[00:00:44] Speaker ?:
Cough

[00:01:12] Speaker 00:
Okay, the next case is number 14, 1809, Distributed Solutions, Incorporated against the Air Force.

[00:01:19] Speaker 00:
Mr. Coulter, you're ready.

[00:01:22] Speaker 03:
Thank you, Your Honor.

[00:01:23] Speaker 03:
May I please record?

[00:01:25] Speaker 03:
My name is Tom Coulter.

[00:01:26] Speaker 03:
I represent Distributed Solutions and the appellant in this matter.

[00:01:29] Speaker 03:
I will refer to them as DSI as well throughout this argument.

[00:01:32] Speaker 03:
Before its contract with DSI, AFNAFO had a continuous right to use a version of software

[00:01:40] Speaker 03:
that was about to become inoperable.

[00:01:42] Speaker 02:
Before we get to the merits, can I just ask you a few questions about the jurisdiction?

[00:01:45] Speaker 02:
Certainly.

[00:01:46] Speaker 02:
And I apologize in advance.

[00:01:47] Speaker 02:
I came down with a cold this morning, so I may cough through them.

[00:01:51] Speaker 02:
Suppose in 1978, when Congress enacted the waiver of sovereign immunity in the CDA, that it specifically intended to include only the enumerated nappies.

[00:02:03] Speaker 02:
It could have done that, right?

[00:02:05] Speaker 03:
It could have done that.

[00:02:06] Speaker 02:
Right.

[00:02:07] Speaker 02:
And so why isn't that what they did?

[00:02:09] Speaker 02:
when they referenced the Tucker Act's listing of those enumerated nappies.

[00:02:17] Speaker 03:
I think the answer to your question, Judge Hughes, is that it's answered by the Slattery opinion.

[00:02:22] Speaker 02:
Well, I understand that, and I know that's where you were going to go, but it seems to me whatever Slattery says answers a different question than what Congress did in 1978 in the CDA.

[00:02:33] Speaker 02:
Slattery dealt with

[00:02:36] Speaker 02:
decades, if not a hundred years of the NAPI doctrine as created and applied to the Tucker Act.

[00:02:42] Speaker 02:
But in the CDA, the Congress was enacting a different and separate waiver of sovereign immunity.

[00:02:48] Speaker 02:
You agree with that, right?

[00:02:49] Speaker 03:
It was enacting its own waiver of sovereign immunity in line with the language of the Contract of Speeds Act.

[00:02:54] Speaker 03:
There's no question about that.

[00:02:55] Speaker 03:
But that language is identical to the language used in the Tucker Act for this very purpose.

[00:03:02] Speaker 03:
And in Slattery, as Judge Bryson pointed out,

[00:03:05] Speaker 03:
That language is any express or, I'm sorry, in the CDA, the language is any express or implied contract with any of the, including those of the non-appropriated fund activities described in the Tucker Act.

[00:03:17] Speaker 02:
So you would have that, read that as exemplary non-exclusive.

[00:03:22] Speaker 03:
Correct.

[00:03:24] Speaker 02:
And that seems a reasonable position.

[00:03:26] Speaker 02:
The problem is, isn't the legislative history very strongly against that reading?

[00:03:33] Speaker 03:
The legislative history,

[00:03:35] Speaker 03:
was, there was certainly a lot of discussion about the NAFTA doctrine in the legislative history.

[00:03:40] Speaker 03:
There's no doubt about that.

[00:03:41] Speaker 03:
There was similar discussion of the legislative history in the Tucker Act.

[00:03:44] Speaker 01:
But let's go back to the Senate report for the CDA.

[00:03:49] Speaker 01:
I mean, tell me you agree that it's quite clear what the Senate was thinking about how far the waiver of sovereign immunity goes for the NAFTA.

[00:04:03] Speaker 01:
I mean, you agree with that, right?

[00:04:05] Speaker 01:
I mean, the language is very clear.

[00:04:07] Speaker 01:
It's only the enumerated Nazis.

[00:04:09] Speaker 01:
It could have, it said in the report, it could have gone all the way and applied the waiver of sovereign immunity to every non-appropriated, you know, fund instrumentality, but it didn't.

[00:04:22] Speaker 01:
It specifically said, we're just going to hold the line to the enumerated ones.

[00:04:27] Speaker 01:
I agree.

[00:04:28] Speaker 01:
So what am I supposed to do with that?

[00:04:30] Speaker 01:
That couldn't be any clearer what Congress's intent was in terms of how far the waiver of sovereign immunity was going to go with respect to the Contract Disputes Act.

[00:04:42] Speaker 03:
Again, and I hate to go back to it, but as Judge Bryson pointed out, this court was very clear in its waiver of sovereign immunity limited to enumerated NAFIs at some point in time in the past with regards to the Tucker Act.

[00:04:55] Speaker 03:
Based on the same language and very similar legislative history,

[00:04:59] Speaker 03:
that said we're only going to limit this to the enumerated NAFIs.

[00:05:02] Speaker 03:
In the slattery decision, this court decided that that legislative history actually was not definitive and supported an interpretation that would allow NAFIs to be... But isn't there a different... I mean, there's a far different history of the Tucker Act with regards to the NAFI doctrine than there is with the CDA, isn't there?

[00:05:22] Speaker 02:
I mean, the Tucker Act was enacted a very long time ago.

[00:05:27] Speaker 02:
And it didn't have the NAFTA doctrine in it when it was enacted, right?

[00:05:32] Speaker 02:
It was created judicially by the courts over a number of years.

[00:05:36] Speaker 02:
And then in reaction to that creation, Congress amended the Tucker Act to include certain specified NAFTAs.

[00:05:45] Speaker 02:
And so what Congress was doing there was slightly different than what they were doing in the CDA, which was creating a new waiver of sovereign immunity.

[00:05:56] Speaker 02:
Well, Your Honor, again, I guess what I'm asking is, I mean, you keep wanting us to go to the Tucker Act.

[00:06:04] Speaker 02:
Sure.

[00:06:04] Speaker 02:
And I understand that I would be making that argument for you too.

[00:06:07] Speaker 02:
But the CDA is a different waiver and short of putting in the language, the expressed statement that's in the legislative history, what else would they have had to do to limit it to the enumerating of nappies?

[00:06:21] Speaker 03:
For whatever reason, Congress did not limit it and they could have said specifically,

[00:06:26] Speaker 03:
It is limited to these enumerated nappies.

[00:06:29] Speaker 03:
It said it includes.

[00:06:30] Speaker 02:
Isn't the reason they didn't do it is because in 1978, everybody understood that the tuck rack was limited to those enumerated nappies too.

[00:06:40] Speaker 02:
So there wasn't any occasion for them to go beyond that, although they specifically said, we considered doing it, and we're not going to.

[00:06:50] Speaker 03:
That may have been a reason, and this is why it relied on.

[00:06:53] Speaker 02:
Let me ask you.

[00:06:54] Speaker 02:
I understand your argument on this.

[00:06:56] Speaker 02:
Sure.

[00:06:58] Speaker 02:
And flattery, I think, certainly undermines it.

[00:07:02] Speaker 02:
But don't we have binding precedent in PACRM-Pizza and the CDA portion of FORESH that is still good law?

[00:07:13] Speaker 02:
I mean, given that there are two different statutes with different legislative history, don't you think that we'd have to go on bonk to overturn PACRM?

[00:07:20] Speaker 03:
I do not, Your Honor.

[00:07:20] Speaker 03:
Because again, if you look at just the language of the Contract Disputes Act,

[00:07:25] Speaker 03:
And for whatever reason, that language was tied to the Tucker Act's language.

[00:07:30] Speaker 03:
And perhaps it was because at the time, they didn't believe the Tucker Act involved any NAFTA jurisdiction beyond those enumerated.

[00:07:37] Speaker 03:
But for whatever reason, that language of the Contrast Disputes Act is tied to the Tucker Act.

[00:07:44] Speaker 02:
But doesn't that undermine your argument?

[00:07:46] Speaker 02:
If what we're talking about is Congress intended in 1978 to incorporate the bounds of the Tucker Act jurisdiction with regard to NAFTA,

[00:07:55] Speaker 02:
then there's no dispute that it only included the enumerated NAFIs in 1978, right?

[00:07:59] Speaker 02:
It tried to track the language of the Tucker Act.

[00:08:02] Speaker 02:
Right, right.

[00:08:03] Speaker 02:
And the Tucker Act in 1978 specifically only included, understood by us, understood by the statute, understood by everybody, I think, only included the enumerated NAFIs.

[00:08:14] Speaker 02:
So I think your argument has to be that Congress intended to incorporate the Tucker Act

[00:08:21] Speaker 02:
jurisdiction, and if the court enlarged that jurisdiction over time, Congress intended to enlarge it as well.

[00:08:27] Speaker 03:
And Congress could very easily restrict that jurisdiction today.

[00:08:29] Speaker 03:
They could amend the CDA to be more specific.

[00:08:32] Speaker 02:
But isn't that a backward way of looking at sovereign immunity?

[00:08:35] Speaker 02:
Not when you tie your language to copyright.

[00:08:37] Speaker 02:
Why don't you move on to the merits?

[00:08:38] Speaker 02:
I don't want to eat up all your time on jurisdiction.

[00:08:40] Speaker 03:
Thank you, Ron.

[00:08:42] Speaker 03:
Getting back to the merits of this, DSI believes that when they negotiated a contract,

[00:08:49] Speaker 03:
When FNAPA negotiates a contract with DSI, it received software that was usable and that was limited to a contractual rights use term.

[00:08:59] Speaker 03:
And the plain language of the agreement, as well as the board's own factual findings, support that very interpretation that DSI holds, that the language at issue here in mod 22, this modification, which all parties agree refers to mod 15,

[00:09:12] Speaker 03:
And all parties agree mod 15 contains all the intellectual property rights between the parties.

[00:09:17] Speaker 00:
But that's not disputed, is it?

[00:09:18] Speaker 00:
The dispute is the continuing rights that prevail.

[00:09:23] Speaker 03:
That is correct, your honor.

[00:09:24] Speaker 03:
And the only issue is the plain language is whether this modification refers to all of mod 15 or only a part of it, as the government would have you believe.

[00:09:33] Speaker 03:
But this modification is pretty clear in what it says.

[00:09:37] Speaker 03:
And from the negotiations of the parties, it is clear

[00:09:41] Speaker 03:
that that is what DSI understood it to mean, to be its plain meaning of this modification referring to all of the modification, not just a part of it.

[00:09:49] Speaker 00:
So you don't think it's curious that the fact that there was no mention of some kind of recovery, some kind of renewed payment for the continuing rights?

[00:10:01] Speaker 03:
At what point in time, Your Honor?

[00:10:02] Speaker 00:
Well, that was the question.

[00:10:03] Speaker 00:
At what point in time?

[00:10:04] Speaker 00:
It's silent.

[00:10:05] Speaker 03:
It is silent.

[00:10:06] Speaker 03:
And the reason is that, Your Honor, my client, Distributed Solutions, was interested in getting into a contract with Afnafo.

[00:10:14] Speaker 03:
It gave them entree to the Department of Defense and future business prospects.

[00:10:19] Speaker 03:
There's no doubt about that.

[00:10:20] Speaker 03:
And they were willing to concede that they would allow use of the created version of software under this contract for the term of the contract without charging a specific license right to use.

[00:10:33] Speaker 03:
that they were getting maintenance fees and they were getting other payments during the term of the contract.

[00:10:38] Speaker 03:
And what DSI frankly eventually intended was to move FNAFPO to another product or if the contract ended, it had this limitation on the right to use that would allow it some recovery at that point in time.

[00:10:51] Speaker 01:
I guess the question is if we conclude that modification 15 clearly granted

[00:10:58] Speaker 01:
FNAFPO these continuous perpetual rights to use this software system.

[00:11:06] Speaker 01:
What is it about modification 22 that clearly truncates those rights?

[00:11:12] Speaker 03:
It is the plain language, Your Honor, that says this modification, not the escrow rights in this modification, is valid for the entire life of the contract, is valid.

[00:11:22] Speaker 03:
That clearly encompasses all three of the rights involved in mod 15.

[00:11:25] Speaker 01:
So does that mean

[00:11:27] Speaker 01:
your client's intellectual property rights are likewise truncated by modification 22.

[00:11:32] Speaker 01:
I mean, there's three parts of mod 15.

[00:11:34] Speaker 01:
That's right.

[00:11:36] Speaker 01:
The government's perpetual rights to use, the obligation to keep updating the code in the escrow, and then your company's IP rights.

[00:11:46] Speaker 01:
That's right.

[00:11:47] Speaker 01:
And then if you're trying to say that, well, all of that

[00:11:52] Speaker 01:
goes up in smoke at the end of the contract, and that also is a commentary on your IP rights.

[00:11:58] Speaker 03:
No, it's not, Your Honor.

[00:11:59] Speaker 03:
The parties, in fact, in the record, had long understood that the private contractor owned the software, and there's never been any dispute about that.

[00:12:07] Speaker 01:
Mod 15 was in front of that ownership.

[00:12:09] Speaker 01:
You're trying to get us to read Mod 22 as being really unambiguous, super unambiguous.

[00:12:15] Speaker 01:
That's right.

[00:12:16] Speaker 01:
Super unambiguous as to Mod 15.

[00:12:18] Speaker 01:
Will that necessarily

[00:12:20] Speaker 01:
references the third provision in mod 15, your company's IP rights.

[00:12:25] Speaker 01:
It does in fact.

[00:12:25] Speaker 01:
And I agree with you that it would be unreasonable to understand the scope of your IP rights as being terminated at the end of the contract.

[00:12:35] Speaker 01:
But then, you know, logically that also makes me think that likewise it's unreasonable to think that the government's right to use the software that it paid for also goes up in smoke at the end of the contract.

[00:12:49] Speaker 03:
But Your Honor, the third prong that you're referencing of Mod 15 talks about two things.

[00:12:53] Speaker 03:
It confirms DSI's ownership of the software, which nobody disputed because we had purchased it through an asset purchase agreement that the government approved.

[00:13:02] Speaker 03:
There was no dispute about that.

[00:13:03] Speaker 03:
But it also puts restrictions on AFNASPO's right to protect that ownership interest by limiting the entities to which it can allow use of

[00:13:13] Speaker 03:
the software.

[00:13:14] Speaker 03:
That was the real import of the third prong.

[00:13:16] Speaker 03:
And so if the mod were to end at the end of the contract, then obviously Afnafo has no more rights, no more responsibility to protect DSI's ownership interest.

[00:13:26] Speaker 03:
That was the import of the third prong.

[00:13:28] Speaker 03:
That's why it makes perfect sense for the rights to end at the end of the contract.

[00:13:32] Speaker 03:
No more source code, no more use, and no more responsibility to protect the use of software you're no longer using.

[00:13:38] Speaker 03:
It's entirely consistent with our argument.

[00:13:40] Speaker 01:
Didn't mod 15 also say that the government has the right to take the source code out of escrow and use it for its own purposes, build it out on its own, or even hire a third party to work on it?

[00:13:52] Speaker 01:
It does say that, your honor.

[00:13:53] Speaker 03:
But in order to use that source code, you've got to convert it to object code and put it into use.

[00:13:58] Speaker 03:
And the test of the record is clear that the duration of the use of source code is tied to the first problem of the right to use.

[00:14:08] Speaker 03:
And so there's an ability to use the source code for whatever purpose FNAPA wanted to look at it, to create new source code.

[00:14:17] Speaker 03:
But to put it into operation, you needed a right to use.

[00:14:19] Speaker 03:
And that was limited by the first prong of the model.

[00:14:24] Speaker 01:
We have to get the parole evidence, extrinsic evidence to understand the terms of this contract.

[00:14:30] Speaker 01:
Then do we have to dismiss this appeal because the disputes provision in the contract

[00:14:35] Speaker 01:
limits your right to appeal?

[00:14:38] Speaker 01:
No, Your Honor.

[00:14:39] Speaker 01:
Under the, I don't know, Mineson case?

[00:14:41] Speaker 03:
No, Your Honor, you do not.

[00:14:42] Speaker 03:
All you need are the findings of fact by this court.

[00:14:47] Speaker 03:
I see that I'm into my rebuttal time.

[00:14:51] Speaker 03:
But the findings here are that AFNAFCO was concerned about its right to use and the software that needed to continue to operate its IBPS system.

[00:15:02] Speaker 03:
It negotiated with DSI because DSI owned the software.

[00:15:06] Speaker 03:
FNAPPO had no other choice.

[00:15:07] Speaker 03:
DSI knew that FNAPPO software was at risk and agreed to enter into a contract under certain terms.

[00:15:14] Speaker 03:
It sent a draft novation agreement to FNAPPO.

[00:15:17] Speaker 03:
In it, it said Mod 15 is complete and accepted, and that meant that it was going to kill those rights and start over with a new negotiation.

[00:15:24] Speaker 03:
FNAPPO knew that.

[00:15:26] Speaker 03:
They understood it and drafted language.

[00:15:29] Speaker 03:
proposed as a counter-proposal to DSI's language, which said, this modification is valid for the entire life of the contract.

[00:15:36] Speaker 03:
AfNAPCO knew exactly what was going on.

[00:15:38] Speaker 03:
It drafted language to address its concerns, and its counter-proposal said, this modification is valid for the entire life of the contract.

[00:15:46] Speaker 03:
DSI understood it at the time to be a limitation to the contract term.

[00:15:51] Speaker 03:
That was a compromise it could live with, and so it moved on to other aspects and negotiated the rest of the contract.

[00:15:57] Speaker 03:
It was non-controversial.

[00:15:58] Speaker 03:
and it's entirely in keeping with the circumstances at the time where the parties, where EFNAPCO needed to get a deal done or else it was not going to have operative software.

[00:16:09] Speaker 03:
So why was it willing to compromise from DSI's perspective?

[00:16:12] Speaker 03:
Because DSI was the only one that could provide it with operating software.

[00:16:15] Speaker 03:
Thank you, Your Honor.

[00:16:16] Speaker 00:
I'll say the rest.

[00:16:16] Speaker 00:
Let's hear from the government.

[00:16:17] Speaker 00:
We'll save some rebuttal time.

[00:16:30] Speaker 00:
May it please the court, this court should dismiss the appeal for lack of jurisdiction, because unlike the 2014 Sufi case, which is cited in note one of the reply brief, which involved the very same instructions, there is no court of federal claims decision for this court to review.

[00:16:48] Speaker 02:
This court has no- Why isn't the lottery binding here?

[00:16:51] Speaker 02:
I mean, it's the same, you agree it's the same precise language.

[00:16:55] Speaker 02:
Why should we interpret the scope

[00:16:58] Speaker 02:
the waiver of sovereign immunity in the CDA differently from the waiver of sovereign immunity in the Tucker Act.

[00:17:04] Speaker 00:
Because the issue here is what was the intent of Congress in 1978 when it adopted the Contracts Disputes Act.

[00:17:13] Speaker 00:
That's the issue in this case.

[00:17:16] Speaker 00:
In 1978, it was understood by Congress and also it was the holdings of the Court of Claims that jurisdiction

[00:17:25] Speaker 00:
did not extend to the Nazis.

[00:17:27] Speaker 00:
And it was within that background that Congress went forward and adopted the contract.

[00:17:34] Speaker 01:
We're confronted with construing the exact same text that was being construed in flattery, right?

[00:17:43] Speaker 01:
The text in 1346 and 1491.

[00:17:48] Speaker 00:
That is the same language.

[00:17:50] Speaker 01:
Do you know of a case where the same text

[00:17:54] Speaker 01:
that's referenced another statute, got the opposite construction in a subsequent decision from a prior decision?

[00:18:05] Speaker 01:
Well, here, the question is... You don't know of one, right?

[00:18:10] Speaker 00:
No, I can't identify a case that answers your honest question.

[00:18:16] Speaker 00:
But here, the statutory language can be reasonably construed

[00:18:21] Speaker 00:
as it was by this court in the Packram pizza case, which is a precedent of this court where the court construed the language of the CDA as not extending jurisdiction to the federal circuit to review a board decision involving a NAFTA.

[00:18:40] Speaker 01:
So why was Judge Bryson's dissent wrong in Meinsen when he said, we're wrestling with the exact same language in the CDA and the Tucker Act.

[00:18:51] Speaker 01:
uh, if, you know, this court and bank has already construed that text a very particular way.

[00:18:58] Speaker 01:
And that particular way is does great violence to pack from pizza to the point where it's overruled.

[00:19:07] Speaker 00:
There were several prongs to this court's decision in the slavery case.

[00:19:11] Speaker 00:
And one of the prongs is its analysis

[00:19:13] Speaker 00:
of the 1970 amendment and the legislative history.

[00:19:18] Speaker 00:
And the court viewed that legislative history as Congress deciding to plug a judicially created loophole, I believe is the language.

[00:19:30] Speaker 00:
And that was the extent of Congress's intent.

[00:19:33] Speaker 00:
Here, Congress's intent, as shown in the Senate report that's quoted in our brief pages 27 to 28, is very clear.

[00:19:42] Speaker 00:
Congress made a decision.

[00:19:43] Speaker 00:
Knowing that at that time the court's court of claims jurisdiction did not extend to all of the NAFIs, Congress decided that there were sufficient remedies and that it did not need to extend CBA jurisdiction to any additional NAFIs or to all NAFIs.

[00:20:03] Speaker 01:
What about the legislative history to the 1970 amendment of the tougher act where I think it was the Senate bill.

[00:20:11] Speaker 01:
tried to include all NAFIs in the waiver of sovereign immunity to the Tucker Act.

[00:20:16] Speaker 01:
And then the House bill amended that, restricted it down just to the military exchanges.

[00:20:21] Speaker 01:
And then that's what actually passed.

[00:20:24] Speaker 01:
And nevertheless, you know, we and Bonk and Slattery said this sovereign immunity applies to all of the NAFIs.

[00:20:34] Speaker 01:
And so we're kind of left in the same situation here as

[00:20:40] Speaker 01:
as what happened in Flattery.

[00:20:44] Speaker 01:
The legislative history only goes so far, I guess is the point I'm trying to make.

[00:20:49] Speaker 00:
The legislative history regarding the Tucker Act only went so far as this court stated in Flattery.

[00:20:55] Speaker 00:
Here, the legislative history goes exactly to the question before the court.

[00:21:01] Speaker 00:
It addresses whether there should be included within the scope of the CDA

[00:21:08] Speaker 00:
any additional NAFIs.

[00:21:10] Speaker 00:
And it states that because the existing remedies were viewed as adequate, the Congress would not go any further in extending CDA jurisdiction.

[00:21:22] Speaker 00:
And I would point out with regard to the existing remedies, the existing remedies for NAFI contracts were broad because they contained a disputes clause which was different from the disputes clause that would be found

[00:21:37] Speaker 00:
and other government contracts.

[00:21:39] Speaker 00:
The Disputes Clause extended to breach of contract, as well as violations of the terms of the contract.

[00:21:46] Speaker 00:
And one case where this would be set out is the Rainbow Valley Corporation Board case, where it- Someone like DSI go to the Court of Federal Claims?

[00:21:56] Speaker 00:
That is where it should have gone.

[00:22:00] Speaker 02:
It should have appealed from- So you agree that under the Wunderlich Act, this case could still

[00:22:06] Speaker 02:
get reviewed in the Court of Federal Claims and then ultimately up here?

[00:22:11] Speaker 00:
Well, under the Wonder Lookback, in addition to the Tucker Act, because the Wonder Lookback is not itself a jurisdictional statute.

[00:22:20] Speaker 00:
There's Court of Claims decisions pointing out that the Wonder Lookback is not jurisdictional.

[00:22:25] Speaker 00:
But yes, it could have appealed from the board decision to the Court of Federal Claims, which is precisely the route that was used in the 2004 Sufi case

[00:22:36] Speaker 00:
that this court decided.

[00:22:38] Speaker 02:
But that's only for cases that were still viable under the Wunderlich Act, which has been repealed, right?

[00:22:44] Speaker ?:
Excuse me?

[00:22:45] Speaker 02:
I mean, the Wunderlich Act's been repealed, right?

[00:22:48] Speaker 02:
So going forward, what would people in DSI's situation do?

[00:22:55] Speaker 00:
Our case, the facts in our case are just like the facts in... No, I understand.

[00:23:01] Speaker 02:
But let's say they're not covered by the Wunderlich Act.

[00:23:05] Speaker 02:
It's been repealed.

[00:23:06] Speaker 02:
They didn't bring their claim in it.

[00:23:08] Speaker 02:
They bring a case to the board under the Disputes Clause.

[00:23:13] Speaker 02:
Can they still go to the Court of Federal Claims?

[00:23:17] Speaker 00:
They can bring a case before the board under the Disputes Clause and then appeal to the Court of Federal Claims under the Tucker Act.

[00:23:26] Speaker 00:
That's what DSI could have done.

[00:23:28] Speaker 00:
It's precisely the same NAFTA.

[00:23:32] Speaker 02:
I'm not sure that we're on the same page on this.

[00:23:36] Speaker 02:
I understand in this case, because of the availability of the Wonder Look Act, without the Wonder Look Act, can they appeal a board decision to the Court of Federal Claims?

[00:23:46] Speaker 00:
The Wonder Look Act is only a scope of review.

[00:23:50] Speaker 02:
Okay, I know, but you're not answering my question.

[00:23:52] Speaker 02:
Setting aside the Wonder Look Act, is there anything that allows you to appeal a board decision to the Court of Federal Claims?

[00:24:02] Speaker 00:
The Court of Federal Claims has broad contract jurisdiction.

[00:24:06] Speaker 02:
OK.

[00:24:06] Speaker 02:
So I see what you're saying.

[00:24:07] Speaker 02:
But how is that something that gives you a right of appeal?

[00:24:11] Speaker 02:
Wouldn't they have to just file in the Court of Federal Claims?

[00:24:16] Speaker 02:
They're not covered by the CDA.

[00:24:19] Speaker 02:
So how could they seek?

[00:24:24] Speaker 02:
And they're not covered by the Wonderland Act.

[00:24:27] Speaker 02:
How could they go to the board and then the Court of Federal Claims?

[00:24:29] Speaker 00:
They go to the board under the board's charter.

[00:24:32] Speaker 02:
That's how they went to... I understand that, but how would they... What gives the Court of Federal Claims a right to judicial review, not a de novo Tucker Act action, judicial review of a board decision after the repeal of the Winter Lict Act?

[00:24:50] Speaker 00:
It has broad jurisdiction pursuant to the Tucker... Over contracts claims, but not judicial review.

[00:24:58] Speaker 02:
Do you know of any cases where the Court of Federal Claims gets judicial review, apart from the Wunderlich Act, gets judicial review of board cases?

[00:25:09] Speaker 02:
That's not the way it works, right?

[00:25:12] Speaker 02:
Going back to the CDA, they can either go to the Court of Federal Claims or they can go to the board, but they can't go to the board and then go to the Court of Federal Claims.

[00:25:24] Speaker 02:
The only thing that permitted them to do that previously was the Wunderlich Act, but that's

[00:25:28] Speaker 00:
Well, in this case, the Wonderland Act still applies to DSI.

[00:25:34] Speaker 02:
I know, but I'm not asking you about this case.

[00:25:36] Speaker 02:
I think you've conceded that they could get this case to the Court of Federal Claims.

[00:25:40] Speaker 02:
I'm worried about what happens in cases going forward where the Wonderland Act doesn't apply because it was repealed.

[00:25:48] Speaker 00:
Can you do a quick answer?

[00:25:50] Speaker 00:
I understand.

[00:25:50] Speaker 00:
I'm sorry.

[00:25:51] Speaker 00:
I think I asked you.

[00:25:52] Speaker 02:
That's OK.

[00:25:54] Speaker 02:
I think I... You can move on to Merit.

[00:25:57] Speaker 00:
OK.

[00:25:57] Speaker 00:
All right, if I could proceed to the merits then.

[00:26:01] Speaker 00:
In this case, the board correctly construed modification 22 as a plain language, not taking away the government's everlasting right to use the software.

[00:26:20] Speaker 00:
This was a right that was guaranteed to the government in modification 15.

[00:26:24] Speaker 00:
The board read

[00:26:27] Speaker 00:
of Modification 22 as being a series of paragraphs that went through the contractor's responsibilities and obligations under the contract and set out all of those responsibilities.

[00:26:41] Speaker 00:
And it was the modifications that assigned work to the contractor.

[00:26:46] Speaker 01:
I guess the concern is that Modification 22, it doesn't limit itself to certain aspects of Modification 15.

[00:26:54] Speaker 01:
We just talked about Modification 15 in general.

[00:26:57] Speaker 01:
So why wouldn't modification 22 then, just by terms of normal interpretation, apply to all aspects of modification 52?

[00:27:09] Speaker 00:
Because it uses the language complete, and it's in the context of all the other paragraphs, which set out when work would be considered complete and accepted by the government.

[00:27:20] Speaker 00:
So this sentence

[00:27:22] Speaker 00:
which talks about being valid for the entire life of the contract and will not be considered complete until the contract is closed, the only thing that that can apply to is a responsibility, an obligation of the contractor.

[00:27:37] Speaker 00:
That's the only thing that could be considered complete and accepted by the government.

[00:27:41] Speaker 00:
And the only thing that could be considered complete and accepted by the government was the escrow obligations that were part of modification 15.

[00:27:51] Speaker 00:
And that's what the board held.

[00:27:53] Speaker 00:
It read the paragraph in the context of all the other paragraphs which deal with contractor responsibility and obligations under the contract.

[00:28:03] Speaker 00:
It also stated that it also construed it in light of the purposes of the agreement.

[00:28:10] Speaker 00:
The purposes of the agreement was to bring the novation agreement into the contract.

[00:28:15] Speaker 00:
And secondly, it construed it consistent with common sense.

[00:28:19] Speaker 00:
It doesn't make common sense that the government, having acquired this everlasting right to go forward and use this software for all times, would then give it up for no consideration, no cash, in a modification which was intended to bring on a successor.

[00:28:39] Speaker 00:
We also pointed to the FAR clauses, which are part of the modification.

[00:28:44] Speaker 00:
And this is FAR clause 42.1204i, which says that the government is not obligated to pay any cost or expense resulting from the transfer, other than those that it would have paid under the original agreement.

[00:28:58] Speaker 00:
And there was no charge under the original agreement for using the software, and the transfer did not change that.

[00:29:08] Speaker 00:
The board first

[00:29:11] Speaker 00:
looked at the language of the agreement, found that it did not unambiguously take away the government's right.

[00:29:18] Speaker 00:
And then DSI had made arguments based on the extrinsic evidence.

[00:29:24] Speaker 00:
So it went forward and it assessed the extrinsic evidence.

[00:29:27] Speaker 00:
And as we stated in our brief, and as DSI is making arguments which are contrary to the factual findings of the board.

[00:29:39] Speaker 00:
I'll point a few of them out here

[00:29:42] Speaker 00:
First of all, the board made a finding that the proposal that was put forward by DSI did not clearly or unequivocally communicate an intent to divest the perpetual right.

[00:29:59] Speaker 00:
This is a finding conclusion of the board and DSI in its briefs and today at all argument continues to argue contrary to that factual finding.

[00:30:09] Speaker 00:
uh, finding that was supported by the record.

[00:30:13] Speaker 00:
So DSI never put this perpetual right of the government on the bargaining table.

[00:30:18] Speaker 00:
And the government then responded with its own proposal, which corrected in an accuracy in terms of the contractor's responsibilities and pointed out that the responsibilities and modification 15 were not complete and accepted by the government that they would continue on until the contract was closed.

[00:30:39] Speaker 00:
So in this case, we think the board's decision is very clear.

[00:30:49] Speaker 00:
The plain language does not support the interpretation that was put forward by DSI taking away the government's everlasting rights.

[00:30:59] Speaker 00:
And secondly, the extrinsic evidence did not support the argument.

[00:31:08] Speaker 00:
Any questions in this question?

[00:31:10] Speaker 00:
Thank you in this question.

[00:31:12] Speaker 00:
Thank you.

[00:31:16] Speaker 00:
Mr. Calder, you have a couple of minutes to rebuttal.

[00:31:18] Speaker 03:
Thank you very much, Your Honor.

[00:31:20] Speaker 03:
Let me start very quickly with a couple of points on the merits.

[00:31:23] Speaker 03:
Again, we assert that the plain meaning is this modification is valid, referring to all parts of the modification.

[00:31:29] Speaker 03:
The court, the board never found any other contrary interpretation.

[00:31:33] Speaker 03:
There is nowhere in this opinion where it says what that language means.

[00:31:37] Speaker 03:
What the government says it means

[00:31:38] Speaker 03:
is the escrow duties in this modification.

[00:31:41] Speaker 03:
You cannot get there without importing words into language drafted by the government.

[00:31:47] Speaker 03:
And why it makes sense in this case is because the judge is fundamentally wrong in his assessment of what the parties knew during contract negotiations.

[00:31:55] Speaker 03:
He assumes that DSI knew that the language drafted by the government, this modification is valid for the entire life of the contract, meant that the government only was referring to escrow duties.

[00:32:06] Speaker 03:
That meaning was never communicated

[00:32:09] Speaker 03:
other than through the language that the government sent to DSI.

[00:32:12] Speaker 03:
On the other hand, he assumes that Afnafo had no idea that DSI was trying to limit its right to use.

[00:32:19] Speaker 03:
That is contrary to its own findings.

[00:32:22] Speaker 03:
DSI sent a proposal that said, we're going to eliminate mod 15 in its entirety.

[00:32:28] Speaker 03:
Janice Jones, the deputy director of Afnafo at the time said,

[00:32:32] Speaker 03:
that language would have taken away what we had just put into the mod and would have affected our right to use IBPS forever.

[00:32:40] Speaker 03:
And she was speaking for the IBPS team, not for herself.

[00:32:44] Speaker 03:
They met about that concern and others and drafted the language at issue that says this modification is valid for the entire life of the contract.

[00:32:52] Speaker 03:
That has to be read as referring to all three based on the court's own findings.

[00:32:57] Speaker 03:
And even if, and again, this is in the context of

[00:33:01] Speaker 03:
Afnafco having the right to use software perpetually that was going to be useless.

[00:33:07] Speaker 03:
And so it was willing to negotiate.

[00:33:09] Speaker 03:
That's clear in the language that it sent back to DSI.

[00:33:12] Speaker 03:
DSI was reasonable in interpreting it in that very manner.

[00:33:16] Speaker 03:
In terms of complete and accepted, the reason complete is in there

[00:33:20] Speaker 03:
is because the reason that complete is in the language is because it was a direct response to DSI's proposal that the mod be considered complete.

[00:33:30] Speaker 03:
The language of and accepted is not in mod 22, contrary to the government statement.