[00:00:00] Speaker 04:
Next case is Guardian Angels Medical Service versus United States.

[00:00:31] Speaker 04:
Mr. David, and you reserve three minutes to rebuttal time.

[00:00:36] Speaker 00:
Is that correct?

[00:00:37] Speaker 00:
That's correct.

[00:00:37] Speaker 00:
Good morning.

[00:00:41] Speaker 00:
May it please the court.

[00:00:42] Speaker 00:
Uh, we're here for really one very simple reason.

[00:00:45] Speaker 00:
That's the case has been dismissed on a motion to dismiss for failure to timely file with the court of claims.

[00:00:53] Speaker 00:
Uh, what I want to do, your honors is just kind of take a four point roadmap here.

[00:00:57] Speaker 00:
And that being the first thing is to lay down some background with some dates, which I think are going to be relevant to this analysis.

[00:01:04] Speaker 00:
The second is really a plain reading of the law as it applies to the contract and to any contractor that's in a similar situation.

[00:01:13] Speaker 00:
The third part is really the application of Malone educators and the progeny of those cases as they would apply to the way the judge ruled in the court of claims.

[00:01:24] Speaker 00:
And then the last,

[00:01:25] Speaker 00:
would be the fourth point is this tolling analysis under Arono, which is basically a bizarre derogation of this Malone analysis.

[00:01:36] Speaker 04:
Here's a couple of issues that I'm interested in.

[00:01:41] Speaker 04:
You received a letter of default termination on August 2012.

[00:01:45] Speaker 04:
And then four months later, Guardian Angel sends a letter to the VA citing defamation and breach of contract.

[00:01:56] Speaker 04:
Then on February 2013, this is about what, five, six months later, you send a letter to the contracting officer.

[00:02:05] Speaker 04:
None of those letters offered or provided the, and then there's a subsequent letter, but none of those letters provided the information that would substantiate your claim.

[00:02:20] Speaker 00:
And so part of the issue, if you, if you run through your honor and that's, that's correct.

[00:02:24] Speaker 00:
I don't disagree with your honor.

[00:02:25] Speaker 04:
I find that real relevant that, that you're, you're, you're challenging a default termination, which is, you know, and you're saying that this should have been a termination by convenience, but yet you never supply the information that, that, that you rest your letters on.

[00:02:41] Speaker 00:
Well, and so there was a window of opportunity in which we were, uh, when I say we, the contractors waiting for a response either from

[00:02:50] Speaker 00:
the VA or from the contracting officer.

[00:02:53] Speaker 00:
And so what's relevant here is the setting up of that background, Your Honor.

[00:02:57] Speaker 00:
And that is that you receive this first default termination on August 31st, 2012.

[00:03:03] Speaker 00:
What's important in that default termination, and again, we should look at as the court, is the language.

[00:03:08] Speaker 00:
And it says in that default that the contractor has the right to appeal under the disputes clause.

[00:03:15] Speaker 00:
Nothing more.

[00:03:16] Speaker 00:
No timelines, nothing else.

[00:03:18] Speaker 00:
That's all it says.

[00:03:19] Speaker 04:
When you go back and you look at the law that applies under the FAR for a default termination, wouldn't that have alerted you to have preserved your appeal somehow, either by filing for an appeal or?

[00:03:33] Speaker 04:
By presenting information, adequate to support a claim for reconsideration or something of that nature.

[00:03:39] Speaker 00:
Well, and that was in the works and that was the issue.

[00:03:41] Speaker 00:
But you never did do that.

[00:03:42] Speaker 00:
Well, there was no opportunity until the... You had six, seven months.

[00:03:48] Speaker 00:
Your honor, I don't disagree with your honor that it would have been more prudent to have all of that presented immediately.

[00:03:54] Speaker 04:
It may have made all the difference in the world.

[00:03:56] Speaker 04:
I mean, you're asking us to toll the statute, but yet nothing really substantially happened after

[00:04:03] Speaker 04:
you received the default termination letter, the initial one.

[00:04:08] Speaker 00:
Well, and again, Your Honor, I think part of this is, I don't disagree with Your Honor that that's the facts, and that's what it is, that the information was being gathered, and I'll tell Your Honor that just proffering, which is irrelevant at this point.

[00:04:26] Speaker 00:
The contractor was gathering information to present and then received the final letter, which the contractor is saying is the final letter, letter in May, May 5th, 2013.

[00:04:39] Speaker 00:
And in that letter, again, the language being important, the letter specifically says there that under the disputes clause that you have the right to appeal 7104 subsection B, which would then be the 12 month period.

[00:04:53] Speaker 00:
to bring you to the court of claims to file the complaint.

[00:04:56] Speaker 00:
And that was the May letter, not the August 31st letter.

[00:05:01] Speaker 00:
And so with the issue I think that I try to present under that backdrop is that you have a contractor who receives a letter says default termination.

[00:05:10] Speaker 00:
The contractor is a simple contractor raises service animals, not sophisticated construction contractor or anything else for that matter.

[00:05:19] Speaker 00:
They figure out, well, wait a second, what happened and why did this happen and why is this contract being canceled?

[00:05:25] Speaker 00:
When they finally have an opportunity to put that together, they say, wait a second, okay, we understand we went through several iterations of this contract.

[00:05:32] Speaker 00:
This contract can be terminated, but not for cause, for convenience.

[00:05:38] Speaker 00:
Now that issue isn't raised until the contracting officer actually receives something back from the contractor.

[00:05:45] Speaker 00:
There's no objection to saying, okay, we're going to terminate the contract.

[00:05:49] Speaker 00:
Both sides could be in agreement there, but until a claim is actually made to say, we're okay with you terminating, but it's going to have to be one of convenience and not of cause.

[00:05:58] Speaker 00:
And then we have that discussion.

[00:06:00] Speaker 00:
And so in essence, where I think moving to really now the second point, because I know your honors are well versed with 41 USA 71, which is, which applicable pursuant to the FAR 52-233-1 is for us in this contract.

[00:06:15] Speaker 00:
is that we now move to Malone and Malone's project.

[00:06:20] Speaker 00:
And this whole concept, and I don't think Malone got it wrong.

[00:06:25] Speaker 00:
The truth is I think Malone got it right.

[00:06:28] Speaker 00:
And what Malone was saying was something very simple, is that this contractor didn't file a claim before, and this is an important distinction, going to the board, not the court of claims.

[00:06:41] Speaker 00:
So this contractor didn't make a claim before going to the board of appeals.

[00:06:47] Speaker 00:
And so what had happened then under that circumstance in Malone, Malone said that Congress passed a law expanding the jurisdiction that claims would not have to be made prior to becoming here.

[00:07:00] Speaker 00:
Malone never stood for the premise that we're going to retract or make smaller the right of the litigant to go through the other portions of the law.

[00:07:12] Speaker 00:
And really pursuant to that, if you go to, and I think it's even more important, Malone itself, quoting from page 1444, court says, because the claims court has held that it does not have jurisdiction over the validity of a default termination absent a claim for money by either a contractor or the government, the government contends that the board does not have jurisdiction over the case.

[00:07:41] Speaker 00:
And this is the critical point in Malone and it should have never been expanded in the way it was through the rest of the cases.

[00:07:47] Speaker 00:
And now we're headed down this juggernaut path in which the courts have realized that there is an error or a problem here.

[00:07:53] Speaker 00:
And we've created this tolling period, which is again, another bizarre iteration coming down this kind of poisonous progeny.

[00:08:01] Speaker 00:
And that is, this is what Malone said.

[00:08:03] Speaker 00:
The court has not yet considered, nor does it now consider the validity of the court of claims precedents just noted.

[00:08:10] Speaker 00:
The Malone court never touched anything that had to do with the court of claims.

[00:08:15] Speaker 00:
And all they said was something very simple that the board, the contractor does not have to be bounced around to the contracting officer and then back to go to the board under a default.

[00:08:29] Speaker 01:
And so Malone say that when the contracting officer issues a written decision, terminating a contract for default, that is, that is a government

[00:08:41] Speaker 01:
claim and now that triggers 7103 and 7104.

[00:08:48] Speaker 01:
And so the logic is that now that you, the contractor, has that final written decision from the contracting officer, you have 90 days to go to an agency board or you have 12 months to go to the court of federal claims.

[00:09:05] Speaker 01:
after receiving that written decision from the contracting office.

[00:09:09] Speaker 00:
The issue with that is, is, is just that Malone does not say that Malone says that they can, they may.

[00:09:16] Speaker 01:
That's what follows after you've concluded that a termination for default serves as a contracting officer's final written decision on a government claim.

[00:09:26] Speaker 00:
I understand, and I guess what I'm trying to bring up is that this case is not one that's been, let's call it unique before this court, nor has it been unique before the federal court of claims.

[00:09:37] Speaker 00:
And this type of case will keep coming up again and again until the law is plain and clear.

[00:09:42] Speaker 00:
And that is that either the law directly states in writing passed by Congress somewhere in a statute with bicameralism and presentment that a contract terminated for default must

[00:09:55] Speaker 00:
shall be filed immediately with the court of claims.

[00:09:59] Speaker 00:
That's not what it says when you go to 7103 or 7104.

[00:10:04] Speaker 00:
And so what we have under those is that you have to make the claim to the contracting officer.

[00:10:10] Speaker 00:
And so my point is exactly as Malone said, look, we're not going to make you go back to the contracting officer.

[00:10:17] Speaker 00:
We understand you got a claim, you made the claim here, that's sufficient.

[00:10:21] Speaker 00:
We're not

[00:10:23] Speaker 00:
making smaller jurisdiction, we're expanding jurisdiction.

[00:10:27] Speaker 04:
Let me ask you a question.

[00:10:28] Speaker 04:
On your February 28 letter that went to the VA, it says, close to the end, I guess it would be, you say that, you're referencing some costs.

[00:10:44] Speaker 04:
And you say the costs are attached to Q&A and marked as Exhibit D. What was in Exhibit D?

[00:10:53] Speaker 04:
Is that part of the record before us?

[00:10:56] Speaker 04:
I believe it should be.

[00:10:58] Speaker 04:
And if it was, it was a... He's leading on the contracting officer saying he never did submit any information.

[00:11:08] Speaker 00:
And that's abundantly... I mean, that's not true, but that's part of the issue we face now.

[00:11:13] Speaker 00:
We're closed from that opportunity.

[00:11:15] Speaker 04:
Where is Exhibit D?

[00:11:17] Speaker 00:
If it's not a part of the record, Exhibit D, I believe, would have been a list of segregated costs.

[00:11:22] Speaker 00:
It wouldn't have been the receipts and the totals.

[00:11:26] Speaker 04:
The only thing we have on the record is a letter from the VA saying, you haven't submitted any information today whatsoever.

[00:11:35] Speaker 04:
They use the word whatsoever.

[00:11:38] Speaker 00:
And it's not the VA technically, your honor.

[00:11:41] Speaker 00:
It would have been the contracting office.

[00:11:43] Speaker 00:
And so again, the reason why that's important is if we're going to move to not just the discussion that we had with Malone and its progeny, but to Orono's case and this derogation of, again, what I'm saying to your honors really should be rectified by correcting the progeny of Malone.

[00:11:59] Speaker 00:
But if we even go down this path of Orono's, that's just it.

[00:12:04] Speaker 00:
We've presented it.

[00:12:06] Speaker 04:
And if you look at the communications back... But we don't know that he presented it.

[00:12:11] Speaker 04:
You can't even cite it.

[00:12:12] Speaker 04:
I mean, you don't even know if it's in the record or not.

[00:12:15] Speaker 00:
I believe it is in the record, Your Honor.

[00:12:17] Speaker 00:
We're in the record.

[00:12:19] Speaker 00:
It wouldn't have been attached as Exhibit D if it wasn't.

[00:12:21] Speaker 00:
I apologize to the court, but that's where I believe it was.

[00:12:24] Speaker 00:
We went, government and I went through it.

[00:12:28] Speaker 00:
So I guess what I'm kind of getting to in that Aronos case and why that's important is just that if you take Aronos,

[00:12:35] Speaker 00:
Your honor.

[00:12:36] Speaker 00:
And you look at really the communications that had happened back and forth.

[00:12:39] Speaker 00:
There were several communications between the contractor and the government and the contracting officer.

[00:12:46] Speaker 04:
Okay.

[00:12:46] Speaker 04:
You're, you're, you're into your rebuttal time.

[00:12:49] Speaker 04:
Um, so let's, let's stop here.

[00:12:50] Speaker 00:
Thank you.

[00:12:51] Speaker 04:
Mr. Bigler, you may proceed.

[00:13:03] Speaker 02:
May I plead the court.

[00:13:07] Speaker 02:
The trial court correctly dismissed Guardian Angels complaint for lack of jurisdiction because Guardian Angels failed to file that complaint within 12 months of receiving the termination for default decision from the contracting officer.

[00:13:19] Speaker 02:
In fact, we are here today because Guardian Angels refuses to acknowledge that a termination for default is a government claim that is final and appealable to the court of federal claims.

[00:13:29] Speaker 02:
And if the contractor chooses to appeal it to the court of federal claims, it must do so within 12 months.

[00:13:34] Speaker 01:
Do you think the 12 months

[00:13:36] Speaker 01:
time limit in the statute is jurisdictional, or is it just the claim processing rule?

[00:13:42] Speaker 02:
No, Your Honor, it's jurisdictional.

[00:13:45] Speaker 01:
Well, how do we know that?

[00:13:46] Speaker 01:
The Supreme Court is on the march.

[00:13:49] Speaker 01:
Every term it seems to find a new case, a new statutory time limit where it finds that these time limits are just claim processing rules.

[00:13:59] Speaker 01:
They're not jurisdictional.

[00:14:01] Speaker 02:
Well, in the Court of Federal Claims, though, it's different because in the Court of Federal Claims,

[00:14:05] Speaker 02:
uh, can only hear claims where Congress is waived sovereign immunity and the law 41 USC 7104 specifically states that you can bring your case within 12 months of the contracting officer's final decision.

[00:14:19] Speaker 02:
And so obviously the Congress is waived sovereign immunity during that 12 month period, but after that it has not, so it's jurisdictional.

[00:14:28] Speaker 03:
Why isn't the, um, calendar of May 3rd the final decision?

[00:14:34] Speaker 02:
It's not a final decision.

[00:14:37] Speaker 02:
The only way it could possibly be a final decision would be if the contracting officer had reconsidered her earlier termination for default.

[00:14:45] Speaker 02:
But there's no evidence that that occurred here.

[00:14:47] Speaker 02:
Plaintiff has the burden of showing.

[00:14:50] Speaker 03:
There's evidence to that effect.

[00:14:51] Speaker 03:
She said that she wanted more information.

[00:14:54] Speaker 03:
And then somewhere down the road, she didn't get it or she wasn't happy with it.

[00:14:59] Speaker 03:
And then she issued this letter and says,

[00:15:02] Speaker 03:
you know, I've decided that I'm not going to reconsider it, but she was.

[00:15:06] Speaker 03:
She had that period of time when it was under advisement.

[00:15:09] Speaker 02:
Well, what she said in the letter was, I received your claim and I'm unable to evaluate it without this supporting documentation.

[00:15:18] Speaker 02:
Once you provide that information, I will look at it in a court and I'll respond in accordance with the federal acquisition regulations.

[00:15:25] Speaker 02:
The federal acquisition regulations don't say anything about reconsideration.

[00:15:29] Speaker 02:
That's an idea that comes from

[00:15:32] Speaker 02:
the claims court decisions.

[00:15:33] Speaker 02:
So reading that her letter, it appears she thought that they had submitted a claim and as a contracting officer, she was going to respond to it once she received the supporting documentation, but because she never received it, she never evaluated it and she never did anything.

[00:15:50] Speaker 02:
And then she explicitly states, I have not reconsidered my termination for default decision and I will not do so.

[00:15:57] Speaker 03:
Well, it doesn't matter what she said, it's what she did, no matter how she characterized it.

[00:16:02] Speaker 03:
And it seems to me that if she invited information to fill in the blanks on his reconsideration request, and then for reasons unknown, maybe she just didn't want to wait any longer, she said, okay, I'm terminating it.

[00:16:20] Speaker 03:
I'm confirming my original decision.

[00:16:23] Speaker 02:
But she didn't do anything.

[00:16:24] Speaker 02:
I think what she said was, I will evaluate it when I get that information.

[00:16:27] Speaker 02:
And because she never received it, she never did that.

[00:16:29] Speaker 02:
for her to reconsider her decision, she would have to go back through the reasons that she made the termination for default decision in the first place, which would mean she'd likely have to go to the contract file, look through the things that she looked at in coming to the termination for default decision.

[00:16:46] Speaker 02:
There's no evidence she did that.

[00:16:47] Speaker 04:
The only evidence is... She does say in her letter, she says, at this time the VA is unable to reasonably evaluate or respond to your claim.

[00:16:56] Speaker 04:
due to a lack of supporting documentation.

[00:16:58] Speaker 04:
Then it goes on and requests that they supply support.

[00:17:01] Speaker 04:
Well, when she says the VA is unable to reasonably evaluate or respond to your claim, doesn't that mean that they went back to the file and to see what's there?

[00:17:13] Speaker 04:
And they say, well, there's not enough here for us to reasonably evaluate your claim, give us more information.

[00:17:19] Speaker 04:
Doesn't that reopen the inquiry?

[00:17:23] Speaker 02:
I think she's looking at their

[00:17:26] Speaker 02:
claim that they submitted and she's saying, I can't evaluate this without the supporting documentation.

[00:17:31] Speaker 02:
There's no evidence she went back and looked at the file and anything, you know, what she would have done had they provided the information is purely speculation.

[00:17:40] Speaker 04:
And that's not enough to... When she looks at the letter that was sent and based on that letter, she cannot reasonably make a decision one way or the other.

[00:17:50] Speaker 04:
And she's asking for additional information.

[00:17:52] Speaker 04:
Doesn't that roll back the default termination timing?

[00:17:58] Speaker 02:
No, because what she says is I can't make an evaluation and once I receive this information, I will evaluate it.

[00:18:04] Speaker 04:
Would this case be different had they supplied some information like a week after this letter?

[00:18:09] Speaker 02:
It might have, but that again, that would be speculation and that's not enough for plaintiffs to meet their burden to show that there's jurisdiction.

[00:18:18] Speaker 01:
In fact,

[00:18:19] Speaker 01:
Two months later, the contracting officer sent a second letter after not hearing anything from the appellant and stated, I have not and shall not reconsider that decision.

[00:18:34] Speaker 01:
So wasn't the appellant on notice that whatever letter that had been filed back in February had never actually been evaluated and now it's not going to be evaluated?

[00:18:46] Speaker 01:
Exactly.

[00:18:47] Speaker 02:
They were on notice and she again mentioned the time period.

[00:18:51] Speaker 02:
She again mentioned 41 USC 7104 and the appeal period in that letter.

[00:18:56] Speaker 04:
I thought that was curious or interesting that she uses that language.

[00:18:59] Speaker 04:
It seems to me that saying that had you supplied some information before I wrote this letter, then this could have been a reconsideration.

[00:19:14] Speaker 02:
You could interpret it that way, but still that's not enough to help the guardian angels here.

[00:19:21] Speaker 02:
She didn't reconsider it.

[00:19:22] Speaker 02:
She might have had they provided the information, but she didn't.

[00:19:27] Speaker 02:
And we know what she would have done had they provided it.

[00:19:30] Speaker 01:
I'm slightly concerned.

[00:19:32] Speaker 01:
I mean, if you had responded to Judge Raina's question with any time someone perfects a reconsideration request,

[00:19:42] Speaker 01:
with not only an argument of the claim, but also all kinds of supporting documentation, then the contracting officer will in fact reconsider her initial decision to terminate.

[00:19:56] Speaker 01:
And then that would toll the clock.

[00:19:59] Speaker 01:
But in this particular instance, that didn't happen.

[00:20:03] Speaker 01:
There was no meaningful attempt to perfect the initially defective request for reconsideration.

[00:20:12] Speaker 01:
So I'm just trying to understand the process here.

[00:20:16] Speaker 01:
When somebody supplies and files a perfected request for reconsideration from an adverse contracting officer's decision to terminate, are you saying it's purely, wholly optional and discretionary on whether the contracting officer can or will entertain that request for reconsideration?

[00:20:38] Speaker 02:
That's exactly right.

[00:20:40] Speaker 02:
It's reconsideration if the contracting officer receives all the requests.

[00:20:45] Speaker 02:
And at that point, maybe they have two choices.

[00:20:48] Speaker 02:
They could just send a quick letter back saying, I got your request for reconsideration, and I'm not going to consider it.

[00:20:53] Speaker 02:
I'm not going to reconsider my decision.

[00:20:55] Speaker 02:
Or they could say, oh, I got your request, and I'm going to reconsider it, and I'll get back to you later.

[00:21:00] Speaker 02:
And the cases specifically talk about did the contracting officer spend some time reviewing their request and reevaluating the earlier decision.

[00:21:10] Speaker 02:
Not only did she not do that, she explicitly said she didn't do that.

[00:21:14] Speaker 02:
She didn't even have the information because they never provided it to do that.

[00:21:19] Speaker 04:
Is this really a question about jurisdiction or is it one about agency filing deadline?

[00:21:26] Speaker 04:
And ask that in view of what is Sikorsky's case.

[00:21:30] Speaker 02:
It's not an agency filing deadline.

[00:21:33] Speaker 02:
It's a deadline once you receive a final decision to go to the court of federal claims or to the board, which they could have done in the 90 day period.

[00:21:40] Speaker 02:
But if they don't go to the board or go to the court of federal claims, then it's jurisdictional with respect to the court of federal claims.

[00:21:51] Speaker 03:
But if they had submitted something that does delay the debt tolls the year long time to file it, the court of federal claims.

[00:22:01] Speaker 02:
It would depend on what the contracting officer did with the information, whether she reconsidered her termination for default or whether she thought, oh, this is

[00:22:10] Speaker 02:
a separate claim, they have some separate claim for some separate damages that they want.

[00:22:15] Speaker 02:
I think it's hard to answer that question, but in this... Well, I think you've answered it.

[00:22:21] Speaker 03:
It does call it in certain circumstances.

[00:22:25] Speaker 03:
We have to decide whether this is one of them.

[00:22:28] Speaker 02:
Correct.

[00:22:29] Speaker 02:
And the court of federal claims did that based on the evidence that she had before her.

[00:22:34] Speaker 02:
And she came to the conclusion that the factual conclusion that the

[00:22:40] Speaker 02:
that the contracting officer reviewed the letter, couldn't evaluate it, asked for more information, and stated, once I receive that information, I will evaluate it in accordance with the federal acquisition regulations.

[00:22:53] Speaker 04:
So at this point, don't we have an open pending reconsideration?

[00:22:59] Speaker 02:
Well, it's hard to say what Guardian Angels was asking for.

[00:23:05] Speaker 02:
It appears to me.

[00:23:05] Speaker 04:
Well, no, no.

[00:23:06] Speaker 04:
The contracting officer has requested additional information.

[00:23:09] Speaker 04:
At that point in time, don't we have an open pending reconsideration?

[00:23:15] Speaker 02:
That would be one way to look at it, but it's even debatable whether this was even a request for reconsideration because Guardian Angels never used that term and what they referred to it as a claim and the contracting officer referred to it as, I received your claim, but I'm unable to evaluate it.

[00:23:36] Speaker 01:
regulation or anything like that when it comes to reconsideration requests of a contracting officer's decision to terminate, right?

[00:23:45] Speaker 02:
That's right.

[00:23:45] Speaker 01:
It's not in the federal acquisition regulation.

[00:23:47] Speaker 01:
It's just sort of, I don't know what to call it, unregulated practice.

[00:23:53] Speaker 02:
Well, it comes from these claims court decisions, Your Honor.

[00:23:58] Speaker 01:
Okay.

[00:23:58] Speaker 01:
And then what is the genesis for the apparent rule or practice of tolling?

[00:24:07] Speaker 01:
I'm not sure.

[00:24:08] Speaker 01:
Where does that come from?

[00:24:09] Speaker 01:
How does the tolling work?

[00:24:10] Speaker 01:
I mean, why is there tolling?

[00:24:12] Speaker 01:
Where does the rule of tolling come from?

[00:24:15] Speaker 01:
Can you toll something that's jurisdictional?

[00:24:22] Speaker 02:
I don't know the answer to that, but I can tell you how it's worked in the reconsideration under these decisions is that

[00:24:31] Speaker 02:
if the contracting officer does reconsider that decision and if the court finds that the contracting officer reconsidered that decision.

[00:24:38] Speaker 01:
No, I understand the practice of how it works.

[00:24:40] Speaker 01:
I'm trying to figure out what's the source for the law that you can even hold.

[00:24:49] Speaker 02:
Well, it comes from these claims court decisions that the agency can change its mind or change its decision within a reasonable time.

[00:25:01] Speaker 02:
And then if it reevaluates the information and comes to a new decision, regardless of whether it's the same decision or a different decision, that new decision starts the 12-month period.

[00:25:14] Speaker 04:
So in this situation, had there been, let's say, some submission of information, unless it's totally immaterial, irrelevant, the contracting officer looks at that and says, my decision here is that the default termination still applies.

[00:25:30] Speaker 04:
Wouldn't that be a new decision that's final and that told the statute or the deadline?

[00:25:37] Speaker 02:
Sorry, Your Honor.

[00:25:37] Speaker 02:
Under the facts, I would agree that that sounds like a new decision.

[00:25:41] Speaker 04:
OK, so the facts that I laid out was information that's totally irrelevant immaterial.

[00:25:46] Speaker 04:
What about no information at all?

[00:25:49] Speaker 04:
And are we left with the same situation, a way in the sufficiency?

[00:25:52] Speaker 04:
I mean, maybe if it's totally irrelevant, there's a little bit of weight.

[00:25:57] Speaker 04:
If there's no information, there's no weight.

[00:25:59] Speaker 04:
But still, the contracting officer makes a decision as to reconsideration.

[00:26:04] Speaker 04:
Wouldn't that be a final decision at that point?

[00:26:07] Speaker 02:
What I think was important in your hypothetical was that they received the information and the contracting officer evaluated it and made a decision.

[00:26:15] Speaker 02:
And that didn't occur here.

[00:26:18] Speaker 04:
So there was no reconsideration.

[00:26:20] Speaker 04:
The letter of the contracting officer says, basically she says, send me some more information.

[00:26:29] Speaker 04:
I've evaluated this and there's not enough for me to make a final determination.

[00:26:34] Speaker 04:
She doesn't say that, but that's what her first letter essentially says.

[00:26:38] Speaker 04:
Then the second letter she says, I've looked at this and you haven't sent me any information whatsoever, so I'm not going to make a reconsideration.

[00:26:47] Speaker 04:
I haven't and will not make a reconsideration.

[00:26:49] Speaker 04:
Isn't that a final?

[00:26:52] Speaker 02:
No, Your Honor, I don't think she said that she looked at this.

[00:26:55] Speaker 02:
She basically said, I sent you a letter earlier and I asked for this information and I never received it.

[00:27:00] Speaker 02:
And then she goes on to say, I haven't reconsidered my decision and I'm not going to reconsider it.

[00:27:09] Speaker 04:
Okay.

[00:27:09] Speaker 04:
Any other questions?

[00:27:11] Speaker 02:
No.

[00:27:12] Speaker 02:
Thank you, Your Honor.

[00:27:18] Speaker 00:
Thank you.

[00:27:19] Speaker 00:
Just brief tie up points, your honors.

[00:27:21] Speaker 00:
And I think that what your honors had presented, it appears as though some things have kind of resonated and what I'm trying to express to the bench and to this court is just that there is a body of law that exists uncodified in any way, shape or form.

[00:27:36] Speaker 00:
And there's no way that really a novice contractor comes in and says, okay, here's a tolling period or here's what this letter is.

[00:27:46] Speaker 04:
And clearly she wasn't totally normal.

[00:27:49] Speaker 04:
She had your assistance through part of this.

[00:27:52] Speaker 04:
I mean, back in December, you could have your counsel, your lawyer, you could have said, I have an appealable situation here.

[00:27:59] Speaker 04:
I better do something to preserve my appeal.

[00:28:02] Speaker 00:
And your honor is correct.

[00:28:03] Speaker 00:
And they never happened.

[00:28:04] Speaker 00:
And I guess what I'm expressing to your honor is that directly within the statutes, the FAR provisions and everything else without going back into the Aronos case and doing a complete case law search.

[00:28:16] Speaker 00:
There's nothing that comes in and directly says to that contracting officer or able-bodied counsel who's there to assist them that you only have 12 months, even when the contracting officer says, I'm waiting for a response.

[00:28:29] Speaker 01:
After May 3rd, why did your client wait eight months before filing a complaint of the court of federal claims?

[00:28:37] Speaker 01:
Forgetting that letter, making it crystal clear that the contracting officer hasn't considered

[00:28:43] Speaker 01:
whatever dispute letter you filed, and it's not going to consider any subsequent information you submit.

[00:28:51] Speaker 01:
Why did it take eight months to file a complaint in the court of federal claims?

[00:28:55] Speaker 00:
In reality, your honor, the cost of a lawsuit is significant.

[00:28:59] Speaker 00:
And for a not-for-profit organization that raises service animals, it took quite some time to be able to come up with the money to fund litigation against the federal government.

[00:29:10] Speaker 00:
And so in essence, at the end of the day, your honor,

[00:29:13] Speaker 00:
I believe what we see here is really the major travesty is it's not even heard.

[00:29:19] Speaker 00:
There's no testimony taken.

[00:29:21] Speaker 00:
The day in court has been removed.

[00:29:23] Speaker 00:
And that is the issue that I would suggest that your honors go back and look at Malone instead of just moving under this Oronos progeny.

[00:29:31] Speaker 04:
To be clear, are you asking us to overrule Malone?

[00:29:35] Speaker 00:
No, not Malone.

[00:29:37] Speaker 00:
I believe that the progeny of Malone needs to be looked at with closer lenses

[00:29:42] Speaker 00:
because we're now engaged in this process that is uncodified in which we're saying, well, is it a tolling period or is it a tolling period?

[00:29:50] Speaker 00:
Do we have reconsideration?

[00:29:51] Speaker 00:
Do we not have reconsideration?

[00:29:53] Speaker 00:
And there's nothing that's really pointing us to that.

[00:29:55] Speaker 03:
Okay.

[00:29:57] Speaker 04:
Thank you very much.