[00:00:09] Speaker 03:
Our next case for argument is 21-1381 Aspen Consulting versus the Secretary of the Army.

[00:00:45] Speaker 03:
How do I pronounce your name, Council?

[00:00:48] Speaker 03:
How do I pronounce your name?

[00:00:49] Speaker 03:
Kronig.

[00:00:50] Speaker 03:
Kronig?

[00:00:51] Speaker 03:
Kronig U. Kronig U. Mr. Kronig U, please proceed.

[00:01:09] Speaker 04:
Good morning, Your Honor.

[00:01:10] Speaker 04:
May it please the Court.

[00:01:12] Speaker 04:
The entirety of this dispute relates to the interpretation of two sentences in FAR 52-232-33.

[00:01:18] Speaker 04:
That clause is titled Contractors' EFT Information.

[00:01:24] Speaker 04:
Specifically, those two sentences are, the government shall make payment to the contractor using the EFT information contained in the Central Contractor Registration Database.

[00:01:36] Speaker 04:
In the event the EFT information changes, the contractor shall be responsible for providing the updated information in the CCR database.

[00:01:46] Speaker 04:
In appellant's view, this language is unambiguous and requires the government to make payment to the contractor's EFT information contained in the CCR database and nowhere else.

[00:01:58] Speaker 04:
The board disagreed with the straightforward interpretation and instead found that the contractor could change its EFT information before updating that EFT information in the CCR database.

[00:02:12] Speaker 03:
If we agree with you, what happens in this case?

[00:02:15] Speaker 04:
Your Honor, I believe we were on entitlement at the board stage, so I believe we would proceed to the quantum stage.

[00:02:23] Speaker 04:
As to the damages, the damages here are very straightforward.

[00:02:26] Speaker 04:
It's a corresponding amount.

[00:02:27] Speaker 04:
As to the Aspen's two invoices, so we would establish that Aspen's two invoices were not paid as we have, and the amount of those invoices.

[00:02:36] Speaker 00:
Well, how could it be that there wouldn't be a deduction for amounts that were paid out of this account to your client's benefit?

[00:02:45] Speaker 00:
I couldn't hear the first part, Your Honor, I'm sorry.

[00:02:54] Speaker 00:
of the fact that payments may have been made from this account to your client's benefit.

[00:03:00] Speaker 04:
Well, Your Honor, you're hitting on a factual dispute.

[00:03:03] Speaker 04:
And to be very clear about that, we disagree that those payments were ever, that any payments in that account were used for our client's benefit.

[00:03:10] Speaker 00:
I understand that.

[00:03:11] Speaker 00:
But assuming, hypothetically, that they were for your client's benefit, how can you contend that the government wouldn't get a credit against the quantum for those amounts?

[00:03:23] Speaker 04:
I suppose at that stage, at the quantum stage, Your Honor, the government could raise that.

[00:03:28] Speaker 00:
They could again try to raise the... And you agree that they should get a credit if the amounts were paid out for your benefit?

[00:03:34] Speaker 04:
Well, Your Honor, I think it's more nuanced than that.

[00:03:37] Speaker 04:
The amounts that were... So we have to start off from a... Okay, let me give you a hypothetical.

[00:03:42] Speaker 00:
Of course.

[00:03:42] Speaker 00:
Suppose they paid it into the wrong account, but that the $100 million was paid out of that account directly to your client.

[00:03:52] Speaker 00:
and that was the sole amount that was involved.

[00:03:55] Speaker 00:
It was $100 million.

[00:03:57] Speaker 00:
How could you recover anything under those circumstances?

[00:04:00] Speaker 04:
Okay, so I understand your Honor's hypothetical.

[00:04:02] Speaker 04:
The amount was paid to an account that the client owned outside the CCR database?

[00:04:06] Speaker 00:
It was paid to the wrong account.

[00:04:08] Speaker 00:
The money was paid to the wrong account.

[00:04:10] Speaker 00:
Same facts here.

[00:04:12] Speaker 00:
But the amount was $100 million, and the $100 million was paid out of that incorrect account to your client.

[00:04:20] Speaker 04:
That's a very different situation.

[00:04:22] Speaker 00:
No, I understand.

[00:04:23] Speaker 00:
That's what hypotheticals are.

[00:04:25] Speaker 04:
Understood.

[00:04:26] Speaker 04:
I think in that case you'd have a threshold problem, honestly.

[00:04:29] Speaker 04:
You'd have a threshold problem in that the contractor couldn't submit a certified claim for that amount because there'd be no basis to do that.

[00:04:35] Speaker 00:
Are you agreeing then that in that hypothetical you wouldn't be able to recover anything?

[00:04:40] Speaker 04:
If the contractor in your hypothetical, which again is not what occurred here, received the benefit of every one of those dollars, if it transferred the $100 million to one account to another account that the contractor owed, of course we would take that position that they're not entitled to a double payment.

[00:04:56] Speaker 00:
The government's repeatedly used... Okay, so change the hypothetical and the amounts paid out to the account are for your benefit in the sense that it satisfies a debt that you owe and would otherwise have to pay.

[00:05:10] Speaker 00:
surely under those circumstances, too, the government should get a credit, right?

[00:05:14] Speaker 00:
Well, again, Your Honor, here, that's... Wait, wait.

[00:05:18] Speaker 00:
I know that's not exactly this case.

[00:05:20] Speaker 00:
Sure.

[00:05:21] Speaker 00:
But assume that that's the situation.

[00:05:23] Speaker 00:
Shouldn't there be a credit against the amount owed?

[00:05:26] Speaker 04:
Well, that's certainly not true what occurred under Bianchi, the board's reasoning Bianchi.

[00:05:31] Speaker 00:
Bianchi's identical... That's not binding on us, and I'm not sure that Bianchi is the same as my hypothetical anyway, but

[00:05:39] Speaker 00:
Just answer my question.

[00:05:40] Speaker 00:
Under those circumstances, do you agree that the government should get a credit for the amounts paid to satisfy your creditor?

[00:05:50] Speaker 04:
If we're disregarding Bianchi, and Your Honor, to the extent that the government can again show that the contractor received the benefit here, I think what we're doing is turning everything on its head.

[00:06:01] Speaker 00:
So finish the sentence.

[00:06:03] Speaker 00:
If the government can show that you received the benefit, then they should get a credit, right?

[00:06:08] Speaker 04:
To the extent that they prove their affirmative defense as payment, yes, your honor.

[00:06:13] Speaker 04:
So payment is an affirmative defense.

[00:06:15] Speaker 04:
The government's taught at every turn in this case, they've sought to turn that on its head, right?

[00:06:20] Speaker 04:
Because they're not able to easily establish to defend the liability stage, and they don't want to use this.

[00:06:26] Speaker 00:
So if we remand here, there has to be a determination as to whether amounts were paid out of that

[00:06:31] Speaker 00:
account for the benefit of your client.

[00:06:33] Speaker 04:
Well, Your Honor, we would disagree that a remand is even necessary.

[00:06:36] Speaker 04:
That issue was fully briefed before the board.

[00:06:38] Speaker 00:
Now to answer my question, do you agree that there should be a remand here for computation of the amount?

[00:06:45] Speaker 00:
Do you agree there should be a remand?

[00:06:47] Speaker 00:
And that if in that remand the government can show that amounts were paid to benefit you, the government should get a credit vote.

[00:06:55] Speaker 04:
I think what you're talking about is moving on to the quantum stage.

[00:06:58] Speaker 04:
And that's what we 100% agree should happen here.

[00:07:01] Speaker 04:
So in that quantum stage at the board, the government could raise that as an issue.

[00:07:05] Speaker 00:
The government could raise that and the board could decide.

[00:07:11] Speaker 00:
that you got a benefit from it, they should get a credit from that, right?

[00:07:15] Speaker 04:
If they're able to establish that as their affirmative defense, Your Honor.

[00:07:19] Speaker 04:
And again, they wouldn't be able to do that in this case because Aspen didn't get the benefit from it.

[00:07:26] Speaker 04:
One thing that's been forgotten in this the entire time, just to level set, is that the account that the money was transferred into

[00:07:32] Speaker 04:
There was existing funds.

[00:07:34] Speaker 04:
So obviously, we dispute that the account was within Aspen's custody and control.

[00:07:38] Speaker 04:
But one thing that's disregarded this entire time is there's existing funds in those accounts.

[00:07:43] Speaker 04:
So when the money's transferred in, the money that comes out, money's inherently fungible.

[00:07:47] Speaker 04:
We can all agree with that.

[00:07:48] Speaker 04:
It's probably like water, one of the most fungible things you could have.

[00:07:51] Speaker 04:
So the dollars that come out wouldn't come out dollar for dollar as to what the government had just paid.

[00:07:58] Speaker 03:
Is it your client's position that the money that was in that CZ account already was Aspen's money?

[00:08:07] Speaker 04:
No, Your Honor.

[00:08:08] Speaker 04:
We're taking just the opposite position, right?

[00:08:10] Speaker 04:
That Aspen, before this, didn't have control of that because Mr. French, as we cite in the record, Mr. French himself testifies that he kept all the money in the account.

[00:08:19] Speaker 04:
Mr. French testifies that he made unauthorized loans to that account.

[00:08:22] Speaker 04:
Mr. French testifies that the contractors that are paid, and this is a very important point here, and again, it's factual.

[00:08:28] Speaker 04:
It's not anything that's really been briefed very well, and it's not anything where the board rusted its opinion on.

[00:08:37] Speaker 03:
Sounds like your argument is that Mr. French stole your money.

[00:08:41] Speaker 04:
And it was facilitated by... Is that correct?

[00:08:44] Speaker 04:
I think that's a fair assessment, Your Honor.

[00:08:46] Speaker 03:
Have you pursued criminal and or legal challenges against Mr. French directly for this theft?

[00:08:52] Speaker 03:
Well, if somebody stole my money, I'd probably sue them.

[00:08:56] Speaker 04:
Your Honor, that burden here falls on the government directly on the clause.

[00:08:59] Speaker 04:
If we look at the FAR 52-232-33, there's a direct mechanism for when the government fails to transfer to the right account.

[00:09:08] Speaker 04:
The government has the obligation to chase the money.

[00:09:10] Speaker 04:
They didn't follow the express instructions in the contract.

[00:09:14] Speaker 04:
And here, at the end of the day, this is just a question of contract.

[00:09:17] Speaker 04:
It's a question that the government had an obligation to pay to the CCR account in San

[00:09:21] Speaker 04:
to pay to the account designated in CCR, which later became SAM.

[00:09:26] Speaker 04:
And when it failed to do that, what it did is open the contractor up to this potential, as your honor says, the theft.

[00:09:33] Speaker 04:
And so to the extent that the money was not paid correctly, the government can go after them.

[00:09:37] Speaker 04:
The government can do that.

[00:09:38] Speaker 02:
And that's- Council, has the CC account been used to pay Aspen's obligations in the past?

[00:09:44] Speaker 04:
Prior to the transfer of the funds it was open without Aspen's knowledge But it was used after that to pay both Aspen and B French consulting contractors, and that's one point I think I Didn't make clear a moment ago is that B French consulting is undisputedly a separate entity It's not related to Aspen consulting B French consulting had contractual relationships with vendors and

[00:10:10] Speaker 04:
BFrench Consulting was contractually liable for those payments, not Aspen Consulting.

[00:10:16] Speaker 04:
At that point, and again this is not anything that's been briefed significantly, but at that point BFrench Consulting, and specifically Mr. French, had already misappropriated significant funds from that account.

[00:10:27] Speaker 04:
So as a result, what happened is the account balance is artificially lower than it otherwise would be.

[00:10:32] Speaker 04:
And Mr. French then used the government's misdirected payments here to satisfy the obligations that B French Consulting owed, not Aspen.

[00:10:40] Speaker 04:
So when we get to the benefit that Aspen purportedly received, it's not one that Aspen purportedly received at all.

[00:10:46] Speaker 04:
It's one that B French... We can't resolve that.

[00:10:48] Speaker 00:
At this point, it's a factual issue.

[00:10:51] Speaker 04:
Your Honor, I 100% agree.

[00:10:53] Speaker 04:
One of the main points that I wanted to make today is that these are all factual questions.

[00:10:58] Speaker 04:
And this court, as Your Honors are well aware, is not a trier of fact.

[00:11:02] Speaker 04:
The board had a full obligation to reach these issues.

[00:11:06] Speaker 04:
It didn't do it.

[00:11:07] Speaker 04:
What it did in our view is it misinterpreted the clause and sidestepped all of these issues.

[00:11:11] Speaker 04:
So in our view, we ought to proceed on to the quantum stage.

[00:11:14] Speaker 04:
And at that stage, the reason why this hasn't been fully addressed is because

[00:11:18] Speaker 04:
if we weren't at that quantum stage.

[00:11:20] Speaker 04:
If we're at the quantum stage, all of these issues can be addressed.

[00:11:25] Speaker 04:
We can put on additional evidence as to be French Consulting being contractually responsible for those payments.

[00:11:32] Speaker 03:
You're using up your rebuttal time.

[00:11:33] Speaker 03:
Do you want to continue or do you want to save it?

[00:11:36] Speaker 04:
I'll save the rest for rebuttal.

[00:11:37] Speaker 03:
Thank you, Your Honor.

[00:11:41] Speaker 03:
Ms.

[00:11:41] Speaker 03:
Niosi, am I saying your name right?

[00:11:44] Speaker 01:
Yes, Your Honor, you did.

[00:11:51] Speaker 01:
May I remove my mask?

[00:11:53] Speaker 01:
Yes.

[00:11:56] Speaker 01:
May it please the court.

[00:11:57] Speaker 01:
The court should affirm the board's decision that the court did not reach its contract with Aspen.

[00:12:03] Speaker 01:
The court met its payment obligation by paying these invoices to the account as directed by Aspen's senior vice president and chief operating officer.

[00:12:12] Speaker 01:
And in any event, Aspen has not demonstrated any harm.

[00:12:17] Speaker 01:
Your Honors, I do wish to take a moment to point out that there is an error in our brief on page 31.

[00:12:23] Speaker 01:
I apologize that I didn't discover this until late last night.

[00:12:30] Speaker 01:
We stated at page 31 of our brief that bar 52.232-33b was revised in 2003 to require contractors to register with the CCR.

[00:12:44] Speaker 01:
That requirement was actually imposed on contractors in FAR 4.1102.

[00:12:49] Speaker 01:
And that is reflected in the Federal Register notice that we cite at page 31 of our brief.

[00:12:57] Speaker 01:
Again, I apologize for any confusion and we will file a Rule 28J letter later today to clarify that.

[00:13:04] Speaker 01:
Turning to the merits, what Aspen seeks is a double recovery by asking this court to convert

[00:13:12] Speaker 01:
its authorized representatives' request to the payments.

[00:13:16] Speaker 03:
You say Aspen seeks a double recovery, but inherent in that is that they actually got the money that was put in the wrong account.

[00:13:25] Speaker 03:
And there were no fact-findings made to that extent, and we can't do that on appeal.

[00:13:30] Speaker 03:
So how can you say they're seeking a double recovery?

[00:13:34] Speaker 03:
How am I supposed to know they actually got the money?

[00:13:38] Speaker 01:
Your Honor,

[00:13:40] Speaker 01:
As far as I'm aware, there was no bifurcation of entitlement in quantum.

[00:13:45] Speaker 01:
This was Aspen's burden before the board to demonstrate its harm?

[00:13:48] Speaker 03:
It was hotly disputed.

[00:13:49] Speaker 03:
Hotly disputed below was the issue of whether they benefited or received payouts of that money that was put in the CZ account.

[00:13:58] Speaker 03:
They certainly didn't stipulate that they were the beneficiaries of all of that money.

[00:14:03] Speaker 03:
The government argued that they were, but they didn't stipulate to that, and that's a fact question.

[00:14:08] Speaker 03:
They clearly disputed.

[00:14:10] Speaker 01:
Your Honor, at the board, Aspen took the position that it was not required to demonstrate that it received any benefit from these payments, relying on the Youngie case.

[00:14:23] Speaker 03:
Which it's not.

[00:14:23] Speaker 03:
It's the government's burden.

[00:14:24] Speaker 03:
It's an affirmative defense of payment.

[00:14:26] Speaker 03:
So it isn't their burden to prove.

[00:14:29] Speaker 03:
It's your burden to prove.

[00:14:30] Speaker 01:
Your Honor, one of the elements of a breach of contract claim is, of course, to demonstrate that they've been harmed.

[00:14:36] Speaker 01:
And essentially, Aspen took the position that it didn't need to show that it wasn't harmed or that it was harmed, that it didn't need to show that it received any benefit because it relied on the Bianchi case, which was non-binding and really runs against the... I understood Aspen to take the position that they didn't receive these payments.

[00:14:55] Speaker 03:
And therefore, they were harmed.

[00:14:57] Speaker 03:
And I understood the government to come back and say, yes, you did because things were paid out of that account to your benefit, which it feels to me like is a fight over damages and the question of payment in particular, the affirmative defense of payment.

[00:15:11] Speaker 03:
or the affirmative offensive payment or alternatively a fight over damages.

[00:15:16] Speaker 03:
Like for example, suppose Mr. French kept 100,000 of that money for his own benefit and only the remainder of it was paid out to Aspen's own debts.

[00:15:28] Speaker 03:
Then this would be a question of damages, right?

[00:15:31] Speaker 03:
How much of the money that was paid into the wrong account, again assuming it's the wrong account, how much of the money that was paid into the wrong account did Aspen receive the benefit of?

[00:15:41] Speaker 03:
We don't obviously know when here is going to give them a windfall of double payment.

[00:15:46] Speaker 01:
Your Honor, at the board, Aspen's position was that the agency, that the Corps breached the contract by not paying to that specific account, the account that was listed in the CCR.

[00:16:00] Speaker 01:
Aspen did not take the position that if that money had been paid to the Commerce Making Kit.

[00:16:06] Speaker 01:
account and had benefited Aspen, that that meant that there was no breach.

[00:16:12] Speaker 01:
Aspen was taking a very hard line view as to the materiality.

[00:16:18] Speaker 00:
They now seem to agree that that was wrong.

[00:16:22] Speaker 00:
And that if it was paid out for your benefit, there should be a credit.

[00:16:26] Speaker 00:
And I don't understand why you're entitled to anything more than that.

[00:16:31] Speaker 00:
Because this money was paid in the wrong account.

[00:16:34] Speaker 00:
And if indeed Mr. French had a parent authority, he might have had a parent authority to change the account, but he didn't have a parent authority to require, to ask the government to pay the money into a different account, which wasn't registered.

[00:16:53] Speaker 00:
Right?

[00:16:56] Speaker 01:
He did not have, according to the record, he did not have authority to change the

[00:17:04] Speaker 01:
account in the CCR.

[00:17:06] Speaker 00:
But that was never changed.

[00:17:07] Speaker 00:
And it was not changed.

[00:17:09] Speaker 00:
So what difference does it make whether you have a parent authority to change it or not?

[00:17:13] Speaker 00:
It wasn't changed.

[00:17:15] Speaker 01:
But he did give direction to the agency, which the agency, from the agency's perspective, understood that to be a legitimate authorized request to change the account.

[00:17:26] Speaker 00:
No.

[00:17:27] Speaker 00:
It was an authorized request to pay to some other place other than the registered account.

[00:17:33] Speaker 01:
I see you're right, Your Honor.

[00:17:35] Speaker 01:
Yes.

[00:17:35] Speaker 01:
He asked not to change the information in the CCR and have it directed to an account that was in CCR, but he asked to have the payments made to a different account, one that was opened in Aspen's name.

[00:17:49] Speaker 01:
With Aspen's knowledge, Aspen's certified claim indicates at Appendix Page 262 that it was aware that this account had been opened, and Aspen routinely

[00:18:00] Speaker 01:
sanctioned and used that account to its benefit throughout the course of its dealings with Mr. French.

[00:18:08] Speaker 01:
It gave Mr. French essentially the authority to make disbursements from that account on his behalf.

[00:18:15] Speaker 00:
So if it was for a different case and the government had refused to make the payment into the other account, then the government would have been breaching the contract by refusing to adhere to the strict terms?

[00:18:32] Speaker 01:
The government would not have been reaching the contract by adhering to those strict terms.

[00:18:37] Speaker 01:
I think the question here is whether the change in the account was a material term of the contract.

[00:18:46] Speaker 01:
And it was not so long as Aspen gets paid.

[00:18:50] Speaker 01:
And Aspen makes the argument that, in its brief, essentially acknowledges that payment is a material term.

[00:19:01] Speaker 01:
But there's nothing to indicate that payment to a particular account is the material term.

[00:19:05] Speaker 01:
For example, Your Honor asked earlier if this money had been deposited to an account that is not in CCR but that the Aspen had full access to.

[00:19:18] Speaker 01:
Certainly Aspen could not come in here and claim breach of contract because it was not paid to the specific account.

[00:19:24] Speaker 01:
And that's what I understood Aspen to be arguing all along, was that it was a strict liability, which of course is a tort concept, but that the material term here was the actual account that gets the money, not just that Aspen gets paid.

[00:19:43] Speaker 01:
And to the extent that there is a question of harm, again,

[00:19:50] Speaker 01:
That is an element of the plaintiff's burden to come forward and show that they've been harmed.

[00:19:56] Speaker 01:
And I am not aware that there was any bifurcation at the board between entitlement and quantum.

[00:20:05] Speaker 01:
So this would really just be a failure proof on Aspen's part to demonstrate that it was harmed.

[00:20:10] Speaker 02:
I just have a question.

[00:20:11] Speaker 02:
Do you agree that there was noncompliance, but that it's not material noncompliance?

[00:20:15] Speaker 02:
Is that what your argument is in sum?

[00:20:18] Speaker 01:
Yes, Your Honor.

[00:20:20] Speaker 01:
to the extent that the court disagrees with the board's finding, because the board found that the agency, the court did comply with the FAR provision.

[00:20:28] Speaker 01:
To the extent the court disagrees with that, then I would, we would argue that our position is that any noncompliance is a technical noncompliance and it's not material because what is material is that Aspen got paid to, that Aspen got paid and not the particular account.

[00:20:52] Speaker 01:
If there are no further questions, then we respectfully, yes.

[00:20:55] Speaker 02:
I have one more question for you.

[00:20:56] Speaker 02:
Yes.

[00:20:56] Speaker 02:
Do you believe whether or not Mr. French had a parent authority is relevant to the affirmative defense of payment?

[00:21:03] Speaker 01:
It is relevant because from the government's perspective, they were dealing with an authorized representative, the only person they'd really dealt with on the contract from its inception.

[00:21:16] Speaker 01:
Mr. French was signing and certifying other invoices.

[00:21:20] Speaker 01:
He had signed contract modifications and delay cost proposals.

[00:21:27] Speaker 01:
And so from the government's perspective, it is receiving a valid request to direct the payments to a different account.

[00:21:34] Speaker 01:
And the board found that that was a reasonable belief that Aspen created, that Aspen created the reasonable belief that Aspen was asking for its EFT information to be changed, or at least to have the contract

[00:21:50] Speaker 01:
payments be deposited into different accounts.

[00:21:53] Speaker 01:
A different account.

[00:21:56] Speaker 03:
Just out of curiosity, would you mind looking at appendix page 60 with me?

[00:22:02] Speaker 03:
I'm sorry?

[00:22:02] Speaker 03:
Would you mind looking at appendix page 60?

[00:22:04] Speaker 03:
60.

[00:22:15] Speaker 03:
Am I right?

[00:22:16] Speaker 03:
Is this the contracting officer's decision?

[00:22:18] Speaker 03:
What is this that I'm looking at on page 60?

[00:22:21] Speaker 03:
It looks like the contracting officer's initial decision.

[00:22:25] Speaker 01:
That is right.

[00:22:26] Speaker 01:
It's the contracting officer's decision on the certified claim.

[00:22:29] Speaker 03:
Right.

[00:22:30] Speaker 03:
And while it talks about what does it mean in that middle paragraph, while Mr. Ben French had apparent authority at the time he directed invoices on contract to be paid to Aspen Consulting's Commerce Bank account, the fact remains that whether the payments were made properly or erroneously, they were made to Aspen Consulting and they were used to satisfy Aspen Consulting debts and obligations.

[00:22:56] Speaker 03:
So I guess opposing counsel says we would need to vacate and remand for a fact finding about whether or not they had actually benefited from those payments.

[00:23:10] Speaker 03:
Is this such a fact finding that's already been made?

[00:23:14] Speaker 03:
And if so, what do we do in this case?

[00:23:20] Speaker 03:
Assume that, okay, just assume I think you got it wrong, right?

[00:23:23] Speaker 03:
Assume that you paid it to the wrong account.

[00:23:26] Speaker 03:
So now what?

[00:23:27] Speaker 03:
Do we send it back for them to figure out whether for the Court of Federal Claims to assess whether Aspen reaped the benefit of those payments nonetheless such that there are no damages or has that fact-finding already been rendered?

[00:23:44] Speaker 01:
The contracting officer would have done an investigation and leading up to her

[00:23:53] Speaker 01:
final decision and so the fact that she lays out in her decision starting at Appendix Page 46 would be, as I understand it, those are the facts that she is setting forth that lead her to conclude that the money was used to satisfy Aspen's case.

[00:24:20] Speaker 01:
That's correct, Your Honor.

[00:24:22] Speaker 01:
I wasn't, I'm sorry, I wasn't trying to suggest the contracting officers... Did the Court of Federal Claims make any similar findings?

[00:24:30] Speaker 03:
I'm wondering what we send it back for.

[00:24:34] Speaker 01:
Your Honor, this was actually at the Board, the Armed Services Board of Contractors.

[00:24:38] Speaker 03:
Thank you for correcting me, please.

[00:24:40] Speaker 01:
Regardless, it arguably could be sent back to the Board to determine if

[00:24:47] Speaker 01:
was harmed and or received a benefit or I think the board might say that we already had essentially a trial that's what the briefs below were or paper trial and you didn't present any evidence that you've been harmed and therefore you are not you're not entitled to any breach of contract damages I think those are the two potential outcomes if the court were to remand

[00:25:18] Speaker 03:
Thank you.

[00:25:19] Speaker 01:
And so we respectfully request that the board affirm.

[00:25:49] Speaker 04:
Your honor, just to be clear procedurally, the claim certainly was at the ASPCA, it was divided up between liability and quantum.

[00:25:58] Speaker 04:
That's fairly commonplace that the contractors had that election and rarely do they elect to do it at the same time.

[00:26:05] Speaker 04:
And quantum obviously being the damage portion of this.

[00:26:09] Speaker 04:
The evidence we put forward in this case as to our damages is self-evident.

[00:26:14] Speaker 04:
We put forward the deposition testimony of the toppers saying they didn't get the payment.

[00:26:19] Speaker 04:
The government's admission that the money was paid to the wrong account.

[00:26:23] Speaker 04:
There's no shortage of evidence indicating Aspen alleging it didn't get the payments.

[00:26:29] Speaker 04:
As to this issue about whether the government has an offset, and if so, what that offset would be, that's something that would be raised on a quantum as an affirmative defense in the quantum aspect of the claim.

[00:26:41] Speaker 04:
To address Judge Moore's question about the contracting officer's final decision, as the court well knows, that's just the gateway to the board, right?

[00:26:49] Speaker 04:
Under the CDA, you have to have the contracting officer's final decision in order to proceed.

[00:26:55] Speaker 04:
Aspen disagreed with that decision.

[00:26:57] Speaker 04:
Aspen at no point got a chance to present affirmative evidence in that case, and there was nobody hearing.

[00:27:02] Speaker 04:
There was no weight of the trial, trier of fact there.

[00:27:05] Speaker 04:
That's just the contracting officer denying the claim.

[00:27:09] Speaker 04:
Here, the board,

[00:27:10] Speaker 04:
I think the most important point I would take from this is that of course this is well briefed at the lower stage.

[00:27:17] Speaker 04:
The issue of whether Aspen received a benefit was highly contested.

[00:27:20] Speaker 04:
Highly contested.

[00:27:21] Speaker 04:
And the board could have said, we think they got a benefit.

[00:27:25] Speaker 04:
And they didn't.

[00:27:26] Speaker 04:
They didn't hear, in all likelihood, because they're saying it's not at that stage yet.

[00:27:31] Speaker 04:
And also, we're going to sidestep this by interpreting the contract to say there was no breach of contract.

[00:27:37] Speaker 04:
So what my government colleague is really arguing here is that they want the court to overturn the breach of contract.

[00:27:45] Speaker 04:
finding, which is the determinant of whether a breach of contract occurred is typically a mixed question of law and fact, the question of law being the interpretation of the contract, which the court is well aware we disagree with, and the mixed question of fact about whether that was material or not, about whether interpreting the contract wasn't material, that breach.

[00:28:07] Speaker 04:
And so even in arguing this immateriality argument, what they're arguing is to overturn a factual finding.

[00:28:13] Speaker 04:
Which is not something you do at the Court of Appeals.

[00:28:16] Speaker 04:
We cited, I believe it's nuclear research, in our brief.

[00:28:20] Speaker 04:
What factual finding?

[00:28:23] Speaker 04:
As to whether the breach was material.

[00:28:27] Speaker 04:
As to whether the breach was material.

[00:28:28] Speaker 04:
And then related to that would be, obviously, the government's affirmative defense of payment.

[00:28:35] Speaker 04:
The affirmative defense of payment is something that the government has sought to wiggle out from under this entire time.

[00:28:42] Speaker 04:
Like I said, it's turned its on its head at every stage possible to try to put that burden back on Aspen here.

[00:28:49] Speaker 04:
And initially that was because they couldn't show that they hadn't reached the agreement.

[00:28:54] Speaker 04:
And now it's in an effort to push back more to show that then Aspen got some sort of benefit here.

[00:29:00] Speaker 04:
But certainly in Appellant's view, at this stage, we've shown uncontradicted evidence that Aspen didn't get the payment, and also evidence from the Toppers, albeit disputed evidence, that they didn't receive the benefit of this.

[00:29:15] Speaker 00:
Kent Toppers' deposition testimony was... But you're not asking us to reverse outright where this money could be paid to you.

[00:29:25] Speaker 00:
You're asking us to

[00:29:26] Speaker 00:
reverse and remand so that the question of quantum

[00:29:32] Speaker 00:
of whether your client benefited from the payments can be determined, right?

[00:29:36] Speaker 04:
Exactly, Your Honor.

[00:29:37] Speaker 04:
We're asking this Court to say that the Board's interpretation of the contract was wrong, and that as a result, as the government breaches the agreement, now there's a question of damages.

[00:29:47] Speaker 04:
The question of damages is quantum, one and the same.

[00:29:50] Speaker 04:
And that's something the Board would have the opportunity to hear factual evidence on at that stage.

[00:29:55] Speaker 04:
And that's the exact relief we're seeking from this Court.

[00:29:59] Speaker 04:
unless there's anything further.

[00:30:00] Speaker 03:
Okay, thank you, Council.

[00:30:01] Speaker 03:
It's good to take another submission.