[00:00:38] Speaker 05: We will hear argument next in number 162308, Leesford, Doc, Incorporated, versus Secretary of the Army, Mr. Saltman. [00:00:55] Speaker 05: As you're coming to the lectern, I want to say that we are very much interested in [00:01:03] Speaker 05: in part because we have an obligation to be interested in the issue of this court's own jurisdiction. [00:01:11] Speaker 05: We are going to ask that the parties submit supplemental briefs about that question. [00:01:20] Speaker 05: We may, later today or tomorrow, issue an order defining that, or may not, but here is what we have in mind. [00:01:27] Speaker 05: 25 pages double-spaced, government first, [00:01:33] Speaker 05: and lease forward two weeks for each. [00:01:36] Speaker 05: So government's brief due two weeks from now, your brief due two weeks thereafter. [00:01:41] Speaker 05: The submissions should try not to be cramped in what they consider relevant to the question of our own jurisdiction, but focus on whether we have jurisdiction. [00:01:56] Speaker 05: If not, what action do we take? [00:02:01] Speaker 05: Is it dismissal? [00:02:02] Speaker 05: Is it vacator? [00:02:04] Speaker 05: I'm thinking in particular of the 1984 Schlosser decision of this court. [00:02:09] Speaker 05: The consequences of finding no jurisdiction should be addressed. [00:02:16] Speaker 05: Consequences on issues such as preclusion, including perhaps the rule stated in the Supreme Court's Kirchner against Putnam, [00:02:30] Speaker 05: A decision that is not subject to appeal does not have preclusive effect in a later proceeding. [00:02:37] Speaker 05: There is at least a potentially relevant question of election of remedies also discussed in Schlosser. [00:02:44] Speaker 05: Whether having chosen to go the board route, there is no longer a option of going the Court of Federal Claims Tucker Act route. [00:02:56] Speaker 05: And then finally, but not [00:02:58] Speaker 05: last in significance. [00:03:01] Speaker 05: Can Lease-Ford now sue in the Court of Federal Claims and get a ultimately Article III court review of its contract claim? [00:03:12] Speaker 05: There's an obvious limitation question that is presented, which may depend on when a Tucker Act claim begins, when it accrues. [00:03:26] Speaker 05: We are interested in all of those issues that are related to what the real world looks like if indeed we do not have jurisdiction here. [00:03:41] Speaker 05: I may and probably have left something out, but let me reiterate how we do not want to get a brief that says, [00:03:51] Speaker 05: You didn't ask quite this question, even though we have it in our mind that it's relevant and you'll want to know. [00:03:56] Speaker 05: This is a serious matter when a real claim doesn't seem, at least according to the government's position, to be within our jurisdiction and under a theory that arose, to put it mildly, rather late in the process, and therefore must have surprised quite a number of people. [00:04:19] Speaker 03: It certainly surprised the appellant. [00:04:21] Speaker 05: Do you have anything at this point, and let's begin now, at this point to say about the why you think we do have your opinion? [00:04:30] Speaker 03: Oh, I do, Your Honor. [00:04:31] Speaker 03: I think this case has already been decided. [00:04:35] Speaker 03: In Foreman v. United States, 767 Fed 2nd, 875 from this court is, where I'm going to quote, it is now well established in decisions of this court and boards [00:04:50] Speaker 03: that a leasehold interest in real property is not in and of itself real property, but personal property. [00:04:58] Speaker 05: Right. [00:04:58] Speaker 05: So here's a potential problem with Foreman. [00:05:01] Speaker 05: And I realize, since we've just asked for briefs, and please don't wait for an order from this court, we may not issue one. [00:05:07] Speaker 05: So the schedule that I set out before, you should take as controlling from this moment. [00:05:13] Speaker 05: A possible problem with the analogy to Foreman is the direction of the leasehold transfer. [00:05:20] Speaker 05: The direction of the leasehold transfer. [00:05:23] Speaker 05: The government acquired, or let's use the CDA term, procured a leasehold interest. [00:05:31] Speaker 05: Here, the government was transferring away from itself a leasehold interest. [00:05:36] Speaker 05: The CDA talks about procurement. [00:05:39] Speaker 03: I do. [00:05:39] Speaker 03: And Your Honor, there are board cases that deal with that, and we will be citing them to the court. [00:05:43] Speaker 05: So this is not a... I understand that, Your Honor. [00:05:47] Speaker 05: And there is at least a fairly, as these things go, elaborate DC Circuit decision on concession contracts. [00:05:56] Speaker 03: That dealt with National Park Service contracts, and I don't think that's particularly applicable to this situation. [00:06:02] Speaker 05: Well, except that it made an express interpretation of the Contract Disputes Act in pretty definitive terms. [00:06:09] Speaker 03: In response to a regulation that the Park Service said it was not covered by the contract disputes. [00:06:15] Speaker 05: So, aside from forming, we have a government-owned land that the government wants to [00:06:25] Speaker 05: put to the public's use by leasing it out to firms like yours to provide services to the public. [00:06:36] Speaker 05: How is that [00:06:38] Speaker 05: How does that come within the CDA language? [00:06:41] Speaker 05: And if it doesn't, is it clear that we do not have jurisdiction, even if the board would have jurisdiction? [00:06:49] Speaker 05: The board does have some non-CDA jurisdiction. [00:06:52] Speaker 03: Well, we will be saying, Your Honor, how, under the terms of the lease, this was the procurement of services, and it was, in fact, the procurement of construction as well. [00:07:02] Speaker 03: Now, I think going into it here may be premature, since it is going to be covered in additional briefing. [00:07:08] Speaker 03: But I have no question that this court has jurisdiction over this case. [00:07:13] Speaker 05: You happen to know when the buildings that you all built under your contract were built. [00:07:21] Speaker 05: And when your lease comes to an end, do those go to the government? [00:07:24] Speaker 03: No, they must be removed. [00:07:27] Speaker 01: Are you looking at, like, the Restoration Clause? [00:07:30] Speaker 01: I believe it's the Restoration Clause, yes. [00:07:32] Speaker 01: That it has to be removed. [00:07:33] Speaker 01: What about when you say that there was supposed to be recreational development? [00:07:37] Speaker 01: Are you relying on the clause that's under 5, use and development of the premises? [00:07:43] Speaker 03: I think it is 5A. [00:07:44] Speaker 03: We shall provide facilities and activities in accordance with the use and development plan. [00:07:51] Speaker 03: The use and development plan, unfortunately, is not in the record, but we will have to supplement that. [00:07:56] Speaker 03: And it does provide. [00:07:57] Speaker 03: for continued maintenance and repair, replacement of boat slips for certain docks. [00:08:06] Speaker 03: So they also require that the lessee provide waste disposal services. [00:08:16] Speaker 03: So it does fit in with the procurement of services, construction, repair, and maintenance. [00:08:21] Speaker 03: I think that there are many, many reasons upon which [00:08:24] Speaker 03: C.D.A. [00:08:25] Speaker 03: jurisdiction does apply. [00:08:27] Speaker 03: And we'll cover all that in the briefing. [00:08:30] Speaker 05: So there's another kind of jurisdiction at issue here, as you know, which is the board's jurisdiction over your, I guess you call it the reformation claim, they call it the misrepresentation [00:08:45] Speaker 03: That's why we have courts like your own. [00:08:48] Speaker 05: Well, you see, Reformation can rest on two different kinds of underlying facts. [00:08:54] Speaker 03: Absolutely, Your Honor. [00:08:55] Speaker 05: One is you were both under the same mistaken assumption. [00:08:57] Speaker 05: The other is you were, but they weren't, and they should have told you, right? [00:09:01] Speaker 03: I couldn't have said that better. [00:09:03] Speaker 05: And you're making a they should, they knew and should have told you. [00:09:05] Speaker 05: Yes. [00:09:07] Speaker 05: And the gist of their dispute [00:09:13] Speaker 05: Well, their argument that the board didn't have jurisdiction over that is that you never said to the contracting officer they knew and didn't tell us. [00:09:23] Speaker 04: Correct. [00:09:23] Speaker 05: And indeed, that was the ground on which your originally pled superior knowledge claim was dismissed by the board, right? [00:09:32] Speaker 03: Well, somewhat, Your Honor, somewhat. [00:09:34] Speaker 03: I think that the issue [00:09:38] Speaker 02: The original claim was sort of like a frustration of purpose. [00:09:42] Speaker 02: The original claim to the contracting officer. [00:09:46] Speaker 03: The original claim had everything in it but the kitchen sink, Your Honor. [00:09:50] Speaker 03: It almost seemed to have everything in it but what you needed. [00:09:55] Speaker 05: It must have been the kitchen sink, right? [00:09:58] Speaker 03: Let's just say that they had other counsel at that point. [00:10:01] Speaker 03: What we put in front of the contracting officer was a statement that [00:10:06] Speaker 03: We were essentially arguing mutual mistake. [00:10:11] Speaker 03: I think the phraseology in the claim letter was that both parties couldn't have foreseen the long-term drawdown of the lake. [00:10:21] Speaker 03: Now, by doing that, as your honor said, mutual reformation, there are two branches. [00:10:28] Speaker 03: It turns on the knowledge of the parties at the time of contracting, where both parties are ignorant [00:10:35] Speaker 03: We have a mutual mistake situation. [00:10:37] Speaker 03: And that's what my client thought. [00:10:41] Speaker 03: Or ultimately, that's what we put in the claim letter. [00:10:44] Speaker 03: However, what developed is that we had a situation where, while Lise Ford was ignorant, we have come to learn that the government was non-ignorant of a number of facts relative to the situation, the status of the dam at the time we entered the contract. [00:11:00] Speaker 05: Did you have this to correct my question? [00:11:05] Speaker 05: Recollection, if it's wrong. [00:11:07] Speaker 05: I thought that the one important piece of the evidence on which you rely to assert that the government knew that the dam was in bad enough shape that some serious repair was going to be needed with consequences for the level of the water was the 2007 memorandum. [00:11:28] Speaker 03: That's correct, Your Honor. [00:11:29] Speaker 05: Did you have that before you submitted your claim to the contracting officer? [00:11:35] Speaker 05: I thought you did. [00:11:36] Speaker 03: I believe that they may have. [00:11:37] Speaker 03: Yes, Your Honor. [00:11:38] Speaker 05: So it seems to me, at least as a general matter, you would have had a better argument, justification, for not presenting a they knew something important and didn't tell us if you didn't discover the key evidence about what they knew. [00:12:00] Speaker 03: I think that's true, Your Honor. [00:12:02] Speaker 03: But the claim letter is what the claim letter is. [00:12:04] Speaker 03: We believe that we put reformation squarely in front of the contracting officer. [00:12:09] Speaker 03: It may have been indicative of reparation due to mutual mistake. [00:12:13] Speaker 03: But in order to do that, the contracting officer had to look at the intent of the parties, both of them, at the time of the contract. [00:12:26] Speaker 03: How much did they know? [00:12:27] Speaker 03: And how much did each party know at the time it entered into the contract? [00:12:32] Speaker 03: If it had done that, [00:12:34] Speaker 03: The issue of, as I said, that the government's knowledge would have been forthcoming and the true issue in this case would have been before this contracting officer just as much as it is before this court at this time. [00:12:47] Speaker 01: So you think that this is distinguished from the superior knowledge claim which the board found [00:12:53] Speaker 01: Pure knowledge is a duty that the court found. [00:12:58] Speaker 01: Let me finish my question. [00:12:59] Speaker 01: Sure, Your Honor. [00:12:59] Speaker 01: I'm sorry. [00:12:59] Speaker 01: I don't want to talk about something that doesn't even relate to my question. [00:13:03] Speaker 01: OK. [00:13:03] Speaker 01: OK. [00:13:04] Speaker 01: So my question is, do you think that by referring to reformation generally, that was enough to get over the hump, whereas superior knowledge was something that there were no operative facts or even mention of a superior knowledge claim? [00:13:19] Speaker 03: I do, Your Honor. [00:13:20] Speaker 03: I very much do. [00:13:22] Speaker 03: We have put the contracting officer clearly on notice under the broad rubric of reformation that that's what we wanted. [00:13:29] Speaker 03: We may have not. [00:13:31] Speaker 03: I'm looking back to the Scott decision of this court. [00:13:35] Speaker 03: I think we have the same operative facts as in Scott. [00:13:38] Speaker 03: I think that they were claiming the same essential relief. [00:13:42] Speaker 03: And I think what we have here is merely the assertion of different legal theories, subsets of the reformation, as Your Honor pointed out. [00:13:50] Speaker 03: So I do think that we fall, we meet the same claim test as laid out in Scott. [00:13:57] Speaker 03: As Your Honor's will recall, Scott said that what we don't need, and the standard does not require rigid adherence to the exact language or structure of the original claim. [00:14:10] Speaker 03: And I think if you take that language [00:14:14] Speaker 03: then we clearly fall within the Scott rubric and this court does have jurisdiction. [00:14:19] Speaker 05: When you say you seek reformation, what specifically should the reformed contract look like? [00:14:26] Speaker 03: The contract should look like that the government does indeed have authority to draw down the level of the water for reasonable periods to conduct routine maintenance of the dam. [00:14:40] Speaker 03: What it doesn't have is the right to draw down the level of the lake for seven years to reconstruct the dam. [00:14:48] Speaker 03: That's what we believe the reformation should look like, Your Honor. [00:14:52] Speaker 02: Can I ask two questions, please? [00:14:55] Speaker 02: Just getting back a little bit to the jurisdictional question. [00:14:58] Speaker 02: First of all, I guess this question relates both to what you were discussing with the presiding judge of Toronto and also [00:15:05] Speaker 02: maybe with respect to what you've just been talking about. [00:15:08] Speaker 02: In its July 23, 2014 decision, the board said it had jurisdiction for two reasons. [00:15:15] Speaker 02: One, the issue presented arose under the disputes clause. [00:15:20] Speaker 02: And two, there was CDA jurisdiction. [00:15:23] Speaker 02: Yes. [00:15:24] Speaker 02: I assume that the only one we have to worry about here is CDA jurisdiction. [00:15:32] Speaker 02: That's correct. [00:15:32] Speaker 02: Because as I understand it, [00:15:34] Speaker 02: that disputes clause jurisdiction, to which the board referred, is simply its jurisdiction to adjudicate the meaning of a contract provision. [00:15:43] Speaker 02: And we don't have to worry about that in this case. [00:15:46] Speaker 02: Is that correct? [00:15:46] Speaker 03: I would agree with Your Honor on that. [00:15:47] Speaker 03: Yes. [00:15:48] Speaker 03: OK. [00:15:50] Speaker 03: As Your Honor would also note, there was a comment in that decision that said, since this is a lease, that the board did in fact have CDA jurisdiction on that basis as well. [00:16:02] Speaker 03: While the government says they had an epiphany last Thursday, actually that came out in the July 23rd decision of the board several years ago. [00:16:11] Speaker 02: One thing I would urge, and I'd say the same thing to the parties, is in the supplemental briefing, please provide us with any and all documents in their entirety that are needed to determine this. [00:16:25] Speaker 02: Because one of the things that was a little bit frustrating was the fact that [00:16:30] Speaker 02: The portion of the July 23, 2014 decision, which explains the reason the board felt it had jurisdiction, was not included in the joint appendix. [00:16:42] Speaker 03: And it was frustrating to me to go back and read that because all of a sudden at the 13th hour we said we needed those pages that we thought would just expand the appendix unnecessarily. [00:16:54] Speaker 03: Your Honor, I want to put one point... Just one other question, what you're talking about. [00:17:00] Speaker 02: Getting more to the jurisdictional question you were discussing with Judge Stoll about how you expected that there would just be routine maintenance. [00:17:11] Speaker 02: What would have been the situation if in the year 2000 they signed the lease, everything's going along fine, then in the year 2003 there's an earthquake? [00:17:21] Speaker 02: And the effect of the earthquake is to not make the dam fail, but create problems so that immediate restoration is required that's going to take time and be expensive. [00:17:36] Speaker 02: How would that be handled? [00:17:37] Speaker 02: I think, Your Honor... What would happen there? [00:17:39] Speaker 03: I think that we are not claiming that the government has no rights to come in and repair the dam. [00:17:48] Speaker 03: But in that instance, there would be an intervening factor, clearly an intervening factor, which would obviate things, and perhaps, at least Ford would have, would not have a compensable claim there. [00:18:02] Speaker 03: What we're talking about, Your Honor, is the regular running of the dam. [00:18:07] Speaker 03: We had a dam that was substantially reconstructed in the late 70s. [00:18:12] Speaker 03: The Corps did not tell us, did not tell anyone, [00:18:16] Speaker 03: that the seepage cutoff wall, which was intended to stop seepage through the dam, was only partially constructed. [00:18:25] Speaker 03: The government says, oh, it went as far as we wanted. [00:18:28] Speaker 03: But as Your Honor will see on page 23 of our brief, there's an illustration. [00:18:32] Speaker 03: There were 1,700 feet of the face of the dam that this cutoff wall did not cover. [00:18:38] Speaker 03: No one knew that. [00:18:39] Speaker 03: We didn't know that. [00:18:41] Speaker 03: Seepage started reoccurring. [00:18:43] Speaker 03: We got higher piezometric readings from the 80s right up through 2000. [00:18:49] Speaker 03: There was leakage. [00:18:50] Speaker 03: There was seepage due to cracking in the tunnel. [00:18:54] Speaker 03: We didn't get told about that. [00:18:56] Speaker 03: Our expert said, you take those factors together, and you have a dam that has serious problems. [00:19:06] Speaker 03: They didn't tell us anything. [00:19:07] Speaker 03: They just let us go ahead, expand on our investment in the property, [00:19:12] Speaker 03: And lo and behold, come along thereafter and said, oh, the dam must be shut down. [00:19:17] Speaker 03: It may collapse in five hours. [00:19:20] Speaker 03: We're going to shut you down for seven years to totally reconstruct the dam. [00:19:24] Speaker 03: They say, oh, that's good faith. [00:19:26] Speaker 03: We didn't have to tell you. [00:19:28] Speaker 03: That's fair dealings. [00:19:30] Speaker 03: We think not, Your Honors. [00:19:32] Speaker 03: I'd like to reserve the remaining portion of my time. [00:19:35] Speaker 05: Five minutes of rebuttal. [00:19:36] Speaker 05: Thank you. [00:19:42] Speaker 05: Ms. [00:19:42] Speaker 05: Thomas. [00:19:44] Speaker 00: Thank you, Your Honor. [00:19:46] Speaker 00: And may it please the Court. [00:19:48] Speaker 00: As an initial matter, I apologize to the Court for the lateness with which we brought the jurisdictional issue to the Court's attention and to the attention of Lise Ford. [00:19:59] Speaker 00: We apologize for any disruption that that caused to the Court's proceedings or to Lise Ford's preparation. [00:20:07] Speaker 00: But the fact remains that it is a serious and unwaverable question [00:20:12] Speaker 00: And the court, we believe, does not possess jurisdiction to entertain these boards' appeal. [00:20:18] Speaker 00: That is because the lease or concessions contract in question is not a CDA contract. [00:20:25] Speaker 00: The CDA applies to contracts by the government for the procurement of property or services for the direct benefit and use of the government. [00:20:34] Speaker 02: What about the last provision of 7102A? [00:20:39] Speaker 02: forward says, contract for the disposal of personal property. [00:20:44] Speaker 00: Yes, Your Honor. [00:20:45] Speaker 00: And there have been some rather lightly reasoned board decisions which suggested that the issuance of leasehold interest by the government might be considered the disposal of personal property. [00:21:02] Speaker 02: And I have not researched this, but I seem to remember from what I'll call the dark ages that there were some [00:21:08] Speaker 02: CDA cases, correct me if I'm wrong, and this is something obviously that will be explored in the supplemental briefing, where the government would enter into a contract for the disposal by it, the government, of surplus used property that it had. [00:21:26] Speaker 02: I assume you would say that that kind of a situation falls under 7102A4. [00:21:31] Speaker 02: And that's covered by the CDA. [00:21:35] Speaker 02: But you're saying a lease [00:21:37] Speaker 02: as which is what we have here, even though there's that language in foreman that refers to a lease as personal property, isn't covered. [00:21:46] Speaker 02: Is that what you would say? [00:21:48] Speaker 00: Yes, John. [00:21:48] Speaker 00: In fact, the legislative history of the CDA indicates that 7102A4 is intended to refer to surplus sales of exactly the type that you were describing. [00:22:00] Speaker 00: And generally speaking, historically, personal property has been used as a term [00:22:07] Speaker 00: in contrast and as a distinguishing term from real property, which is the type of property interest we would typically consider. [00:22:16] Speaker 02: I apologize for interrupting in the middle of your sentence, but we only have limited time. [00:22:21] Speaker 02: And this, again, will all be explored with just a couple of things. [00:22:25] Speaker 02: Assume for the moment that Mr. Saltman could get over this hurdle of the lease. [00:22:32] Speaker 02: I assume the government would still be saying, OK, let's assume for the moment that the lease is an item of personal property. [00:22:39] Speaker 02: But what we have here is an item of personal property which is really tied to a concession. [00:22:47] Speaker 02: I'm trying to parse a little bit what you said in your letter. [00:22:50] Speaker 00: Certainly, Your Honor. [00:22:52] Speaker 00: See what I'm saying? [00:22:53] Speaker 00: Yes, Your Honor. [00:22:53] Speaker 02: Even if he could show a lease was personal property and there was disposal of personal property, would you still be saying that [00:23:01] Speaker 02: There's a problem here because we're talking about a concession situation. [00:23:05] Speaker 00: Right. [00:23:07] Speaker 00: It's unlikely that if the court held that the making of a lease pursuant to which the government is less or a disposal of personal property, which we don't think this language of statute can bear, [00:23:21] Speaker 00: It's unlikely that we would argue that nevertheless the fact that there was this additional concessions element to it would take it outside of the realm of the CDA. [00:23:32] Speaker 02: So you're saying at this point without a firm commitment that it really maybe turns on in your view and you have reserving anything you want to say in the supplemental briefing that it turns on whether a lease can be classified as an item of personal property. [00:23:49] Speaker 00: Well, and whether the grant of a lease can be considered the disposal of the property. [00:23:55] Speaker 05: That's what I'm wondering. [00:23:56] Speaker 05: It's the grant of the leasehold interest. [00:23:59] Speaker 05: They're not actually transferring the lease to anybody. [00:24:01] Speaker 05: They're entering into a contract called a lease that disposes of a certain right to use for a certain amount of time. [00:24:09] Speaker 00: Right. [00:24:09] Speaker 00: Although, again, we wouldn't agree that disposed would be the appropriate term to use for the transaction. [00:24:15] Speaker 05: But I think it's... Can I just ask? [00:24:19] Speaker 05: Do you think that we ought to, in trying to interpret these statutory provisions, take account of the seemingly surprising nature of the consequences that would befall somebody with a legitimate contract claim that either they've just [00:24:43] Speaker 05: mistakenly gone to the board when they should have gone to the Court of Federal Claims. [00:24:49] Speaker 05: And maybe or maybe not, it's too late to go to the Court of Federal Claims. [00:24:52] Speaker 05: Or that there are some claims that you just don't get to go to Article III, get Article III review. [00:24:59] Speaker 05: And that seems a surprising consequence. [00:25:04] Speaker 00: First of all, you're in the, generally speaking, and I can't at this point think of any exceptions, [00:25:11] Speaker 00: All of these, all concession contracts of the nature of the one described here would fall within the Tucker Act, which means that the contractor who was a party to this lease would be able to go to the court of federal claims in any instance, assuming that other jurisdictional requirements were met. [00:25:27] Speaker 00: and have their claim decided by that court and then reviewed upon appeal by this court. [00:25:33] Speaker 05: Do you happen to remember from legislative history, the Contract Disputes Act and Congress's action, whether Congress made a kind of eyes-open judgment that the boards [00:25:46] Speaker 05: will have jurisdiction to hear contract claims, but as to some of those claims, there just wasn't going to be any Article III review. [00:25:55] Speaker 05: The board was actually going to be final on some matters that Congress understood were going to be within the court's purview, but its decisions on those matters were going to be unreviewable. [00:26:10] Speaker 00: Well, certainly Congress knows that there are some [00:26:15] Speaker 00: Categories of contracts that go before the board pursuant to statutory provisions other than the CDA and then are decided by the board and cannot be reviewed by this court because they are Because this court's jurisdiction drives only from the CDA to review board Board decisions and there have been several cases in this court's past for example [00:26:38] Speaker 00: There are review of certain transportation contracts that is permitted before the board's pursuance to a statutory enactment that does not allow appeal to this court. [00:26:48] Speaker 05: I had one of those last year. [00:26:49] Speaker 00: Exactly, Your Honor. [00:26:50] Speaker 00: So it's certainly something that Congress has contemplated and is allowed to occur. [00:26:57] Speaker 05: When you say Congress has contemplated, certainly, is this all kind of just by inference since these matters have been out there? [00:27:04] Speaker 05: Or I guess I'm asking a kind of a legislative history question. [00:27:08] Speaker 05: Is there [00:27:09] Speaker 05: evidence from people within Congress saying things, saying, we understand the board gets to do things on which they're going to be final, and there shall be no judicial review unless the solution to that is just bypass the board. [00:27:24] Speaker 05: Forget about the board. [00:27:26] Speaker 05: Fill up the Court of Federal Claims with these matters. [00:27:29] Speaker 00: I don't know the answer to that question as to what the legislative history says. [00:27:34] Speaker 00: I will say that the board's jurisdiction [00:27:38] Speaker 00: In this case, for example, the board asserted that it had jurisdiction both under the CDA and pursuant to the Contracts Disputes Clause. [00:27:48] Speaker 00: The board's charter says that it has jurisdiction not only on contracts that are covered by the CDA, but also, and I'm quoting from his charter, pursuant to provisions of contracts requiring the decision by the Secretary of Defense or by a Secretary of Military Department or their duly author's representative. [00:28:06] Speaker 00: So in other words, [00:28:08] Speaker 00: pursuant to the disputes clause. [00:28:09] Speaker 00: As to where the authority came from for the board to assert that jurisdiction, that I'm not clear on. [00:28:17] Speaker 00: But that's a sort of ancillary question as to whether the board, in fact, has the statutory or otherwise authority to hear those cases. [00:28:28] Speaker 00: So whether Congress is aware that it exercises this authority and that there is no right of appeal from it, I don't know. [00:28:36] Speaker 02: So just to follow up one thing, I think you came out in your discussion with Judge Toronto. [00:28:42] Speaker 02: I guess you would say that if back in whenever the contracting officer handed down the decision, if at that point, having had his claim rejected, at least for Doc had brought an action under the Tucker Act in the Court of Federal Claims, we would not be here today discussing this jurisdictional question that's now before us. [00:29:05] Speaker 02: Is that correct? [00:29:06] Speaker 00: That is correct, except for one issue, which is that Lee's Ford Dock waited to submit its claim until the very day before six years had passed since the claim accrued, which means that the statute of limitations for the Tucker Act would have run before it could bring its suit in the court of federal claims. [00:29:27] Speaker 00: But leaving aside the facts, [00:29:31] Speaker 00: particular circumstance in general, when a contractor pursuant to a concessions contract receives an adverse decision from a contracting officer, yes, they can go straight to the Court of Federal Claims instead of going to the board. [00:29:44] Speaker 02: So would the period to go to the Court of Federal Claims in that case have run from the time that least four docs saw they were encountering a big delay, or would it have run from the time [00:29:59] Speaker 02: that it went to the contracting officer and said, please, here's the problem, pay us. [00:30:06] Speaker 00: I believe under the Tucker Act, the statute of limitations begins running as soon as the contractor is aware of the injury that has occurred to it. [00:30:15] Speaker 00: So we would say that it started running in 2007 when the Corps announced that it would be lowering the reservoir level for an extended period of time. [00:30:27] Speaker 00: We recognize that the [00:30:29] Speaker 00: particular circumstances of this case and the possibility that in this case there may be no review of the board's decision available from an Article III court is disturbing, but there is no way to equitably create jurisdiction where it hasn't been conferred by statutes. [00:30:48] Speaker 01: How do you respond to what I understood Mr. Saltzman to be saying earlier? [00:30:54] Speaker 01: Earlier I heard him to be relying on 7102A3 [00:30:59] Speaker 01: What's your response to that? [00:31:00] Speaker 00: 7102A3. [00:31:02] Speaker 01: The procurement of construction alteration repair and maintenance of real property. [00:31:07] Speaker 00: So the use and development plan of Lee's Ford, which while it's not included in the joint appendix, is included as exhibit C to the amicus brief, which is, I think, the first time I've ever referred to an exhibit filed by an amicus. [00:31:22] Speaker 00: But it is included in that filing. [00:31:25] Speaker 00: And that use and development plan says that Lease-Ford shall maintain the property that's already on the track that leases and all of that property, the fixtures belong to Lease-Ford itself and that it will each year invest in some modest new improvements such as an addition of boat slips to its marina. [00:31:50] Speaker 00: I believe that's probably what my friend was referring to. [00:31:55] Speaker 00: The problem with that is that the services rendered in that case are not for the direct benefit or use of the government, rather they're for the use of the public who patronize Lee's Ford's marina, and to some extent to Lee's Ford itself, since all of the construction it engages in becomes its own property. [00:32:16] Speaker 05: Turning to... Was any of the construction that's required put aside for whose benefit? [00:32:22] Speaker 05: Was any of the construction that was required under the contract construction, alteration, repair, or maintenance of real property? [00:32:34] Speaker 05: Was there any requirement of, I think I would just be repeating the words, as opposed to building construction of real, what is construction of real property within the meaning of this? [00:32:50] Speaker 05: Building land jetties? [00:32:52] Speaker 00: I would assume that would mean... Landfill? [00:32:58] Speaker 00: This isn't a subject I've researched yet, Your Honor, so it's... Anyway, you have two weeks. [00:33:03] Speaker 00: Yes. [00:33:04] Speaker 00: I mean, just as an intuitive matter, it's probably referring to fixtures on real property, but in which case, I mean, lease for it is required by the use and development plan to build boat slips. [00:33:21] Speaker 00: The problem, again, there is with the benefits of that not running to the government, but rather to the public. [00:33:32] Speaker 02: Could Lease Ford have just gone on this and rented the property, as it did, but not have used it for a commercial marina? [00:33:45] Speaker 02: What if it had just gone on there and let [00:33:49] Speaker 02: Properties sit but the owners of lease for dot came there from time to time and enjoyed the acreage in the surroundings and camped there would that have been in violation of the lease yes, your honor because the lease does say that the the lease is made for the purpose of commercial concession purposes and that these boards are [00:34:12] Speaker 00: purpose in obtaining and maintaining the lease is to provide recreational services to the public. [00:34:19] Speaker 00: So we would consider that in violation of the lease. [00:34:23] Speaker 05: And I think I asked the question about what's to become? [00:34:28] Speaker 05: This is now a 50-year lease, is that right? [00:34:30] Speaker 00: since early 70s. [00:34:33] Speaker 05: So across the US. [00:34:34] Speaker 05: Was it 20, 25 years and then extended? [00:34:38] Speaker 05: And there were requirements of constructing some things. [00:34:42] Speaker 05: We won't characterize what they are. [00:34:44] Speaker 05: Those things, if they last till the end, what happens to those things? [00:34:49] Speaker 05: Do they have to take them out? [00:34:51] Speaker 05: Everything, including the docks? [00:34:54] Speaker 05: Yes. [00:34:54] Speaker 00: All changes that Leeds Board makes to the property have to be reversed to restore it to its baseline. [00:35:01] Speaker 02: I'll just say the same thing if I could. [00:35:05] Speaker 02: Mr. Solomon, please, when you submit the supplemental briefing, provide us with full copies of any and all pertinent documents so that we don't run into the same problem we had in this situation. [00:35:24] Speaker 02: Because in addition to the July 23 decision, there were only portions of, I think, the first [00:35:31] Speaker 02: The government's response to the amended complaint and some of the summary judgment papers were not in their entirety. [00:35:38] Speaker 00: Yes, Your Honor. [00:35:39] Speaker 00: We'll make sure to give the record a more fulsome treatment in submitting supplemental material. [00:35:45] Speaker 05: It turns out that of the various tribunals that we review, the board is not one that we have ready electronic access to. [00:35:54] Speaker 00: I don't think anyone has ready electronic access to their materials, Your Honor. [00:36:00] Speaker 05: Can I switch topics completely? [00:36:03] Speaker 05: I'm not even sure we've talked about this. [00:36:05] Speaker 05: Sure. [00:36:06] Speaker 00: I just know that my time is up. [00:36:08] Speaker 05: I'm aware of the clock. [00:36:12] Speaker 05: On the reformation claim, putting aside the question whether Lee's Ford adequately preserved it by [00:36:22] Speaker 05: presenting it to the contracting officer. [00:36:27] Speaker 05: The board rejected that, if I'm remembering right, on the theory that even if you all knew of an even possibly dire condition of the dam, sufficiently dire that the water was going to be drained down to make boating, let's say, even useless, [00:36:49] Speaker 05: But really, Lise Ford wouldn't have cared much about that when entering into the lease. [00:36:53] Speaker 05: It wasn't the material premise of the lease. [00:37:02] Speaker 05: That's a little hard to find plausible. [00:37:08] Speaker 00: Yes, Your Honor. [00:37:09] Speaker 00: So a few things on that point. [00:37:13] Speaker 00: I want to make clear that the drawdown here didn't render Lees-Ford's marina unusable or the lake unusable to boats. [00:37:21] Speaker 05: So what does the record tell us about basically whether the boats could reach the docks? [00:37:27] Speaker 00: Lees-Ford says that it had to relocate one of its docks but that's the extent of the issue as far as I can tell from the record. [00:37:34] Speaker 00: Lees-Ford was fully operational for the years in which the drawdown was in effect and according to [00:37:41] Speaker 00: the Coors audit of Lee's Ford's operations, it was still drawing approximately $4 million or more in revenues during the first four years after the drawdown began. [00:37:56] Speaker 00: Approximately the same amount before. [00:38:00] Speaker 00: The reason that it wouldn't, it isn't simply a matter of [00:38:07] Speaker 00: of logical deduction to say that if Lees-Ford had known that there was a potential prolonged drawdown in the works, that it would have backed off the lease is first that Lees-Ford's sole line of business for its entire existence has been operating these facilities at Lake Cumberland. [00:38:29] Speaker 00: It has $5 million of assets at lease. [00:38:31] Speaker 00: That's the amount listed in its use and development plan on that land, which it would have to [00:38:37] Speaker 00: destroy and remove if it no longer had a lease on that property. [00:38:41] Speaker 00: And Leaseford itself has never said that. [00:38:46] Speaker 05: I'm sorry. [00:38:46] Speaker 05: It had the $5 million as of the time of the entry into the 2000 lease. [00:38:53] Speaker 05: And you're not talking about what they, in turn, I think, committed to doing. [00:38:57] Speaker 00: No, Your Honor. [00:38:58] Speaker 00: That was an improvement of approximately $250,000 worth. [00:39:04] Speaker 00: And also perhaps most significantly lease Ford itself has never claimed in any of these proceedings that it wouldn't have entered into the lease if it had known during the negotiations of the 2000 lease that there would be a drawdown required for a few years. [00:39:23] Speaker 00: In fact they have very carefully declined to say that instead they have said such things as [00:39:30] Speaker 00: If Lee's Ford had known in 2000 that there was a long-term drawdown in the offing, it, quote, would have attached great importance to that information, end quote, in determining whether to enter into a new 25-year lease. [00:39:45] Speaker 00: There's no... And then they would have decided not to enter into it. [00:39:49] Speaker 05: Similarly... But perhaps they might have negotiated a pricing provision that said, [00:39:58] Speaker 05: when the water is below 720 feet or something. [00:40:04] Speaker 05: During such time, if it lasts for more than 30 days, we shall not have to pay any rent or something. [00:40:11] Speaker 00: The problem with that, Your Honor, is that there's no evidence that such a provision could have been negotiated. [00:40:16] Speaker 00: And Lease Forward has also not suggested that it would have asked for one. [00:40:20] Speaker 00: There simply isn't any evidence in the record to suggest that anything would have been different about the entry into the lease and the provisions of the lease. [00:40:29] Speaker 00: even if the alleged misrepresentation hadn't been made. [00:40:32] Speaker 00: That's one of the central problems with Lee's Ford's claim, along with the problem that the remedy it seeks, reformation, isn't available for the type of misrepresentation claim that it's making. [00:40:45] Speaker 00: Reformation is only available based upon a showing of misrepresentation if the misrepresentation concerns the actual terms of the written agreement the parties entered into, not if it concerns some extrinsic fact. [00:40:59] Speaker 05: the only remedy. [00:41:01] Speaker 05: I'm remembering something and I don't have my notes on this. [00:41:05] Speaker 05: So I thought that there was a provision of the lease that referred to a certain linear measure of water front property or something. [00:41:17] Speaker 00: Right. [00:41:18] Speaker 00: That's an argument made by Lease Forward in its reply. [00:41:21] Speaker 00: It says that the lease [00:41:22] Speaker 00: Says that they have leasehold rights in I think a hundred thirty water acres and 36 land acres the lease doesn't actually say that the lease says that The the premises to be rent rented is identified in exhibit a it's not really clear from the record or any record I've seen what exhibit a is the only the [00:41:46] Speaker 00: Document that could arguably be it that's included with the lease is a map located on page 53 of the appendix which shows a rough Drawing of some of the land around Lake Cumberland with a crosshatched area presumably indicating lease Ford's rental property that there's a box in the upper left corner of that page that says [00:42:09] Speaker 00: 29 acres above freeboard, 24 acres below freeboard, and 113 acres water area. [00:42:21] Speaker 00: The logical interpretation of that document would be that it is laying out the meets and the bounds of the property to be leased by lease four, not guaranteeing a particular volume of water. [00:42:33] Speaker 00: And that reading is borne out and, in fact, is necessitated by the exculpatory clause, which makes clear that Leeds Fort is not being guaranteed a certain volume of water. [00:42:45] Speaker 02: I have one question. [00:42:48] Speaker 02: Soon we get to the board decision. [00:42:50] Speaker 00: Yes, Your Honor. [00:42:50] Speaker 02: There are two claims before us. [00:42:54] Speaker 02: It's the claim that was in what we call claim one, which is the misrepresentation claim. [00:42:59] Speaker 02: And then claim three, the breach of contract claim. [00:43:04] Speaker 02: Claim two, they're not pursuing any further. [00:43:07] Speaker 02: Soon we were ruled for the government on claim one. [00:43:11] Speaker 02: That would still leave though claim three to be decided, correct? [00:43:17] Speaker 02: The breach of contract claim. [00:43:20] Speaker 00: if this court were to rule for the government on jurisdictional or merits grounds as to? [00:43:26] Speaker 02: Well, there's two jurisdictional questions. [00:43:28] Speaker 02: One is that there's the jurisdictional question, which has just been raised about whether the contracting, whether we have jurisdiction. [00:43:37] Speaker 02: Assuming we got over that, then we get to the board decision. [00:43:41] Speaker 02: And the board held that there was no jury, [00:43:45] Speaker 02: We have to decide whether the board had jurisdiction over claim one or count one, which is the superior knowledge slash misrepresentation claim, correct? [00:43:57] Speaker 02: Assume we read with the government that there was no jurisdiction there. [00:44:03] Speaker 02: There would still remain, would there not, the claim in count three or claim three, which is the breach of contract claim. [00:44:10] Speaker 00: It would be remaining in the sense that this court... There would be jurisdiction. [00:44:14] Speaker 00: Right, to review it on the merits. [00:44:16] Speaker 02: That was the only thing. [00:44:16] Speaker 02: I just wanted to flesh that out. [00:44:19] Speaker 00: Yes, sure. [00:44:19] Speaker 05: And since I'm considerably over my time, unless there's... Why don't you try to wrap things up now? [00:44:25] Speaker 05: I realize you may have spent most of your time talking about things you didn't plan to, but... Sure. [00:44:30] Speaker 00: There's just one point I'd like to make as an indication of [00:44:36] Speaker 00: The extent to which the record does not support Lee Ford's claim that the government knew in 2000 that the lake was in immediate danger of failing and that it would need to be drawn down. [00:44:47] Speaker 00: for an extended period of time, actually two points. [00:44:50] Speaker 05: The first point is that the record evidence... Before your two points, the board did not find that. [00:44:56] Speaker 05: It did not, Your Honor, because... Right, so that's the problem. [00:44:58] Speaker 05: That is, the argument about how you really weren't hiding the ball is just not one of the grounds on which the board rested its decision. [00:45:05] Speaker 00: Yes, Your Honor, and we understand if the court chooses not to reach that, you know, if the circumstances were such that that would [00:45:13] Speaker 00: a decisive issue if the court decided not to reach it in the first instance. [00:45:17] Speaker 00: However, I do feel on equitable grounds that I'd like just to make the point clear, because it is important to the court for it to be recognized that it did not engage in the iniquitous behavior attributed to it. [00:45:35] Speaker 00: All of the evidence in the record indicates that the decision to draw down the lake was made in 2007 based on a series of risk reviews [00:45:43] Speaker 00: that were conducted beginning in 2005. [00:45:46] Speaker 00: And the risk reviews conducted in 2005 were based upon extensive study and analysis of project history, previous remedial work, instrumentation, geotechnical exploration, detailed analyses, consultation with experts, and engineering judgment, interpreting the distress indicators, other information and data and conditions of the project. [00:46:07] Speaker 00: That's from Appendix 71, all of which is to say it's not [00:46:11] Speaker 00: determination you can reach just by looking at the dam. [00:46:14] Speaker 00: It requires quite a formal process and there's no evidence that [00:46:17] Speaker 00: that the Corps had engaged in that prior to 2005. [00:46:21] Speaker 05: Second, their claim wouldn't necessarily depend on that. [00:46:25] Speaker 05: Their claim wouldn't require more than the Corps, or whoever was running the dam, knew enough about a high enough probability of danger at a high enough level that [00:46:42] Speaker 05: seven years of lack of water to overstate things was a real possibility. [00:46:49] Speaker 05: And that, boy, would they have liked to have known that. [00:46:54] Speaker 00: Their claim could be based on that allegation, but it wouldn't be based on evidence because there still isn't evidence in the record as to what risk of failure the Corps knew the dam was at in 2000. [00:47:07] Speaker 00: Second, the [00:47:09] Speaker 00: In its attempts to wring from the record evidence signs that the court did know in 2000, Lee's board engages in some rather creative. [00:47:20] Speaker 05: I think I'm going to actually cut you off on this because this wasn't a board decision. [00:47:24] Speaker 05: And at least speaking for me, I think I get the point. [00:47:26] Speaker 05: Certainly. [00:47:27] Speaker 05: And thank you very much for rolling in all the directions that we've taken you to. [00:47:34] Speaker 00: Certainly, Your Honor. [00:47:34] Speaker 00: And again, I apologize for our late coming to this issue. [00:47:38] Speaker 05: Mr. Saltman. [00:47:43] Speaker 05: Five minutes, please. [00:47:45] Speaker 03: That was a very interesting dialogue. [00:47:47] Speaker 03: First of all, I can't believe that the government actually used the term that they need equity here because something happened in 2007. [00:47:55] Speaker 03: We put a lot of evidence on the table, as Your Honor Well said, that there was enough information in 2000 that they knew there were serious problems with the dam. [00:48:05] Speaker 03: They didn't tell anybody. [00:48:06] Speaker 03: They kept it to themselves. [00:48:07] Speaker 03: They let us [00:48:08] Speaker 03: go blindly forward, make additional investment in the property, only to take seven years away from the contract. [00:48:18] Speaker 05: What was the evidence that you put before the board? [00:48:23] Speaker 05: Was this done on summary judgment? [00:48:25] Speaker 05: Yes. [00:48:26] Speaker 05: So what was the evidence that you put before the board about what you might have done or tried to do differently had you known of the kind of risk level that you accused the core of knowing? [00:48:41] Speaker 03: Well, I think that that would have changed things markedly. [00:48:44] Speaker 03: The client would then have had to say, look, [00:48:47] Speaker 03: We're going to go forward. [00:48:48] Speaker 03: They are going to once again seriously reconstruct this dam. [00:48:53] Speaker 03: It is going to greatly interrupt us. [00:48:56] Speaker 03: How are we going to deal with them? [00:48:57] Speaker 03: Are we going to deal with it? [00:48:58] Speaker 03: Do we want to sit there for seven years with our business totally ruined? [00:49:02] Speaker 05: Right, but specifically in terms of evidence before the board. [00:49:11] Speaker 05: One quick detour. [00:49:16] Speaker 05: What evidence was there about ability of boats to get to your docks when the water was down? [00:49:25] Speaker 05: I was under the impression, which I think Ms. [00:49:27] Speaker 05: Thomas indicated was a misimpression, [00:49:30] Speaker 05: that the boats couldn't get to your docks for a while. [00:49:34] Speaker 03: The evidence, I don't think there's a substantial amount of it, but the fact is that the boats had great difficulty getting to our docks. [00:49:44] Speaker 03: We did have to move a dock at a cost of about a million dollars to increase the ability to utilize what water we had. [00:49:54] Speaker 03: But it was not business as usual in any sense, Your Honor. [00:49:58] Speaker 01: What evidence was there? [00:49:59] Speaker 01: I'm sorry? [00:50:00] Speaker 01: What evidence was there? [00:50:01] Speaker 01: I heard you mention the fact that there had to be something, one of the docks had to be moved. [00:50:07] Speaker 01: Is there anything else? [00:50:08] Speaker 03: I'm not sure that I can point to anything with great specificity other than the fact that we did have to move the dock to allow, I think it was 48 slips, to have any access to any water. [00:50:19] Speaker 05: That was a detour I took you on. [00:50:21] Speaker 05: So back to the question of what evidence did you put in front of the board that you would or might have done something different had you known of the risk level that you say the core knew? [00:50:35] Speaker 03: The declaration that we had that said if we had known this it would have changed the game and we would have had to seriously consider what we were going to do. [00:50:44] Speaker 04: Where is that? [00:50:49] Speaker 04: Is this Mr. Hamilton? [00:50:50] Speaker 03: It's one of Mr. Hamilton's statements, yes. [00:50:55] Speaker 03: Your Honor, while we look for that, can I go on for a second? [00:50:58] Speaker 03: Yes, please. [00:50:59] Speaker 03: The government talks about they didn't know how many acres they leased to us. [00:51:04] Speaker 03: The lease at Appendix 56 is very specific. [00:51:08] Speaker 03: 160 water acres and 36 land acres. [00:51:13] Speaker 03: They took away most of those 160 water acres. [00:51:18] Speaker 03: And they admit that there is no exculpatory clause that applies to that. [00:51:27] Speaker 03: They say, if we don't deliver what we promised you in terms of acreage, we're liable. [00:51:35] Speaker 03: Count two, they're liable. [00:51:38] Speaker 03: They didn't deliver it. [00:51:42] Speaker 03: There was also some discussion about a $5 million investment as of 2000. [00:51:46] Speaker 03: That's incorrect. [00:51:48] Speaker 03: The $5 million is in the use and development plan. [00:51:53] Speaker 03: And it is the total proposed development after 2004, adding these additional slips, replacing slips. [00:52:03] Speaker 03: So there was major construction anticipated after 2000. [00:52:07] Speaker 03: There is no evidence in the record as to the value of the assets that Lease Forward had, or whether or not they were fully depreciated at that time. [00:52:16] Speaker 05: Can I ask you this question? [00:52:18] Speaker 05: This is several assumptions. [00:52:20] Speaker 05: So I want to, for this purpose, take as an assumption that we have jurisdiction. [00:52:26] Speaker 05: Also take as an assumption, less happy assumption, that the board did not have jurisdiction over your reformation claim. [00:52:35] Speaker 05: So what you're left with is claim three, breach. [00:52:40] Speaker 05: And as I read your briefs, [00:52:44] Speaker 05: You think that the exculpatory clause needs to be read to contain an implied limitation that drawdown of water must be reasonable. [00:52:58] Speaker 03: Yes, but the government, if you'll pardon the word, trumped that. [00:53:03] Speaker 03: Because in their last brief, they said the exculpatory clause doesn't apply to our failure to give you acreage that we promised. [00:53:15] Speaker 03: 168 water acres was promised. [00:53:18] Speaker 05: I'm sorry. [00:53:18] Speaker 05: What are you relying on? [00:53:20] Speaker 03: It's in the government's last brief. [00:53:22] Speaker 03: It's in the government's brief. [00:53:23] Speaker 05: The red brief? [00:53:24] Speaker 03: Yes. [00:53:25] Speaker 05: Where specifically? [00:53:33] Speaker 03: Government's brief at 35. [00:53:35] Speaker 03: The government says it does not have an unlimited method for exculpating itself from that promise to provide those tracks to Leeds Ford. [00:53:45] Speaker 03: That's the 160 water acres and the 36 land acres. [00:53:50] Speaker 05: I suppose it would mean it would depend on what they meant by the tracts, dry tracts or wet tracts. [00:53:56] Speaker 03: Well, I think we got mud tracts, not water tracts. [00:54:01] Speaker 05: Because if, I guess, I came in thinking, well, suppose you're right that the exculpatory clause [00:54:09] Speaker 05: had an implicit limitation that any drawdown of water had to be reasonable. [00:54:16] Speaker 05: I don't remember seeing evidence that the Corps was actually unreasonable in drawing down the water. [00:54:23] Speaker 03: They were not unreasonable in drawing down the water. [00:54:26] Speaker 03: They were unreasonable in not telling us that the dam was in bad shape. [00:54:30] Speaker 05: That's really the first one. [00:54:31] Speaker 03: When the dam is in terrible shape, yes, they must draw down the water. [00:54:35] Speaker 03: We're not suggesting that they have to keep it high. [00:54:37] Speaker 03: for us and risk the dam failure. [00:54:42] Speaker 05: This really should be the last thing, and then we're going to wrap up. [00:54:46] Speaker 03: But you got into a discussion with counsel, and she said the services here that were required by the lease document weren't for the benefit of the government. [00:54:56] Speaker 03: But there are CDA cases, and unfortunately, I can't cite them off the top of my head. [00:55:00] Speaker 03: But they provide that the services don't always have to flow to the government to be a CDA contract. [00:55:06] Speaker 03: And I'm thinking of contracts such as to provide cable TV on military bases. [00:55:12] Speaker 03: That is a CDA contract, even though the service does not flow directly to the government. [00:55:17] Speaker 03: And payment, ultimately, for that service comes from individuals and not the government. [00:55:23] Speaker 03: We will cite that back to you, Your Honor. [00:55:25] Speaker 05: Thank you all.