[00:00:00] Speaker 02:
Our final case for argument today is 25-1383, Boland v. the Secretary of Army. Please proceed.

[00:00:10] Speaker 00:
Thank you, Your Honor. May it please the Court, Daniel 1 III from Phelps Dunbar, New Orleans, for the appellant David Boland, Incorporated.

[00:00:18] Speaker 00:
It occurred to me in preparing for this this morning that this is a case that is all about quantum. We know that this appeal to the BCA was divided into...

[00:00:29] Speaker 00:
entitlement in quantum, but the appeal itself was based upon a disagreement over quantum. The contracting officer entered a final decision of $1.7 million on the very claims that are at issue in this appeal, and the client said, well, that's not good enough. We want to proceed to appeal to the BCA, and we did for the full amount of the claim.

[00:00:52] Speaker 00:
And we understand that when you get to the Board of Contract Appeals, there's low deference given to the contracting officer's decision here to award $1.7 million on the very claim and that you have to prove up entitlement again. So respectfully, I think this case comes down to a single straightforward question.

[00:01:09] Speaker 00:
When the government's own witness in the entitlement case, the only Army Corps of Engineers employee to testify at all at the trial tells that board under oath that the contractor is owed money for the very delays at issue.

[00:01:25] Speaker 00:
He admits entitlement, and then there's no redirect.

[00:01:30] Speaker 00:
What more is a contractor supposed to do to prove entitlement? We respectfully say there's nothing more to do. Entitlement was proven, and the board simply refused to acknowledge it.

[00:01:40] Speaker 02:
Well, he has to meet the contractual agreement. I mean, does he not? I mean, it's not just based on what This guy says in his testimony, obviously, there's an analysis as to whether or not money is owed.

[00:01:55] Speaker 00:
There is. And this gentleman, this is Mr. Bowman, was the construction manager for the Army Corps of Engineers. He is the number one person in terms of knowledge of the claim. He analyzes and understands the contractor. and was involved in preparing the IGEs leading up to the contracting officer's final decision.

[00:02:16] Speaker 03:
Mr. Bowman had all this personal knowledge during the course of the contract?

[00:02:20] Speaker 00:
Absolutely. He was involved. In fact, he testified during the course of the trial that he had taken over the claim entirely, and he did the calculations for the contracting officer's final decision.

[00:02:29] Speaker 04:
I thought he was an estimator that just simply tallied up an estimate based on data that Bowman gave him.

[00:02:37] Speaker 00:
Well, not at all. He worked with data that Boland gave him, but also the data from the Army Corps of Engineers and the contracting officer, who did not testify at trial, I might add, relied on that in preparing the $1.7 million final decision that's under appeal.

[00:02:53] Speaker 04:
I thought there were all sorts of elements that need to be proven in order for you to win on your claim of liability.

[00:03:00] Speaker 00:
Well, there's causation, there's resulting injury, and there's liability. And when the...

[00:03:09] Speaker 00:
Army Corps of Engineers granted the contracting officer's final decision for $1.7 million. They acknowledged as much. They acknowledged that they were liable because they can't give money away right under the FAR.

[00:03:21] Speaker 04:
Did you ever ask for an extension?

[00:03:23] Speaker 04:
An extension of time for the contract due to the delays? Yes.

[00:03:29] Speaker 00:
Well, let me say this. There were discussions replete through the course of the job. This job, as you may recall, was one that was under a strict deadline, I believe, of June 15, 2011. I believe it was President Obama himself who required this project to be finished within that timeframe to beat the hurricane season. I personally...

[00:03:54] Speaker 00:
had my house go underwater during Katrina, so I can appreciate this. And this contractor, despite all of these delays that were acknowledged, finished this job on time within that. So there was never going to be an extension granted, and there wasn't, and the contractor did what it was obliged to do by the government, which was finish the contract on time.

[00:04:13] Speaker 02:
Do you allege that the board made any other errors in terms of its analysis other than You say ignoring Mr. Bellman's testimony?

[00:04:25] Speaker 00:
Well, let me say this. I haven't raised those as errors on appeal because as far as we're concerned, once we establish entitlement, all of those other decisions, the court talked about pile logs and did you separate concurrent delays and those sorts of things, all go to quantum. We have established entitlement. Imagine, if you will, if at the beginning of this matter that was on appeal, if the government had come out and said, stipulated to the court, we stipulate that we agree the contractors owed money.

[00:05:02] Speaker 00:
The question is simply how much. We would have passed on to the quantum phase. Now, they wouldn't do that, but that's exactly what this witness did. And when the witness did it, there was no redirect of the witness. There was no backing up for the witness. for the government. They left it there just as it was.

[00:05:20] Speaker 02:
And the board is required to make that credibility decision? Is that what you're suggesting?

[00:05:27] Speaker 00:
I think the board is required, when a statement like that is made, to take it into account, and the board didn't take it into account at all. It was interesting, we raised it as the number one issue in our post-trial brief, and the board mentions it not at all in 43 pages. And we point out, there's an Eighth Circuit decision we've cited that While this is not a judicial admission, and we've never said it was, it is an evidentiary admission. And that when an evidentiary admission like this is not explained or refuted, that the party, I think the Eighth Circuit case says, is stuck with it.

[00:06:00] Speaker 00:
It's binding on the party.

[00:06:01] Speaker 02:
And the 43 pages go to all the reasons why your client does not win.

[00:06:06] Speaker 00:
Well, it's interesting because the 43 pages would, as I've said, I would argue would go toward quantum because if the judge says, well, you're not entitled to any days of recovery whatsoever, well, that's just been contraindicated by this one witness who has basically admitted entitlement, which parenthetically is all that case was about. We weren't there to try quantum at all. The Board of Contract Appeals routinely bifurcates these matters. It's something that the Army Corps of Engineers is fully familiar with.

[00:06:37] Speaker 00:
And it didn't object to that procedure. And it understands, the Army Corps of Engineers understands that when you have that arrangement, Entitlement is, are you entitled to something? And if so, if that's proven, how much? Your Honor, we ask that you would please reverse the judgment of the Board of Contract Appeals and restore our appeals and then remand this, not for another case trial on entitlement, because we think the fact of entitlement is able to be resolved on that very simple, undisputed piece of testimony, but instead remand it for a trial.

[00:07:11] Speaker 04:
Mr. Bowman's estimate of $1.2 million, did David Bowman get the $1.2 million?

[00:07:21] Speaker 00:
No, sir. If they've been paid that, I'm not aware of it. The appeal was filed for the full, I think, $7.8 million.

[00:07:29] Speaker 00:
That was the claim that was submitted.

[00:07:32] Speaker 04:
The government says Bolin's been paid already. 1.2 million and then the earlier 500K.

[00:07:39] Speaker 00:
There were earlier unilateral modifications which were supplied, and actually some payment was made, including I think part, maybe part of the 1.7 million, but when the final tally came out, the remainder was not paid to my knowledge.

[00:07:58] Speaker 01:
Okay, thanks, counsel. We'll save the rest of your time for rebuttals.

[00:08:00] Speaker 00:
Yes, thank you.

[00:08:23] Speaker 01:
May it please the Court, even assuming that that the statement of Mr. Bowman was enough to constitute an admission, even though he was primarily, in fact, only involved with figuring out quantum for the contracting officers.

[00:08:39] Speaker 03:
Could I just ask you, did... Did David Bowman get the $1.7 million or not?

[00:08:44] Speaker 01:
Yes. They got the amount that was in modifications, and the Army Corps of Engineers chose not to challenge or file a counterclaim at the Board of Contractors.

[00:08:54] Speaker 04:
So the entire amount, Mr. Bowman...

[00:08:59] Speaker 04:
estimated at $1.2 million and then he testified to, that's already been paid.

[00:09:04] Speaker 01:
Yes. That's my understanding from talking with the Army Corps of Engineers, one of the first things I asked. Because there is a modification out there, and if a modification isn't paid, the government remains liable for Contract Dispute Act interest. So if the government issued a modification, didn't challenge it at the board, and hadn't paid it during the time the interest is running, and so the government becomes liable for a greater amount, sometimes a significant amount, when a case is on appeal. So that was an early question.

[00:09:35] Speaker 01:
But if we assume that the statement of Mr. Bowman is enough to constitute admission with regards to the lay, which is what he was asked about, That doesn't go to the other elements of a constructive acceleration claim, which are not challenged on appeal. It doesn't go for the fact that there was a request for an extension, that that request was denied, that the government insisted on moving forward despite the request, and that the contractor expended additional resources on All those are essential elements of a constructive acceleration claim, and the board found that Boland didn't meet any of those other components.

[00:10:14] Speaker 01:
So even, again, if we assume the best-case scenario, that admission is insufficient.

[00:10:20] Speaker 01:
Also, I think it's important to make sure we have the statement taken in context. As we set forth in our brief, Mr. Bowman is talking about the estimate that he provided, and he provides that that information was simply plugged into the contracting officer's decision. He didn't do the facts. He didn't do the analysis. All that predated his numerical analysis. So at the end of the day, this is insufficient to constitute an admission of liability, broad admission of liability, on the part of the government here.

[00:10:55] Speaker 01:
We believe this case was controlled by cases like Wilner and Eagle Peak Rock.

[00:11:01] Speaker 01:
And unless the court has any specific questions?

[00:11:04] Speaker 01:
Okay. Thank you, counsel. Thank you, Your Honor. We respectfully request that the court affirm the decision of the Armed Services Board of Contract Appeals. Thank you. Mr. Lund?

[00:11:17] Speaker 00:
On the issue of whether it was paid or not, I'm not aware that it was paid. Certainly, if it was paid, it would come out in the quantum assessment if we get to that stage.

[00:11:28] Speaker 00:
I don't know why I need a constructive acceleration claim when I have the Army Corps of Engineers witness telling the court that I'm entitled to recovery. For whatever reason, he believes it is entitled. But I thought it was telling... that counsel mentioned that they paid what they paid or else they would be liable for a greater amount. I mean, that is the entitlement. That is the liability. And the witness put it pretty squarely. Look, we didn't agree on quantum before. I agree you're owed something.

[00:11:59] Speaker 00:
We just have a disagreement on quantum. And that's where he left it, and that's where we are, and that's why this case should proceed to the quantum phase. Thank you, Ron. Okay, I'm thankful with counsel. The case is taken under submission. I appreciate it.