[00:00:00] Speaker 02: Our last case for argument today is 24-2054, Avant Assessment versus the United States. [00:00:08] Speaker 02: Please proceed. [00:00:09] Speaker 04: Thank you. [00:00:10] Speaker 04: Good morning, Your Honors. [00:00:11] Speaker 04: May it please the Court? [00:00:12] Speaker 04: This case is about the presentment clause of the Contract Disputes Act and whether or not the clause is a jurisdictional requirement or a non-jurisdictional claims processing rule. [00:00:24] Speaker 04: The Supreme Court in the last three years has... Can I just ask? [00:00:27] Speaker 00: Sure. [00:00:28] Speaker 00: Did the claims court say that even if it's not jurisdictional, it would reach the same result because it is a mandatory rule? [00:00:37] Speaker 04: It said that in DICTA, but there was no briefing on it. [00:00:40] Speaker 04: The government has not filed a 12b6 motion and there was no discussion of it in the briefing. [00:00:47] Speaker 04: So what might happen? [00:00:49] Speaker 04: if in fact this court were to rule that the presentment requirement is a non-jurisdictional processing rule and the matter were remanded back to the court, what I would expect would happen is the government would file a 12P6 motion and then we would brief it and there would be evidence and discussion on whether or not [00:01:09] Speaker 04: the forfeiture requirement from some of the prior decisions, most recently ECC in this court is in play. [00:01:17] Speaker 03: The problem here is not just the presentment, it's that you don't have a contracting officer's decision on this claim. [00:01:25] Speaker 03: We don't even need to get to the presentment stuff. [00:01:28] Speaker 03: You don't even meet 1491, much less the CDA. [00:01:31] Speaker 04: So we went under a deemed denied theory, which is permitted under the contract. [00:01:36] Speaker 03: Well, it's only deemed denied if you presented it to the contracting officer. [00:01:40] Speaker 03: You can't have a deemed denial of a claim that wasn't presented. [00:01:45] Speaker 03: And if you actually presented it, then we wouldn't have a presentment issue. [00:01:50] Speaker 03: So where in the record did you present this theory that the government [00:01:55] Speaker 04: improperly used these questions to the contracting office. [00:01:59] Speaker 04: So we have maintained, again, this was not briefed or discussed, we maintained, we were met with a motion to dismiss for claims preclusion in 2020 initially. [00:02:09] Speaker 04: Then that's when the court did uphold three of the counts on the UCC presentment issue. [00:02:17] Speaker 04: And then after that happened. [00:02:19] Speaker 04: What do you mean, upheld three of the counts? [00:02:21] Speaker 04: The court ruled against the government. [00:02:24] Speaker 04: on its claim preclusion argument in 2020 on the argument that the government used under the UCC. [00:02:34] Speaker 04: They used. [00:02:34] Speaker 03: Because those weren't part of the. [00:02:36] Speaker 03: They were not part of that. [00:02:36] Speaker 03: Submitted to the contracting officer. [00:02:38] Speaker 03: Right. [00:02:38] Speaker 03: Well, here's the problem. [00:02:40] Speaker 03: If that claim is what you're relying on for presenting it to the contracting officer, the court found everything in that claim was precluded. [00:02:49] Speaker 03: And the reason it didn't find this issue precluded was it wasn't in that claim. [00:02:54] Speaker 03: But if it wasn't presented in that claim, where was it presented to the contractor that resulted in a deemed denial? [00:03:02] Speaker 04: It was presented to the contracting officer in 2018 in the supplemental. [00:03:06] Speaker 03: Well, that makes no sense to me because if it was part of the claim anywhere, then the court would have found it precluded. [00:03:14] Speaker 03: The reason it found it not precluded is because it was a new set of facts. [00:03:20] Speaker 04: Yes, but so, [00:03:22] Speaker 04: What happened was in the course of discovery in the AS. [00:03:26] Speaker 03: I understand the factual background. [00:03:27] Speaker 03: You discovered this. [00:03:29] Speaker 03: The problem was you never went to the contracting officer and said, we deserve compensation not for your constructive acceptance, because that's all precluded, right? [00:03:40] Speaker 03: We deserve compensation for your use. [00:03:44] Speaker 03: Where did you make that argument? [00:03:46] Speaker 03: to a contracting officer that resulted in a deemed denial that would give the court jurisdiction? [00:03:51] Speaker 03: Yes. [00:03:52] Speaker 04: So, in 2018, after the issue arose in the ASVCA proceeding, we filed supplemental termination for convenient settlement proposals or in the alternative. [00:04:05] Speaker 03: Didn't that all form the basis for the claim preclusion holding? [00:04:09] Speaker 04: It did not. [00:04:10] Speaker 04: That's why there was the separate 2022 proceeding where the government after ruling against the government, after the court ruled against the government on the three UCC claims, and the court said that those weren't precluded, there was a subsequent, which is the [00:04:28] Speaker 04: why we're here today, a subsequent motion. [00:04:31] Speaker 03: So you're relying on something different now, I take it. [00:04:34] Speaker 03: Maybe it's in the record. [00:04:35] Speaker 03: Where is that 2018 proposal in the record and where does it say we deserve compensation after, was this after the board converted to convenience? [00:04:45] Speaker 04: This was after the board converted all three contracts for convenience. [00:04:49] Speaker 03: And where in that 2018 does it say we're entitled to compensation because you use these? [00:04:55] Speaker 04: So in 2019, and we reference- No, no, no. [00:04:57] Speaker 03: This is what you're relying on. [00:04:59] Speaker 03: You tell me where in that 2018 submission to the contracting officer that you say is the claim that you specifically said used, because that's what the court of federal claims said was a new set of facts that wasn't included. [00:05:13] Speaker 03: And I don't understand that you've ever submitted that to the contracting officer. [00:05:17] Speaker 04: So we submitted it in 2018, and in 2019, and this is- No, no, no, no. [00:05:22] Speaker 03: You submitted it in 2018. [00:05:24] Speaker 04: Where? [00:05:25] Speaker 03: Where is that submission? [00:05:26] Speaker 03: Is it in the record? [00:05:27] Speaker 04: It is not in the record because it was never discussed. [00:05:30] Speaker 04: It was never a point of discussion at the previous proceeding. [00:05:34] Speaker 04: There was never a 12-6 motion. [00:05:35] Speaker 03: You still have to show you submitted something to the contracting officer. [00:05:39] Speaker 04: If you look in the last page of our opening brief, there is a footnote that describes the situation and it references a 13 September 2019 decision that we deemed denied from. [00:05:54] Speaker 03: Wait, wait, please be clear about what you're saying. [00:05:56] Speaker 03: A 13 September 2019 decision that deemed denied, you don't have a deemed denial if it's a decision. [00:06:03] Speaker 03: You either have a decision or you have a deemed denial. [00:06:06] Speaker 03: What is this 13 September 2019 document? [00:06:08] Speaker 03: It's the response to the claim. [00:06:10] Speaker 04: They never actually phrased it or designated it as a contracting officer's final decision. [00:06:16] Speaker 03: And where in that does it say that you're not entitled to compensation for use? [00:06:23] Speaker 03: It says, [00:06:24] Speaker 04: As you are aware, excuse me, it is based, so this is the contracting officer statement. [00:06:31] Speaker 04: I have reviewed Avant's termination settlement proposal and in the alternative certified claim for contract number W9124N-10-C-0109. [00:06:41] Speaker 04: It is based on the incorrect assumption that the government has retained a copy of Avant's rejected submissions for its use. [00:06:50] Speaker 04: So we submitted [00:06:51] Speaker 04: The termination settlement proposal. [00:06:54] Speaker 03: That sounds to me like it's the retention argument that you made and that the court found precluded, not the actual use. [00:07:04] Speaker 03: Okay. [00:07:05] Speaker 03: I mean, look, if you actually had a contracting officer decision denying your claim under the UCC for usage of these questions, I would expect it to be in the record and we wouldn't be here. [00:07:21] Speaker 03: But I don't think you have it. [00:07:22] Speaker 03: You certainly haven't. [00:07:23] Speaker 03: We have the record. [00:07:24] Speaker 03: We have the record we're stuck with. [00:07:26] Speaker 03: That's on you. [00:07:27] Speaker 03: And if I don't see a contracting officer decision, I don't even understand why we need to get to the. [00:07:32] Speaker 04: So Judge Myers in twenty twenty four in dicta brought this issue up. [00:07:39] Speaker 04: It was there was never an allegation. [00:07:41] Speaker 04: It's never been discussed. [00:07:42] Speaker 03: The you brought it up because you're trying to get out of the claim preclusion and say this is not part of [00:07:50] Speaker 03: The portion that that we could have brought and the reason this is your hard point either you raise this previously and therefore it's claim precluded or you didn't raise it and there's no decision on it. [00:08:03] Speaker 03: Okay, I know you want to talk about the presentment stuff. [00:08:06] Speaker 03: This is my problem factually with this case is I don't even understand why we need to reach this. [00:08:10] Speaker 03: On the presentment stuff, why is ECC not a huge problem for you? [00:08:15] Speaker 03: It specifically goes through how to look at jurisdiction in these cases with after MOAC and Wilkins. [00:08:24] Speaker 03: And it says, very specifically, that not only the Tucker Act, but the CDA is jurisdictional. [00:08:30] Speaker 03: And it references the portions of the CDA we're talking about. [00:08:34] Speaker 03: The reason ECC found it not jurisdictional is because the sum certain was in a regulation, which by definition can't be passed by Congress. [00:08:42] Speaker 03: Do you agree, first of all, that the CDA is jurisdictional? [00:08:46] Speaker 04: Do I agree that the Contract Disputes Act has a jurisdictional requirement? [00:08:50] Speaker 04: Yes, in 7104. [00:08:53] Speaker 04: Right. [00:08:53] Speaker 03: And what is that? [00:08:55] Speaker 04: It says that the Court of Federal Claims shall have a jurisdiction to hear contract disputes from the Tucker Act 28-1491A. [00:09:02] Speaker 04: 28-1491A specifically reference. [00:09:06] Speaker 04: On the claim, right? [00:09:08] Speaker 04: Yes, on a claim. [00:09:09] Speaker 04: And it specifically references back to 7104. [00:09:11] Speaker 03: The claim is what's presented to the contracting officer. [00:09:14] Speaker 04: The claims processing rules are in 7103. [00:09:17] Speaker 04: They are not in the jurisdictional provision of 7104. [00:09:22] Speaker 04: I think there's references in ECC that suggest 7103 is also jurisdictional. [00:09:26] Speaker 04: I believe the Supreme Court's recent decisions, Riley versus Bondi, Wilkins versus US, MOAC versus Transform, all would not find that. [00:09:35] Speaker 03: If you're relying on MOAC and Wilkins, we've already addressed that in ECC, and we found that that wasn't enough to find 7103 non-jurisdictional. [00:09:46] Speaker 03: Okay. [00:09:47] Speaker 03: I mean, you're basically asking us to go on bond cards, too. [00:09:50] Speaker 04: I am not because the Barclay decision in 2006 of this court specifically states that if the consideration is... Yes, but you're relying on Moac and Wilkins and we've already looked at Moac and Wilkins in this context and found that it doesn't. [00:10:09] Speaker 04: It is jurisdictional, those provisions. [00:10:11] Speaker 04: Okay. [00:10:11] Speaker 04: I mean, look, I'm not going to argue. [00:10:13] Speaker 04: If you disagree with me, you disagree. [00:10:15] Speaker 03: Well, I'm just trying to figure out what you're asking us. [00:10:17] Speaker 03: You're asking us to ignore ECC, which is pretty clear, even if we don't follow Tulliver, which also is pretty clear. [00:10:26] Speaker 03: Yeah. [00:10:29] Speaker 03: And I'm also struggling with the factual predicate. [00:10:31] Speaker 03: I mean, you agree, don't you, that if you did not present this claim to the contracting officer, [00:10:38] Speaker 03: We don't even have to get into any of this because there's no deemed denial. [00:10:41] Speaker 04: I would agree, but we did present it to the contracting officer. [00:10:43] Speaker 04: Where in the record to the Court of Federal Claims did you tell him? [00:10:46] Speaker 04: It never arose. [00:10:47] Speaker 04: It sure it did. [00:10:49] Speaker 03: They filed a motion to dismiss for lack of jurisdiction because you didn't present it to the contracting officer. [00:10:54] Speaker 03: In response to that, did you identify a document? [00:10:58] Speaker 03: the that was a that's a factual dispute as to whether or not the submission and i'll be one motion can have jurisdictional factual disputes if they put that into play and said you didn't submit something isn't it your obligation to this week did they don't they don't they don't disagree that we submitted something they i think we do disagree that you submitted a claim [00:11:24] Speaker 03: improper use under the UCC. [00:11:27] Speaker 03: I think absolutely that's why they moved to dismiss. [00:11:30] Speaker 04: I think Mr. Rayl will agree with me that what was submitted stated that there was a UCC constructive acceptance violation. [00:11:40] Speaker 03: And that's what the Court of Federal Claims found was precluded. [00:11:44] Speaker 04: The Federal Court of Claims did not actually address that issue at all. [00:11:48] Speaker 04: They didn't look at it. [00:11:48] Speaker 04: In DICTA, he said, well, so, you know, it's a usage. [00:11:54] Speaker 00: The first ruling that partially granted the dismissal for claim preclusion but denied it with respect to these three UCC claims, how could that [00:12:09] Speaker 00: the saving of the three UCC claims be consistent with what you're now saying about what you submitted to the contracting officer? [00:12:19] Speaker 04: So the dispute has been over whether Avant sufficiently described how the government used the items, their test items that are created under a contract that are used for primarily for NSA and CIA [00:12:38] Speaker 04: language proficiency test that the government then gives a certain score to government officials needing foreign language proficiency. [00:12:47] Speaker 04: And it's for a compensation basis, promotion basis, and things like that. [00:12:52] Speaker 04: So what the government has argued for years and led ultimately to the decision was that in this 2018 submission that Avant didn't sufficiently describe how the government used. [00:13:05] Speaker 00: And can I just ask, what's the date specifically on the 2018? [00:13:08] Speaker 04: I think it was. [00:13:10] Speaker 00: Is it before or after the October 3rd, 2018 ASBC? [00:13:17] Speaker 04: So in April of 2018, we were in Monterey, California doing discovery and the government provided some additional discovery when we were on the DLA campus in Monterey. [00:13:29] Speaker 04: And in the information that we received, the government official who provided that to us said that they had [00:13:37] Speaker 04: had to make another copy of the language proficiency data because they had sent it out to a third party. [00:13:43] Speaker 04: That became an issue in the October hearing, in the ASVCA hearing in Eugene, Oregon in October of 2018 as to what was done with the information. [00:13:55] Speaker 04: Judge Misamil in the ASVCA ruled that because the UCC theory wasn't presented in the original [00:14:05] Speaker 04: in the original claims going back as early as 2013 that he didn't have jurisdiction to rule on that. [00:14:12] Speaker 04: That prompted our, you know, submission of a new, because at this point, we were still within the six-year statute of limitations on the ECC, on the UCC issue. [00:14:22] Speaker 04: So what we did is we provided and filed new supplemental termination settlement proposal claims during the alternative CDA claims. [00:14:31] Speaker 00: And that's what you now have been talking about as having [00:14:36] Speaker 00: presented this UCC issue. [00:14:38] Speaker 00: Yes, because Judge Myers was outside the claim preclusion because it actually post-dated the litigation before the board. [00:14:47] Speaker 03: Correct. [00:14:48] Speaker 03: What document was that? [00:14:49] Speaker 03: Was that the 2018 document you're talking about? [00:14:52] Speaker 04: The 2018 claim submission or the 2018 ASPCA administration? [00:14:56] Speaker 03: I don't know, it's your case. [00:14:57] Speaker 03: You just said you submitted a new supplemental document. [00:15:00] Speaker 04: Yes, that's what I just referenced that culminated in the [00:15:05] Speaker 04: October or the September of 2019 letter that didn't say it was a contracting officer's final decision that said that the government disagrees with our contention that if you think these 2018 submissions to the contracting officer were a presentment of the issue, then why didn't you argue that to the court of federal claims rather than this jurisdictional stuff? [00:15:32] Speaker 03: We wouldn't be talking about this if they were actually there. [00:15:37] Speaker 03: The record that comes to us is you didn't present it because otherwise you wouldn't be arguing this presentment issue. [00:15:43] Speaker 04: So we did present it and Judge Myers in his decision found, agreed with the government that what was presented there was not a sufficient explanation of how the [00:15:58] Speaker 04: data was used by the government. [00:16:00] Speaker 04: It failed the use plank. [00:16:01] Speaker 04: I don't think there's any argument. [00:16:04] Speaker 03: Not the argument on appeal, not this jurisdictional argument. [00:16:07] Speaker 03: If the argument is he has misread our submission and that we did present it, then that's a... We agree with that too. [00:16:18] Speaker 02: But that's not what you appealed. [00:16:21] Speaker 02: Mr. Herrick, how about we save a little bit of time for rebuttal? [00:16:24] Speaker 04: Sure. [00:16:35] Speaker 01: May it please the court? [00:16:36] Speaker 03: Do you know what this 2018 document he's talking about that he submitted to the contracting officer that resulted in a September 2019 letter? [00:16:44] Speaker 01: Sure. [00:16:45] Speaker 01: Well, it's June 2019 is actually the date of the submissions to the contracting officer. [00:16:52] Speaker 01: And it's there in Appendix 600 to 624, I believe. [00:16:57] Speaker 01: And so that's what the position that we took below was that that did not [00:17:06] Speaker 01: That didn't include any. [00:17:08] Speaker 02: It didn't adequately address use. [00:17:09] Speaker 01: Exactly. [00:17:10] Speaker 01: It didn't argue that the government used the rejected test materials. [00:17:16] Speaker 01: And that's what Judge Myers agreed with us in his 2024 decision. [00:17:20] Speaker 02: But we're now over here on the jurisdiction question. [00:17:23] Speaker 01: Exactly. [00:17:23] Speaker 01: And as Judge Hughes pointed out, what's been appealed is whether or not the claim's resentment requirement is jurisdictional. [00:17:29] Speaker 03: So in your view, they forfeited the argument that this actually was presented. [00:17:33] Speaker 03: Right. [00:17:34] Speaker 01: On appeal, yes. [00:17:34] Speaker 01: Exactly. [00:17:35] Speaker 03: Because Judge Myers found it wasn't presented in this document. [00:17:39] Speaker 03: Exactly. [00:17:39] Speaker 03: That's what we're stuck with. [00:17:41] Speaker 01: Right. [00:17:41] Speaker 01: And whether this is a mandatory claims processing rule or a jurisdictional prerequisite, the evants provide no reason to believe the analysis should be different. [00:17:49] Speaker 03: I mean, I'm a little baffled about why we're not even talking about the notion that if you don't present something for a contracting officer decision, [00:17:57] Speaker 03: There's no claim for the contracting officer to decide, which is all in 1491. [00:18:01] Speaker 03: Not even, we don't even get to the CDA. [00:18:05] Speaker 01: That's correct. [00:18:06] Speaker 01: And the paragon. [00:18:07] Speaker 03: You don't really argue it that way. [00:18:08] Speaker 03: You argued the much more complicated view of 1491 connects to 7104B1 connects to 7103A1. [00:18:18] Speaker 03: But 1491 says the Court of Federal Claims has jurisdiction on a decision by a contracting officer on a claim submitted. [00:18:27] Speaker 03: And if there's no claim submitted, then there's no jurisdiction. [00:18:31] Speaker 03: It doesn't say submitted, but on a claim, it has to be a claim. [00:18:36] Speaker 01: And if I, yeah, I apologize if we didn't argue it as best we could, but I think Paragrand supports exactly what you're saying, Your Honor. [00:18:45] Speaker 03: Do you think ECC already pretty much decides that these CDA provisions are already jurisdictional? [00:18:52] Speaker 03: It certainly suggests that 70104B1 is jurisdictional. [00:18:56] Speaker 01: Right, yes, and I don't think there's any dispute about that in on this appeal even yet you see he said the statute links the claim in 7103 to the jurisdictional hook of 7104 also said the CDA grants the boards and the Court of Federal Claims jurisdiction over claims. [00:19:12] Speaker 01: And it also said a claim that complies with the statutes requirements is a proper claim for jurisdictional purposes. [00:19:19] Speaker 01: irrespective of additional regulatory requirements, the Congress is not imbued with jurisdictional weight. [00:19:23] Speaker 02: And I assume that your argument is still that even if the Supreme Court has been moving towards holding these types of provisions not to be jurisdictional, we expressly addressed Wilkins, for example, in the ECC and concluded otherwise, whether we're right or wrong, our courts already made that decision. [00:19:44] Speaker 02: And so this panel can't really unravel it. [00:19:47] Speaker 01: Yes, that's correct, ECC or the other 40 years of decisions that we have on this. [00:19:56] Speaker 00: Can you, you do have a section in your brief, I think on the 12b6 ground here which the claims court cited and I think [00:20:12] Speaker 00: The response from Mr. Hare was he didn't file a 12b6 motion. [00:20:18] Speaker 00: There was no briefing on whether this could be granted under 12b6. [00:20:26] Speaker 00: And the absence of that briefing is not just a formal matter, because there are real non-trivial questions about forfeiture, [00:20:39] Speaker 00: the usual reason that it makes a difference, well, one of two usual reasons that it makes a difference, whether something is jurisdictional or just a mandatory rule. [00:20:50] Speaker 00: So, can you address that? [00:20:52] Speaker 01: Sure. [00:20:52] Speaker 01: I mean, yeah, the waiver, I mean, there is no potential forfeiture here by the government. [00:21:00] Speaker 01: We raised this issue before even filing an answer under Rule 12H2. [00:21:04] Speaker 01: of the the court of federal claims rules we the same as the civil rules right yeah we we could have we could have raised that in an answer in a motion for judgment pleadings at trial so. [00:21:16] Speaker 01: We raised this before even filing an answer. [00:21:19] Speaker 01: There's no question about forfeiture here. [00:21:21] Speaker 00: Would there have been a difference in the record that could be used for the decision, right? [00:21:28] Speaker 00: Ordinarily, 12B6 is just on the complaint and anything, you know, essentially incorporated in or attached to the complaint, but not extra record material, extra complaint materials, which are, [00:21:43] Speaker 00: consider can be considered for a 12B1 jurisdiction. [00:21:47] Speaker 01: I guess if it was motion for judgment on the pleadings, we would have our answer. [00:21:51] Speaker 01: But I mean, in reality, of course, at trial, there could be more whatever evidence is presented. [00:21:57] Speaker 01: But we actually moved under 12B1 here. [00:22:00] Speaker 01: So plaintiff was free to put in whatever evidence they wanted to demonstrate jurisdiction. [00:22:06] Speaker 01: And we had the claims themselves in the record. [00:22:11] Speaker 01: The claims didn't address the use, but what was listed as claims from June 2029, that was in the record already in the complaint. [00:22:18] Speaker 01: And whatever else Avant wanted to put in, it could have done so on that jurisdictional motion at that time, and it didn't. [00:22:27] Speaker 01: So we don't see how this issue would be differently analyzed if the claim presentment requirement was not jurisdictional, which it is. [00:22:38] Speaker 01: Unless the court has any further questions, we respectfully request that the court affirms the trial for its decision. [00:22:48] Speaker 02: Mr. Herr, I'll give you two minutes of rebuttal time. [00:22:50] Speaker 02: Okay. [00:22:52] Speaker 04: I mean, the main issue with what you were just discussing is if this were brought as a... So the lower court decided that we didn't present it, right? [00:23:02] Speaker 04: We disagree, but that's what the court decided. [00:23:04] Speaker 03: And you didn't appeal that? [00:23:07] Speaker 04: We have appeal. [00:23:12] Speaker 04: It's in the briefing. [00:23:13] Speaker 03: But putting that aside. [00:23:15] Speaker 03: But you didn't say that, I don't want to waste all your time on this, but there's not an argument in this brief that the court of federal claims incorrectly determined that you didn't present the claim. [00:23:25] Speaker 03: The argument is that the claim presentment requirement is not jurisdiction. [00:23:30] Speaker 04: So in our brief, we argue that we thought the government was wrong and if we succeeded [00:23:37] Speaker 04: on the remand on the issue of the jurisdictional issue that further evidence, if the government brought a 12b6 motion, further evidence and factual evidence in that proceeding would establish that we did in fact either present it or that the court was wrong. [00:23:58] Speaker 04: But the court didn't hold it. [00:24:00] Speaker 03: The court's holding was dicta. [00:24:03] Speaker 03: Well, it's either dict or it's an alternative grounds for affirmance, whichever, or alternative basis for its affirmance. [00:24:09] Speaker 03: Do you see any difference between the use of the word decision on a claim in 1491 and claim contractor may bring an action on a claim in 7104B1, which I think clearly we all agree on. [00:24:25] Speaker 03: Those are both jurisdictional and claim submitted in 7103. [00:24:30] Speaker 03: Aren't they all referring to the same thing? [00:24:33] Speaker 03: No, I think that the Supreme Court's several recent holdings, which require a clear... What's your claim in 1491 and 7104B1 that's not submitted? [00:24:46] Speaker 04: I think what the Supreme Court is saying that in 7104, if you really want to decide that a failure of presentment is a jurisdictional problem, in 7104, they should have said the Court of Federal Claims has jurisdiction. [00:25:01] Speaker 03: I'm trying to distinguish because you seem to be interpreting a submitted claim, that term, different from claim in 1491 and 7104. [00:25:13] Speaker 03: What's the difference? [00:25:14] Speaker 03: They're all claims. [00:25:15] Speaker 04: The claim submission. [00:25:18] Speaker 04: requirements are in 7103. [00:25:19] Speaker 04: There is nothing in 7104 that says anything about the processing rules of submitting claims. [00:25:26] Speaker 04: That's all in 7103. [00:25:27] Speaker 04: 7104 is purely jurisdictional, as is the statement in 281491A. [00:25:32] Speaker 03: And the Supreme Court's recent decisions seem to be... You don't think that the inherent definition of claim involves claiming something from the government, which requires [00:25:44] Speaker 03: submitting it. [00:25:45] Speaker 04: So there's a series of cases. [00:25:46] Speaker 03: I understand all the cases. [00:25:48] Speaker 03: I am asking you about the definition of the word claim as it's used in these three statutes. [00:25:53] Speaker 03: I don't understand your non-jurisdictional claims process at all. [00:25:57] Speaker 03: You're not answering my question. [00:25:58] Speaker 03: Okay. [00:25:58] Speaker 03: Does the word claim have the same meaning across all three statutes? [00:26:03] Speaker 03: Does the word claim have the same meaning? [00:26:05] Speaker 04: Yes. [00:26:06] Speaker 04: I would agree that the word claim is a claim means you're asking is as defined in the contract dispute [00:26:15] Speaker 02: Can I just ask you to spend 30 seconds, if you would, on how you think we can distinguish ECC or why you think the Supreme Court case law makes it such that we can [00:26:27] Speaker 02: disregard the prior ECC decision. [00:26:29] Speaker 04: So the Supreme Court has said nothing about drawing a distinction between a regulatory, something that exists only in the FAR or a regulation, versus something that exists in the statute itself. [00:26:44] Speaker 04: And in fact, the Supreme Court has issued a number of cases most recently in... Sorry, did you just... I thought there was a footnote in the court's opinion. [00:26:56] Speaker 04: In a bachelor. [00:26:57] Speaker 04: In Beschlur v. IRS 596 U.S. [00:27:01] Speaker 04: 199-2022 case, they specifically said that if you have a claims processing rule and a jurisdictional rule in the same section of the statute, that that doesn't matter. [00:27:14] Speaker 04: You still have to have that separate, clear congressional [00:27:17] Speaker 04: that Congress has to clearly state that something is jurisdictional or it's not. [00:27:22] Speaker 04: And this is my argument about 7104. [00:27:25] Speaker 04: I think if we wanted to have a situation where a claims processing rule was jurisdictional, they should have added in 7104 and referenced back to 7103A1's requirement for resentment and said, if you don't present this to the contracting officer, then we don't have jurisdiction. [00:27:43] Speaker 02: Okay. [00:27:44] Speaker 02: Thank you, Mr. Herr. [00:27:44] Speaker 02: I thank both counsel. [00:27:45] Speaker 02: The case is taken under submission.