| 00:00:10 |
Unidentified Speaker, -
BOEINGH AND GENERAL DYNAMICS. THEY CONTEND THAT THEY VIOLATED THE CORPORATIONS CONSTITUTIONAL RIGHTS BY USING THE STATE SECRETS PRIVILEGE TO STOP THEM...
|
| 00:00:34 |
Unidentified Speaker, -
THANK YOU, AND MAY IT PLEASE THE COURT, THE PROPOSITION WE ARE CHALLENGING IS ONE EMBRACED BY THE FEDERAL CIRCUIT
|
| 00:00:43 |
Unidentified Speaker, -
THAT SAYS THE UNITED STATES GOVERNMENT CAN DECLARE THAT CERTAIN GOVERNMENT CONTRACTING PARTNERS HAVE OPERATED IN DEFAULT, AND UNDER THOSE CIRCUMSTANCES...
|
| 00:02:03 |
Unidentified Speaker, -
CONTRACT, THE DECISION WAS THAT ITS COST WOULD NOT OUT RUN THE CONTRACT PRICE. SO IT SOUGHT TO REFORMULATE THE CONTRACT. AT THAT TIME, CORRECT ME IF...
|
| 00:02:40 |
Unidentified Speaker, -
THEY IDENTIFIED THE SUPERIOR KNOWLEDGE PROBLEM AROSE WHEN THE GOVERNMENT TOOK THE EXTRAORDINARY STEP OF ISSUING A CURE NOTICE. UP UNTIL THAT TIME THEY...
|
| 00:03:07 |
Unidentified Speaker, -
I THINK YOU HAVE TO PUT IT IN CONTEXT. DURING THIS TIME, THERE WERE CONSISTENT EFFORTS AND REQUESTS BEING MADE TO
|
| 00:03:16 |
Unidentified Speaker, -
GET ACCESS TO BOTH THE B-2 AND A-117 STEALTH TECHNOLOGIES. EVENTUALLY, THE INFORMATION WAS FORTHCOMING, BUT IT WAS TOO LITTLE, TOO LATE TO EFFECTIVELY...
|
| 00:04:03 |
Unidentified Speaker, -
I THOUGHT THE CONTRACTOR HAD ALL OF IT, OR ENOUGH TO FIT. I HAVE NOT FOUND ANYWHERE IN THE CONTRACT THAT IT REQUIRES THE U.S. TO SHARE WITH YOU. DOES...
|
| 00:04:30 |
Unidentified Speaker, -
SECRETS,
|
| 00:04:32 |
Unidentified Speaker, -
AND THE GOVERNMENT THEN INVOKES ITS PRIVILEGE. IS THAT A DIFFERENT CASE THAN THIS ONE IN TERMS OF DUE PROCESS? WOULD NOT THE FORMER SITUATION, WHERE...
|
| 00:05:23 |
Unidentified Speaker, -
I WANT TO ANSWER THE MORE FUNDAMENTAL QUESTION, YOUR HONOR, THE BASIC POINT IS THE BACKGROUND PRINCIPLE OF LAW, THIS IS SUPERIOR KNOWLEDGE, IS THE UNDERSTANDING...
|
| 00:06:14 |
Unidentified Speaker, -
I THOUGHT THE CLAIM WAS YOU WERE PROMISED THIS INFORMATION AND USE STRUCTURE OF THE CONTRACT BASED ON THAT PROMISE. >> WE HAVE A SERIES OF DISTINCT...
|
| 00:06:30 |
Unidentified Speaker, -
NEVER ENTERED THE CONTRACT IF IT WAS BASED ON SUPERIOR KNOWLEDGE THAT, FOR INSTANCE, THE WHEAT SPECIFICS WE WERE BEING ASKED TO PRUETT -- THE WEIGHT...
|
| 00:06:59 |
Unidentified Speaker, -
NOT CORRECT. >> THAT MAY BE A FACTUAL DISPUTE, AND I WOULD BE HAPPY TO LITIGATE THAT ISSUE IF WE GET TO THAT POINT WHERE WE ARE IN FACT
|
| 00:07:08 |
Unidentified Speaker, -
ALLOWED TO LITIGATE ANY ASPECT OF OUR PARTICULAR DEFENSE, BUT THE BOTTOM LINE IS, AGAIN, TO STATE THE PROPOSITIONL THE STARKEYLY AS IT IS, THEY ARE ...
|
| 00:07:54 |
Unidentified Speaker, -
TO HOLD YOUR CLIENT IN THIS CASE. YOU JUST READ IT TWO CIRCUIT COURT OPINIONS AND YOU THINK THIS IS THE DEFENSE. IN OTHER WORDS, IT IS NOT UNFAIR. BUT...
|
| 00:09:00 |
Unidentified Speaker, -
DEFENSE -- PART OF THE PROBLEM IS WE DON'T KNOW PRECISELY WHAT INFORMATION. IS VERY DIFFICULT TO SAY, HOW STRONG IS OUR DEFENSE UNDER THE CIRCUMSTANCES....
|
| 00:10:20 |
Unidentified Speaker, -
NOT A SELF DEFINE THE CONCEPT. THE PETITIONERS ARE THE PLAINTIFFS. >>
|
| 00:10:25 |
Unidentified Speaker, -
THEY
|
| 00:10:28 |
Unidentified Speaker, -
WERE THE PLAINTIFFS, AND REVIEW SCHEME THAT WAS ANNOUNCED THEM WAS KNOWN BEFOREHAND. WHAT WE NEED TO LOOK AT THAT? >> THE
|
| 00:10:36 |
Unidentified Speaker, -
REVIEW SCHEME SAYS THE 1986 INSURANCE CASE, BEFORE THIS CONTRACT WAS ENTERED INTO, THE FEDERAL CIRCUIT SAID THE MERE FILING OF
|
| 00:10:45 |
Unidentified Speaker, -
A COMPLAINT IMMEDIATELY VACATES THE CONTRACT AND OFFICER'S RULE. OUR UNDERSTANDING AT THE TIME WE ENTERED INTO THIS WAS THERE WAS A PROBLEM WITH A CONTRACT...
|
| 00:12:00 |
Unidentified Speaker, -
IT TO A LIQUIDATED CLAIM. BUT THAT IS A VASTLY DIFFERENT STATEMENT, AND INDEED WE HAVE AN ARGUMENT WITH RESPECT TO HALF OF THAT THAT IT ALREADY HAD...
|
| 00:13:04 |
Unidentified Speaker, -
ANY PROFITS -- >> THAT IS NOT TRUE. ALL WE ARE ASKING FOR ARE THE REMEDIES THAT ARE FULLY AVAILABLE IF YOU WERE TO CONVERT
|
| 00:13:13 |
Unidentified Speaker, -
THIS FROM A TERMINATION FOR DEFAULT INTO A TERMINATION FOR CONVENIENCE. UNDER THOSE CIRCUMSTANCES, THE GOVERNMENT HAS A WONDERFUL MECHANISM THAT PROTECT...
|
| 00:14:03 |
Unidentified Speaker, -
PARTY WOULD BE THE MOVING PARTY WITH RESPECT TO SOME OF THE CLAIMS AND THE OTHER WOULD BE THE MOVING PARTY WITH RESPECT TO THE REMAINING CLAIMS. >> I...
|
| 00:14:19 |
Unidentified Speaker, -
ME THAT EXCEPT IN A HYPERTECHNICAL WAY, BECAUSE OF THE WAY THE CONTRACT DISPUTES THAT, PLAYS OUT, THE GOVERNMENT IS UNQUESTIONABLY THE MOVING PARTY,...
|
| 00:14:41 |
Unidentified Speaker, -
CONTRACT THAT THE GOVERNMENT HAS A DUTY TO SHARE CERTAIN INFORMATION. AND YOU ARE SEEKING TO OUT IN FORCE THAT IMPLIED TERM UNDER THE CONTRACT. IT SEEMS...
|
| 00:15:10 |
Unidentified Speaker, -
OF WHAT IS GOING ON IS THE GOVERNMENT IS MAKING A CLAIM FOR $1.35 BILLION, FOR WHICH WE DID NOT ACT IN A TIMELY FASHION. THAT IS THE ONLY BASIS THAT EXISTS...
|
| 00:15:48 |
Unidentified Speaker, -
BILLION THAT YOU HAVE ALREADY GIVEN US. >> RIGHT, THAT JUST GOES TO THE QUESTION, IS THERE SOME WAY TO EVALUATE THOSE CLAIMS SEPARATELY? THE ANSWER RIAS,...
|
| 00:15:59 |
Unidentified Speaker, -
THEY SHOULD BE. >> WHY SHOULDN'T THEY? IT SEEMS TO ME IF INDEED THE
|
| 00:16:06 |
Unidentified Speaker, -
GOVERNMENT HAS COME UP WITH A DEFENSE THAT MAKES IT IMPOSSIBLE TO DECIDE WHO IS IN THE RIGHT HERE, I THINK THE USUAL COURSE TAKEN BY COURTS WOULD BE...
|
| 00:16:53 |
Unidentified Speaker, -
WITH INTEREST. [LAUGHTER] AND CERTAINLY WE THINK THAT IS THE MINIMUM THAT WE SHOULD BE ENTITLED TO, AND MAYBE TO SOME EXTENT YOU COULD SAY WE'RE BEING...
|
| 00:17:42 |
Unidentified Speaker, -
WAS ALSO ANOTHER FIGURE. 1.2 BILLION YOU WOULD GET ON TOP OF THAT. >> NO, BUT THE $1.2 BILLION WAS WITH THE ADDITIONAL AMOUNTS OF MONEY ACTUALLY EXPENDED...
|
| 00:18:01 |
Unidentified Speaker, -
REASONABLE, ALLOCABLE, AND ALLOWABLE FOR THEIR CLAIMS ON THIS AGREEMENT. AND IT WOULD BE THE STANDARD OPERATING PROCEDURE. IF YOU HAVE A TERMINATION...
|
| 00:18:34 |
Unidentified Speaker, -
CLAIM YOU ARE IN DEFAULT. WHY SHOULD WE FORCE THAT DOWN THE GOVERNMENT'S THROAT WHEN WE CAN NO MORE SAY THEY ARE WRONG BEEN YOU ARE WRONG? >> IT SEEMS...
|
| 00:18:54 |
Unidentified Speaker, -
LET'S LET THE GOVERNMENT CALL THAT DEFAULT OR YOU COULD JUST AS EASILY SAY, THE DECISION WE WOULD TAKE, THE GOVERNMENT CANNOT CALL IT A DEFAULT, BECAUSE...
|
| 00:19:42 |
Unidentified Speaker, -
WE DON'T KNOW WHAT THE STATE SECRETS THING IS. THE GOVERNMENT IS ENTITLED TO MAKE THAT DETERMINATION. WE DON'T KNOW WHO WAS IN THE RIGHT. WHY FORCE...
|
| 00:20:07 |
Unidentified Speaker, -
OF COLLATERAL CONSEQUENCES. IT EXPOSES YOU TO SUBSEQUENT PROBLEMS IN THE CONTRACTING PROCESS AND CREATES THE POSSIBILITY OF FUTURE PROCEEDINGS THAT RATHER...
|
| 00:21:07 |
Unidentified Speaker, -
ARE BEING GREEDY, YOU ADMITTED IT. THE TERMINATION FOR CONVENIENCE CARRIES ITS OWN AUTOMATIC CONSEQUENCES THAT APPEAR UNFAIR AND LIGHT OF THE FACT...
|
| 00:22:13 |
Unidentified Speaker, -
SAYS IT IF SOMEBODY IS THE MOVING PARTY IS SEEKING AFFIRMATIVE RELIEF, THAT IS THE PARTY THAT BEARS THE BURDEN. >> CAN I ASK YOU WHAT OF THAT PRINCIPLE...
|
| 00:22:29 |
Unidentified Speaker, -
THOUGH THEY'RE TRYING TO DETERMINE THE MOVING PARTY. BUT IN THIS SITUATION, IT IS VERY OFTEN ARBITRARY OR FORTUITOUS. IF YOU THINK ABOUT IT IN A PRIVATE...
|
| 00:23:32 |
Unidentified Speaker, -
HAD IN MIND WAS SEEKING AFFIRMATIVE RELIEF. >> SPEAKING OF A PORT. -- SPEAKING OF TORT. >>
|
| 00:23:44 |
Unidentified Speaker, -
THAT IS A SPECIFIC CONTEXT. >>
|
| 00:23:51 |
Unidentified Speaker, -
IF I HAVE PAGE YOU ALREADY AND I FIND YOUR PRODUCT SUFFICIENT, I WILL GO TO COURT AND DEMAND MY MONEY BACK. IF I
|
| 00:23:59 |
Unidentified Speaker, -
FIND YOUR PROJECT EFFICIENT BEFORE I PAY YOU, YOUR GONE TO COURT AND SAY YOU HAVE TO PAY ME -- IF I FIND YOUR PRODUCT POSITION, BEFORE A PAY YOU, YOU...
|
| 00:24:23 |
Unidentified Speaker, -
RENDERED IN WHICH SATISFIED OUR PORTION OF THE OBLIGATION UNDER THE CONTRACT -- THAT OF BOTH PARTIES HAVE CLAIMS. ONE SAYS YOU ARE OBLIGATED TO PAY ME....
|
| 00:24:51 |
Unidentified Speaker, -
TO DO WITH THIS? >> THAT IS EXACTLY MY PROBLEM, BECAUSE WHEN I LOOK AT REYNOLDS, REYNOLDS DOES
|
| 00:25:00 |
Unidentified Speaker, -
NOT HOLD ANYTHING IN YOUR FAVOR. IT HOLDS THE OPPOSITE WAY. IT SAYS IT IS UNCONSCIONABLE FOR THE GOVERNMENT BOTH TO PROSECUTE AND NOT TO TELL THEM THE...
|
| 00:25:48 |
Unidentified Speaker, -
DID NOT DO THAT, IT SAID THE RATIONALE IS UNCONSCIONABLE. I DON'T EVEN HAVE TO GO THAT FAR. I CAN GO
|
| 00:25:55 |
Unidentified Speaker, -
TO FUNDAMENTALLY UNFAIR. WHAT SHOULD I READ TO GET UNDER MY UNFORTUNATE IMPRESSION, WHICH I GOT FROM THE TWO OPINIONS, THAT THERE WAS NOTHING UNFAIR?...
|
| 00:26:19 |
Unidentified Speaker, -
AN IMPRESSIVE PRIME FACIA SHOWING OF A DEFENSE, AND THE FEDERAL CIRCUIT APPEAL WAS WE DON'T CARE, WHICH WILL NOT LET YOU GO DOWN THAT PATH, PERIOD....
|
| 00:26:49 |
Unidentified Speaker, -
AND THE NON PRIVILEGED INFORMATION. >> SO IT MADE IT THIS JUDGMENT ON A GREAT DEAL OF INFORMATION,
|
| 00:26:57 |
Unidentified Speaker, -
YET CANNOT CONCLUDE THAT YOU WERE RIGHT AS A
|
| 00:27:00 |
Unidentified Speaker, -
MATTER OF LAW, CORRECT? >> IT RECOGNIZED THAT IT TERMINATED DISCOVERY VERY EARLY, AND THERE ARE WHOLE PROGRAMS WE KNOW
|
| 00:27:09 |
Unidentified Speaker, -
NOTHING ABOUT. WE KNOW ABOUT THE B-2 AND A-117, BUT WE DO NOT KNOW ABOUT THE OTHER PROGRAMS. >> THANK YOU, MR. PHILLIPS.
|
| 00:27:25 |
Unidentified Speaker, -
GENERAL? B>> THANK YOU, MR. CHIEF JUSTICE. AT FIRST, THE GOVERNMENT DOES NOT AFFIRM INVOKING THE POWER OF THE COURT, ONLY THAT IT WAS MR. PHILLIPS...
|
| 00:28:15 |
Unidentified Speaker, -
STATE SECRETS DOCTOR AND, WE CANNOT RESOLVE THAT QUESTION. WHAT WE CALL THE WHOLE THING OFF, NOBODY IS AT FAULT? THAT MEANS IT IS TERMINATED NOT FOR...
|
| 00:28:32 |
Unidentified Speaker, -
COURTS TO ALTER THE LEGAL STATUS QUO. I THINK THE PRINCIPLE OF REYNOLDS IS OUT -- BUT ONLY BECAUSE YOU ALTER THE LEGAL STATUS QUO. YOU ALTERED IT BY HOLDING...
|
| 00:28:55 |
Unidentified Speaker, -
DECIDE THERE IS DEFAULT TERMINATION. ONCE THEY DO THAT, THEN DATE THOUGH THE ON LIQUIDATED PAYMENT. >> WOULD THAT NOT BE AN AFFIRMATIVE STEP? >> IT...
|
| 00:29:13 |
Unidentified Speaker, -
BUT NOT THE FEDERAL COURTS. >>
|
| 00:29:17 |
Unidentified Speaker, -
HE WORKS FOR YOU, AND HE IS THE ONE CHANGING THE STATUS QUO. >> THAT IS UNDOUBTEDLY THE CASE, AND THAT IS THE
|
| 00:29:26 |
Unidentified Speaker, -
TERMS OF THE CONTRACT WHICH THEY AGREED. OUR CENTRAL PROPOSITION
|
| 00:29:30 |
Unidentified Speaker, -
IS IN A WORLD WHERE THE FEDERAL COURT DOES NOT KNOW WHO IS RIGHT AND WHO IS WRONG ON A PARTICULAR CLAIM, IT SHOULD STAY ITS HAND ENTIRELY AND GET OUT...
|
| 00:30:01 |
Unidentified Speaker, -
BURDEN INVOLVED IN THE INVITATION OF THE STATE SECRETS PRIVILEGE. I'M ASKING IF THAT TEST IS APPLICABLE IN THE CONTRACT? >> I THINK THERE ARE SPECIAL...
|
| 00:30:19 |
Unidentified Speaker, -
DECIDE WHO BEARS THE BURDEN OF COMING INTO COURT AND SO ON. I THINK THIS IS A SIMPLE PRINCIPLE, AND A WORLD WHERE THE COURT DOES NOT KNOW WHO IS RIGHT...
|
| 00:30:57 |
Unidentified Speaker, -
IS YOUR POSITION THAT IF WE DETERMINE YOUR THE MOVING PARTY, YOU LOSE? >> NO -- >> HE ASKED WHETHER WE APPLY
|
| 00:31:09 |
Unidentified Speaker, -
REYNOLDS. HE DID NOT SAY WHICH PART OF REYNOLDS. ARE YOU
|
| 00:31:14 |
Unidentified Speaker, -
CONCEDING THAT IF WE APPLY REYNOLDS AND WE FIND YOU WHAT THE MOVING PARTY THAT YOU LOSE? >> ABSOLUTELY NOT. I DON'T THINK IT SAYS IF THE GOVERNMENT IS...
|
| 00:31:29 |
Unidentified Speaker, -
NO REASON WHATSOEVER FOR THE COURT -- >> I DON'T KNOW THAT MOVING PARTY MEANS WHO COMES INTO COURT FIRST. IN
|
| 00:31:41 |
Unidentified Speaker, -
THE CONTEXT OF A CONTRACT DISPUTE, I WOULD SAY THE MOVING PARTY IS THE PARTY WHO IS TRYING TO USE THE PRINCIPLES OF LAW TO CHANGE THE CONTRACT. AND THAT...
|
| 00:32:23 |
Unidentified Speaker, -
REYNOLDS WAS TALKING ABOUT THAT BECAUSE THAT WAS THE SITUATION IN REYNOLDS. BUT I AM SAYING THE LOGIC OF THE
|
| 00:32:31 |
Unidentified Speaker, -
MATTER, THE LOGIC OF THE MATTER WHEN APPLIED TO A CONTRACT SITUATION SUCH AS THIS, WHAT TO BE THE PARTY THAT IS BLOWING THE WHISTLE, WHO IS TRYING TO...
|
| 00:33:00 |
Unidentified Speaker, -
ABOUT AND THE ROLE OF FEDERAL COURTS. I THINK WITH THE DECISION SAY TOGETHER IS IF YOU DO NOT KNOW ONE WAY OR ANOTHER, YOU SHOULD WANT THE CLOCK BACK...
|
| 00:33:46 |
Unidentified Speaker, -
FAULT. IF HE WAS WRONG ABOUT THAT, IT WAS NOT THE RIGHT OF THE GOVERNMENT. >> JUSTICE SCALIA, BUT BE READ THE CONTRACT. IF THE CONTRACT IS TERMINATED...
|
| 00:34:00 |
Unidentified Speaker, -
CONTRACTOR SHALL ON DEMAND REPAID TO THE GOVERNMENT THE AMOUNT OF PROGRESS PAYMENTS. AND THEN WHAT HAPPENED AS A RESULT OF THAT DEMAND LETTER THAT WE...
|
| 00:34:31 |
Unidentified Speaker, -
OF DUE PROCESS TO SAY SOMEHOW WE AGREE TO
|
| 00:34:35 |
Unidentified Speaker, -
THEIR DEFERMENT CREATE SOME ENTITLEMENT FOR THEM TO KEEP THE $1.35 BILLION. >> I HAVE THIS QUESTION ABOUT DUE PROCESS. THE COMPONENT OF THE DUE PROCESS...
|
| 00:34:48 |
Unidentified Speaker, -
IS REASONABLE AND NECESSARY IN THE CASE, WHAT IS UNCONSCIONABLE. IT THAT SEEMS TO ME JUST AN EXTRAPOLATION OF WHAT REYNOLDS SAID, AND I DON'T KNOW WHY...
|
| 00:35:22 |
Unidentified Speaker, -
WHICH MAKES CLEAR AT THE TIME THEY SIGNED THEIR CONTRACT, THEY WERE ON NOTICE THAT HIGHLY CLASSIFIED INFORMATION THAT IS THE SUBJECT OF LITIGATION IS...
|
| 00:36:22 |
Unidentified Speaker, -
I THINK THE CONTRACT IS UNDOUBTEDLY CLEAR THAT IN ORDER TO CHALLENGE THE DECISION OF THE CONTRACT OFFICER ABOUT
|
| 00:36:29 |
Unidentified Speaker, -
THE DEFAULT TERMINATION, THEY HAVE TO COME TO FEDERAL COURT AND INVOKE AFFIRMATIVELY, SEEK AFFIRMATIVE JUDICIAL RELIEF FROM THE FEDERAL COURT TO CHANGE...
|
| 00:36:49 |
Unidentified Speaker, -
CORRECT. THAT IS IN THE JOINT APPENDIX. >>
|
| 00:36:55 |
Unidentified Speaker, -
IT SAYS THE REASON THEY CANNOT SPECIFY THIS INFORMATION IS BECAUSE THEY DID NOT KNOW WHAT IT WAS.
|
| 00:37:02 |
Unidentified Speaker, -
THEY DIDN'T KNOW WHAT WAS SECRET INFORMATION OR WHAT TO ASK FOR. >> IS A VERY ODD THING TO BID ON A MULTIBILLION-DOLLAR CONTRACT ON THE ASSUMPTION THEY...
|
| 00:37:15 |
Unidentified Speaker, -
SPECIFIED. THEY ARE BIDDING FOR THEIR RESEARCH AND DEVELOPMENT. THEY BROUGHT IN LOCKHEED, WHICH HAD BUILT LOW OBSERVER ABILITY PLANES PRECISELY FOR THE...
|
| 00:37:47 |
Unidentified Speaker, -
TO HAVE THE WEIGHT OF AIRPLANE THAT HE CONTACTED THEM TO COME ACROSS WITH. THEY SAY YOU KNEW THAT BECAUSE OF OTHER CONTRACTS YOU HAD BUT DID NOT TELL...
|
| 00:38:07 |
Unidentified Speaker, -
SECRETS. >>
|
| 00:38:09 |
Unidentified Speaker, -
THAT WAS LITIGATED BEFORE THE COURT OF FEDERAL CLAIMS ALONG WITH 18 OTHER CLAIMS AND DEFENSE TO THE UP $1.640261632. --
|
| 00:38:19 |
Unidentified Speaker, -
AND DEFENSE TO ABOUT $1.35 BILLION. MUCH OF THAT HAS TAKEN PLACE IN A HIGHLY CLASSIFIED ENVIRONMENT. >>. YOU SANG THAT WAS NOT IMPOSSIBLE TO DO? >> I...
|
| 00:38:37 |
Unidentified Speaker, -
SAYING THAT WE WARNED THEM OF SUCH AND THOSE ARE THE CITATION IN THE GOVERNMENT'S BRIEF. >>
|
| 00:38:45 |
Unidentified Speaker, -
AT THE WEIGHT CONTRACTED FOR. >> WE HAD WARNED THEM IT WAS NOT, AND WE
|
| 00:38:54 |
Unidentified Speaker, -
LATER RELAXED AT WHEAT SPECIFICATION. I AM NOT SURE THAT IS PREVALENT ONE
|
| 00:38:58 |
Unidentified Speaker, -
WAY OR ANOTHER. A CENTRAL POSITION IS IF YOU ARE NOT SURE, IF YOU DON'T KNOW WHO IS RIGHT OR WRONG, THEN THE FEDERAL COURT SHOULD NOT BE COMPLETED IN...
|
| 00:39:21 |
Unidentified Speaker, -
BUT THEN THAT MEANS SOMEBODY ELSE IS THE MOVING
|
| 00:39:25 |
Unidentified Speaker, -
PARTY. >> THAT IS CORRECT. THAT IF SOMEBODY WANTS TO GET MONEY FROM
|
| 00:39:29 |
Unidentified Speaker, -
THE FEDERAL GOVERNMENT, THEY HAVE TO GO OUT TO THE COURT
|
| 00:39:32 |
Unidentified Speaker, -
OF CLAIMS. >> THAT IS CORRECT. >> THIS IS A CONVENIENT ROLE FOR YOU. BENNETT IS A CONVENIENT RULED THAT THEY
|
| 00:39:39 |
Unidentified Speaker, -
AGREED TO WHEN THEY SIGNED
|
| 00:39:42 |
Unidentified Speaker, -
CONTRACT. THEY KNEW THE DEAL GOING IN, WHICH WAS IF IT WANTED TO CHALLENGE THE DECISION OF THE CONTRACTING OFFICER, THEY WOULD HAVE TO COME IN. THEY...
|
| 00:40:08 |
Unidentified Speaker, -
ON THE FAULT, BUT NOT SUPERIOR KNOWLEDGE. IF YOU FOLLOW
|
| 00:40:13 |
Unidentified Speaker, -
THEIR RULE, THEY'RE ASKING THE COURT TO PROCEED AGAINST THE FACTS AND SAY THEY ARE ENTITLED TO NOT JUST $1.35 BILLION, ABOUT 1.2 BILLION ON TOP, AS IF...
|
| 00:40:39 |
Unidentified Speaker, -
OFF, EVERYBODY GO HOME WITH WHAT THEY HAVE. BUT MR. PHILLIPS SAID IT IS EITHER DEFAULT TERMINATION OR TERMINATION FOR CONVENIENCE, NOTHING IN BETWEEN....
|
| 00:41:04 |
Unidentified Speaker, -
PAYMENTS, WHICH WE ARE NOT SEEKING, AND ON LIQUIDATED PAYMENTS AT WHICH THE GOVERNMENT HAS THE ABSOLUTE RIGHT AT THE MOMENT THE CONTRACT OFFICER DECIDES...
|
| 00:41:24 |
Unidentified Speaker, -
PLAY, WHICH CANNOT APPLY THE CONTRACT BECAUSE WE CANNOT DECIDE WHO IS IN THE RIGHT OR WRONG. IT IS TOTALLY IRRELEVANT BUT THE CONTRACT SAYS. YOU JUST...
|
| 00:41:42 |
Unidentified Speaker, -
WE DON'T THINK THE FEDERAL COURTS SHOULD BE
|
| 00:41:45 |
Unidentified Speaker, -
IN THE BUSINESS OF MICROMANAGING AND CONTRACTUAL SITUATION WITH PARTIES THAT
|
| 00:41:49 |
Unidentified Speaker, -
CAN PROTECT THEMSELVES VERY EASILY. >> WE CAN DO IT AS A MATTER OF THE LOT OF CONTRACTS -- THE LAW OF CONTRACTS. REYNOLDS'
|
| 00:42:01 |
Unidentified Speaker, -
TALKS ABOUT THE MOVING PARTY, AND I AM NOT SURE THAT PHRASE HAD OR HAS REALLY DEFINABLE CONTENT IN OUR LAW. IT SEEMS TO ME THIS IS A QUESTION OF BURDEN...
|
| 00:42:43 |
Unidentified Speaker, -
PERSUASION ON SUPERIOR KNOWLEDGE. I DON'T THINK THAT WOULD BE THE RULE THAT IS APPROPRIATE, JUSTICE KENNEDY, BECAUSE I THINK UNDERLYING REYNOLDS IS THE...
|
| 00:43:20 |
Unidentified Speaker, -
UNABLE TO MAKE A SHOWING IN FEDERAL COURT? >> THAT IS RIGHT, THAT THE SECRETS YOU WANTED TO
|
| 00:43:28 |
Unidentified Speaker, -
PROTECT OR ACTUALLY THE KEY TO
|
| 00:43:32 |
Unidentified Speaker, -
YOUR PROVING A YEAR WAS THE FAULT -- PROVING THERE WAS THE FAULT. >> IN THAT CASE, I THINK THE CASE WOULD BE DISMISSED BECAUSE THEY WOULD BE COMING IN...
|
| 00:43:45 |
Unidentified Speaker, -
RELIEF TO BREAK THE CONTRACT OFFICER'S DECISION AND GET WHATEVER DAMAGES THEY WANT. >> LET ME UNDERSTAND, BECAUSE THAT SOUNDS LIKE YOU WIN BOTH WAYS....
|
| 00:43:59 |
Unidentified Speaker, -
THE U FROM MAKING YOUR AFFIRMATIVE CASE -- IF THE STATE SECRETS. DID YOU FROM MAKING AFFIRMATIVE CASE -- >> THE GENERAL PROPOSITION IS IF THE FEDERAL...
|
| 00:44:17 |
Unidentified Speaker, -
RELIEF TO A PARTY. >> TO A MOVING PARTY, AND YOU ARE NEVER THE MOVING PARTY. >>
|
| 00:44:27 |
Unidentified Speaker, -
AGAIN, JUSTICE SCALIA, THAT IS THE CONTRACT THEY SIGNED. THAT COULD HAVE CITED FOR A CONTRACT WITH DIFFERENT RESULTS. >>
|
| 00:44:34 |
Unidentified Speaker, -
DID THE CONTRACT CONTAINED THE TERM "MOVING PARTY"? >> IT DID NOT
|
| 00:44:42 |
Unidentified Speaker, -
SAY THAT, BUT IT DID SAY WHO HAD COME TO COURT TO CHALLENGE THE DECISION OF THE CONTRACT OFFICER AND PUTS
|
| 00:44:48 |
Unidentified Speaker, -
THAT BURDEN ON THEM. >> THAT IS WHAT I DON'T UNDERSTAND. YES, THAT THE FAULT PROVISION -- THE
|
| 00:44:58 |
Unidentified Speaker, -
DEFAULT PROVISION IS DECIDED BY THE CONTRACT OFFICER, BUT YOU CANNOT COLLECT ON THAT JUDGMENT OF THE HAVE FILED A COMPLAINT. YOU CANNOT DO ANYTHING UNTIL...
|
| 00:45:30 |
Unidentified Speaker, -
THE FILING OF THEIR CLAIM AND THE COURT OF FEDERAL CLAIMS, THAT IS WRONG UNDER THE STATUTE, 605B, WHICH SAYS THAT A CLAUSE CAN BE PUT INTO THE CONTRACT...
|
| 00:46:04 |
Unidentified Speaker, -
IT IS IN THE REPLY BRIEF, AND OUR CLAIM IS THAT PROVISION REQUIRES -- RIGHT NOW, WE HAVE
|
| 00:46:13 |
Unidentified Speaker, -
AN ABSOLUTE AND COMMENT TO THE $1.35 BILLION. THAT IS WHAT THE CONTRACT SAYS, THAT IS WHAT THE DEFERMENT AGREEMENT SAYS THAT WE HAVE ENTERED INTO. SO...
|
| 00:47:06 |
Unidentified Speaker, -
BU>> WE HAVE NO PROBLEM WITH A GO AWAY RULE. IF HE RETURNED TO THE STATUS QUO, WE WOULD HAVE THE $1.35 BILLION. THAT IS WHAT THE CONTRACT SAYS, THAT...
|
| 00:47:37 |
Unidentified Speaker, -
HAVE TO REQUIRE WHETHER IT WAS VALID. TO SAY GO AWAY MEANS EVERYBODY KEEPS THE MONEY HE HAS AT. >> JUSTICE SCALIA, THAT IS USING THE POWER OF THE COURT...
|
| 00:47:54 |
Unidentified Speaker, -
THINK IS FORBIDDEN BY REYNOLDS, IT WOULD BE AND NOT RULE BECAUSE IT IS HAPPENSTANCE. IF WE HAD INSISTED ON THE $1.35 BILLION THAT WAS OWED TO US, WE CANNOT...
|
| 00:48:28 |
Unidentified Speaker, -
AVOID THIS PROBLEM? >> YOU WOULD SAY THE GOVERNMENT INVOKES THE STATE SECRET PRIVILEGE AND IT BECOMES A TERMINATION
|
| 00:48:37 |
Unidentified Speaker, -
FOR CONVENIENCE. >> WITH THE CLIENT EVER AGREE TO THAT? >> THE GOVERNMENT? I THINK THAT UNDERSCORES THE PROBLEM WITH THEIR ARGUMENT.
|
| 00:48:45 |
Unidentified Speaker, -
THEY
|
| 00:48:46 |
Unidentified Speaker, -
ARE SAYING, READ THE CONTRACT THIS WAY TO CONVERT THIS ALL INTO TERMINATION FOR CONVENIENCE, WHEN THE STATE SECRETS PRIVILEGE IS INVOKED. I AGREE, THAT...
|
| 00:49:13 |
Unidentified Speaker, -
ACCEPT. >> I THINK THERE ARE OTHER WAYS. THERE IS THE POSSIBILITY THEY WOULD DEMAND EXTRA MONEY IN EXCHANGE FOR GREATER RISK.
|
| 00:49:23 |
Unidentified Speaker, -
THERE MAY BE SOME ALTERNATIVE DISPUTE RESOLUTION MECHANISM. >> WOULD THERE BE A PROBLEM WITH THAT? >> IT WOULD DEPEND, YOU MIGHT HAVE IT IN THE MILITARY,...
|
| 00:49:37 |
Unidentified Speaker, -
EQUIVALENT MIGHT BE PANELS.
|
| 00:49:39 |
Unidentified Speaker, -
I AM NOT SURE WHAT THE PRECISE CONTRACTUAL ARRANGEMENTS WOULD BE. I THINK THE NEED FOR THIS COURT TO BE INVOLVED IS A LOT LOWER THAN IN THE CRIMINAL...
|
| 00:50:35 |
Unidentified Speaker, -
I DON'T QUITE SEE, IF YOU WOULD DISCUSS IT A LITTLE BIT, HOW YOU DO THIS AS A MATTER OF CONSTITUTIONAL LAW. BECAUSE THE DUE PROCESS CLAUSE IS TIED TO...
|
| 00:51:37 |
Unidentified Speaker, -
IN THAT SOPHISTICATED PARTIES AGREED AHEAD OF TIME TO OTHER THINGS, BUT ALSO THE WHOLE NOTION OF DUE PROCESS AND CONTRACTS IT IS OFF BECAUSE THE GOVERNMENT...
|
| 00:52:50 |
Unidentified Speaker, -
THAT COULD HAVE BEEN NEGOTIATED. THAT IS NOT THE WAY THAT CONTRACT LAW WORKS. >> WHAT THIS THOUSANDS OF PAGES OF CONTRACT, THIS COULD HAVE BEEN WORKED...
|
| 00:53:06 |
Unidentified Speaker, -
IN THEY BORE THE BURDEN OF WALKING INTO COURT, PAYING ATTORNEYS AND EVERYTHING ELSE, TO CHALLENGE THE DECISION OF THE CONTRACT OFFICER, AND THEY ALSO...
|
| 00:53:54 |
Unidentified Speaker, -
ONE IS THE WORK THEY HAD REVIEWED
|
| 00:53:56 |
Unidentified Speaker, -
AND UNDERSTOOD AND THE GOVERNMENT SAID THIS IS GOOD, WE WILL PAY FOR IT, AND OTHER WORKS WITH HER CLAIMS TO HAVE MADE, BUT THEY HAVE NOT GOTTEN PAID BY...
|
| 00:54:27 |
Unidentified Speaker, -
THAT IS THE EXTRA
|
| 00:54:29 |
Unidentified Speaker, -
COSTS INCURRED UNDER THE CONTRACT, ABOVE AND BEYOND THE $4.8 BILLION IN THE INITIAL CONTRACT. >> GENERAL, THE YOU HAVE THE CITATION TO THAT FOOTNOTE YOU...
|
| 00:54:47 |
Unidentified Speaker, -
LATER, BUT -- >> IT IS PAGE 32, ALLEN ALSO REFERRED THE COURT TO APPENDIX -- AND I WOULD ALSO REFER THE
|
| 00:54:59 |
Unidentified Speaker, -
COURT TO APPENDIX 157, WHICH INCORPORATES THE PROVISION. IT SAYS IT MANDATES PERFORMANCE COMPLIANCE WITH THE CONTRACT, EVEN WHEN THE CONTRACT OFFICER...
|
| 00:55:39 |
Unidentified Speaker, -
THAT IS RIGHT, AT THAT MOMENT, THEY KNEW THAT. IN FACT THEY SENT A BANK LETTER SAYING
|
| 00:55:49 |
Unidentified Speaker, -
PLEASE DON'T DO THAT. THEN WE ENTERED INTO A DEFERMENT AGREEMENT. BUT WE HAVE AN ABSOLUTE RIGHT TO THAT MONEY RIGHT NOW, REGARDLESS. WE DON'T NEED AN...
|
| 00:56:25 |
Unidentified Speaker, -
IT PROVIDES AN OFFSET. WE DON'T ACTUALLY HAVE TO SEEK
|
| 00:56:31 |
Unidentified Speaker, -
THE $1.35 BILLION DOLLARS, WE WOULD JUST GET THAT. >> YOU GET THE EXTRA MONEY WITHOUT HAVING TO GO TO COURT. BECAUSE THEY HAVE TO GO TO COURT TO CHALLENGE...
|
| 00:56:48 |
Unidentified Speaker, -
AND AGAIN, THAT IS THE CONTRACT WHICH THEY SIGNED. >> THANK YOU. >>
|
| 00:56:56 |
Unidentified Speaker, -
THANK YOU, GENERAL.
|
| 00:57:00 |
Unidentified Speaker, -
MR. PHILLIPS, YOU HAVE THREE MINUTES. >>
|
| 00:57:03 |
Unidentified Speaker, -
JUSTICE KENNEDY, I THINK THIS CAN BE PROPERLY DECIDED ON FEDERAL COMMON LAW PRINCIPLES AND I WOULD ASK THE COURT TO APPLY
|
| 00:57:10 |
Unidentified Speaker, -
THIS CONTRACT PRINCIPLES. JOIN APPENDIX, PAGE 209. THE GENERAL FOCUSES ON WHAT HAPPENS WHEN THE CONTRACT OFFICER TAKE SOME ACTION. WHAT HE LEAVES OUT...
|
| 00:58:35 |
Unidentified Speaker, -
JUSTICE SCALEA'S QUESTION -- >>
|
| 00:58:36 |
Unidentified Speaker, -
ON WHAT PRINCIPLE? >> IF YOU DO NOT HAVE A PRINCIPAL FOR DEFAULT, WE CANNOT DECIDE WHO IS RIGHT
|
| 00:58:45 |
Unidentified Speaker, -
AND WHO WAS WRONG, AND
|
| 00:58:47 |
Unidentified Speaker, -
THEREFORE WE CANNOT ENFORCE THE CONTRACT OFFICER'S DECISION AND WE DON'T DO ANYTHING MORE. WE LEAVE THE STATUS QUO ANTE, WHICH MEANS BEFORE THEY DECLARED...
|
| 00:59:09 |
Unidentified Speaker, -
I UNDERSTOOD YOUR PAPER THAT IT WAS MAKING ONLY A CONSTITUTIONAL CLAIM. >> I DON'T READ THAT.
|
| 00:59:15 |
Unidentified Speaker, -
WE CERTAINLY HAD A DUE PROCESS ARGUMENT EMBEDDED IN THERE, BUT THERE
|
| 00:59:20 |
Unidentified Speaker, -
ARE A NUMBER OF REFERENCES TO FEDERAL COMMON LAW PRINCIPLES AS NINE CONSTITUTIONAL BASIS ON WHICH TO RULE IN OUR FAVOR. I THINK THE COURT OUGHT TO BE...
|
NOTE: The transcript for this program was compiled from uncorrected Closed Captioning.