[00:00:00] Speaker 04: Final case this morning is number 24, 1873 Wilk Creek Road versus United States. [00:00:08] Speaker 04: Mr. David, did you have a motion? [00:00:11] Speaker 03: Yes. [00:00:12] Speaker 03: If it please the court, I had previously, yesterday, filed a motion to add counsel for oral argument by partner Lou Rhodes. [00:00:22] Speaker 03: Louis has [00:00:24] Speaker 03: Wolf Creek has been his longtime client. [00:00:28] Speaker 03: He was instrumental in the claim. [00:00:30] Speaker 03: He was instrumental in the proceeding. [00:00:34] Speaker 04: He's not a member of the bar. [00:00:35] Speaker 03: Correct. [00:00:36] Speaker 03: He's not a member of the bar. [00:00:37] Speaker 03: And he is a member of the Virginia bar, the quarter for the claims bar down the hall, Eastern District. [00:00:44] Speaker 03: And I think if he was to make the argument today, he would be able to answer your questions much more easily. [00:00:51] Speaker 04: So you're moving to have him admitted ProHack VJ to make the argument? [00:00:56] Speaker 03: Yes, sir. [00:00:57] Speaker 03: Yes, please. [00:00:59] Speaker 03: And my understanding is... The motion is when? [00:01:01] Speaker 03: It's OK? [00:01:03] Speaker 03: Yeah. [00:01:03] Speaker 03: Thank you, sir. [00:01:05] Speaker 04: But in the future, you should get admitted to the bars. [00:01:09] Speaker 03: I understand properly, Scott. [00:01:13] Speaker 04: Okay, Mr. Rhodes. [00:01:15] Speaker 02: Good morning, Your Honor, and I appreciate the flexibility. [00:01:17] Speaker 02: 20 years is my first appellate court appearance, so we'll see if we do it again. [00:01:26] Speaker 02: May I please support? [00:01:27] Speaker 02: My name's Louis Rhodes. [00:01:28] Speaker 02: I represent Wolf Creek Railroad. [00:01:30] Speaker 02: We're here asking the court to reverse the Court of Federal Claims granting of the government's motion to dismiss both under 12B1 and 12B6. [00:01:39] Speaker 02: Our position is the court made multiple errors on both the subject matter jurisdiction as well as the substantive issue related to whether or not American Ordnance was acting as the Army's agent. [00:01:52] Speaker 02: first addressing the subject matter jurisdiction and whether or not the claim was submitted properly under the Contract Disputes Act. [00:02:04] Speaker 02: Our position is it is. [00:02:05] Speaker 00: Can I just ask? [00:02:06] Speaker 00: My understanding is that they are presented, at least, and may be concluded by the Court of Federal Claims, two subject matter issues. [00:02:16] Speaker 00: One is the submission of a claim, which may turn on what exactly submitted is. [00:02:21] Speaker 00: But independently, the privity requirement of the Contract Disputes Act is, at least in the government's view, and I think the Court of Federal Claims view, also a matter of subject matter of jurisdiction. [00:02:38] Speaker 02: I think that would kind of border between 12b1 and 12b6, Your Honor. [00:02:41] Speaker 00: Well, it might make a difference, because on 12b1, the trial court actually does get to do fact finding. [00:02:49] Speaker 00: 12b6, it does not. [00:02:52] Speaker 02: Yes, your honor, I I don't if we're gonna I think that's partial that's parsing into it the privity of contracts Yes, the court ruled on some words subject matter jurisdiction Now again, I would I would posit the court was wrong on both counts first on the claim delivery [00:03:17] Speaker 02: At some point in time, the army has to be culpable for not properly maintaining its systems, not properly maintaining an email systems. [00:03:26] Speaker 02: not rejecting emails that are sent to dead email boxes that are supposedly belonging to retired people. [00:03:33] Speaker 02: They sent me a return receipt, delivery receipt, that said, your email is successfully delivered, and it's actually included in the record. [00:03:43] Speaker 02: The delivery receipt says, if there is an error, we will notify you. [00:03:48] Speaker 02: Never receive such a notification. [00:03:50] Speaker 02: I mean, it's pretty clear that the claim ended up into the Army's email server [00:03:56] Speaker 02: control. [00:03:57] Speaker 02: While neither this court or the Court of Federal Claims has addressed this issue related to a claim submission, the courts have been very clear on how it is in a very analogous proposal submission. [00:04:09] Speaker 02: And the case law is clear that if a proposal is submitted electronically as the world works in the 2020s, [00:04:16] Speaker 02: Once it hits the government server. [00:04:19] Speaker 02: It's under the government's control. [00:04:21] Speaker 02: It's delivered to the government The for the army does to say that the statute doesn't say delivered to the government. [00:04:30] Speaker 00: It says Submitted to a particular person namely the contracting officer. [00:04:36] Speaker 00: Yes, your honor is there a [00:04:41] Speaker 00: a practice, a rule. [00:04:44] Speaker 00: Contracts go on for extended periods in general. [00:04:48] Speaker 00: Contracting officers can be replaced. [00:04:52] Speaker 00: Is there some set of requirements or practices whereby one side or another or both notify each other when there is a change of this person who plays this incredibly important role, the contracting officer? [00:05:11] Speaker 02: Generally, there is, Your Honor. [00:05:13] Speaker 02: This is not a normal situation, which you hit on earlier with the privity of contract question. [00:05:20] Speaker 02: If a contracting officer is going to change, that's usually notified to the prime contractor. [00:05:26] Speaker 02: It doesn't always flow down to the subcontractors or anyone else affiliated. [00:05:31] Speaker 02: There's usually a pattern of a communication to, there's usually a modification or some other letter or communication to the contractor saying, hey, I'm your new contracting officer. [00:05:42] Speaker 00: That sounds like it might be a reason to be quite strict about finding that somebody other than one of the two counterparties to a particular contract turns out to be a contract party. [00:05:59] Speaker 02: Well, that's the second part of the appraisal, Your Honor, as we get to the issue about whether or not there's an agency theory to hold the government and the Army accountable here. [00:06:09] Speaker 04: Let's suppose that there [00:06:11] Speaker 04: is an agency theory, but how is it that the agent here supposedly had the authority to agree to a provision that would make the government liable in terms of a termination? [00:06:26] Speaker 04: The basic prime contractor or subcontractor [00:06:35] Speaker 04: relationship requires that there be authority to enter into such a provision and it doesn't seem to me that the authority exists indeed the agreement between the United States and what you call the purchasing agent says you can't do that. [00:06:55] Speaker 02: Well the basic ordering agreement has [00:06:58] Speaker 02: ample provisions about how a termination would work. [00:07:02] Speaker 04: The Basic Ordering Agreement. [00:07:08] Speaker 02: That was in the response to the request for use of facilities, Your Honor, where the guidance from the Army to American Ordnance was to, hey, when you put the Tenant Use Agreement together, there's three different contracts here. [00:07:21] Speaker 02: There's the Basic Ordering Agreement, which is between American Ordnance and the Army. [00:07:27] Speaker 04: No, I'm referring to the provision on 308, paragraph 10 here. [00:07:34] Speaker 04: And that's the other. [00:07:35] Speaker 04: This is a letter from the Department of the Army to Gibson at American Ordnance and says specifically that [00:07:52] Speaker 04: Such cancellation shall be at no cost to the government. [00:07:57] Speaker 04: It talks about the cancellation. [00:07:58] Speaker 04: So how does this supposed purchasing agent have authority to enter into a provision that creates government liability? [00:08:07] Speaker 02: Well, the purchasing agent then drafted the Tenant Use Agreement. [00:08:12] Speaker 02: The Tenant Use Agreement was approved by the Army. [00:08:15] Speaker 02: intend to use it really does not have that language on there so the contracting officer who said i a m also doesn't say the government is liable what sites before part forty nine and it didn't which is the entire termination one of the response cited or forty nine suggest the government [00:08:31] Speaker 02: Because FAR Part 49 is the entire clause that covers how terminations for convenience work. [00:08:37] Speaker 04: It also deals with subcontractors. [00:08:41] Speaker 04: It includes lots of different things. [00:08:42] Speaker 02: Well, it says any termination would be subject to FAR Part 49. [00:08:47] Speaker 02: That clause in the Tenant Use Agreement specifically references the termination provisions. [00:08:53] Speaker 02: a far apart 49, your honor. [00:08:55] Speaker 04: So yes, 49, why 49 covers other things, the language in the- So just the mere reference to part 49 suggests that the government was supposed to be liable in the event of a termination? [00:09:06] Speaker 02: That's the standard practice in government contracting, Your Honor. [00:09:09] Speaker 02: If the government has a independent right as a sovereign to terminate contracts, they're the only party that has an unfettered right to terminate contracts for convenience. [00:09:19] Speaker 02: And when they terminate a contract for convenience, there's a statute that covers how that's supposed to work. [00:09:24] Speaker 02: So the government, so we have a situation here where the army. [00:09:28] Speaker 04: Well, I'm not sure you're answering my question. [00:09:29] Speaker 04: How is it that the agreements reference to Part 49 says the government will be liable in the event of a termination [00:09:36] Speaker 04: when the government told the prime contractor, you can't make this law. [00:09:41] Speaker 02: Well, the clear fact, Your Honor, is the American Ordnance is the one who created this mess and made an error. [00:09:47] Speaker 02: The American Ordnance contracting officer was told to do something. [00:09:50] Speaker 02: He failed to do it. [00:09:51] Speaker 02: But when he failed to do it in the lease agreement and the tenant use agreement, the Army's contracting officer reviewed and approved the tenant use agreement without the language [00:10:03] Speaker 02: saying you're not holding the government liable. [00:10:06] Speaker 02: The Tenant Use Agreement was approved by the very person who said, hey, put this clause in there. [00:10:11] Speaker 02: The clause is not in there. [00:10:12] Speaker 02: And then the Army Contracting Officer reviewed the Tenant Use Agreement and approved it without that clause. [00:10:18] Speaker 02: I mean, there were errors on, there were multiple errors on the side of the government. [00:10:23] Speaker 02: And my client, our client, Wolf Creek Railroad, does not see behind the curtain what's going on here. [00:10:32] Speaker 02: My client was told, here's a 25-year lease. [00:10:35] Speaker 02: While they were negotiating the terms of the 25-year lease, the Army knew they were already in discussions to offload the Mill App facility to the state of Tennessee. [00:10:46] Speaker 02: No one told my client that. [00:10:48] Speaker 02: The Army dictates the terms of the lease. [00:10:50] Speaker 02: The Army approves the lease. [00:10:52] Speaker 02: Then the Army directs American Ordinance to terminate the lease, and the Army wants to step back and put its hands up and say, I had no role in any of this. [00:11:01] Speaker 02: American Ordinance did not exercise any independent decision-making in this whole process. [00:11:08] Speaker 02: They had to get the Army's approval every step of the way. [00:11:11] Speaker 02: And the Army was the one who dictated the termination. [00:11:13] Speaker 02: It wasn't American Ordinance. [00:11:15] Speaker 02: It was the Army who sent a letter and said, hey, you need to terminate this. [00:11:18] Speaker 04: Would you just like to tell that the government approved the tenant use agreement? [00:11:21] Speaker 04: Excuse me, Your Honor. [00:11:22] Speaker 04: Where does the record show that the government approved the tenant use agreement? [00:11:27] Speaker 02: I don't know off the top of my head. [00:11:29] Speaker 02: I have to go back and check through my briefs. [00:11:31] Speaker 02: I know we cited in our brief and in the complaint, because the Army, after the tenant use agreement was drafted, was sent to the contracting officer for approval. [00:11:41] Speaker 02: And then it was sent back to, then it was submitted to Wolf Creek for review and signature. [00:11:50] Speaker 04: You're at all time. [00:11:52] Speaker 04: Do you want to save it? [00:11:54] Speaker 02: Yes, your honor. [00:12:03] Speaker 04: Mr. Griffin. [00:12:05] Speaker 01: May it please the court, Sean Griffin for the United States. [00:12:09] Speaker 01: I'm happy to get begin with questions or I can explain the government's position with respect to the certified claim issue and the privity of contract issue The court of federal claims decision should be affirmed because it correctly decided that Wolf Creek failed to establish that it submitted a certified claim to the contracting officer as required by the contract disputes act and [00:12:31] Speaker 01: And as an independent basis requiring dismissal, the court correctly decided that Wolf Creek Railroad could not establish privity of contract between it and the government. [00:12:40] Speaker 00: Can I ask, if what it has done to date does not constitute submission of a claim, there's still time for it to submit one, right? [00:12:52] Speaker 00: It's less than six years. [00:12:53] Speaker 01: I believe so, Your Honor. [00:12:54] Speaker 01: I don't believe the statute of limitations would have run. [00:12:57] Speaker 01: And candidly, while the case was pending before the Court of Federal Claims, Wolf Creek did submit a new certified claim to the contracting officer. [00:13:09] Speaker 01: That claim is void because [00:13:12] Speaker 01: It's an obligation is divested of authority to decide the claim while it's in litigation Presumably once the case so on that on this particular issue, so Submitting the claim does not sound like the claim is delivered Well, the Contract Disputes Act says that the contractor shall submit the claim to the contracting officer [00:13:36] Speaker 01: the court has held that the receipt is what triggers the contracting officer's duty to act. [00:13:42] Speaker 00: Right. [00:13:43] Speaker 00: And on interest also. [00:13:45] Speaker 00: And that's perfectly natural. [00:13:47] Speaker 00: Obviously, you don't charge the government with a duty until the government actually knows. [00:13:52] Speaker 00: But that doesn't seem to me to imply that submitting [00:13:59] Speaker 00: to a person, that submitting is the same thing as receipt by the relevant person. [00:14:07] Speaker 01: No, there is a distinction in the language. [00:14:10] Speaker 01: But the application of two cases of this court do put emphasis on the contracting officer's receipt. [00:14:18] Speaker 00: For those purposes, for purposes of essentially charging the recipient with action [00:14:28] Speaker 00: payment of money, basically. [00:14:30] Speaker 01: Correct. [00:14:31] Speaker 01: Though, in this case, Wolf Creek Railroad did not submit the claim to the contracting officer. [00:14:37] Speaker 01: It submitted its claim to somebody who it believed to have been the contracting officer, but who had been retired for almost three years, was no longer working for the federal government. [00:14:46] Speaker 01: Then it tried to submit its claim again to a different person within the army who was not the contracting officer. [00:14:52] Speaker 01: It apparently erred in its email submission so that the email was not delivered to that person's email address had they properly. [00:15:03] Speaker 00: Is that the one it erred because it used the email address that you gave it and that was wrong? [00:15:09] Speaker 00: There was a missing period. [00:15:11] Speaker 00: Missing period? [00:15:12] Speaker 00: Correct. [00:15:12] Speaker 00: They didn't make that up, though. [00:15:14] Speaker 00: I think they got it from you. [00:15:15] Speaker 00: Is that wrong? [00:15:16] Speaker 01: I don't recall, though there is another problem in that [00:15:21] Speaker 01: Mr. DeAnda, who was the second intended recipient, who had been the contracting officer at least a year prior to their submission. [00:15:30] Speaker 01: The Army underwent a system-wide email migration effort. [00:15:36] Speaker 01: So even that email wasn't current. [00:15:38] Speaker 01: And this problem presents itself because Wolf Creek Railroad was a subcontractor and was not in normal correspondence with a contracting officer. [00:15:51] Speaker 01: like a prime contractor would be. [00:15:53] Speaker 01: So the claim certification process was hampered because of Wolf Creek Railroad's position as a tenant or a subcontractor under the facility contractor American Order. [00:16:09] Speaker 01: So there are several layers of complications. [00:16:12] Speaker 01: But in any event, the parties don't dispute that the claim was never submitted to the cognizant contracting officer. [00:16:19] Speaker 01: And there are affidavits that the court considered from the respective contracting officers saying that they never received the claim. [00:16:30] Speaker 01: the claim ultimately arrived at the Cognizant Contracting Officer's email box or in his office, that could have presented a different story. [00:16:43] Speaker 01: This court has held that where [00:16:45] Speaker 01: a contracting officer's representative, for example, actually forwards the claim to the contracting officer, then the submission of the certified claim is valid. [00:16:57] Speaker 01: So it's not so particular that they had to get the email right and make it there. [00:17:02] Speaker 01: But it does need to make it there. [00:17:04] Speaker 01: And the reason for that is fairly obvious. [00:17:06] Speaker 01: If the contracting officer does not receive the claim, [00:17:10] Speaker 01: the Army or any agency would not know that it has to respond to these before the statutes that require the Army's response in a deemed denial or in an actual contracting office final decision, those provisions wouldn't be triggered. [00:17:30] Speaker 01: And so any agency could be hauled into court without the opportunity to respond to a certified claim. [00:17:37] Speaker 04: Can we talk about the merits here? [00:17:39] Speaker 04: If you look at this tenant, it used to be on 312. [00:17:43] Speaker 04: American ordinance is described as the owner's representative and the owner is the army. [00:17:49] Speaker 04: So it sounds as though they're entering, at least you could construe this, as they're entering into the Supreme on behalf of the army. [00:18:00] Speaker 04: The problem that I see is even if you accept that, they were not supposed to enter into an agreement which made the government liable on termination. [00:18:10] Speaker 04: And they took it over that by saying, oh well, the government approved the [00:18:15] Speaker 04: Is that true that the government approved the tenant use agreement? [00:18:19] Speaker 01: No, and I wanted to get to that, Your Honor. [00:18:21] Speaker 01: I don't have anything of the record establishing that the Army approved the tenant use agreement itself. [00:18:31] Speaker 01: There was the authority to enter into the tenant use agreements, but my understanding is [00:18:36] Speaker 01: and view of the record is that there's nothing that shows that the Army reviewed the tenant use of agreements individually. [00:18:45] Speaker 01: Those were contract agreements between AO and its tenants. [00:18:51] Speaker 00: So to the extent that there was a factual finding or factual proceeding, as there can be under 12b1, was that a point that you disputed? [00:19:05] Speaker 01: I don't recall that being a point. [00:19:10] Speaker 00: Does the complaint say the army approved this? [00:19:17] Speaker 01: I would have to go back and specifically look at the complaint. [00:19:20] Speaker 01: The way that the court considered the issue was to go through the agency theory test under Johnson controls and evaluated the merits via the law of this court, looking through each element of the test, and found that even if [00:19:42] Speaker 01: Wolf Creek had made some allegations outside of that. [00:19:46] Speaker 01: The Johnson Controls Test requires clear contractual consent. [00:19:50] Speaker 01: So it's dispositive to look at the contract between the government and the prime contractor and separately [00:19:59] Speaker 01: the prime contractor and the subcontractor to determine whether there is an agency relationship. [00:20:06] Speaker 01: Here, there is nothing in those contracts that would establish one under the test announcing Johnson Controls. [00:20:17] Speaker 01: If there are no other questions on that, I'll turn finally to Wolf Creek's final point, which is [00:20:26] Speaker 01: To request the Johnson controls and the agency theory tests be expanded Tellingly Wolf Creek requested the Johnson controls test be expanded because apparently it does not believe that the tests announced under Johnson controls would allow it to prevail and [00:20:48] Speaker 01: But Johnson controls established an intentionally narrow test because the court recognized that waivers of sovereign immunity are to be strictly construed. [00:20:59] Speaker 01: That's not always true, is it? [00:21:01] Speaker 00: that waivers of sovereign immunity are strictly construed. [00:21:06] Speaker 00: And I'm thinking, for example, of the Supreme Court's Richland case, which seems to treat that idea as a tiebreaker after all other interpretive tools are used, and you still can't decide it. [00:21:23] Speaker 00: I know that we've said that a lot, and the Supreme Court has doubtless said it as well. [00:21:28] Speaker 00: It's not clear to me that that [00:21:32] Speaker 00: How strong an idea that is anymore. [00:21:34] Speaker 01: Well, it's not just Johnson Controls, Your Honor. [00:21:38] Speaker 01: I can go through the many cases within the courts. [00:21:45] Speaker 01: And we do so in our briefs, I believe, at page 30 and 31. [00:21:49] Speaker 01: Going through the court's construction of the claim as a jurisdictional requirement, and that being one way to enter the court, and should the court [00:22:04] Speaker 01: expand that test. [00:22:05] Speaker 00: Of a claim or of privity? [00:22:07] Speaker 00: Which are we? [00:22:07] Speaker 01: Well, so using the jurisdictional bar to highlight the government's position here. [00:22:16] Speaker 01: So with respect to privity, the government only was dealing with AO. [00:22:25] Speaker 01: It had no contractual relationship with Wolf Creek Railroad. [00:22:29] Speaker 01: And so to expand [00:22:32] Speaker 01: a subcontractor's ability to bring direct claims would dramatically expand the government's exposure, especially where here the government took pains to create a buffer with a prime contractor. [00:22:48] Speaker 00: Do I remember right that in your brief you maybe have a footnote that says we don't really think that this whole subcontractor characterization is right, but the other side uses it so we will too and therefore invoke the very strict standard for subcontractors. [00:23:08] Speaker 00: What if in fact this is not really a subcontractor relationship at all? [00:23:15] Speaker 01: We applied that because it would actually be a less strict standard, I would expect, because the subcontractor nature means that the government is getting something that the subcontractor is providing, furthering the project that the prime contractor is providing. [00:23:33] Speaker 01: Here, AO is the facility contractor. [00:23:37] Speaker 01: And Wolf Creek is simply a tenant. [00:23:39] Speaker 01: There is even less of a relationship between the services that Wolf Creek is providing to AO than what a normal subcontractor would be to the government. [00:23:48] Speaker 01: So that would be charitable, though obviously the subcontractor relationship is the closest one that applies for the purposes of the legal framework that would foreclose their ability to recover against the government. [00:24:05] Speaker 01: And finally, I want to turn to a point that my friend raised about AO being the party that made a mess of these things and that created the circumstances as to why we're here. [00:24:21] Speaker 01: Normally, subcontractors can pursue claims against the government via pass-through claims. [00:24:27] Speaker 01: Those typically require that the government is liable to the prime contractor. [00:24:36] Speaker 01: Here, the agreement that Wolf Creek entered into disclaims any liability for the prime contractor. [00:24:44] Speaker 01: Therefore, there appears to be no avenue to recovery because of the agreement that Wolf Creek entered. [00:24:50] Speaker 01: And this brings me back. [00:24:51] Speaker 04: When you say liability for the prime contractor, you mean the Army? [00:24:55] Speaker 04: No, to AO. [00:24:56] Speaker 04: The Tenant Use Agreement. [00:24:58] Speaker 04: Yeah, OK. [00:24:59] Speaker 04: But I guess to try to describe what they're arguing, they say the Tenant Use Agreement says that AO is acting as the Army's representative. [00:25:10] Speaker 04: And they say that it says that in the event of a termination, that AO is not liable. [00:25:17] Speaker 04: But it doesn't say the government's not liable. [00:25:19] Speaker 04: And they infer that the government is liable by the incorporation of Part 49. [00:25:25] Speaker 04: in the agreement. [00:25:26] Speaker 04: So what's your response to that? [00:25:29] Speaker 01: Two responses, Your Honor. [00:25:31] Speaker 01: First is that AO does not generally have the authority to bind the government to more expansive things than the government agents who have actual authority can. [00:25:42] Speaker 01: AO did not have the authority to hold itself out as the agent, regardless of what any tenants were led to believe by AO. [00:25:50] Speaker 01: And and so there's no authority on a prime contractor to obligate the government And then the second answer to your question turns back to the Johnson controls test which does establish a limited way where a Subcontractor can establish an agency theory here [00:26:11] Speaker 01: Wolf Creek can't establish any of the elements of the Johnson Controls test. [00:26:19] Speaker 01: The prime contractor was not acting as a purchasing agent for the government. [00:26:23] Speaker 01: The agency relationship between the government and the prime contractor was not established by clear contractual consent, and the contract did not state that the government would be directly liable to the vendor for a purchase price. [00:26:35] Speaker 01: I mean, none of the elements apply. [00:26:37] Speaker 04: What's the purpose of including part 49 [00:26:41] Speaker 04: in the agreement between AO and Wolf Creek? [00:26:45] Speaker 01: That is a provision between two private parties. [00:26:51] Speaker 01: And I hesitate to speculate on what AO's intention or what Wolf Creek's intention was in the tenant use agreement. [00:27:01] Speaker 01: The court correctly concluded that FAR Part 49 didn't create any government obligation or agency relationship in any event. [00:27:11] Speaker 01: So the court was correct on that point. [00:27:15] Speaker 01: And there's nothing within 49 that requires the government to be liable for termination. [00:27:20] Speaker 01: Well, 49 does talk about pass-through plans, right? [00:27:24] Speaker 04: I don't believe so, no. [00:27:26] Speaker 04: You don't think so? [00:27:28] Speaker 04: I can't. [00:27:29] Speaker 04: I think it does. [00:27:30] Speaker 04: But I think it talks about subcontractor claims in the event of a termination. [00:27:37] Speaker 04: I'm not saying that what I'm suggesting to you is that maybe the inclusion of Part 49 is for that purpose. [00:27:44] Speaker 04: is it's dealing with subcontractor claims in the event of a termination. [00:27:49] Speaker 01: I understand your answer. [00:27:50] Speaker 01: Yes. [00:27:51] Speaker 01: I only mean to say I don't think FAR Part 49 provides the kind of relief that Wolf Creek tends to suggest that there creates an agency relationship or that they can attempt a pass-through claim when they haven't done so. [00:28:06] Speaker 01: And that's not the posture of the case. [00:28:08] Speaker 01: They attempted to file claims with the government directly. [00:28:15] Speaker 01: There is a heavy uphill burden for Wolf Creek. [00:28:20] Speaker 01: The Court of Federal Claims ruled on both 12b1 and 12b6 on both the privity of contract and claim certification issues, ruling that the court did not have jurisdiction over those claims and that Wolf Creek had failed to state a claim. [00:28:39] Speaker 01: I think we're out of time. [00:28:41] Speaker 04: Thank you. [00:28:41] Speaker 04: Thank you. [00:28:44] Speaker 04: Mr. Rollins. [00:28:52] Speaker 02: Gentlemen, there was one significant error that the court made under its analysis under Johnson Controls, and it said that the [00:29:01] Speaker 02: AO was not procuring any services for the Army, and that's completely wrong. [00:29:08] Speaker 02: Because when you go and read the Base Ordering Agreement, you read the Tenant Use Agreement, Wolf Creek Railroad was required to provide railhead services and locomotive repair services to the Army under the Tenant Use Agreement. [00:29:22] Speaker 02: So part of the Tenant Use Agreement was providing direct services in support of the Army. [00:29:28] Speaker 02: So the AO was hiring Wolf Creek Railroad to work directly on the Army's locomotives through the Tenant Use Agreement. [00:29:37] Speaker 02: It was not a monetary remuneration, but part of the authority for Wolf Creek to enter into the TUA was that it had to provide certain services directly in support of the Army [00:29:51] Speaker 02: for the Army. [00:29:52] Speaker 02: That didn't go through American Ordinance. [00:29:54] Speaker 02: This was not like a prime sub relationship where Wolf Creek was working underneath the direction of American Ordinance. [00:30:01] Speaker 02: It was providing these services directly to the Army. [00:30:04] Speaker 02: It's in the agreements. [00:30:06] Speaker 02: So it's demonstratively incorrect to say that American Ordinance was not purchasing anything on behalf of the Army. [00:30:14] Speaker 02: They did directly. [00:30:17] Speaker 02: So I believe Johnson Controls applies, and I believe it applies because AO was absolutely buying services for the Army that Wolf Creek was providing directly to the Army. [00:30:28] Speaker 02: To the extent that I'm asking the court to expand Johnson Controls, Johnson Controls is a 40-some-year-old case. [00:30:37] Speaker 02: The way government contracting works in 2025 is substantially different than the way government contracting worked in 1982. [00:30:44] Speaker 02: The growth of the government-controlled contractor, the GOCOs as they're called, which is referenced 20-some times in the Basing Order of Agreement, has exploded in the last four years. [00:30:56] Speaker 02: And I cite the numbers from different [00:30:58] Speaker 02: Different agencies in our briefs. [00:31:00] Speaker 02: There's some 40 or 50 Relationships out there just like this relationship at Milan where the government is hiring someone else to run its facility Which is outside the which is outside of a procuring agency like in the Johnson Controls case But I mean to borrow from the old adage if it looks like an agent [00:31:21] Speaker 02: acts like an agent and smells like an agent, it's an agent. [00:31:24] Speaker 02: And if everyone takes a step back and says AO was running the facility for the Army, AO was purchasing services for the Army, AO was acting at the Army's direction, AO had no independent approval on this whole process. [00:31:40] Speaker 02: I mean, that's the very definition of being someone's agent when they're telling you what to do. [00:31:46] Speaker 00: Can I remind me, [00:31:48] Speaker 00: The relationship between the army and AO, which way did money flow? [00:31:54] Speaker 02: Your honor, I'm not even sure. [00:31:56] Speaker 02: I didn't see the basic ordering agreement until it was attached to the motion to dismiss. [00:32:01] Speaker 02: I don't know if the Army was paying AO to run the facility, or if much like AO was then receiving money from other people and managing the facility. [00:32:12] Speaker 02: I think it might have been a combination of both. [00:32:15] Speaker 02: I'm not that greatly versed on the base ordering agreement. [00:32:22] Speaker 02: The issue on the service of the claim, I mean the Army's position is we're gonna hide the ball and not give you the information you need and when you can't get the document to the right person, that's your fault. [00:32:35] Speaker 02: I had letters with contracting officers' names signed by contracting officers with their emails. [00:32:41] Speaker 02: I sent it to both gentlemen. [00:32:43] Speaker 02: I sent it via email twice, and if I had a bad email address, why did I get a successful delivery seat from the Army's server? [00:32:53] Speaker 02: Not only did I get a successful delivery receipt from the Army's server, the delivery was to which email? [00:33:01] Speaker 02: That was the second one to Mr. DeAnda. [00:33:03] Speaker 02: Didn't the second one occur after the filing of the suit? [00:33:06] Speaker 02: No, that was the third that was sent via FedEx, Your Honor. [00:33:10] Speaker 02: And that's the other point. [00:33:11] Speaker 02: So this case was filed with a complaint. [00:33:15] Speaker 02: The Army or the government asked for an extension to file its motion. [00:33:18] Speaker 02: It filed its initial motion and it argued that the claim wasn't certified. [00:33:22] Speaker 02: There was no mention in the Army's original motion dismissed about the lack of service. [00:33:27] Speaker 02: And then when I filed my opposition to their motion and pointed out that, yes, the claim was certified, I just failed to attach it with the complaint. [00:33:36] Speaker 02: Then in the reply brief for the first time, six months after this case started, we get the, oh, you didn't successfully deliver the case. [00:33:45] Speaker 04: I mean, there was a- I think we're out of time. [00:33:46] Speaker 02: OK. [00:33:47] Speaker 04: Thank you. [00:33:47] Speaker 04: Thank you, Your Honor. [00:33:49] Speaker 04: Thank both counsels. [00:33:49] Speaker 04: The case is submitted. [00:33:50] Speaker 04: That concludes our session for the stand.