[00:00:11] Speaker 00:
The next case for argument is 171171 ECE versus Shulkin.

[00:00:52] Speaker 00:
Mr. Anderson, let the other side get set.

[00:01:10] Speaker 04:
Okay, Mr. Anderson, we're ready when you are.

[00:01:12] Speaker 04:
Good morning, Your Honors.

[00:01:14] Speaker 04:
May it please the Court?

[00:01:15] Speaker 04:
Brad Anderson, I represent the Appellant, the Bryans, and BCE in this matter.

[00:01:22] Speaker 04:
This case asked the question of whether the government can accept the benefits and the performance of a contract that it knew was the result of fraud and therefore void ab initio.

[00:01:42] Speaker 00:
And you say they knew it was, I'm a little confused about how things went down here in the timing.

[00:01:47] Speaker 00:
You say they knew it was the result of fraud.

[00:01:51] Speaker 00:
Well, they didn't find out a lot of this stuff until discovery in terms of this litigation.

[00:01:56] Speaker 00:
But when you say they knew, is that because the contracting officer knew about some forgery?

[00:02:01] Speaker 04:
Yes.

[00:02:03] Speaker 04:
There are both undisputed facts that we relied upon in our cross-motion for summary judgment that we believe were sufficient to allow us to enforce the contract.

[00:02:17] Speaker 04:
There were also disputed facts

[00:02:20] Speaker 04:
that we believe needed to be resolved against the government in order to solve the issue.

[00:02:27] Speaker 04:
So in some ways, I can understand the court's confusion.

[00:02:30] Speaker 04:
I tried with my best to break this into disputed facts and undisputed facts, because we believe the undisputed facts support our position that the government is equitably stopped from being able to claim that this was a void

[00:02:50] Speaker 04:
ab initio contract.

[00:02:52] Speaker 00:
Can I just ask you one preliminary question, which I also find hard to understand what's going on in this case?

[00:02:59] Speaker 00:
You defaulted on the contract.

[00:03:02] Speaker 04:
The government terminated the contract for cause as opposed to for convenience.

[00:03:10] Speaker 04:
So that's what we've appealed.

[00:03:13] Speaker 00:
But that termination

[00:03:15] Speaker 00:
was outside of what's going on, all the arguments we're making here about what they knew and what they didn't know.

[00:03:21] Speaker 04:
Absolutely not, because when they terminated for cause, they then foreclosed on my client's bond, which then led to a personal liability against my clients.

[00:03:35] Speaker 04:
That's one of the acts.

[00:03:36] Speaker 00:
They terminated for cause because?

[00:03:39] Speaker 04:
Well, they said we weren't timely performing.

[00:03:42] Speaker 00:
Right, so their termination

[00:03:45] Speaker 00:
has nothing to do with the arguments you're making here about whether the contract was void, ab initio, or whether there was fraud and that sort of stuff, right?

[00:03:53] Speaker 00:
So I guess I'm having a hard time.

[00:03:55] Speaker 00:
Even if you were to prevail on all of those arguments, you defaulted on the contract.

[00:04:01] Speaker 00:
And they terminated the contract on that basis.

[00:04:03] Speaker 00:
How do you prevail in terms of getting any relief?

[00:04:07] Speaker 04:
The whole case started with us appealing determination for cause.

[00:04:10] Speaker 04:
In other words, we said, you unlawfully or you wrongfully claimed that we were at default.

[00:04:16] Speaker 04:
And so that was the case.

[00:04:18] Speaker 04:
And then later on, the government amended its complaint shortly before the summary judgment and said, hey, this contract was void.

[00:04:27] Speaker 04:
And so then we got into the whole issue of whether we even had a right to claim the rights of a termination for cause versus convenience.

[00:04:35] Speaker 04:
So the case started off as an old-fashioned, we appealed the VA's determination.

[00:04:41] Speaker 00:
So even if you were to prevail on all of the second tier stuff that we're arguing about here, all that would get you was you're back to square one, which is, did the government properly terminate you for default in the first place?

[00:04:54] Speaker 04:
Precisely.

[00:04:55] Speaker 04:
That's what the case started off as.

[00:04:57] Speaker 04:
And then they said they got this teaming agreement through discovery.

[00:05:00] Speaker 04:
And they said, aha, we've caught you because

[00:05:04] Speaker 04:
this is a fraudulent contract.

[00:05:06] Speaker 04:
And so they changed it within a minute complaint right afterwards, filed the motion for summary judgment.

[00:05:11] Speaker 00:
There's nothing that appears to me unreasonable about their having done that when through discovery of this claim, they discovered the matters that we're talking about here.

[00:05:21] Speaker 04:
Well, it is unreasonable when you think that they knew that the contract was void ab initio

[00:05:29] Speaker 04:
When the contract was let out, when they gave the notice to proceed, they knew the contract was... Did they know about the stuff they discovered through discovery about the BCE, this teaming agreement and so forth?

[00:05:41] Speaker 00:
They didn't know about that.

[00:05:43] Speaker 00:
What you're claiming is they knew about is some other knowing of forgery or whatever, but not the teaming agreement.

[00:05:49] Speaker 00:
That only came out during discovery, correct?

[00:05:52] Speaker 04:
Right.

[00:05:53] Speaker 04:
And again, I will address the teaming agreement because that seems to be their defense.

[00:05:59] Speaker 04:
But my point is they always knew that Singleton, who was convicted, had unlawfully forged my client's signature to the contract.

[00:06:09] Speaker 04:
They knew that.

[00:06:10] Speaker 02:
We then said... He unlawfully forged the signature when the teaming agreement gives Singleton full exclusive and complete authority and discretion in management and control of business and all set-aside contracts awarded to BCE.

[00:06:22] Speaker 02:
Okay, so the teaming, first of all, Your Honor, the teaming... How was that an improper forgery when he actually had been given by your client express authority over all contracts?

[00:06:31] Speaker 04:
The teaming agreement, this is important to understand, the undisputed facts about the teaming agreement was that my client, BCE, who had never weighed into federal contracting, did use the Singleton, who was infamous for doing the rent-to-vet program.

[00:06:49] Speaker 04:
To answer your question is,

[00:06:51] Speaker 04:
He sends to my clients all of these documents that my clients needed to sign in order to get their bonding.

[00:06:57] Speaker 04:
The undisputed evidence was my client signed the last page of this teaming agreement, was never provided the first pages of the teaming agreement.

[00:07:06] Speaker 00:
Well, that's your problem with Mr. Singleton.

[00:07:08] Speaker 00:
I mean, how does that have any bearing here, whether your client was misled or not misled, or how the background for this whole teaming agreement, the bottom line is the teaming agreement kind of disqualifies everyone.

[00:07:21] Speaker 04:
First of all, BCE was a qualified contractor.

[00:07:27] Speaker 04:
My client was a disabled vet, owned his company.

[00:07:30] Speaker 04:
His company had been around since 1999.

[00:07:32] Speaker 04:
So under the rules, BCE was qualified under the program to get these contracts.

[00:07:39] Speaker 04:
What the government is saying is this teaming agreement invalidated them because it's an illegal agreement.

[00:07:46] Speaker 04:
We agree that the teaming agreement

[00:07:49] Speaker 04:
if effective, would have rendered my client ineligible.

[00:07:52] Speaker 04:
The point, and again, this is undisputed facts.

[00:07:55] Speaker 04:
If you look at the Veridine decision that they rely upon, if the government can prove under the special plea in fraud statute, if the government can prove that my client committed fraud by misrepresenting itself as a qualified contractor,

[00:08:17] Speaker 04:
then the Veridine decision kicks in and my client can't on one hand be a participant in the fraud and then claim that they are entitled to the benefits.

[00:08:27] Speaker 04:
So Singleton, I'm sorry, the VA and my clients were both victims of Singleton's fraud, a third party fraud.

[00:08:36] Speaker 04:
In Veridine, the lower court, the Federal Court of Claims had held, well under an unjust enrichment theory,

[00:08:43] Speaker 04:
The contractor was entitled to the benefits that they put on the government.

[00:08:48] Speaker 04:
However, this court held no.

[00:08:51] Speaker 04:
When the contractor is the one that committed the fraud, it's almost like unclean hands.

[00:08:57] Speaker 04:
They're not entitled to any benefits.

[00:09:01] Speaker 04:
In my case, it's different because the Brian's were as innocent or were not the ones that perpetuated the fraud.

[00:09:10] Speaker 04:
In fact, they participated in the conviction of Mr. Singleton.

[00:09:14] Speaker 04:
So that's the distinction that needs to be made here.

[00:09:17] Speaker 04:
And I want to make this point very clearly is it wasn't until after the VA had foreclosed on my client's bond and Great American, the bonding company, had sued my clients out in Washington that we received this teaming agreement.

[00:09:36] Speaker 04:
We don't deny we signed the last page and shame on my clients for signing a bunch of documents that they didn't read, but the undisputed facts is that my clients didn't even receive the teaming agreement until it was provided in discovery in the federal lawsuit.

[00:09:52] Speaker 00:
Whatever page they signed, they were required to turn that over to the contracting officer in the first instance and they failed to do it.

[00:09:59] Speaker 00:
Whether they thought it was a five-page document or a one-page document, they didn't

[00:10:04] Speaker 00:
turn over what they were required to turn over, right?

[00:10:07] Speaker 04:
Well, and as lawyers, we certainly tell our clients, don't sign anything unless you've got all the pages.

[00:10:11] Speaker 04:
We didn't have the document.

[00:10:13] Speaker 04:
We didn't have the document until later.

[00:10:15] Speaker 00:
But remember, Your Honor... But that's... I mean, I guess that's fine.

[00:10:20] Speaker 00:
I'll accept that as correct.

[00:10:22] Speaker 00:
But why does that matter?

[00:10:23] Speaker 00:
That doesn't obviate

[00:10:25] Speaker 00:
your client's obligation to turn something over.

[00:10:27] Speaker 00:
They were part of the contract, right?

[00:10:30] Speaker 04:
It wasn't part of the contract because remember, Your Honor, at the time that the offer was made, it was not made by BCE.

[00:10:37] Speaker 04:
It was not made by my clients.

[00:10:39] Speaker 04:
It was made by Singleton and we never authorized Singleton

[00:10:44] Speaker 04:
to submit the bid.

[00:10:45] Speaker 04:
We didn't authorize Singleton to sign.

[00:10:48] Speaker 00:
I mean, your whole basis for being here is that you want one force of contract.

[00:10:52] Speaker 00:
Obviously, you think you're a party to this contract.

[00:10:55] Speaker 04:
No.

[00:10:56] Speaker 04:
In October of 2010, my clients wanted to get back to Washington, our state of Washington.

[00:11:03] Speaker 04:
They told the federal government, this is not something that my company has authorized.

[00:11:10] Speaker 04:
See, here is the Ford signature.

[00:11:13] Speaker 00:
singleton who was so i don't understand we started our conversation about ten minutes ago by talking about what you're really seeking here is there was a default the argument the government to terminate the contract based on default and the underlying case which you're seeking to pursue here is that they shouldn't have terminated the case for default you're part and party to arguing that your client's contract ought to have been enforced

[00:11:38] Speaker 04:
No, I'm standing here telling you that when the Brian's were confronted with this forged documents, they told the government, we don't want to perform.

[00:11:49] Speaker 04:
We want to repudiate.

[00:11:50] Speaker 04:
And you know what the federal government told my clients at that time is, no, we're not going to let you repudiate.

[00:11:58] Speaker 04:
If you try to repudiate, we're going to terminate your contract for cause and then we're going to go after your bond.

[00:12:05] Speaker 04:
and the bonding company's going to come after you personally and so my clients knew from the beginning beg the government please don't go forward with this because it's an illegal contract like from what the when did the start after the discovery in the discovery of this team agreement with the the the teaming agreement was discovered at uh... after we had appeal and we discovered it after the government had foreclosed on our bond so what the government knew when they gave the notice to proceed is us saying

[00:12:35] Speaker 04:
sink singleton did not have our forty to sign this court to even submit this contract he's he'd signed my name he signed eric's name he says he frauded you i wasn't in fact he was uh... the undisputed facts was that the contracting officer uh... actually talk to singleton who who said he was jerry king and and she said miss niger is miss niger qualified or authorized by the u.s.

[00:13:01] Speaker 02:
government to allow uh...

[00:13:04] Speaker 02:
these folks BCE out of this contract?

[00:13:07] Speaker 02:
Or would that issue had to have gone through to adjudication?

[00:13:11] Speaker 02:
Is she personally qualified?

[00:13:12] Speaker 04:
You lost me.

[00:13:13] Speaker 04:
Can you ask the same question again?

[00:13:15] Speaker 02:
Is Ms.

[00:13:15] Speaker 02:
Snyder qualified?

[00:13:16] Speaker 02:
You say your clients went to her and wanted to be let out of this contract because they told her they never signed it.

[00:13:21] Speaker 02:
It was a forgery.

[00:13:22] Speaker 02:
Is she qualified to let them out of that contract?

[00:13:26] Speaker 04:
Oh, absolutely.

[00:13:27] Speaker 02:
Of course she's not.

[00:13:29] Speaker 02:
She's not a contracting officer with the US government.

[00:13:32] Speaker 02:
She doesn't have the authority to bind

[00:13:35] Speaker 04:
She is the contracting officer.

[00:13:36] Speaker 02:
Snyder was the contracting officer.

[00:13:40] Speaker 02:
Let me back this up.

[00:13:41] Speaker 02:
So your clients have come in a scenario where things are awful and terribly behind on the contract.

[00:13:50] Speaker 02:
That was the state of affairs.

[00:13:51] Speaker 02:
They say to Ms.

[00:13:52] Speaker 02:
Snyder, well, we never signed this contract.

[00:13:55] Speaker 02:
And she says to them, well, I've got a signed contract here, and whether you signed it or not,

[00:14:01] Speaker 02:
It has to be performed.

[00:14:02] Speaker 02:
I have confidence in your ability to do it.

[00:14:04] Speaker 02:
I'm recounting the facts as your person told them, not as she told them, as your person told them.

[00:14:09] Speaker 02:
And then your person says, she said to us, if we don't go forward, she would proceed to terminate the contract for default.

[00:14:19] Speaker 02:
And if a contractor does refuse to go forward, that is the proper course of action, to terminate for default.

[00:14:25] Speaker 02:
And then he says, at paragraph 37, with this threat,

[00:14:30] Speaker 02:
that if they didn't go forward, she would terminate for default, which I see nothing wrong with on her part.

[00:14:34] Speaker 02:
With this threat, Sherry and I told Mrs. Snyder we would agree to go forward with the project.

[00:14:39] Speaker 02:
So they've got a contract signed by someone who, it turns out, was authorized by them in light of the teaming agreement to sign contracts on their behalf.

[00:14:48] Speaker 02:
We have them bringing this problem to the attention of the contracting officer.

[00:14:52] Speaker 02:
And we have her saying, listen, if you don't go forward, you're in default.

[00:14:56] Speaker 02:
And then them saying, OK, we'll go forward.

[00:14:58] Speaker 02:
I don't understand how.

[00:15:00] Speaker 02:
That creates a knowledge in Ms.

[00:15:04] Speaker 02:
Schneider that makes the contract, even under the facts as told by your side, void ab initio at that moment in time.

[00:15:12] Speaker 04:
OK.

[00:15:12] Speaker 04:
So there's a misunderstanding of the facts.

[00:15:14] Speaker 04:
And I'm sorry.

[00:15:14] Speaker 04:
And maybe in my attempt to be clear by setting out undisputed facts and disputed facts, here are the facts, is that Singleton signs Jerry Keenan.

[00:15:30] Speaker 04:
Brian's name on the contract, which he didn't have the authority.

[00:15:35] Speaker 03:
Before you go to this, let's look at another fact.

[00:15:38] Speaker 03:
And that's that your clients were never eligible for SDVO SB contracts to begin with, correct?

[00:15:44] Speaker 04:
No, they were.

[00:15:46] Speaker 04:
Jerry, in fact, he's 100% disabled now.

[00:15:48] Speaker 04:
Back then, he was disabled.

[00:15:49] Speaker 04:
So he, the company... Singleton was not.

[00:15:52] Speaker 04:
Singleton was not, no.

[00:15:55] Speaker 04:
Going back to... Judge, did I answer your question?

[00:15:58] Speaker 04:
Going back to your question is the disputed facts.

[00:16:03] Speaker 03:
I'm sorry.

[00:16:04] Speaker 03:
Are you saying that BCE is eligible for SDV or VOCB contracts?

[00:16:11] Speaker 04:
Yes.

[00:16:11] Speaker 04:
Yes.

[00:16:12] Speaker 04:
The only reason they would not have been is they are eligible.

[00:16:17] Speaker 04:
The teaming agreement is an illegal contract that would have rendered them ineligible if it had been implemented, but it was never implemented because Section 5

[00:16:27] Speaker 04:
says the only way it's implemented is if there's a subcontract.

[00:16:30] Speaker 04:
And this teaming agreement was something we didn't know the terms of until after all of this occurred.

[00:16:36] Speaker 04:
But I want to go back to Judge Moore's question because I think this is the heart of the case.

[00:16:39] Speaker 04:
Your Honor, before they gave the notice to proceed, so the contract was not being performed by anybody, it was the kickoff meeting, the notice to proceed, that's when my client said,

[00:16:51] Speaker 04:
We don't want this contract.

[00:16:53] Speaker 04:
It's void ab initio.

[00:16:55] Speaker 04:
They said, let's repudiate this, not while it was being performed, at the outset.

[00:17:00] Speaker 04:
I think it's September 31st or October 1st.

[00:17:03] Speaker 04:
At the outset, we said, we never authorized Singleton to sign this.

[00:17:09] Speaker 04:
He forges Jerry's name.

[00:17:11] Speaker 04:
He was an imposter, which Ms.

[00:17:13] Speaker 04:
Snyder admitted and said that was unprofessional.

[00:17:15] Speaker 04:
But it was before the contract and the notice to proceed was let out that we said,

[00:17:20] Speaker 04:
We won out.

[00:17:21] Speaker 04:
So Your Honor, there's some confusion there, but our testimony was this happened before we swung the first hammer or did anything before.

[00:17:30] Speaker 04:
So there was no contract from the beginning because there was never any authority to Singleton to sign the contract.

[00:17:37] Speaker 04:
And it's pretty obvious when he signs my client's name and my clients sit there and say, first time they saw the contract was at the pre-meeting the day before.

[00:17:46] Speaker 04:
And they had to print it out for Jerry.

[00:17:49] Speaker 04:
And she said, that's not my signature.

[00:17:51] Speaker 04:
And they said, we just want to go back to the Northwest.

[00:17:55] Speaker 04:
We don't want to do this contract.

[00:17:56] Speaker 04:
And the contracting officer who does have the authority to sign contracts and terminate contracts or accept the repudiation of a contract said, I don't want to let this out again.

[00:18:09] Speaker 04:
I'm going to hold you to this.

[00:18:11] Speaker 04:
And in fact, if you don't do the work, I'm going to put you in default.

[00:18:16] Speaker 04:
So Your Honor, that's the facts of this case.

[00:18:19] Speaker 04:
I know when you apply equitable doctrines against the government, it's tough.

[00:18:24] Speaker 04:
High burden.

[00:18:25] Speaker 04:
This case, when you look at the facts and you see that we claim from the beginning, this is an invalid contract.

[00:18:32] Speaker 04:
We don't want to force it.

[00:18:32] Speaker 04:
But then I'll finish with this one to answer your question is, we did not want to perform the contract.

[00:18:38] Speaker 04:
They made us perform the contract.

[00:18:40] Speaker 02:
No, you agreed to.

[00:18:41] Speaker 02:
What's that?

[00:18:42] Speaker 04:
Well, with a gun to our head.

[00:18:44] Speaker 02:
No, you agreed under the threat of default.

[00:18:46] Speaker 02:
Yes.

[00:18:46] Speaker 02:
Which would have been appropriate because there was, in fact, a signed contract in place.

[00:18:50] Speaker 02:
Your client could have gone forward with his own litigation.

[00:18:53] Speaker 02:
He could have contested the contract and said that person wasn't authorized to sign on behalf of me.

[00:18:57] Speaker 02:
Turns out the person was.

[00:18:58] Speaker 02:
But he could have claimed the person wasn't authorized to sign on behalf of me, but he didn't.

[00:19:03] Speaker 02:
Instead, he accepted the contracting responsibility at that point by his own testimony.

[00:19:08] Speaker 04:
Sure, I say gun to the head, maybe it's inappropriate, but yes, they could have made a choice.

[00:19:12] Speaker 04:
They could have gone to a lawyer and said the government's going to make us perform under a void, not avoid, not avoidable, an illegal contract.

[00:19:19] Speaker 04:
They could have gone to a lawyer and said no, but you also understand that in the real world,

[00:19:24] Speaker 04:
people sometimes have to proceed, and under the law, we have to mitigate our damages.

[00:19:29] Speaker 02:
As it turns out, it would never have been a void contract because Mr. Singleton did in fact have the authority to sign.

[00:19:35] Speaker 04:
He did not have the authority to sign.

[00:19:37] Speaker 03:
That's not what made the contract illegal.

[00:19:41] Speaker 03:
signature.

[00:19:42] Speaker 03:
What made the contract illegal is a failure to certify this small business purchase status.

[00:19:51] Speaker 04:
The undisputed evidence is we were certified on the web page, whatever that is.

[00:19:55] Speaker 04:
But the teaming agreement changed that status.

[00:20:00] Speaker 04:
It could have if the teaming agreement had been put into effect.

[00:20:03] Speaker 04:
So my clients were certified, they actually did that themselves where they qualified as a

[00:20:09] Speaker 04:
disabled vet program, if the teaming agreement had been put into effect, which was under Section 5 of the teaming agreement that required a subcontract, then it would have rendered... But they were obligated to disclose a teaming agreement to the VA.

[00:20:24] Speaker 04:
Well, that assumes, your Honor, this is the whole... I'm running out of time, but that assumes

[00:20:31] Speaker 04:
that my clients actually authorized Singleton to bid on this project.

[00:20:35] Speaker 04:
He was not authorized.

[00:20:37] Speaker 04:
We still were the master of our domain.

[00:20:39] Speaker 03:
The difference, though, between the bid of the project and the signing of the teaming agreement.

[00:20:45] Speaker 03:
Right.

[00:20:45] Speaker 03:
They knew they signed the teaming agreement.

[00:20:47] Speaker 04:
They knew they had signed a document.

[00:20:48] Speaker 04:
They hadn't received the document until later.

[00:20:50] Speaker 03:
They knew they authorized this individual to proceed on their behalf, almost gave him carte blanche authority over this particular project.

[00:20:59] Speaker 04:
That's a question of fact that we deny.

[00:21:01] Speaker 03:
But they did not disclose to the VA.

[00:21:02] Speaker 02:
But you can't deny, because the page they signed said, we agree to the enclosed teaming agreement.

[00:21:07] Speaker 02:
So you can't deny that they signed.

[00:21:10] Speaker 02:
You can say, OK, we didn't get the first five pages, the six page document.

[00:21:13] Speaker 02:
But the six page, the page they said they did get that they signed says, this is a teaming agreement on it, right above the signature.

[00:21:20] Speaker 04:
Sure.

[00:21:21] Speaker 04:
But they still had to authorize Singleton to bid on the particular

[00:21:28] Speaker 04:
contracts.

[00:21:28] Speaker 04:
They didn't authorize him to sign Jerry's name to it.

[00:21:32] Speaker 04:
So to say that they had a duty to disclose the teaming agreement to the VA, that's true only if the company had actually authorized a bid on that particular contract.

[00:21:45] Speaker 00:
I'll reserve the rest of my time.

[00:21:46] Speaker 00:
We're way out of time.

[00:21:47] Speaker 00:
So we'll restore two minutes to rebuttal and let's hear from the government.

[00:22:07] Speaker 01:
The board correctly upheld a termination for default decision against BCE after BCE effectively admitted that it obtained the underlying contract by falsely representing that it was eligible for service-disabled veteran-owned small business contracts.

[00:22:22] Speaker 01:
Although BCE has raised a number of defenses and you've heard some of those today, in response to the government's void-out-of-issue argument,

[00:22:28] Speaker 01:
None of these defenses expressly rebut the allegation that BC falsely certified its status to obtain the contract.

[00:22:34] Speaker 00:
But what about his argument that he spent the last 10 minutes talking about, which is this should have never happened in the first place?

[00:22:42] Speaker 00:
Because they forged the document and told that to the contracting officer.

[00:22:45] Speaker 00:
So this contract should have blown up at day one, and we should have never gone through this.

[00:22:51] Speaker 01:
Respectfully, Your Honor, the forgery argument, as we've raised in our brief, is sort of a red herring in that it's designed

[00:22:57] Speaker 01:
distract from the real issue, which is whether or not BCE was eligible in the first instance to receive the contract that it bid on, and whether or not that was a proper basis for the termination.

[00:23:06] Speaker 01:
But getting into the question of the forgery issue, I think, as this Court has recognized, to the extent that BCE is arguing that Mr. Singleton did not have the authority to sign the contract when he did, first of all, the teaming agreement suggests that, in fact, he did have that authority, and Mr. Bryan's

[00:23:25] Speaker 01:
decision to sign the notice to proceed and continued performance on the contract and enjoyed performing the contract until they were terminated for default suggests that he ratified any improper signature in the first instance.

[00:23:38] Speaker 02:
Well, how does the teaming agreement make it clear that Singleton did have the authority when he actually signed the name of Jerry Bryan, not his own name?

[00:23:49] Speaker 02:
So if I authorize you to act on behalf of my company, you could sign your name on a document.

[00:23:53] Speaker 02:
that doesn't give you the right to sign my name on a document.

[00:23:57] Speaker 01:
That may be true, Your Honor.

[00:23:58] Speaker 01:
What the teaming agreement did do was it permitted Singleton to exercise full and exclusive control over the SDVOSB bids that were issued on behalf of BCE.

[00:24:08] Speaker 01:
As we understand now that that was effectively a legal teaming agreement in the first place because it was in order to perpetuate a fraudulent scheme.

[00:24:16] Speaker 01:
And so to the extent Mr. Singleton was not expressly authorized in a fraudulent document to sign on behalf of Mr. Ryan,

[00:24:23] Speaker 01:
That may be true.

[00:24:25] Speaker 02:
Mr. Bryant claims that he had no idea that Singleton was out there doing this and he had not intended to give Singleton any kind of exclusive authority to sign on behalf of us or control our contracts.

[00:24:41] Speaker 02:
He claims that he was unaware of the teaming agreement, which he may have signed the last page of, but he certainly didn't know that it authorized Singleton to do any of those things.

[00:24:49] Speaker 01:
Assuming for the sake of argument here that Mr. Singleton or Mr. Bryant was not aware of the full term of the teaming agreement, what the Bryant's were aware of, what BC was aware of, is that they had entered into a financial agreement with Mr. Singleton in order to bid on services able to better known small business card.

[00:25:07] Speaker 02:
Where does Mr. Bryant admit that?

[00:25:09] Speaker 02:
Does he agree?

[00:25:10] Speaker 01:
It's admitted in five, I think five separate instances in the record.

[00:25:14] Speaker 01:
Show me where.

[00:25:15] Speaker 01:
First in appendix 53, 053.

[00:25:19] Speaker 01:
BCE states, Singleton's involvement in the submittal of the bid may have also rendered BCE ineligible under the set-aside program rules.

[00:25:28] Speaker 02:
And then it... Okay, wait.

[00:25:28] Speaker 02:
Page 53.

[00:25:29] Speaker 02:
Correct.

[00:25:29] Speaker 02:
This is a brief that they submitted, what, to the lower court?

[00:25:34] Speaker 02:
What was...?

[00:25:35] Speaker 01:
To the CBCA, correct.

[00:25:36] Speaker 02:
Okay.

[00:25:37] Speaker 02:
So this is a brief they submitted.

[00:25:38] Speaker 02:
And what sentence do you want me to look at?

[00:25:40] Speaker 01:
It's the sentence that begins Singleton's involvement.

[00:25:45] Speaker 02:
It's... Page 53.

[00:25:48] Speaker 02:
Did you say 53 of the appendix?

[00:25:50] Speaker 01:
It's 53 of the appendix, and it's in the... It's not a paragraph, it's just a sentence.

[00:25:55] Speaker 01:
It's just a sentence.

[00:25:56] Speaker 01:
It's under the paragraph under header two, and it's the... Oh, there we go.

[00:26:03] Speaker 01:
And this starts with the second sentence.

[00:26:05] Speaker 01:
You see that some of the sentences, the board relied on its decision.

[00:26:08] Speaker 01:
In the sentence, the third sentence that begins Singleton's Involvement, it goes, Singleton's involvement in the submittal of the bid may have also rendered D.C.

[00:26:14] Speaker 01:
ineligible under the set-aside program rules.

[00:26:17] Speaker 01:
on page 54.

[00:26:19] Speaker 02:
They're agreeing that, gosh, if we had signed this teaming agreement and done what it looks like people are claiming we did, then that would be a real problem.

[00:26:30] Speaker 02:
They're agreeing that that would have been a problem, that that would have rendered their company ineligible, but they're saying they didn't do it.

[00:26:37] Speaker 01:
Respectfully, Your Honor, I believe what they're saying in this document is that besides just the teaming agreement itself, they also acknowledge that

[00:26:43] Speaker 01:
that there was a financial agreement, an agreement between the parties that they were aware of.

[00:26:48] Speaker 02:
Where is that financial agreement?

[00:26:49] Speaker 01:
This is on page 54 of the document, the next page, under subheader two on page 54.

[00:26:54] Speaker 01:
On appendix 54, there's a sentence that begins, the Bryans nonetheless admit, it's the start of the second full paragraph under header two, the Bryans nonetheless admit that at the time Singleton submitted the forged bid on April 12, 2010, Singleton's financial arrangement with the Bryans

[00:27:13] Speaker 01:
likely would have made BCE ineligible under the set-aside program rule.

[00:27:16] Speaker 01:
And what that's referring to is the financial arrangement, whereas Mr. Singleton would provide what was needed for them to obtain bonding and obtain insurance, and the arrangement that also included his assistance in obtaining these contracts in the first place in exchange for some dollar figure, some profit.

[00:27:33] Speaker 01:
That's the admission that the board relied on.

[00:27:36] Speaker 01:
And that's the admission that despite this question of whether or not the teaming agreement was in effect,

[00:27:42] Speaker 01:
And in fact, the Bryants were aware of an agreement, of the existence of an agreement.

[00:27:48] Speaker 02:
But... He claims in his declaration that that agreement was that this guy was going to be his project manager, and he's going to help and assist them on submitting bids and getting these contracts and teach them how to do this.

[00:28:01] Speaker 01:
That is what he says.

[00:28:02] Speaker 01:
That is what Mr. Bryant says in his declaration.

[00:28:04] Speaker 02:
Would that be the financial arrangement he's referring to?

[00:28:06] Speaker 01:
That I believe is to the extent they're not referring to the teaming agreement.

[00:28:09] Speaker 01:
That is theoretically the financial arrangement they're referring to.

[00:28:12] Speaker 01:
But what he also acknowledges is that Mr. Bryant was there in order to help him get bonds and insurance, things he didn't have.

[00:28:18] Speaker 01:
Mr. Singleton.

[00:28:18] Speaker 01:
Mr. Singleton, excuse me.

[00:28:19] Speaker 01:
He was helping Mr. Bryant get bonds and insurance, things that Mr. Bryant did not have the finances in order to obtain in the first place.

[00:28:27] Speaker 03:
Do you know who's self-certified on the web, on the VA's website, eligibility for the citicide?

[00:28:35] Speaker 01:
The record reflects it.

[00:28:37] Speaker 01:
I'm not sure that the record before the court specifically identifies which person.

[00:28:40] Speaker 03:
I don't find anything in the record.

[00:28:42] Speaker 01:
It doesn't identify which person certified.

[00:28:44] Speaker 01:
What the record reflects is that BCE acknowledges that it authorized the certification on the Veterans Information Pages website that it was an eligible set aside for the purposes of this contract.

[00:28:58] Speaker 01:
Whether or not they authorize Mr. Singleton to submit a bid pursuant to that, BC acknowledges that despite the existence of having a financial arrangement with Mr. Singleton,

[00:29:10] Speaker 01:
They did, in fact, certify and they authorized the certification on the VetBiz website.

[00:29:15] Speaker 01:
And it's that certification, not this question of forgery, that is central to the issue of whether or not they were properly awarded this contract in the first place.

[00:29:24] Speaker 01:
I want to get to a couple points that were made by BC before the court here.

[00:29:30] Speaker 01:
One is the notion that BC was qualified at the time it was awarded the contract as an SDB OSB.

[00:29:37] Speaker 01:
Originally, they raised the argument that in October 2010,

[00:29:40] Speaker 01:
or when they continued with the notice to proceed that they were eligible at that point in time.

[00:29:45] Speaker 01:
And they've subsequently in their reply brief now argued that at the time of the actual bid itself, they were eligible.

[00:29:51] Speaker 01:
With regards to the October 2010 eligibility, that's frankly not relevant to the question here, which is whether or not at the time they were awarded the contract, did they or did they not deprive another eligible contractor the opportunity to win this award.

[00:30:05] Speaker 01:
And even if it were relevant,

[00:30:07] Speaker 01:
B.C.

[00:30:07] Speaker 01:
has admitted in its briefing, and it's throughout the appendix, that Mr. Singleton, in fact, was still working for, or at least working on behalf of, B.C.

[00:30:17] Speaker 01:
through the spring of 2011.

[00:30:19] Speaker 01:
So the notion that they disassociated themselves with Mr. Singleton is contradicted by their own statements.

[00:30:25] Speaker 03:
Who is John Kinsey?

[00:30:28] Speaker 01:
Your Honor, I'm not exactly sure who John Kinsey is, to be frank.

[00:30:35] Speaker 01:
I believe they say at one point that John Kinsey is the person who helped them submit the paperwork with relation to the certification, but they at other times in the record also say that Mr. Singleton was brought in to help them do the certification process in the first place.

[00:30:54] Speaker 03:
Well, the Appendix 26, in response to a question that said, BCE admits that John Kinsey, not Singleton,

[00:31:03] Speaker 03:
Assisted to Brian the submitting paperwork for bce to become eligible to bid on the set-aside contracts that seems to me to To read that bce and John Kinsey worked side-by-side And then we see some sort of help, but bce was involved in that process I believe that that's that is what their response is to the the requests for admission later on in the appendix And I think this is an appendix

[00:31:33] Speaker 01:
82.

[00:31:34] Speaker 01:
Oh, excuse me.

[00:31:37] Speaker 01:
I'm not correct there, Your Honor.

[00:31:41] Speaker 01:
I apologize.

[00:31:41] Speaker 01:
I'm missing the specific site.

[00:31:42] Speaker 01:
But throughout the appendix, there's contradictory statements regarding the certification itself.

[00:31:48] Speaker 01:
But even if Mr. Singleton did not assist them with signing the certification statements for the purposes of this website, it's clear that they retained Mr. Singleton or Mr. Singleton

[00:32:01] Speaker 01:
co-opted BCE in order to obtain these contracts prior to the submissions, prior to the bid in this case and prior to certifying on the VetBiz website.

[00:32:10] Speaker 02:
So Mr. Singleton, it appears, lured disabled veterans like Mr. Bryan into these fraudulent arrangements.

[00:32:17] Speaker 02:
What is his status now?

[00:32:19] Speaker 01:
I don't know Mr. Singleton's specific status.

[00:32:21] Speaker 01:
I know he was convicted of the scheme, of this renovate scheme in the district courts in Georgia.

[00:32:27] Speaker 01:
I don't know whether or not he's currently serving time or not, or if he's out.

[00:32:32] Speaker 01:
I think there was a two-year sentence, but to be honest, it's not entirely clear to me at this point where he stands there.

[00:32:44] Speaker 01:
The other thing I want to, and maybe the court understands this, and I'm simply, this is unnecessary, but one of the statements that was made is that this issue of fraud, forgery, was raised before the contract was let out.

[00:32:57] Speaker 01:
The contract was led, it was awarded in June 2010, June 11, 2010.

[00:33:03] Speaker 01:
The notice to proceed was simply a notice pursuant to the terms of the existing contract to proceed performance of the work.

[00:33:17] Speaker 01:
And if there are no further questions, Your Honors, I respectfully request that the Court affirm the decision of the Board.

[00:33:23] Speaker 01:
Thank you.

[00:33:27] Speaker 04:
Thank you, Your Honor.

[00:33:31] Speaker 04:
Page 103, I think, answers your question.

[00:33:34] Speaker 04:
It's a little bit inconsistent, but if you look at Mrs. Bryan, she's kind of the person that takes care of the paperwork for BCE.

[00:33:44] Speaker 04:
She says in paragraph 5 of her declaration,

[00:33:47] Speaker 04:
When we first started to bid on federal contracts, I worked with Mr. Singleton and the federal government to submit paperwork to become eligible under the Service Disabled Veteran Owned Small Business Program.

[00:33:58] Speaker 04:
I remember receiving notice we had qualified and were on the list of eligible contractors.

[00:34:02] Speaker 04:
My point in front of the board was that if the teaming agreement was in effect, it was illegal.

[00:34:09] Speaker 04:
That's why he spent two years in prison and that's why my clients distanced themselves because about the time this contract was let out,

[00:34:17] Speaker 04:
The notice to proceed was when we started getting calls from the federal government investigators asking us to cooperate.

[00:34:24] Speaker 04:
And I think it's really important when you distinguish the other cases is that the government did not ever claim that we were a party to the fraud.

[00:34:32] Speaker 04:
They asked for our assistance to cooperate in the successful prosecution of Mr. Singleton.

[00:34:39] Speaker 04:
BCE never, and this is the key, this contract was void ab initio from the beginning.

[00:34:47] Speaker 04:
Because even under the teaming agreement, which if it was in effect, it still required that Singleton get my client's approval on each contract that he was going to submit a bid on.

[00:34:59] Speaker 03:
I don't think that's the issue here.

[00:35:01] Speaker 03:
I think the issue is that the reason it was void ab initio is because they never did qualify for this set-aside program.

[00:35:12] Speaker 03:
The fact that there's a teaming agreement should have been notified, and it was never notified.

[00:35:17] Speaker 03:
And that's contrary to the regulations that were before them.

[00:35:21] Speaker 03:
They should have known.

[00:35:22] Speaker 03:
You said it's sad or something like that, that they didn't read the contract.

[00:35:26] Speaker 03:
Well, it's, you know, legally it's too bad.

[00:35:29] Speaker 03:
They signed the agreements.

[00:35:31] Speaker 03:
They agreed and certified that they were eligible.

[00:35:35] Speaker 03:
They did not notify the VA about the teaming agreement, which would have stripped them of their eligibility.

[00:35:42] Speaker 04:
Your Honor, again, they were qualified

[00:35:45] Speaker 04:
If the teaming agreement went into effect after they were qualified, it would have rendered them disqualified.

[00:35:51] Speaker 04:
It would have been a fraud.

[00:35:52] Speaker 04:
They would have been the ones sitting in the pokey because they had committed fraud.

[00:35:56] Speaker 04:
So they were qualified.

[00:35:58] Speaker 04:
Look at section five of the teaming agreement.

[00:36:00] Speaker 04:
It says there had to be a subcontractor.

[00:36:02] Speaker 04:
My point, and I can't drive this home any more clearly and I'll sit down.

[00:36:06] Speaker 04:
My point is that even under the teaming agreement,

[00:36:09] Speaker 04:
Singleton had to get my client's approval before bidding on or entering into the contract.

[00:36:17] Speaker 04:
He did not have the authority to bind my client to this contract, and he did not have the authority to sign Jerry Bryan's name, and the government knew that before they issued a notice to proceed.

[00:36:30] Speaker 00:
And I ask a question about that, and I don't want to belabor it, but just one quick question to make sure I understand.

[00:36:35] Speaker 00:
In the whole discussion you had earlier with Judge Moore, it seemed you said,

[00:36:39] Speaker 00:
Well, as soon as we found out, we wanted out of this contract.

[00:36:42] Speaker 00:
And the contracting officer held a gun to our head and wouldn't let us out.

[00:36:46] Speaker 00:
But on Appendix 55, which your friend was pointing us to earlier, it says BCE has a right to enforce its agreement against the VA.

[00:36:56] Speaker 00:
They had an express contract, which was oral, and then confirmed in writing.

[00:37:00] Speaker 00:
Even though the contract was invalid on June 11, there are facts to show that BCE and the VA later agreed to have BCE complete the void contract.

[00:37:09] Speaker 00:
So what is your position?

[00:37:11] Speaker 00:
I thought you were trying to argue here that they tried to get out of this and this should have been declared void in the first instance.

[00:37:18] Speaker 00:
It seems like the argument here is that the government was bound by this contract with BCE.

[00:37:24] Speaker 04:
Two answers.

[00:37:26] Speaker 04:
One is the contracting officer who knew that it was fraud.

[00:37:31] Speaker 04:
void, not voidable, void as a matter of law, illegal contract.

[00:37:36] Speaker 00:
But my wrong in reading that here you're making the argument and not disputing that they later agreed to have them complete the contract.

[00:37:43] Speaker 04:
Yeah, through four.

[00:37:44] Speaker 00:
And your argument is they had an express contract which was oral and then confirmed in writing.

[00:37:49] Speaker 04:
Yeah, because what they did is after the illegal contract they wouldn't let us out of, they signed four

[00:37:54] Speaker 04:
written modifications, and if you look at the written modifications, they all say, we hereby reassert the terms of the original agreement.

[00:38:02] Speaker 04:
So when Snyder signs that, she knows that the original contract is void.

[00:38:07] Speaker 04:
She signed three, and then her replacement signed the fourth, saying, we're adopting the terms of the original agreement.

[00:38:14] Speaker 04:
My argument, and we cite the cases say,

[00:38:16] Speaker 04:
that if the original contract is void but you enter into a new contract that incorporates the terms of the first contract you have a valid contract.