[00:00:23] Speaker 03:
The next case is Symbionics versus the Secretary of the Navy, 2017, 2536.

[00:00:31] Speaker 03:
Mr. Anderson, are you ready?

[00:00:40] Speaker 00:
Good morning, Your Honor.

[00:00:42] Speaker 00:
I'm Lars Anderson, representing Symbionics, along with my colleague, Charlotte Rosen.

[00:00:49] Speaker 00:
We would, in order to understand my

[00:00:54] Speaker 00:
presentation, I would like to provide a copy of a couple of provisions in the appendix that are... Well, if they're in the record, we probably have them in.

[00:01:07] Speaker 03:
Why don't you just refer to them?

[00:01:09] Speaker 00:
Okay.

[00:01:12] Speaker 02:
What pages?

[00:01:14] Speaker 00:
Pages 80... Section F1, which is page 81, and then section

[00:01:23] Speaker 00:
Appendix A, which starts on page 271 and goes to 305.

[00:01:34] Speaker 00:
The issue before this court is whether the board's grant of summary judgment was appropriate as a matter of law.

[00:01:41] Speaker 00:
And that issue is reviewed de novo by the court.

[00:01:45] Speaker 00:
And the case also involves an interpretation of the contract between the Navy and Symbionics, which is also reviewed

[00:01:52] Speaker 00:
reviewable de novo by the court.

[00:01:57] Speaker 00:
I'd like to address, while our briefs address several issues of mistake of law, major errors of law, I would like to address two issues.

[00:02:07] Speaker 00:
The board's interpretation of the contract, which failed to give meaning to the contract as a whole, and the board improperly utilized extrinsic evidence and disputed issues of fact

[00:02:21] Speaker 00:
in support of a summary judgment motion.

[00:02:24] Speaker 02:
You all seem to be sort of arguing past each other a little bit, or at least not arguing to the point that I think is most relevant here.

[00:02:34] Speaker 02:
I mean, put aside whether a contract could be viewed ambiguous on its face, to be ambiguous on its face, where the parties enter into a contract with both understanding the other's

[00:02:49] Speaker 02:
interpretation of a term or a provision, and they both know what that interpretation is, both sides, and they enter in agreeing to that interpretation, isn't that the end of the inquiry?

[00:03:03] Speaker 00:
That is a major issue, Your Honor, in that the parties did not, the Navy, or the surveillance did not understand the Navy interpreted the contract to preclude any access to the

[00:03:19] Speaker 00:
trainer during a period of time.

[00:03:22] Speaker 02:
That is a disputed issue of fact that... But how do you get around the multiple, multiple admissions in which that's what Symbionic said they understood the Navy's interpretation to be?

[00:03:35] Speaker 00:
Those multiple admissions, Your Honor, one was a Navy version of a conference call which

[00:03:48] Speaker 00:
which was an internal memo, which was not reflected in Symbionics version of that conference call, and moreover was disputed during all the deposition testimony by the Symbionics participants in that conference call.

[00:04:06] Speaker 00:
The other issue, a Navy person who attended a site visit three weeks before the solicitation was issued,

[00:04:16] Speaker 00:
said that he emphatically, he gave a declaration saying that he emphatically said there'd be no access during this period of time.

[00:04:26] Speaker 00:
The symbionics attendee of that site visit put in his deposition testimony and a declaration stated that the Navy person did not make that statement, that the Navy person only said that

[00:04:47] Speaker 00:
access would be restricted to four compartments, compartments one, two, three, and five.

[00:04:54] Speaker 01:
Do I understand correctly that that, in your view, you're saying that shows a genuine issue of material fact?

[00:05:01] Speaker 01:
Absolutely.

[00:05:01] Speaker 01:
In response, you've got Mr. Gustafson, who's an employee of Symbionics.

[00:05:06] Speaker 01:
He's saying something completely different.

[00:05:09] Speaker 00:
Yes, that we dispute that.

[00:05:11] Speaker 02:
And we had listed... You dispute that Mr. Gustafson said these things?

[00:05:16] Speaker 00:
Yes.

[00:05:17] Speaker 00:
We just... I'm sorry.

[00:05:22] Speaker 00:
His email, which was directly after, right after this site visit, was only directed to Symbionics work during the PLC work, the controller work.

[00:05:36] Speaker 00:
And that's what he testified in his deposition and his declaration.

[00:05:42] Speaker 00:
The board said they did not believe his

[00:05:46] Speaker 00:
declaration and his deposition testimony, because in the board's opinion, symbionics did not need to be at the trader doing any removal equipment.

[00:06:01] Speaker 00:
And that is a false assumption by the board.

[00:06:07] Speaker 00:
The statement of work required the symbionics be at the site doing

[00:06:15] Speaker 00:
equipment replacement, surveys, and a great deal of work on site.

[00:06:23] Speaker 00:
And that was in the statement of work.

[00:06:24] Speaker 00:
And also, Symbionics' proposal indicated that it was planning to be on site doing removal and other work.

[00:06:34] Speaker 00:
So the judge just pulled this out of the air that Symbionics had no need to do any removal work and no need to be on site, and therefore,

[00:06:45] Speaker 00:
He discounted the credibility of the Symbionics witness and the author of the email who explained that email as not applying to the ESP doing the non-PLC work.

[00:07:00] Speaker 00:
Understand that this contract required primarily for eight Navy trainers, it was replacement of the PLC, the control systems.

[00:07:11] Speaker 00:
And that work was going to be done by Symbionics.

[00:07:15] Speaker 00:
The one trainer at Great Lakes had been out of service for a number of years, required additional facilities-type work, replacement of the piping and burners, and other work, mechanical work, in addition to the control system.

[00:07:32] Speaker 00:
And that non-PLC work was going to be done by Symbionic's subcontractor.

[00:07:40] Speaker 00:
In fact, one absolutely critical

[00:07:45] Speaker 00:
and non-disputed fact that was totally ignored by the board was that, one, there was nothing in writing anywhere, both before the solicitation, before the proposals, or any time during the contract performance, that said Symbionics cannot have

[00:08:10] Speaker 00:
access during this interim period.

[00:08:12] Speaker 02:
What about the emails between Symbionics and the sub, where they said, you know, how could you not know that we have no access?

[00:08:21] Speaker 00:
That was when issues came up after the performance, and then Symbionics looked hard at the contract and said, there's nothing in the contract that says we have no access.

[00:08:34] Speaker 01:
Are you referring to the Wednesday, October 14th email?

[00:08:38] Speaker 01:
from Don Holman that said it was very clear that we ESP would not, would be given access at certain dates, but at that point it would be turned over?

[00:08:47] Speaker 01:
Yes.

[00:08:50] Speaker 01:
At HJA 4015, is that the one you're... That was one of them.

[00:08:55] Speaker 00:
And then when that was reviewed by Symbionics, they said, well, wait a minute, the only restraint on access is in those four compartments, one, two, three, and five.

[00:09:08] Speaker 01:
What I'd like to refer... But this is a symbionics email.

[00:09:12] Speaker 01:
This is a... This is a symbionics email.

[00:09:14] Speaker 00:
The symbionics program manager.

[00:09:15] Speaker 00:
Internal.

[00:09:15] Speaker 01:
He said it is clear from the RFP that you would not have access.

[00:09:21] Speaker 00:
And his testimony in the depositions said that that was his initial reaction when he was told by ESP that people at Great Lakes were saying there'd be no access.

[00:09:34] Speaker 00:
He looked at that

[00:09:35] Speaker 00:
But then when they reviewed it carefully, and this came out in his deposition testimony, when they reviewed the contract carefully.

[00:09:42] Speaker 01:
When was it that they reviewed the contract carefully?

[00:09:45] Speaker 00:
Right after that came up, in October.

[00:09:47] Speaker 00:
Before that came up, I think, about the 5th of October.

[00:09:51] Speaker 00:
And then there was a presentation on the 20th and 21st at the performance post-award conference.

[00:10:03] Speaker 00:
October 20th and 21st.

[00:10:06] Speaker 00:
And that's between October 5th and October 20th.

[00:10:11] Speaker 00:
Contract was awarded September 25th.

[00:10:13] Speaker 00:
But in that post period.

[00:10:14] Speaker 01:
So after the contract.

[00:10:15] Speaker 00:
After the contract, Symbionics carefully reviewed the contract with their subcontractor.

[00:10:22] Speaker 00:
And at the post-award conference on 20 and 21st, they took the position that the contract absolutely does not preclude our work.

[00:10:32] Speaker 02:
But on October 15th.

[00:10:34] Speaker 02:
Mr. Gustafson responded to ESP's question and said, yeah, I recall them saying that when we went to the industry day, which occurred before the solicitation.

[00:10:46] Speaker 02:
I mean, before you put in the bid.

[00:10:48] Speaker 00:
And Mr. Gustafson said that when they, in his testimonies deposition and his declaration, said that when he reviewed everything, he was convinced that the only statement

[00:11:02] Speaker 00:
recruiting access was to those four compartments.

[00:11:06] Speaker 00:
But I'd like to use just a little bit of time on this critical, absolutely critical fact that the board overlooked, which was prior to the proposals in July of 2015, an offeror asked a question about access to the, to a truck access to the facility

[00:11:31] Speaker 00:
and could they use a particular loading dock?

[00:11:35] Speaker 01:
This was a question that was asked by a party that was bidding but did not receive the contract.

[00:11:40] Speaker 00:
Yes, another offer war.

[00:11:42] Speaker 00:
But the official answer to that by the Navy stated that there was only restricted access, truck access, to one door.

[00:12:01] Speaker 00:
in the facility after January 2016.

[00:12:06] Speaker 00:
That was that answer.

[00:12:29] Speaker 00:
which was given to all offerors is at 3633.

[00:12:35] Speaker 00:
And we discussed this extensively in our reply brief at 2223.

[00:12:40] Speaker 00:
If the Navy's telling all the offerors that there's only one restriction, and that's to one loading dock, if the Navy had actually had this interpretation that there was a total restriction

[00:12:59] Speaker 00:
for this four-and-a-half-month period, surely that would have been contained in that answer, rather than simply saying there's a restriction to one loading dock.

[00:13:12] Speaker 03:
Counsel, you're into your bottle time.

[00:13:14] Speaker 03:
You can continue or save it as you wish.

[00:13:20] Speaker 03:
Yes.

[00:13:20] Speaker 03:
Thank you.

[00:13:20] Speaker 03:
Ms.

[00:13:29] Speaker ?:
Toplund.

[00:13:30] Speaker 04:
May it please the court?

[00:13:32] Speaker 04:
We respectfully request that you affirm the decision in the Board of Contract Appeals, finding that the government's decision to terminate Symbionics' contract for default was justified, because Symbionics anticipatorily repudiated the contract.

[00:13:46] Speaker 04:
The Navy had reasonable grounds to believe that Symbionics could not complete this contract on time, and they properly issued a cure notice.

[00:13:53] Speaker 04:
Symbionics made repeated statements that they could not complete this contract without access to the trainers during the interim period.

[00:14:00] Speaker 02:
Well, I mean, you still have to address the threshold question of whether the access issue was a material alteration to the terms of the contract.

[00:14:12] Speaker 04:
That would go to the excuse, Your Honors.

[00:14:14] Speaker 04:
That would be Symbionic's excuse for not being able to comply with the schedule and not be able to complete the contract on time is that we had grounds to believe that they could not complete in context with our interpretation.

[00:14:27] Speaker 04:
asked them for adequate assurances.

[00:14:28] Speaker 04:
They did not give them.

[00:14:29] Speaker 04:
Instead, they raised an excuse, which is said, our interpretation of the contract is proper.

[00:14:33] Speaker 04:
Right.

[00:14:33] Speaker 02:
But then that would change whether or not any termination would be for default versus for convenience.

[00:14:40] Speaker 04:
Yes, Your Honor.

[00:14:41] Speaker 04:
But they have the burden to prove that default is excusable.

[00:14:43] Speaker 04:
And they cannot.

[00:14:45] Speaker 04:
As the court was noting through them, through this discussion with Simvionics, Simvionics clearly knew of the government's interpretation.

[00:14:52] Speaker 04:
Their counsel admitted it today.

[00:14:53] Speaker 04:
He admitted that their initial reading of that contract

[00:14:55] Speaker 04:
They knew there was no access.

[00:14:57] Speaker 01:
What about their argument that then later they looked at the contract, they analyzed it, and said, hey, this isn't clear at all.

[00:15:07] Speaker 01:
And so how does that play into their arguing that there's a genuine issue of material fact that would preclude summary judgment?

[00:15:13] Speaker 01:
What's your response to that?

[00:15:15] Speaker 04:
Well, my response to that is that would actually defeat their claim for an entirely different reason in the sense that it would show that they did not have the interpretation of the contract at the same interpretation of the contract at the time they bid.

[00:15:25] Speaker 04:
as your opposing counsel admitted, is that they interpret the contract as meaning no access at the time they bid.

[00:15:32] Speaker 04:
Companies seeking to make a claim on a contract has to show that they have the interpretation that they're seeking to enforce at the time that they bid, and opposing counsel has admitted that somebody honest did not.

[00:15:41] Speaker 01:
So that was certainly... So cases like the Blinderman construction case... Martin.

[00:15:45] Speaker 01:
Edward Martin.

[00:15:46] Speaker 01:
Which one?

[00:15:47] Speaker 01:
Edward R. Martin.

[00:15:49] Speaker 01:
that those cases are looking at the interpretation at the time of entering into the context.

[00:15:55] Speaker 01:
It doesn't matter if you've changed your interpretation later.

[00:15:59] Speaker 04:
Well, in order to enforce contra preferendum against the government, which is what Symbionics is trying to do, they have to show that they have the interpretation that they're seeking to enforce the time they made their bid.

[00:16:08] Speaker 04:
And they're saying at the time they made their bid, they assumed there was no access.

[00:16:12] Speaker 02:
They went back.

[00:16:13] Speaker 02:
But he said there's a material issue of fact on that question.

[00:16:17] Speaker 04:
Well, with all due respect, he actually said that at the time, and their own admissions established that at the time, they knew there was no access.

[00:16:24] Speaker 02:
No, he's saying that they thought there was only no access for certain purposes or just no access to certain compartments, but not a complete no access for the purposes of their subcontractor's work.

[00:16:38] Speaker 04:
Well, their own statements established that they actually knew that there was no access based on their own

[00:16:45] Speaker 02:
Well, whether it does or doesn't, that doesn't change what their argument is, which is that it was a material dispute of fact.

[00:16:55] Speaker 04:
We don't believe it's a material issue of fact, but even if it were, Your Honor, the law is clear of this own court's precedent that if an opposing contractor knew of an ambiguity and knew that the government was unaware of this potential alternative interpretation and failed to acquire and fairly put the government on notice,

[00:17:14] Speaker 04:
then they cannot seek to enforce that in alternative interpretation.

[00:17:18] Speaker 04:
So even assuming, which we would not concede is actually true, that there is no access, they certainly should have had knowledge of the government's alternative interpretation.

[00:17:26] Speaker 04:
And they cannot choose not to inquire, not to put the government on notice, knowing that the government was fully unaware of this alternative interpretation.

[00:17:34] Speaker 02:
What is your response to the government's response to the contractor question on page 3633 of the appendix?

[00:17:42] Speaker 04:
The Navy clearly answered the question that was presented.

[00:17:46] Speaker 04:
That question was purely dealing with access restrictions to the south loading dock.

[00:17:49] Speaker 04:
And they answered that question with regard to the south loading dock.

[00:17:52] Speaker 04:
As I just indicated, the Navy had no notice of any other ambiguity, no notice of any other issue to think that there was any reason to go beyond it.

[00:18:02] Speaker 04:
They answered the question and addressed the question which specifically asked for access restrictions to this one area, and they answered that question.

[00:18:10] Speaker 02:
Well, I guess it's a fair argument that the other side could say, wait, if we're talking about access restrictions, and why didn't you just say, nobody's going to have access to any of this stuff, rather than say that particular loading dock?

[00:18:25] Speaker 04:
I certainly cannot say as to, I was not the one asking that, but they did answer the question that was asked.

[00:18:30] Speaker 04:
And if Symbionics had any question with regard to access restrictions, or wanted to clarify anything after that fact, they certainly could have done it.

[00:18:36] Speaker 04:
Symbionics had the opportunity to clarify access restrictions,

[00:18:40] Speaker 04:
Just like this other offer, they actually had two opportunities because there were two sets of questions and answers.

[00:18:45] Speaker 04:
After the first site visit, there were questions and answers.

[00:18:47] Speaker 04:
After that first Gustaf email where he said, we have six weeks and we have to be out.

[00:18:52] Speaker 04:
After knowing that there were hard milestones, after knowing that there was another contractor to coordinate around, they chose not to ask that question.

[00:18:58] Speaker 04:
And then they chose not to bid.

[00:18:59] Speaker 04:
The Navy then changed the evaluation criteria, reissued the solicitation.

[00:19:05] Speaker 04:
offered a second round of site visits, which Symbionics chose not to attend.

[00:19:08] Speaker 04:
They also chose not to have their subcontractor ESP attend.

[00:19:12] Speaker 04:
The Navy also then did a second set of questions and answers.

[00:19:14] Speaker 04:
And at no point in time did Symbionics ever seek clarification of this.

[00:19:18] Speaker 04:
So if Symbionics truly believed that it needed to be clarified whether there were additional access restrictions, they certainly had the opportunity and chose not to do so.

[00:19:28] Speaker 04:
As I said, a contractor who's aware of the fact that there's a potential issue in a contract

[00:19:33] Speaker 04:
is incumbent upon them, and if they're aware that the government is unaware of this potential alternative interpretation, has to inquire.

[00:19:40] Speaker 04:
They have the duty of inquiry and the failure to do so.

[00:19:43] Speaker 02:
Is it your position that the contract is ambiguous, or is it your position that the contract's unambiguous?

[00:19:49] Speaker 04:
Our position is that the contract is ambiguous in the sense that it certainly leaves a gap, in the sense that it certainly does not, on its face, define

[00:20:00] Speaker 04:
what happens in that interim period.

[00:20:03] Speaker 04:
It certainly does not leave that gap.

[00:20:06] Speaker 04:
It talks about a installation period, a removal period, and it leaves this third period in between.

[00:20:13] Speaker 04:
It certainly does not say work is permitted.

[00:20:15] Speaker 04:
It does not say no work is permitted.

[00:20:19] Speaker 04:
It does not say you can share space.

[00:20:20] Speaker 04:
We would say that this is, in and of itself, creates the ambiguity.

[00:20:25] Speaker 04:
The issue here is that Symbionics knew about that.

[00:20:28] Speaker 02:
So is that a patent ambiguity or a latent ambiguity?

[00:20:30] Speaker 04:
Our position is that it certainly is patent because it's evident from its face that there's this gap.

[00:20:37] Speaker 04:
But even if it were not patent, the duty of inquiry can be imposed, as I noted, when the contractor knew or should have known of this potential ambiguity and chose not to exercise its duty of inquiry and chose not to put the government on notice.

[00:20:49] Speaker 04:
And that is the HPI case, Your Honor.

[00:20:52] Speaker 02:
But as it did the board and the court below rely on just patent-latent

[00:21:00] Speaker 02:
concept.

[00:21:01] Speaker 02:
I don't see them referring to that.

[00:21:03] Speaker 02:
I think they simply said that they knew what the Navy's position was, and that's the end of the inquiry.

[00:21:10] Speaker 02:
We don't want a tennery problem here, in other words.

[00:21:13] Speaker 04:
No.

[00:21:13] Speaker 04:
The board certainly made some conclusions and did, as we have conceded in our brief, certainly did weigh some facts.

[00:21:22] Speaker 04:
And we would certainly say, once you start looking at extrinsic evidence to interpret this contract, which is not what we're trying to do here,

[00:21:30] Speaker 04:
you can certainly get to the point where it's clear that external facts that were known to symbionics should have made it clear to them that their interpretation was unreasonable.

[00:21:39] Speaker 04:
But that would require weighing of extrinsic evidence.

[00:21:41] Speaker 04:
And that's not what we're asking this court to do.

[00:21:43] Speaker 02:
So what's our obligation here?

[00:21:44] Speaker 02:
If we think that the legal analysis done by the border contract appeals was not correct, that actually the legal analysis should have been different, and that they shouldn't have been weighing extrinsic evidence,

[00:21:59] Speaker 02:
Do we have to send it back?

[00:22:01] Speaker 04:
No, we do not, Your Honor.

[00:22:02] Speaker 04:
This contract interpretation is an issue to no vote.

[00:22:04] Speaker 04:
That issue is squarely before this Court, and this Court is free to interpret that contract.

[00:22:09] Speaker 04:
If this Court is to find that this contract is patent ambiguous, it is undisputed that Symbionics did not exercise the duty of inquiry.

[00:22:18] Speaker 04:
And for that reason, the motion can be affirmed.

[00:22:22] Speaker 04:
Likewise, even if the court weighed extrinsic evidence, I mean, considered extrinsic evidence, it's harmless because it's not necessary to sustain the decision.

[00:22:33] Speaker 02:
As we said, what the court looked at extrinsic evidence is they said... It is necessary to some extent if we conclude it's a latent ambiguity as opposed to a patent ambiguity.

[00:22:45] Speaker 02:
Because you said if it's latent and they've been put on notice,

[00:22:49] Speaker 02:
that the Navy has a different view, then they have to inquire.

[00:22:53] Speaker 04:
No.

[00:22:54] Speaker 04:
If they'd, if they, if, you know, if Symbionics knew that the Navy had a different view, which counsel has actually admitted that they did in their own e-mails for undisputed facts, admit that they knew that this contract originally imposed access restrictions, and according to their own executive vice president, they just assume the government changed its mind.

[00:23:15] Speaker 04:
They knew that this contract had access restrictions.

[00:23:17] Speaker 04:
And if somebody knew or should have known of this alternative interpretation, that duty of inquiry should be imposed.

[00:23:23] Speaker 01:
And the undisputed- You're talking about the HPI case, right?

[00:23:26] Speaker 01:
Yes.

[00:23:27] Speaker 01:
And the idea that the ambiguity should be treated as a patent ambiguity because Symbionics knew the government's argument.

[00:23:36] Speaker 04:
Knew or should have known.

[00:23:37] Speaker 04:
Perry Wallace- Knew the government's interpretation.

[00:23:39] Speaker 04:
Knew or should- Yes.

[00:23:41] Speaker 04:
And Perry Wallace, at actual knowledge or at HPI, took it one step further and said,

[00:23:45] Speaker 04:
should have known that the government had a different interpretation.

[00:23:47] Speaker 02:
Again, he's arguing that there were material issues of fact about that question, about whether they should have known that or whether they knew that.

[00:23:58] Speaker 04:
Well, he's arguing that there are material issues of fact based on two statements.

[00:24:04] Speaker 04:
And what he ignores is all the other statements establishing, yes, those two statements might create

[00:24:11] Speaker 04:
issues a fact, but they're not material because their other statements in the record establish that Symbionics clearly had that knowledge.

[00:24:18] Speaker 04:
Yes, as we can see in their brief, there was this issue of whether it was said specifically in industry day in the sense that Symbionics own personnel did contradict the Navy's declaration that that was said.

[00:24:29] Speaker 04:
But what is not contradicted is the fact that Symbionics own repeated internal emails explicitly admit that they were aware of this.

[00:24:37] Speaker 04:
Their executive vice president testified that on reading of that contract, an initial reading, he assumed that there was no access.

[00:24:44] Speaker 04:
Then the solicitation came out, and he just assumed the government changed their mind and there was unfettered access.

[00:24:49] Speaker 04:
He never thought to inquire.

[00:24:50] Speaker 04:
Likewise, Symbionic's own personnel reading and interpreting that contract said, there's only one interpretation of this contract.

[00:24:57] Speaker 04:
The only reasonable interpretation is no access.

[00:25:00] Speaker 04:
We don't know why ESP is assuming access because the face of the contract says,

[00:25:05] Speaker 04:
It's either ambiguous and you'd have to inquire, or there's no access.

[00:25:10] Speaker 04:
Likewise, the contract language makes it clear that Symbionic's own interpretation begs questions that should have been inquired about.

[00:25:16] Speaker 04:
There was the extent that even assuming, which Symbionic is saying is not necessarily true, even assuming that they had this interpretation that they could share space from the reading of the get-go, that in and of itself is slightly inconsistent with the contract in the sense that the contract specifically

[00:25:36] Speaker 04:
talks about other instances of coordination but doesn't mention any instances of coordination.

[00:25:40] Speaker 04:
Likewise, to the extent that they wanted to coordinate in this sense, they would have needed an associate contractor clause.

[00:25:46] Speaker 04:
Yet an associate contractor clause wasn't specifically incorporated into that contract.

[00:25:50] Speaker 04:
So seeing these other instances in the solicitation should have raised these red flags to Symbionics and said, we need to inquire.

[00:25:57] Speaker 04:
We need to figure out whether or not our interpretation is shared by the government.

[00:26:02] Speaker 04:
Likewise, had they even assumed, had they even taken the time

[00:26:06] Speaker 04:
to share their own statements and their own knowledge, which is undisputed.

[00:26:10] Speaker 04:
They certainly had knowledge that there was another contract that was getting priority.

[00:26:14] Speaker 04:
They certainly had knowledge of hard milestones.

[00:26:17] Speaker 04:
Yet that other contract, as I said, was actually publicly available at the time they submitted their bid.

[00:26:23] Speaker 02:
Isn't it true that your substitute contractor couldn't meet the requirements without having access?

[00:26:33] Speaker 04:
No.

[00:26:34] Speaker 04:
The substitute contractor could meet the requirements

[00:26:36] Speaker 04:
without having access.

[00:26:37] Speaker 04:
Likewise, the substitute subcontractor that Symbionics found after the termination for default and re-award had happened could also perform with no access.

[00:26:45] Speaker 04:
And that subcontractor, Symbionics, was actually aware of them at the time that they responded to the Navy's cure notice.

[00:26:50] Speaker 04:
They just told us not to divulge to the government.

[00:26:52] Speaker 04:
had they divulged that alternative subcontractor, had they divulged the fact that they were actually in negotiations with an alternative subcontractor who could perform the contract offsite and on time.

[00:27:03] Speaker 04:
We certainly wouldn't necessarily be sitting here.

[00:27:04] Speaker 04:
We'd be in a very different position.

[00:27:06] Speaker 04:
But the substitute contractor confirmed to the contracting officer that they, when they submitted their bid, shared the government's interpretation of no access.

[00:27:14] Speaker 04:
Likewise, the substitute subcontractor, the symbionics, was noted after the contract was repercured that they were ready to work with.

[00:27:21] Speaker 04:
also indicated this contract could be performed offsite, with no access, on time, and actually for less money.

[00:27:29] Speaker 04:
But Symbionics chose not to divulge that to the government until after the contract was really procured.

[00:27:33] Speaker 04:
And had they done that sooner, we certainly would have been potentially sitting in a very different position here.

[00:27:38] Speaker 04:
But we're not, Your Honor.

[00:27:40] Speaker 04:
As I noted, we specifically had grounds to question Symbionics' performance based on the repeated statements that they couldn't perform on time.

[00:27:50] Speaker 04:
Nor did in their response their adequate request for adequate assurances indicate they could.

[00:27:54] Speaker 04:
And they're all of their attempts to show that the contract interpretation issue somehow justified their excuse are fruitless.

[00:28:03] Speaker 04:
The genuine, there are no genuine issues in material factor.

[00:28:06] Speaker 04:
They clearly breached their duty of inquiry.

[00:28:09] Speaker 04:
The contractor is either patently ambiguous, and this Court doesn't think that ambiguity rises to the level of patency.

[00:28:14] Speaker 04:
then the duty of inquiry was still imposed based on either actual knowledge of the government's alternative interpretation and failure to acquire, or the fact that they should have had knowledge of the government's interpretation and failed to inquire.

[00:28:25] Speaker 04:
With that, I see my time is about to expire.

[00:28:29] Speaker 04:
And unless this court has any additional questions, we respectfully request that you affirm the decision below terminating some vionics contract for default for anticipatory repudiation.

[00:28:39] Speaker 03:
Thank you, Councilman.

[00:28:41] Speaker 03:
Thank you.

[00:28:42] Speaker 03:
Mr. Anderson has about two minutes for rebuttal if he needs it.

[00:28:48] Speaker 03:
Yes, Your Honor.

[00:28:49] Speaker 00:
First, I'd like to correct the statement by the government.

[00:28:51] Speaker 00:
This contract did include the associated contractor clause.

[00:28:56] Speaker 00:
This was a task order under a master contract.

[00:28:58] Speaker 00:
The master contract had that clause, so it's automatically in the task order.

[00:29:03] Speaker 00:
This contract, the solicitation in this contract, also said that there would be

[00:29:10] Speaker 00:
a partnership meeting with the NAFAC contractor.

[00:29:14] Speaker 00:
And when this issue first came up at the performance at the post-award conference that the Navy's saying, well, you don't have access to in this period, the Navy said, well, we'll work this out at the partnership meeting with the NAFAC contractor.

[00:29:34] Speaker 00:
In the subsequent phone calls on November 3

[00:29:39] Speaker 00:
The Navy also repeated, in fact, they sent an invitation to Symbionics that will address this mutual access with the partnership meeting.

[00:29:51] Speaker 00:
That was also addressed at the November 3rd conference call, that this issue of mutual access can be addressed at this partnership meeting, which was then canceled, or at least subsequently, Symbionics was disinvited.

[00:30:10] Speaker 00:
But in the depositions of the contracting officer and all the Navy personnel, they all acknowledge that the contract does not contain any provision that specifically restricts the contractor's access to the trainer at any time.

[00:30:29] Speaker 02:
In those citations... But doesn't that make it ambiguous as opposed to clear... We don't think it's ambiguous at all, Your Honor, because when you read F-1,

[00:30:39] Speaker 00:
With Appendix A, F1 says you must do certain work, you must do work in two periods.

[00:30:46] Speaker 00:
And Appendix A specifically defines the work to be done in those two periods and leaves the vast majority of work to be done at any time during the contract.

[00:30:59] Speaker 00:
So we don't think F1 was ambiguous at all.

[00:31:04] Speaker 00:
And the only, I'd like to,

[00:31:06] Speaker 00:
give you the site.

[00:31:08] Speaker 00:
In Appellate's brief, main brief, at pages 12 and 34, we cite all the deposition testimony where the Navy acknowledged that there's nothing that says you can't have access.

[00:31:19] Speaker 00:
Also, Symbionics attendee at the site visit testified and submitted declarations, and that's in Appendix 1733 to 1736, 1627 to 1632.

[00:31:37] Speaker 00:
and then 2165, 2168, that his handwritten notes and the information that he got at the site visit was only there'd be restrictions to four specific compartments.

[00:31:56] Speaker 00:
The handout at the site visit, which starts in appendix 858,

[00:32:08] Speaker 00:
And in that appendix at 872, 873, and 874, only those, the work, again, that was in appendix A, primarily for those four compartments, one, two, three, and five, those are the only things that are listed.

[00:32:28] Speaker 00:
And there is nothing in this handout that indicates there's a blanket restriction.

[00:32:35] Speaker 03:
Moreover... Thank you, Council.

[00:32:37] Speaker 03:
As you can see, your time has come to expire.

[00:32:40] Speaker 03:
We'll take the case under advisement.

[00:32:43] Speaker 03:
The argument is over.

[00:32:44] Speaker 03:
Thank you, Your Honor.