the contractor to unilaterally, by saying, well, I have a lot of work to do on my own calculation, [00:29:47] Speaker 02: to put it off until some time of the contractor's choosing. [00:29:52] Speaker 02: Reflect on makes clear the contractor can decide when to submit its claim. [00:29:56] Speaker 02: And in this case, Textron failed to submit its claim within the six years in the trial court correctly. [00:30:01] Speaker 03: The real difference between the two of you is it's picking the date on which the claim occurs, right? [00:30:07] Speaker 03: True. [00:30:07] Speaker 03: They say it occurs when the contractor government disagrees with us. [00:30:13] Speaker 03: And you're saying, no, no, no, it occurs when [00:30:15] Speaker 03: Under the facts and circumstances, the public record looks at this and says, hey, I've got a right to pay. [00:30:21] Speaker 02: Exactly. [00:30:24] Speaker 00: Thank you. [00:30:26] Speaker 00: Will we start two votes everybody on Mr. Peters? [00:30:31] Speaker 01: Thank you, Your Honor. [00:30:33] Speaker 01: Very quickly, my friend asked about cases holding that routine claims must be in dispute before they can be asserted. [00:30:39] Speaker 01: I point him to James M. Ellett Construction Company and Parsons itself, even if he and I reflect on differently. [00:30:46] Speaker 01: Both of those clearly indicate that this dispute is a requirement for the assertion of claims based on routine requests, which triggers the statute of limitations. [00:30:56] Speaker 01: A quick comparison with Parkinson's. [00:31:00] Speaker 01: What we're doing with the CAS 413 submission is we're looking to see whether the estimates of pension contributions previously made were correct. [00:31:09] Speaker 01: So we are going back and saying we made some estimates at the time of this calculation we have to say [00:31:14] Speaker 01: How do the actual liabilities compare to the actual amounts? [00:31:18] Speaker 01: When you have a surplus, it means the amount that you were estimating was too high. [00:31:21] Speaker 01: In other words, you were overcharging the government. [00:31:24] Speaker 01: You need to give some of that money back. [00:31:25] Speaker 01: When you have a deficit, what it means is the amount you were charging the government for the work performed under the contracts, for the work previously performed, was too low. [00:31:34] Speaker 01: So you need to ask for more money from the government. [00:31:36] Speaker 01: These are the same facts as Parsons. [00:31:39] Speaker 01: What Parsons said was, [00:31:42] Speaker 01: asking for additional money based on billing errors or any other reason for work that you already performed is a routine request and that can't be submitted as a claim until it's disputed by the government. [00:31:53] Speaker 01: And then in KBR the board looked at it and said these are unforeseen circumstances. [00:32:00] Speaker 01: This court held that's a misapplication of so-called non-routine requests. [00:32:04] Speaker 01: We have the statement in KBR that [00:32:07] Speaker 01: The origin of the rule of non-routine requests is to permit a contractor that has been injured by unexpected or unforeseen action on the government's part to seek those damages immediately. [00:32:18] Speaker 01: The government in KBR said, no, anything unexpected gives rise to a non-routine request. [00:32:24] Speaker 01: This court rejected that and held it has to be based on unexpected or unforeseen government action. [00:32:30] Speaker 03: When you look at Parsons' [00:32:35] Speaker 03: They're reading this to be all the government actually will trigger this. [00:32:39] Speaker 01: Well, but look at Parsons. [00:32:40] Speaker 01: Parsons involved something unforeseen. [00:32:42] Speaker 01: Parsons involved unexpected billing errors. [00:32:45] Speaker 01: This is not normal. [00:32:46] Speaker 01: This is not something that ordinarily happens. [00:32:48] Speaker 01: But Parsons said, you're asking for money based on work that you were supposed to perform under the contract. [00:32:54] Speaker 01: This isn't about a different scope of contract. [00:32:56] Speaker 01: This isn't the government charging you additional money like in electric boats. [00:32:59] Speaker 01: This is just, you wanted more money that you already owed. [00:33:02] Speaker 01: Please pay it to us. [00:33:03] Speaker 01: That's a routine request made accrued. [00:33:05] Speaker 01: Also note, my friend didn't say anything about the sum certain. [00:33:07] Speaker 01: And we do think that is an independent ground for reversal, just given the fact that there's no evidence here about when we knew or when a reasonable contractor should have known the sum certain that we were owed, which is a requirement for claim accrual. [00:33:19] Speaker 00: Thank you. [00:33:20] Speaker 00: We thank both sides for taking this.