[00:00:04] Speaker 00:
First case for argument this morning is 15-5120-H.J.

[00:00:10] Speaker 00:
Linus, Construction v. United States.

[00:00:13] Speaker 00:
Mr. Wolf, whenever you're ready.

[00:00:22] Speaker 01:
Your Honor, this is an appeal from the grant of summary judgment in favor of the United States with respect to Appellant's claim for settlement costs following a termination for convenience to the government.

[00:00:35] Speaker 01:
There were four general areas of costs that were considered by the court below, direct material costs, fringe benefit costs, consulting expenses, subcontractor settlements, and a claim for unabsorbed build overhead.

[00:00:51] Speaker 03:
Let me make a suggestion to you.

[00:00:52] Speaker 03:
You don't spend a lot of time on the direct material costs.

[00:00:55] Speaker 03:
That's $95.

[00:00:56] Speaker 03:
I won't.

[00:00:57] Speaker 01:
I'll move on.

[00:00:57] Speaker 03:
You've already spent that much money up here.

[00:01:00] Speaker 01:
I understand.

[00:01:00] Speaker 01:
And I was surprised it was even

[00:01:02] Speaker 01:
an issue, but I'll move on.

[00:01:04] Speaker 01:
Thank you, Your Honor.

[00:01:06] Speaker 01:
With respect to the fringe benefit costs and consulting expenses, however, those were denied.

[00:01:13] Speaker 01:
The big one was G&A.

[00:01:16] Speaker 01:
Yes.

[00:01:17] Speaker 02:
That's the big one.

[00:01:18] Speaker 01:
Yes, it was, Your Honor.

[00:01:19] Speaker 01:
It was in excess of $422,000.

[00:01:21] Speaker 01:
The fringe benefits and costs and consulting expenses, however, were denied.

[00:01:29] Speaker 01:
because my client accounted for them as indirect expenses, even though they were direct expenses.

[00:01:35] Speaker 03:
By all definitions... But your client made that choice, and it's a perfectly legal accounting choice, isn't it?

[00:01:42] Speaker 01:
It is, but it doesn't bar, in our opinion, the claim for these costs as direct expenses when it's otherwise proper under FAR Section 49.

[00:01:51] Speaker 03:
Yeah, but you made a choice as to which way to go under the FAR.

[00:01:55] Speaker 01:
granted the client can't go both ways i'm not suggesting that we do your honor i'm suggesting simply that at the level where settlement costs were considered which they never were they never were we had filed a lawsuit first so there was no opportunity to exchange with the terminating contracting officer but i hate to tell you that happens all the time i'm sure it does and i'm not here to cry tears about that your honor i'm just saying i guess i too too subtly suggested that you deal with a big number

[00:02:25] Speaker 02:
Okay, I'm sorry.

[00:02:27] Speaker 02:
I guess it just went right over my head, Your Honor.

[00:02:31] Speaker 01:
Let's go to that then.

[00:02:34] Speaker 01:
This was denied on the alleged failure of my client to satisfy the standby requirement, which, as the Court knows, is one of three tests that have to be met in order to qualify for using an ICLEI-type formula.

[00:02:53] Speaker 01:
Now, in the Nikon case,

[00:02:55] Speaker 03:
How long do you think, or do you allege, your client was in standby on this contract?

[00:03:01] Speaker 03:
Two and a half years.

[00:03:04] Speaker 03:
What is the evidence that all of his men and equipment, men and women, and equipment and everything was sitting there in standby?

[00:03:15] Speaker 01:
Because the entire period of time that that was going on, he was tasked by the government with working on change orders first.

[00:03:25] Speaker 01:
change orders that were not part of the original base contract.

[00:03:28] Speaker 03:
But was he actually building something?

[00:03:31] Speaker 03:
Well, he was involved... He had a cease work order the very same year that he got the contract.

[00:03:41] Speaker 01:
With respect to the base contract work, that's correct, Your Honor.

[00:03:45] Speaker 01:
But there was an issue with the fire evacuation discovered afterwards.

[00:03:51] Speaker 03:
The question is, what was he doing during that two and a half years?

[00:03:55] Speaker 01:
Well, he was waiting to be notified to proceed with the base contract and he was working on change orders, your honor.

[00:04:05] Speaker 03:
He was sitting in his office smoking cigars waiting for the government to call him?

[00:04:09] Speaker 01:
You know what, I don't think that executives of construction companies actually work on the sites at all.

[00:04:15] Speaker 01:
to be honest with you.

[00:04:16] Speaker 00:
So did you have proof?

[00:04:17] Speaker 00:
Is there proof in the record that you kept workers and equipment on site?

[00:04:20] Speaker 01:
There was an admission by the... I asked you if there was proof, so your answer is... The client's affidavit, Your Honor, spoke to that.

[00:04:30] Speaker 01:
The affidavit of his claims consulting experts spoke to that.

[00:04:34] Speaker 01:
Those were ignored.

[00:04:36] Speaker 01:
I mean, you can argue whether they were credible or not, but that's not the function of the court at this level.

[00:04:44] Speaker 01:
The court should have looked at that evidence and said, well, this was a genuine issue of material fact that should have been solved at trial, but they didn't do so.

[00:04:55] Speaker 00:
So your client testified as to the expenses, the number of workers he kept, where they were, how he paid them, and they were required to be there?

[00:05:06] Speaker 01:
He didn't itemize them in detail, no.

[00:05:09] Speaker 01:
But he was never given an opportunity to itemize anything.

[00:05:14] Speaker 01:
This was on summary judgment.

[00:05:15] Speaker 01:
There were affidavits and depositions.

[00:05:18] Speaker 01:
That was the only evidence before the court.

[00:05:21] Speaker 01:
There was no consideration of this claim by the TCO or the government prior to the filing of the lawsuit below.

[00:05:31] Speaker 01:
The FAR specifically speaks to that, that once the termination for convenience note is issued, it's the obligation of the terminating contracting officer to contact the contractor

[00:05:43] Speaker 01:
and attempt to negotiate a settlement of these costs.

[00:05:47] Speaker 01:
That was not done.

[00:05:48] Speaker 01:
My client was Stonewall.

[00:05:50] Speaker 01:
The government took the position that my client's execution of a release of claims on a payment application on a change order barred him from making any claim at all because they said it was a release of all claims.

[00:06:06] Speaker 03:
Well, you have a legitimate complaint.

[00:06:08] Speaker 03:
The government did not behave correctly in terms of responding to your initial

[00:06:15] Speaker 03:
They also conceded liability.

[00:06:18] Speaker 03:
The problem is you still need to prove up your damages.

[00:06:21] Speaker 03:
I know.

[00:06:21] Speaker 00:
And how much did you walk away with?

[00:06:24] Speaker 01:
I mean, your client... The government was... My client was awarded slightly over $30,000 on a claim in excess of $563,000.

[00:06:31] Speaker 01:
But they had previously gotten some other money, right?

[00:06:34] Speaker 01:
Yes, with respect to expenses relating to securing a bond and...

[00:06:42] Speaker 01:
submitting submittals for costs.

[00:06:44] Speaker 01:
Yes, they received that.

[00:06:46] Speaker 02:
They got $113,000.

[00:06:47] Speaker 01:
Right, and that was for the change when it worked as well, Your Honor.

[00:06:52] Speaker 01:
Now those are separate.

[00:06:53] Speaker 01:
Those are things that my client didn't bid on prior to being awarded the contract.

[00:06:59] Speaker 01:
They were additional work that were discovered based on an architect there failing to put in a fire escape in the lobby of the John Weld Peck Federal Courthouse.

[00:07:08] Speaker 01:
and the local fire department identified that and informed the parties that that had to be done.

[00:07:14] Speaker 01:
And at that point in time, the thrust of my client's activity was directed to solving that problem.

[00:07:21] Speaker 01:
And there were three change orders that were granted and completed by my client.

[00:07:25] Speaker 01:
Did he get paid for that order?

[00:07:26] Speaker 01:
He got paid for the change orders only.

[00:07:30] Speaker 01:
And he was required to stay on standby for two and a half years with respect to the base contract amount.

[00:07:37] Speaker 03:
What is the status of the

[00:07:38] Speaker 03:
Columbus building that.

[00:07:41] Speaker 01:
At this point in time, I don't know whether it's been finished or not.

[00:07:45] Speaker 00:
Well, you just said he's required to stay on standby.

[00:07:49] Speaker 01:
Yeah, he was required to stay on standby in the sense that he was waiting to receive a notice to proceed by the government for a period of two and a half years.

[00:07:59] Speaker 01:
Up until weeks before he got the termination for convenience letter, he received emails from people

[00:08:08] Speaker 01:
in the GSA saying that they were waiting to receive his notice to proceed and he should be ready to proceed.

[00:08:16] Speaker 01:
And then within a matter of weeks or less, he was given a termination for convenience letter and was told by the contracting officer that they regarded the contract as closed because there was a release of all claims.

[00:08:34] Speaker 01:
The government wouldn't even entertain negotiation

[00:08:37] Speaker 01:
on that point why would he be on standby it wasn't then but the claim was for the period from the initial contract date in two thousand six through the termination convenience state two-and-a-half years it's a long time and and to be told that you have to be ready to start and proceed immediately to your work puts puts puts a burden on so he was told you had

[00:09:05] Speaker 00:
mattered notices in the record that he was told by the government sometime between November 16 and 2006 that he had to remain in standby at all times.

[00:09:16] Speaker 00:
Yes, and the contracting officer admitted that in her deposition.

[00:09:20] Speaker 03:
Well, she came on the scene two years after all of this happened.

[00:09:24] Speaker 03:
And I have personal knowledge of what conversations, if any, occurred at the time that they put the hold order on.

[00:09:32] Speaker 03:
And I think that goes... So she's not much of a witness.

[00:09:34] Speaker 01:
And that's a credibility argument.

[00:09:38] Speaker 01:
And this was on summary judgment.

[00:09:39] Speaker 03:
Well, the trial judge decided that the credibility wasn't there.

[00:09:45] Speaker 01:
And he shouldn't have because this was on the motion for summary judgment of the United States.

[00:09:51] Speaker 01:
He should have determined that this presented a genuine issue of material fact for a trial and he didn't do that.

[00:10:00] Speaker 01:
Well, in any event,

[00:10:02] Speaker 01:
One other thing that happened was after the court initially ruled on the release issue in our favor, the government conceded liability.

[00:10:13] Speaker 01:
Okay?

[00:10:14] Speaker 01:
Now, the GNA expense issue, especially the issue of standby, is an entitlement issue.

[00:10:23] Speaker 01:
Your West versus Allstate Boiler case specifically speaks to that.

[00:10:29] Speaker 01:
And so,

[00:10:30] Speaker 01:
If you want to look at it from the standpoint that they conceded the standby issue, or if you want to look at it from the standpoint that there was a genuine issue of material fact that barred the grant of summary judgment, either way, it was erroneous to dismiss it on the basis of the standby issue.

[00:10:49] Speaker 00:
When you say they conceded, you're talking about the... Government.

[00:10:54] Speaker 00:
Yes, by the subsequent contracting officer.

[00:10:57] Speaker 01:
No, I'm talking about counsel for

[00:11:00] Speaker 01:
the government in this case in the Joint Status Report submitted to the Court of Claims at Joint Appendix 128 conceded liability after the release issue was determined.

[00:11:17] Speaker 01:
And the only thing that was left was whether they had provided a sufficient argument to sustain summary judgment on the issue of damages.

[00:11:29] Speaker 01:
So whether it's that point or whether you say that there was a genuine issue of material fact, it still makes the decision of the court on the GNA expenses erroneous in our opinion.

[00:11:40] Speaker 01:
And I see my time has expired.

[00:11:41] Speaker 01:
I'd like to reserve the remaining three bottles.

[00:11:43] Speaker 01:
Thank you.

[00:11:44] Speaker 01:
Thank you.

[00:11:50] Speaker 03:
Counsel, let's get right to the nub of this case.

[00:11:53] Speaker 03:
We only talked about $95.

[00:11:55] Speaker 03:
Let's talk about the $406,000

[00:12:00] Speaker 03:
under the standby issue.

[00:12:02] Speaker 03:
Why isn't that in dispute?

[00:12:05] Speaker 03:
It is, whether they are on standby, right?

[00:12:08] Speaker 03:
There's evidence going both ways.

[00:12:12] Speaker 03:
How do you decide that on summary judgment?

[00:12:15] Speaker 04:
Your Honor, two responses to your question.

[00:12:19] Speaker 04:
First of all, this argument was not raised below.

[00:12:21] Speaker 04:
It has been waived, this argument with respect to the standby issue.

[00:12:25] Speaker 04:
But with respect to what the evidence shows.

[00:12:27] Speaker 03:
Well, hold on a minute.

[00:12:29] Speaker 03:
You mean they didn't contest the standby issue below?

[00:12:32] Speaker 04:
Well, they did not.

[00:12:34] Speaker 04:
With respect to the argument that the government had conceded that Linus was on standby, that argument was not raised below.

[00:12:43] Speaker 04:
Standby was an issue, and the trial court addressed it on standby.

[00:12:46] Speaker 03:
I'm not worried about whether the government conceded, because that's a question of fact, right?

[00:12:53] Speaker 03:
Is that a question of fact, or isn't it?

[00:12:56] Speaker 03:
Yes or no?

[00:12:57] Speaker 03:
It is, Your Honor.

[00:12:58] Speaker 03:
OK.

[00:12:58] Speaker 03:
So that's a question of fact, whether the government conceded they were on standby.

[00:13:02] Speaker 03:
They say they were on standby.

[00:13:04] Speaker 03:
The government says they weren't on standby.

[00:13:07] Speaker 03:
Wasn't that a dispute?

[00:13:08] Speaker 04:
Well, Your Honor, on the question of whether the government conceded liability, I want to make clear that that is a question of fact as it pertains to the government's position in the case.

[00:13:19] Speaker 04:
It is not a fact that is underlying in the dispute.

[00:13:24] Speaker 03:
Do you accept that your concession of liability did not include that they were on standby?

[00:13:32] Speaker 04:
OK.

[00:13:32] Speaker 04:
That's fine.

[00:13:33] Speaker 04:
But your initial question got to what the evidence relates to.

[00:13:37] Speaker 04:
And I will respond to that.

[00:13:38] Speaker 04:
Your Honor, what the trial court properly recognized was that in order to prove standby, you need to have either direct evidence or indirect evidence.

[00:13:46] Speaker 04:
There was no evidence put forward before the trial court of any indication, any directive from the contracting officer.

[00:13:53] Speaker 04:
saying to the contractor that you need to remain on standby.

[00:13:56] Speaker 03:
Well, that's because the contracting officer never responded to their inquiry as to what they were supposed to do after they got the stop order.

[00:14:04] Speaker 03:
What are they supposed to do if the government won't tell them what they're supposed to do?

[00:14:09] Speaker 04:
Well, Your Honor, I'm not sure that the record reflects that exactly, that transpired that way.

[00:14:14] Speaker 04:
What happened was there was an issue that arose with respect to the design of the building.

[00:14:20] Speaker 04:
For that reason, they suspended the notice to proceed.

[00:14:24] Speaker 04:
Further work was done pursuant to other change orders.

[00:14:28] Speaker 04:
But what you need to find in order to have standby is some either direct evidence, as the court recognized in the Nikon case under this strict prerequisite, direct evidence of either in the form of a directive from the contracting officer or something of that nature, or indirect evidence.

[00:14:46] Speaker 04:
And what Lynette's pointed to below was this one statement made by the contracting officer.

[00:14:52] Speaker 04:
As your honor indicated, she was not personally involved.

[00:14:54] Speaker 04:
She became involved several years later.

[00:14:58] Speaker 04:
Now, the trial court properly recognized it was not a weighing of the evidence.

[00:15:02] Speaker 04:
The question before the trial court was, is there a genuine issue of material fact?

[00:15:08] Speaker 04:
That is a judgment.

[00:15:09] Speaker 04:
It is a judgment that is based on the record that is presented before the trial court.

[00:15:13] Speaker 04:
The Supreme Court is recognized in the Anderson v. Liberty lobby.

[00:15:17] Speaker 04:
when a party moves for summary judgment, the burden shifts to the other party to demonstrate that there is evidence to create a genuine issue of material.

[00:15:26] Speaker 03:
Does Linus testify that they felt they were on standby?

[00:15:30] Speaker 04:
No, Your Honor, that the affidavit that is before you and that Linus cites to you now, which is at JA 173, is not testimony about Linus being on standby.

[00:15:42] Speaker 04:
It is a list, essentially, of documents that were submitted

[00:15:45] Speaker 04:
was part of the affidavit.

[00:15:48] Speaker 04:
And Linus did not rely on that affidavit below.

[00:15:51] Speaker 04:
So what you have in a set, in essence, is the record before the trial court was the absence of any evidence of standby, aside from a one word answer to a single question in a deposition.

[00:16:05] Speaker 04:
And it was appropriate for the trial court to say, that's not enough to get to trial.

[00:16:10] Speaker 04:
And that is an appropriate application

[00:16:13] Speaker 04:
the rules for summary judgment.

[00:16:15] Speaker 04:
It does not create a triable issue reasonable for a fact finder to find that they were on standby.

[00:16:23] Speaker 04:
And there is another part of the court's opinion that Linus does not pay sufficient attention to, and that is there is an independent basis for finding that Linus was not on standby.

[00:16:33] Speaker 04:
That is, it intended to rely heavily on subcontractors to do this work.

[00:16:38] Speaker 04:
And what the trial court noted, and this is at JA8,

[00:16:42] Speaker 04:
of the Joint Appendix, the trial court noted that in that regard, under the court precedent, the contractor is not on standby because he could not demonstrate, it could guarantee the availability of all these subcontractors to be ready to mobilize and come back to work.

[00:17:00] Speaker 04:
And that was a separate and independent basis that Linus has not rebutted as to why it could not prevail.

[00:17:06] Speaker 03:
Isn't that Linus' problem, not the government's?

[00:17:09] Speaker 03:
Isn't it Linus' problem?

[00:17:10] Speaker 03:
If he's claiming he's on standby and he doesn't have subcontractors, that's his problem.

[00:17:16] Speaker 03:
Right?

[00:17:18] Speaker 04:
Well, yes, Your Honor, but it is a... Maybe he has a list of other subcontractors.

[00:17:25] Speaker 04:
Perhaps, Your Honor, but the point I'm trying to make is the burden was on Linus to demonstrate that it could mobilize those subcontractors, that it had some means

[00:17:35] Speaker 04:
of mobilizing the subcontractors if it was required.

[00:17:38] Speaker 00:
And that it suffered a loss by the fact that it was on standby, and the fact that they didn't demonstrate they had any contracts with many of these subcontractors demonstrates that they didn't incur any cost in connection with being on standby, right?

[00:17:53] Speaker 04:
Well, Your Honor, that is a slightly separate question insofar as it relates to the question of the settlement agreements, which I can turn to.

[00:18:02] Speaker 04:
there is evidence to suggest that they did engage subcontractors for purposes of this contract.

[00:18:08] Speaker 04:
But because performance did not begin, that word did not

[00:18:12] Speaker 04:
get going in a significant way.

[00:18:13] Speaker 00:
So you're talking about, they say, the court says on JA, plaintiff offers no evidence to suggest it could guarantee the availability of its subcontractors or their ability to perform the contract immediately at full strength.

[00:18:25] Speaker 00:
Is that what you're talking about?

[00:18:26] Speaker 04:
Yes, I am, Your Honor.

[00:18:27] Speaker 04:
That is what I'm referring to as this independent basis for finding that there was no standby.

[00:18:33] Speaker 04:
And that was an appropriate decision for the trial court to make.

[00:18:37] Speaker 04:
I want to turn to the question of the subcontractor settlement agreements, which did not come up

[00:18:42] Speaker 04:
on the question of Linus's counsel, but there is no genuine dispute of material fact as to the fact that Linus did not provide the requisite documentation.

[00:18:53] Speaker 04:
When it submitted the settlement proposal for a termination of convenience, it had the burden under the FAR 49.108-3 of providing this documentation in the form of invoices, supporting documentation, and the actual settlement agreements with the subcontractors.

[00:19:11] Speaker 04:
And what the GSA auditors found is that line S had not satisfied that requirement.

[00:19:17] Speaker 04:
The arguments that it's making now are insufficient to overcome that failure to comply with that requirement.

[00:19:25] Speaker 04:
They argue, for example, these arguments have all been raised for the first time in our way for that reason.

[00:19:31] Speaker 04:
But they argue that somehow they were prevented from providing this documentation, which is contradicted by what they argued to the court below, where they

[00:19:39] Speaker 04:
essentially argued that we did comply with this.

[00:19:42] Speaker 04:
We provided some invoices and the like.

[00:19:44] Speaker 04:
But the bottom line is the court found that you needed to provide the actual subcontract settlement agreements in order to meet this requirement.

[00:19:53] Speaker 04:
So the trial court's entry of summary judgment on that question was appropriate.

[00:19:59] Speaker 04:
With respect to the fringe benefit and consulting expenses costs, what the trial court appropriately recognized is that

[00:20:05] Speaker 04:
because Linus had accounted for these costs as indirect costs in its accounting system.

[00:20:13] Speaker 04:
And that is not in dispute, as counsel just indicated.

[00:20:17] Speaker 04:
That was a business decision.

[00:20:18] Speaker 04:
That was a judgment that Linus made, whether appropriately or not it accounted for these costs as indirect costs.

[00:20:26] Speaker 04:
And accordingly, as the trial court found, that meant that those costs were absorbed and allocated among its other contracts, and that to therefore be able to recover those costs

[00:20:35] Speaker 04:
twice, in effect, as direct and indirect would violate this principle of double counting, which is prohibited by the FAR.

[00:20:43] Speaker 03:
And that is the principle that we're advocating.

[00:20:44] Speaker 03:
The government still contracting with Linus over this building or other buildings?

[00:20:48] Speaker 03:
What's going on?

[00:20:50] Speaker 04:
Your Honor, factually, I'm not sure.

[00:20:51] Speaker 04:
What I do understand is that this contract was ultimately terminated because the contract was reaching its threshold in terms of the budgetary allocation that was available for it.

[00:21:02] Speaker 04:
So whether or not a further contractor was engaged to finish this lobby renovation, I don't know.

[00:21:10] Speaker 04:
But certainly with respect to Line S, that engagement did happen.

[00:21:14] Speaker 04:
So for these reasons, we respectfully request that the court affirm the judgment below.

[00:21:28] Speaker 01:
Thank you.

[00:21:29] Speaker 01:
First, my comment on the standby issue.

[00:21:31] Speaker 01:
The standby issue was not even raised by the parties' arguments before.

[00:21:36] Speaker 01:
The standby issue was not raised by either of the parties below in the court of claims.

[00:21:42] Speaker 01:
This was something that the court took upon it by itself and focused on.

[00:21:46] Speaker 01:
That doesn't help you, does it?

[00:21:48] Speaker 01:
It helps us in the sense that

[00:21:51] Speaker 01:
that we're arguing that there was no issue regarding standby.

[00:21:55] Speaker 02:
It was your job to raise issues.

[00:21:58] Speaker 01:
We did factually.

[00:22:00] Speaker 01:
We did factually.

[00:22:01] Speaker 01:
We provided the evidence in support of our motion for summary judgment.

[00:22:06] Speaker 01:
We provided the affidavit of a claims expert to show how the indirect cost should be allocated.

[00:22:14] Speaker 03:
But as you provide evidence on being on standby, you just got through saying it wasn't even before the court.

[00:22:21] Speaker 01:
The issue of standby was not focused on by the court.

[00:22:26] Speaker 03:
It was there in the sense that it's always... Was it focused on by your counsel?

[00:22:31] Speaker 03:
By either counsel.

[00:22:34] Speaker 01:
But recall that we're talking about the government's motion for summary judgment.

[00:22:39] Speaker 01:
They did not raise the standby issue in their motion for summary judgment.

[00:22:44] Speaker 03:
The burden was on you.

[00:22:45] Speaker 01:
No, the burden was on them to identify why they think they're entitled to judgment as a matter of law.

[00:22:51] Speaker 01:
They did not raise the standby issue.

[00:22:53] Speaker 01:
They did not say that our claim for GNA expenses should be denied because we did not meet the standby issue.

[00:23:00] Speaker 01:
They never argued that.

[00:23:03] Speaker 00:
So the District Court, the Court of Claims judge, I mean there's a section... Sue Espante just took up the issue even though... Oh, wait.

[00:23:10] Speaker 00:
But there was this witness, Ms.

[00:23:12] Speaker 00:
Batten-Bradbury, who we've been talking about.

[00:23:14] Speaker 00:
So there was some discussion in this proceeding.

[00:23:16] Speaker 00:
Right.

[00:23:16] Speaker 00:
And that's why, she had conceded that the client was... Yeah, but my point is, so obviously it was on, the issue was on the table.

[00:23:24] Speaker 01:
It was on the table in the sense that it's required to be addressed as part of

[00:23:30] Speaker 01:
your overall claim, but after the deposition testimony was provided and it was an admission by a party opponent, the terminating contracting officer said yes, my client was on standby, that issue was not an issue any longer until the court below took it upon itself to raise it as an issue again.

[00:23:50] Speaker 01:
Now when they focused on her deposition testimony and said that it wasn't credible or it was insufficient,

[00:23:59] Speaker 01:
They were illegally weighing the evidence.

[00:24:02] Speaker 03:
This is an important issue.

[00:24:05] Speaker 03:
Let's see if we're clear on this, Mr. Walt.

[00:24:08] Speaker 03:
You filed a certified claim.

[00:24:10] Speaker 03:
Yes.

[00:24:11] Speaker 03:
Did that certified claim include $422,830 for standby costs?

[00:24:20] Speaker 03:
Yes.

[00:24:22] Speaker 03:
So you raised it in your certified claim.

[00:24:24] Speaker 03:
That's right.

[00:24:25] Speaker 03:
The litigation was over payment of that certified claim.

[00:24:29] Speaker 03:
It was.

[00:24:30] Speaker 03:
But you put in no evidence to support the fact that your claim was for standby.

[00:24:35] Speaker 01:
No, that's incorrect.

[00:24:38] Speaker 03:
Well, then explain yourself, please.

[00:24:40] Speaker 01:
We filed the test, and her deposition is in the Joint Appendix, Your Honor.

[00:24:45] Speaker 01:
It's the deposition of Erica Bradbury.

[00:24:48] Speaker 01:
She was specifically asked that

[00:24:50] Speaker 01:
question during her deposition was Linus on standby.

[00:24:54] Speaker 03:
You were familiar with her deposition?

[00:24:55] Speaker 03:
She said yes.

[00:24:56] Speaker 03:
Was that the extent of your evidence on the issue?

[00:24:59] Speaker 01:
Plus the affidavits signed and filed on behalf of my client and his claims expert.

[00:25:05] Speaker 01:
Yes, Your Honor.

[00:25:07] Speaker 03:
Okay.

[00:25:07] Speaker 01:
That's careful.

[00:25:09] Speaker 03:
Thank you.

[00:25:09] Speaker 01:
So, I mean, you can look at that evidence and say, you know what, if I'm a trial judge, that's garbage and I won't

[00:25:16] Speaker 01:
I won't grant you judgment on it, but that's in the... That's what he did.

[00:25:21] Speaker 01:
Well, not in his role as a trier of fact.

[00:25:24] Speaker 01:
He just granted on the grounds that it wasn't sufficient evidentiary showing on behalf of my client at the summary judgment level, and that's the distinction.

[00:25:35] Speaker 01:
He should have let it go to a trial and given us a chance to present all of our evidence.

[00:25:42] Speaker 01:
Thank you.

[00:25:42] Speaker 01:
Thank you, Your Honor.