[00:00:06] Speaker 01:
May I please?

[00:00:07] Speaker 02:
Oh, I'm sorry.

[00:00:09] Speaker 02:
That's OK.

[00:00:09] Speaker 02:
Proceed.

[00:00:10] Speaker 01:
May I please the court take care on behalf of the appellants?

[00:00:14] Speaker 01:
Greetings from Yakima, the other Washington.

[00:00:17] Speaker 01:
We are here today on cross motions for summary judgment.

[00:00:21] Speaker 01:
And obviously, I am here because our motion for summary judgment was denied.

[00:00:26] Speaker 01:
The issue ultimately comes down in this contract interpretation case to whether there is an ambiguity

[00:00:34] Speaker 01:
within the contract itself.

[00:00:38] Speaker 01:
And if there is an ambiguity, is it resolved or has it been resolved by virtue of result to the construction rules that are there?

[00:00:50] Speaker 01:
This is an IDIQ contract, and it is important for everyone to remember that there are three different types of contracts that could be at issue here.

[00:00:59] Speaker 02:
Now, what is your position?

[00:01:00] Speaker 02:
Was there an ambiguity or not?

[00:01:02] Speaker 01:
No.

[00:01:03] Speaker 02:
You're saying it's clear, and you're basing that on Appendix 376.

[00:01:10] Speaker 02:
Pardon your honor?

[00:01:12] Speaker 02:
What number are you pointing us to that says that there was no ambiguity?

[00:01:16] Speaker 02:
This is the money to it.

[00:01:17] Speaker 01:
That the task order 112 says on six separate occasions that it is for the $483,061.

[00:01:24] Speaker 02:
And on those occasions, that number is followed by the letters EST.

[00:01:34] Speaker 02:
EST.

[00:01:34] Speaker 01:
Correct.

[00:01:35] Speaker 01:
Which goes to the concept of this is an IDIQ contract.

[00:01:40] Speaker 01:
It is indefinite as to quantity and indefinite as to, it is the subject of that contract is an estimate.

[00:01:51] Speaker 01:
It is subject to change.

[00:01:53] Speaker 01:
If you look at the case law that we cited through your honors with respect to what an IDIQ contract is to indefinite in quantity during a fixed period,

[00:02:08] Speaker 01:
at a minimum level.

[00:02:09] Speaker 01:
And that's what takes it out of the concept of being an illusory contract.

[00:02:14] Speaker 01:
There has to be a minimum level there, otherwise it is an illusory contract.

[00:02:20] Speaker 01:
This is a contract that EVs entered into with respect to feeding troops.

[00:02:26] Speaker 01:
And as the record demonstrates, it is, and I believe the quote is from Chief Gibson, a fluid process, because you have

[00:02:35] Speaker 01:
in this case, 2nd Chemical Battalion from down south, who was coming in to do a training exercise.

[00:02:42] Speaker 01:
And they were going to be there for a month and a half.

[00:02:45] Speaker 01:
And so you never knew, your troops on the ground, which battalions were going to, or which units were going to be there.

[00:02:53] Speaker 01:
It's a fluid process.

[00:02:55] Speaker 01:
And that's why we cited to your honors the concept of how Task Order 110 worked.

[00:03:02] Speaker 01:
There were 111 task orders.

[00:03:05] Speaker 01:
before task order 112, which is why we're here today.

[00:03:08] Speaker 01:
And they all work the same way.

[00:03:11] Speaker 01:
And that is, in the task order itself, which was the implementation of the overriding parent contract, the IDIQ, there was, within the CLIN section, set forth the specific number of breakfasts, lunch, and dinners.

[00:03:30] Speaker 01:
And yes, there were estimates.

[00:03:33] Speaker 01:
It then had a unit price, and that was a firm fixed price.

[00:03:39] Speaker 01:
That was not subject to change.

[00:03:42] Speaker 01:
So under unit price, it was a firm fixed price.

[00:03:47] Speaker 01:
And if it was a breakfast, a lunch, or a dinner, it would be at the, I don't remember exactly, $7.77.

[00:03:55] Speaker 01:
What could change was the units.

[00:03:59] Speaker 01:
That's how many breakfasts.

[00:04:01] Speaker 02:
Okay, what I'm a little confused about, I'm looking at appendix 376.

[00:04:06] Speaker 01:
Correct.

[00:04:08] Speaker 02:
And it says item one, quantity one each, unit price 483,000.

[00:04:13] Speaker 02:
Correct.

[00:04:14] Speaker 02:
Well, it can't be 483,000 for one breakfast.

[00:04:20] Speaker 01:
You are correct.

[00:04:22] Speaker 01:
And that's why this was an unusual task order.

[00:04:26] Speaker 01:
Matter of fact, it was the only one

[00:04:28] Speaker 01:
when I asked Sergeant Gibson about, because it says unit one, unit price $483,000, it is not broken down.

[00:04:38] Speaker 01:
That's why, in the record, when Evie's employees saw this task order that had eventually been issued, he called the Washington Guard, who he thought was his corps, Sergeant DeGroff, I believe, and said, am I reading this right?

[00:04:57] Speaker 01:
Unit one, unit price $4.86.

[00:05:01] Speaker 01:
And the response to that was, say thank you, Sergeant DeGroff.

[00:05:08] Speaker 01:
The employee called because you're absolutely right, Your Honor.

[00:05:11] Speaker 01:
This was absolutely out of the norm.

[00:05:13] Speaker 01:
This was unusual.

[00:05:15] Speaker 01:
We submitted to you deposition testimony from Chief Officer Gibson.

[00:05:23] Speaker 01:
Because I asked him in his deposition, is this normal?

[00:05:26] Speaker 01:
When do you see this?

[00:05:29] Speaker 01:
His response was, this was unusual, which it was.

[00:05:33] Speaker 01:
And in response to that, he said, you see this when it's one of those 11th hour things, where you're going to get troops on the ground, and you have to have a funding mechanism.

[00:05:43] Speaker 01:
Otherwise, those troops aren't going to get fed.

[00:05:45] Speaker 02:
Yeah, but the attachments go very specifically and use the number you suggested, which is 774, right?

[00:05:53] Speaker 02:
the attachments that come up with the 300, whatever, the number that you pay.

[00:05:58] Speaker 01:
Yeah, the attachments come down because they are referenced in the actual task order 112 as being the daily meal breakdown.

[00:06:08] Speaker 01:
It doesn't say, this is what you're going to be paid.

[00:06:10] Speaker 01:
It is for daily meal breakdown, which is, again, a usual procedure because there's logistics involved.

[00:06:19] Speaker 01:
EVs doesn't just get

[00:06:22] Speaker 01:
Normally a number, they have to have a number of troops.

[00:06:27] Speaker 01:
That's going to be the target for them to occur.

[00:06:29] Speaker 02:
So why aren't those attachments more appropriate than the overall number, which you say makes no sense because it talks about 483,000 per unit.

[00:06:38] Speaker 01:
It actually does make sense because, again, remember the process in this case was that this task order started out as a direct acquisition contract.

[00:06:50] Speaker 01:
Because Second Camp Battalion was going to do an exercise in Yakima and had come to EVs to say, hey, can you provide us meal services?

[00:07:01] Speaker 01:
They then said, you need to talk to the Washington National Guard people and fund this as a member.

[00:07:09] Speaker 01:
I'm learning a lot of an anachronisms here, but it's just a funding mechanism.

[00:07:14] Speaker 01:
It's so that you can use the IDIQ contract

[00:07:18] Speaker 01:
Washington National Guard said, no, we don't have the resources to be able to observe and watch out for this contract.

[00:07:28] Speaker 01:
And therefore, we're not going to allow you to use our IDIQ contract.

[00:07:33] Speaker 01:
EVs protested.

[00:07:35] Speaker 01:
Washington Guard stuck with their judgment.

[00:07:37] Speaker 01:
So at that point in time, the employees from EVs went to a direct acquisition contract with Second Chem Battalion.

[00:07:46] Speaker 01:
And that's where this number of 483,061 comes from.

[00:07:54] Speaker 01:
Because if you look at in its appendix 508 through 511, that was the emails exchanged like two weeks before this task order was eventually issued.

[00:08:09] Speaker 01:
And in that, it specifically has the, you'll see 1,100 troops, because that's what it was based on.

[00:08:17] Speaker 01:
The employee at EVs ran his direct acquisition numbers and contract in the form of a task order.

[00:08:27] Speaker 01:
And so that's the number.

[00:08:28] Speaker 01:
That's where it comes from is $483,061 on the direct acquisition contract.

[00:08:35] Speaker 01:
That's what was submitted to 2nd Chem Battalion.

[00:08:38] Speaker 01:
That exact number is the one that's used on task order 112.

[00:08:45] Speaker 01:
And it says unit one, unit price, $483,061.

[00:08:50] Speaker 01:
In the context of how this all came together, it makes perfect sense.

[00:08:58] Speaker 01:
And it does say unit one, unit price.

[00:09:01] Speaker 01:
And it doesn't say unit price estimate.

[00:09:03] Speaker 01:
It says unit price, 483,061.

[00:09:08] Speaker 01:
Because that's the firm fixed price.

[00:09:11] Speaker 01:
It is unusual.

[00:09:14] Speaker 01:
It is.

[00:09:15] Speaker 01:
If there is, and I'm going to delve into the ambiguity part, because I think my clock, I think I'm running out of time.

[00:09:25] Speaker 01:
I reserved five minutes.

[00:09:26] Speaker 01:
Does it say that I did?

[00:09:28] Speaker 02:
Yes, it does.

[00:09:29] Speaker 02:
And the clock will turn yellow in 43 seconds.

[00:09:31] Speaker 02:
Oh, OK.

[00:09:34] Speaker 01:
I just wanted to touch very briefly on the ambiguity part, because the contra proforentum, sorry if my Latin's bad,

[00:09:44] Speaker 01:
That concept applies here.

[00:09:47] Speaker 01:
And even if there was some sort of patent ambiguity, which we don't think applies here because this is not a bid solicitation or a contract solicitation claim, therefore, it is not a situation where that concept applies.

[00:10:08] Speaker 01:
If it did apply, all that needs to happen is a seeking of clarification.

[00:10:14] Speaker 01:
And EV sought clarification in this case.

[00:10:17] Speaker 01:
They sought clarification by calling Sergeant DeGroff, who said, just say thank you.

[00:10:23] Speaker 01:
They also sought clarification because the 2nd Chem Battalion was acting as the corps.

[00:10:28] Speaker 01:
And they asked on several occasions, do you want to modify the contract down from the 1,100 that it was based on?

[00:10:35] Speaker 01:
And they were told in no uncertain terms no.

[00:10:38] Speaker 01:
So clarification was sought.

[00:10:40] Speaker 01:
And also, the FAR on the 1,100

[00:10:44] Speaker 01:
order of precedence or preference again has been met in this case because the attachments, which is what the government relies upon, were the number eight or number nine on that regulation.

[00:11:02] Speaker 01:
Thank you, Your Honor.

[00:11:09] Speaker 00:
Good morning.

[00:11:10] Speaker 00:
May it please the Court?

[00:11:11] Speaker 00:
There are two categories of contract interpretation issues that support the trial court's entry of summary judgment in this case.

[00:11:18] Speaker 00:
The first being global issues, some of the language that you've already been speaking with the Appellants' Council about.

[00:11:24] Speaker 00:
And then the second category are specific interpretative flaws with the appellants' argument.

[00:11:31] Speaker 00:
I'm going to start with the global issues, which

[00:11:33] Speaker 00:
In addition to page 376 of the appendix, the trial court's analysis really began on page 374 of the appendix, which in box 26 identifies the total award amount.

[00:11:45] Speaker 00:
And then again, it's $483,061 EST.

[00:11:51] Speaker 00:
And then now that box then cascades down to the page 376 of the appendix that you were speaking with the Appellants' Council about.

[00:11:59] Speaker 00:
What the trial court did is they looked at the litany of cases that have defined what EST and what estimate mean.

[00:12:07] Speaker 00:
And what they found is that that term unambiguously communicates a non-binding commitment.

[00:12:13] Speaker 02:
Can I ask you about that, though?

[00:12:14] Speaker 02:
On 376, that number appears, the 483,000 appears four times, right?

[00:12:23] Speaker 02:
Yes.

[00:12:23] Speaker 02:
And in two out of the four, there's no EST.

[00:12:27] Speaker 00:
Right.

[00:12:28] Speaker 00:
And ma'am, there's actually a structural explanation for that.

[00:12:31] Speaker 00:
So the very bottom number that you see

[00:12:36] Speaker 00:
Yeah, the body, the fourth one in your center, the bottom one, that represents the fact that as Mr. Carroll alluded to, these funds had been wired over from the active duty to the guard.

[00:12:49] Speaker 00:
That line entry there represents that that is the amount that's been wired over to the guard.

[00:12:54] Speaker 00:
Then the other, the top line of this, where we see all the way to the right, the $483,061 EST, that's the product.

[00:13:03] Speaker 00:
of the multiplication that's occurring to the left of that.

[00:13:06] Speaker 00:
So by the operation of the rules of grammar, because we know that the product of that multiplication is an estimate, and therefore the multipliers that precede it are also, by definition, estimate.

[00:13:17] Speaker 03:
No, not both of them, right?

[00:13:20] Speaker 03:
It only means one of them would be an estimate.

[00:13:22] Speaker 03:
Why wouldn't it be quantity?

[00:13:23] Speaker 03:
Because that's the way you look in every indefinite quantity contract, which is what this is.

[00:13:28] Speaker 00:
Exactly, ma'am.

[00:13:28] Speaker 00:
I think that's right.

[00:13:29] Speaker 03:
You could read... One of them is fixed and one is an estimate.

[00:13:32] Speaker 00:
At least one of them needs to be an estimate, and potentially both of them could, but you're absolutely right.

[00:13:36] Speaker 00:
And I think the fair way to read this is.

[00:13:37] Speaker 03:
And unit price is never an estimate.

[00:13:39] Speaker 03:
If you look at all the other task orders, it's $6.70 for breakfast, $9.12 for dinner.

[00:13:47] Speaker 03:
That doesn't seem to be something that anyone has ever suggested is, in fact, an estimate.

[00:13:51] Speaker 03:
That seems to be the fixed price.

[00:13:54] Speaker 00:
Well, yes.

[00:13:55] Speaker 00:
And if you take that quantity one, what that is describing is the entirety of the last three pages of this task order, the five weeks worth of data that is contained there.

[00:14:06] Speaker 00:
And the reason why it ended up there as opposed to where you might normally see, which was right underneath the data line that we're talking about, is because... I don't understand how you're trying to rationalize this as opposed to saying at 11 o'clock at night, the guy must have been drunk when he wrote it.

[00:14:21] Speaker 03:
Because I mean, I don't see how it makes any sense.

[00:14:25] Speaker 03:
This task order makes no sense to me in that I get your EST argument totally with you.

[00:14:31] Speaker 03:
I understand what EST is used in a definite quantity contract.

[00:14:34] Speaker 03:
It's because you're saying we don't know exactly what the quantity we're going to ultimately need is and thus the overall number is purely an estimate.

[00:14:42] Speaker 03:
But it just seems that this quantity one unit price 483 is just a mess up.

[00:14:49] Speaker 03:
But you're trying to rationalize it to me when it doesn't make any sense and I'm not buying your rationalism.

[00:14:55] Speaker 00:
I think it certainly could have been written in a more clear fashion with respect to what that quantity pertains to.

[00:15:01] Speaker 00:
But then when you go down to the next line and it directs you to the last three pages of this task order,

[00:15:05] Speaker 00:
you have the myriad of details that apply to this exercise.

[00:15:09] Speaker 00:
So while I recognize it certainly could have been done a different way, I think in this circumstance, it's an efficiency act that led them to do it this way, rather than deconstructing those three spreadsheets that you see into potentially

[00:15:23] Speaker 00:
200 pages of specific entries that follow.

[00:15:27] Speaker 00:
I think that, while it certainly could have been done a different way, that's the rationale that they had for doing it this way, that it's just a more efficient way to convey a significant amount of information.

[00:15:37] Speaker 00:
And it helps to think about what the scope of this arrangement was.

[00:15:40] Speaker 00:
This is a tiny guard base.

[00:15:42] Speaker 00:
a tiny guard unit, and a tiny contractor.

[00:15:44] Speaker 00:
Typically, they were providing services over a drill weekend, which is a Saturday and Sunday, three meals a day.

[00:15:50] Speaker 00:
That level of information can easily be conveyed in what we're looking at on appendix 376.

[00:15:55] Speaker 00:
For the first time during the life of this contract, you had an outside unit come to the training facility and want to use not only the field where the training could happen, but some of the contracts.

[00:16:06] Speaker 03:
None of that has anything to do with how I interpret one,

[00:16:11] Speaker 03:
quantity which supposed to be indefinite in nature and the fixed price unit price which in every other contract of this kind is a fixed price and it's usually articulated on a per meal basis.

[00:16:21] Speaker 00:
Well and I think it helps to go back to the IDIQ contract to sort of figure out what we're talking about and this this relates to some of the specific interpretive flaws that I've noted in the appellant's argument.

[00:16:31] Speaker 03:
The first being that... Did they provide one?

[00:16:35] Speaker 03:
Did they provide?

[00:16:35] Speaker 03:
One.

[00:16:36] Speaker 03:
The quantity asked for is one.

[00:16:38] Speaker 03:
Estimated you will need one.

[00:16:41] Speaker 03:
Did they provide one?

[00:16:42] Speaker 00:
They provided the exact number of meals that were listed in the last three pages of Task Order 112.

[00:16:48] Speaker 00:
The breakfast, lunch, and dinner breakdown for each day.

[00:16:50] Speaker 00:
That is what they provided.

[00:16:52] Speaker 00:
So if you roll that all up into the quantity of one, then that is... Then they provided one.

[00:16:57] Speaker 03:
They did.

[00:16:58] Speaker 03:
Okay, so now if they provided one,

[00:17:00] Speaker 03:
That's the estimate.

[00:17:01] Speaker 03:
The fixed price under unit price is $483,000.

[00:17:04] Speaker 03:
So why don't they get $483,000 if they provided one?

[00:17:07] Speaker 00:
Because the IDIQ contract defines unit as meals.

[00:17:12] Speaker 00:
Per the IDIQ contract, meals will be provided.

[00:17:15] Speaker 03:
Where does it define units as meals?

[00:17:17] Speaker 00:
322 of the appendix says, meals shall be provided to customers at fixed prices.

[00:17:23] Speaker 00:
No, no.

[00:17:23] Speaker 03:
The task order.

[00:17:23] Speaker 03:
Where does the task order say that units are meals?

[00:17:26] Speaker 03:
Well, the task order incorporates

[00:17:28] Speaker 00:
The task order incorporates the terms of the IDIQ contract.

[00:17:32] Speaker 00:
And for the IDIQ contract, in the event that it conflicts with the task order, the IDIQ contract prevails.

[00:17:39] Speaker 00:
So even if we were to adjust the unit that we're discussing here from a specific meal to a specific time period, that would create a conflict between the IDIQ contract and task order 112.

[00:17:52] Speaker 00:
And the IDIQ contract... Why?

[00:17:54] Speaker 03:
Where does the IDIQ contract... I'm at 322.

[00:17:57] Speaker 03:
Where does it say that the units are meals?

[00:18:04] Speaker 00:
Under summary of services, in the second sentence, meals shall be provided to customers at fixed prices negotiated by the USPFO for Washington.

[00:18:12] Speaker 03:
Now... And they provided meals?

[00:18:15] Speaker 03:
that fixed prices, you know, this, I don't know.

[00:18:19] Speaker 03:
I just look, your good argument is that it says estimates throughout and that that's got to prevail.

[00:18:26] Speaker 03:
Your bad argument is, I can see no rational explanation for this quantity one unit price 483.

[00:18:34] Speaker 03:
It makes absolutely no sense.

[00:18:37] Speaker 03:
It's clearly just a mess up.

[00:18:39] Speaker 03:
It is not something that I want to encourage people to do for, quote, efficiency reasons, as you started to suggest this would serve.

[00:18:46] Speaker 00:
Well, Ma'am, I'm certainly not venturing to encourage anyone to draft a contract like this.

[00:18:51] Speaker 00:
What I'm telling you is the rationalization that they had at the time that they were drafting this.

[00:18:55] Speaker 00:
And the way the trial court resolved that is noting that the undisputed definition of what estimate means and then the clarification that's provided in the last three pages of task order 112 and knowing that the price per meal is fixed.

[00:19:12] Speaker 00:
What the ultimate result of that higher number is to cover the potentiality of

[00:19:17] Speaker 03:
Well, wouldn't a good argument if I was going to try to find some way to live with quantity one unit 483 be quantity as always in an indefinite quantity contract?

[00:19:29] Speaker 03:
So maybe they only provided 0.73 based on everything that follows in the spreadsheet or something.

[00:19:35] Speaker 00:
To my earlier point, that's my reading of this quantity one is that when I say it's informed by the data entry that's in the last three pages of task order 112,

[00:19:44] Speaker 00:
That rolls up into that one.

[00:19:46] Speaker 03:
So they did provide all... See, that can't roll up into the one.

[00:19:49] Speaker 03:
That can't be what constitutes one, because if it is, then they're supposed to get a unit price of 483,000.

[00:19:55] Speaker 00:
Well, no, because the 483,000 is marked clearly as an estimate.

[00:19:59] Speaker 03:
No, the total is marked as an estimate based on the notion of an indefinite quantity.

[00:20:03] Speaker 03:
But if in this case they provided one, the price they're supposed to get for one is not indefinite.

[00:20:10] Speaker 00:
Well, no, I think you have to read the contract in its entirety, which is not only the page that we're focused on, but the three pages of detail that follow, that inform what we're reading.

[00:20:23] Speaker 00:
So right underneath the single line that we're talking about, it directs the parties to these last three pages.

[00:20:28] Speaker 00:
which then have the level of detail provided.

[00:20:32] Speaker 00:
And what we know from the contracting officer's deposition, which is at page 422 of the appendix, the reason that 483, that higher number, remained there was because that's the number that was wired over from the active duty side.

[00:20:46] Speaker 00:
And to cover them in the event that for whatever... There's a need for more.

[00:20:51] Speaker 00:
Exactly.

[00:20:51] Speaker 03:
In case there's a need for more.

[00:20:52] Speaker 03:
I get it.

[00:20:52] Speaker 03:
That's why it's an estimate.

[00:20:53] Speaker 03:
But why is it have a 483 under the unit price?

[00:20:56] Speaker 00:
We know the origination of that number and that number came from the initial negotiations between the contractor and an outside unit or an outside agency.

[00:21:08] Speaker 00:
So that's where that number originated.

[00:21:10] Speaker 00:
And then in the months after those original negotiations happened.

[00:21:13] Speaker 03:
What is it the unit price for?

[00:21:16] Speaker 03:
What unit costs $483,000?

[00:21:18] Speaker 00:
Well, I don't think you can read this line here to answer that question.

[00:21:24] Speaker 00:
I don't think

[00:21:25] Speaker 03:
Okay, what can I read to answer that question?

[00:21:28] Speaker 03:
What unit is the government agreeing to pay 483,000 for one?

[00:21:32] Speaker 00:
Well, I don't think that's how this is to be read.

[00:21:35] Speaker 00:
I think because we know that the unit of measure for this contract is meals.

[00:21:40] Speaker 00:
So then we have to read that next line underneath that directs us to look at these other three pages.

[00:21:45] Speaker 00:
To read it otherwise would create a conflict between the two documents.

[00:21:49] Speaker 00:
And in that case, then the IDIQ contract would prevail.

[00:21:58] Speaker 00:
There is a secondary or a second argument that the appellant had with respect to modification, whether or not this 483,000 number became locked in because the task order was never modified.

[00:22:13] Speaker 00:
Again, referring back to the IDEIQ contract at page 323 of the appendix, that provides that if the meals requested change, a task order modification is required.

[00:22:25] Speaker 00:
What we have here is the actual number of meals requested never changed.

[00:22:30] Speaker 00:
They were the identical numbers that were provided five days before any party executed this contract.

[00:22:35] Speaker 00:
That's exactly what the active duty units needed.

[00:22:38] Speaker 00:
Those were the number of meals provided and ultimately that was the compensation that was paid to the contractor.

[00:22:46] Speaker 02:
What about your friend's arguments with respect to the clarification that his client sought and did not receive?

[00:22:52] Speaker 00:
Well, and that goes to whether or not ambiguity exists.

[00:22:56] Speaker 00:
And if we disregard all of the EST notations and then we disregard the last three pages of the taskbook, we end up with an ambiguity.

[00:23:05] Speaker 03:
No, you end up with an ambiguity if the contract overall contradicts in other places all of that other stuff.

[00:23:12] Speaker 00:
Well, that's exactly right.

[00:23:13] Speaker 03:
You don't have to disregard it.

[00:23:15] Speaker 03:
You just have to weigh it against other aspects of the contract and decide if there's confusion.

[00:23:19] Speaker 00:
Well, since we know what estimate means as a matter of law, my point would be to get to that ambiguity, you'd have to disregard that.

[00:23:26] Speaker 00:
But the end result being that there is an ambiguity within this contract.

[00:23:32] Speaker 00:
The requirement to seek clarification is pretty clear in this case because there was an obvious question that would have immediately resolved all of this.

[00:23:41] Speaker 00:
How much am I getting paid for this contract?

[00:23:44] Speaker 00:
When you look at the appendix and the deposition of the 30B6 representative from the contractor, he said he immediately noticed.

[00:23:50] Speaker 00:
His words were right off the bat.

[00:23:52] Speaker 00:
He noticed the potential for confusion, and he didn't bring up the issue.

[00:23:55] Speaker 00:
What he did bring up were two questions, both directed to the wrong people and both not going directly to the issue, one being the formatting questions.

[00:24:05] Speaker 00:
Am I looking at this right?

[00:24:07] Speaker 00:
Well, one, as the Appellant's Council acknowledged,

[00:24:10] Speaker 00:
They directed that to a person who was in the guard, but not the contracting officer representative.

[00:24:16] Speaker 00:
And as the contracting officer noted in his decision, that was a person with absolutely no authority directed with respect to this contract.

[00:24:25] Speaker 03:
In any event, the formatting questions... I know you went on that argument, but it is a certainly frustrating argument, right?

[00:24:31] Speaker 03:
You have a little caterer like Evie's that is serving our troops in a meaningful and useful capacity.

[00:24:36] Speaker 03:
And the idea that the person within the government that answered the question in a favorable way to them had apparent but not actual authority and therefore they can't get any money.

[00:24:44] Speaker 03:
I understand you went on it.

[00:24:45] Speaker 03:
I understand the law is the law, but it sure isn't very palatable for small companies like this that are seeking to serve their government.

[00:24:53] Speaker 00:
And ma'am, I don't disagree with you, but the flip side of that is when you receive a contract like this five days before you sign it, and you tell me that you notice the potential for confusion right off the bat, and you didn't bring it up, you didn't ask, the bottom line is this

[00:25:08] Speaker 00:
We didn't have to be here.

[00:25:09] Speaker 00:
This was a very easy dispute to resolve because they asked that question, what am I getting paid?

[00:25:15] Speaker 00:
And they're told the answer.

[00:25:16] Speaker 00:
And they're either happy with it or they're not.

[00:25:18] Speaker 00:
And that can be dealt with immediately.

[00:25:20] Speaker 00:
And we're not in litigation.

[00:25:21] Speaker 00:
That's the whole point of this clarification.

[00:25:24] Speaker 00:
And what we know from the Dalton v. Cessna case is that if you ask these vague questions, if you ask questions that are not getting to the heart of the issue, you need to ask follow-up questions.

[00:25:33] Speaker 00:
You need to ask the right questions.

[00:25:35] Speaker 00:
And I can't imagine a scenario where there's a more obvious question to ask.

[00:25:38] Speaker 00:
My first take at this contract was, why didn't you just ask that?

[00:25:42] Speaker 00:
We could have resolved all of this.

[00:25:44] Speaker 00:
And if you look at it, the contracting officer even said if that had come up, we could have resolved this.

[00:25:50] Speaker 00:
And then even on the back side, if they didn't be able to provide information... Who was it that said this is a gift?

[00:25:56] Speaker 00:
Well, it's a person named Sergeant DeGroff, and I know I'm getting close to my time, but it's a person who is no longer employed with the government in any capacity.

[00:26:06] Speaker 00:
He was never deposed in this case, never spoken with.

[00:26:08] Speaker 00:
He had no authority on this contract.

[00:26:10] Speaker 00:
But the appellant's point is, what he said is, be thankful for this contract or something like that.

[00:26:15] Speaker 00:
And if I may, I think there's a common sense answer to that, which is, as I noted, this is a small base, a small unit, and a small contractor.

[00:26:23] Speaker 00:
This arrival of this active duty unit allowed them in one month, even at the $317,000 number, allowed them in one month to make more than they would in an entire year.

[00:26:33] Speaker 00:
That is what I think he was referring to there, is that you've been only working on the weekends for this small guard unit, and now all of a sudden you've got this fantastic opportunity.

[00:26:42] Speaker 00:
Be thankful for that.

[00:26:43] Speaker 00:
I think that's the common sense way to read that.

[00:26:45] Speaker 00:
But in any event, that person wasn't involved with the administration in this contract.

[00:26:49] Speaker 00:
So thank you very much.

[00:26:49] Speaker 00:
Thank you.

[00:26:56] Speaker 01:
Thank you.

[00:26:56] Speaker 01:
You may have pleased the court.

[00:26:59] Speaker 01:
Sorry this will be scattered, but last point first.

[00:27:04] Speaker 01:
I don't think there's any evidence in the record that this was as much as they would make an entire year.

[00:27:11] Speaker 01:
And I don't know if that's relevant, but it's just, yes, EVs is a smaller entity.

[00:27:19] Speaker 01:
But if you look at even task order 110, it's for a significant amount of money.

[00:27:26] Speaker 01:
The two key points that I want to make is, number one, in order to change the quantity one for 83.061, Judge Murray was right.

[00:27:40] Speaker 01:
I mean, this is a situation where you have to take that one and then go 0.73.

[00:27:47] Speaker 01:
Actually, I wrote that down before you said it.

[00:27:49] Speaker 01:
But you have to use a decimal point in order to make that

[00:27:55] Speaker 01:
be a lesser amount.

[00:27:56] Speaker 03:
I know.

[00:27:57] Speaker 03:
But see, your problem is that line.

[00:28:00] Speaker 03:
I have to find ambiguity in the contract.

[00:28:02] Speaker 03:
And the contract uses the word estimate six times next to the 483.

[00:28:06] Speaker 03:
And then also it includes a detailed spreadsheet.

[00:28:09] Speaker 03:
And I think that that line is clearly an unintentional screw up.

[00:28:14] Speaker 03:
But that doesn't create necessarily ambiguity if the whole rest of the contract informs everybody of what the deal actually was.

[00:28:23] Speaker 03:
And so that's kind of, to be honest with you, where I'm at on your case.

[00:28:27] Speaker 03:
I just feel like I'm not going to hide the ball from you.

[00:28:29] Speaker 03:
I kind of think the rest of the contract informs everybody with clarity of what they were really agreeing to, even though that line makes no sense.

[00:28:40] Speaker 01:
But the notation that is there

[00:28:44] Speaker 01:
which is on 376, says that those spreadsheets are daily meal breakdowns.

[00:28:56] Speaker 01:
The $317,000 number that they paid appears nowhere.

[00:29:01] Speaker 03:
I know.

[00:29:02] Speaker 03:
You have to add them all up.

[00:29:02] Speaker 03:
You have to add them all up.

[00:29:04] Speaker 03:
I read all of your brief.

[00:29:05] Speaker 03:
Trust me.

[00:29:06] Speaker 01:
And the clarification that needs to be sought if indeed, because I don't

[00:29:13] Speaker 01:
Respectfully, I don't think you can look at this and say there isn't some sort of ambiguity potentially based upon the dialogue that we're having.

[00:29:24] Speaker 01:
I still think it's clear, and that is my argument.

[00:29:26] Speaker 01:
But if there is an ambiguity, all that had to be done, and it isn't that you have to resolve the dispute, you just have to seek clarification.

[00:29:38] Speaker 01:
Our representative called and spoke to Sergeant DeGroff, and then maybe he didn't have the actual authority.

[00:29:45] Speaker 01:
Did they seek clarification?

[00:29:47] Speaker 01:
The answer is yes.

[00:29:48] Speaker 01:
Did they seek clarification by asking for a modification?

[00:29:53] Speaker 01:
Asking Second Kim, do you want to modify this contract?

[00:29:57] Speaker 01:
Not just once, but on several different occasions.

[00:30:00] Speaker 01:
In order to change that one to a .73, that takes a modification.

[00:30:08] Speaker 01:
EVs, through its representative, asked Second Camp, do you want to modify the contract?

[00:30:14] Speaker 01:
And they were told, no, there's too many missing or moving parts.

[00:30:20] Speaker 01:
We don't know from time to time what's going to happen in this case.

[00:30:23] Speaker 01:
And that's the nature of these types of exercises.

[00:30:27] Speaker 01:
Had there been a modification done, again, that's why task order 110, which is not an issue here, is important.

[00:30:34] Speaker 01:
There's a process you go through, and it's a process that EVs was familiar with.

[00:30:39] Speaker 01:
and had no problem going down.

[00:30:41] Speaker 01:
That was not a process that was invoked in this case.

[00:30:46] Speaker 01:
Therefore, we request that the decision from the court be reversed and that actually EVEs be granted judgment in this case.

[00:30:55] Speaker 02:
Thank you.

[00:30:55] Speaker 02:
We thank both sides and the case is submitted.

[00:30:59] Speaker 02:
Next case for argument is