[00:00:07] Speaker 01:
We have four cases on the calendar this morning, one from the Board of Contract Appeals, one from the Patent Office, two government employee cases from the Merit Systems Protection Board, one of which is not being argued and is being submitted only on the briefs.

[00:00:28] Speaker 01:
The first case is Justman Freight Lines versus the U.S.

[00:00:32] Speaker 01:
Postal Service 2015-1373.

[00:00:37] Speaker 01:
Mr. Hendel.

[00:00:47] Speaker 02:
The question before you is whether Amendment 5 unambiguously expresses an intention to resolve all aspects of the elimination of the land route and to bar any

[00:01:04] Speaker 02:
possible future claims related to it.

[00:01:06] Speaker 02:
That's the question before you.

[00:01:11] Speaker 02:
The change order, negotiated service change, does have the utility of being extremely brief.

[00:01:17] Speaker 02:
There are very few words of it.

[00:01:19] Speaker 01:
Is that a utility or a disutility?

[00:01:22] Speaker 02:
Well, in the circumstances of what the parties were doing at the time, it was a utility.

[00:01:28] Speaker 02:
It invokes the changes clause.

[00:01:31] Speaker 04:
It's a bilateral agreement, correct?

[00:01:34] Speaker 04:
So you concede that fact?

[00:01:36] Speaker 02:
Well, we've always conceded it.

[00:01:38] Speaker 02:
Now it's fully drafted by the Postal Service.

[00:01:40] Speaker 02:
But it's fine.

[00:01:41] Speaker 02:
It was signed by both parties.

[00:01:44] Speaker 04:
Yes.

[00:01:44] Speaker 04:
OK.

[00:01:44] Speaker 04:
And why didn't you negotiate at the time for additional costs?

[00:01:49] Speaker 02:
Well, it would have been nice if that had been done.

[00:01:54] Speaker 02:
But it makes a lot of sense actually not to.

[00:01:57] Speaker 02:
Why?

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Justman had sent a letter before this.

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Justman sent a letter saying, hey, I'm going to have this excess equipment.

[00:02:03] Speaker 02:
would you consider allowing me to use this on the rep?"

[00:02:09] Speaker 02:
That was pending.

[00:02:11] Speaker 02:
He had not received a response to it.

[00:02:13] Speaker 02:
So this was an open item.

[00:02:15] Speaker 03:
Why wouldn't you then at least have some language reserving that issue for a later discussion?

[00:02:22] Speaker 02:
That would have been nice.

[00:02:23] Speaker 02:
And the same question could be, why wasn't there a release of the Postal Service Intent that this should be released?

[00:02:29] Speaker 02:
That was out there in the old days.

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Everybody knew it.

[00:02:32] Speaker 02:
It's very common, by the way, to have these pre-modifications, notifications, call center out there that are not later discussed.

[00:02:42] Speaker 02:
That's very common in these cases.

[00:02:43] Speaker 02:
And that does not act as some kind of a hidden release if it's not negotiated or not mentioned.

[00:02:50] Speaker 04:
Is there anything in the contract that allows for later adjustments after the

[00:02:59] Speaker 04:
something other than a minor change?

[00:03:16] Speaker 04:
Well, with respect to the minor changes, it's very clear that with a unilateral change there is a right to request additional compensation, there's a right to make claims,

[00:03:27] Speaker 04:
with respect to the non-minor change, those same provisions don't apply, correct?

[00:03:37] Speaker 02:
First of all, the reason why it's worded out, it's to help the contractor.

[00:03:41] Speaker 02:
Because a lot of pulsars have $10,000 in these contracts, mostly from mom and pop companies.

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And therefore, to prevent, some companies don't want big changes.

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That's why the pulsars can make unilateral changes of $5,000, relatively small.

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Anything over that requires the contractor to agree.

[00:04:00] Speaker 02:
Right.

[00:04:00] Speaker 02:
That's very interesting.

[00:04:01] Speaker 04:
And that's the government's argument.

[00:04:03] Speaker 04:
That's exactly what happened here, right?

[00:04:06] Speaker 02:
In Homer Beatle, there was a clause, the same type of clause, that said, except it expressly said, for any major service changes, there has to be agreement on the price before that can even happen.

[00:04:17] Speaker 02:
Except that.

[00:04:18] Speaker 02:
And in the Homer Beatle case, what happened was there wasn't that.

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There was a change order that was issued.

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There was no difference in price.

[00:04:27] Speaker 02:
Later, the contractor came back and said, wow, this really increased my effort.

[00:04:31] Speaker 02:
I want an increase.

[00:04:32] Speaker 02:
And the poll service raised the same argument that the rate that this is paid now, and actually could rely on a contract clause that said you have to have a fee.

[00:04:41] Speaker 02:
The board said no, you should have done that, but not having done it does not include recovery.

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And that's when you have much stronger language than you have today.

[00:04:53] Speaker 02:
So that argument has been resolved 40 years ago when there actually was a provision that says that the government is trying to climb up.

[00:05:00] Speaker 02:
What we have in front of you is a modification.

[00:05:03] Speaker 02:
It says notification that it's a release, that it's finality, that it's a settlement.

[00:05:08] Speaker 02:
It's a moving forward document done briefly to advance what has to be done to get a new price and to do anything we have to deal with later.

[00:05:21] Speaker 03:
You said earlier when you got up something about the task, the question before us was whether the language was clearly unambiguous.

[00:05:30] Speaker 03:
Where is that?

[00:05:31] Speaker 03:
Where do I find that?

[00:05:31] Speaker 03:
Because I was looking at the elements for accord and satisfaction.

[00:05:35] Speaker 03:
I'm not sure where you're getting that as being the standard that we're supposed to apply.

[00:05:40] Speaker 02:
Well, the Bell BCI case I suppose would be the plain, you know, the board here said we find the plain language is unambiguous, and that's the Bell BCI kind of theory.

[00:05:51] Speaker 02:
And so if you're, if you find it's ambiguous, you've got to go further.

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And summary judgment would have been inappropriate here.

[00:06:00] Speaker 02:
The, you know, if you, what's interesting is the board did say they were relying on the plain language.

[00:06:05] Speaker 02:
But they didn't mention the plain language.

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It's very surprising, isn't it, to say that, well, we're lying on the plain language.

[00:06:12] Speaker 02:
The majority, I should say, the dissent didn't.

[00:06:15] Speaker 02:
The Senate actually looked at the plain language.

[00:06:17] Speaker 02:
The majority relies on three things.

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Number one, it says, look, you should have objected.

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You knew you had these calls.

[00:06:25] Speaker 02:
You knew you might have.

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By the way, you might not have.

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And that was the big hope at the time,

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We're probably not even going to have this card.

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But you knew you might have had it.

[00:06:34] Speaker 02:
You should have done something.

[00:06:36] Speaker 02:
Well, that argument is rejected all the time.

[00:06:39] Speaker 02:
That was rejected in Chantilly.

[00:06:41] Speaker 02:
It was rejected in BD Electric.

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It's rejected.

[00:06:44] Speaker 02:
That argument doesn't work.

[00:06:45] Speaker 02:
Plus, it's not an interpretation of what's in front of you.

[00:06:49] Speaker 02:
It's not an interpretation of what the parties agreed to.

[00:06:52] Speaker 02:
Yes, it would have been so much better if some of these parties had written this differently.

[00:06:56] Speaker 02:
You've got to play with the card you have.

[00:06:58] Speaker 02:
So that's not an interpretation argument.

[00:07:00] Speaker 02:
Let's look at the other two things the majority lied on first.

[00:07:03] Speaker 02:
They said, well, there's two pieces of extrinsic evidence that support our plain language of conclusion.

[00:07:10] Speaker 02:
The first thing was a letter that just been sent and talked about a little bit, saying, hey, I'm going to have this excess equipment.

[00:07:18] Speaker 02:
Can I use it on this other contra.

[00:07:21] Speaker 02:
The time this modification was issued, and it had to be issued because the contra was already taking place, there had to be a new price set for that going forward work.

[00:07:30] Speaker 02:
At that time, everybody knew it's possible these costs might materialize.

[00:07:36] Speaker 02:
Maybe they don't.

[00:07:37] Speaker 02:
So it was out in the open.

[00:07:40] Speaker 02:
That doesn't change anything in terms of Justin's decisions or the Pulitzer's position.

[00:07:45] Speaker 02:
And that was the exact same case that you have in Chantilly, Beatty, Littrick, that same type of scenario.

[00:07:53] Speaker 02:
The third thing that the majority relied on was an email

[00:07:58] Speaker 02:
from the transportation specialist saying something like, this takes into account the adjustment of the vehicles.

[00:08:05] Speaker 02:
Now, first, put that in context.

[00:08:06] Speaker 02:
One, he had previously sent a draft of the change order that was incorrect, that didn't take out enough vehicles.

[00:08:15] Speaker 02:
So he sends them another draft saying, oh, this corrects that, this changes that.

[00:08:20] Speaker 02:
Second of all, everything in his email is consistent with our theory.

[00:08:25] Speaker 02:
Of course,

[00:08:26] Speaker 02:
You should have to take out the vehicles for the going forward price, which is how Justin interpreted it, how the dissent interprets it.

[00:08:33] Speaker 02:
For the going forward price, of course you have to take out the vehicles.

[00:08:37] Speaker 02:
He did testify in his deposition that he put nothing in parietal equipment costs.

[00:08:44] Speaker 02:
And the dissent makes a note that when you have a change order, that it has a price adjustment and no release language, that's supposed to be interpreted very narrowly.

[00:08:56] Speaker 02:
And they cited the advanced business concepts case for that proposition.

[00:09:03] Speaker 04:
This was an emergency contract that was for a temporary period of time, correct?

[00:09:08] Speaker 02:
Well, it started that way.

[00:09:11] Speaker 02:
That's how it first started.

[00:09:13] Speaker 02:
By the time of the elimination of Lyanna Root, it had been made into a permanent part of the existing contract.

[00:09:21] Speaker 02:
So it was no longer emergency work.

[00:09:23] Speaker 02:
But the Atlanta route was on its own a stand-alone emergency contract, and then it was kind of put into this main contract.

[00:09:34] Speaker 04:
We're talking about a six-month period of time here?

[00:09:38] Speaker 02:
Something like that, yes, Your Honor.

[00:09:40] Speaker 02:
And the things, you know, as you can see, it's not a price adjustment like this is not a good way to reimburse for idle equipment costs, because the changes are always happening.

[00:09:52] Speaker 02:
In fact, in this case,

[00:09:54] Speaker 02:
Six weeks, two months after this was negotiated, there was a change.

[00:09:58] Speaker 02:
And there was another price set for other work.

[00:10:03] Speaker 02:
And things are changing pretty frequently at the Postal Service in terms of transportation.

[00:10:06] Speaker 02:
And so therefore, what the contractor was asking for here, basically idle equipment costs, costs made idle because the Postal Service was wanting to save money and reduce the service.

[00:10:16] Speaker 02:
In fact, it did save a lot of money from this.

[00:10:19] Speaker 02:
Those costs are lump sum costs.

[00:10:21] Speaker 02:
They have nothing to do with the going forward aspect.

[00:10:24] Speaker 02:
And it wouldn't even have been appropriate to put it in a going forward price, because that's getting changed all the time.

[00:10:30] Speaker 02:
Unless there's anything further, I'll say the rest of my time.

[00:10:32] Speaker 01:
We will do that, Mr. Handel.

[00:10:35] Speaker 01:
Mr. Singley?

[00:11:00] Speaker 00:
May it please the court, Amendment 5 was an unambiguous bilateral contract modification that means what it says.

[00:11:07] Speaker 00:
The changes clause in this fixed price contract provides no basis for Justman to recover the additional compensation that they seek today.

[00:11:15] Speaker 04:
Let's begin by looking at the actual... Let me ask you, why wasn't the dissent correct in that, at minimum, this isn't something that can be established on summary judgment when you're talking about whether there was a meeting of the minds?

[00:11:31] Speaker 00:
Your Honor, there's one sentence in the dissent's opinion where the dissent chose the wrong direction.

[00:11:38] Speaker 00:
And that's where the dissent decides that the contract was ambiguous because there's no mention of a claim.

[00:11:47] Speaker 00:
But there's no right to a claim in the first place under this contract.

[00:11:51] Speaker 00:
There's no right for them to recover the costs that they're seeking here because the changes clause that this modification cites to

[00:11:59] Speaker 00:
does not provide that right.

[00:12:01] Speaker 00:
So it makes perfect sense that the modification wouldn't include that claim.

[00:12:05] Speaker 00:
And that's the only basis that the dissent relied on to go down the road of looking into extrinsic evidence and considering the contract ambiguous.

[00:12:14] Speaker 00:
And this court has consistently held that silence is not enough to create an ambiguity.

[00:12:20] Speaker 00:
In the McAbee case, the contract was silent about a height restriction.

[00:12:24] Speaker 00:
That was a case where the parties agreed that the Army Corps of Engineers could deposit

[00:12:29] Speaker 00:
Waste on an easement and the contractor came back later and said hey you put too much Waste here you went above a certain height that was reasonable Well the contract didn't say anything about that the lower court tried to create an ambiguity and say that was an ambiguous term So you have a situation in which for minor changes you have the ability to to make claims or request a judgment Adjustment, but here we have a major change, and they can't do anything about it

[00:12:57] Speaker 00:
Your Honor, that's not correct to say that they can't do anything about it.

[00:13:01] Speaker 00:
It's a fully negotiated bilateral modification.

[00:13:05] Speaker 00:
So they have two options.

[00:13:06] Speaker 00:
They can turn down the change.

[00:13:08] Speaker 00:
They could say, we're not willing to sign this bilateral modification.

[00:13:12] Speaker 00:
That puts the ball back on the Postal Service's side.

[00:13:14] Speaker 00:
And the Postal Service has two options.

[00:13:16] Speaker 00:
They can either not make the change, or they can terminate it.

[00:13:19] Speaker 04:
But as a practical matter, you're putting them in a very difficult posture.

[00:13:22] Speaker 04:
Because if they don't agree to go along with you,

[00:13:25] Speaker 04:
then they are putting at risk their ability to possibly get the alternative route and they're putting at risk the rest of the route that they already have.

[00:13:34] Speaker 04:
So they're putting the whole contract at risk.

[00:13:36] Speaker 00:
No, Your Honor, they're not putting the rest of the contract at risk.

[00:13:38] Speaker 00:
And I wanted to clarify because you asked... Why not?

[00:13:40] Speaker 04:
Because it says the Postal Service could terminate in whole or in part.

[00:13:44] Speaker 00:
In whole or in part.

[00:13:46] Speaker 00:
So the Postal Service can partially terminate just that route.

[00:13:50] Speaker 00:
Right, but there's no requirement that it be partial.

[00:13:52] Speaker 00:
It could have been complete.

[00:13:54] Speaker 00:
That's correct.

[00:13:55] Speaker 00:
So the parties agreed in 2007.

[00:13:57] Speaker 00:
Again, this all falls under that contract.

[00:14:00] Speaker 00:
And you had asked if this was an emergency contract.

[00:14:03] Speaker 00:
I mean, they had an emergency contract, but that was terminated.

[00:14:08] Speaker 00:
And then it was wrapped into this contract that was signed in 2007.

[00:14:10] Speaker 00:
And so the parties at that time agreed that they would have a termination for notice, the termination with notice clause applied.

[00:14:21] Speaker 00:
So either party has the right.

[00:14:23] Speaker 00:
without cost is what that clause says, without cost, to terminate part or all of this contract with 60 days of notice.

[00:14:32] Speaker 00:
So they agreed in 2007 that that was how this would work.

[00:14:35] Speaker 00:
And the reason that the parties agreed to this was so that they could have a general contract that they didn't have to constantly renegotiate, where they could add and subtract routes.

[00:14:43] Speaker 00:
And all they did in this case was subtract a route.

[00:14:46] Speaker 00:
And the reason I cited to McAbee is because

[00:14:48] Speaker 00:
You know, they tried to create an equity argument, or they tried to create an ambiguity because the government piled too much waste on that easement.

[00:14:59] Speaker 00:
And that's essentially what they're arguing here.

[00:15:01] Speaker 00:
Hey, this was a big change.

[00:15:03] Speaker 00:
Well, that's exactly what the contract said.

[00:15:05] Speaker 00:
I mean, there was no limit in the contract for the size of the changes that could be made.

[00:15:11] Speaker 00:
All it said was that routes will be added or subtracted in this manner.

[00:15:14] Speaker 00:
And the parties agreed to that.

[00:15:16] Speaker 00:
in 2007.

[00:15:16] Speaker 00:
And the government did exactly what it agreed to do when it made this modification.

[00:15:20] Speaker 00:
It was the same way that it made modifications four times prior and then afterwards when it made two more modifications to the same contract.

[00:15:28] Speaker 03:
Mr. Hendel cited a number of cases for the proposition that he didn't have to include a reserve clause or anything like that to reserve the rights.

[00:15:37] Speaker 03:
What do you think of those cases?

[00:15:39] Speaker 00:
First of all, they're not controlling here.

[00:15:41] Speaker 00:
The cases that he's citing to are Postal Service Board contract appeals cases.

[00:15:45] Speaker 00:
He did cite, he did refer to one Fed Circuit case, I think, from the dissent opinion, the board's opinion, but those cases are not applicable here, but there's an important distinction that needs to be made generally, is that this is not the same as a typical government contract.

[00:16:05] Speaker 00:
It's a fixed price contract, for one thing.

[00:16:07] Speaker 00:
So we're not talking about, you don't get costs.

[00:16:10] Speaker 00:
It's a fixed price contract, so the Post Service is ordering trucking services.

[00:16:14] Speaker 00:
And they're not basing, the contractor doesn't come back for costs later.

[00:16:20] Speaker 00:
A lot of the cases that are cited in the briefs are construction cases.

[00:16:24] Speaker 00:
And the reason we made the distinction that we did between Jara Shantilly and the other, it's not coming to mind right now, the other board case was that those are construction cases where the government can make a change to the contract and say, hey, now we have more money, we're going to add a fourth floor to this building that you're currently building.

[00:16:41] Speaker 00:
contractor has no choice but to continue with that construction contract.

[00:16:45] Speaker 00:
And those cases have an actual right, they have an express right for the contractor to then come back and say, this is how much more it cost me to do that.

[00:16:55] Speaker 00:
And so this is not that type of case.

[00:16:57] Speaker 04:
When you say a lot of them, are you saying all of them or are you saying, I mean, how do you distinguish the Beatle case?

[00:17:02] Speaker 00:
The Beatle case, first of all, the Beatle case is completely different from

[00:17:06] Speaker 00:
What we have here is nothing like this case.

[00:17:08] Speaker 00:
The appellant sought payment for services that had already ordered and performed.

[00:17:13] Speaker 00:
And the parties didn't realize for two and a half years that this guy had been doing many more miles than he thought that he was supposed to do.

[00:17:24] Speaker 00:
Or he had been doing more miles than he had agreed to in the contract.

[00:17:27] Speaker 00:
And so the question in that case was, how do we compensate this guy for work that he has already performed and not been paid for?

[00:17:34] Speaker 00:
just been receiving shorts for two and a half years.

[00:17:38] Speaker 00:
And so factually, it's totally different.

[00:17:41] Speaker 04:
But the board didn't say, so we're going to pay them on equitable grounds.

[00:17:46] Speaker 04:
The board said that the contract didn't contemplate.

[00:17:50] Speaker 00:
Well, actually, the board found that the government had breached the contract in that case.

[00:17:55] Speaker 00:
There's no breach in this case.

[00:17:56] Speaker 00:
The government has never breached any of the promises that it made in 2007.

[00:18:01] Speaker 00:
when the parties agreed that this is how they were going to change the contract by adding and subtracting routes.

[00:18:08] Speaker 00:
The Homer Beatle case, and it's not controlling because it's a board case.

[00:18:13] Speaker 00:
So factually, it's totally distinguishable.

[00:18:17] Speaker 00:
The contract was breached.

[00:18:19] Speaker 00:
And then as far as when we just make these general, I mean, the opposing council made some kind of general comments that normally in these types of cases, the contractor is able to come back.

[00:18:29] Speaker 00:
That's imprecise.

[00:18:32] Speaker 00:
The cases where that happens, it's because there's an express right to do that in the contract that's being referenced.

[00:18:38] Speaker 03:
I think in the briefing, there was some suggestion that this language in this contract is unusual.

[00:18:43] Speaker 03:
Can you explain that?

[00:18:45] Speaker 00:
Your Honor, I mean, part of the reason that it's unusual is because typically when you're discussing government contracts, you're discussing standard FAR clause provisions, and those provisions don't apply to the Postal Service.

[00:18:56] Speaker 00:
The Postal Service has its own contracting system.

[00:18:59] Speaker 00:
There's a website that has all the clauses that are referenced in the contract as you look through the contract that we submitted.

[00:19:07] Speaker 00:
I mean, there's many points where it cites to specific contract clauses.

[00:19:11] Speaker 00:
Normally, in a FAR contract, those clauses are all in Section 52 of the Federal Acquisition Regulation.

[00:19:17] Speaker 00:
You can go to that and look at it.

[00:19:19] Speaker 00:
That's not what we're talking about here.

[00:19:20] Speaker 00:
It's a different kind of contract.

[00:19:22] Speaker 00:
And so the rules that apply typically... Is it a different kind of contract from

[00:19:26] Speaker 04:
all others that the Postal Service has used or is a different kind of contract than normal government contracts?

[00:19:32] Speaker 04:
I'm not sure I understand what your point is.

[00:19:35] Speaker 00:
The only distinction I'm making, Your Honor, is that the main distinction that needs to be made here is that the changes clause in this contract does not provide a mechanism for the plaintiff to come back after it negotiates a bilateral amendment and ask for additional money.

[00:19:53] Speaker 00:
That's not a right that's provided in the contract that they agreed to in 2007.

[00:19:57] Speaker 00:
So they're trying to find rights that aren't in there.

[00:20:02] Speaker 00:
And they're doing that by referring to cases that relied on different contract clauses.

[00:20:08] Speaker 04:
But had the government done a partial termination, I mean, this seems like more than just a change.

[00:20:12] Speaker 04:
You're actually terminating an entire portion of the route.

[00:20:16] Speaker 04:
It's just a matter of language.

[00:20:18] Speaker 04:
If we'd called this a partial termination, they would have the right to compensation.

[00:20:21] Speaker 00:
Your Honor, it is a matter of language, and you have to be very careful about what language you're using.

[00:20:26] Speaker 00:
This is not a termination.

[00:20:27] Speaker 00:
They did not terminate this contract.

[00:20:29] Speaker 00:
They removed a route.

[00:20:30] Speaker 00:
But isn't it a partial termination?

[00:20:31] Speaker 00:
It's not, Your Honor.

[00:20:32] Speaker 00:
It says that this route is being eliminated pursuant to the changes clause.

[00:20:40] Speaker 00:
At the very top of that modification, it says what the rules of this change are going to be.

[00:20:45] Speaker 04:
But I'm saying that Postal Service could have just as easily accomplished the same thing through a partial termination.

[00:20:50] Speaker 04:
Could it not?

[00:20:50] Speaker 00:
That's correct, Your Honor.

[00:20:51] Speaker 00:
They could have.

[00:20:52] Speaker 04:
And then they would have had the right to come back and seek compensation.

[00:20:55] Speaker 00:
No, they wouldn't, Your Honor.

[00:20:56] Speaker 00:
Then you have to go to the termination clause and see what the termination clause provides.

[00:21:01] Speaker 00:
The termination clause provides that if they couldn't agree and they decided to terminate that particular route,

[00:21:09] Speaker 00:
or the entire contract, which they didn't do, they would have gotten 60 days of payment.

[00:21:13] Speaker 00:
They would have gotten 60 days notice.

[00:21:16] Speaker 00:
So they would have continued to perform or not.

[00:21:18] Speaker 00:
It's up to the party to decide.

[00:21:20] Speaker 00:
But that termination clause kicks in, and it defines their rights, and they have limited rights.

[00:21:25] Speaker 00:
But those are the rights that they agreed to when they signed the contract in 2007.

[00:21:28] Speaker 00:
That's what the parties set up when they built this contract and signed it.

[00:21:36] Speaker 03:
One thing that Justin points out

[00:21:39] Speaker 03:
in response to the argument about the new rate per mile somehow providing them, compensating them for the change.

[00:21:47] Speaker 03:
They point out that they were paid on an annual contract basis.

[00:21:50] Speaker 03:
So what's your position on that?

[00:21:52] Speaker 03:
Do you think that there was any intent at all to compensate them for the idle costs?

[00:21:58] Speaker 00:
Again, Your Honor, this is where you have to be very careful about the extent and why you're considering extraneous information.

[00:22:06] Speaker 00:
This is not an ambiguous modification.

[00:22:09] Speaker 00:
And so this court does not consider extrinsic evidence unless it makes a determination that the contract is ambiguous.

[00:22:17] Speaker 00:
This is not an ambiguous contract, and it's not an ambiguous modification.

[00:22:22] Speaker 04:
But the board majority actually did look at extrinsic evidence, did it not?

[00:22:26] Speaker 00:
Your Honor, the board looked at extrinsic evidence in the same way that the case that it cited to looked at extrinsic evidence, and that was Coast

[00:22:37] Speaker 00:
federal.

[00:22:38] Speaker 00:
And in that case, the extrinsic evidence did not affect the outcome of the case at all.

[00:22:43] Speaker 00:
The contract was not ambiguous.

[00:22:44] Speaker 00:
The court was careful to say that.

[00:22:46] Speaker 00:
And it said extrinsic evidence had no bearing on the outcome.

[00:22:49] Speaker 00:
Although we need not consider the extrinsic evidence to interpret this unambiguous agreement, we note that much of it is consistent with the agreement's plain meaning.

[00:22:57] Speaker 00:
So all they did was note that the evidence was consistent.

[00:23:00] Speaker 00:
And so the majority did the exact same thing in the majority's opinion.

[00:23:06] Speaker 00:
simply pointing out that, hey, if we did examine extrinsic evidence, if it did come to that, these are the facts that would be fatal to Justin's case anyway.

[00:23:18] Speaker 00:
But to answer Judge Stoll's question about the consideration, I mean, based on the document itself, it shows that the rate went up.

[00:23:29] Speaker 00:
Prior, there was a wage adjustment.

[00:23:31] Speaker 03:
How is that relevant if they're paid on an annual basis?

[00:23:35] Speaker 00:
They're not, well, Your Honor, they're not paid on, they're paid by the mile.

[00:23:39] Speaker 00:
So they're paid by the mile, they're paid by, I mean, this is a trucking contract, so they get paid at a certain rate per mile, and the rate per mile went up, and if you calculate it out on an annual basis, it went up $47,000.

[00:23:53] Speaker 00:
I mean, over the course of a year.

[00:23:56] Speaker 03:
So, and just to make... What about their argument that that's just a

[00:24:02] Speaker 03:
a formal calculation or that's just a calculation that would have occurred even without the change?

[00:24:08] Speaker 00:
First of all, Your Honor, that relies on extrinsic evidence, which is not required here because it's an unambiguous contract.

[00:24:15] Speaker 00:
But I mean, if you're going to look at extrinsic evidence, there was evidence before the board that that's not the Postal Service position that the contracting officer considered this to be an increase in rate.

[00:24:27] Speaker 00:
And he considered it to be related to the fact that they were losing a large route.

[00:24:33] Speaker 00:
But again, that's not relevant to the outcome of this case.

[00:24:37] Speaker 00:
And I'm not exactly sure how they believe that to be true to begin with.

[00:24:45] Speaker 00:
But again, based on the plain language of the Four Corners of this document, you're looking at a significant increase

[00:24:52] Speaker 00:
in the amount that they're being paid, and that's sufficient for consideration for the purposes of this case.

[00:25:03] Speaker 00:
The other thing I'll say, as to the meaning of the mines, if it did come to the meaning of the mines, Texas Instruments and Holland make it very clear that this course is to look at the totality of the circumstances and were to look at

[00:25:21] Speaker 00:
whether there are accompanying expressions sufficient to make the claimant understand or to make it unreasonable for him not to understand that the performance is offered in full satisfaction.

[00:25:31] Speaker 00:
In this case, based on the contract, the base contract that this amendment was based on, it's completely unreasonable for Justman to think that they can come back later and get additional costs.

[00:25:43] Speaker 00:
This is a fixed price contract.

[00:25:45] Speaker 00:
And they agreed to this change.

[00:25:48] Speaker 00:
The contract provides no mechanism

[00:25:51] Speaker 00:
for the type of extra money that they're now coming back and asking for today.

[00:25:57] Speaker 00:
Thank you, Your Honor.

[00:25:58] Speaker 01:
Thank you.

[00:25:58] Speaker 01:
Mr. Singley, Mr. Handel has a little rebuttal time.

[00:26:07] Speaker 02:
Thank you.

[00:26:08] Speaker 02:
I do have to correct one statement Mr. Singley made that absolutely we're not paid by mile.

[00:26:13] Speaker 02:
Any postal officials in the back room would agree with that.

[00:26:16] Speaker 02:
There is a rate per mile.

[00:26:18] Speaker 02:
For the convenience of the parties, if there are extra trips and they want to use that in terms of pricing an extra trip, they are absolutely not paid per mile.

[00:26:25] Speaker 02:
They are paid an annual price.

[00:26:27] Speaker 02:
There is no question about that.

[00:26:28] Speaker 02:
Look at the payment clause.

[00:26:30] Speaker 02:
Look at Joint Penic 67.

[00:26:33] Speaker 02:
It will tell you it is an annual rate contract.

[00:26:36] Speaker 02:
No question about that whatsoever.

[00:26:38] Speaker 02:
I might explain why the government thinks what it does about this case.

[00:26:44] Speaker 02:
very short change order is only ambiguous if you interpret it to be an end all.

[00:26:52] Speaker 02:
As it's written, it is completely consistent.

[00:26:55] Speaker 02:
It doesn't have to be changed one word to interpret it the way Justin does as just setting the going forward price.

[00:27:02] Speaker 02:
Now, there was some question about what authority do we have to get more money?

[00:27:05] Speaker 02:
Once we have this, what authority is there to reimburse them for those idle equipment costs?

[00:27:10] Speaker 02:
Well, the amendment itself is the authority.

[00:27:14] Speaker 02:
There is unfinished business in there, and that's the authority.

[00:27:17] Speaker 02:
But if you want more authority, you can find it too.

[00:27:20] Speaker 02:
There's in Joint Appendix 67 and 77, there's an adjustment compensation clause on Joint Appendix 77.

[00:27:30] Speaker 02:
In 2.1, there's language that allows the contracting officers to make adjustments in a situation like that.

[00:27:35] Speaker 02:
So there's plenty of authority in the contract to do it.

[00:27:39] Speaker 02:
The interpretation offered by the government as to why the Changes Clause would hamstring the Postal Service would create a terrible policy.

[00:27:49] Speaker 02:
It would basically say, look, there's a change that needs to be done.

[00:27:52] Speaker 02:
Both parties are willing to do it.

[00:27:55] Speaker 02:
But for whatever reason, they can't agree as to what the price should be.

[00:27:59] Speaker 02:
And in that situation, if that comes up, which comes up all the time, and in that situation, here are your options.

[00:28:09] Speaker 02:
either agree to a price, which they said they can't agree on, or you must terminate the contract, or Pulsars can't do the change of laws.

[00:28:16] Speaker 02:
That's absurd.

[00:28:18] Speaker 02:
That's an absurd result.

[00:28:20] Speaker 02:
And no one would intend that.

[00:28:21] Speaker 02:
And if that's the intended result, you know what?

[00:28:23] Speaker 02:
You've got to say it in the contract clause.

[00:28:25] Speaker 02:
No court would ever impose that kind of absurdity.

[00:28:27] Speaker 02:
And if you look at what this court did in the Keeter case,

[00:28:30] Speaker 02:
that it is interpreting the changes clause that are in these types of contracts to protect the contractor, not to rip off the contract.

[00:28:40] Speaker 02:
And with that, I urge you to reverse the decision, agree with the dissent, and bring some justice for Justin's freight lines.

[00:28:46] Speaker 01:
Thank you.

[00:28:47] Speaker 01:
Thank you, Mr. Hindell.

[00:28:48] Speaker 01:
We'll take the case under advisement.