[00:00:40] Speaker 01:
You're on a reserve file?

[00:00:43] Speaker 01:
Yes, Your Honor.

[00:00:46] Speaker 03:
By the way, Your Honor, I'm a member of the Nevada Bar also.

[00:00:48] Speaker 03:
And I have a mediation in front of Judge Philip Pro, retired Judge Philip Pro, on Tuesday.

[00:00:53] Speaker 03:
And he said for me to give you his regards.

[00:00:56] Speaker 01:
Well, tell him I always used to get him to apply the Phil Prolactic role when I could.

[00:01:03] Speaker 03:
Anyhow, we are here on an appeal in regards to an ASBCA decision

[00:01:10] Speaker 03:
regarding the interpretation of a regulation regarding base access.

[00:01:16] Speaker 01:
Let me establish a framework.

[00:01:22] Speaker 01:
Have you looked at Stockton East Water District?

[00:01:26] Speaker 01:
No.

[00:01:26] Speaker 01:
It follows Connor and clarifies a little bit.

[00:01:31] Speaker 01:
But we evaluate the applicability of the Sovereign Acts Doctrine using a two-factor test.

[00:01:41] Speaker 01:
We asked whether the governmental act is properly attributable as contractor or sovereign.

[00:01:48] Speaker 01:
And you conceded sovereign.

[00:01:51] Speaker 01:
Correct.

[00:01:52] Speaker 01:
OK.

[00:01:52] Speaker 01:
The second factor is if the government's act was a genuine public and general act.

[00:02:01] Speaker 01:
And if so, we asked whether that act would otherwise release the government from liability.

[00:02:09] Speaker 01:
under ordinary principles of contract law, which is to say, impossibility of performance.

[00:02:15] Speaker 01:
Do you agree with that?

[00:02:16] Speaker 03:
Yes, Your Honor.

[00:02:17] Speaker 03:
This isn't so much a sovereign act issue.

[00:02:21] Speaker 03:
We don't disagree that the government had the right to limit base access.

[00:02:27] Speaker 03:
There's absolutely no dispute about that.

[00:02:30] Speaker 03:
I understand that.

[00:02:31] Speaker 03:
And in fact, I walk around DC today and I see different

[00:02:37] Speaker 03:
procedures in place in security than it was five years ago, ten years ago.

[00:02:42] Speaker 01:
What we have an issue here, it's basically... My question is, do you have anything about impossibility of performance in the decision below?

[00:02:49] Speaker 03:
No, no, there was no impossibility of performance.

[00:02:52] Speaker 03:
What we have here though, is the government saying that... I don't see it discussed below, is what I'm saying, by the board.

[00:03:02] Speaker 03:
Right, and it's not.

[00:03:04] Speaker 03:
It's not, and I don't think there was

[00:03:06] Speaker 03:
an impossibility of performance.

[00:03:09] Speaker 03:
What we have here, though, Your Honor, is a situation where the government has the right to restrict base access.

[00:03:18] Speaker 03:
The commanding officer has pretty much unrestricted, you know, unless it's, you know, egregious and so forth.

[00:03:25] Speaker 03:
But the bottom line is, we didn't have that in this case.

[00:03:29] Speaker 03:
The base commander had the authority to limit the base access any way that she deemed appropriate.

[00:03:37] Speaker 01:
I think somebody said to act at whim in one of the emails.

[00:03:43] Speaker 03:
But what we have, and it's set forth in appendix 170, where the Corps of Engineers say, we researched the base security restrictions according to the Maelstrom Air Force base personnel and documentation dated before March of 2006.

[00:04:00] Speaker 03:
The security restrictions for certain types of combat layer were, in effect,

[00:04:05] Speaker 03:
before August of 2006 award of the aforementioned contract.

[00:04:10] Speaker 03:
The October 2007 policy was a reissue of the same restrictions as those implemented shortly after September 11th of 2001.

[00:04:20] Speaker 03:
We have no information indicates the base access policy has changed since September 2001.

[00:04:27] Speaker 03:
So what

[00:04:28] Speaker 03:
they are saying is there was no change in base access policy.

[00:04:32] Speaker 02:
If that's true, then you lose, right?

[00:04:35] Speaker 02:
If they had always done this the way they did in 2007, you're out, right?

[00:04:41] Speaker 02:
Because you agreed the 2007 policy was OK.

[00:04:44] Speaker 02:
That is correct.

[00:04:45] Speaker 02:
The number of this is did it actually change or not.

[00:04:48] Speaker 03:
That is correct.

[00:04:48] Speaker 03:
And even the board recognized that up until spring of 2007,

[00:04:54] Speaker 03:
There were no restrictions in place, and the people were getting access.

[00:04:58] Speaker 02:
Well, that's the real question, right?

[00:04:59] Speaker 02:
Because clearly, these people were getting in before 2007.

[00:05:06] Speaker 02:
That doesn't mean there wasn't a policy.

[00:05:08] Speaker 02:
It could either mean there wasn't a policy and they did change it, or nobody was enforcing the policy.

[00:05:14] Speaker 03:
That is correct.

[00:05:15] Speaker 03:
So now what we have here is the situation

[00:05:19] Speaker 03:
where we're looking at the regulations.

[00:05:21] Speaker 03:
And what do the regulations say?

[00:05:22] Speaker 03:
And what was that access policy?

[00:05:24] Speaker 02:
Can I ask you a question about that?

[00:05:25] Speaker 02:
Yes.

[00:05:26] Speaker 02:
I am a little puzzled.

[00:05:27] Speaker 02:
I think you both, although the government can respond to, both agree that this is a matter of regulatory interpretation.

[00:05:35] Speaker 02:
Yes.

[00:05:36] Speaker 02:
So we would employ our normal rules of regulatory interpretation.

[00:05:39] Speaker 02:
If it's plain, it's plain.

[00:05:41] Speaker 02:
If it's ambiguous, we'd look to, we'd probably defer to the government.

[00:05:46] Speaker 02:
Do you agree that it's regulatory interpretation?

[00:05:49] Speaker 02:
It seems odd to me, honestly, that it's regulatory interpretation when this is a base-specific policy on access.

[00:05:57] Speaker 02:
I don't understand why it's not a factual determination.

[00:06:01] Speaker 03:
Because the contract required them to follow the base restrictions, the base regulations, and the grace directives.

[00:06:09] Speaker 03:
That's what we look to.

[00:06:10] Speaker 03:
And so that's our position is we look to those regulations.

[00:06:14] Speaker 02:
Sure.

[00:06:14] Speaker 02:
No, no, no.

[00:06:14] Speaker 02:
I get that.

[00:06:15] Speaker 02:
But I don't understand when we're trying to divine what a particular basis policy on security access is, why that's not a factual issue versus a regulatory issue.

[00:06:26] Speaker 03:
Well, my understanding of the case law is that

[00:06:30] Speaker 03:
The regulatory review is a deniable review in which the government... No, no, no.

[00:06:36] Speaker 02:
I get that.

[00:06:37] Speaker 02:
Maybe I'm not being clear.

[00:06:38] Speaker 02:
I don't understand why both sides think this is a regulatory issue.

[00:06:42] Speaker 02:
It seems to me to be a fact issue.

[00:06:49] Speaker 00:
Why is it a regulation?

[00:06:51] Speaker 03:
Yes.

[00:06:52] Speaker 03:
Well, in regards to the regulation aspect of it,

[00:06:59] Speaker 03:
It is to control the base access that may be different from each and every different area.

[00:07:07] Speaker 03:
And therefore, it is specifically limited to Mouths from Air Force Base.

[00:07:12] Speaker 03:
And so we have to look at Mouths from Air Force Base's interpretation and their access regulations.

[00:07:23] Speaker 02:
I don't know if I'm asking you a question.

[00:07:26] Speaker 02:
It's fine.

[00:07:27] Speaker 02:
So what we're looking at, though, is we're looking at two sentences from the pre-2007 regulation, right, that says, we're going to send this to NCIC for a once-in-warrants check.

[00:07:40] Speaker 02:
And then the second sentence is about waivers.

[00:07:53] Speaker 02:
unfavorable results, right?

[00:07:54] Speaker 03:
Yes, there's actually two in 2005.

[00:07:56] Speaker 03:
And so that's what we're doing, is the government is saying we have a 2005 regulation that was issued before the contract was awarded, and we have a 2007 memo from the commanding officer.

[00:08:13] Speaker 00:
So the 2005 says a 911 dispatcher will run the employee's name through the National Criminal Information Center system for a once-warrant check.

[00:08:21] Speaker 00:
unfavorable results will be scrutinized and eligibility will be determined on a case-by-case basis.

[00:08:26] Speaker 00:
Correct.

[00:08:27] Speaker 00:
That's what we're talking about.

[00:08:28] Speaker 03:
That's what we're talking about.

[00:08:29] Speaker 03:
Because if they're going to run it through for an NCIC check, we're checking everything, then the words for a wants and warrants check becomes superimposed.

[00:08:38] Speaker 03:
Why do you even have it there?

[00:08:40] Speaker 03:
And so we looked at this provision and said, you're going to look for wants and warrants and unfavorable results of that, wants and warrants,

[00:08:50] Speaker 03:
will preclude you from entering the base, or it needs to be determined on a case-by-case basis.

[00:08:57] Speaker 00:
Now, there is also- They say that people know it's a term NCIS.

[00:09:01] Speaker 00:
Once and warrants was a term of art.

[00:09:03] Speaker 00:
And everybody knew it meant more than just once and warrants.

[00:09:07] Speaker 00:
It included a criminal check.

[00:09:09] Speaker 00:
The second sentence doesn't make any sense if that weren't the case.

[00:09:14] Speaker 03:
Right.

[00:09:14] Speaker 03:
And so we look at the instructions.

[00:09:16] Speaker 03:
The security base instructions were issued five days later.

[00:09:19] Speaker 03:
And what does that say?

[00:09:21] Speaker 03:
It says the VCC staff will forward the contracting ELA to the 911 dispatch center.

[00:09:28] Speaker 03:
A 911 dispatcher certified on the NCIC will run the contractor names through the NCIC for wants and warrants.

[00:09:42] Speaker 03:
Period.

[00:09:44] Speaker 03:
After the dispatcher completes the NCIC check, they will sign the letters and return them to the VCC.

[00:09:51] Speaker 03:
So it's telling the contractor, we're running it through the NCIC system for wants and warrants.

[00:10:00] Speaker 03:
If they had eliminated that information, if they had just said, look, this is going to be a global check.

[00:10:05] Speaker 02:
Is your position that wants and warrants has a specific meaning within the NCIC system?

[00:10:12] Speaker 02:
Yes.

[00:10:12] Speaker 03:
The wants and warrants are wants and warrants.

[00:10:14] Speaker 03:
It's not a criminal background check.

[00:10:16] Speaker 02:
Yes.

[00:10:17] Speaker 02:
The problem with what I'm having for all of this is the record doesn't establish one way or another what everybody was thinking of when they were using this term.

[00:10:29] Speaker 02:
I think you're probably right that wants and warrants at NCIC, taking that phrase as used by NCIC, means something different than background check.

[00:10:42] Speaker 02:
It means people that have outstanding warrants or are wanted for something.

[00:10:46] Speaker 03:
Well, that's true.

[00:10:48] Speaker 03:
And as you go through the history... But that's a fact-finding.

[00:10:51] Speaker 01:
Excuse me?

[00:10:52] Speaker 01:
But that's a fact-finding.

[00:10:54] Speaker 01:
And there was testimony from the commanding officer that at least her inquiry indicated that once and warrants had always meant, oh no, we look at everything.

[00:11:11] Speaker 03:
Well... I'm remembering from looking at the... Yes.

[00:11:14] Speaker 03:
One of the things was,

[00:11:15] Speaker 03:
When we pull up the background check, it provides us with everything else.

[00:11:19] Speaker 03:
But it's not so it provides everything else.

[00:11:23] Speaker 03:
What we're looking for is wants and warrants.

[00:11:26] Speaker 03:
And so by expanding that and eliminating all these other people, you've then drastically narrowed the field.

[00:11:33] Speaker 02:
But see, this is why I ask you whether this is a fact question or a regulatory question.

[00:11:38] Speaker 02:
Because if it's a fact question that we're reviewing for substantial evidence,

[00:11:43] Speaker 02:
then we have testimony from the government that this policy on its face was meant to include a general background check, even though it only referenced NCIC wants and wants.

[00:11:53] Speaker 02:
If that's the case, I think you have a hard time.

[00:11:55] Speaker 02:
If it's a regulatory interpretation case, then we're looking first to see whether the regulation is plain on its face, right?

[00:12:03] Speaker 02:
Correct.

[00:12:03] Speaker 02:
And if it's plain on its face, we don't get to all this other stuff.

[00:12:07] Speaker 02:
Even if the government meant something by it, they're bound by the plain language they put in the regulation.

[00:12:13] Speaker 03:
And it's our position that the plain language restricts it to a once more, that this is not a factual issue.

[00:12:19] Speaker 03:
This is a regulation interpretation that needs to be reviewed de novo.

[00:12:24] Speaker 03:
And that you look at this specific language, there is no ambiguity.

[00:12:29] Speaker 03:
We are checking for this.

[00:12:30] Speaker 02:
Well, and the problem I guess I'm having is the board found that there was ambiguity because they said if you construe it literally, then there would be no reason to have

[00:12:43] Speaker 02:
following sentences about having case-by-case eligibility and determinations, because they're not going to let anybody on base that has an outstanding warrant.

[00:12:54] Speaker 02:
Right.

[00:12:54] Speaker 03:
Which, by the way, these... Do you think that creates ambiguity?

[00:13:01] Speaker 03:
On its face, it does not.

[00:13:05] Speaker 03:
If the court takes into consideration things that are inconsistent with it, it does create ambiguity.

[00:13:10] Speaker 03:
But you should not be using

[00:13:12] Speaker 03:
this testimony that's outside to be trying to get through the plain language.

[00:13:18] Speaker 02:
No, I'm not talking about the testimony outside.

[00:13:20] Speaker 02:
I'm talking about these two sentences put together, looking at them on their face.

[00:13:24] Speaker 02:
OK.

[00:13:25] Speaker 02:
Is there ambiguity from saying, we'll do a once-in-warrant check, and then we'll determine accidents on a case-by-case basis?

[00:13:33] Speaker 03:
The only reason why the court got there was because of testimony from the security commander.

[00:13:41] Speaker 02:
But if you look at this... Could it be that somebody could get a positive on the wants and warrants check and it could be an outdated warrant, which is why there could be reason for a case-by-case basis?

[00:13:54] Speaker 03:
Oh, sure.

[00:13:54] Speaker 03:
There could be several reasons.

[00:13:57] Speaker 03:
Let's say there's a wants and warrants in Florida, and this is in Montana, and it's for unpaid child support, and you owe $1,200.

[00:14:05] Speaker 03:
Well, do you want to extradite them?

[00:14:07] Speaker 03:
No.

[00:14:08] Speaker 03:
You know, so there's a multitude of reasons

[00:14:11] Speaker 03:
why you would not, you know, why an unfavorable result on a wants and warrants would result in... So I've taken up a lot of your time, but I just want to ask one final question.

[00:14:23] Speaker 02:
If we're still looking at this as a regulatory framework and we find that it is ambiguous, then do you agree that we look at the agency's interpretation to see whether it gets deference?

[00:14:35] Speaker 03:
Yes.

[00:14:35] Speaker 02:
Okay.

[00:14:36] Speaker 03:
One other thing.

[00:14:38] Speaker 02:
You're eating your rebuttal time.

[00:14:40] Speaker 03:
I know I am, Your Honor.

[00:14:41] Speaker 03:
But this also deals with the constructive acceleration issue.

[00:14:45] Speaker 03:
Because by saying this is a sovereign act, and it's an excusable delay, but you don't get a time extension for it, we believe that under the rules of constructive acceleration, that they shouldn't be entitled to time extension.

[00:15:03] Speaker 03:
Constructive acceleration when they don't get a time extension.

[00:15:13] Speaker 04:
May it please the court.

[00:15:14] Speaker 04:
I'd like to pick up where you sort of left off with my colleague at the bar on what this would mean if you adopted their reading.

[00:15:23] Speaker 04:
Not only does it have the problem, as Judge Hughes identified, that if somebody has a wants and warrants, it was testimony.

[00:15:30] Speaker 04:
If you've got a want or warrant, regardless if it's outstanding from Florida, you're still not getting on the base.

[00:15:35] Speaker 04:
They're not even going to go case by case.

[00:15:37] Speaker 04:
You have no chance of getting on the base.

[00:15:39] Speaker 04:
So that it would exclude the second part of that portion.

[00:15:42] Speaker 04:
But even more importantly is this, Joe has a warrant out for him for murder.

[00:15:46] Speaker 04:
He's suspected of murder.

[00:15:47] Speaker 04:
And so he goes to try to get in and they don't say, no, no, you've got a warrant.

[00:15:52] Speaker 04:
We're going to turn you over to the police.

[00:15:53] Speaker 04:
And so he goes and he confesses to murder.

[00:15:56] Speaker 04:
Now we know he's a murderer.

[00:15:58] Speaker 04:
And they put him out on bail until his sentencing.

[00:16:00] Speaker 04:
Now, according to the plaintiff's reading, now he gets to walk on base because it's an open door, because he no longer has an open warrant.

[00:16:06] Speaker 02:
Can I back you up?

[00:16:08] Speaker 02:
Do you agree that we're looking at this as a matter of regulatory interpretation?

[00:16:14] Speaker 04:
That was the way we described it in our brief.

[00:16:16] Speaker 04:
The organic statute that served as the basis of 103 and 101 does use the word regulatory.

[00:16:24] Speaker 04:
So I'm talking about 50 USC 797.

[00:16:27] Speaker 04:
And what it says is a defense property security regulation is a property security regulation.

[00:16:33] Speaker 04:
And one of the ways that it's created is by a military commander.

[00:16:37] Speaker 04:
So the statute says that.

[00:16:40] Speaker 04:
And that is the way we describe it on our brief.

[00:16:42] Speaker 04:
I think we get to the same conclusion whether we talk about it either way, because as the- Well, I mean, you get to the same conclusion if we find it ambiguous.

[00:16:51] Speaker 02:
Yes, Your Honor.

[00:16:52] Speaker 02:
If we find that NCIC wanton warrants is a term of art,

[00:16:56] Speaker 02:
that means only wants and warrants, and it's plain, then we don't get to the same conclusion.

[00:17:02] Speaker 04:
Yes, Your Honor, but that would require reading the statute as meaning that every convicted spy, felon, and the like could walk on the base, while people who might be only suspected of it could be stopped.

[00:17:13] Speaker 04:
And that would lead as the board found out.

[00:17:15] Speaker 02:
Well, is that true?

[00:17:16] Speaker 02:
I mean, there's also testimony that there was policies in place that they ran things through the Montana thing that would bring up those kind of felons.

[00:17:26] Speaker 04:
Well, that was all part of the wants and warrants check.

[00:17:29] Speaker 04:
If I could take a step back for a second.

[00:17:31] Speaker 02:
Here's the problem for me is it's clear that there was a practice of doing something maybe more than the wants and warrants check, but it's also clear you didn't enforce this practice for a long, long time.

[00:17:45] Speaker 02:
against a bunch of people that were then suddenly excluded, that made this job very tough for this contractor to do.

[00:17:51] Speaker 04:
If I could respectfully change that, Your Honor, and say, no, the policy was the same.

[00:17:56] Speaker 02:
So for example, and I'm talking about- So are you admitting then that the policy wasn't enforced?

[00:18:01] Speaker 04:
I'm admitting that there was a loophole that was exploited and that was closed, yes.

[00:18:05] Speaker 04:
And so if I could give you an example.

[00:18:07] Speaker 04:
In 2006, we have a congressional letter that's in the record at A287 where

[00:18:13] Speaker 04:
Congressman Bacchus is writing saying we've got a person who was convicted as a crime who's not been allowed on the base.

[00:18:19] Speaker 04:
Why?

[00:18:20] Speaker 04:
And the explanation, this is before all of this arose, this is, this is, and the explanation was we do a background check and felons are not allowed on the base.

[00:18:28] Speaker 04:
So this was the policy.

[00:18:30] Speaker 04:
What happened, as I understand it, and the record is not entirely clear, was that there was a policy allowing vouching where a veteran could bring somebody else on the base by vouching for them.

[00:18:41] Speaker 04:
It wasn't really supposed to happen.

[00:18:42] Speaker 04:
It certainly wasn't supposed to happen for contractors, but it had happened, or at least it seems like that had happened.

[00:18:48] Speaker 04:
So there was testimony that people were able to get on base.

[00:18:51] Speaker 04:
It wasn't a good idea.

[00:18:52] Speaker 04:
They realized security-wise, so they tried to put an end to this practice that was against policy.

[00:19:00] Speaker 04:
And that made it more difficult.

[00:19:01] Speaker 04:
But there's two important points to that, one of which is this.

[00:19:05] Speaker 04:
At the pre-construction meeting, where Talcott, where JTC attended that meeting,

[00:19:10] Speaker 04:
They were told, and the minutes of that are at A270, they were told background checks, the word background checks, background checks would be conducted and that felons would be excluded.

[00:19:22] Speaker 04:
And we have the minutes for that and we have the stipulated testimony of Mr. Barnett, which is cited by the trial judge, who said that he remembers that meeting and he remembers that being told along those lines.

[00:19:35] Speaker 04:
So they did have notice.

[00:19:37] Speaker 04:
They knew, if they were paying attention at that meeting, because they attended that meeting, JTC attended that meeting, as did Garco, they had notice.

[00:19:45] Speaker 01:
So we have... Mr. Dutcher, I want to ask you about the Sovereign Acts document.

[00:19:48] Speaker 01:
Yes, Your Honor.

[00:19:50] Speaker 01:
Two-part test.

[00:19:52] Speaker 01:
Pretty much your opposing counsels conceded the first part.

[00:19:56] Speaker 01:
Yes, Your Honor.

[00:19:58] Speaker 01:
So let me take you to the second factor.

[00:20:03] Speaker 01:
If the government's act was a

[00:20:05] Speaker 01:
genuine public and general act, we ask whether that act would otherwise release the government from liability under ordinary principles of contract law.

[00:20:16] Speaker 01:
That is impossibility.

[00:20:20] Speaker 01:
Neither the parties nor the board address that second factor.

[00:20:25] Speaker 01:
So, one, are we permitted to consider it?

[00:20:32] Speaker 01:
I have an answer.

[00:20:33] Speaker 01:
Yes.

[00:20:33] Speaker 04:
I mean, I believe that that would be illegal as long as, I mean, if you're reading the contract, and we believe that that's represented in the contract, so it would be illegal.

[00:20:42] Speaker 04:
I think you could do that without any fact.

[00:20:44] Speaker 01:
Has the government satisfied its burden of demonstrating the second factor?

[00:20:48] Speaker 04:
Yes, Your Honor.

[00:20:49] Speaker 04:
So if you look at the contract, this is in the appendix 103 of the general area requirements, the activities of the contractor, and I'm reading this, and contractors, employees, and subcontractors, and their employees,

[00:21:02] Speaker 04:
while on the base will be conducted in accordance with base regulations.

[00:21:05] Speaker 04:
It's their responsibility to comply with base regulations.

[00:21:09] Speaker 04:
It's their responsibility to get their people ready so that they can come on the base and meet the regulations of the base.

[00:21:14] Speaker 00:
There is... Can I say appendix for that?

[00:21:16] Speaker 00:
Did you say 301?

[00:21:18] Speaker 04:
It is appendix 103.

[00:21:20] Speaker 04:
Yes, you are.

[00:21:21] Speaker 04:
And so it is their obligation, their responsibility to get their people ready to come on the base.

[00:21:27] Speaker 04:
It certainly wasn't the government

[00:21:29] Speaker 04:
taking that responsibility and turning back, Your Honor, to the Connor decision, which reads on to this case.

[00:21:36] Speaker 04:
In that case, it was found that Coke, it was almost exactly the same.

[00:21:40] Speaker 04:
There was a perimeter established.

[00:21:42] Speaker 04:
Contractors weren't allowed to get on.

[00:21:44] Speaker 04:
And it turned out that the Coke vendor and the cable vendor, they did get on.

[00:21:49] Speaker 04:
And they shouldn't have been allowed on.

[00:21:52] Speaker 04:
And that was a violation of the policy.

[00:21:54] Speaker 04:
And what this court held,

[00:21:56] Speaker 04:
in that case was the fact that there were some exceptions and mistakes made in the policy didn't mean that the policy didn't exist and didn't mean it wasn't a sovereign act.

[00:22:04] Speaker 04:
So even though in the past the plaintiffs may have gotten some people on the base to a loophole, that didn't mean that the policy didn't exist, didn't mean it wasn't a sovereign act, and the fact that they had noticed in that pre-construction meeting before they signed the contract.

[00:22:20] Speaker 04:
There's a course of practice.

[00:22:22] Speaker 04:
Yes, Your Honor, but before the plaintiffs signed the contract,

[00:22:25] Speaker 04:
in that pre-construction meeting, they were told that this was how it was going to be.

[00:22:30] Speaker 04:
So even if there had been, which, Your Honor, because it was against the base policy, I would say it wasn't a course of practice.

[00:22:36] Speaker 04:
Whatever it was before that, they were told at this meeting, before they signed the contract, that there wasn't, that there would be background checks and that felons would be excluded.

[00:22:47] Speaker 02:
And I mean, I find that it's somewhat helpful to you.

[00:22:50] Speaker 02:
But if they've been operating under the same policy in the same language for a long time,

[00:22:55] Speaker 02:
It doesn't seem like this was isolated incidences of a loophole.

[00:22:59] Speaker 02:
It seems like this company did a substantial portion of the work on this base.

[00:23:04] Speaker 02:
It's in an isolated area.

[00:23:06] Speaker 02:
They do the work.

[00:23:06] Speaker 02:
They had habitually used convict labor as it's the regulation.

[00:23:11] Speaker 02:
That was the test.

[00:23:12] Speaker 04:
We don't have any evidence of that because nobody kept records of it, but they did testify to it and it was undisputed.

[00:23:16] Speaker 02:
But that's the only, yeah, it's undisputed.

[00:23:18] Speaker 02:
It's the only evidence we have, so we have to take that.

[00:23:20] Speaker 02:
That most of this, a lot of their workforce were

[00:23:23] Speaker 02:
parolees and in pre-release, we have a letter from the pre-release program to another company saying we can't get your people on base anymore, so we can't participate.

[00:23:33] Speaker 02:
Why don't we take that into context when we look at that pre-construction meeting?

[00:23:38] Speaker 02:
It doesn't sound like it was announced as, oh, there's a big change in policy here.

[00:23:42] Speaker 02:
We're not going to let you on base anymore if you have a conviction or are on parole or probation.

[00:23:48] Speaker 02:
And if they knew that it had the same once-in-once language and for

[00:23:52] Speaker 02:
however many years they were getting people in, then despite this one reference at the meeting, they thought the policy was something else.

[00:24:02] Speaker 02:
Well, and they may have thought the policy, respectfully, Your Honor.

[00:24:06] Speaker 02:
It sounds like the government thought the policy was something else.

[00:24:09] Speaker 04:
No, Your Honor, and if you read that congressional letter at A287... Well, that's in 2006.

[00:24:13] Speaker 04:
I mean, if it's been going on for

[00:24:15] Speaker 04:
Yeah, but that's before any of this happened.

[00:24:17] Speaker 04:
So that was the stated policy.

[00:24:19] Speaker 04:
But there's also testimony, the testimony of Mr. Ward, testimony of Major Finnan, and of Colonel Finnan, I apologize.

[00:24:26] Speaker 04:
And both of them said this was the practice.

[00:24:29] Speaker 04:
And also it just makes sense that convicts didn't have an open door on a military base, on a PL-1 military base.

[00:24:37] Speaker 04:
So respectfully, Your Honor, no, both the ongoing policy, the ongoing rule, and the practice was to keep these people off.

[00:24:44] Speaker 04:
The fact that there was a loophole and that it was mistaken exactly mirrors the Connors case, which this court exactly rejected as a basis for undermining sovereign immunity.

[00:24:56] Speaker 01:
20 years of practice doesn't sound like a loophole.

[00:25:00] Speaker 04:
Your Honor, if they hadn't been told

[00:25:04] Speaker 04:
clearly at that meeting before they signed the contract.

[00:25:07] Speaker 01:
Were they told clearly anything that they hadn't been told clearly before for the last 20 years?

[00:25:13] Speaker 04:
There's nothing in the record about it.

[00:25:14] Speaker 04:
But in that meeting it was stated that there would be a background check and I mean basically they have to listen in the pre-construction meeting and understand what the rules are going to be before they sign the contract and although it's not in this record it was presented and signed by

[00:25:34] Speaker 04:
by counsel's firm, the stipulations were that their bid was not relied upon, JTC's bid was not relied upon by Garco when they put in their bid.

[00:25:44] Speaker 04:
So they could have, at that meeting, if they'd been paying attention, all they had to do was listen, as Mr. Barnett did, realize, oh, even if we'd done it before, maybe there's a problem here.

[00:25:54] Speaker 04:
Maybe we just check before we sign the contract.

[00:25:58] Speaker 04:
That's all we were asking, is that they listen at the meeting that they were supposed to be listening at,

[00:26:02] Speaker 04:
And then before they sign the contract, know what they're signing.

[00:26:06] Speaker 04:
And that's separate from the fact that their reading of the regulation didn't make sense.

[00:26:11] Speaker 02:
Why isn't it pretty strong evidence that the policy was changed?

[00:26:15] Speaker 02:
If we're just looking at plain language, when it actually was changed and it once in warrants, language was taken out and background checks was put in.

[00:26:23] Speaker 04:
Respectfully, Your Honor.

[00:26:25] Speaker 04:
You want to call that a clarification.

[00:26:27] Speaker 04:
Or guidance, yes.

[00:26:28] Speaker 04:
And so what had happened is they continually said,

[00:26:31] Speaker 04:
We're confused.

[00:26:32] Speaker 04:
We're confused.

[00:26:32] Speaker 04:
We're confused.

[00:26:33] Speaker 04:
And the base, they were trying to accommodate them.

[00:26:37] Speaker 04:
And so they offered some guidance, some printed guidance, not just to them, but to everyone.

[00:26:42] Speaker 04:
They said, OK.

[00:26:43] Speaker 02:
Is there anything in the record to suggest that when you do a wants and warrants check, you get back something more than just wants and warrants?

[00:26:50] Speaker 02:
Yes.

[00:26:50] Speaker 04:
Yes, Your Honor.

[00:26:51] Speaker 04:
There is testimony by Mr. Ward at 278-306.

[00:26:55] Speaker 04:
He calls them synonymous.

[00:26:58] Speaker 04:
He calls them the same thing.

[00:27:00] Speaker 04:
Wants and Warrants is just the title.

[00:27:01] Speaker 04:
That's at A316.

[00:27:03] Speaker 04:
At A320, calls it a term of art.

[00:27:05] Speaker 04:
And the board filed it.

[00:27:06] Speaker 02:
It is a term of art, but it's not a term of art for a background check.

[00:27:09] Speaker 02:
It's a term of art for a Wants and Warrants check.

[00:27:11] Speaker 02:
I think you're not answering the question I asked.

[00:27:14] Speaker 02:
If you ask NCIC to do a Wants and Warrants check.

[00:27:17] Speaker 02:
Yes, Your Honor.

[00:27:19] Speaker 02:
Maybe I shouldn't have done this, but I looked on the internet.

[00:27:21] Speaker 02:
You can look.

[00:27:22] Speaker 02:
It's a specific check.

[00:27:23] Speaker 02:
Yes, sir.

[00:27:24] Speaker 02:
Does that check, do you know, does the record show, does that specific check give back more than just once in a while?

[00:27:30] Speaker 04:
That is my, the testimony from Mr. Ward and I believe Ms.

[00:27:34] Speaker 04:
Finan, Colonel Finan as well.

[00:27:37] Speaker 04:
is that yes it is, that it is, that is the name of, there's only one check.

[00:27:42] Speaker 04:
So in, just to give you an example, so in October- That's not correct.

[00:27:47] Speaker 04:
I know you're talking about- There's one check that they're doing.

[00:27:49] Speaker 04:
So in October- Yes, but the- A result.

[00:27:52] Speaker 02:
Right.

[00:27:52] Speaker 02:
One result.

[00:27:54] Speaker 02:
In October- Yes, but you can run multiple different kinds of checks through NCIC.

[00:27:58] Speaker 02:
Yes.

[00:27:59] Speaker 02:
Well, I assume that that's the case, but- That's the problem, and this is all very underdeveloped on what

[00:28:05] Speaker 02:
the differences between what you're referring to by wants and warrants and saying it's a term of art for a background check, when I don't think it is.

[00:28:12] Speaker 04:
I think it's a term of art for a wants and warrants check.

[00:28:16] Speaker 04:
Well, I mean, then you're asking yourself, what's a background check?

[00:28:18] Speaker 04:
The point that Mr. Ward made in his testimony repeatedly was that if you put in a check for wants and warrants, it's going to come up with background information on crimes.

[00:28:30] Speaker 04:
And if it does that,

[00:28:31] Speaker 04:
Instead of asking, I mean, there's no reason that the base would turn a blind eye to that.

[00:28:36] Speaker 04:
So they would rely upon that.

[00:28:38] Speaker 04:
In October 2010, as the court said, we call it guidance.

[00:28:42] Speaker 04:
And that's what it was taken for by the trial judge.

[00:28:46] Speaker 04:
But the most important thing is the check that they took after that didn't change.

[00:28:51] Speaker 04:
It's not said, oh, now we're going to do this different check.

[00:28:53] Speaker 04:
It's actually the exact same check that they'd always been doing.

[00:28:56] Speaker 01:
So that's why this is done.

[00:28:58] Speaker 01:
I believe it's an email or a memo.

[00:29:01] Speaker 01:
There's a contracting officer in here in which I'm looking for.

[00:29:05] Speaker 01:
I read it in the record in which the writer says the CO can just act at whim.

[00:29:14] Speaker 04:
I don't believe that that was the contracting officer.

[00:29:16] Speaker 04:
I believe that you'd be talking about Mr. Olson.

[00:29:21] Speaker 04:
Is that right?

[00:29:23] Speaker 01:
I don't recall it.

[00:29:25] Speaker 01:
I recall reading it when I read those.

[00:29:27] Speaker 01:
Mr. Olson.

[00:29:28] Speaker 01:
Yes.

[00:29:30] Speaker 04:
He is not the contracting officer.

[00:29:32] Speaker 04:
He had no decision-making authority.

[00:29:35] Speaker 04:
Who was it?

[00:29:36] Speaker 04:
Where is it in the record?

[00:29:38] Speaker 04:
I believe that was sent on October 8, 2008.

[00:29:40] Speaker 01:
That date sounds right.

[00:29:44] Speaker 04:
But Mr. Olson was not.

[00:29:46] Speaker 04:
We're looking for it.

[00:29:46] Speaker 04:
I will get that for you.

[00:29:47] Speaker 04:
I would like to say just briefly on the second part, on constructive acceleration.

[00:29:53] Speaker 00:
There's five parts.

[00:29:54] Speaker 00:
Can I just ask you one quick question?

[00:29:56] Speaker 00:
Yes, sir.

[00:29:56] Speaker 00:
For the testimony that you're relying on for Mr. Ward, I think that you are maybe focusing on A316 to A317, is that right?

[00:30:05] Speaker 04:
For Mr. Ward, A3 or 6, A313 where he calls it synonymous, A316 where he says it's the same, it's the title, and A320 where he says it's a term of honor.

[00:30:18] Speaker 01:
Thank you.

[00:30:21] Speaker 01:
OK.

[00:30:22] Speaker 01:
Yeah, A173.

[00:30:26] Speaker 01:
It's from Gustaf Olson.

[00:30:30] Speaker 01:
And it says, moving, depending largely wholly on the whim of the current wind commander and daily interpretation.

[00:30:40] Speaker 01:
And the problem I have with that is it seems to me a strong indication that application is being changed.

[00:30:49] Speaker 01:
It's not that it's always been that way and a clarification.

[00:30:57] Speaker 01:
It's that the new commander came in, assigned one of the staff to look at this, and then change the policy.

[00:31:08] Speaker 04:
OK, respectfully, Your Honor.

[00:31:09] Speaker 04:
So Mr. Olson, as I understand it, works for the Corps of Engineers who were the contracting people on this.

[00:31:15] Speaker 04:
He doesn't work for the Air Force.

[00:31:16] Speaker 04:
And so he has... Wait, wait.

[00:31:20] Speaker 04:
We have met the enemy and he is asking... No, I just want to make sure... It was the government that... No, no, he doesn't have any role in... First of all, he doesn't have any role in reading the contract.

[00:31:29] Speaker 04:
He's not the contracting officer.

[00:31:30] Speaker 04:
But he also has zero role in the Air Force's management of their base and how they're going to read their policy.

[00:31:36] Speaker 04:
He may have had this personal opinion, but that... And experience.

[00:31:40] Speaker 04:
I have no idea what experience he had, but it was not his job to interpret or to comment on.

[00:31:47] Speaker 04:
The fact that he had an opinion makes him just like any other person who happened to be in that area.

[00:31:52] Speaker 04:
He has no authoritative opinion.

[00:31:53] Speaker 04:
They just happened to get his email.

[00:31:55] Speaker 04:
So respect, free honor.

[00:31:56] Speaker 04:
I wouldn't say that that's authoritative really for anything except for the fact that this one gentleman happened to have this one opinion.

[00:32:03] Speaker 04:
If I may just briefly address the question of constructive acceleration.

[00:32:07] Speaker 04:
I'll give you a minute.

[00:32:08] Speaker 04:
Sure.

[00:32:08] Speaker 04:
I'd sure appreciate it.

[00:32:10] Speaker 04:
Frazier has five parts.

[00:32:12] Speaker 04:
The plaintiffs have failed to meet all five of the parts.

[00:32:16] Speaker 04:
Most importantly, most easily, they need to show excusable delay, which means that they need to show that this wasn't foreseeable under the policy.

[00:32:24] Speaker 04:
And I think we discussed that.

[00:32:26] Speaker 04:
But they also have to show that they asked for time.

[00:32:28] Speaker 04:
They have to show that there was a request for time.

[00:32:31] Speaker 04:
This wasn't considered by the judge in the judge's initial opinion because they hadn't raised it in the initial.

[00:32:36] Speaker 04:
They raised it in a motion for reconsideration.

[00:32:38] Speaker 04:
And at A33 and footnote three, in response to that motion for reconsideration, what the board judge said is, quote, there is no evidence in the record or argument in appellant's briefs that JTC asked for more time.

[00:32:52] Speaker 04:
So that should be dispositive.

[00:32:54] Speaker 04:
That closes the door on Frazier and their ability to show that they were actually injured in the way.

[00:32:59] Speaker 04:
And of course, the next element of Frazier

[00:33:02] Speaker 04:
What?

[00:33:03] Speaker 04:
You've got a minute.

[00:33:04] Speaker 04:
Wrap up.

[00:33:06] Speaker 04:
OK.

[00:33:06] Speaker 04:
For those reasons, Your Honor, and those stated in our brief, we ask the court to affirm the holding of that board.

[00:33:14] Speaker 01:
Add a couple of minutes extra.

[00:33:19] Speaker 03:
Very quickly, Your Honor, in regards to the acceleration, there are two different

[00:33:24] Speaker 03:
elements.

[00:33:25] Speaker 03:
One line of cases say that you need to ask for time extensions.

[00:33:29] Speaker 03:
Others say the government just needs to be aware of the delays.

[00:33:33] Speaker 03:
And in this particular case, the government was aware of the delays, but the government's position was there was no change, therefore there's no excusable delay, and therefore you get no time extension.

[00:33:44] Speaker 03:
The other thing I want to address is the meeting that was held, the pre-construction meeting.

[00:33:49] Speaker 03:
It was after the award of the contract.

[00:33:51] Speaker 03:
Two days after that,

[00:33:53] Speaker 03:
pre-construction meeting, Talcott submits in its initial EAL that has two convicts on it that are at the pre-release center.

[00:34:02] Speaker 03:
They are approved.

[00:34:03] Speaker 03:
They are allowed access to the base.

[00:34:05] Speaker 03:
And it continued on for another five months where these individuals were allowed upon the base.

[00:34:10] Speaker 03:
In regards to the impossibility of performance issue, I may have misspoke in regards to was it impossible for them to perform

[00:34:22] Speaker 03:
in the time frame in which the government gave them.

[00:34:26] Speaker 03:
And in that respect, there was impossibility of performance.

[00:34:30] Speaker 03:
Throughout the record, there is a tremendous amount of information about there's a lack of workforce, there's not enough people in Montana, et cetera, et cetera.

[00:34:40] Speaker 03:
So what happens is Talcott goes out, they get whoever they can off the street to try to complete this work.

[00:34:48] Speaker 03:
So was there possibility of performance?

[00:34:52] Speaker 03:
If you give us another year, yes.

[00:34:55] Speaker 03:
If we are confined to this particular time frame, then it was impossibility of performance, because the workforce was not available.

[00:35:04] Speaker 03:
And with that, unless you have other questions, I appreciate the extra time, but I think I've addressed the issue.

[00:35:10] Speaker 01:
The matter will stand submitted.

[00:35:12] Speaker 01:
And that concludes our argument for today.

[00:35:14] Speaker 01:
Thank you.

[00:35:15] Speaker 03:
All rise.

[00:35:19] Speaker 03:
The Honorable Court is adjourned from day to day.