i'd just like to acknowledge briefly that this is the first sitting of our new colleague judge carrasquillo and on behalf of the panel in the court i'd just like to let her know how thrilled and honored we are to have her with us and what a pleasure it is to welcome her first taste this morning is called fifteen five zero zero nine gray oust services versus united states is i was thrown out on a motion to dismiss on the pleadings the court's claims held that the regulation forty eight c f r forty two a set of regulations forty two point six hundred  words were not incorporated into the contract that my client intrude into with the forest service and the and what is your view were they incorporated if so is everything incorporated decision  your both these writers that we see for that they were recruited no your honor i think that certainly not everything in the universe of regulations is incorporated into a federal contract but those that are relevant to the performance of the contract and and here actually they were incorporated literally by reference by reference to the fair opportunity to respond to performance evaluations that's in the record a sixty eight contractor contracts with the forest service the forest service is supposed supposed to prepare a performance evaluation for the completed work at the time the work is completed the the wording of the the regulations and then as soon as practicable it is to be provided to the contractor in the contractor is to have a minimum of thirty days to respond to rebut to provide additional information and what happened here was that the work was completed in december  timely manner asked here is the work was done then we would have an issue with a violation of the forty two point fifteen zero to which the evaluation is to be be completed when the work is completed obviously that little fuzzier is then you know the the language in fifteen zero three which is as soon as practicable after that give it to the contractor and so we are not presented with the issue of whether the evaluation list was prepared in a timely manner if it had been provided to the contractor right after it has been practicable after it was prepared in march he certainly would have had time to rebut to bring in his his witnesses to say you know maybe this was a case of a mistake in an identity where you're saying i was rude to your workers and to make matters worse even when the plaintiff boy is dead he prepared a freedom of information act request and there was a response in april twentieth levon which was after evaluation was prepared and it didn't include the evaluation and then the forest service solicited bids from him he had been a long time contractor with the forest service doing wildlife restoration work and they even went out of their way this is a detailed twenty three  april after the evaluation to tell him that his work was appreciated he had completed the project quote successfully and quote your continued interest in participation in the forest service acquisition program is welcome and then you know he takes all this time to go out in the woods to it took him two or three days to go and look at the site and make sure he knew what he was getting on prepared bed and then if it was rejected you said earlier  so the contract sixty eight says fair opportunity is the name of that section each contractor contract holder will be given fair opportunity for the task order issued past performance quality control and price prior to award and during contract performance will be considered on task orders for the past performance and i would say even especially since it's in a capital a it is a direct reference but there is a regulation on point the talks of past performance and that's the ones the regulations were discussing then the christian doctrine states that the law is to be read into the contract if it's required by the regulations for example the forest service invokes for example if there's an environmental law suit there's an injunction the forest service will terminate the contract for convenience and in this court's decision in the rockies case they said the court but even so that provision even if it's not in the also to be fair to the contractor you know you have a contractor who maybe you know their competitors making phone calls to the forest they're missing terrible things about them is not true the contractor should have an opportunity to respond and all of that is in the public interest and the christian doctrine says that where there is a regulation that you know is is well established everyone's aware of it it's not like it's a little secret rule as in the smiths in the case which the of claims relied on and nobody could say they weren't aware of these regulations neither side and so where you know that most of the case law under the christian doctrine is we're contractors were arguing hey you know you can't enforce country against me because it's not in the contract and the courts have said well no there's a big body of law that governs how government contracts work and and we're going to incorporate some by reference  this missing case where it was just kind of this obscure internal guideline which will not be incorporated by reference we have a rule it's been promulgated it's in the federal register it's in the the sections right next to the section about how to write it for a service contract and any talk about how to administer the contract and here you have people who have contracts to go on for years and years and years and get renewed and in fact they reached out to him to bid because he was a valued would have no meaning in every single government regulation would automatically be interpreted well you have to obviously have to have standing for example to enforce a contract tradition we can't be someone outside the contract and say hey you mandatory how this is a mandatory contract clause or what perceived by marriage well i think the only way to really put that in context is to look at the cases that have distinguished such as this missing case  from page thirteen thirty eight which says that christian stands for the proposition that the parties to government contract neglect to include a clause in the contract that is otherwise required by regulation for example a terminations between ok like the courts will read that  incorporated into contracts there needs to be expressed intentional language of incorporation here even if we accept that is there any way in which the person on the other end of the case can ever enforce one of these provisions and we agree with you that these regulations must there explicitly put into the contract they're not the subject of a breach of contract action but does that mean that the government can go ahead and follow whatever regulations it wants or not and there's no way for  there's no money mandating it here than the temporary right in the other way could be brought is under just a broad based e p a claim because the cd is broader than just the restricted narrow interpretation of all qualifies as a breach of contract when you're bringing a claim under the cea you can bring claims related to a contract after related to the performance of a contract and the most typical way that typically brought agree formation action that's not a breach of contract action that's an action saying we want to reform the contract and in the future you can bring that because that's related to the performance of a contract and i think this gets directed to a judge still mention which is how do you reconcile for fifty two and then for fourteen to one regarding contract clause one regarding in ministration and i think that creates  argue under the c d a the business related forms of a contract and bring a separate independent action under that that's not what's at issue here because plaintiffs argued for breach of contract action and to make this point clear we gave brielle's multiple opportunities to exactly from doing this at this point i haven't done the math calculation i think they might be time for it because it would be year after the contract and off decision i don't have a firm answer unfortunately on or i haven't looked into it but i do think we gave them multiple opportunities to exactly articulate what claim they're bringing we don't just move to dismiss we move for a more definite statement we said we understand the speech breach of contract action all the elements of the claim have not been met and but if anything about what we're arguing articulation of the complaint isn't clear this is the opportunity and it's a motion to dismiss face it's not what conceivably could have been pleaded it's what are you pleading and what they stated in their opposition but there's nothing they could have closed to make this in your view that there's nothing that could y would be ideal that would conceivably get into what types of remedies the regulation contemplated i think again it would be going far afield from the facts in this case i'm not sure even that would go to money damages type two i mean the most conceivable situation is where one would argue i've got a performance evaluation i didn't deserve this negative evaluation and directly challenge the merits of that evaluation but again that's not an issue here they're not even arguing about the fact that they've got a negative a terry doesn't feel like the way you want the government to act in you know so this is hard to tell people when they don't do a good job right you just lose a good job and pass the ball you know i mean in this case it cost him a lot of time and money that he could have devoted to other projects and and so i'm wondering well what can be done if anything about the government doesn't he doing this this event his contract is now well you're i think the first thing we have to point out is that the case was decided t regulation as i read it wouldn't necessarily get there in fact the revenue would seek might not be money damages it's much broader than that i think when you're articulating a breach of contract like you're restricted because automatically the percentage of remedy in that case is money damages and so i think that's kind of the of the spectrum of which we have to evaluate how this claim they brought this is a breach of contract claim and so the first question you ask is well where is this in the contract we gave the multiple opportunities to free articulate what their position was what the theory  true motion for more definite statement in multiple instances in their opposition they said this is a breach of contract action this is a breach of contract action for jettisoning the other possible theories under which they could have brought the case and it was on that basis the court decided the trial court decided the case under st christopher saying christopher clearly controls in this instance vaccinate involved an agency regulation that says an agency must do this and what the court said is we need to express intentional language of incorporation and both mandatory and express a significant or deeply ingrained strand of public to kerman policy are they need to just be something that expresses a significant and deeply ingrained public pyramid policy or does it also have to be  provision of law that said determination for convenience costs have to be incorporated you look at the general engineering again there was a regulatory clause that said this provision has to be incorporated and then you look at the sham rosso again there was a regulation that said this provision by american act has to be incorporated into a contract and what it looks like is if the parties understanding that there was this law that said these had to be incorporated into contracts that these were mandatory contract clauses for some reason didn't put it into the contract with the court did in that instance was incorporated because there was a provision of law that required i think that's the way you have to read those cases so my understanding is if there is a regulatory provision or some form of law that says this provision must complaint and then as part of the record they did the agency finally provided the evaluation and that's when he finally got to respond and what's the status of that is the g a o rejected  less there was a there's a second level of appeal within the g a o i believe that we didn't go beyond that and as far as the a p a there's no damages available under the a p a it's unclear what kind of remedy would be available at this late date what so you know when the defense counsel talks about a motion for a more definite statement you know we're stuck with a breach of contract we were in the court of claims we're trying to argue for damages there aren't other you know series that can be created here so you have to look at the contract itself and the defendant if you deprive the fair opportunity clause in the contract of any meaning because you know that is a provision of the contract so what does that mean it's refusing language that is identical to the language in those regulations and it has meaning only if the parties are assuming that there's going to be an ongoing relationship of rebidding and being evaluated fairly on that past performance and you know i realize that this is different from other cases that have been before the court but i think that it's a matter of public policy it's fair and it's a way to interpret this contract thank you