[00:00:56] Speaker 03:
The next argued case is No.

[00:00:58] Speaker 03:
18-1231, Premier Office Complex against the United States.

[00:01:04] Speaker 03:
Mr. Georgetown.

[00:01:05] Speaker 03:
Yes.

[00:01:07] Speaker 00:
Good morning, Your Honors.

[00:01:08] Speaker 00:
May it please the Court, my name is Peter Georgetown.

[00:01:11] Speaker 00:
I represent Premier Office Complex of Parma LLC, the appellant in this matter.

[00:01:18] Speaker 01:
You say on pages 28 and 29 of the blue brief, the use of the word

[00:01:25] Speaker 01:
project in this context relating to Amendment Number 1 is obviously the drafter's shorthand attempt to clarify that to the extent the project called for Level 3 security now calls for Level 2 security.

[00:01:41] Speaker 01:
How do you know that based on the use of the word project alone?

[00:01:46] Speaker 00:
Well, I think that you can rely upon the definition of the word project.

[00:01:51] Speaker 00:
And if you look at Miriam Webster's definition, also the Oxford Dictionary definition that was pointed out by the Court, it refers to the entire undertaking.

[00:02:05] Speaker 00:
And it also refers specifically to the design and plans the project encompasses

[00:02:13] Speaker 00:
you know, the workers, the plans, the agreement, the lease.

[00:02:16] Speaker 00:
At the time that amendment number one was added, the project, as it then existed, provided that the physical security requirements applied on a per space basis.

[00:02:34] Speaker 01:
That's your authority.

[00:02:37] Speaker 01:
That's your support.

[00:02:39] Speaker 00:
Dictionary definition.

[00:02:43] Speaker 00:
And we think that when, because what the implication is with respect to Amendment No.

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1 is that in two sentences, the government undertook a wholesale rewriting of the entire agreement.

[00:03:02] Speaker 00:
When you look at, by interpreting Amendment No.

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1 as indicating that the security requirements apply on a building scale,

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It rewrites, it excises 4.2.7 from the agreement almost in its entirety and gets writ, jettisons the per space requirements.

[00:03:24] Speaker 04:
What about the argument that those seven particular interior rooms had other specific security requirements above the level two requirement?

[00:03:34] Speaker 00:
Well, I think that the government is free in the contract to delineate what specific

[00:03:40] Speaker 00:
security requirements are there for each of the rooms.

[00:03:44] Speaker 00:
Now, in the physical security requirements... And for the whole project as well, or the whole facility as well?

[00:03:50] Speaker 00:
And for the whole facility and the project, if that's what the government decided to do.

[00:03:56] Speaker 00:
But it has to be clear and unambiguous in how it goes about that.

[00:04:01] Speaker 00:
And we disagree with the trial court's conclusion where it says that, you know, look, if you look at the

[00:04:07] Speaker 00:
tables, they don't have anything to do with the interagency security standards.

[00:04:12] Speaker 00:
In fact, there's substantial overlap in the requirements that were put in those tables with respect to keys, closed security, bulletproof glass, all those things that overlap.

[00:04:28] Speaker 00:
And there was certainly nothing there to put my client on notice that these, you know, that there was somehow an issue.

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that raised the duty for my client to inquire further.

[00:04:43] Speaker 00:
Now, I would note that in Section 6 of the agreement, it constitutes 51 pages of standards delineating what the exact details are for the construction of the windows, the doorways, the blast loads.

[00:05:06] Speaker 00:
or the loads for the floors and the roof.

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And if we interpret amendment No.

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1 to apply the interagency security criteria to the entire building, then we're rendering that Section 6 almost meaningless and undertaking a serious rewriting of the agreement.

[00:05:30] Speaker 00:
Amendment No.

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1 is a two-sentence amendment.

[00:05:34] Speaker 00:
And if you look at the actions of the Veterans Administration in handling this project, it is entirely consistent with our position that there is a latent ambiguity in the project, because it took over 18 months before anybody at the Veterans Administration raised the issue of the interagency security standards applying on a building-wide basis.

[00:05:59] Speaker 00:
And when they did that,

[00:06:01] Speaker 04:
Court of Claims found Amendment 1 unambiguous, right?

[00:06:07] Speaker 04:
That's correct.

[00:06:08] Speaker 04:
And you are arguing instead that it's not a Peyton ambiguity.

[00:06:11] Speaker 04:
You're arguing for an ambiguity that's not just Peyton.

[00:06:14] Speaker 04:
It has to be latent, right?

[00:06:15] Speaker 04:
That's correct.

[00:06:16] Speaker 04:
And if I understand correctly, if it were a Peyton ambiguity, then you would have had a new duty to require?

[00:06:22] Speaker 00:
That's correct, yes.

[00:06:23] Speaker 00:
And I think that at a bare minimum, as we noted in our briefs,

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that the trial court provides a framework for the resolution of this matter.

[00:06:37] Speaker 00:
We agree with what the trial court concluded, that Section 4.2.7 is latently ambiguous, at a bare minimum.

[00:06:47] Speaker 00:
Throughout this section, there's not less than five references to a per-space requirement in that section.

[00:06:56] Speaker 00:
You start out with the first sentence that indicates that the

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security requirements apply to on a per space basis that says that the lesser shall provide the following security measures for the features for the spaces or area as listed below.

[00:07:11] Speaker 00:
The section then notes in the middle says the government will designate a security level from level one to level four for each space requirement.

[00:07:21] Speaker 00:
It then later provides that the contracting officer will provide the security level designation again as part of the

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space requirement.

[00:07:29] Speaker 00:
And then consistent with that, the section provides a table that delineates seven particular spaces and the security requirements for... It also has language, doesn't it, about, you know, a single-use building over 70,000 square feet will be a Level 3 security requirement.

[00:07:45] Speaker 04:
It talks about space of the entire facility, doesn't it?

[00:07:51] Speaker 00:
It does in general terms, but I don't think that that can override the fact that the section

[00:07:57] Speaker 00:
in multiple spaces refers to a per-space requirement.

[00:08:02] Speaker 00:
I count five references.

[00:08:04] Speaker 01:
The solicitation also advises bidders to consult an exterior government website, doesn't it?

[00:08:12] Speaker 00:
It does, and we submit that that website certainly wasn't sufficient to put us on notice.

[00:08:19] Speaker 00:
There's no record evidence that those physical security standards, the interagency security standards,

[00:08:26] Speaker 00:
were, in fact, even available on that website.

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And it turned out, in fact, that they were not available for the public.

[00:08:36] Speaker 00:
They had to be specifically requested.

[00:08:38] Speaker 00:
If you look at the appendix at the correspondence between the parties.

[00:08:43] Speaker 04:
Do I remember correctly that your client didn't look at them until after the contract had been entered into and hadn't requested them?

[00:08:50] Speaker 00:
We didn't request them until the VA brought the issue up 18 months into the project.

[00:08:56] Speaker 00:
After the VA had reviewed our design, had proceeded along without any, you know, we've been going along without any reference to the interagency security standards whatsoever.

[00:09:08] Speaker 00:
And then the VA raises the issue and then we go and attempt to access

[00:09:13] Speaker 01:
uh... these documents and find out that in fact they're not even available we don't even know at this point what these documents are exactly when your client signed the contract and was directed to review the website it could have done it at that moment right it could have uh... and you don't know whether the website was available to the general public at that time

[00:09:39] Speaker 00:
evidence in the record at all as to whether or not it was available.

[00:09:46] Speaker 00:
What we found out when we did attempt to obtain it was that it was not, in fact, accessible to the public.

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And I note that in the appendix, when we requested copies of the documents, we went to two places.

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We went to the Interagency Security Commission, and then we eventually, and they said, you know, no, you're going to have to go to

[00:10:09] Speaker 00:
the resident engineer and have him request it, when we finally got those URLs, those URLs, the web links, were entirely different from the ones that were referenced in the contract.

[00:10:25] Speaker 00:
So I think that's a strong indication as to the uncertainty here as to what exactly applied to this project.

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And that was demonstrated by the actions of the resident engineer.

[00:10:40] Speaker 00:
Here's an individual who has been with the project for years.

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He works for the VA.

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And even he doesn't know that the interagency security standards apply.

[00:10:53] Speaker 00:
He didn't bring it up until March 2010.

[00:10:56] Speaker 00:
Then he brings it up, but then reverses himself and says, no, don't worry about that.

[00:11:02] Speaker 00:
Let's take a look at some separate VA

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standards.

[00:11:07] Speaker 00:
And then finally, in July 2010, he indicates, no, you need to follow the interagency security standards.

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And I'll note that that came over two years after the, that came over two years after Amendment No.

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1 had been entered.

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So we think here that, that at a bare minimum, the Amendment No.

[00:11:32] Speaker 00:
1 doesn't

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resolve the ultimate latent ambiguity in this agreement.

[00:11:38] Speaker 00:
And that is whether or not these security standards apply to the entire building or to specific spaces.

[00:11:46] Speaker 03:
Was there any change in the security actually provided after amendment number one was made?

[00:11:54] Speaker 00:
Well, after amendment number one was made and after the government finally raised this issue,

[00:12:00] Speaker 00:
and insisted that we comply with the interagency security standards.

[00:12:05] Speaker 00:
The building, the entire building was constructed using those security requirements, and that's why we're here today, because it, in essence, foisted about a million dollars of extra cost on to my clients.

[00:12:20] Speaker 03:
All incurred before Amendment Number 1.

[00:12:23] Speaker 00:
No, this was incurred after Amendment Number 1.

[00:12:25] Speaker 00:
Amendment Number 1 was entered into, I think was added to the agreement in June of 2008.

[00:12:31] Speaker 04:
And the... Do I remember correctly that it was added to the agreement and your client signed off on it?

[00:12:40] Speaker 04:
Do I remember that?

[00:12:41] Speaker 04:
It was... Yes, it was added to the agreement and... Was it before the... It was added to the solicitation or added to the agreement?

[00:12:50] Speaker 00:
It was added, I believe, to the agreement as a whole.

[00:12:54] Speaker 00:
So the agreement constitutes the solicitation, then our design plans, and then I believe there were some clarifications that were added that included this amendment.

[00:13:07] Speaker 00:
And as we mentioned in the brief, there's nothing in this amendment calling out saying that we're going to be changing the security standards from a per-space basis

[00:13:19] Speaker 00:
to a per building basis.

[00:13:21] Speaker 00:
In fact, the first sentence of that amendment, what it says is that the- It's your view that the agreement was not ambiguous at all.

[00:13:31] Speaker 04:
I mean, unambiguously was providing for just space requirements for securities.

[00:13:37] Speaker 04:
I mean, it feels like I have to agree with you on that in order to follow your argument that you're making.

[00:13:43] Speaker 04:
Because if I think like the court below did,

[00:13:48] Speaker 04:
that it was a latent ambiguity, meaning that, you know, it could have been read one way or the other, then I might think that Article 1 clarifies that, or Amendment 1 clarifies that.

[00:14:01] Speaker 00:
Well, I think you're correct in that, you know, our initial position was that this was unambiguous.

[00:14:09] Speaker 00:
I think that, you know, what we're reacting to

[00:14:12] Speaker 00:
is the fact that in application and how the VA ultimately viewed it themselves, it turned out that there was an ambiguity because the VA was looking at the, clearly looking at that section very differently, ultimately, in concluding that security requirements apply on a per-building basis.

[00:14:45] Speaker 03:
Thank you, Your Honor.

[00:14:48] Speaker 03:
Before you get started, this is what concerns me.

[00:14:51] Speaker 03:
Apparently, there was no objection to the rate of security that was being provided throughout.

[00:14:58] Speaker 03:
The only objection is now to pay for it.

[00:15:02] Speaker 02:
I'm sorry.

[00:15:03] Speaker 02:
I didn't understand the question.

[00:15:04] Speaker 02:
Maybe I didn't hear you.

[00:15:05] Speaker 02:
Could you please repeat that, Your Honor?

[00:15:05] Speaker 03:
I really tried to understand just what the issue is.

[00:15:09] Speaker 03:
The security was provided at a rate that you now say was unnecessary.

[00:15:16] Speaker 03:
and was not provided for in the contract or apparently even in amendment number one, but it wasn't objected to throughout the period of construction.

[00:15:29] Speaker 03:
The only objection is now raised when you get a bill for it.

[00:15:33] Speaker 02:
No, Your Honor, that's not true.

[00:15:34] Speaker 02:
Actually, to the extent that my colleague was referring to 18 months without mention of this problem, actually the VA brought the fact that the contractor had not complied with the ISC standards

[00:15:45] Speaker 02:
to Premier's attention in connection with the first design development submittal.

[00:15:50] Speaker 02:
So this was brought to the contractor's attention immediately, divorced from any bill.

[00:15:55] Speaker 03:
With instructions to terminate the extra security?

[00:16:00] Speaker 01:
No, Your Honor.

[00:16:01] Speaker 02:
Excuse me, Your Honor?

[00:16:02] Speaker 01:
You required them to add more security.

[00:16:04] Speaker 02:
Yes, Your Honor, we were requiring them to add additional security.

[00:16:07] Speaker 01:
And they're complaining about it?

[00:16:09] Speaker 02:
Yes, Your Honor.

[00:16:10] Speaker 01:
Having to pay for it.

[00:16:11] Speaker 02:
That's correct.

[00:16:12] Speaker 02:
The contractor in this case effectively has taken the position that no, the interagency security standard, committee standards did not apply, constituted extra contract work that they should not have provided for in their original bid.

[00:16:26] Speaker 02:
And so they are seeking the difference in cost to them at having to provide what they view to be extra security.

[00:16:32] Speaker 02:
But according to the plain terms of the contract, it's absolutely core contract work.

[00:16:37] Speaker 02:
I'd like to clarify some of the comments that were made.

[00:16:39] Speaker 01:
I have a question for you.

[00:16:41] Speaker 01:
You're saying on page 7, footnote 3 of the red brief, that the interagency security committee standards, the ISC standards, are not classified.

[00:16:52] Speaker 01:
Are they FOUO for official use only?

[00:16:55] Speaker 02:
Yes, they are for official use only.

[00:16:57] Speaker 02:
They're not classified.

[00:16:58] Speaker 01:
Are they accessible under FOUO?

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

[00:17:01] Speaker 02:
But as indicated in the record, they did require some, it looks like at the time that Premier made the inquiry, and Premier didn't explore what was or wasn't available on the website at the time it did exist, but at the time that it made its initial inquiry, certainly it required the intervention of the resident engineer as a government official to get the standards for them.

[00:17:23] Speaker 04:
When you refer to the website in your answer you just gave, are you referring to the website that's referred to in section

[00:17:29] Speaker 04:
Subsection 4.2.7.1.

[00:17:32] Speaker 02:
Yes, Your Honor.

[00:17:32] Speaker 02:
The contract specifically provides that a copy of the government's security standards is available at www.oca.gov.

[00:17:40] Speaker 02:
And that's the website that we know this contractor did not access.

[00:17:44] Speaker 02:
So that there's no confusion in the timeline, I'd like to address this.

[00:17:48] Speaker 02:
Amendment 1 was not added to the agreement.

[00:17:51] Speaker 02:
Amendment 1 was an amendment to the solicitation.

[00:17:55] Speaker 02:
It was issued on June 10, 2008.

[00:17:57] Speaker 02:
Award of this contract, the award dates on appendix page 46, the award date was November 12, 2008.

[00:18:04] Speaker 02:
So Premier had Amendment 1 to the solicitation well in hand before it submitted its bid.

[00:18:09] Speaker 02:
And according to the lease itself, the solicitation in all amendments was made part of the lease, attached and made a part hereof is the words used in the lease.

[00:18:20] Speaker 02:
So Amendment Number 1 was fully operative to address the clarification that was needed

[00:18:26] Speaker 02:
to the underlying section 4.2.7.

[00:18:28] Speaker 02:
The contract as a whole takes the core, the underlying language of 4.2.7, which the court recognized, appendix 93, refers to both facilities and agency space requirements, also refers to a single-use building receiving a single-level physical security requirement.

[00:18:50] Speaker 02:
Amendment number one simply circles back and clarifies that the project,

[00:18:56] Speaker 02:
um, requires level two security.

[00:18:58] Speaker 02:
Um, and I think that where we, to the extent that we start talking about potential ambiguities here, I mean, the contractor's interpretation, it bears noting in this case, even if the court were to construe any of this is ambiguous, which we don't think it is in light of the contract as a whole.

[00:19:13] Speaker 02:
Uh, the contractor is still trying to push an interpretation that says that the project doesn't get any

[00:19:20] Speaker 02:
ISC standards, physical security, in the face of clear contract language that says just the opposite.

[00:19:26] Speaker 04:
And so, even with the... Are you also relying on the language following in Amendment 1 that refers to based on a size of 2,500 to 80,000 rentable square feet?

[00:19:38] Speaker 02:
That's right, Your Honor.

[00:19:39] Speaker 02:
Referring to sort of a large size, not individual tiny room requirements.

[00:19:44] Speaker 02:
So, I mean, I think the bottom line is that one can't construe

[00:19:47] Speaker 02:
the project as really meaning a subset or a small set of subject sets of the project.

[00:19:52] Speaker 02:
You've got to give that word its ordinary meaning and also construe it in light of the contract as a whole.

[00:19:58] Speaker 01:
Is there anything in the record which indicates, either yay or nay, that your resonating engineer had ready access to the security website, security standards website?

[00:20:09] Speaker 02:
There's nothing in the record one way or the other.

[00:20:11] Speaker 02:
It looks like that once the... And that wasn't something... Your opposing counsel said

[00:20:16] Speaker 01:
Oh, when we asked him, he then couldn't get access.

[00:20:21] Speaker 02:
No, he wrote to the ISC standards authority and obtained a copy for them.

[00:20:26] Speaker 02:
I mean, that's good government cooperation.

[00:20:29] Speaker 02:
But in terms of the website link itself, I want to clarify something.

[00:20:35] Speaker 02:
I think that my colleague mentioned that there were URLs on the standards that were different.

[00:20:41] Speaker 02:
I don't see those in the record, so I'm not sure that was really part of what the trial court would have been looking at.

[00:20:47] Speaker 01:
Certainly the... But it's beside the point.

[00:20:49] Speaker 02:
It should be, Your Honor.

[00:20:50] Speaker 01:
I mean, this court's authority is clear that a contract, I mean, insofar as... Well, it's beside the point, because a printed document which references a URL doesn't mean that that is the sole URL or that the same document is obtainable in another URL.

[00:21:05] Speaker 01:
It's just not proof.

[00:21:07] Speaker 02:
That's correct, Your Honor.

[00:21:08] Speaker 02:
And at base, I think we're left with a situation where

[00:21:10] Speaker 02:
The contractor had a duty to, when cautioned that the government security standards were available on an external website, should have looked at that website.

[00:21:19] Speaker 02:
And also, when the contractor is presented with amendment number one that advises that ISC standards apply to the project, it would certainly, it's certainly incumbent on the contractor to seek those out and make sure they're appropriately applied.

[00:21:33] Speaker 01:
Yes, Your Honor.

[00:21:36] Speaker 02:
So for all the reasons we've discussed in oral argument today and set forth in our briefs, we respectfully request that the court affirm the trial court's grant of summary judgment in the government's order.

[00:21:48] Speaker 03:
Thank you.

[00:21:53] Speaker 03:
Mr. George, you too.

[00:21:55] Speaker 00:
I think that the point we'd like to end with is that even if my clients did have access to the interagency security standards and had the benefit of that, even if you interpret amendment number one as applying those standards, at least in part to the agreement, again, it doesn't resolve the ambiguity that we ultimately have here as to whether or not these security standards apply on a per-space basis.

[00:22:23] Speaker 00:
And I think that you have to look back to 4.2.7 because there was reference to the level 3 being selected as the security level at the end of 4.2.7.

[00:22:37] Speaker 00:
But that comes after several sentences as to where it says that the government will designate the level for each space requirement.

[00:22:45] Speaker 00:
And so that you have to read those two together.

[00:22:48] Speaker 00:
that ultimately what's happening there is that the government's making its selection for the space requirements.

[00:22:55] Speaker 00:
And as we mentioned... Which is level three.

[00:22:59] Speaker 00:
Which was level three to apply to those particular spaces delineated in the agreement.

[00:23:05] Speaker 00:
And the project.

[00:23:07] Speaker 00:
And to the project, which we maintain is references the lease agreement and the plans.

[00:23:17] Speaker 01:
I understand your argument.

[00:23:20] Speaker 03:
Okay, thank you.

[00:23:22] Speaker 03:
Thank you both.

[00:23:23] Speaker 03:
The case is taken into submission.