[00:00:00] Speaker 02:
Our last case to be argued this afternoon is docket number 24-1755, ASG Solutions Corp versus United States.

[00:00:11] Speaker 02:
Mr. Damien, whenever you're ready.

[00:00:15] Speaker 01:
Good afternoon.

[00:00:15] Speaker 01:
May it please the court, David Damien appearing on behalf of ASG Solutions Corporation, the appellant in this case.

[00:00:23] Speaker 01:
For all the reasons set forth in our briefing, the trial court erred when it determined that this contract was properly terminated for default and that that was justified.

[00:00:35] Speaker 01:
We request this court reverse that decision and remand with instruction to enter judgment in favor of ASG and against the Navy.

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In the alternative, the matter at a minimum should be remanded for further proceedings.

[00:00:49] Speaker 01:
First and foremost, this is further proceedings.

[00:00:52] Speaker 01:
I think it would be a trial right I if it proceeded to that length.

[00:00:56] Speaker 01:
Yes.

[00:00:57] Speaker 01:
Yes, it would be a trial Yes, there'd be fact issues to resolve because first and foremost, this is a firm fixed price Performance based non-personal services contract and the trial courts holding and the Navy's interpretation which

[00:01:13] Speaker 01:
held that the central purpose of this contract is staffing supply, is not a permissible construction of this contract, nor do we believe it's a reasonable construction.

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So both of those create issues on appeal.

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ASG and Mr. Banerjee have been made to suffer the consequences of that interpretation via their debarment and the ending of their business.

[00:01:41] Speaker 01:
This started three years ago.

[00:01:43] Speaker 01:
And unfortunately, while we appreciate being here in the court's consideration of this matter, it's not a place we would like to be.

[00:01:52] Speaker 00:
And we're here to seek justice with Mr.

[00:01:58] Speaker 01:
I'm sorry.

[00:01:58] Speaker 01:
It is not.

[00:01:59] Speaker 01:
It is not.

[00:02:00] Speaker 03:
He has been debarred?

[00:02:01] Speaker 03:
Is that correct?

[00:02:02] Speaker 01:
That was correct.

[00:02:03] Speaker 01:
He was debarred.

[00:02:04] Speaker 01:
And then that debarment proceeded.

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And then the ultimate conclusion of that was the Navy reinstated him after all of his contracts were lost.

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Such that he no longer has any business with the government.

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So the bottom line is this issue that the court's interpretation finds that it leaned on a determination that essential purpose here was the supply.

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And as we've laid out in our briefing,

[00:02:38] Speaker 01:
Right, that interpretation leads to an unavoidable conflict with the statutes and regulations governing this type of contract procurement.

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FAR section 37.101 provides the basis for this contract to be procured along with 37.104, along with FAR part 16.

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Part 16, it's firm fixed price.

[00:03:00] Speaker 01:
Right, it's not a level of effort contract.

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FAR 37.104, it's not a personal services contract.

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FAR 37.101, it's a services contract.

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The goal of this contract is to provide services to complete advisory and assistance services and tasks.

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By interpreting it to be strictly a manpower, a contract providing manpower as the central purpose, then we have the government sidestepping the Services Act and its procurement authority to issue this contract.

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And the consequence of that, in the context of termination for default, which is why there are specific safeguards in place for the government to follow certain rules

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and make a careful determination before drilling the death knell into a contractor in this case.

[00:03:53] Speaker 00:
Do you agree that the Navy had notices that gave ASG an opportunity to cure?

[00:03:58] Speaker 01:
Yes, I would be happy to address that.

[00:04:00] Speaker 01:
So the notice is to cure.

[00:04:02] Speaker 01:
So let's get to 52-249-8.

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And those notices to cure, which under the contract clause authorizing the government to terminate for default, provides that the little romanette one, two, and three, three different bases, all of which are only implicated if there's an endangerment of performance,

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which there is not in this case, because all tasks were performed, to that the contractor received the notice to cure.

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And so the distinction here is that that notice to cure should notify the contractor of what it must do to cure, to make it an effective notice to cure.

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So what must it do to cure?

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And we're in a little bit of a roundabout.

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tying back to what's the central purpose of the contract.

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Because under Little Romanette 2, they're entitled to have that opportunity to perform the advisory and assistance services required.

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In this case, we performed all the services required.

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And only on the eve of the dispositive motion in this case was information as to some other tasks presented in the trial court to which we objected.

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How many resumes did you have?

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ultimately end up submitting to the Navy.

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How many?

[00:05:14] Speaker 01:
I do not have the exact number of the total of resumes.

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What I will say is the resumes were submitted and immediately upon submission the dispute exploded.

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And contracting officer Iceland instructed my client to submit only those that meet the criteria on attachment two, thereby completely handicapping what types of resumes could be submitted.

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And those submissions further handicapped by the absence of specific tasks to perform.

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How did that handicap the contractor?

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if the contract is correctly understood as obligating the contractor to provide 20 resumes that have qualified experts per attachment to, and likewise actually provide the services of 20 experts during the course of the contract.

[00:06:04] Speaker 01:
Well, your honor's question presumes that attachment to is a mandatory requirement for the contractor to provide exactly those hypothetical persons.

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And so.

[00:06:16] Speaker 02:
Well, there is some flexibility in the mix of experts that get provided.

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But nevertheless, they have to have some kind of qualifications.

[00:06:25] Speaker 01:
Yes, yes, they have to have the qualifications necessary to perform all the types of advisory and assistance services specified in the personal work statement in section C. And so that statement contemplates a hypothetical situation across all different disciplines, fire protection, cost engineers, structural engineers, all types of engineers, architects, right?

[00:06:50] Speaker 01:
Not providing professional services, but providing advisory and assistance services.

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So getting back to your honors,

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point how is the contractor handicapped without the government working with the contractor to notify them of what those services specifically are and what those tasks are the contractor who in a performance based acquisition must maintain the how of the performance to benefit the government

[00:07:14] Speaker 01:
is not able to solidify that technical approach.

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And so that technical approach cannot be and should not be fixed in stone by attachment two.

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And that really gets to the whole of the thing.

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The government and the lower court determined that attachment two fixes in stone the technical approach of the offeror, of the contractor.

[00:07:37] Speaker 00:
And it cannot do that.

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Can you go to my question about the number of resumes?

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Pinnix, page 4613.

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It says ASG submitted 18 resumes.

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Do you have any reason to disagree or do you agree with that statement in paragraph 13 on that page?

[00:07:53] Speaker 01:
I do not disagree with that statement.

[00:07:56] Speaker 01:
But again, and it goes back to my response to that question, is the resumes submitted were restricted

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based on the government's insistence on what those resumes must consist of, and thereby taking away from the contractor the ability to determine the technical approach that they was hired to provide, which is- Why is the government not entitled to say that we want

[00:08:21] Speaker 04:
expertise here.

[00:08:22] Speaker 04:
We're looking for expertise.

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And expertise, by our definition, is the following.

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You must be X, Y, Z, experience, education, dealing with DOD problems.

[00:08:36] Speaker 04:
Why isn't that something that in a contract like this, the government is not entitled to ask for?

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And the system.

[00:08:42] Speaker 01:
It must be tied.

[00:08:43] Speaker 01:
Those characterizations and expectations as to that experience and criteria are in the performance work statement C, generally.

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And that is the driver.

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So when they go to attachment two about what they're specifying, it must tie and link to what is in the performance work statement, which is the specific tasks that they're looking to have performed.

[00:09:06] Speaker 01:
Otherwise, what we have is a staffing supply contract.

[00:09:09] Speaker 00:
I don't think you answered Judge Bryson's question.

[00:09:11] Speaker 00:
Can you answer his specific question that he asked you?

[00:09:15] Speaker 01:
The government may specify the characteristics and the criteria that it seeks in connection with the work that it's looking to get done.

[00:09:26] Speaker 04:
Let me give you an example.

[00:09:27] Speaker 04:
Suppose that the Department of Defense has a very complex legal problem in Kyrgyzstan.

[00:09:35] Speaker 04:
and they decide there's no one in the United States that knows Kyrgyzstan law.

[00:09:40] Speaker 04:
So we are going to contract with a Kyrgyzstan law firm and they are going to give us advice as to how to handle this complex legal problem.

[00:09:52] Speaker 04:
Why can't the government say we want this law firm to provide for us at least five lawyers who have at least 10 years of experience in dealing with contracts and

[00:10:05] Speaker 04:
They must all be at the partnership level or equivalent in Kyrgyzstan.

[00:10:11] Speaker 04:
Why isn't that perfectly legitimate?

[00:10:14] Speaker 01:
They may do that, Your Honor, but they must specify the problem that they are seeking to have solved, the task to be performed.

[00:10:23] Speaker 04:
Well, but they don't know exactly what the problem is going to be yet, but they know from

[00:10:29] Speaker 04:
understand, the TC of the tea leaves, they know that they're going to have problems coming down the road.

[00:10:34] Speaker 04:
And they want a team of lawyers that's ready to jump onto the task.

[00:10:39] Speaker 04:
Why isn't that legitimate?

[00:10:41] Speaker 01:
But it is legitimate for them to specify the criteria in the contract that they are seeking to have met.

[00:10:46] Speaker 01:
Why is that different from what we have here?

[00:10:47] Speaker 01:
It's not in the contract in this case, Your Honor.

[00:10:49] Speaker 01:
Attachment 2 is not in the contract.

[00:10:52] Speaker 01:
And it's not a binding obligation for it.

[00:10:53] Speaker 04:
The 20 employees at the

[00:10:57] Speaker 04:
relatively high levels, that's in the contract multiple times, starting with Section A2.

[00:11:04] Speaker 01:
Let's read Section A2, and I would ask the Court to focus on that section, because I agree it is very important to the lower court and the Navy's interpretation.

[00:11:15] Speaker 01:
There's a paragraph in Section A2 with four sentences in it.

[00:11:19] Speaker 01:
And the first sentence says, at the initial contract award, the government anticipates a staff of a certain specificity.

[00:11:27] Speaker 01:
And according to Your Honor's hypothetical, it would be lawyers with certificates of X, Y, and Z. They anticipate it.

[00:11:34] Speaker 01:
However, this is subject to change based upon the successful offeror's technical approach.

[00:11:39] Speaker 01:
And that's why I'm emphasizing who controls the technical approach.

[00:11:43] Speaker 01:
And then the third sentence says, the staff of 20 professionals is base minimum level of service, period.

[00:11:51] Speaker 04:
So what about section H8, where any time there's a vacancy within the team of 20,

[00:11:59] Speaker 04:
They are required to replace someone among that 20 with a qualified replacement.

[00:12:05] Speaker 04:
That sounds like there's a lot in this contract that's saying you have to have 20 people.

[00:12:10] Speaker 01:
Those are the only two places, Your Honor.

[00:12:12] Speaker 01:
And of those two, so H8 and A2 are the only two places in this contract.

[00:12:17] Speaker 00:
Well, isn't that enough?

[00:12:18] Speaker 01:
But OK, it's not enough because the result of that interpretation is to take away the technical approach from the contractor.

[00:12:26] Speaker 01:
First and foremost, and the most common sense answer to that is, that's why.

[00:12:30] Speaker 01:
That's not enough.

[00:12:31] Speaker 01:
It takes away the technical approach from the contractor, divorced from what the work actually is.

[00:12:36] Speaker 04:
The technical approach being that the contractor gets to decide how talented the people need to be?

[00:12:43] Speaker 01:
No, what mix of people to have and what their experience should be.

[00:12:48] Speaker 01:
So I don't know if talent is the word,

[00:12:50] Speaker 01:
the mix of the people and what their experience should be is critical in the breadth of projects in section C. I can't understate that enough when we're talking about if it could be a dry dock or a house or it could be a concrete runway or it could be

[00:13:05] Speaker 01:
a number of other things that are called upon and the contractor must deliver under Section C if those tasks are asked for.

[00:13:12] Speaker 01:
That's the technical approach.

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They have no choice or they will be in default.

[00:13:16] Speaker 01:
And so what the 20 is is a baseline to estimate how much money they need to set aside for a firm fixed price contract where they take the risk

[00:13:25] Speaker 01:
that up to 20 people are going to have to be provided to meet any of the tasks in the breadth of Section C that could be required.

[00:13:34] Speaker 01:
And the government anticipates an A2.

[00:13:36] Speaker 01:
And in H8, the government states that there are 20.

[00:13:39] Speaker 01:
If you have 20 and there becomes a vacancy in the 20... So you're reading it as up to 20, you're not reading it as a minimum of 20?

[00:13:47] Speaker 01:
100%.

[00:13:48] Speaker 01:
Up to 20, yes.

[00:13:49] Speaker 01:
They anticipate a team of 20.

[00:13:53] Speaker 02:
What is base minimum 20 professionals?

[00:13:57] Speaker 01:
It ties to what the contractor must be prepared to cover with the firm fixed price, because they only get in section B1.

[00:14:05] Speaker 01:
In the CLIN, there's only $1 sign there.

[00:14:08] Speaker 01:
They get to put in one number to get paid.

[00:14:11] Speaker 01:
Lump sum, firm fixed price.

[00:14:13] Speaker 02:
And that adds up to 20 professionals, right?

[00:14:15] Speaker 01:
In this case, the government is communicating to the contractor in the context of procurement, yes, to put in a number.

[00:14:22] Speaker 01:
that will cover 20 of these anticipated qualities.

[00:14:29] Speaker 00:
What is your support for reading it up to 20 as opposed to reading the sentence on its face that Judge Chen just talked to you about?

[00:14:37] Speaker 01:
So that section is simply from

[00:14:42] Speaker 01:
Reading that section in the context of the three sentences so the first sentence is anticipates this team the second sentence is it changes based on technical approach of the contractor the third sentence states the team Will be is it is base minimum okay?

[00:14:59] Speaker 01:
So I can I read those together because they're one two three anticipate

[00:15:03] Speaker 01:
Right?

[00:15:04] Speaker 01:
The contractor decides based on what the work actually is in section C. And then three is base minimum.

[00:15:12] Speaker 01:
And so I read that because in a lot of projects, the contractor has to have an idea of what the volume of work... So to sum up, this paragraph in E2 is your support for up to 20.

[00:15:23] Speaker 00:
Is that correct?

[00:15:23] Speaker 01:
I think that's it.

[00:15:24] Speaker 01:
Well, I read the whole contract in context.

[00:15:27] Speaker 01:
So part section C is important to that interpretation.

[00:15:31] Speaker 00:
What is section C?

[00:15:33] Speaker 00:
I want you to be specific.

[00:15:34] Speaker 00:
Because you've pointed me to this paragraph, and now I think I've heard your argument.

[00:15:38] Speaker 00:
It's very important.

[00:15:39] Speaker 01:
It's close.

[00:15:40] Speaker 01:
It's close, but it's not all of it.

[00:15:41] Speaker 01:
So I will say, yes, section C is the work statement, is the performance work statement.

[00:15:47] Speaker 00:
Can we look at the appendix page, and you can point out the exact language that you're relying on so you're up to 20 arguments you just made?

[00:15:53] Speaker 01:
Yes, Your Honor.

[00:16:02] Speaker 01:
So at appendix 2966 through 2970 is the performance work statement.

[00:16:14] Speaker 01:
And on 2967, there's a list of services the contractor must perform but not limited to.

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And it lists out a host of services in 2.1 to 2.9, and they're not limited.

[00:16:28] Speaker 01:
And then on page 2967, the contractor supervises its own team to ensure compliance with this PWS.

[00:16:36] Speaker 01:
The contractor evaluates completed work in terms of compliance with policy and attainment of program objectives.

[00:16:45] Speaker 01:
In this performance work statement, which the USC requires to specify what the work will be that is performed in a performance-based acquisition like this and per FAR 37, that's where it needs to be.

[00:16:58] Speaker 01:
And what that says is they have an unlimited obligation to perform work that would be bounded by the value of the 20, of the 20 people so that they can bid

[00:17:11] Speaker 01:
on 20 to create a price that they can meet the performance objectives.

[00:17:17] Speaker 01:
I'll reserve my time.

[00:17:19] Speaker 02:
You have no time.

[00:17:20] Speaker 02:
You're well over your time, but we will give you a little bit of time on rebuttal.

[00:17:25] Speaker 02:
Thank you.

[00:17:27] Speaker 02:
Let's hear from the government.

[00:17:47] Speaker 05:
May it please the court?

[00:17:51] Speaker 05:
The trial court correctly concluded that the task order was a lawful contract that required ASG Solutions to submit the 20 resumes of senior technical experts within five days of contract award.

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And there was no violation of the personal services contract requirements

[00:18:15] Speaker 05:
FAR 37.104D.

[00:18:19] Speaker 05:
And as a consequence of ASG's failure to comply with the requirements of the contract, the trial court correctly concluded that NAVFAC FCC was justified in terminating the contract for default because ASG did not comply with the contract requirements.

[00:18:43] Speaker 05:
to return to where you completed your discussion with Appellant's Council.

[00:18:54] Speaker 05:
I think it would be helpful to talk about what the ASG submitted to the government in response to the solicitation, because it was required to submit a proposal.

[00:19:09] Speaker 05:
And the proposal was attachment four, which became attachments two in the contract.

[00:19:16] Speaker 05:
Attachment four is found on page 2999.

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And it includes a list of 20 individuals identified as four architects, four mechanical engineers, four electrical engineers,

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two civil engineers, two structural engineers, fire protection engineer, cost protection engineer, and two supervisors.

[00:19:46] Speaker 05:
And these were the criteria that the government said it was interested in the successful offer or to provide as part of the team.

[00:20:00] Speaker 05:
These were not individual contracts or resumes, so to speak.

[00:20:04] Speaker 05:
This was a team effort.

[00:20:06] Speaker 05:
And they were looking for 20 individuals.

[00:20:09] Speaker 05:
And the 20 individuals the government proposed to be the four architects and the four mechanical engineers and so forth, as I just read.

[00:20:18] Speaker 05:
And the recommendations in part in the instructions to the offer wars suggested that these individuals should be high professionals with a lot of experience

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and also with expert, you know, bachelor's degrees, master's degrees, if possible, having certifications and licenses.

[00:20:51] Speaker 05:
Section M, B, 3 in parens, small b in parens 2, 1 and double 1, those are on pages 3, 1, 6, 2.

[00:21:05] Speaker 05:
They talk about how the government is going to interpret and what it's looking for from the offerors.

[00:21:14] Speaker 05:
Section M does not end up being part of the contract, but it does request offerors to look at these various provisions as a method for keeping in mind as they were making a proposal.

[00:21:28] Speaker 05:
So not only were they looking for 20 individuals,

[00:21:32] Speaker 05:
with professional experience, but also individuals that had licenses, master's degrees, and so forth.

[00:21:41] Speaker 04:
What is the status of attachment for, which became attachment to?

[00:21:46] Speaker 05:
Attachment for becomes attachment to.

[00:21:49] Speaker 05:
Right.

[00:21:50] Speaker 05:
And that is... Is that part of the contract?

[00:21:53] Speaker 04:
Yes, it is.

[00:21:54] Speaker 04:
Where do I look to determine that that is, in fact, to be read as part of the contract?

[00:21:59] Speaker 05:
Okay.

[00:22:01] Speaker 05:
In the contract itself, it's listed under Section J, List of Attachments, page 2992.

[00:22:10] Speaker 05:
And if you look down, it says Section J, List of Attachments, and then it has Attachment 2, Attachment... Attachment 4, I see it.

[00:22:22] Speaker 05:
...Labor Mix.

[00:22:23] Speaker 05:
And then under number 2 below, it has Attachment plus 4 plus

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et cetera.

[00:22:29] Speaker 05:
That's an Excel spreadsheet.

[00:22:30] Speaker 04:
And it's undisputed that Section J is, in fact, part of the contract.

[00:22:35] Speaker 04:
Yes, it is.

[00:22:36] Speaker 04:
And the incorporated portions of J are part of the contract.

[00:22:39] Speaker 05:
Yes, they are, Your Honor.

[00:22:40] Speaker 05:
Yes, they are.

[00:22:42] Speaker 05:
The language in Section M is not part of the contract.

[00:22:48] Speaker 05:
It's actually not part of the physical contract.

[00:22:50] Speaker 05:
But it says at the bottom of that page in Section M,

[00:22:56] Speaker 05:
as an instruction, as a recommendation to offer wars, that it will become part, that the attachment for will become part of the contract.

[00:23:09] Speaker 00:
What are the best, just looking at the contract itself, what are the best sections to support it?

[00:23:15] Speaker 00:
Without looking at extrinsic evidence, I just want to look at the contract itself.

[00:23:18] Speaker 00:
What would you point me to as the best sections?

[00:23:23] Speaker 05:
The sections that I've been

[00:23:24] Speaker 05:
but that we've been referring to in our briefs are those sections.

[00:23:29] Speaker 05:
Section A, where it says the staff of 20 professionals is the base minimum level of service.

[00:23:38] Speaker 02:
What do you think it meant when it said it's anticipated we'll need 20?

[00:23:44] Speaker 05:
Well, it says anticipates in that second paragraph on page 2959 of section A2.

[00:23:54] Speaker 05:
When it anticipates, the government wasn't requiring the successful offer or to have four architects, four mechanical engineers, even though those are identified in paragraph two.

[00:24:09] Speaker 05:
But if you refer to appendix 2999, which is the submission of the ASG, then you find that they do, in fact, comply with all of those

[00:24:23] Speaker 05:
requirements.

[00:24:24] Speaker 05:
There are four mechanical engineers, four electrical engineers, et cetera.

[00:24:29] Speaker 05:
And that's... You said the government wasn't requiring it.

[00:24:32] Speaker 05:
It wasn't requiring it.

[00:24:34] Speaker 05:
It wasn't requiring it.

[00:24:35] Speaker 02:
It was not requiring it, but... When you say it wasn't requiring it, what is the it?

[00:24:40] Speaker 02:
Because you are saying you were requiring 20 technical experts.

[00:24:47] Speaker 05:
Absolutely 20 were required.

[00:24:48] Speaker 05:
So when you say you're not requiring it... But in terms of the

[00:24:51] Speaker 05:
the array, the various types of professionals.

[00:24:55] Speaker 05:
In other words, professional mechanical engineers for, professional electrical engineers for.

[00:25:04] Speaker 05:
In other words, they were looking for that framework and they said they would rate it higher if it had that particular four mechanical engineers for electrical engineers.

[00:25:16] Speaker 04:
So that list was essentially aspirational.

[00:25:18] Speaker 05:
It is aspirational at that point, but the submission itself by ASG, which is at 2999, was responsive to that and complied with the aspirations of the Navy.

[00:25:33] Speaker 00:
So in fact, when the two are together... Was your response to opposing counsel's argument that up to 20 is fine?

[00:25:42] Speaker 05:
No, they required 20.

[00:25:43] Speaker 05:
There's nothing in here that says anything less than 20 is also fine.

[00:25:48] Speaker 05:
In fact, the Navy didn't know what it was going to be getting.

[00:25:53] Speaker 05:
It's possible that none of the offer wars came up with 20, but it said in its evaluation process in Section M of the contract that the ones providing 20 would be given a higher priority than, and in fact, there would be a deduction if there were fewer than 20 being offered.

[00:26:17] Speaker 05:
The Navy not only required it in the contract, but it said in the messages to the offerors that if they had less than 20, they would be given a deduction.

[00:26:31] Speaker 05:
So that is in the language in section MB3B2.

[00:26:41] Speaker 04:
And then it shows up in the contract, I guess, in H8.

[00:26:45] Speaker 05:
Yes, it does.

[00:26:46] Speaker 05:
And in H8, they say if you have fewer than 20, you are required, you are going to get a reduction in price if you don't replace your 20, one of your 20, one or more of your 20 within five days.

[00:27:04] Speaker 05:
But we continue, we want you to fill it up to 20.

[00:27:08] Speaker 05:
We want to fill it up to 20 in schedule

[00:27:12] Speaker 04:
Well, to go back to Judge Cunningham's earlier question, she was asking you to run through the contract and tell us each place in the contract where you think that Navy was insisting on having a minimum of 20.

[00:27:29] Speaker 04:
And you started with A.

[00:27:31] Speaker 04:
And that says, anticipate.

[00:27:37] Speaker 04:
Give us the places where you would say, I can give you five places, and the contract was absolutely clear that 20 was a minimum that was required.

[00:27:46] Speaker 04:
Anything less than 20, unsatisfactory.

[00:27:49] Speaker 05:
OK.

[00:27:50] Speaker 05:
Going back to A2, second paragraph, it says, and this is the second to last sentence in

[00:28:00] Speaker 05:
the second paragraph of A2.

[00:28:03] Speaker 05:
The staff of 20 professionals is base minimum level of service, CH for additional information regarding optional increased level of service.

[00:28:15] Speaker 05:
Now that allowed the Navy to request an additional set of a couple of engineers of various types on top of that, but H8 and

[00:28:30] Speaker 05:
that we just discussed also says, if at any time there is a vacancy within the contractor's team in Peren, all 20 positions are not filled, the government will be entitled to immediate replacement within five days of loss of personnel or to a unit price decrease in payment in accordance with 52.246-4.

[00:28:53] Speaker 04:
Doesn't that at least arguably give the contractor

[00:29:00] Speaker 04:
the right to accept lower remuneration for fewer people?

[00:29:07] Speaker 04:
It says either or.

[00:29:08] Speaker 05:
It says until the qualified technical experts is in place.

[00:29:13] Speaker 05:
Sorry, I didn't finish that sentence.

[00:29:15] Speaker 05:
So they can keep it up to five days or they lose, but they are supposed to bring it up to 20, because that is the base requirement.

[00:29:26] Speaker 05:
And in fact, in this case, the contractor said

[00:29:29] Speaker 05:
he will have 20.

[00:29:31] Speaker 05:
ASG said that they will have 20.

[00:29:33] Speaker 05:
That's what they say in Attachment 2, which is part of the contract under Section J. So those are the three places.

[00:29:43] Speaker 04:
Is there any others that we should look at?

[00:29:47] Speaker 05:
I am not aware of any others.

[00:29:49] Speaker 05:
And those are the ones that we've been arguing for.

[00:29:57] Speaker 05:
Understandably, it is a complex contract, difficult to follow.

[00:30:04] Speaker 05:
But these are part of the contract.

[00:30:08] Speaker 04:
Normally, wouldn't the performance work schedule have something like a reference to the 20 people, which you would expect, since that seems to be the way we're looking at it now, at least the core requirement of the contract, and it's not there.

[00:30:27] Speaker 04:
I didn't see the 20 anywhere on the PWS.

[00:30:32] Speaker 05:
The Appendix 2999 doesn't have individuals named, but they have the qualifications identified.

[00:30:41] Speaker 04:
But it doesn't say you need to have 20, right?

[00:30:43] Speaker 05:
Does it?

[00:30:44] Speaker 05:
There's a list of 20.

[00:30:45] Speaker 05:
Yeah.

[00:30:47] Speaker 05:
And that's what they're, and the contract says that Appendix J, Appendix J says

[00:30:57] Speaker 05:
I mean, sorry, Section J says that Appendix 2 is part of the contract.

[00:31:03] Speaker 05:
So while it doesn't spell it out specifically, it does this attachment, Number 2, is incorporated as part of the contract.

[00:31:12] Speaker 05:
And it has 20 individuals identified with the type of expertise they have, DOD experience,

[00:31:19] Speaker 05:
bachelors and master's degrees and experience.

[00:31:26] Speaker 00:
Council, you're talking about Appendix Page 2999 as being part of the contract and it identifies the 20.

[00:31:32] Speaker 00:
I just want to make sure.

[00:31:33] Speaker 05:
I'm sorry, can you say that again?

[00:31:35] Speaker 00:
I think you're talking right now about Appendix Page 2999 as being part of the contract and that's what identifies the 20 people.

[00:31:42] Speaker 00:
Yes.

[00:31:43] Speaker 00:
Okay.

[00:31:43] Speaker 00:
So this is further support for the 20.

[00:31:45] Speaker 00:
Yes, it is.

[00:31:46] Speaker 00:
In a minimum.

[00:31:47] Speaker 05:
Yes, it is, Your Honor.

[00:31:48] Speaker 05:
And it is part of the contract under section J, attachment number two.

[00:31:53] Speaker 02:
I guess it's your view is that what the government bought through this contract was 20 experts that fit this specific profile on JA2999?

[00:32:10] Speaker 05:
Specific profile in the sense that

[00:32:13] Speaker 02:
Four architects with this level of experience, four mechanical engineers with this level of experience, and so on.

[00:32:22] Speaker 05:
Right.

[00:32:22] Speaker 05:
And 20 senior experts.

[00:32:24] Speaker 05:
I mean, they could have submitted some as journeymen and some as seniors, but if you look on page 2999, they're all senior experts.

[00:32:35] Speaker 05:
They all have more than 12 years of experience.

[00:32:39] Speaker 05:
So that gives them the senior status that the Navy was looking for.

[00:32:45] Speaker 05:
When you look at the master's and bachelor's degrees, they all have bachelor's degrees at least, and many of them have master's degrees.

[00:32:54] Speaker 05:
It suggests that they had specific people identify because they not only identify their years of experience, but they also identify where they went to school.

[00:33:07] Speaker 05:
Texas A&M University, that sort of thing.

[00:33:10] Speaker 05:
So the Navy thought they were getting specific individuals.

[00:33:14] Speaker 05:
They just were not named.

[00:33:16] Speaker 05:
As it turned out, they did not submit resumes of any individuals that specifically met these requirements.

[00:33:26] Speaker 02:
Is that why the resumes were being rejected?

[00:33:28] Speaker 02:
Because the resumes didn't fit within any of these 20 profiles listed on A2999?

[00:33:35] Speaker 05:
It wasn't so much the school where they went, but it was the combination of not all of them were senior status, not all of them had DOD experience, and not all of them had certificates or licenses.

[00:33:52] Speaker 05:
So where they didn't meet all those requirements, they were rejected.

[00:34:00] Speaker 02:
OK.

[00:34:00] Speaker 05:
If there are no further questions, thank you, Your Honor.

[00:34:04] Speaker 05:
We respectfully request that the court affirm the decision below.

[00:34:08] Speaker 02:
OK, very good.

[00:34:10] Speaker 02:
Let's give Mr. Demian three minutes.

[00:34:16] Speaker 01:
Thank you.

[00:34:17] Speaker 01:
Thank you, Your Honor.

[00:34:21] Speaker 01:
Additional section to consider in this contract analysis to Judge Cunningham's question about where do we look for the up to 20.

[00:34:29] Speaker 01:
Section B1 on 2961 of the appendix Which is what we get paid for doing our work And I mentioned there's a firm fixed price and the first claim on that line item It states that we will be paid for working per the PWS per the PWS which is the prior section I cited to section C and

[00:34:57] Speaker 01:
That's why the contractor is driven by that performance work statement for what must I do.

[00:35:03] Speaker 01:
And that performance work statement has an unlimited ask.

[00:35:08] Speaker 01:
And we heard a lot about Attachment 2, but it does not.

[00:35:12] Speaker 01:
Attachment 2 is a hypothetical group of character traits submitted for evaluation purposes and to establish criteria to achieve

[00:35:23] Speaker 01:
based on the contractor's implementation of his technical approach to satisfy the PWS.

[00:35:31] Speaker 00:
But you agree that Section J is part of the contract?

[00:35:34] Speaker 00:
Do you agree with that?

[00:35:35] Speaker 01:
Section J and its attachments are part of the contract.

[00:35:37] Speaker 01:
Yes.

[00:35:38] Speaker 01:
Yes.

[00:35:39] Speaker 01:
What's missing is any reference to Section J and language mandating the contractor do exactly what's in that Section J. So what we have at minimum.

[00:35:52] Speaker 01:
Wait.

[00:35:52] Speaker 04:
I didn't understand that.

[00:35:54] Speaker 04:
You say Section J is part of the contract, but what's missing is anything that requires the contract to do what Section J requires?

[00:36:02] Speaker 01:
Correct.

[00:36:02] Speaker 01:
It's just attached.

[00:36:03] Speaker 01:
So what does it mean?

[00:36:04] Speaker 01:
And I have a meaning for it, but it's different than the Navy's in the judgment.

[00:36:10] Speaker 00:
You say it's just attached.

[00:36:11] Speaker 00:
It's part of the contract.

[00:36:12] Speaker 00:
You just told me that, right?

[00:36:13] Speaker 00:
Correct, correct.

[00:36:14] Speaker 01:
And I don't mean it's... Wait, wait.

[00:36:15] Speaker 00:
Let me get my question out.

[00:36:16] Speaker 00:
I just want to hear you say it.

[00:36:17] Speaker 00:
Section J and its attachments are part of the contract, correct?

[00:36:20] Speaker 01:
Yes.

[00:36:21] Speaker 01:
Yes, yes, yes, yes.

[00:36:24] Speaker 01:
But you followed up by saying, but they're not required to comply with the requirements of Section J. Yes, they do not have to at all times provide exactly what's on Section J. There's no mandate.

[00:36:37] Speaker 01:
What the contractor has to provide is to deliver the services

[00:36:41] Speaker 01:
that are required to be performed to meet the objectives stated in that performance work statement.

[00:36:47] Speaker 01:
That's what has to happen.

[00:36:48] Speaker 01:
While performing those services, then the expectation is they will provide the experience that Judge Bryson mentioned for the lawyers and do it in a certain way.

[00:36:58] Speaker 01:
But the ultimate goal is the delivery of the services.

[00:37:01] Speaker 01:
And really briefly, because I have 20 seconds, H8, as to H8,

[00:37:08] Speaker 01:
It can only be read in concert with 52-246-4, which is the clause in the FAR, the contract clause in this contract that talks about inspecting services to determine whether they are deficient.

[00:37:24] Speaker 01:
Deficient services is the focus of that clause.

[00:37:28] Speaker 01:
And I agree with Judge Bryson's observation that that clause, to the extent we at some time had 20, have a vacancy, there's equivalent of an liquidated damages clause in there that handles this situation.

[00:37:41] Speaker 01:
But thank you for your consideration.

[00:37:44] Speaker 01:
I appreciate all the time you put into this.

[00:37:47] Speaker 02:
OK.

[00:37:47] Speaker 02:
Thank you very much.

[00:37:48] Speaker 02:
The case is submitted.